Filed 6/29/22 In re Lilian F. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

K.F. (mother) appeals juvenile court orders pertaining to her four children. When dependency petitions were filed in November 2018, Lilian was twelve, Katherine was nine, Edward was five, and Rosie was a few days old. In February 2021, the juvenile court terminated family reunification services and set a hearing to select permanent plans for the children pursuant to Welfare and Institutions Code section 366.26. (Statutory references are to the Welf. & Inst. Code.) Prior to the contested section 366.26 hearing, the court denied mother’s section 388 petitions requesting placement of the children with her and additional services. At the section 366.26 hearing, the court terminated mother’s parental rights to the two younger children and appointed legal guardians for the older girls. On appeal, mother contends that the court erred by failing to hold an evidentiary hearing before denying her section 388 petitions. We affirm the appealed orders.

BACKGROUND

In November 2018, the Santa Clara Social Services Agency filed petitions on behalf of mother’s children alleging dependency jurisdiction under section 300, subdivision (b)(1) [failure to protect from risk of harm], 300, subdivision (c) [serious emotional damage], and 300, subdivision (g) [no provision for support]. According to the petition allegations, mother left her three older children alone for two days while she was at the hospital giving birth to Rosie. Following Rosie’s birth, mother was placed under an emergency psychiatric hold due to active psychosis, and the children were taken into protective custody. The agency alleged mother had untreated mental health issues since at least 2006, with symptoms that include delusions and paranoia, which were negatively impacting her children, who were homeschooled by mother, isolated from family and community, and adopted many of mother’s bizarre ideas.

The jurisdiction/disposition hearing was originally set for December 2018, but was continued several times. The agency recommended out-of-home placement for the children and reunification services for mother. Mother had been discharged from the hospital in late November with a diagnosis of “Unspecified Psychosis Not Due to a Substance or Known Psychological Condition.” Her reports about the children’s fathers were inconsistent and sometimes delusional, and the agency had not been able to locate any of them. The children were split up among three foster homes, but the agency was searching for a placement where they could be together.

Prior to disposition, mother steadfastly denied having any mental health problems and maintained that her children were not negatively impacted by her conduct. Both claims were inconsistent with the agency report. The social workers’ interactions with mother often centered around her paranoid or delusional ideas. One such idea that mother had actively pursued was that a famous politician’s son, who had once been a friend, was spying on and stalking her. She also believed that multiple governments were conducting operations to spy on her, and that her husband (Rosie’s father) was a Chinese secret agent.

The reports also documented how mother’s mental health issues impacted the children. Lilian reported that her entire family was scared because they were being stalked and attacked, and expressed fear that “ ‘they are going to kill us for fun.’ ” When nine-year-old Katherine visited with mother at the courthouse prior to a hearing, mother began to breastfeed her. And Edward was afraid to swallow his saliva because mother said it carried germs. The agency reported that none of the children had ever been enrolled in school or seen a dentist. And when the older girls were told they might need glasses, they became upset because mother had told them they would “get ‘in trouble’ ” if they wore glasses and that they should instead rub under their eyes in circular motions.

In March 2019, the Santa Clara juvenile court exercised dependency jurisdiction under section 300, subdivisions (b) and (c) pursuant to allegations in a third amended petition, and adjudged the children as dependents. Mother’s case plan requirements included: a parenting class; counseling or psychotherapy addressing the issues of “how mother’s actions and thought processes impact the children”; and a psychological evaluation, to determine what services mother could benefit from in light of her mental health issues.

In March 2019, the juvenile court also approved placement of all four children in the home of Martin S., a nonrelative extended family member who lived in San Francisco. Soon thereafter, mother changed her residence to San Francisco. In May 2019, the children’s cases were transferred to San Francisco. A six month review hearing was scheduled for September 2019.

In August 2019, Dr. Amy Watt completed a psychological evaluation of mother. Watt reported that mother denied having any mental illness or a history of serious psychological symptoms. But during her clinical interview, mother displayed symptoms of paranoia, delusional ideation, grandiosity, and magical thinking. She also “repeatedly pointed out bizarre and strange logic related to people stalking her and plotting to take her property.” Watt diagnosed mother with schizophrenia.

Mother’s psychological evaluation contains the following recommendations: the children should remain in foster care while mother receives mental health treatment; service providers should avoid challenging mother by “direct confrontation of facts,” and endeavor to empathize with her feelings of being unsafe and afraid; mother may need outreach and education to accept the mental health treatment that she needs; mother may need assistance with managing finances and property as her mental health issues make her vulnerable to fiduciary abuse and victimization; personal history information should be obtained from outside sources as mother is a poor historian; medical records would be useful to understanding mother’s symptoms and developing a course of treatment; mother should participate in individual psychotherapy; a psychiatrist should be consulted about medications that will target mother’s psychotic symptoms.

In late August 2019, the San Francisco Social Services Agency filed a section 387 petition seeking a more restrictive placement for the children. The agency alleged that Martin S. failed to provide appropriate care for the children by, among other things, delegating his responsibilities to an unapproved family friend and authorizing unsupervised visits with mother. The agency also alleged that Martin S. told the agency social worker that the children were at school when they were actually with mother, and that the children’s education needs were not being met.

The agency’s section 387 report discusses the incident precipitating the supplemental petitions. On August 23, 2019, the social worker contacted Martin S. to arrange an after-school home visit. Martin reported that a family friend, Mr. D., was picking the children up from school that day and taking them to a medical appointment because they did not feel well. The social worker admonished Martin that Mr. D. had not been approved by the agency and advised that she would meet them all at the appointment. Later Martin left a message that the appointment had been changed because the clinic was busy. At around 5:50 p.m., the social worker arrived at Martin’s house, where nobody answered the door. When Martin arrived home at around 6:30, he reported that Rosie was inside with a sitter, and he did not know the whereabouts of the other children. At the social worker’s request, Martin called Mr. D., who was evasive and failed to comply with instructions to bring the children home. At around 8:45 p.m., the social worker called the police. The police contacted mother, who reported that she did not know the children’s current location, but she had talked to them, and they were afraid the social worker was going to take them away.

On August 24, 2019, at around 12:45 a.m., the police located mother, who was sitting in a parked car. She claimed she was waiting for a friend and did not know where the children were, but she agreed to call Mr. D. When the police talked to Mr. D., he reported that he and the children were in a residence a few houses away from where mother had been found. Mother identified the home as her residence and wondered out loud how the children knew to go there. At the police station, the children denied that they had contact with mother while they were with Mr. D. and expressed fear about being moved out of Martin S.’s home. A few days later, the older girls claimed not to remember what had happened when they were with Mr. D. The social worker consulted with administrators at the children’s schools, who reported that Martin S. had been at the school only once, and that mother routinely dropped off and picked up the children. The school expressed concerns about the family, including that mother had made “multiple” bizarre accusations against teachers, and had accused the school of penalizing her children and treating them like they were disabled because they were often sick or tardy.

At a hearing held on August 28, 2019, the children were detained from Martin S., mother changed her counsel, and dependency orders were renewed. The six month status review date was vacated, and proceedings were continued for a settlement conference on the section 387 petitions.

In a September 2019 report, the agency recommended terminating mother’s reunification services and scheduling a section 366.26 hearing. The agency expressed concern about whether mother was able to regularly meet her own basic needs. Since the cases were transferred to San Francisco, mother had been evasive about her residence and financial situation. She provided at least five different addresses and it was not clear where she actually lived. She also reported that she had worked as a real estate broker, spiritual phone consultant, and Uber driver, and claimed to have significant but unstable income.

The agency was also concerned that mother continued to deny having any current or past mental illness despite clear evidence to the contrary, and that she was not currently engaged in psychiatric or therapeutic services. Mother had been referred for individual therapy with Mr. Gammino, whose assessment was consistent with mother’s psychological evaluation. After three sessions, mother decided to stop seeing Gammino. On August 2, 2019, she sent him an email stating: “ ‘I’m happy to see you however many times you’d like as friends . . . and I do not believe we need to “think of something” in order to continue treatments of non-existent conditions.’ ” (Emphasis omitted.)

The agency had also referred mother for counseling, medication evaluation and management, and case management services in a clinical setting, but she had not engaged in those services. Mother resisted signing necessary releases, which impeded the agency’s ability to receive information from service providers. In a similar vein, the agency had to obtain “signing rights” from the court so that it could secure medical and dental care for the children.

A contested hearing on the section 387 petitions was scheduled for February 2020, but was continued several times. Some continuances were related to mother changing or attempting to change counsel, while others related to the COVID-19 pandemic. Meanwhile, mother filed two section 388 petitions, apparently without assistance from her counsel. In a January 2020 petition, mother stated that the court had ignored an arbitration award she purported to have obtained online and requested an order for summary judgment enforcing the award. Mother stated she was entitled to this relief because the children were removed pursuant to false allegations and should be returned to her care. This petition was denied because it did not state new evidence or a change of circumstance. In February 2020, mother filed another petition, which also referred to an allegedly final arbitration award. Mother requested that the court return the children to her and to Martin S., dismiss the dependencies, and enforce her arbitration award. This petition was denied because it did not state new evidence or a change of circumstance, and the proposed changes did not promote the best interest of the children.

In a June 2020 addendum report, the agency reiterated its recommendations to terminate services and set a section 366.26 hearing. This report documented ongoing concerns about mother’s unstable living situation. Mother reported that she had moved to Chino and would commute to the Bay Area for visits with the children, but then subsequently reported that she planned to move back to a residence that she retained in San Francisco. Mother also reported that she was currently working as an on-call spiritual advisor and earning around $6,000 per month.

The June 2020 report also documents ongoing efforts to engage mother in mental health treatment. Mother was referred to Sunset Mental Health Services (Sunset MH), where she participated in intake but delayed signing a consent form to allow the agency to receive information from this service provider. Eventually, Sunset MH reported that mother’s file had been closed because she denied having any mental health symptoms or needing any services, and Sunset MH had not been provided with a diagnosis or treatment plan. Sunset MH advised that it would re-open the matter if provided with mother’s psychological evaluation, but mother denied consent, calling it a fake document.

Next, mother was referred to Chinatown/North Beach Health Services. Mother claimed that a doctor at that clinic told her she did not need mental health services. The social worker subsequently determined that mother had a brief phone conversation with a clinician who was not a doctor. The clinician looked up mother’s name in the system, discovered she had already been assessed at Sunset MH and suggested that mother return there for a re-assessment. At some point, mother reported that she had returned to Sunset MH and was told that she did not need treatment. The social worker followed up with the Director of Sunset MH, who reported that she evaluated mother over the phone due to the COVID pandemic and that mother did not report any symptoms that meet the diagnostic criteria for mental illness.

The agency reported that, during the same period when mother refused mental health treatment, she continued to “demonstrate odd, inconsistent, disorganized and bizarre thinking.” She also made many false accusations against the agency, social workers, and service providers.

In September 2020, mother engaged private counsel who replaced her court-appointed attorney. At that point, a 12/18 month status review was scheduled for October 16, 2020. The agency continued to recommend terminating reunification services and setting a section 366.26 hearing. Opining that there was no justification for extending the reunification period, the agency cited the following circumstances: Mother had not completed reunification requirements despite having received 18 months of services; mother lacked insight and awareness regarding the impact of her mental health problems on her and the children’s lives; despite loving her children, mother failed to make a positive change in her behavior to demonstrate her ability to provide proper care for them; mother continued to display mental health symptoms with no significant improvement of mental stability.

In January and February 2021, the court held a contested hearing on the section 387 petitions and a combined 6- 12- and 18-month review. On February 3, 2021, the court sustained the section 387 petitions and vacated the order placing the children with Martin S. The court also renewed the children’s dependency status, finding that the conditions that led to the dependency continued to exist, and the children could not be safely returned to mother. Mother’s reunification services were terminated pursuant to findings that the agency made reasonable efforts to reunify the family and mother made minimal progress toward alleviating or mitigating the causes necessitating the dependencies.

A section 366.26 hearing was set for May 26, 2021. On May 12, the agency filed a section 366.26 report recommending that the children’s foster parents be appointed legal guardians of Lilian and Katherine and that their dependency cases be dismissed. For the two younger children, the agency recommended adoption by the same foster parents and that the court terminate parental rights as to Edward and Rosie. At the May 26 hearing, mother contested the agency’s recommendations, and the court scheduled a contested hearing for June 23.

On June 4, 2021, mother’s counsel filed substantively identical section 388 petitions in the four dependency cases. Counsel requested that the court change its prior order terminating mother’s reunification services for the following reason: “Since the order was made, Mother has engaged in productive therapy sessions on a weekly basis with Cindy Feng, Ph.D. In her sessions, Mother has gained insight in emotional regulation, how to support the children’s emotional needs and how to engage with service providers in constructive ways.” Mother’s counsel requested a modified order placing the children with mother with family maintenance services or, alternatively, that mother be granted six months of reunification services.

A May 23, 2021, “Psychotherapy Treatment Summary Report” was attached to the section 388 petitions. According to the report, between March 6 and May 23, mother was seen by psychologist Cindy Feng for weekly therapy. Feng stated that she was treating mother for stress management, reality testing, and emotional modulation. Feng also offered her opinion that mother was not “currently suffering from clinically significant levels of anxiety and depressed mood, nor [was] she presenting with any observable processes of psychosis, mania, or other types of psychosomatic manifestations of mental health distress that causes significant impairments in her functioning.” Feng based this opinion on her observations, mother’s report of her current mental status and family history, and a battery of tests used to measure anxiety.

On June 23, 2021, the juvenile court held a hearing on the section 388 petitions. The court found that mother failed to make a prima facie showing that the modification order she requested (1) was based on new evidence or a change of circumstance and (2) would promote the best interests of the children. Accordingly, the court denied all four petitions and continued the matters for a section 366.26 hearing.

A contested section 366.26 hearing was held on August 18, 2021. Mother objected to the recommendation of legal guardianship for the older children on the ground that her section 388 petitions should have been granted. The girls expressed a preference to live with mother but did not object to the proposed legal guardianship. The court followed the agency recommendation of legal guardianship by the foster parents as the permanent plan for Lilian and Katherine.

Mother objected to the agency’s recommendation to terminate her parental rights as to Edward and Rosie on the ground of the beneficial relationship exception. Counsel for these children acknowledged that mother loves them, but joined in the agency’s recommendation of adoption by the foster parents who had been caring for all four children for more than a year. The court adopted that recommendation and terminated mother’s parental rights as to Edward and Rosie, finding, among other things, that mother’s bond with them did not outweigh the benefits of adoption.

DISCUSSION

Mother’s notices of appeal state that she is appealing the June 2021 order denying her section 388 petitions and the August 2021 orders selecting permanent plans for each of the children. Mother’s sparse opening brief raises a single legal issue based on an inadequate statement of facts.[1] She contends the juvenile court erred by denying her section 388 petitions without holding an evidentiary hearing because she made a prima facie showing that her circumstances had changed. “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 (Brittany K.).)

Section 388 provides that “[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . .” (§ 388, subd. (a)(1).) “If it appears that the best interests of the child . . . may be promoted by the proposed change of order,” the juvenile court “shall” order a hearing. (§ 388, subd. (d).)

To obtain relief under section 388, the “petitioning party has the burden to show, by a preponderance of the evidence, there is a change of circumstances or new evidence, and the proposed modification is in the child’s best interests.” (In re A.S. (2009) 180 Cal.App.4th 351, 357 (A.S.).) If allegations in the section 388 petition do not make a prima facie showing of new evidence or a change of circumstance, and that the proposed modification is in the child’s best interest, the petition may be denied without an evidentiary hearing. (In re Mary G. (2007) 151 Cal.App.4th 184, 205 (Mary G.); In re Aljamie D. (2000) 84 Cal.App.4th 424, 431-432.) The petition must be construed liberally, but the new or changed circumstance must be substantial such that it would justify granting the relief requested. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 (Ernesto R.).)

“Moreover, in reviewing the juvenile court’s determination, we bear in mind the fact that, ‘n any custody determination, a primary consideration in determining the child’s best interests is the goal of assuring stability and continuity. [Citation.] “When custody continues over a significant period, the child’s need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.” [Citations.] [ ¶] . . . [¶] After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point “the focus shifts to the needs of the child for permanency and stability” [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.’ ” ([i]Brittany K., supra, 127 Cal.App.4th at p. 1505; see In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

Applying these principles, we conclude that the juvenile court did not abuse its discretion by denying mother an evidentiary hearing before ruling on the section 388 petitions. Mother’s counsel stated that mother’s circumstances had changed because after her reunification services were terminated, she engaged in “productive” weekly therapy sessions and “gained insight” about how to regulate her emotions, support her children’s emotional needs, and engage with service providers. Mother’s counsel did not state that these therapy sessions changed any material circumstance that led to the dependencies.

The petitions do not state, for example, that mother had made a change by acknowledging her mental health struggles, or that she had gained insight as to how her mental health issues affected her children. Importantly, nothing in the petitions even suggests that mother was willing to accept treatment for her mental illness, either from her newly retained therapist or from any other service provider. Construed liberally, the petition allegations show no more than a potential changing circumstance—a first step toward addressing impediments that prevent mother from addressing the issues that necessitated these dependencies. (See e.g., Ernesto R., supra, 230 Cal.App.4th at p. 223 [mother’s recent sobriety reflected “ ‘changing,’ not changed, circumstances”].)

The petitions do not make out a prima facie case for the independent reason that they do not state facts showing that the proposed modification order was in the best interests of the children. Mother’s counsel sought an order placing the children with mother without alleging any new facts that would alter the juvenile court’s recent finding that the children could not be safely returned home. The alternative request to reopen the reunification period was equally unsupported. “ ‘A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point, does not promote stability for the child or the child’s best interests. [Citation.] “ ‘[C]hildhood does not wait for the parent to become adequate.’ ” ’ ” (Mary G., supra, 151 Cal.App.4th at p. 206; see also A.S., supra, 180 Cal.App.4th at p. 358.)

Mother raises two issues on appeal. First, she intimates that the juvenile court abused its discretion because it initially granted her request for an evidentiary hearing and then reversed that ruling at the June 2021 hearing. Mother’s appellate counsel, who represented her below, misreads the record. At the June 2021 hearing, the court explained that the reason the hearing had been set was not because a prima facie showing had been stated in the section 388 petitions, but rather so that the court could address the petitions before proceeding to the section 366.26 hearing, which had already been scheduled. After giving the petitions full consideration, the court concluded reasonably that a prima facie case had not been made.

Mother’s second contention is that the report from her therapist demonstrates her progress in overcoming the conditions that led to the dependencies. The record shows that the juvenile court reviewed the report and gave it careful consideration on the record before concluding that a prima facie case for the requested relief had not been made. The court characterized the report as attempting to show that mother was headed in a direction that “may result in the change of circumstances,” which was not sufficient. Further, the court found nothing in the report to indicate that the proposed change orders were in the best interests of the children. The court’s assessment was reasonable, especially in the context of the protracted proceedings and in light of mother’s minimal efforts during the 18 month reunification period.

In summary, mother and her counsel did not state facts to show changed circumstances that would justify the modification order that mother sought on the eve of the section 366.26 hearing. Nor did they attempt to show that the proposed modification(s) would serve the best interests of the children. Thus, the juvenile court did not abuse its discretion by denying mother an evidentiary hearing on the section 388 petitions.

DISPOSITION

We affirm the June 2021 order denying mother’s section 388 petitions and the August 2021 orders selecting permanent plans for the children pursuant to section 366.26.

TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

RODRÍGUEZ, J.

In re Lilian F., et al. (A163321)

[1] An appellant’s opening brief must contain “a summary of the significant facts limited to matters in the record.” (Cal. Rules of Court, rule 8.204(a)(2)(C).) Mother ignores significant facts and discusses matters outside the appellate record. Every appellate brief must support a reference to a matter in the record with a proper citation to the record where the matter appears. (Rule 8.204(a)(1)(C).) Mother’s opening brief contains citations to a Reporter’s Transcript that is not part of the appellate record. She also cites to a generic Clerk’s Transcript despite the fact that the appellate record contains four sets of Clerk’s Transcripts, each of which is more than 1300 pages long.