Filed 9/25/18 In re B.H. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed with directions.

Richard Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.

Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.

Mother lost custody of three children in September 2015 due to neglect and leaving the children without provision for their care. The children were placed with a maternal aunt, while Mother struggled with drug abuse through the first part of the dependency. Mother did not appear until the twelve-month review hearing, by which point she began to address the problems that led to the dependency. At the 18-month review hearing, after she had completed all the requirements of her reunification plan but lacked housing, her services were terminated and a hearing pursuant to Welfare and Institutions Code, section 366.26[1] was ordered, with a goal of establishing a guardianship. Mother’s counsel waived the need for the court to advise her of the need to file a writ to seek review of that order. A subsequent petition under section 388 was denied and the court ultimately ordered a guardianship for the children as the permanent plan. Mother appealed.

On appeal, Mother challenges the finding of reasonable services made in connection with the order setting the section 366.26 hearing, arguing that lack of advisement of writ review permits delayed review, and challenges the order denying her petition under section 388. We affirm with directions.

Background

In September 2015, Mother’s three children, two daughters (G.H., age 7 and Bre. H., age 3), and a son (Bra. H., age 5), were detained after Mother had an argument with the maternal grandmother and took off, leaving the children in the grandmother’s trailer. Because the trailer lacked utilities or adequate space, the San Bernardino County Children and Family Services (CFS) took the children into temporary custody.[2] The children were detained with their maternal aunt.

A dependency petition was filed alleging that the children came within the provisions of section 300, subdivision (b), due to lack of supervision, neglect, and inability to provide regular care due to substance abuse, and subdivision (g), because the whereabouts of the parents were unknown.

The report prepared for the jurisdiction hearing chronicled Mother’s lengthy substance abuse history and the parents’ “severe domestic violence history.” The report noted four prior referrals to CFS, only two of which were substantiated, initiated by complaints of domestic violence, but resulting in substantiation for general neglect. On one occasion in 2012, Father had kicked Mother in the stomach in the presence of the oldest child. The report also indicated that after Mother left Father, she and the children lived in an apartment for which the maternal aunt paid the rents, but after a year, Mother left, taking all the aunt’s prescription medication. Thereafter, Mother and the children lived in a car for several months, maintaining a transient lifestyle.

At the jurisdiction hearing, the juvenile court made true findings on all the allegations. The children were declared dependents, custody was removed from both parents, and the children were placed in the relative home of the maternal aunt. Neither parent was present at the hearing.[3] Father was deemed to be an “alleged father,” and services were denied to him.[4] Services were ordered for the Mother, and the clerk’s minutes reflect that despite Mother’s absence and the lack of appointed counsel on her behalf, the court gave advisements to Mother regarding the consequences of failing to regularly participate in the service plan or failing to visit her children.

The Six-Month Status Review report indicated that Mother struggled with sobriety, and had used heroin and methamphetamines, which had led to multiple incarcerations, specifically, two arrests on outstanding warrants, one for identity theft in Orange County, and one for child neglect stemming from the instant dependency case. Mother had gone to a detoxification facility but left after eight days and had only visited her children four times since their removal from her custody. In December 2015, Mother had attempted to commit suicide and was hospitalized. Mother had not complied with any of the requirements of the court-ordered treatment plan. In the meantime, the children did well in the care of the maternal aunt, who was addressing various health care and educational issues.

The six-month review hearing took place in April 2016, with neither parent present. The children were continued in dependency, placed with their maternal aunt, and services for Mother were continued. The minute order reflects Mother had consistently contacted or visited the children and demonstrated the capacity and ability to complete the plan.

By September 2016, when the twelve-month review report was filed, Mother had made moderate progress in that she completed a 90-day inpatient substance abuse program, lived in a sober living complex, and participated in a domestic violence program, although she had not yet engaged in parenting classes or counseling. Mother was also employed and attending classes at a community college. She shared an apartment with two roommates, and had been diagnosed with bi-polar disorder.[5] While Mother’s progress made unsupervised visitation appropriate for recommendation, the social worker was concerned because the two older children expressed fear of being alone with Mother, based on memories of what they endured while in her custody. Additionally, the children’s bond with the aunt was strengthening. Nevertheless, the social worker recommended unsupervised day visits for Mother.

Mother appeared at the Twelve-Month Review hearing and counsel was appointed on September 16, 2016. The juvenile court found the extent of Mother’s progress was moderate, but that return would be detrimental, so it continued the dependency, with reunification services extended for another six months.

By the time of the 18-month review report, filed in February 2017, Mother had completed all the requirements of her plan, and provided proof of completion, but lacked housing. For this reason, CFS recommended terminating services, and recommended that the court find detriment based on the lack of housing. The children and Mother were in family counseling to deal with trust issues and the children would only consider living with Mother if she moved near the aunt’s residence. Overnight visits had been in effect since November 2016, and went well, but Mother did not visit as often as she could. She was working as support staff at a substance abuse treatment facility.

The children, however, still experienced anxiety when the subject of return to the Mother’s care was broached. The maternal aunt and her husband were unwilling to adopt, but were willing and able to act as legal guardians. Additionally, the children’s Father had contacted the social worker, but the social worker did not reach him when she called back.

The 18-month review hearing took place in March 2017, with Mother present. The juvenile court followed the recommendations of CFS, found detriment, terminated services, and ordered a section 366.26 hearing. However, it continued unsupervised overnight visits with Mother, and gave the social worker authority to liberalize visits, so long as Mother had appropriate housing, and ordered the continuation of family counseling between Mother and the children. The minute order does not mention the court advising Mother of the requisite writ procedure to seek review of the orders. The reporter’s transcript reveals that the court stated, “So I’m not going to read Mom her writ rights. Is that okay, Ms. Gilleece?” To which counsel replied, “That’s fine, your Honor. She understands her process.” The court did not inquire of Mother. There is a proof of service of the writ forms to the Father, but not the Mother.

On May 3, 2017, a non-appearance review hearing was conducted by packet, recommending that unsupervised visits be discontinued because the children had reported having an overnight visit with Mother at her sober living home, instead of in a motel as Mother had been instructed. Mother denied this when confronted. According to the children, Mother told them if they reported this to the social worker or their aunt, they would not see her again. Bra., Mother’s son, indicated Mother did not have money for a motel. Bra. had stolen $20 and asked his schoolmates for money so he could help his Mother. The children also reported that Mother had allowed an unapproved third person, Mother’s boyfriend, at visits. He had come to the motel during one visit to bring food. On another occasion, what was supposed to be a church sponsored bonfire on the beach turned out to be a bonfire gathering of people from Mother’s rehabilitation facility. Mother’s boyfriend attended that event and Gr. H. sustained a bruise when she kicked him in the leg to make him stop spitting sunflower seeds at her. Mother failed to mention the incidents or the bruise to the social worker.

Because of these two incidents, the children’s counselor, as well as the family counselor, recommended supervised visits. The social worker acknowledged the relationship and bond between the Mother and children but was concerned about Mother’s unwillingness to comply with court orders.

The social worker submitted a section 366.26 report in June 2017, recommending a PPLA (Planned Permanent Living Arrangement) as the permanent plan. The children’s therapist informed the social worker that the children were making progress but were at great risk of emotional instability if placed with Mother, and recommended that the children continue in individual and family counseling. The report also noted that the social worker had supervised Mother’s visits with the children since the nonappearance review, and found that Mother had been appropriate and consistent in visitation.

The caregivers believed that PPLA was the most appropriate plan due to the children’s behavioral issues coupled with continuing conflict with the Mother. The caregivers wished for the dependency case to remain open so the social worker could continue to monitor the children’s well-being and visitation. The social worker concluded that the children were stable in their placement and bonded to the caretakers.

The section 366.26 hearing, originally scheduled to take place on June 30, 2017, was continued because Mother’s counsel intended to file a section 388 petition to modify the previous visitation order to return to unsupervised visits. Months later, on October 20, 2017, CFS filed a section 388 petition (JV-180, Request to Change Court Order), requesting that the court set a section 366.26 hearing to establish a legal guardianship, modifying the previous permanent plan goal of PPLA. The petition alleged as changed circumstances the fact that the caregivers now requested guardianship, which CFS asserted was better for the children because it would provide more stability and permanency for the children.

Finally, on October 24, 2017, Mother’s counsel filed her section 388 petition, seeking to modify the prior order and reinstate unsupervised visits with overnights and weekends. Mother alleged her circumstances were changed because she had completed family therapy, continued to maintain employment, and realized the need to put her children’s needs before her own and to focus her attention entirely on them during visits. She asserted that the requested modification was in the children’s best interests because they continued to express their love and bond with Mother, and Mother wanted to be able to spend more time with the children while giving the caretaker aunt a break. The court set a hearing for November 28, 2017 to determine whether the court should grant or deny an evidentiary hearing.

CFS responded and recommended that the court deny Mother’s petition. This response was based mostly on Mother’s noncompliance with visitation guidelines that had resulted in the cessation of unsupervised visits. The social worker supplied letters from the children’s counselor recommending continuance of the current placement, although he stated he was unable to offer an opinion regarding either the Mother’s recovery or the suitability of unsupervised visits.

The social worker’s conclusion was that while Mother had engaged in and completed counseling, she had not demonstrated insight into how her actions affect the children, noting that Mother violated the visitation guidelines after completing her individual counseling requirement. The social worker was also concerned about Mother’s lack of honesty regarding her interactions with the children. And regarding Mother’s offer to give her sister a break, the social worker noted that the aunt and her husband were neither in need or desirous of a break in caring for the children.

On November 28, 2017, the court granted CFS’s 388 petition and denied Mother’s petition. On December 4, 2017, Mother appealed from the denial of her section 388 petition.[6] We have taken judicial notice that on March 28, 2018, the juvenile court conducted the section 366.26 hearing, appointing the maternal aunt and uncle as legal guardians and dismissing the dependency.

Discussion

1. Review of the Order Terminating Services and Setting the Section 366.26 Hearing.

Mother challenges the trial court’s finding that reasonable services had been provided by failing to aid her in obtaining housing at the time it made the order terminating her services. Recognizing that Mother failed to file a timely notice of intent to file a writ petition, Mother argues that the trial court erred in soliciting a waiver of the need to advise Mother of her writ rights and obligations from Mother’s counsel, pursuant to California Rule of Court, rule 5.590(b). CFS argues that Mother’s attorney was authorized to waive the need for advisements, although it provides no statutory or decisional authority on point. We agree with Mother that she was not properly advised of the need to file a writ within the proper time frame and will reach the issue on its merits.

1. Counsel’s Invalid Waiver of Mother’s Right to Notification of Writ Requirement Entitles Mother to Raise the Issue on Appeal Following the Section 366.26 Hearing.

Under rule 5.590 (b), of the California Rules of Court, the juvenile court is required to advise parties who are present at the hearing in which the section 366.26 is set of the requirement to file a writ petition to challenge any orders made at the hearing. (§ 366.26, subd. (l ) (3)(A); In re Merrick V. (2004) 122 Cal.App.4th 235, 248.) Failure to give notice of the writ petition requirement relieves a party of the requirement. (In re Merrick V., supra, at p. 248, citing In re Athena P. (2002) 103 Cal.App.4th 617, 625.) In cases where the court fails to give proper advisements, the parent can still challenge, on appeal, the order setting a section 366.26 hearing, even though the parent failed to file a writ petition. (In re Athena P. supra, at p. 625; see also In re Maria S. (2000) 82 Cal.App.4th 1032, 1038; In re Cathina W. (1998) 68 Cal.App.4th 716, 719–724, 726.)

Although the court in Merrick suggested that the parent could appeal the referral order in these circumstances, more recent decisions have concluded that the proper approach is permit the party to obtain direct review of the order setting a section 366.26 hearing by way of an ordinary petition for writ of mandate, without regard to the shortened period for writ review. (Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 254, 260.) In Jennifer T., the court treated the parent’s appeal as a petition for extraordinary relief.

Other cases have held that when a parent is not properly advised of his or her right to challenge the setting order by extraordinary writ, and consequently the parent does not timely file a writ petition, good cause exists to consider issues relating to the setting hearing in an appeal from the order terminating parental rights. (In re A.A. (2016) 243 Cal.App.4th 1220, 1235, citing In re Frank R. (2011) 192 Cal.App.4th 532, 539; In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1110; In re Harmony B. (2005) 125 Cal.App.4th 831, 839 [Fourth Dist., Div. Two]; In re Maria S. (2000) 82 Cal.App.4th 1032, 1038; In re Rashad B. (1999) 76 Cal.App.4th 442, 450; In re Cathina W., supra, 68 Cal.App.4th at pp. 722–726.)

CFS argues that the obligation to give the writ advisement was properly waived by Mother’s trial counsel but does not cite any cases finding waiver of the advisement under those circumstances, nor any cases holding counsel has the authority to make such a waiver. We must therefore determine whether counsel had authority to waive Mother’s right to be advised by the court of her right to seek writ review.

When interpreting a rule, we first look to the words of the rule to ascertain the intent of the drafters and give effect to their plain meaning. (In re Joshua A. (2015) 239 Cal.App.4th 208, 214–215.) If the language is clear and unambiguous, we must presume the drafters meant what they said and the plain meaning of the rule governs. (Id. at p. 215.) The language of rule 5.590(a) of the California Rules of Court is clear and unambiguous—the juvenile court is only required to advise a parent of her appeal or writ rights if she is present at the jurisdictional hearing. (In re A.A., supra, 243 Cal.App.4th at p. 1237 [appeal]; In re Merrick V., supra, 122 Cal.App.4th at p. 248.) If the parent is absent, the advisement, notice of the section 366.26 hearing, and blank writ forms are mailed to the parent. (Cal. Rules of Ct., rule 5.590(b)(2).)

It is true that at least one court has concluded that California Rules of Court, 5.590(b)(1)’s oral advisement requirement is directory, not mandatory, such that lack of oral notice will not be deemed a violation if the clerk mails the written notice. (In re Hannah D. (2017) 9 Cal.App.5th 662, 682.) However, that case did not involve a waiver of the advisement by trial counsel, and we have found no case holding that the court’s duty to advise the parent of the need to file a writ following a referral hearing may be waived by counsel.

The closest situation was found in In re A.H. (2013) 218 Cal.App.4th 337, where the parents had appeared at the referral hearing, with counsel, but abruptly left during the hearing. The court in that case also failed to give oral advisements, but the clerk did mail the notices, advisement, and forms to the address provided by the parents at the first appearance. The court concluded that the rule had been complied with by the clerk’s act of mailing the information to the address provided by the parents, after the parents absented themselves. This holding implies that the court provide the admonishment either orally when the parents are in attendance, or in writing if they are not present when the court rules; the act of leaving the hearing does not waive the need to be admonished by the court of the right to seek review of an order by way of writ.

We conclude from the authorities that the rule means what it says: the court must admonish the parent of the need to file a writ to seek review, and may not delegate that duty to counsel unless the client personally agrees. If the duty could be delegated to counsel, there is a risk that counsel might be disinclined to transmit the information where he or she fears the client might raise a claim of ineffective assistance of counsel. For this reason, unless the court solicits the parents’ waiver, the court must advise the parents of the right to appeal or to seek review of the decision by way of a writ petition.[7]

Here, Mother was present at the hearing, and California Rules of Court, rule 5.590(b)(1) directs the trial court to admonish the parent of the need to file a writ to seek review of the hearing. The court did not do so. Therefore, under the authority of In re Cathina W. and its progeny, the Mother may seek review on appeal following the section 366.26 hearing.

2. Notwithstanding CFS Failure to Assist Mother with Housing, There is Sufficient Evidence to Support the Court’s Reasonable Services Finding.

On the merits, Mother argues that the trial court’s finding that CFS provided reasonable services is not supported by substantial evidence. Specifically, Mother claims the finding is defective because the only evidence cited in support of the detriment finding was Mother’s lack of housing, with which CFS did not provide assistance. We conclude Mother forfeited this issue by failing to object or to request additional services.

In dependency litigation, non-jurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived or forfeited, and may not be raised for the first time on appeal. In re Christopher B. (1996) 43 Cal.App.4th 551, 558, citing, among other authorities, In re Kevin S. (1996) 41 Cal.App.4th 882, 885.) Appellate courts have applied the waiver (forfeiture) doctrine in dependency proceedings in a variety of contexts in which the parent has failed to object, including situations in which the juvenile court has set a section 366.26 hearing after determining that reasonable services had been provided. (In re Kevin S., supra, 41 Cal.App.4th at pp. 885-886.)

Although we have discretion to excuse forfeiture, we exercise that discretion rarely and only in cases presenting an important legal issue. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Here, if Mother had objected to the reasonable services finding, or had requested additional assistance from CFS in obtaining housing, she might have avoided the subsequent situation in which her violation of the visitation guidelines precipitated a modification of visitation, from unsupervised to supervised. Because Mother’s subsequent conduct unraveled the progress she had made, and caused the social worker, as well as the therapists, to be concerned for the well-being of the children if returned to her care, any error was not prejudicial, and may have been rendered moot. The reasonable services finding stands.

2. Review of the Denial of Mother’s Section 388 Petition

Mother argues that the court abused its discretion in summarily denying her section 388 petition without an evidentiary hearing. She argues that because the juvenile court did not know what the wishes of the older children were, the denial of an evidentiary hearing prevented Mother from making a record of just how great her progress had been and how it supported the children’s best interests.

“‘A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child.’ [Citation.]” (In re Mary G. (2007) 151 Cal.App.4th 184, 205; In re M.V. (2006) 146 Cal.App.4th 1048, 1056-1057.) A parent need only make a prima facie showing of these elements to trigger the right to a hearing, and the petition should be liberally construed in favor of granting a hearing to consider the parent’s request. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806; see also, In re Michael D. (1996) 51 Cal.App.4th 1074, 1083.)

“Not every change in circumstance can justify modification of a prior order.” (In re A.A. (2012) 203 Cal.App.4th 597, 612, citing In re S.R. (2009) 173 Cal.App.4th 864, 870.) “The changed circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate.” (In re S.R., supra, 172 Cal.App.4th 864, citing In re Daijah T. (2000) 83 Cal.App.4th 666, 674.) Further, “the change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order.” (In re A.A., supra, 203 Cal.App.4th at p. 612, citing In re Mickel O. (2011) 197 Cal.App.4th 586, 615; Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.)

“The juvenile court’s determination to deny a section 388 petition without a hearing is reviewed for abuse of discretion.” (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505, citing In re Stephanie M. (1994) 7 Cal.4th 295, 316–319; see also, In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) We must uphold the juvenile court’s denial of appellant’s section 388 petition unless we can determine from the record that its decisions “‘“exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’” [Citations.]” (In re Stephanie M., supra, 7 Cal.4th at pp. 318–319; see also, In re Brittany K., supra, 127 Cal.App.4th at p. 1505.)

Here, Mother sought to liberalize visitation on the grounds of changed circumstances, in that she had completed family therapy with the children from June 16, to August 11, 2017; continued to maintain employment; and realized the need to put her children’s needs before her own and to focus her attention entirely on them during visits. By way of best interests, the petition alleged the children were placed with family but were not on an adoption track; Mother wanted her children to feel secure in their placement without losing the bond they have together; the children continued to express their love and bond with Mother; and Mother wants to support her children and her sister by being able to spend more time with the children while giving her sister a break.

While Mother has continued to progress along the road to recovery from her substance abuse issues, and her children were bonded to her, she did not allege or show that circumstances that led to cessation of unsupervised visits had changed. Mother had been compliant with her court-ordered treatment programs consistently since before the unsupervised visits were made supervised. It was Mother’s poor judgment in allowing the children to stay overnight at the sober living home and in allowing an unapproved third party to be present at visits on two separate occasions. Mother’s petition did not allege that those circumstances had been addressed other than a self-serving statement that she had realized the need to put her children’s needs first and would spend more time with them at visits. This does not constitute a material change in circumstances.

As for the best interests prong, the history of the case is punctuated by ongoing concerns about the children’s anxiety, their emotional regression after visits, and their distrust of Mother. Even before the order eliminating unsupervised visits was made, the children were anxious and stated they would only live with Mother if she lived near the maternal aunt, to whom they had become attached.

Mother argued at the hearing on her section 388 petition that she should be afforded a hearing to present evidence on the issue of whether the children still distrusted Mother. However, she had not made an allegation in her petition, much less, met a prima facie showing, of changed circumstances on that point. Having failed to make a prima facie showing of changed circumstances in the area of the children’s anxiety and lack of trust, no evidentiary hearing was required.

Mother’s progress in her rehabilitation and compliance with her treatment program has been laudable and should be maintained. But to secure modification of a prior court order, she needed to allege and make a prima facie showing that the circumstances that led to that order had materially changed, which she did not do.

Disposition

The matter is remanded to the juvenile court to correct its records to show that father was a presumed father. In all other respects, the judgment and order denying Mother’s modification petition pursuant to Welfare and Institutions Code section 388 is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

FIELDS

J.