In re D.C. CA2/6 ( 2021 )

Filed 12/1/21 In re D.C. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re D.C., a Person Coming 2d Juv. No. B311767
Under the Juvenile Court Law. (Super. Ct. No. J072398)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
B.C.,
Defendant and Appellant.
B.C. (father) appeals both the juvenile court’s order
denying his Welfare and Institutions Code section 3881 petition
without an evidentiary hearing and the judgment terminating his
parental rights to his daughter, D.C. Father contends the court
All further statutory references are to the Welfare and
1
Institutions Code.
erred by finding (1) he failed to make a prima facie case
warranting a hearing and (2) the parental benefit exception to
the termination of parental rights did not apply. We conclude
neither contention has merit and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Both of D.C.’s parents have an extensive history of heroin
and methamphetamine use. Shortly after her birth in January
2020,2 D.C. began showing signs of withdrawal. She was
admitted to the hospital’s neonatal intensive care unit and given
methadone.
HSA initially agreed to handle the case outside of court if
mother voluntarily agreed to treatment at a facility. When
parents failed to appear for their appointment on February 3,
D.C. was taken into protective custody. D.C. was temporarily
placed with a relative and then placed with her paternal uncle
and aunt on February 14. She continues to live with them and
their three daughters.
The juvenile court ordered family reunification services for
both parents. At the six-month review hearing on August 18, the
social worker reported that mother had attended five alcohol and
drug group sessions but missed three others and failed to take 11
of her random drug tests.
Father’s participation also was inadequate. He attended
some NA/AA meetings, but failed to participate in counseling,
stopped attending parenting classes and took only five of 11 drug
tests. Despite these deficiencies, HSA recommended that
parents’ reunification services be continued and scheduled a 60-
day interim hearing to evaluate their progress.
2 All referenced dates are in 2020 unless otherwise stated.
2
On October 8, HSA determined parents had not engaged in
sufficient services to justify further delay and recommended that
the matter be set for trial. By the time of trial, parents’
circumstances had further deteriorated. Mother still was not
communicating with the social worker or drug testing. Although
father attended parenting classes and had one negative drug test,
he failed to take another test, to start counseling and to
participate in a substance abuse program, saying the program “is
not for me.”
On October 29, mother reported that father, during an
argument, held her upside-down by her ankles and scraped her
with a shard of glass from a broken beer bottle. Mother also
reported that during an earlier argument, father struck her head
against the center console of his truck and punched her four
times, resulting in a black eye. Father was arrested for inflicting
corporal injury, false imprisonment and assault with a deadly
weapon. He was jailed for a couple nights and then released.
Father claimed mother lied about the abuse.
Parents did not contest HSA’s revised recommendation and
indicated they would file a section 388 motion instead. The
juvenile court terminated reunification services to both parents
and scheduled a section 366.26 hearing. HSA recommended
termination of parental rights, which parents contested.
On March 30, 2021, father filed a section 388 petition
alleging that his circumstances had changed and that services
should be reinstated. Father claimed he was now attending
weekly therapy sessions, participating in 12-step meetings twice
a week and drug testing at his own expense. He also completed a
parent education class, was reading books on parenting and had
two letters of support.
3
The juvenile court summarily denied father’s petition,
finding that it failed to state new evidence or a change of
circumstances or to show that it would promote D.C.’s best
interests. (See In re G.B. (2014) 227 Cal.App.4th 1147, 1157.)
During the section 366.26 hearing, father argued that the
parental-benefit exception to adoption applied and that his
parental rights should not be terminated. The juvenile court
rejected that argument and terminated parental rights. It noted
that parents only had custody of D.C. during the 13 days she was
hospitalized, that visits never progressed beyond supervised and
that the visits, while “pleasant,” did not demonstrate the type of
relationship that outweighs the benefit D.C. would obtain from
adoption.
DISCUSSION
Section 388 Petition
Father contends the juvenile court abused its discretion by
denying his section 388 motion without an evidentiary hearing.
We are not persuaded.
“Section 388 provides for modification of juvenile court
orders when the moving party presents new evidence or a change
of circumstances and demonstrates modification of the previous
order is in the child’s best interests. [Citations.] To obtain a
hearing on a section 388 petition, the parent must make a prima
facie showing as to both elements.” (In re Samuel A. (2020) 55
Cal.App.5th 1, 6-7.)
“The petition should be liberally construed in favor of
granting a hearing, but ‘[t]he 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.’
[Citations] . . . The petition may not consist of ‘general,
conclusory allegations.’ [Citation.] ‘Successful petitions have
4
included declarations or other attachments which demonstrate
the showing the petitioner will make at [the] hearing . . . .’
[Citation.] When determining whether the petition makes the
necessary showing, ‘the court may consider the entire factual and
procedural history of the case.’” (In re Samuel A., supra, 55
Cal.App.5th at p. 7.) The change in circumstances “must be
substantial.” (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.)
We review the denial of a section 388 petition for abuse of
discretion. We will not overturn the juvenile court's decision
unless the appellant shows it to be arbitrary, capricious, or
patently absurd. (In re G.B., supra, 227 Cal.App.4th at p. 1158.)
Here, the juvenile court reasonably concluded that father
had failed to sufficiently allege changed circumstances. Father’s
petition did not claim a date of sobriety. It could be inferred from
the petition that father had been sober for approximately five
months after services were terminated, but he admitted missing
two drug tests during that period, whereas the social worker
reported he actually missed four. In any event, father has not
shown that five months of sobriety would be sufficient under the
circumstances. (See In re Cliffton B. (2000) 81 Cal.App.4th 415,
423-424 [finding even six months of sobriety not enough].) There
is no evidence of father’s participation in a drug treatment
program, and he failed to address his arrest for domestic violence
against mother.
Even if father had satisfied the first element of the section
388 test, he failed to show that D.C.’s best interests would be
served by reinstating services and providing father with more
time to reunify. (See In re Samuel A., supra, 55 Cal.App.5th at
pp. 6-7.) D.C. has lived with her aunt and uncle and her three
cousins since she was a few weeks old. They wish to adopt her.
As the juvenile court observed, while parents were attempting
5
rehabilitation, D.C. was bonding with her caregivers. Childhood
is brief, and the nurturing required of a young child must be
given by someone when the child needs it, not when the parent is
ready to give it. (In re Rikki D. (1991) 227 Cal.App.3d 1624,
1632, disapproved on other grounds in In re Jesusa V. (2004) 32
Cal.4th 588, 624, fn. 12; see In re Meranda P. (1997) 56
Cal.App.4th 1143, 1164 [“Neither the child nor the law can wait
for a parent to decide, at leisure, when he or she will accept in
full the responsibilities of parenthood”].)
Beneficial Parental Exception
To establish the beneficial parental exception to adoption,
the parent must show by a preponderance of the evidence: (1)
“[R]egular visitation and contact with the child, taking into
account the extent of visitation permitted,” (2) “the child has a
substantial, positive, emotional attachment to the parent -- the
kind of attachment implying that the child would benefit from
continuing the relationship” and (3) “terminating that
attachment would be detrimental to the child even when
balanced against the countervailing benefit of a new, adoptive
home.” (In re Caden C. (2021) 11 Cal.5th 614, 636-637.) When
that three-prong burden is met, it is not “in the best interest of
the child to terminate parental rights, and the court should select
a permanent plan other than adoption. [Citation.]” (Ibid.)
Our review of the juvenile court’s ruling on whether the
beneficial parental exception applies incorporates two standards
of review. (In re Caden C., supra, 11 Cal.5th at pp. 639-641.) We
apply the substantial evidence standard to the first two prongs of
the exception and the abuse of discretion standard to the third
prong. (Ibid.)
It is undisputed that father had “pleasant” visits with D.C.,
although he did miss some. Nonetheless, a history of positive
6
visitation is not sufficient to establish the first prong of the
beneficial parental exception. (In re Brian R. (1991) 2
Cal.App.4th 904, 924 [“[P]leasant and cordial father-son visits
are, by themselves, insufficient”].) Even if we were to assume the
prong was satisfied, however, father has failed to demonstrate
that D.C. has “a substantial, positive, emotional attachment to”
him and that “terminating that attachment would be
detrimental” to D.C. (In re Caden C., supra, 11 Cal.5th at pp.
636-637.)
As the juvenile court explained, “[w]hen parents have only
had the child at most 13 days in their care since birth and they’ve
only had supervised visits, it is very difficult for them to show
that they have fulfilled a parental role for a child. And I do not
believe [they] have shown that in this case.” The court found
D.C. adoptable by the family she has been with for most of her
young life and ordered termination of parental rights. Father has
not demonstrated error.
DISPOSITION
The judgment and the order denying the section 388
petition are affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P. J. TANGEMAN, J.
7
Tari L. Cody, Judge
Superior Court County of Ventura
______________________________
David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Tiffany N. North, County Counsel, and Joseph J. Randazzo,
Assistant County Counsel, for Plaintiff and Respondent.
8