Filed 7/25/16 In re D.A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re D.A., a Person Coming Under the
Juvenile Court Law.
D069848
IMPERIAL COUNTY DEPARTMENT
OF SOCIAL SERVICES,
(Super. Ct. No. JJP2759)
Plaintiff and Respondent,
v.
D.A.,
Defendant and Appellant.
APPEAL from postjudgment orders of the Superior Court of Imperial County,
William D. Quan, Judge. Affirmed.
Neil R. Trop, under appointment by the Court of Appeal, for Defendant and
Appellant.
Katherine Turner, County Counsel, Haislip W. Hayes and Lisa Sanchez, Deputy
County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Father1 appeals a juvenile court order summarily denying his petition under
Welfare and Institutions Code2 section 388, subdivision (a), for modification of the order
terminating his reunification services.3 Father contends the court erred in denying the
petition without affording him an evidentiary hearing because he alleged a prima facie
case compelling a hearing. We disagree and affirm the order.
II
BACKGROUND
The child became a dependent of the court after a social worker found the child
living in unhealthful conditions and the child's hair tested positive for methamphetamine
and amphetamine. Not long after the child's removal from the parents' home, the court
placed the child with foster parents. The child was two years and four months old at the
time and had significant developmental delays. After a few months in the foster parents'
care, the child's developmental delays had greatly diminished. Within a year in their
care, the child no longer had any developmental delays.
1 We refer to the parties generically to preserve confidentiality.
2 Further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
3 Father also appeals an order terminating his parental rights and selecting adoption
as the permanent plan for the child; however, father did not raise any issues regarding the
propriety of this order in his opening brief.
2
Because the child was under age three at the time of removal, the court advised the
parents they had limited time to reunify with the child. (See § 361.5, subd. (a)(1)(B) &
(3).) Notwithstanding this advisement, by the six-month review hearing, father had made
only minimal progress in alleviating the causes of the child's removal and had not made
substantive progress in his court-ordered treatment plan. Consequently, the court
terminated his reunification services.4
Mother continued to receive reunification services until the 18-month review
hearing, at which time the court terminated her services. Although the court found
mother had made significant progress toward alleviating the causes of the child's
removal, the court found returning the child to mother's care would create a substantial
risk to the child's physical or emotional well-being. At the subsequent selection and
implementation hearing (§ 366.26), consistent with an agreement by the parties, the court
selected legal guardianship by the foster parents as the child's permanent plan and issued
letters of guardianship (§ 366.26, subd. (b)(5)).
Six months later, the foster parents petitioned under section 388, subdivision (a),
to change the order selecting legal guardianship as the child's permanent plan, reinstate
dependency jurisdiction, and set a new selection and implementation hearing. According
to the petition, the purpose of selecting legal guardianship as the child's permanent plan
was to allow mother and father to reestablish their bond with the child through frequent
4 At the time the court terminated his reunification services, father had eight other
children from eight other relationships. Two of the children had died, two had been
adopted through the foster care program, and father did not have ongoing relationships
with the others.
3
and meaningful visitation. However, after the court issued the letters of guardianship,
father had not visited the child and mother's visits were infrequent and sporadic.
Meanwhile, the child had bonded with the foster parents and their younger child, whom
they had adopted through the foster care program.
The court set a hearing on the petition. At the conclusion of the hearing, the court
granted the petition, reinstated dependency jurisdiction, and set a new selection and
implementation hearing.5
Before the new selection and implementation hearing, father petitioned under
section 388, subdivision (a), to change the order terminating his reunification services
and obtain additional reunification services. According to the petition, the changed
circumstances warranting modification of the order were father's completion of a
residential detoxification program and his participation in a residential rehabilitation
program. The petition further stated, "It would be in the child's best interest to reunify
with a biological parent who is clean and sober." The court summarily denied the
petition, finding the proposed change would not promote the child's best interests.6
A few days later, the court conducted the new selection and implementation
hearing. By then, the child was a little over five years old and had lived with the foster
parents almost three years.
5 Mother and father have another child who was born while this case was pending
below. The day after the court granted the foster parents' modification petition, that child
was taken into protective custody and the court declined to order reunification services.
6 Mother filed a similar petition, which the court summarily denied for the same
reason. Mother has not appealed the denial of her petition.
4
According to a report prepared for the hearing, father had only visited the child
once between the time the court terminated father's reunification services and the time the
court selected legal guardianship as the child's permanent plan. After the foster parents
became the child's legal guardians, father did not attempt to visit the child until four
months after the foster parents filed their modification petition.
Once the court granted the foster parents' modification petition and reinstated
dependency jurisdiction, father began visiting the child once a month. At the time, father,
a long-time methamphetamine user, was in a court-ordered 30-day detoxification
program. He subsequently completed the detoxification program and entered a
companion inpatient drug rehabilitation program, where he had been for about three
months. The child's visits with father caused the child to have nightmares and, on one
occasion, a toileting accident.
After considering the report and other evidence, including father's testimony, the
court terminated father's parental rights. The court then selected adoption as the child's
permanent plan.7
III
DISCUSSION
" '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
7 The court also terminated mother's parental rights. A few days later, during a
group parenting program, mother threatened to pay someone to kill the foster parents.
The threat was reported to law enforcement. Mother has not appealed the termination of
her parent rights.
5
changed circumstances exist and (2) the proposed change would promote the best
interests of the child. [Citation.] A parent need only make a prima facie showing of
these elements to trigger the right to a hearing on a section 388 petition and the petition
should be liberally construed in favor of granting a hearing to consider the parent's
request.' [Citation.]
" 'However, if the liberally construed allegations of the petition do not make a
prima facie showing of changed circumstances and that the proposed change would
promote the best interests of the child, the court need not order a hearing on the petition.
[Citations.] The prima facie requirement is not met unless the facts alleged, if supported
by evidence given credit at the hearing, would sustain a favorable decision on the
petition.' [Citation.]" (In re Mary G. (2007) 151 Cal.App.4th 184, 205.)
"We review a summary denial of a hearing on a modification petition for abuse of
discretion. [Citation.] Under this standard of review, we will not disturb the decision of
the trial court unless the trial court exceeded the limits of legal discretion by making an
arbitrary, capricious or patently absurd determination. [Citation.]" (In re A.S. (2009) 180
Cal.App.4th 351, 358; In re G.B. (2014) 227 Cal.App.4th 1147, 1158.)
Here, father did not make a prima facie case as to either element.8 As to the first
element, father's recent completion of a residential detoxification program and entry into
8 Father contends we may not base our decision on his failure to make a prima facie
case as to the first element because the juvenile court did not base its decision on this
ground. However, " '[i]f the decision of the lower court is right, the judgment or order
will be affirmed regardless of the correctness of the grounds upon which the court
6
a residential treatment program reflected only changing, not changed circumstances.
Father had a chronic substance abuse problem and was only in the early stages of
addressing it when he filed his modification petition. (In re Ernesto R. (2014) 230
Cal.App.4th 219, 223 [recent sobriety from completion of drug treatment late in a
dependency proceeding, while commendable, reflects a changing circumstance, not a
substantial changed circumstance]; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn.
9 ["It is the nature of addiction that one must be 'clean' for a much longer period than 120
days to show real reform"].)
As to the second element, father relies solely on his status as the child's natural
parent to state a prima facie case. However, "[t]he presumption favoring natural parents
by itself does not satisfy the best interests prong of section 388." (In re Justice P. (2004)
123 Cal.App.4th 181, 192; In re Jackson W. (2010) 184 Cal.App.4th 247, 260.) At the
time father filed his modification petition, "the focus of the dependency proceedings had
shifted from reunification to the child's need for a stable and permanent home.
[Citations.]" (In re Casey D. (1999) 70 Cal.App.4th 38, 48.) Thus, to state a prima facie
case as to the second element, father was required to allege with specificity how the
proposed changed order would advance the child's need for permanency and stability. (In
re G.B., supra, 227 Cal.App.4th at p. 1157 [the allegations in a modification petition
must describe specifically how the proposed changed order will advance the child's best
interests]; In re J.C. (2014) 226 Cal.App.4th 503, 527 ["after reunification services have
reached its conclusion.' [Citation.]" (In re Jeremy S. (2001) 89 Cal.App.4th 514, 528, fn.
3, disapproved on another point in In re Zeth S. (2003) 31 Cal.4th 396, 408, 413-414.)
7
terminated, a parent's petition for . . . an order . . . reopening reunification efforts must
establish how such a change will advance the child's need for permanency and
stability"].)
Father did not satisfy this requirement, nor does it appear on this record he could
have done so. Father was only in the beginning stages of overcoming his substance abuse
and establishing himself. He had limited visits with the child and the visits adversely
affected the child. The foster parents had cared for the child for most of the child's life,
the child was bonded to their family and thriving in their care, and they were committed
to the child's adoption. " 'A petition which alleges merely changing circumstances and
would mean delaying the selection of a permanent home for a child to see if a
parent . . . might be able to reunify at some future point, does not promote stability for the
child or the child's best interests. [Citation.] " '[C]hildhood does not wait for the parent
to become adequate.' " ' [Citations.]" (In re Mary G., supra, 151 Cal.App.4th at p. 206.)
8
IV
DISPOSITION
The orders denying father's modification petition and terminating his parental
rights are affirmed.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
9
In re D.A. CA4/1
Combined Opinion