California Court of Appeal Jul 30, 2013 No. E058030Unpublished
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
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
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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
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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
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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
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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
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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.
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AI Brief
AI-generated · verify before citing
Holding. The juvenile court did not abuse its discretion in denying a hearing on the father's section 388 petition or in terminating parental rights, as the father failed to demonstrate changed circumstances or that reinstating services would be in the children's best interests.
Issues
Did the juvenile court abuse its discretion by denying a hearing on the father's section 388 petition?
Did the father meet his burden of proof to show changed circumstances and that a change of order was in the children's best interests?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We conclude there was no abuse of discretion in denying a hearing on father’s section 388 petition and denying the petition.”
“Childhood does not wait for parents to become adequate.”