In re R.D. CA2/6 ( 2015 )

Filed 10/22/15 In re R.D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 R.D., a Person Coming Under the 2d Juv. No. B262195
Juvenile Court Law. (Super. Ct. No. J069709)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
ERIC S.,
Defendant and Appellant.
Eric S. appeals an order summarily denying his petition for modification
and terminating his parental rights to his daughter, R.D. (Welf. & Inst. Code, §§ 388,
366.26.)1 He contends he made a prima facie showing in his section 388 petition that
entitled him to an evidentiary hearing. We affirm.
BACKGROUND
Eric S. is the biological father of R.D. At R.D.’s birth in November 2013,
she and her mother, Penny D., tested positive for methadone and opiates.
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All statutory references are to the Welfare and Institutions Code.
Penny was married to another man, Troy D., who was incarcerated. After
paternity tests in December, Troy D. waived presumed father status.
The Ventura County Human Services Agency (HSA) removed R.D. from
Penny. HSA filed a petition in which it alleged R.D. was at risk of serious physical
harm because Penny abused heroin, methadone, alcohol, and prescription medication;
Eric abused methamphetamine and heroin; and neither Penny nor Eric had adequately
addressed their mental illness.
Penny continued to use methadone and alcohol. Eric maintained his
sobriety.
Eric and Penny resumed their romantic relationship. In February 2014,
Penny arrived at a supervised visit with R.D. under the influence of drugs or alcohol.
Eric was with her and seemed unconcerned about her behavior. On another occasion in
February, Eric told a social worker that Penny drinks wine, but he did not think it was
an issue. He felt it would be safe to return R.D. to Penny.
In March 2014, the juvenile court found Eric to be R.D.’s presumed
father. It found that Eric posed a risk to R.D., sustained the petition against him, and
ordered reunification services for him with supervised visits. Eric’s case plan required
him to participate in counseling and medication management for depression, a parenting
class, weekly Co-Dependents Anonymous meetings to address Penny’s substance abuse
issues, and random substance abuse testing. Eric appeared for court hearings, visited
R.D., and participated in reunification services. He did not dispute the allegations
against him. He acknowledged that he knew Penny was using opiates, methadone, and
alcohol during the pregnancy. He consistently attended individual counseling and took
anti-psychotic medication as prescribed. He completed a parenting class. His drug tests
were negative except one missed test. He attended weekly Al-Anon meetings.
In May 2014, Penny’s mother reported that Penny and Eric engaged in
domestic violence. On June 21, Penny reported that Eric had “smash[ed] his guitar over
her leg.” On June 23, a bystander found Penny intoxicated and unconscious in her car.
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The juvenile court terminated reunification services for Penny after a contested hearing
on June 24.
A social worker advised Eric that continuing contact with Penny would be
detrimental to his efforts to reunify with R.D. Eric continued to see Penny daily and to
spend nights with her. He said she hit him twice in July. He was arrested in July for
battery on a person he thought was following Penny.
Eric said he continued to see Penny “because she manipulates [him], and
then [he] feel[s] bad.” He said, “I just don’t know why the Court won’t let us be
together so we can be a family.”
Eric continued to participate in reunification services, but showed no
insight into domestic violence’s effect on children. He told his counselor he was not in
a relationship with Penny although he was seeing her daily. HSA recommended his
reunification services be terminated. The juvenile court set the matter for contested
hearing in September.
R.D. was in a delicate condition. The agency reported in August that R.D.
was hospitalized three times for respiratory problems. Her treating physician reported
that she has significant pulmonary disease, and described her as “an infant with high-
risk asthma, who will require a caregiver who is able to quickly recognize and respond
to changes in [her] respiratory status at any moment.” The physician reported that R.D.
is developmentally delayed, and requires a caregiver who will “be able to read her
social and emotional cues well, and remain patient and nurturing” in the face of
challenges.
Penny continued to use heroin and, in August 2014, was arrested for
residential burglary. Eric maintained contact with her after her release. In September,
the juvenile court terminated reunification services to Eric.
Eric filed a petition for modification in December. He alleged his
circumstances had changed. Eric alleged that custody or additional reunification
services would be in R.D.’s best interest because he participated in reunification
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services and “gained insight into the destructive nature of his relationship with the
mother and how it has prevented him from obtaining custody of [R.D.].” Eric offered a
letter from the director of his anger management class, who wrote that Eric is gaining
insight and should complete the course. Eric offered a letter from his individual
therapist, who wrote that Eric “has been highly motivated towards changes” and intends
to continue therapy. Neither letter stated that Eric had resolved his codependency issues
or that R.D. should be placed with Eric.
The juvenile court found that Eric’s petition did not make a prima facie
showing for modification. It denied his request for modification without a hearing.
After a contested hearing, the juvenile court found that R.D. was
adoptable and that no exceptions to adoption were established. It terminated the
parental rights of Penny and Eric.
DISCUSSION
A parent may petition the juvenile court to change its order based upon
“change of circumstance or new evidence.” (§ 388, subd. (a).) We review denial for
abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
In a petition for modification, the “parent need only make a prima facie
showing to trigger the right to proceed by way of a full hearing.” (In re Marilyn H.
(1993) 5 Cal.4th 295, 310.) But Eric did not allege any change of circumstance or new
evidence to trigger a hearing. Before the juvenile court terminated Eric’s reunification
services, it heard and considered evidence that he participated in services and
counseling. In his petition for modification, Eric offered new details about his
participation in classes, and reasserted that he had resolved his codependency problem,
but he did not allege new facts that would support modification. The burden is on the
parent to prove changed circumstances to revive the reunification issue. (Ibid.) Section
388 provides a means of addressing a legitimate change of circumstances, but its prima
facie requirement safeguards against delays in providing permanency for children.
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(Marilyn H., at p. 310.) The juvenile court did not abuse its discretion when it denied
the petition without a hearing.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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Bruce A. Young, Judge
Superior Court County of Ventura
______________________________
Cameryn Schmidt, under appointment by the Court of Appeal, for
Defendant and Appellant.
Leroy Smith, County Counsel, Cynthia Krause, Assistant County Counsel,
for Plaintiff and Respondent.
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