In re B.A. CA4/1

California Court of Appeal · D065663 · 2014-08-27 · Unpublished

Proceeding: appeal from orders
Trial court: Superior Court of San Diego County · No. 516361B
Trial judge: Laura J. Birkmeyer
Outcome: affirmed — Affirmed.
Area: dependency
Panel: Gilbert Nares (author), Richard D. Huffman, Sr., Patricia D. Benke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:34Z · confidence high

The trial court summarily denied the mother's petition to modify the order terminating reunification services, finding it failed to state a prima facie case of changed circumstances or that modification was in the child's best interests, and subsequently terminated parental rights. The Court of Appeal affirmed, holding the trial court did not abuse its discretion in denying the hearing because the petition did not demonstrate a sufficient change in circumstances or that delaying permanency served the child's best interests.

Ruling reviewed	Standard	The court	The model
Summary denial of the mother's Welfare and Institutions Code section 388 petition for modification of the order terminating reunification services. “The court reasonably determined the petition did not state a prima facie case to show D.A. had successfully addressed her problems to the degree necessary to be able to provide a safe and stable home for her daughter within the statutory time limits.”	abuse of discretion	correct	agree with court The appellate court correctly applied the abuse of discretion standard and the Zachary G. prima facie test. The opinion details the mother's extensive history of substance abuse, ongoing incarceration, and the child's strong bond with the caregiver, supporting the conclusion that the petition did not allege facts sufficient to sustain a favorable decision. The court properly balanced the mother's efforts against the statutory time limits and the child's need for permanency.

Authorities

relied: In re Jasmon O. (1994) 8 Cal.4th 398 — The petitioner requesting modification under section 388 has the burden to show a change of circumstances or new evidence, and that the proposed modification is in the child's best interests.
relied: In re Marilyn H. (1993) 5 Cal.4th 295 — A parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing, and the petition must be liberally construed in favor of its sufficiency.
relied: In re Zachary G. (1999) 77 Cal.App.4th 799 — 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; denial of a hearing is reviewed for abuse of discretion.
relied: In re P. (2004) 123 Cal.App.4th 181 — When determining whether a section 388 petition makes the necessary showing, the court may consider the entire factual and procedural history of the case.
relied: In re Hashem H. (1996) 45 Cal.App.4th 1791 — Supports the standard that a parent need only make a prima facie showing to trigger the right to a full hearing on a section 388 petition.

The appellate opinion: sound — The opinion is sound because it correctly applies the established legal standards for section 388 petitions, specifically the *Zachary G.* prima facie test and the abuse of discretion standard. It thoroughly analyzes the factual record, including the mother's incarceration and the child's bond with the caregiver, to support the conclusion that the petition was insufficient.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

The juvenile court summarily denied mother D.A.'s Welfare and Institutions Code section 388 petition seeking renewed reunification services, finding no prima facie showing of changed circumstances or that modification served B.A.'s best interests, and then terminated parental rights under section 366.26. On appeal by both parents, the Court of Appeal held the summary denial was not an abuse of discretion and affirmed both orders.

Ruling reviewed	Standard	The court	The model
Summary denial, without an evidentiary hearing, of mother's section 388 petition to reinstate reunification services for failure to state a prima facie case of changed circumstances and best interests “The court reasonably determined the petition did not state a prima facie case to show D.A. had successfully addressed her problems to the degree necessary to be able to provide a safe and stable home for her daughter within the statutory time limits.”	abuse of discretion	correct	agree with court The court correctly stated the two-part section 388 burden (Jasmon O.), the liberal-construction prima facie standard (Marilyn H.; Zachary G.), and that the entire case history may be considered. The alleged facts—an 18-hour in-custody program, four 12-step meetings, and jail visits—against a 26-year addiction, a positive test and discharge from KIVA after the dispositional order, incarceration until December 2014, and a child who never lived with mother and was bonded to a caregiver since birth, show at most changing rather than changed circumstances, and the petition alleged nothing showing delay of permanency served the child. Summary denial was within the court's discretion.
Termination of parental rights under section 366.26 and designation of caregiver as prospective adoptive parent “The orders denying a hearing on the merits of the petition and terminating parental rights are affirmed.”	unclear	correct	agree with court Neither parent raised an independent challenge to the termination order; the appeal rested entirely on the section 388 ruling. Once that ruling was upheld, affirmance of the termination order followed, and the record described (adoptable child bonded to a willing adoptive caregiver, mother incarcerated with limited visitation) discloses no basis for an exception to adoption.

Authorities

relied: In re Jasmon O. (1994) 8 Cal.4th 398 — A section 388 petitioner bears the burden of showing both changed circumstances or new evidence and that the proposed modification is in the child's best interests.
relied: In re Marilyn H. (1993) 5 Cal.4th 295 — A parent need only make a prima facie showing to obtain a full hearing on a section 388 petition, and the petition must be liberally construed in favor of sufficiency.
relied: In re Hashem H. (1996) 45 Cal.App.4th 1791 — A prima facie showing of changed circumstances and best interests entitles the petitioner to an evidentiary hearing on a section 388 petition.
relied: In re Zachary G. (1999) 77 Cal.App.4th 799 — The prima facie requirement is not met unless the facts alleged, if credited, would sustain a favorable decision; denial of a hearing is reviewed for abuse of discretion.
relied: In re Justice P. (2004) 123 Cal.App.4th 181 — In assessing whether a section 388 petition makes a prima facie showing, the court may consider the entire factual and procedural history of the case.
missed: In re Stephanie M. (1994) 7 Cal.4th 295 — After reunification services are terminated, the focus shifts to the child's need for permanency and stability, and a rebuttable presumption arises that continued out-of-home placement is in the child's best interests; this is the controlling Supreme Court authority for the best-interests analysis the court applied without citation.
missed: In re Casey D. (1999) 70 Cal.App.4th 38 — A showing of merely changing, as opposed to changed, circumstances does not warrant delaying permanency to see if a parent might eventually reunify; the court's 'slightly changed' finding rests on this principle but the opinion does not cite it.

The appellate opinion: sound with gaps — The opinion states the correct section 388 prima facie standard and abuse-of-discretion review, and applies them to a record in which the mother's efforts were recent, modest, and made while incarcerated with a release date months away, so the result is well supported. It omits the standard authorities for the changing-versus-changed distinction and for the post-reunification presumption favoring permanency (Stephanie M.), and offers no separate analysis of the termination order, though no independent challenge to it was raised.

How this analysis was made · dispute it

Opinion

Filed 8/27/14 In re B.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 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 B.A., a Person Coming Under the Juvenile Court Law. D065663 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. 516361B) Plaintiff and Respondent, v. G.G. et al., Defendants and Appellants.

APPEALS from orders of the Superior Court of San Diego County, Laura J.

Birkmeyer, Judge. Affirmed.

Christy C. Peterson, under appointment by the Court of Appeal, for Defendant and Appellant G.G.

Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant D.A. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Caitlin E. Rae, Deputy County Counsel, for Plaintiff and Respondent.

D.A. and G.G. appeal orders summarily denying D.A.'s petition for modification under Welfare and Institutions Code section 3881 and terminating parental rights to their daughter, B.A., under section 366.26. They contend the court abused its discretion when it found that D.A.'s section 388 petition (petition) for reunification services did not state a prima facie case and denied a hearing on the petition. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

G.G.2 and D.A. are the parents of B.A., who was born in January 2013. B.A.

tested positive for cocaine at birth and was detained with a foster parent (caregiver) when she was a day old.

B.A.'s mother, D.A., also tested positive for cocaine. D.A. had started using drugs in 1988 when she was 14 years old. She was a polysubstance abuser and dealer and was often incarcerated for drug and drug-related crimes. D.A. lost custody of three older children in 1999, 2002 and 2006, and they were adopted in 2009. In 2010, D.A. was assessed with cocaine, amphetamine and methamphetamine substance-induced mood and 1 All further statutory references are to the Welfare and Institutions Code.

2 On appeal, G.G. raises only the issue whether the court erred in denying the mother's request for a hearing on the merits of her petition. Therefore, we limit our discussion of the factual and procedural background of this case to the relevant issue on appeal, and omit much of the background information as it pertains to G.G., who had a significant history of substance abuse, mental health issues and incarceration. 2 psychotic disorder, with extremely impaired thought process and content. She completed a substance abuse treatment program in 2010.

On February 27, 2013, the court sustained the jurisdictional allegations, removed B.A. from the custody of her parents and ordered a plan of family reunification services.

That same day, D.A. was arrested on probation violations on felony narcotics convictions. D.A. was incarcerated until April 16, when she was released to KIVA, an inpatient substance abuse treatment program. On May 4, D.A. was discharged from KIVA after she tested positive for cocaine. On May 15, D.A. was arrested on probation violations and incarcerated. Her expected release date is December 2014.

D.A. had one visit with B.A. while she was at KIVA. The caregiver, who supervised the visits, said D.A. was very cute with B.A. as she showed the baby off to people at the facility. After she was incarcerated, D.A. had regular twice-monthly visits with B.A. at the jail. D.A. demonstrated she was learning how to recognize and address B.A.'s needs.

At the six-month review hearing, the court terminated reunification services and set a section 366.26 hearing for January 2014, which was subsequently continued to March 12, 2014.

In its section 366.26 report, the Agency reported that B.A. was a happy, social 11 month old, who was bonded with her caregiver. The caregiver was willing and able to adopt B.A. if parental rights were terminated.

D.A. had two visits a month with B.A. while incarcerated. The social worker observed two of those visits. B.A. screamed when the social worker took her from her 3 caregiver. In the visitation room, D.A. was able to soothe B.A. When B.A. saw her caregiver through the visitation window, B.A. would stop crying and try to reach out for her. D.A. was very loving and patient with B.A. Her care was appropriate. D.A. would hold B.A. close and kiss and hug her. D.A. introduced age-appropriate toys to her daughter during visits.

On February 24, D.A. filed a petition asking the court to modify its prior order terminating reunification services and allow her further opportunity to reunify with her daughter. In support of her petition, D.A. alleged she had made substantial progress addressing her substance abuse problems by completing an 18-hour treatment program while incarcerated. She also stated that she had attended four 12-step meetings and was committed to her sobriety. In addition, D.A. completed every service and program that was available to her, including programs on parenting, job search, anger management and antitheft. D.A. had regular visits with B.A., and demonstrated she could soothe and appropriately care for her. B.A. appeared to enjoy her time with her mother, who was very affectionate with her.

At a hearing on March 4, the court found that the petition did not state a prima facie of changed circumstances. At best, the petition showed that D.A.'s circumstances were slightly changed. Further, D.A. did not make a prima facie showing that delaying permanency would be in B.A.'s best interests in view of D.A.'s continued incarceration and limited visitation, and the bond between B.A. and her caregiver, who had cared for her since birth.

4 On March 12, the court terminated parental rights and designated B.A.'s caregiver as her prospective adoptive parent.

DISCUSSION

The Juvenile Court Did Not Abuse Its Discretion When It Summarily Denied D.A.'s Section 388 Petition D.A. and G.G. contend the court erred when it did not hold an evidentiary hearing on her petition. They argue the petition stated a prima facie case that D.A.'s circumstances were changed and a modification of the prior order was in B.A.'s best interests.

Under section 388, a parent, interested person or the dependent child may petition the court to change, modify or set aside a previous order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petitioner requesting the modification has the burden to show a change of circumstances or new evidence, and that the proposed modification is in the child's best interests. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; Cal. Rules of Court, rule 5.570(e).)

"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; In re Hashem H.

(1996) 45 Cal.App.4th 1791, 1798-1799; Cal. Rules of Court, rule 5.570(a).) "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 (Zachary G.).) The court must liberally construe the 5 petition in favor of its sufficiency. (In re Marilyn H., at p. 309.) However, when 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.)

We review a denial of a hearing on a modification petition for abuse of discretion.

(Zachary G., supra, 77 Cal.App.4th at p. 808.)

The court reasonably determined the petition did not state a prima facie case to show D.A. had successfully addressed her problems to the degree necessary to be able to provide a safe and stable home for her daughter within the statutory time limits. D.A. is to be incarcerated until December 2014. When released, she would still need to demonstrate her sobriety and stability. B.A. would be two years old in January 2015.

She had never lived with D.A., and had developed a strong bond with her caregiver.

D.A. had a 26-year substance abuse problem. She only recently began a 12-step program. D.A. had an extensive history of crime for possession of narcotics, resulting in repeated incarceration. When released, she was unable to complete court-ordered substance abuse treatment and violated her probation.

The record supports the conclusion that the facts alleged, if supported by credible evidence, would not sustain a favorable decision on the petition. (Zachary G., supra, 77 Cal.App.4th at p. 806.) While D.A. appeared to be making an effort to improve her circumstances, the allegations of her petition did not show that her circumstances were changed. In addition, the petition did not state a prima facie case to show that delaying permanency to allow further opportunity for family reunification was in B.A.'s best 6 interests. In view of D.A.'s history and current circumstances, family reunification was unlikely. B.A. was thriving in the home of her caregiver, who was willing and able to provide a safe, stable, permanent home to her. The court did not err when it denied a hearing on the merits of D.A.'s petition.

DISPOSITION

The orders denying a hearing on the merits of the petition and terminating parental rights are affirmed.

NARES, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

Cites, in this corpus

In Re Justice P. D044163 · 2004-10-20
San Diego County Health & Human Services Agency v. Gala G. No. D033567 · 1999-12-20
In Re Hashem H. Docket Nos. B090874, B094978, B096146 · 1996-06-03
In Re Jasmon O. S030556 · 1994-09-02
In Re Marilyn H S025592 · 1993-06-03