California Court of Appeal Mar 18, 2014 No. D064656Unpublished
Filed 3/18/14 In re D.D. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re D.D., Minor. D064656
San Diego County Health & Human (San Diego County Services Agency, Super. Ct. No. J510306G)
Plaintiff and Respondent,
v.
Shelly R., et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of San Diego County, Garry G.
Haehnle, Judge. Affirmed.
Christy C. Peterson, under appointment by the Court of Appeal, for Defendant and
Appellant Shelly R.
Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and
Appellant D.D., Sr.
Thomas E. Montgomery, County Counsel, John E. Philips and Lisa Maldonado,
Deputy County Counsel, for Plaintiff and Respondent.
Shelly R. challenges the juvenile court's orders denying her petition to modify a
court order denying reunification services regarding her son D.D. (Welf. & Inst. Code,
§ 388),1 and a subsequent order terminating her parental rights (§ 366.26). The
biological father, D.D., Sr. (the Father), appeals to the extent that any arguments
and (11). Those statutory provisions allow denial of reunification services when the
parent has previously had reunification services terminated after a failure to reunify, or
has previously had parental rights terminated, and the parent has not made subsequent
reasonable efforts to treat the problems that led to those outcomes. (§ 361.5, subd.
(b)(10) & (11).) In initially denying reunification services in February 2013, the juvenile
court decided that Shelly had not made reasonable efforts to treat the problems that led to
her loss of parental rights for her six previous children. As we will explain, the juvenile
court was within its discretion to determine that as of August 2013, Shelly's section 388
petition did not show a change of circumstance with respect to her failure to treat her
problems.
As the juvenile court noted at the section 388 hearing, Shelly was to be
commended for reconnecting with the San Diego Regional Center and for making
9
attempts to educate herself about how to be a good parent. However, the juvenile court
also reasonably observed that it was evident from Shelly's past history that because of
Shelly's intellectual disability and mental health issues, merely accessing services was not
sufficient to show that Shelly had addressed her past parenting problems. As the court
stated, Shelly had received services in the past and had attempted to parent her children,
but she had not succeeded. Among other things, past psychological evaluations
concluded that Shelly would have to attend therapy to "help her develop coping and
management strategies for her overall functioning." At the time of her section 388
petition, Shelly was only in the very beginning stages of receiving such therapy, having
only attended a single session. Further, even though she was now obtaining assistance
from an independent living services worker at the San Diego Regional Center, Shelly did
not establish that the association with the Regional Center had sufficiently resolved the
issues that had led to her past problems.
Also supporting the juvenile court's decision to deny the section 388 petition was
the crucial fact that Shelly was still homeless. Due to her homelessness, even though
Shelly desired to improve her situation and had taken initial steps to do so, she had not
demonstrated any change in her ability to provide a stable and safe home environment for
D.D.
Shelly argues that the juvenile court should have held an evidentiary hearing rather
than deny her petition on the ground that she did not establish a prima facie case.
However, because the petition did not allege any facts showing sufficiently changed
circumstances, there is no merit to Shelly's argument that an evidentiary hearing should
10
have been conducted to determine whether evidence of changes circumstances could be
developed. (See In re Edward H. (1996) 43 Cal.App.4th 584, 593 ["If a petitioner could
get by with general, conclusory allegations, there would be no need for an initial
determination by the juvenile court about whether an evidentiary hearing was
warranted."].) Although the petition described certain steps by Shelly showing that she
was interested in improving her parenting abilities, the petition did not set forth any facts
indicating that Shelly was now capable of protecting D.D. and otherwise providing for
his parental needs. (See In re Anthony W. (2001) 87 Cal.App.4th 246, 251 (Anthony W.)
[conclusory allegations of completion of parenting class and regular visits with child
insufficient to make prima facie showing of changed circumstances].)
Based on the above, the juvenile court was well within its discretion to conclude
that from the face of the section 388 petition, the most that can be said is that there may
have been changing circumstances, not changed circumstances. A showing of merely
changing circumstances, however, "is not sufficient to require a hearing on the merits of
[Shelly's] section 388 petition." (In re A.S. (2009) 180 Cal.App.4th 351, 358.)
C. The Juvenile Court Was Within Its Discretion to Conclude That Modifying the Order Denying Reunification Services Was Not in the Best Interests of the Child
Shelly contends that it was in D.D.'s best interests for her to be offered
reunification services because reunification would maintain the familial bond between
D.D. and his mother.
However, as Shelly recognizes, "[o]nce reunification services are ordered
terminated, the focus shifts to the needs of the child for permanency and stability." (In re
11
Marilyn H. (1993) 5 Cal.4th 295, 309.) Here, D.D.'s foster family was strongly interested
in adopting him, which would provide D.D. with the permanency and stability he needed.
Further, as the juvenile court observed, Shelly's previous history in the juvenile
dependency system showed that even when she was offered reunification services, she
was unable to successfully reunify with any of her previous children, which only served
to delay permanency and stability for those children. Under the circumstances, the
juvenile court was well within its discretion to conclude that D.D.'s interest in
permanency and stability outweighed any interest he may have had in the possibility of
reunification with Shelly. D.D. "should not be made to wait indefinitely for [Shelly] to
become an adequate parent." (Anthony W., supra, 87 Cal.App.4th at p. 252.)
In sum, the juvenile court did not err in denying Shelly's section 388 petition.
D. Remaining Issues
Having concluded that the juvenile court properly denied Shelly's section 388
petition, we also determine that there is no merit to two remaining issues raised in this
appeal.
First, Shelly challenges the order terminating her parental rights, but she expressly
premises that challenge on her success, if any, in obtaining a reversal of the order
denying her section 388 petition. As we have affirmed the order denying the petition to
modify, we also affirm the order terminating Shelly's parental rights.
Second, the Father has appealed only to the extent that any success by Shelly on
her appeal inures to his benefit. As Shelly has not succeeded in her appeal, we also
12
determine that the Father is not entitled to any relief based on the outcome of Shelly's
appeal, and we affirm the termination of parental rights as to the Father.
DISPOSITION
The orders of the juvenile court are affirmed.
IRION, J.
WE CONCUR:
NARES, Acting P. J.
HALLER, J.
13
AI Brief
AI-generated · verify before citing
Holding. The juvenile court did not abuse its discretion in denying the mother's section 388 petition for modification because she failed to establish a prima facie case of changed circumstances or that reunification services would be in the child's best interests. Consequently, the court properly terminated parental rights to ensure the child's need for permanency and stability.
Issues
Did the juvenile court err in denying the section 388 petition without an evidentiary hearing?
Did the mother establish a prima facie case of changed circumstances?
Did the juvenile court abuse its discretion in determining that reunification services were not in the child's best interests?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the juvenile court was within its discretion to deny the petition to modify.”
“the juvenile court was well within its discretion to conclude that from the face of the section 388 petition, the most that can be said is that there may have been changing circumstances, not changed circumstances.”