Filed 8/27/18 In re Michael G. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.

Mara Lee Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.

John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.

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Kristina C. (mother), mother of six-year-old Michael G., appeals the juvenile court order denying her Welfare and Institutions Code section 388 petition without a hearing.[1] The petition asked the juvenile court to change the visitation order to either lift the visitation restrictions or, in the alternative, liberalize visitation to allow for community visits, unsupervised evening and weekend visits, and unlimited third party supervised visits. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The family came to the attention of the Stanislaus County Community Services Agency (Agency) in October 2015, after a medical mandated reporter suspected mother had Munchausen Syndrome by Proxy (MSbP). The reporter was concerned that three-year-old Michael was on four psychotropic medications and appeared “overmedicated.” In addition, mother, who was a licensed vocational nurse (LVN), had insisted on Michael receiving a “PICC line” for a blood draw, which is reserved for patients needing long term care.

A social worker visited mother and Michael. Michael had a nasogastric (NG) tube inserted in his right nostril, which mother said he needed because he had no appetite and was not getting enough nutrients. Mother claimed Michael had ataxia, encephalitis, a sensory processing disorder, anxiety, and post-traumatic stress disorder (PTSD), due to Michael witnessing domestic violence between herself and Michael’s father, Scott G., when Michael was a year old.[2] Mother later reported that Michael also had bipolar disorder, thrombocytopenia, esophagitis, and respiratory and sinus infections.

The Agency contacted several of Michael’s providers, including his primary care physician, Dr. Theresa Ng, and child psychiatrist, Dr. Bernardo Mora. Dr. Ng was concerned about the continued use of the NG tube, as Michael did not need one since he was able to tolerate food and was not losing weight. In addition, mother had replaced the NG tube at home when Michael pulled it out without an x-ray follow-up to ensure it was inserted correctly. Dr. Mora, who was treating Michael for insomnia, said that mother asked him to treat Michael for PTSD. Based on the information mother verbally provided, Dr. Mora prescribed clonidine, trazadone, and depokote for Michael’s symptoms, with the understanding that Michael would receive counseling services. Dr. Mora asked mother to stop giving him the medications, however, because the counseling never took place. Mother obtained a new primary care physician for Michael, who continued the prescriptions.

In February 2016, mother agreed to receive voluntary family maintenance services. A social worker and public health nurse continued contact with mother and Michael; they observed Michael to be a “well fed, friendly and happy child.” While Michael had the NG tube in place, he was at the 95th percentile for his weight. In February 2016, mother reported that she gave Michael Pediasure through his NG tube when he did not eat half of his food, but in May 2016, she said that the NG tube was used to give Michael medication. Mother revoked her consent to voluntary services in May 2016.

In June 2016, the Agency consulted Dr. Herbert Schreier, a child psychiatrist at UCSF-Benioff Children’s Hospital in Oakland who specializes in the field of MSbP and pediatric condition falsification (PCF). Dr. Schreier reviewed Michael’s medical records and saw real inconsistencies and discrepancies in them. Dr. Schreier recommended that Michael be placed in a hospital or therapeutic foster home, where he could be monitored by medical professionals and taken off the medications to see if he needed them. Dr. Schreier believed it was more likely than not that Michael was being treated for something he did not have and was suffering from PCF, which occurs when a parent fabricates a child’s illness leading to treatment for a condition the child does not have, as mother had made sufficient fabrications to support that diagnosis. Dr. Schreier could not determine whether mother had MSbP, as he needed more information about her motivation to make such a diagnosis. According to Dr. Schreier, PCF is a form of child abuse.

Michael was taken into protective custody on June 29, 2016 and admitted to Children’s Hospital in Oakland, where he was observed by Dr. Schreier, Dr. Vivian Nguyen, and Dr. Ng. The doctors did not see any signs of bipolar disorder or PTSD. Michael was weaned off his medications and was “doing well.”

The Agency’s Petition, Jurisdiction, and Disposition

The Agency filed a petition alleging Michael came within the provisions of section 300, subdivision (b) (failure to protect) based on mother’s assertion that Michael had numerous physical and mental health conditions; her inconsistent reports; the medical professionals’ observations of Michael as a “typical two year old without any significant or unusual mental health issues,” and who was “quiet and well-behaved” without any “extreme behaviors”; and that Michael was doing well without his medications.[3] At the detention hearing, the court appointed counsel for mother and ordered Michael detained. Michael had been discharged from the hospital and was in a foster home.[4]

Mother later retained an attorney, who represented her at the jurisdiction and disposition hearing. On July 29, 2016, a contested combined jurisdiction and disposition hearing was set for September 2016. The Agency subsequently filed a disposition report recommending that mother receive reunification services. The social worker opined it would be detrimental to return Michael to mother, as mother appeared not to take any responsibility for Michael’s multiple diagnoses and medications; instead, she claimed a doctor had diagnosed Michael with PTSD and doctors had prescribed all of Michael’s medications. The medical reports indicated, however, that the medical providers relied heavily on mother’s verbal reports and when doctors opposed certain medical procedures, mother sought treatment elsewhere. Since mother had not acknowledged the dangers to which she exposed Michael or taken any responsibility for the events leading to his removal, it was not known if she could protect Michael.

Mother’s proposed case plan included, as a service objective, that mother accept responsibility for her actions. Her services consisted of individual counseling and parenting education. The plan specified that in individual counseling, mother “will acknowledge she sought unnecessary and risky medical interventions for Michael . . . [and] acknowledge and explore the reasons why she sought the medical interventions for Michael that he did not need. The mother will demonstrate progress in alleviating the reasons she has subjected Michael to unnecessary medical and mental health interventions.”

At the August 17, 2016 pretrial hearing, mother’s attorney informed the juvenile court that the matter had been resolved. Mother filed a waiver of rights form submitting on the petition. The juvenile court accepted the waiver and found it was “freely and voluntarily entered into with a complete understanding of its meaning and impact.” The juvenile court found the allegations of the petition true and that Michael was a person described by section 300, subdivisions (b)(1) and (g),[5] and adjudged him a dependent. The juvenile court removed Michael from parental custody, ordered reunification services for mother and approved her case plan, with an amendment to provide for a minimum of weekly two hour supervised visits for mother, which the social worker had the discretion to increase and to allow a third party to supervise. The court found the social worker solicited the family’s input into the case plan. The six-month review hearing was set for February 10, 2017. Mother acknowledged receipt of the case plan on the date of the hearing.

The Agency’s Reports for the Six-Month Review Hearing

By the six-month review hearing, Michael had been placed with maternal grandparents. Mother gave birth to a baby boy in October 2016. Maternal grandparents filed for guardianship of the baby.

In its report prepared for the six-month review hearing, the Agency recommended that mother’s services continue. Mother completed the parenting course and consistently attended her counseling sessions with therapist Maryanne Cose. Cose discussed and explored with mother the initial part of her case plan, namely that she acknowledge she “sought unnecessary and risky medical interventions for Michael.” Mother, however, did not understand how the treatment was unnecessary, as she claimed she was complying with doctors’ orders. Cose was going to continue to meet with mother to address the concerns identified in her case plan.

In October 2016, Cose recommended that mother receive a psychological evaluation to determine whether she had MSbP, PCF, or any other underlying mental health concerns. Mother missed the first scheduled evaluation on October 27, 2016, as she had been admitted to the hospital prior to giving birth. The evaluation was rescheduled for January 4, 2017,[6] and psychologist Dr. Philip S. Trompetter evaluated mother on that date.

Dr. Trompetter issued a report. He stated he was asked to determine any diagnosis mother might have, including whether she might have a mental health disorder such as MSbP or PCF, and what services mother could benefit from to help her reunify with Michael. Dr. Trompetter interviewed mother and administered personality and psychological inventories. He also reviewed the Agency’s documents in the case, including the jurisdiction and disposition reports, as well as Michael’s medical records.

The documentation Dr. Trompetter reviewed outlined mother’s persistent perceptions of the seriousness of Michael’s symptoms, “concerns that some have found disproportionate, excessive and unsupported by the evidence.” Dr. Trompetter’s interview of mother and the psychological testing did not produce any “definitive evidence” to “confirm or refute a diagnosis of a factitious disorder of another.” In addition, Dr. Trompetter said he was not qualified to comment on whether she falsified Michael’s medical symptoms. Dr. Trompetter explained that “factitious disorder imposed on another” is a symptom presentation where the other is presented as ill, impaired, or injured, and the behavior is not better explained by another mental disorder, such as a psychotic disorder. There is no definitive personality or psychological inventory associated with factitious disorder. Dr. Trompetter noted that mother denied falsifying symptoms and she “had a plausible explanation for each of the issues that have been used as evidence to support the claim of symptom falsification, essentially claiming that she was only doing what she was instructed to do by medical personnel.” Accordingly, Dr. Trompetter could “neither confirm nor refute a condition based on [mother] falsifying symptoms regarding her son.”

It was clear from the clinical interview and psychological testing, however, that mother was struggling with considerable distress that she experienced primarily as depression with anxiety, which she had since at least mid-adolescence. Noting that mother’s efforts to address her symptoms had been minimally successful, Dr. Trompetter opined that mother needed anti-anxiety and anti-depressant medications, in addition to counseling, to manage and alleviate her distress. Mother’s depression and anxiety were linked to social avoidance, lack of confidence, indecisiveness, and other problematic behaviors that interfered with her full capacity to sufficiently and consistently support and care for her children, particularly a son with a number of behavioral and medical problems. Mother had trouble fully engaging in therapy because she tended to “be defensive, avoidant, over-controlled and uninsightful.” Her symptoms were partially related to PTSD, caused by multiple episodes of severe physical assault during her marriage to father, but she displayed more generalized anxiety and depression than the “more narrowly focused PTSD,” which needed to be addressed to help her achieve more effective interpersonal and parental functioning.

In light of Dr. Trompetter’s findings, the Agency recommended that mother’s case plan be updated. Under counseling and mental health services, the proposed case plan added a requirement that mother receive a psychotropic medication evaluation and remain medication compliant if she was prescribed medication. With respect to individual counseling services, the case plan stated that mother would address the following: (1) she would acknowledge she “sought out unnecessary and risky medical interventions for Michael,” such as, asking a medical doctor to insert an NG tube and inserting the tube herself; (2) she would “explore and address the reasons for seeking and personally administering unnecessary and risky interventions against medical advice”; (3) she would address the reasons she failed to follow through with medical recommendations of Dr. Mora to seek counseling for Michael after he was prescribed psychotropic medications; (4) she would address her depression and anxiety issues; and (5) she would follow her clinician’s recommendations. The Agency’s reports recommended that the court find mother was actively involved in the development of the case plan.

The social worker opined it would be detrimental to return Michael to mother’s custody, as mother would not acknowledge that she sought unnecessary and risky medical interventions for Michael, or that her actions directly threatened Michael’s health and well-being. For this reason, mother’s visits needed continued supervision. The social worker did not believe mother had made any progress in her services, as she continued to deny culpability and claim that keeping Michael medicated and inserting an NG tube, even against medical advice, was both appropriate and safe. Since Michael’s removal, Michael’s pediatrician had found him to be a healthy child who did not have any medical issues. He was eating well and thriving in his placement. Michael was not taking any psychotropic medications; the only medication he was taking was a medication for seasonal allergies.

Mother’s Section 388 Petition

Before the February 10 six-month review hearing, mother substituted retained counsel Lori K. Sicard in place of her prior attorney. Sicard asked for a contested six-month review hearing, as mother objected to the asserted need for supervised visitation and her alleged failure to show progress. Sicard added that she was preparing a motion to set aside the jurisdictional findings of PCF. A contested hearing was set for March 17, which was later vacated and reset for April 14.

On April 4, mother filed a section 388 petition. She identified the following orders, made on July 26 and August 17, 2016, that should be changed: (1) “order for supervised visitation at discretion of CPS” for mother and Michael; and (2) “[f]indings pursuant to WIC section 300 (b)(1) and (g).” As changed circumstances, mother asserted that new counsel had been retained; her prior counsel “who advised a waiver of rights was ineffective”; “expert witnesses have reviewed medical records which were not previously considered or reviewed in the Juris/Dispo proceedings”; and mother was receiving counseling and taking medication. Mother asked the juvenile court to “[t]erminate [j]urisdiction and return child to mother and stepfather” or, in the alternative, “retain jurisdiction but eliminate all visitation restrictions and complete reunification; modify the reunification p[lan].” As to best interests, mother asserted that Michael wanted to be reunified with her and the family, there was not a substantial likelihood of future harm to him, and mother was the best person to care for him.

A 10-page long points and authorities was attached to the petition. In the introduction, mother stated she was asking to terminate jurisdiction and immediately return Michael to her, as she had complied with services and the Agency could not show a substantial likelihood of harm, and that the jurisdictional findings of PCF be modified.

The points and authorities contained four sections, with the following headings: (1) “Reunification Would Be In Michael’s Best Interest”; (2) “CPS Cannot Meet Its Burden of Proof That There is a Substantial Likelihood That Michael Will Be Subject to Future Harm if Reunified”; (3) “The Previous Findings Under WIC § 300 Must Be Set Aside”; and (4) “Should Any Portion of the Case Plan be Found Unreasonable, Such Portions Should Be Stricken And/Or Modified.”

Under the third heading concerning setting aside jurisdictional findings, mother argued there was not a current showing of future risk of harm, and the Agency did not adequately plead facts sufficient to substantiate a finding of severe neglect or harm. Mother argued, as changed circumstances, that she had retained new counsel who was willing to “facilitate her wishes” to dispute the assertion that she had a disorder, and her prior attorney was ineffective in urging her to waive her right to a trial on jurisdiction. In addition, she asserted that correspondence in the legal file given to new counsel made it clear she wanted to challenge the findings, and did not understand the nature of the proceedings or the effect of submission. Moreover, through intensive therapy, she now had the “necessary strength and mental capacity” to advocate for herself in a way she could not before. Mother also asserted there was new evidence that consisted of Dr. Trompetter’s report; an expert evaluation by psychiatrist Dr. Rao; a comprehensive review of medical records by Dr. Veerappa; and treatment mother was receiving from Victoria Boccanfuso, PhD.

Under the fourth heading concerning the case plan, mother argued the requirements in her general counseling provision were not reasonable. Mother asserted that she repeatedly acknowledged to Cose that she did not understand what was meant by “seeking risky and unnecessary medical procedures.” In addition, there was no evidence to support a finding that she suffered from a factitious disorder, therefore “the requirement that she ‘fess up’ to the disorder” of MSbP or PCF to successfully reunify was unreasonable.

The closing paragraph of the points and authorities, entitled “Proposed Orders,” asked the court to immediately terminate jurisdiction or, alternatively, to give mother unlimited supervised visitation and a confirmation of her educational rights as to Michael “with supervised visitation to terminate upon further affirmative testimony of [mother]’s treating psychologist.”

The juvenile court summarily denied the petition. On the “Court Order on Form JV-180” (Form JV-183), under the section that states “[t]he request is denied because[,]” the court checked the box labeled “Other” and wrote: “All of the matters requested will, and would normally, be addressed at the time of the status review hearing which is scheduled for April 14, 2017 at 10:30 a.m.” The order was signed and filed on April 13. The record does not contain a proof of service for the order.

The Six-Month Review Hearing

The contested six-month review hearing took place over four days – it began on April 14 and concluded on April 25. Before the hearing, mother submitted a witness list that identified Drs. Nandeesh Veerappa and Ashok Rao as retained experts. At the outset of the hearing, County counsel objected to them testifying. County counsel believed they were to testify about the reasonableness of mother’s care of Michael, which was not relevant since the jurisdictional and dispositional findings were final, and the juvenile court had denied the request to reopen the jurisdictional findings and change the case plan. Mother’s attorney responded that Michael’s past medical care was relevant to whether mother was capable of providing care, and the experts would testify as to the reasonableness of services pursuant to the allegations in the jurisdiction and disposition reports.

The juvenile court stated that mother could not go back and relitigate the case plan, or argue that the case plan itself was unreasonable. The juvenile court explained that if there was an issue regarding the current case plan, a section 388 petition would have to be filed to address the issue, but “[w]e are past that point.” The juvenile court added that mother could certainly argue the proposed case plan should be modified going forward, but there was no basis under the law to argue that the current case plan was unreasonable. The juvenile court, however, allowed mother to call her witnesses and relevance would be determined as testimony progressed. Mother was permitted to call the doctors out of order.

Nandeesh Veerappa, M.D., was called by mother’s attorney. Dr. Veerappa gave a very brief summary of his education and confirmed he had reviewed Michael’s hospitalization records beginning in 2013. When asked about his review of individual hospital records, the juvenile court sustained County counsel’s objections on relevancy grounds, as the records had nothing to do with the current reporting period. Mother’s attorney argued review of the medical history was needed to refute the Agency’s claimed barrier to reunification, namely that mother had not shown culpability for unnecessary and risky medical procedures. The juvenile court responded this was the wrong way to refute it.

Mother’s attorney tried to elicit Dr. Veerappa’s opinion whether, in reviewing the medical records, he believed mother was a fit parent. County counsel objected based on lack of foundation and voir dired Dr. Veerappa, who confirmed his opinion was based on records in one of mother’s exhibits. County counsel explained her objection was that Dr. Veerappa’s opinion relied almost entirely on information available at the time of the jurisdiction hearing, and therefore was not relevant, did not have a proper foundation, and was a “backdoor way” of trying to get the Court to reconsider its jurisdictional findings and dispositional orders. The court sustained the objection.

After more sustained objections, it was determined Dr. Veerappa had not been qualified as an expert. After a lunch break, mother’s attorney stated she was going to “rest” on Dr. Veerappa. It was revealed that mother’s attorney had released Dr. Veerappa during lunch. While mother’s attorney offered to bring him back later in the proceedings, the court stated it was not up to the attorneys to release a witness before everyone had a chance to cross-examine him, unless mother’s attorney wanted to withdraw his testimony. Mother’s attorney agreed to withdraw the testimony and the court ordered it withdrawn.

Mother’s attorney then called Ashok Rao, M.D., a board certified psychiatrist. After a lengthy voir dire examination by father’s attorney, the juvenile court deemed Dr. Rao to be qualified as an expert in the area of psychiatry. Dr. Rao had never treated a patient who had MSbP or other factitious disorders, and did not have any specialized training in the area. When mother’s attorney asked what qualified him to testify about MSbP or PCF, Dr. Rao replied, “Because this particular condition is a very esoteric condition. There are no experts in this field. They are not recognized. There are many, many conditions.” The court responded that if there were no experts, “obviously he cannot qualify as an expert in the area.” Dr. Rao was permitted to testify about the characteristics of factitious disorders, however, and confirmed a necessary element is malingering or a derivation of benefit by the caregiver, and a diagnosis cannot be made without interviewing or evaluating the caregiver.

Dr. Rao met with mother four times for interviews and evaluation – the first interview was a month and a half before the hearing. Dr. Rao opined that mother’s diagnoses of generalized anxiety and depression did not mean she was going to harm her child. Mother was taking medication to treat her anxiety and depression, and to help her sleep. After mother’s attorney finished questioning Dr. Rao, she stated she had been prepared to have him testify at length about MSbP, as she believed he was an expert on the disorder. The juvenile court denied her request to place an offer of proof on the record as to what his testimony would have been.

Mother’s brother testified on her behalf. He said she was an “outstanding mother” who “fights for her children.” At the end of Michael’s birthday party, mother was crying and Michael was upset, as he wanted to go with mother.

The Agency began its case in chief and called mother to testify. Asked if she ever acknowledged in her counseling sessions that she sought unnecessary and risky medical interventions for Michael, mother replied, “No, because I did not.” Her position was that she never once in Michael’s entire life sought out a medical intervention that was not necessary or was against the advice of doctors.

On cross-examination by her attorney, mother claimed she did not know what a “risky and unnecessary medical intervention” was and she was confused by the term, as it was never explained to her. Mother asked Cose to explain what MSbP and PCF were and how Cose was supposed to treat her, “because I felt I did nothing to harm my child but advocate for him.” She did not feel that Cose explained those things adequately because it was beyond Cose’s expertise. Asked by the juvenile court whether she did not understand this component of the case plan, mother stated, “I did not understand that that’s what they wanted in the case plan.” The court asked if she did not understand what that meant or if she disagreed that she ever engaged in such behavior. Mother responded, “I did not understand that they wanted me to say that I did something when I didn’t.” Mother went over the case plan with the social worker during monthly compliance meetings and discussed the issue with the social worker.

Mother was seeing another therapist, Victoria Boccanfuso, with whom she had two sessions. Mother was being treated for anxiety and depression, and was taking Wellbutrin, Klonopin, and Ambien. Mother missed Michael and wanted her family back together. She believed she would not be compelled to take Michael to the doctor to seek attention or for personal gain in the future, and also believed she was capable of being a caring and loving mother to Michael.

On cross-examination by father’s attorney, mother testified her symptoms had lessened as a result of counseling she received in the last six months, which she attributed to Dr. Boccanfuso. She was able to be more open with Dr. Boccanfuso, as Cose would relay things to the social worker that were “twisted” or “misspoken,” and “not stated properly as I have told her.”

On redirect by County counsel, mother testified that Dr. Boccanfuso was not working with her on the case plan components, as it was not really “a set case plan, to my knowledge.” Mother, however, admitted she knew she had a case plan and knew its components. Mother had not signed a release for Dr. Boccanfuso to talk to the Agency and she did not intend to.

Mother had reviewed her case plan components with social workers at least monthly since the beginning of the case. Mother did not recall if the first social worker explained the case plan components during their monthly meetings or before the disposition hearing, but she remembered reviewing the case plan with the current social worker, Diane Lind, at least once a month and that they talked about the counseling component “[a]ll the time.” She claimed Lind told her the Agency had given her a diagnosis of MSbP. It was possible that Lind discussed with her the Agency’s concern that she had Michael on psychotropic medications. Another social worker raised with her the concern that she sought medical interventions for Michael, such as PICC lines, which were not necessary for his treatment. When asked what she did not understand about the reasons for Michael’s removal, mother replied, “All of it.”

Mother told Lind she did not understand why Michael was removed from her care because she did everything the doctors told her. Mother understood the Agency was “asking me to admit to something I did not do” and confirmed that was what she was having a hard time with. Mother disagreed that she sought medical interventions for Michael when he did not need them and that she did not always follow doctor’s orders. Mother remembered telling Lind she did not understand the requirement that she admit fault because she did not give Michael medications he did not need, medical professionals had witnessed Michael’s behavior, and she only gave him medications that were prescribed. When Michael’s counsel asked if mother believed “there are any services that should be on your case plan that aren’t,” mother responded, “No.”

The juvenile court sustained relevancy objections to mother’s attorney’s questions about mother’s interactions with Dr. Ng, whether mother asked Dr. Mora to prescribe the psychotropic medications, and whether mother acted against medical advice. The court explained to mother’s attorney this was not jurisdiction and the issue at the hearing was to determine the extent of mother’s progress on the case plan components during the current reporting period. Mother’s attorney responded that because mother was being asked to “fess up” to the jurisdiction allegations, which was a barrier to reunification, whether she had PCF and whether this was “even a necessary or reasonable component to her case plan” was “directly at issue.” The court replied that no one ever filed a section 388 petition objecting to the approved case plan, so whether mother liked the case plan or not, it was the case plan that had been in effect since disposition, and the current hearing was to ascertain the progress mother made on the current case plan. When mother’s attorney stated that mother was being asked to sign off on “this particular case plan,” the court disagreed, as the court approved the case plan at the disposition hearing and it had not been modified. The Agency rested its case.

Mother called social worker Lind. Lind testified her assessment that there remained a substantial risk of harm if Michael were returned to mother was based on mother’s refusal to acknowledge that any of the medical interventions were unnecessary or risky. Cose recommended that mother undergo a psychological evaluation, so Lind asked Dr. Trompetter to render an opinion about whether mother had a mental health disorder and, if so, the services he would recommend to help her reunify. Lind’s intention was to use Dr. Trompetter’s evaluation to “help create treatment goals” for mother. To that end, the case plan was updated to address mother’s anxiety and depression, as that was not known to the Agency, and to include a medication evaluation. Lind was not aware of any clinician or Agency personnel who diagnosed mother with MSbP or PCF, and Dr. Trompetter did not diagnose mother with either condition.

Lind had granted mother’s request for additional time with Michael because mother was consistently visiting Michael and the visits were going well. Mother had participated in services, but had not made substantive progress since she had never admitted any culpability for seeking out unnecessary medical services for Michael.

Lind reviewed the case plan with mother every month and if mother had questions, Lind answered them. Mother’s attorney asked if it would be helpful to add a definition of risky or unnecessary medical procedures to mother’s case plan. Lind did not know if it would help, as mother seemed to understand what risky and unnecessary treatment was. Instead, the problem was that mother did not believe she sought out such treatment. Lind denied that she ever told mother she was diagnosed with MSbP.

The maternal grandparents each testified about their care of Michael and his relationship with mother. Michael had been placed with them since August 2016. Michael was upset when visits with mother ended – he cried and wanted to go with mother. Mother visited Michael at their home on Tuesdays and Saturdays, and at the Agency on Thursdays.

Mother was recalled by her attorney. Mother planned to move two houses down from maternal grandparents, who would go with her to all doctors’ appointments. Asked if she had any personal realizations that would make her a more effective mother if Michael were returned, mother replied that through her discussions with Dr. Veerappa, she learned she took Michael to the emergency room too often. Mother identified two times when she could have waited to take Michael to the emergency room – once when he had a high temperature and a croupy cough, and another time when he fell and cut his lip.

When County counsel asked mother what other treatment she encouraged Michael to get that he did not need, mother responded that she “didn’t encourage Michael to get any treatments that he didn’t need.” Asked if she intended to comply with the services in her case plan, mother replied, “I guess my answer would be no, because I’m not going to admit to something that I did not do. I did not seek risky and unnecessary interventions for my son. I followed doctor’s advice.”

Mother’s attorney then attempted to ask various questions about Michael’s need for prior medical interventions. After relevancy objections were sustained, mother’s attorney asserted she was trying to rehabilitate mother by going into the records that bolstered mother’s assertion the procedures were not risky or unnecessary. The court responded, “You know what, that bell has already been rung. It might well be that she in retrospect wishes she would have handled the jurisdictional and dispositional phase differently than how it was handled, but that bell has rung.”

Michael’s court appointed special advocate (CASA) told the juvenile court that Michael missed mother and was upset when she left at the end of visits. The CASA did not believe mother would harm Michael in the future and maternal grandparents would not allow her to harm him. She recommended that Michael have overnight visits with mother.

In closing argument, mother’s attorney agreed the hearing was not about overturning “juris/dispo,” but about progress. She asserted that testimony had revealed there was a “real issue” with the case plan requirement that mother admit she sought risky and unnecessary medical interventions, and the “real barrier to reunification” was not mother’s lack of progress, but the wording of a general counseling plan that no one could explain adequately. Mother’s attorney argued mother had made substantive progress, as she had followed Dr. Trompetter’s recommendations by taking medication for anxiety and depression, and received counseling with Cose and Boccanfuso, she had completed parenting classes, and she had frequent, positive interactions with Michael.

Mother’s attorney asserted there were sufficient safeguards in place which, when coupled with the lack of any diagnosis that mother had a disorder that caused her to compulsively seek medical treatment, showed there was no reasonable risk of future harm to Michael. Mother’s attorney understood the court might want to retain jurisdiction to assess mother’s continued progress in therapy, but there was no reason to continue with limited supervised visitation.

After argument, the juvenile court found by a preponderance of the evidence that returning Michael to parental custody would create a substantial risk of detriment, as mother failed to acknowledge she had done anything wrong and therefore had not made substantive progress in resolving the issues that caused Michael to be removed from her care. The juvenile court found the Agency had complied with the case plan in making reasonable efforts and continued mother’s services.

The juvenile court modified the bar on mother attending Michael’s medical appointments to allow her to attend nonemergency appointments, but not alone, and she was not authorized to consent to medical treatment. The juvenile court advised mother she needed to start rearranging her thinking so she could reunify with Michael. The juvenile court believed mother knew the meaning of unnecessary and risky medical interventions, but she did not want to admit she participated in them, and unless changes were made, reunification was not going to happen. While in retrospect mother might wish she would have handled things differently, the court could not go backward, it could only go forward. The court approved and adopted the updated case plan and set a 12-month review hearing for August. The court also adopted the findings and orders contained in the social worker’s report, which included a finding that mother was actively involved in the development of the case plan.

Mother’s attorney asked for unlimited supervised visitation. The juvenile court rejected the request, but extended Saturday visits from three to five hours. The visits would continue to be supervised. The juvenile court agreed with County counsel that overnight or unsupervised visits could not occur until the Agency saw “some serious progress.”

Mother’s attorney then stated she had a section 388 petition before the court on modifying the reunification plan, and asked if the court was going to set it for a hearing. The court said “[t]hat was already acted on some time ago.” County counsel added “[t]hat was already denied.”

Mother’s June 2017 Section 388 Petition

On June 27, mother’s attorney filed a section 388 petition on mother’s behalf asking the juvenile court to change the April 25 “[o]rder for supervised visitation at the discretion of CPS.” As changed circumstances, the attorney asserted that mother was receiving counseling, taking medication, and showing progress in therapy, and Michael’s school schedule had changed such that he would be home with maternal grandparents during the summer. The attorney asked the juvenile court to “[m]ake a determination of progress based on therapists[’] recommendation and to allow visitation pursuant to opinion of therapist and CASA representative.”

Mother’s attorney alleged the requested order would be in Michael’s best interest because he was displaying behaviors that indicated he was unhappy being separated from her; he was older and was asking for more time with her, but he could not understand the situation; and he would benefit from more time with the family, including his infant brother, parents, and grandparents.

Attached to the declaration was a 12-page points and authorities. Mother’s attorney addressed the juvenile court’s decision at the six-month review hearing, asserting the hearing resulted in the court “impermissibly delegating discretion over [mother]’s visitation directly to Diane Lind, her [Agency] case-worker[,]” and denying her “direct plea for lifted restrictions on visitation” even after the CASA representative recommended visits be liberalized to unsupervised and overnight. The attorney claimed that while experts had formed opinions that mother did not present a danger to Michael, and the CASA opined it was in Michael’s best interest to lift visitation restrictions, the Agency continued to assert restrictive visitation, keeping the family apart as a punitive measure, and “as a means of pushing [mother] to confess to the allegations against her, though she maintains she is innocent of the findings which were made against her in the absence of an evidentiary hearing.”

Mother’s attorney explained that Michael would receive home tutoring during the summer until he began kindergarten at a new school in the fall, which meant that he would be spending most of his days at maternal grandparents’ home. The attorney asserted this would present an “untenable situation for Michael and his family,” as maternal grandparents would have to “arbitrarily divide the family” to facilitate mother’s relationship with her infant son, who was under guardianship with maternal grandparents, while complying with the Agency’s decision that mother could have only twice weekly visits with Michael. Moreover, mother and stepfather had moved into a home across the street from maternal grandparents, and they were concerned that their presence would negatively impact Michael due to the visitation restrictions.

Mother’s attorney argued lifting the visitation restrictions would not create a risk of harm to Michael, as there was no evidence returning Michael to mother would create a substantial risk of detriment. The attorney asserted the juvenile court abused its discretion in refusing to consider mother’s progress pursuant to Dr. Trompetter’s recommendations and excluding the opinions of mother’s experts that she did not pose a danger to Michael, and “resting solely on a confession mandate to show progress was not a product of logic and reason.” The attorney went on to reassert mother’s position the Agency had not proven she had any disorder, the Agency did not present any expert testimony that Michael was at risk of harm, and she was prevented from presenting evidence to challenge the jurisdictional findings.

As proposed orders, mother’s attorney asked the juvenile court to order that visitation restrictions be lifted or, in the alternative, that visitation be liberalized to community visits, unsupervised evening and weekend visits, and unlimited third-party supervised visitation, supervised by maternal grandparents.

Multiple documents were attached to the petition: (1) the August 2016 proposed case plan, which mother asserted showed she was told she would be reunified with Michael by February 2017, at the latest, and two pages from the accompanying social worker’s report; (2) the April 13 order denying mother’s section 388 petition; (3) a series of emails between mother and social worker Lind, which mother claimed showed she had “continuously asked for increased visitation” and complied with all counseling requirements, including additional therapy and treatment at her own expense, but she had been met with “multiple terse communications warning her and her parents that she could not be present with both of her children past the prescribed limited visitation window or her sons would be removed from her parents as well”; (4) an email from maternal grandfather stating Michael began to exhibit behavior problems beginning in the last week of April; (5) visitation reports from maternal grandparents dated from November 2016 to December 2016; (6) Dr. Trompetter’s January 2017 report; and (7) mother’s October 2016 certificate of completion for her 10-week positive parenting classes.

Mother also provided her declaration, in which she stated that at her regular appointment with Lind on May 31, she brought up Michael’s distress at being separated from her and asked why her pleas for more visits had been denied. Lind was “entirely unsympathetic” and told mother she was not extending visits because she had not seen a change in mother’s behavior, as mother had not admitted past allegations. Mother asked Lind why she had to admit to something that was not true in order to see her son. Mother believed her sessions with Cose had been positive and Cose’s notes showed progress.

An unsigned statement from mother’s sister-in-law and an unsigned letter from stepfather were also attached. The sister-in-law believed it was in the best interest of Michael and his brother to be reunified with mother and stepfather, while stepfather stated Michael had been acting out when visits with mother ended.

On June 29, the juvenile court denied the petition without a hearing. The juvenile court found the petition did not state new evidence or a change of circumstances, and wrote “After a four day contested trial the court increased mother’s visits with Michael. Court did not delegate visits to social worker other than discretion to allow third party supervised visits and to increase the duration of the visits. 388 appears to be more of an objection to the court’s ruling and not a showing of changed circumstances.”

DISCUSSION

Section 388 allows a parent with an interest in a dependent child to petition the juvenile court to change, modify, or set aside any previous order. (§ 388, subd. (a).) When it appears from the petition that the best interests of the child “may” be promoted by the proposed modifications, the court “shall” order a hearing on the petition. (§ 388, subd. (d); see In re Marilyn H. (1993) 5 Cal.4th 295, 309–310 (Marilyn H.) [“[t]he parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing”].) The court may summarily deny a section 388 petition without a hearing, however, if the petition fails to make the required prima facie showing. (Cal. Rules of Court, rule 5.570(d);[7] In re Anthony W. (2001) 87 Cal.App.4th 246, 250 (Anthony W.).)

“ ‘There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. . . .’ ” (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079 (C.J.W.).) A section 388 petition must be liberally construed in favor of its prima facie sufficiency (rule 5.570(a); Marilyn H., supra, 5 Cal.4th at p. 309), but conclusory allegations in a petition or its supporting declarations, without supporting evidence, are insufficient to make the required prima facie showing (Anthony W., supra, 87 Cal.App.4th at pp. 250–251).

“A ‘prima facie’ showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations . . . is credited.” (In re Edward H. (1996) 43 Cal.App.4th 584, 593 (Edward H.).) “Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing. . . .” (Anthony W., supra, 87 Cal.App.4th at p. 250.) Indeed, “[i]f a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted. In such circumstances, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality.” (Edward H., supra, at p. 593.)

The juvenile court is not limited, however, to considering only the facts asserted in the petition – rather, “the court may consider the entire factual and procedural history of the case.” (In re Justice P. (2004) 123 Cal.App.4th 181, 189; see also In re S.B. (2009) 46 Cal.4th 529, 536 [“[i]n a modification proceeding, all the relevant circumstances will be before the court”]; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451 (Jamika W.).) The burden is on the parent to establish both a relevant change in circumstance or new evidence, and that the requested modification would be in the child’s best interests. (In re S.R. (2009) 173 Cal.App.4th 864, 870.)

The weight of authority suggests we review the summary denial of a section 388 petition without an evidentiary hearing for abuse of discretion. (C.J.W., supra, 157 Cal.App.4th at p. 1079; In re Angel B. (2002) 97 Cal.App.4th 454, 462-464; Anthony W., supra, 87 Cal.App.4th at p. 250; In re Aljamie D. (2000) 84 Cal.App.4th 424, 431, 433 (Aljamie D.); Jamika W., supra, 54 Cal.App.4th at pp. 1450–1451.) Mother argues, however, that we should apply a de novo standard of review, as the issue when reviewing a summary denial of a section 388 petition is whether the petition stated a prima facie case for relief. (Marilyn H., supra, 5 Cal.4th at p. 310). She also contends that because procedural due process is at stake, de novo review of the petition, rather than review for abuse of discretion, is in order. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416.) We need not resolve the issue because, even applying the non-deferential de novo standard of review, we conclude the petition, in the context of the record, was insufficient to warrant a hearing.

Mother asserts the juvenile court erred in denying the petition because she established both changed circumstances and best interest. She claims that circumstances had changed for both she and Michael which required modification of the visitation order, namely that she was receiving counseling, taking medication, and showing progress in therapy; she and stepfather had moved into a rental home across from maternal grandparents’ home; Michael’s school schedule had changed so he was home with maternal grandparents; and Michael’s behaviors were worsening. She argues these changes constitute prima facie evidence of changed circumstances.

Even if mother achieved some nominal change, “[n]ot every change in circumstance can justify modification of a prior order. [Citation.] The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate.” (In re A.A. (2012) 203 Cal.App.4th 597, 612.) “The change in circumstances . . . must be of such significant nature that it requires a setting aside or modification of the challenged order.” (Ibid.)

Mother did not establish that such a change had occurred. In addressing mother’s request for unlimited supervised visitation at the six-month review hearing, the juvenile court told mother that visits would not be unlimited and agreed with the Agency that overnight or unsupervised visits were not appropriate until mother made serious progress. To show progress, mother was required to admit that she obtained unnecessary and risky medical interventions for Michael. But as mother’s petition made abundantly clear, mother had made absolutely no progress in this area. To the contrary, she continued to adamantly deny that she did anything wrong and questioned why she had to make such an admission in order to be able to see Michael. Until mother began to recognize her role in the juvenile court taking jurisdiction over Michael, she had made no progress and her circumstances had not changed.

Since mother failed to state a prima facie case of changed circumstances, the juvenile court did not err in denying her section 388 petition without a hearing.

DISPOSITION

The juvenile court’s June 29, 2017 order denying the June 27, 2017 section 388 petition is affirmed.

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ELLISON, J.†

WE CONCUR:

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LEVY, Acting P.J.

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DETJEN, J.