Opinion
D061607
09-13-2012
In re DANIEL R., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. STEPHANIE R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. J517978)
APPEAL from an order of the Superior Court of San Diego County, Carol Isackson, Judge. Affirmed.
Stephanie R., mother of dependent child Daniel R., appeals a juvenile court order summarily denying her petition for modification under Welfare and Institutions Code section 388, by which she challenged the court's prior order terminating her reunification services. Stephanie contends that the court erred by not holding an evidentiary hearing to consider her request for further services. We affirm the order.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
At the time of Daniel's birth in November 2010, Stephanie was 17 years old and a dependent of the juvenile court. Seven months earlier, Stephanie had been arrested and detained in juvenile hall for assaulting the maternal grandmother with a kitchen knife. Stephanie had been abusing drugs and alcohol. During a competency evaluation ordered by the delinquency court, Stephanie acknowledged that she had anger management issues. The evaluator found that Stephanie was moderately mentally retarded and had severe developmental delays. The evaluator concluded that Stephanie was not competent to stand trial.
Just after Daniel was born, the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court under section 300, subdivision (b), alleging that Daniel was at substantial risk of harm as a result of Stephanie's severe developmental delays and her history of alcohol and marijuana abuse. Stephanie admitted that she could not appropriately care for Daniel. The hospital social worker noted that Stephanie paid little attention to Daniel and appeared to have no interest in him. The court detained Daniel in out-of-home care, ordered supervised visits for Stephanie and ordered that she participate in voluntary services and a psychological evaluation.
Stephanie refused to sign a consent form for Daniel's medical treatment, requiring the social worker to seek a court order. Stephanie cursed at the social worker and said that she would not cooperate with her. When another social worker interviewed Stephanie prior to the jurisdiction and disposition hearing, Stephanie cursed, yelled, threatened to hit staff and threatened to leave Polinsky Children's Center, where she was living at the time as a dependent youth.
Stephanie acknowledged that she needed help to learn how to parent and care for Daniel. During visits, Stephanie appeared detached from Daniel. She was unable to appropriately hold and burp him and needed help changing his diaper. The court appointed a guardian ad litem for her.
At the jurisdiction and disposition hearing, the court sustained the allegations of the petition, declared Daniel a dependent and placed him in foster care. The court ordered reunification services for Stephanie, including individual therapy and a parenting education course intended to ensure that she could appropriately care for Daniel by meeting his basic needs.
The results of a psychological evaluation conducted by Ibolya Kantor, Ph.D., showed that Stephanie could not read, write or spell. Dr. Kantor determined that Stephanie lacked introspection and was often confused. Dr. Kantor concluded that for these reasons, she was unable to learn from her past behaviors. Stephanie's confusion and low frustration tolerance caused her to lose control and to act impulsively. She lacked the ability to resolve conflict. Stephanie admitted that she could not care for Daniel without assistance. Dr. Kantor recommended that Stephanie participate in therapy for at least 12 to 18 months to address her childhood trauma and her emotional needs, that she regularly follow up with a psychiatrist to ensure she is receiving appropriate medications and that she participate in parenting classes and intense academic remediation.
Stephanie participated in services for five months. However, her therapist believed that Stephanie was incapable of appropriately parenting Daniel because of her high risk behaviors, her inability to stabilize and her struggle to cope effectively with her emotions. Additionally, Stephanie had poor social skills and poor functional life skills. In view of these issues, the therapist could not recommend reunification for Daniel and Stephanie.
When Stephanie turned 18 years old, she moved to a San Diego Regional Center (SDRC) group home. She said that she was not comfortable caring for Daniel on a full-time basis. She preferred to go to the mall and "hang out" with her friends.
Stephanie's therapists reported that Stephanie lacked insight, was unable to care for herself or live on her own and was unable to make important life decisions. For these reasons, the therapist believed that Stephanie was not able to care for and raise Daniel, who was now eight months old. In addition, there was little or no emotional attachment or relationship between Stephanie and Daniel. Further, Stephanie did not understand what was required to provide good care for a child. Due to her impulsiveness and aggression, the therapist concluded that Stephanie could not safely parent Daniel.
At the six-month review hearing in September 2011, the court found that returning Daniel to Stephanie's custody would create a substantial risk of detriment to his physical and emotional well-being. Finding that there was no substantial probability that Daniel would be returned to Stephanie's custody in the next six months, the court terminated services and set a hearing under section 366.26 to select and implement a permanent plan for Daniel.
After the court terminated services, Stephanie began canceling some visits with Daniel, and ultimately refused all visits, stating, "I don't want anything to do with him." Agency assessed Daniel as generally and specifically adoptable and recommended terminating parental rights and ordering adoption as his permanent plan.
In February 2012, Stephanie filed a section 388 petition for modification, seeking to change the court's order terminating her reunification services. The petition alleged that Stephanie's circumstances had changed since September 2011 because she had consistently attended psychiatric and therapy appointments, she was taking all of her prescribed medications, she was doing well in her group home and she had reenrolled in school. As to best interests, the petition alleged that reinstating services for Stephanie would provide Daniel the opportunity to reunify with his biological mother. In support of her petition, Stephanie attached letters from her psychiatrist and a counselor at SDRC.
The court summarily denied the section 388 petition, finding that Stephanie had not made a prima facie showing of changed circumstances or best interests. The court then terminated Stephanie's parental rights and selected adoption as Daniel's permanent plan.
DISCUSSION
A
A party may petition the court under section 388 to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "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., at p. 310.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (In re Jasmon O., at p. 415.) "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." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.)
B
Stephanie's modification petition alleged that her circumstances had changed because, despite the lack of assistance from Agency, she continued to attend psychiatric and therapy appointments, she was taking all of her prescribed medications, she was doing well in her group home and she had reenrolled in school. However, Stephanie's petition and supporting documentation did not show that these constituted changed circumstances. Both before and after the court terminated services, Stephanie attended school and was in special education classes, attended her psychiatric and therapy appointments and had been taking her medications. Although Stephanie was making "additional progress" in these services, her petition did not make a prima facie showing that she had made any progress with respect to her ability to safely parent Daniel. The court was entitled to consider not only Stephanie's continued compliance with services, and the progress she was making with those services, but also her inability to care for herself or Daniel, and her proclaimed disinterest in him. In this regard, the petition's liberally construed allegations of changed circumstances did not show that Daniel's best interests would be served by granting an evidentiary hearing. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431-432; In re Zachary G., supra, 77 Cal.App.4th at p. 806.)
Even if Stephanie had made a prima facie showing of changed circumstances, her petition did not show that reinstating services was in Daniel's best interests. Throughout the case, and particularly in the several months preceding the hearing, Stephanie had not attempted to maintain a relationship with Daniel and she made no effort to form a bond with him during any visits that she had with Daniel. Even after having participated in services, Stephanie never learned how to be a parent. There was no evidence that Daniel's best interests would be served by offering Stephanie more services.
Although Stephanie claims that Daniel would benefit from the opportunity to have his biological mother raise him, "[t]he presumption favoring natural parents by itself does not satisfy the best interests prong of section 388." (In re Justice P., supra, 123 Cal.App.4th at p. 192.) Given Stephanie's diagnoses, and her inability and unwillingness to parent Daniel now or in the future, offering her additional services would not give Daniel the permanence and security that he deserves. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [summary denial of section 388 petition was proper where there was no showing of how the children's best interests would be served by depriving them of a permanent stable home in exchange for an uncertain future].) Because the liberally construed allegations would not have sustained a favorable decision on the section 388 petition, Stephanie was not entitled to an evidentiary hearing. (In re Zachary G., supra, 77 Cal.App.4th at p. 806; In re Mary G. (2007) 151 Cal.App.4th 184, 205-206.)
C
Stephanie makes a general argument that the protections of the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.) have been denied to parents in dependency cases, limiting the ability of disabled parents to retain their parental rights. Because Stephanie raises this issue for the first time on appeal, it is not properly before us. (In re M.S. (2009) 174 Cal.App.4th 1241, 1252; In re Dakota S. (2000) 85 Cal.App.4th 494, 501.)
In any event, "the ADA does not directly apply to juvenile dependency proceedings and cannot be used as a defense in them." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1139, overruled on another ground as stated in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The ADA does not change the requirement that courts and social services agencies consider a parent's disabilities, "nor does it provide a separate basis for challenging the actions of the court or Agency. Rather, any challenge a parent has under the ADA for alleged violations must be raised in a separate cause of action in federal court." (In re Diamond H., at p. 1139.) The court did consider Stephanie's disabilities throughout the case. Stephanie's claimed violation of the ADA is not a proper basis for an attack on the court's order summarily denying her section 388 modification petition. (See also In re Anthony P. (2000) 84 Cal.App.4th 1112, 1115-1116 [ADA does not preempt state law providing for termination of parental rights of persons who are gravely disabled.].)
DISPOSITION
The order is affirmed.
AARON, J. WE CONCUR: O'ROURKE, Acting P. J. IRION, J.