Filed 7/30/13 In re D.J. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re D.J. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E058030
Plaintiff and Respondent, (Super.Ct.Nos. J239358 & J239359)
v. OPINION
Z.J.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,
Judge. Affirmed.
Michele Anne Cella, under appointment by the Court of Appeal, for Defendant
and Appellant Z.J.
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and
Appellant A.V.
1 Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for
Plaintiff and Respondent.
I
INTRODUCTION1
Father, joined by mother, appeals from the denial of father’s section 388 petition
and the order of the juvenile court terminating parental rights to their two sons after 20
months of dependency proceedings. We conclude there was no abuse of discretion in
denying a hearing on father’s section 388 petition and denying the petition. We affirm.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention
The subjects of this appeal are two young boys, Du.J. and Da.J., who were born 10
months apart in May 2010 and March 2011, when mother was 18 years old.
In June 2011, San Bernardino County Children and Family Services (CFS) filed
an original 300 petition alleging failure to protect because the parents had exposed their
sons to domestic violence and the parents had a history of drug and alcohol abuse.
Although the children were not severely neglected or emotionally abused, CFS was
concerned about domestic violence, substance abuse, and general neglect. Father resisted
seeking medical care for Da.J., who was a few months old and underweight, and was
born with laryngomalacia, affecting breathing and causing stridor (wheezing).
1 All statutory references are to the Welfare and Institutions Code section unless stated otherwise.
2 Eventually, paramedics were called to transport the baby to the hospital and surgery was
conducted with mother’s consent the next day. After surgery, Da.J.’s breathing improved
and his weight increased. Du.J. appeared to be developmentally appropriate.
Parents planned to live with relatives. Father was working as a security guard.
Mother was receiving public assistance. Mother struggled to assert herself against father
and to focus on the well-being of the children. She admitted father had hit her several
times. CFS observed that the parents argued constantly. Father admitted to smoking
medical marijuana for a back injury. The parents denied abusing drugs or alcohol and
agreed to submit to random drug tests. At the detention hearing, the court found the
children should be removed.
B. Jurisdiction/Disposition
In July 2011, CFS recommended the children be maintained with mother with
maintenance services and father receive reunification services.
Mother was born in 1992. Mother had completed the 11th grade but never
worked. She had been diagnosed with ADD but was not taking medication. Father was
born in 1987. Father had completed the 10th grade and worked as a security guard. He
had been diagnosed with ADHD and anxiety and he used medical marijuana. Father had
a 2001 juvenile offense for threatening a school employee; a 2007 misdemeanor
conviction for possession of concentrated cannabis (Health & Saf. Code, § 11357, subd.
(a)); and a charge in February 2011 for battery on a spouse. (Pen. Code, § 243, subd.
(e)(1).) Both parents seem to have been the victims of child abuse.
3 The parents had been the subject of previous referrals involving the children in
July 2010 and March 2011. In June 2011, there was ongoing discord between the parents
with mother expressing anxiety. Mother accused father of being intoxicated on the day
Da.J. was hospitalized. Mother was living with her parents and using marijuana to cope
with her depression. Both parents tested positive for marijuana but tried to rationalize
their use of alcohol and marijuana as recreational. As of July 6, 2011, the parents had
stopped living together and father was not behaving cooperatively. At one point father
had refused to give mother the children’s medical cards. He took the welfare money
mother received and threw $150 out the car window at her. Mother had no means of
transportation and relied on father who had refused to help her.
Du.J. seemed bonded to mother. CFS deemed the prognosis for reunification with
mother to be good but complicated by mother’s dishonesty, her relationship with father,
her emotional state, and her use of marijuana to mask depression and stress. Father
displayed lack of respect, immaturity, anger, selfishness, and lack of self-awareness.
An amended dependency petition was filed on July 20, 2011, alleging father had
failed to protect the children by refusing to transport them for medical treatment and
mother had failed to protect them because of her relationship with father. CFS described
how Da.J. suffered from diarrhea and pervasive severe diaper rash, causing reddened
testicles and a swollen penis. Father had thwarted mother’s efforts to seek medical
treatment. On July 15, 2013, Da.J. was treated in the emergency room for bronchitis.
Both parents also displayed mental health problems. Mother admitted to
struggling with anxiety, stress, depression, and confusion and to using marijuana to cope.
4 Mother was also continuing to contact father and to hold out hope for them being
together.
Father’s problems were ongoing. His mother said father was extremely angry and
violent and blamed others for his problems and she had obtained a restraining order
against him. On July 19, 2011, father came to mother’s sister’s home while intoxicated
and refused to leave. He accused mother of cheating, and confronted mother violently,
shoving her to the ground. The police were called and father acted suicidal. Father was
hospitalized for suicidal ideation.
Consequently, the children had been placed with their paternal great-grandparents
(GGP). In a box of clothing, the GGPs discovered a glass pipe with methamphetamine
residue that mother had used. At the jurisdictional and dispositional hearing on July 21,
2011, the court found the children should be detained out of the parents’ home and be
placed with the paternal GGPs in Orange County. Immediately, the paternal great-
grandmother became overwhelmed and other relatives were deemed not qualified or
available for placement. The children were placed in foster care.
In August 2011, CFS reported Du.J. was in excellent health and on target
developmentally. Da.J.’s breathing had improved and his weight had increased since his
discharge from the hospital. Mother was visiting the children in July and August 2011.
On August 17, 2011, father had his first visit with the children in a month. The prognosis
for reunification was guarded.
A court-ordered mediation was conducted in August 2011. Father agreed to
participate in counseling, substance abuse treatment, parenting and domestic violence
5 classes. At the hearing on August 23, 2011, the court removed the children from parental
custody and ordered reunification services and visitation twice weekly for the parents.
C. Six-Month Status Review
In February 2012, CFS commented that the parents loved their children and
wanted them returned but neither parent was capable of caring for or protecting them
because of substance abuse and domestic violence issues. The parents had relapsed and
not participated in services. Father was arrested on January 15, 2012, for disorderly
conduct, after which he continued drinking. (Pen. Code, § 647, subd. (f).) The parents
were both unemployed and living separately with their family members. The children
were happy, healthy, and developmentally sound. The parents had visitation twice a
week for one hour. The prognosis for reunification was poor.
Various parental relatives had been assessed for placement. The paternal
grandmother (PGM) only wanted the children if father was helping her or the children
were being adopted. Father had stolen her car which had been impounded.
At the six-month review hearing on February 23, 2012, the court ordered the
parents continue to receive reunification services.
D. 12-Month Review
In August 2012, CFS reported the parents had not completed their case plan and
they were inconsistent about visiting the children. The parents still had severe substance
abuse and domestic violence issues and were incapable of parenting the children. Father
told the social worker to move forward with adoption and to stop wasting time. He
planned to move to Arizona to find a job and start over. The boys were happy and
6 healthy but displayed some developmental delays. The foster parents were interested in
adoption. The PGM was still ambivalent about placement.
In a mediation on September 20, 2012, both parents agreed to termination of
services and a permanent plan of adoption. The court ordered termination of services.
E. Section 366.26
In January 2013, the boys had been living with the foster parents since September
2011. They were happy and healthy with some developmental delays. Father had not
been in contact. Mother visited once a week for an hour. She loved the children but the
children were not bonded to her and favored the foster mother. The children were
suitable for adoption and the foster family was enthusiastic about adopting them.
On January 22, 2013, father filed a section 388 petition, seeking reinstatement of
reunification services. Father asserted he had attended individual counseling and
completed programs in domestic violence, anger management, and parenting. The
individual therapy had involved 11 sessions between February and May 2012 and a 12th
session in December 2012. His progress was erratic.
CFS responded that father had not shown a change of circumstances. Father had
not visited his children since June 2012. He had moved to Arizona in July 2012 and had
not completed his case plan in August 2012. In January 2013, father had been sober for
one month and had his first visit with the children after 28 weeks of no contact. Father
was living with his mother and unemployed. At the hearing on January 29, 2013, father
claimed he had agreed to adoption because he believed his mother would be adopting
them.
7 The juvenile court denied father’s request for a hearing on the petition. The court
selected adoption as the permanent plan and terminated parental rights.
III
DENIAL OF HEARING ON THE SECTION 388 PETITION
Father argues the court should have granted him a hearing on his section 388
petition. The court has the discretion to deny a section 388 petition hearing when the
moving party has not met his threshold burden of proof. (In re Jasmon 0. (1994) 8
Cal.4th 398, 415; In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Amber M. (2002)
103 Cal.App.4th 681, 685-686.)
Section 388 provides, in relevant part, as follows: “(a)(l) Any parent or other
person having an interest in a child who is a dependent child of the juvenile court . . .
may, upon grounds of change of circumstance or new evidence, petition the court . . . for
a hearing to change, modify, or set aside any order of court . . . . The petition shall be
verified . . . and shall set forth in concise language any change of circumstance or new
evidence that is alleged to require the change of order . . . . [¶] . . . [¶] (d) If it appears
that the best interests of the child . . . may be promoted by the proposed change of order .
. . the court shall order that a hearing be held . . . .” (§ 388, subds. (a) and (d).)
A section 388 petition must be “liberally construed in favor of granting a hearing
to consider the parent’s request,” subject to a prima facie showing to trigger the right to a
full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310; In re Anthony W. (2001)
87 Cal.App.4th 246, 250; Cal. Rules of Court, rule 5.570(a) & (h).) “‘There are two parts
to the prima facie showing: The parent must demonstrate (1) a genuine change of
8 circumstances or new evidence, and that (2) revoking the previous order would be in the
best interests of the children.’” (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079,
quoting Anthony W., at p. 250.) Thus, a prima facie showing is made if the liberally
construed allegations of the petition show both changed circumstances and that the best
interests of the child may be promoted by petitioner’s proposed change of order. (In re
Aljamie D. (2000) 84 Cal.App.4th 424, 431-432; § 388, subd. (d).)
Father contends the dependency court deprived him of his right to a hearing on his
section 388 petition, in which he requested reunification services. However, due process
is a flexible concept that depends upon the circumstances and a balancing of various
facts. (In re E.S. (2011) 196 Cal.App.4th 1329, 1340; In re Jeanette V. (1998) 68
Cal.App.4th 811, 817.) Here the juvenile court initially granted a hearing. Thereafter,
the court permitted arguments about whether a full evidentiary hearing was warranted.
As in In re Zachary G. (1999) 77 Cal.App.4th 799, 805, father was permitted to argue his
section 388 petition, which was sufficient due process, considering the weakness of the
section 388 petition.
Additionally, father did not show that his circumstances had changed and he failed
to demonstrate that reinstating reunification services served the best interests of the
children. Because father did not make a prima facie showing supporting his petition, the
court did not abuse its discretion in denying a full hearing. The parent requesting the
change of order through a section 388 petition has the burden of establishing by a
preponderance of the evidence that the change is justified. (In re Michael B. (1992) 8
Cal.App.4th 1698.) “A petition which alleges merely changing circumstances and would
9 mean delaying the selection of a permanent home for a child to see if a parent, who has
repeatedly failed to reunify with the child, might be able to reunify at some future point,
does not promote stability for the child or the child’s best interests.” (In re Casey D.
(1999) 70 Cal.App.4th 38, 47, citing In re Edward H. (1996) 43 Cal.App.4th 584, 594.)
This case began in June 2011 when father refused to seek medical care for Da.J.
Father admitted drinking, using marijuana, and arguing with mother. Father did not have
a stable residence or employment. In July 2011, he confronted mother while angry and
intoxicated. In January 2012, father was arrested. In September 2012, father had left
California and agreed to let the boys be adopted while he made a fresh start in Arizona.
Father did not see his sons from June 2012 until January 2013, when father had made
minimal progress on his case plan. Nevertheless, father now argues that the lower court
erred in denying a section 388 hearing because he had completed his services.
In actuality, father did not complete his services because he did not benefit from
them. (In re Derrick S. (2007) 156 Cal.App.4th 436, 445-450.) Father’s therapist stated
that father made “erratic progress” and expressed “ambivalence” about being able to care
for the boys and recommended more therapy.
Additionally, father had only commenced substance abuse outpatient services in
January 2013. He could offer no proof of successful completion of an outpatient program
after only one month of sobriety. Accordingly, Father did not prove “changing
circumstances,” let alone changed circumstances. (In re Edward H., supra, 43
Cal.App.4th at p. 594; § 388.) A parent who loses custody because he failed to complete
his plan is unlikely to “ever show a sufficient change of circumstances to warrant
10 granting a section 388 motion. . . . It is in the nature of addiction that one must be ‘clean’
for a much longer period than 120 days to show real reform.” (In re Kimberly F. (1997)
56 Cal.App.4th 519, 531, fn. 9.) When a parent engages in services, but does not benefit
and relapses despite extensive efforts by others to assist, this is telling of his resistance to
change. (See In re Casey D., supra, 70 Cal.App.4th at pp. 47-49 [holding that the trial
court did not abuse its discretion in denying mother’s section 388 petition, where mother
had been sober only four months, had an extensive drug history, and history of relapse].)
The present case is similar to In re Anthony W., supra, 87 Cal.App.4th at page
246, in which the appellate court held that it was not an abuse of discretion to deny a
section 388 hearing when mother’s assertions supporting the petition that she completed
her reunification plan and visited the children were conclusory. Her petition was not
supported by drug test results, certificates of completion, or names of counselors,
evincing substantive progress. (Anthony W., at pp. 250-252.)
Father also did not demonstrate that it served the boys’ best interests for the court
to grant Father more services. There was no showing the children could be safely
returned to father or that there existed a strong parental bond. In evaluating the best
interest prong of a section 388 petition, the court should consider: “(l) the seriousness of
the problem which led to the dependency, and the reason for any continuation of that
problem; (2) the strength of relative bonds between the dependent children to both parent
and caretakers; and (3) the degree to which the problem may be easily removed or
ameliorated, and the degree to which it actually has been.” (In re Kimberly F., supra, 56
Cal.App.4th at p. 532.) Considering these factors, a full hearing was properly denied. (In
11 re Jasmon 0., supra, 8 Cal.4th at pp. 414-415; In re Zachary G., supra, 77 Cal.App.4th at
pp. 806-808.)
The first prong of the Kimberly F. test is “the seriousness of the problem which led
to the dependency, and the reason for any continuation of that problem.” (In re Kimberly
F., supra, 56 Cal.App.4th at p. 532.) As detailed above, the court found true allegations
relating to the parents’ substance abuse, domestic violence, mother’s depression, and
father’s anger management issues—all serious considerations. The parents made
minimal progress before the review hearings in 2012. Father’s issues persisted because,
as the court stated, father did not meaningfully and regularly participate in his plan, and
make substantive progress.
In considering the second prong of Kimberly F.—the strength of relative bonds
between the children to the parents and caretakers—the boys had been placed with the
foster family since September 2011 when they were six months and 16 months old. The
foster parents were their parental figures. The boys were bonded to them and the other
children. Even though the boys had fun visiting father, he was not a parental figure.
In In re Zachary G., supra, 77 Cal.App.4th 799, the mother filed a section 388
petition to circumvent adoption. The juvenile court heard argument and permitted
mother to file a bonding study but then denied a hearing and denied the petition because
it did not provide expert evidence that it was in Zachary’s best interests to remove him
from fit caretakers, returning him to the mother’s custody, and the mother remained a
risk. (Zachary G., at pp. 805-808.) The mother’s evidence of a bond and of parenting
capacity was not sufficient to overcome the best interest in stability for Zachary. Here
12 father’s petition also lacked evidence showing it was in the boys’ best interest to be
removed from a stable home. The juvenile court had discretion to deny a hearing on the
petition.
The third prong of Kimberly F. involves considering “the degree to which the
problem may be easily removed or ameliorated, and the degree to which it actually has
been.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) Father minimized his long
absence from the boys’ life by arguing at the section 388 hearing that he had “only”
missed four months of visits with the boys. Father still did not understand the need to
make his children a priority. Father’s mental health issues, violence, and parental neglect
were apparently exacerbated by substance abuse and could not be ameliorated by one
month of sobriety. Father cannot rely on In re Daijah T. (2000) 83 Cal.App.4th 666, in
which the appellate court reversed termination of parental rights, finding that the lower
court erred by denying the mother a section 388 hearing when three of mother’s five
children had already been returned to her and she filed her petition five days after her
other two children were placed in a concurrent planning home. (Id. at pp. 673-675.)
Here father’s contact with the boys was unsafe. The boys were also bonded with their
foster parents, who had raised them for 16 months.
Father also cites authority that family preservation is one of the primary goals in
dependencies. (In re William B. (2008) 163 Cal.App.4th 1220.) But once reunification
services are terminated, the focus shifts to the child’s need for permanence and stability.
(In re Marilyn H., supra, 5 Cal.4th at p. 309.) Childhood does not wait for parents to
become adequate. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1016.) It does not
13 serve the needs of a dependent child “to be hostage to a fugitive parent, particularly one
with an ‘abysmal record of failure at reunification.’” (In re Derrick S., supra, 156
Cal.App.4th at p. 449, citing In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1241.)
IV
DISPOSITION
We uphold the findings and orders of the juvenile court so the children can
achieve permanence and stability. We affirm.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
HOLLENHORST J.