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In Re S. P. et al., Persons Coming Under the Juvenile Court v. C. N

August 18, 2011


(Super. Ct. No. J05149)

The opinion of the court was delivered by: Robie , Acting P. J.

In re S.P. CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Father, C. N. appeals the juvenile court orders denying his Welfare and Institutions Code*fn1 section 388 petition and terminating parental rights to his three children. He contends the juvenile court abused its discretion by denying his section 388 petition without a hearing and applying a local rule of court so as to deprive him of his right to seek modification. We need not reach the second contention, as we find no abuse of discretion in denying father's petition without a hearing. Accordingly, we affirm.


In March 2009, mother gave birth to her second drug-exposed baby.*fn2 Father and mother lived together at the time proceedings commenced. Mother admitted using methamphetamine during her pregnancy and father admitted he was aware mother had used drugs. The San Joaquin County Human Services Agency (agency) filed a section 300 petition alleging mother had admitted using methamphetamine during her pregnancy, the minor S. P. had tested positive for drugs at birth, and father was aware of mother's drug use and failed to take any action to protect S. P. Mother's three children were detained in April 2009, at which time they were two years old, one year old, and one month old.

Father's reunification plan required him to obtain stable housing, successfully complete parenting classes, and participate in general counseling. Father had a learning disability for which he receives Social Security's Supplement Security Income. Based on his learning disability, father's attorney requested services be tailored for father. In addition, because father could not utilize bus passes, the agency agreed to arrange father's transportation to parenting classes. The agency was also concerned about his ability to care for the children on his own if mother entered drug treatment.

At the time of the dispositional report, mother was not participating in services. Father had just begun parenting classes. The agency had also referred the parents for in-home counseling.

At the six-month review hearing, the agency reported father was dependent upon others for transportation. He was frequently late to visits or missed them altogether due to transportation problems. Mother and father had ended their relationship and father was now living with his mother. Father was discharged from parenting class due to poor attendance. He was allowed to reenroll, but failed the final exam. He was informed he should again reenroll, but had not done so at the time of the status hearing. Father had not engaged in any general counseling. Based on the parties' agreement, the court ordered psychological evaluations of father to assess his ability to benefit from services and continued the review hearing.

At the next hearing, father's counsel reported father had stopped visiting with the children entirely and the agency had done what it could to address his special needs. The psychological evaluators concluded father would not benefit from services, "as he had difficulty taking care of himself let alone three young children as well." Reunification services were terminated as to both parents and the matter was set for a section 366.26 hearing.

The children were placed together in the same foster home and the foster parents wanted to adopt them. Between August 25 and October 1, 2010, father did not visit the children. The section 366.26 hearing was set for January 7, 2011.

Eight days before the scheduled section 366.26 hearing, father filed a section 388 petition to modify the order terminating his reunification services. He sought either immediate placement of the children or additional reunification services. In the petition, father alleged he was in a new relationship with a woman who was "attempting to help [father] obtain stability so he can care for his children. She is ready, willing and able to assist [father] in the care of his three children." In particular, father's new girlfriend was helping him with "issues surrounding his learning disability which prevent [father] from fully participating in his case plan," (bolding omitted) assisting father with transportation, and renting him a room in her home on a month-to-month basis. Father also claimed he was "in the process of contacting the parenting [class] instructor so he can take the final exam" and was "in the process of obtaining a letter from the therapist" indicating he had completed six sessions of counseling and the therapist was available for further therapy. He also asserted a change in order was in the best interests of the children because he was their father, he and two of the children had learning disabilities so he could help them overcome obstacles related to the disability, they deserved to know their father, and they would ...

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