San Diego County Health & Human Services Agency v. Gala G.

77 Cal. App. 4th 799, 92 Cal. Rptr. 2d 20, 2000 Daily Journal DAR 789, 1999 Cal. App. LEXIS 1139
CourtCalifornia Court of Appeal
DecidedDecember 20, 1999
DocketNo. D033567
StatusPublished
Cited by304 cases

This text of 77 Cal. App. 4th 799 (San Diego County Health & Human Services Agency v. Gala G.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
San Diego County Health & Human Services Agency v. Gala G., 77 Cal. App. 4th 799, 92 Cal. Rptr. 2d 20, 2000 Daily Journal DAR 789, 1999 Cal. App. LEXIS 1139 (Cal. Ct. App. 1999).

Opinion

[803]*803Opinion

MCDONALD,J.

Gala G. (Mother) filed a petition pursuant to Welfare and Institutions Code section 3881 (hereafter the section 388 petition), alleging changed circumstances and seeking to modify the order terminating reunification services for her child Zachary G. (Zachary). The court denied a hearing on the section 388 petition and thereafter terminated Mother’s parental rights at the section 366.26 hearing (the .26 hearing). Mother contends both rulings were erroneous.

I

Factual and Procedural History

A. Mother’s History

Prior to Zachary’s birth Mother had two children, including Austin, who had been declared dependents of the juvenile court. Austin was declared a dependent in 1995 because of severe physical abuse by Austin’s father, David L. (Father), and domestic violence between Mother and Father. Austin lived with his maternal grandparents, who planned to adopt him.

B. The Dependency and Reunification Phase

Zachary was bom November 7, 1997, and taken into protective custody. The court declared Zachary a dependent because it found tme the petition’s allegations that a sibling (Austin) suffered severe physical abuse by Father, there was a substantial risk Zachary would suffer similar abuse and Mother was unable to protect Zachary (§ 300, subd. (j)). The court placed Zachary with the maternal grandmother and ordered Mother and Father to comply with the provisions of their reunification plans.

In the report prepared for the June 1998 six-month review hearing, the social worker reported Mother was homeless and staying with various friends. Mother had stopped living with Father in late November or early December 1997, and had completed a domestic violence program. In late March 1998 she resumed living with Father but left him again in late April 1998 after he bit her on the nose during an argument. The court continued Zachary as a dependent in out-of-home custody.

By late July 1998 Mother and Father had resumed living together. However, Father was arrested for assaulting Mother on July 31, 1998, was [804]*804released from custody on August 4, 1998, immediately assaulted Mother again and was rearrested on August 5, 1998.

In the report prepared for the 12-month review hearing, the social worker reported that in June 1998 Mother was not attending therapy regularly; she had a pattern of attending therapy when she was not living with Father and ceasing therapy when she was. Mother resumed living with Father after he was released from custody following his August 1998 arrest, and they lived together until late November or early December 1998. A psychologist evaluated Mother’s condition in September 1998 and concluded she was of borderline intelligence and was a poor risk to protect her children from harm because of her low cognitive abilities and strong dependency needs. The psychologist diagnosed Mother’s condition as a dependent personality disorder and reported that unless Mother could function without Father in her life for at least one year, plans should be made for Zachary to be adopted. Mother’s therapist likewise concluded she had a dependent personality disorder, and that she had made progress during the first half of 1998 but regressed when she stopped regularly attending therapy after June 1998.

The social worker recommended reunification services be terminated and a .26 hearing be scheduled. At the January 1999 12-month review hearing, the parents submitted on the recommendations. The court terminated reunification services and set a .26 hearing.

C. The Section 388 Petition and the .26 Hearing

The social worker’s assessment prepared for the .26 hearing reported Mother had regular supervised visits with Zachary and interacted with him appropriately. However, Zachary interacted equally well with all the adults, did not seek out Mother for attention or affection, and was not upset when the visits ended. The caretakers reported Zachary turned to them to meet his needs 90 percent of the time during the supervised visits. The social worker stated Zachary’s relationship to Mother was not a parental relationship, Zachary looked to his caretakers for comfort and to meet his needs and called his caretakers “mom” and “dad.” The social worker recommended parental rights be terminated to allow Zachary to be adopted by his caretakers.

1. The Section 388 Petition.

On June 1, 1999, three days before the .26 hearing, Mother filed a section 388 petition seeking return of Zachary to her custody. The petition alleged as changed circumstances that Mother had been visiting with Zachary on a [805]*805consistent and regular basis, had weekly in-home services for a newborn sibling, and had engaged in biweekly therapy sessions. The therapist reported Mother had shown sustained progress, showed no inclination to return to Father, had good parenting skills, and was fully capable of adequately caring for and safeguarding Zachary were he returned to her care.

On June 1, 1999, the court denied the section 388 petition without a hearing. At the .26 hearing on June 4, 1999, the court noted Mother had subsequently filed additional evidence in the form of a bonding study.2 The court, after hearing argument on whether the augmented showing met the prima facie burden under section 388, affirmed its order denying a hearing on the section 388 petition because Mother’s evidence did not prima facie show that returning Zachary to Mother’s care was in Zachary’s best interests.

2. The Section .26 Hearing.

The court considered the bonding study as well as the assessment report, and Mother submitted on the reports. After satisfying itself that the caretaker-grandparents were willing to adopt Zachary, and that their willingness was not the product of express or implied threats that respondent would remove Zachary and place him with strangers if they did not agree to adopt him, the court found Zachary was likely to be adopted if parental rights were terminated and that none of the exceptions under section 366.26, subdivision (c)(1) applied.

II

Analysis

A. The Trial Court Did Not Abuse Its Discretion by Denying Mother’s Section 388 Petition

Mother argues that her section 388 petition made a prima facie showing of changed circumstances and entitled her to a full hearing on her petition. Accordingly, she claims it was error for the trial court to deny her [806]*806section 388 petition without a hearing merely because she did not include within her prima facie showing evidence that Zachary’s return to her custody would be in his best interests.

1. Legal Principles

A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317 [27 Cal.Rptr.2d 595, 867 P.2d 706

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Bluebook (online)
77 Cal. App. 4th 799, 92 Cal. Rptr. 2d 20, 2000 Daily Journal DAR 789, 1999 Cal. App. LEXIS 1139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/san-diego-county-health-human-services-agency-v-gala-g-calctapp-1999.