San Diego Cnty. Health & Human Servs. Agency v. J.D. (In re D.H.), D078915

CourtCalifornia Court of Appeals
Writing for the CourtAARON, J.
PartiesIn re D.H., a Person Coming Under the Juvenile Court Law. v. J.D., Defendant and Appellant. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Decision Date10 November 2021
Docket NumberD078915

In re D.H., a Person Coming Under the Juvenile Court Law.


J.D., Defendant and Appellant.


California Court of Appeals, Fourth District, First Division

November 10, 2021


APPEAL from orders of the Superior Court of San Diego County, No. J519523 Rohanee Zapanta and Yvonne Esperanza Campos, Judges.

Christine E. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and Respondent.



J.D. (Mother) appeals orders issued in the Welfare and Institutions Code section 300[1] dependency proceedings for her 17-year-old child, D.H. In September 2017, the juvenile court declared D.H. to be a dependent of the juvenile court. In February 2019, Mother's reunification services were terminated and the court ordered that D.H. continue in foster care at the San Pasqual Academy (SPA). Although D.H. had been assigned the female gender at birth, he had been experiencing gender dysphoria for years and identifying as male, and sought gender affirming therapy in the form of testosterone treatment.[2] In his application for court authorization for such treatment, D.H. stated that both Mother and her counsel had been contacted and disagreed with his request for such therapy. On February 25, 2021, the court approved D.H.'s application and issued an ex parte order authorizing gender affirming hormone therapy for him. At the March 25 initial postpermanency planning review hearing, the court, on the Agency's inquiry, confirmed that it was not changing the February 25 order at that hearing. The court granted the request by Mother's counsel to set the issue of D.H.'s hormone therapy for trial, which it set for May 25, to be heard concurrently with the contested postpermanency planning review hearing. On May 25, Mother filed a section 388 petition seeking, inter alia, modification of the February 25 order authorizing hormone therapy for D.H. At the May 25 hearing, the court summarily denied Mother's section 388 petition and proceeded with the contested postpermanency planning hearing.


On appeal, Mother contends that the court: (1) violated Mother's constitutional right to due process by issuing the February 25 order ex parte without first providing her with notice and an opportunity to be heard on D.H.'s request for authorization of hormone therapy; (2) violated her constitutional right to due process by requiring her to file a section 388 petition to challenge the court's prior order authorizing D.H.'s hormone therapy; (3) abused its discretion by summarily denying her section 388 petition; (4) lacked jurisdiction to issue its order authorizing D.H.'s hormone therapy; (5) failed to consider D.H.'s best interests in authorizing hormone therapy; and (6) erred in stating at the March 25 hearing that it had no authority to change the February 25 order. For the reasons discussed below, we affirm the orders.


D.H. was born in January 2004 and was assigned the female gender at birth. In May 2017, D.H. was a passenger in a car driven erratically by Mother as she attempted to flee from police. Mother ran three stop signs and a traffic light before pulling over. After pulling over, Mother struggled with the police officer and resisted arrest. D.H., then 13 years old, told officers that he had been living in the car with Mother since he was five years old. The car was unsanitary and had a strong foul odor. Mother was arrested and D.H. was taken into protective custody.

In May 2017, the San Diego County Health and Human Services Agency (Agency) filed a section 300, subdivision (b) dependency petition alleging that D.H. had suffered, or was at substantial risk of suffering, serious physical harm or illness as a result of Mother's failure to adequately protect D.H. and her failure to provide D.H. with adequate food, clothing, shelter, or medical treatment. In the Agency's detention report, the social


worker stated that Mother described herself as a "traveler" and reported that D.H. bathed and urinated in their vehicle. Mother initially spoke to the social worker in an American accent but later spoke in a British accent. The court detained D.H. in out-of-home care.

In late June, D.H. was detained at SPA. At the September contested jurisdiction and disposition hearing, the court found the petition's allegations true, declared D.H. to be a dependent of the court, and removed him from Mother's custody. The court also found that T.H. (Father) was D.H.'s biological father and entered a judgment of his parentage without objection from Mother. The court ordered reunification services for Mother, but not Father, who was incarcerated at that time. Both parents were allowed supervised visitation with D.H. In October, Mother submitted a letter to the court stating that she was in the process of establishing a ministry program and that she and her ministry did not support medical-based therapy and instead preferred natural herbal medicine and biblical remedies. In November, a court-appointed special advocate (CASA) was appointed for D.H. and the court gave the CASA authority to make all decisions pertaining to D.H.'s education.

During the reunification period, Mother participated in biweekly therapy. Mother's therapist diagnosed her as suffering from a major depressive disorder, other psychotic disorder, stimulant use disorder, and an unspecified personality disorder. During a visit with Mother, D.H. told her that he did not want to return to her care. D.H. often ended his visits with Mother early because she made him angry, did not listen to him, and made false statements. D.H.'s CASA reported that D.H. did not want to return to Mother's care, fearing that doing so would jeopardize his health, happiness, and safety. D.H. enjoyed his placement at SPA. In its 12-month review


hearing report, the Agency stated that D.H. had begun to question his gender identity and had asked to be referred to as male. When D.H. informed Mother of his preference to identify as male, Mother told him that he was not allowed to become male. The court continued the 12-month review hearing and set the matter to be heard as a combined 12-month and 18-month review hearing.

In its 18-month review hearing report, the Agency recommended that Mother's reunification services be terminated, noting that she continued to exhibit mental health symptoms and erratic behavior. The Agency believed that Mother did not have the ability or resources to meet D.H.'s needs. Mother's therapist reported that Mother continued to deny the protective issues and had poor awareness regarding her mental health and the world, generally. The Agency also reported that D.H. openly identified as male and was in the process of transitioning from female to male. He participated in biweekly therapy with a TERM therapist to explore his gender identity. His therapist reported that D.H. had expressed a desire to possibly undergo medical treatment for gender reassignment in the future. In November 2018, Mother was discharged from therapy due to excessive absences. She was subsequently given a referral for a new therapist, but failed to follow through with that referral and refused treatment. During a December 2018 meeting with an Agency social worker, Mother stated that she disagreed with D.H.'s identification and outward expression as a male because it violated her religious beliefs; she opined that it was merely a phase that D.H. was going through. The Agency recommended that the court forgo setting a section 366.26 hearing because D.H. wished to remain at SPA, he was not a proper subject for adoption, and there were no individuals willing to assume guardianship of him.


In February 2019, the court held the combined contested 12-month and 18-month review hearing. The court terminated Mother's reunification services, found that the setting of a section 366.26 hearing was not in D.H.'s best interests, and ordered a permanent plan of continued foster care for him.

During the first postpermanency planning review period, D.H. turned over to SPA staff an unopened pack of cough and cold pills and admitted having stolen it during an outing. He denied regular substance abuse and agreed to attend a substance abuse educational program. D.H. reported that he was openly transgender and was transitioning from female to male. In April, in lieu of individual TERM therapy, he began participating in weekly individual and group therapy at SPA that addressed gender identity, trauma, substance abuse, and other topics. During an April child and family team (CFT) meeting, Mother voiced her disagreement when D.H. discussed his gender identity. D.H. subsequently refused to attend one visit with her and terminated another visit early, explaining that Mother "trigger[ed]" him and caused him anxiety. At the July review hearing, the court confirmed its prior selection of long-term foster care as D.H.'s permanent plan.

In her report during the second review period, the CASA stated that D.H. was interested in hormone therapy and obtaining an elastic breast band and had expressed discomfort living in an all-girls dormitory. Also, D.H. did not want to see Mother again. During a January 2020 CFT meeting, Mother asserted that D.H. was a female and Mother had to be redirected several times to address D.H. with male pronouns. In the courthouse lobby before the January review hearing, Mother stated her belief, in D.H.'s presence, that his exploration of his gender identity was a byproduct of adolescence and that he was being adversely influenced by persons around him. D.H. left the lobby in order to terminate the interaction. At the review hearing, the court



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