In re Alexis E.

Filed 5/3/07 In re Alexis E. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Alexis E. is the subject of a dependency that is entering its fourth year. Her mother, Jacqueline E. (hereinafter mother or appellant), has suffered from substance abuse difficulties which impaired her ability to provide for Alexis, and which was the proximate cause of the dependency. During the course of the dependency, appellant received approximately 22 months of reunification services. After a hearing that combined the six-month, the 12-month, and the 18-month reviews, the juvenile court decided to terminate further services, and not to order Alexis returned to her mothers custody. Appellant then sought to have the latter decision reconsidered, using the modification motion authorized by section 388 of the Welfare and Institutions Code.[1] The court denied the motion summarily, i.e., without conducting an evidentiary hearing. Mother appeals from both of these decisions, arguing that the courts decisions not to return custody of Alexis to her, and to terminate reunification services, are not supported by substantial evidence. We conclude that these arguments have no merit. We also conclude that the court did not err in its summary denial of mothers modification motion. In light of these conclusions, we affirm.

During the pendency of her appeals, mother brought another motion pursuant to section 388 to regain custody of Alexis. Again, the court summarily denied her motion. Having consolidated this appeal with the others, we reject mothers claim that her second motion was improperly denied without providing her an evidentiary hearing. We therefore also affirm the order denying mothers second motion.

BACKGROUND

The procedural history of this dependency is extensive, but the parties briefs establish that it is familiar to them, obviating the need to recount it here in detail. The pertinent highlights are as follows:

In March 2004, the San Francisco Department of Human Services (Department) filed a petition in which it was alleged that Alexis was at risk by reason of a myriad of psychological and drug-related problems that appellant was suffering. Alexis was removed from appellant and temporarily placed in the care of her maternal grandparents.

In July 2004 the court sustained four of the allegations of the petition. In October of 2004, the court found by clear and convincing evidence that there is a substantial danger to the physical safety . . . the physical and emotional well being of the child that precluded restoring custody to appellant ( 300, subd. (b)). The court declared Alexis to be a dependent child, and directed that the Department provide reunification services to appellant and Alexis. To assist appellant in overcoming her substance abuse problem, the court imposed specific reunification requirements, e.g., installation of a breathalyzer in her home,[2] enrollment in a supervised pain clinic, and regular drug testing. Visitation was allowed only if supervised.

In January 2005, and over appellants objection, the court granted the motion of Alexiss grandparents to be treated as de facto parents. In April and May 2005, the court issued restraining orders directing appellant to have no contact with her parents, Alexis, or the man with whom appellant had been living.

The six-month review was originally set for May 2005, but was continued to January 2006.[3] The review was contested, and produced three days of testimony and argument. The evidence adduced at the hearing may be summarized as follows:

Bridget Leach testified that she has been Alexiss case worker since November 2004. She prepared the status report and three addenda that were received in evidence at the hearing. Those materials showed that appellant flunked every drug test she took between November 2004 and May 2005, and that she failed to appear for a number of scheduled tests. In the status report (dated May 11, 2005), Ms. Leach noted that Reunification Services for this family have been provided for over one year; she recommended termination of services because there is continued concern regarding the safety and emotional well-being of Alexis should she be returned to the home.

Ms. Leach maintained that recommendation in the first addendum (dated August 29, 2005): The time frame is a significant issue as in September [appellants] case will have been open to the Department for 18 months. While [appellant] has been for the most part compliant with the reunification requirements, this worker also feels that [appellant] is still not able to fully acknowledge her role or accept responsibility for why Alexis was originally removed from [appellants] care. This worker believes that this puts Alexis at a high level of risk that these circumstances may occur once again should Alexis return home. This worker believes that Alexis is in need of a stable environment that can address her needs on a regular basis. This worker has concerns about [appellants] ability to parent and protect, and appropriately address and meet Alexiss needs on an on-going basis based upon her pattern of instability, her own mental health needs, her history of chaotic relationships, and aggressiveness and instability in interpersonal relationships. This worker believes . . . that this history of chaotic behavior and pattern instability has impacted Alexis and possibly led to some emotional and boundary issues. [Appellants] behavior including her continual resistance, denial and hostility has made it challenging for workers whom have worked with the family to provide reunification services to [appellant] and follow up on her level of involvement and progress in services.

Ms. Leachs recommendation did not change in the second addendum (dated November 16, 2005): this worker believes it would be irresponsible at this time to [recommend] reunification, particularly as Alexis has recently exhibited a desire to not even visit her mother at times. This worker feels that the most appropriate recommendation at this time is termination of services.

In her third and final addendum (dated January 23, 2006), Ms. Leach reported that appellant had unilaterally halted drug testing about June 2005. She also noted that appellant had failed to provide a considerable amount of the required paperwork to demonstrate compliance with her case plan. Ms. Leachs ultimate conclusion was unchanged:

It is this workers assessment that the most appropriate recommendation at this time is termination of reunification services. This recommendation is based upon the time limits on this case (as [appellant] has received about 22 months of services), and the concern that any recommendation of a change of Alexiss current placement or reunification with her mother at this time would be irresponsible due to a number of sources of information. Dr. Weiss who performed the psychological evaluation of Alexis reported that due to Alexiss high level of anxiety she is in need of consistency and stability. Dr. Fragner, Alexiss therapist has reported that Alexis can become easily overwhelmed and . . . has documented Alexiss symptoms of anxiety, depression, poor impulse control, concern regarding oppositional problems . . . .

Additionally, in a consultation with Mental Health Consultant Alicia Lieberman, . . . Dr. Lieberman expressed concern that while [appellant] appears able to perform and/or maintain when she has outside pressures, this level of stability does not appear sustainable. Dr. Lieberman expressed concern regarding the great deal of instability, unpredictability, and aggressive behavior demonstrated by [appellant] during the time the case has been open with the Department. The Court and the Department have also been witness to the ongoing and cyclical disruptions in visitation around Alexis and with service providers who attempt to set limits with [appellant].

. . . Dr. Lieberman expressed concern regarding the level of [appellants] behavior as too unpredictable, resulting in her getting into trouble with the law, having restraining and/or stay-away orders at times, and having associations with people who might be unstable. Dr. Lieberman also discussed the detriment that reunification would have on Alexis, and reported that this kind of instability can result in . . . addictive . . . aggressive . . . and threatening behavior towards others, as well as put Alexis at risk for psychological and emotional damage including anxiety, depression, substance abuse, interpersonal problems, exposure to traumatic stress, and repeated loss of relationships.

. . . While some of these emotional and behavioral symptoms have decreased significantly with more structured visitation, stability in Alexiss placement, and ongoing individual therapy with Dr. Robin Fragner, this worker believes that reunification of Alexis with her mother would trigger these symptoms to further increase and would be extremely detrimental to Alexis.

In her testimony at the review hearing, Ms. Leach reiterated the reasoning and particulars of her written reports and recommendations. She testified that appellant had not executed all of the requested releases for her medical information. Ms. Leach further testified that appellant does have an apartment and regular employment, which are indicator[s] for current stability and the beginning of a stable environment. In her opinion, appellant loves Alexis and has attempted to visit her regularly.

Ms. Leach testified on cross-examination that she has concerns, based on hearsay reports, that appellant had also been abusing alcohol. Ms. Leach also believes that appellants personal relationships with a number of different individuals has had a negative impact on Alexis. An example of this was an incident with Ms. Leachs supervisor, witnessed by Alexis, that threatened to degenerate into a blow-up. There had been a number of such disruptions during . . . my work on the case.

Ms. Leach testified that Alexis has also been impacted by appellants history of cutting off family members and friends. The fact that appellant had moved five times during the dependencyincluding relocations to Miami and Los Angeles after Alexis had been detainedpoints to a pattern of inconsistency and instability.

Dr. Kenneth Maybury testified that he has been treating appellant for neuraglia, and other ailments, since 2003. Neuralgia can be exacerbated by stress from external events. Neuralgia can be extremely painful, and Dr. Maybury had prescribed increases of appellants medications. He testified he had no evidence that appellant was abusing the painkillers he prescribed.

Dr. Maybury further testified that appellants neuralgia drove her to consult with pain management specialists.[4] One of those specialists, Dr. Bouvier, has been treating appellant since October 2005, and recommended additional painkillers for appellant. According to Dr. Maybury, a pain specialist might prescribe medications that the primary physician might not know about, and vice versa. Appellant was prescribed Percoset and oxycodone; both have a high risk of dependence.[5] On the other hand, there is really no maximum dose that a patient can take, as long as they can tolerate it.

Appellant testified that in 2003 she moved with Alexis from Floridatheir home for the first seven years of Alexiss lifeto California because appellant feared that my ex-husband would be coming out of his incarceration and would be trying to take my daughter away from me. Appellant was diagnosed with trigeminal neuralgia in 1999, and has been taking pain medication in basically the same dosages ever since. After she moved to California appellant was committed by her mother for observation under the Lanterman-Petris-Short Act ( 5150). One of the medications she was given by a psychiatrist started her drinking, which led to the incident that started the dependency.

Appellant testified that she became homeless because her mother had taken all my credit cards, money, furniture, anything that belonged to me, car included. That was what had forced her to move back to Florida, and then to Los Angeles, in attempts to gain employment. She returned to the Bay Area on advice of counsel because otherwise I would not be able to get my daughter back. Appellant has been employed for seven months, and can think of no reason she should not regain custody of Alexis. I have done everything under the sun that has been asked of me.

Appellant testified that although the pain from her neuralgia is excruciating, she is not abusing her pain medication. She stopped going for drug tests because she and the testing center were not receiving any phone calls from the Department. Appellant admitted she signed information releases only for her current physicians because she does not want her mother to know of all the doctors who treated her. Appellants mother took it upon herself to call Doctor Maybury and tell him . . . that I was a drug addict and alcoholic. She also did that to every single doctor that she found in my rolodex.

Dr. Patricia Weiss, Alexiss psychologist since August 2005, testified for Alexis as follows: She met with, and talked to, appellant and appellants mother in the course of conducting a neuropsychological evaluation of Alexis.[6] Appellant spoke disparagingly about her mother, but the mother did not make negative comments about appellant. Alexis and appellant obviously love each other. Dr. Weiss also testified that Alexis seemed close to the grandmother.

Dr. Weiss further testified that she met several times with Alexis, and concluded that she has an anxiety disorder. Children with anxiety disorders (who commonly are very intelligent)[7] tend to . . . be more vulnerable . . . to both external and internal stimulae. They are especially sensitive to stress, and have a particular need for stability and structure in their lives. According to Dr. Weiss, if that need is not met, the risk is that Alexis would psychologically kind of fall apart.

Dr. Katherine Bowman, a psychologist, testified that she has been treating appellant since November 2004 for chronic pain management, and had no indication that appellant abused either alcohol or her pain medication.

After hearing extensive argument, the court announced its ruling:

[A]t this point the court is in agreement with the Department and not with the mother. I find her to have made her life difficult. . . . She has gotten herself into a position where she has fought over the things that I am not sure she needed to fight over. For instance, all of the evidence presented about employment, et cetera, could have easily and should have easily been handed over. And that interrupted her relationship in a way that really didnt need to be. That is just one simple example.

The court was interested and will continue to be interested in her level of drug usage as compared to her prescribed level. The court has never been able to ascertain any kind of comparison or variation of that because the mother has refused to cooperate in any of those efforts or any orders for reunification requirements set by the court.

For whatever reason, she has maintained that position consistently so that the drug testing, even the nominal drug testing she engaged in with her particular situation, meaning the level of prescribed drugs that she has access to, the findings were really not of any use to the court because the court could not determine, or have the experts to determine whether she was complying with the medical regime set out by her doctor, or not complying; could not tell whether she has moved from use to abuse.

All of that information was within her control. And in her control with the releases to assist the Department to tell the court those matters that she refused or wasnt able to comply with . . . .

The Court in addition has been concerned by the level of animosity she engages in with service providers. . . . [S]he is reported to be and I think she is a very successful salesperson, so one has to assume that she has the ability to engage in positive interpersonal relationships, or you wouldnt be successful in that realm. For whatever reason, she has fought with services providers over and over and over.

She has gone from one doctor to another with little or no coordination, partially her fault, certainly partially, apparently, the medical establishments fault, if you will. But there is no consistency in what doctors she sees or why she drops one and goes to another, as far as the court can tell.

Her primary does seem to be Doctor Maybury. Is he completely informed? No. I dont think he is. I think that that assessment of use versus abuse would be necessary for the court in the future. It could have been done, it wasnt done. It certainly was required of her under the reunification requirements, and she chose not to engage in those.

The court then made the appropriate findings: Return of this child to a parent would create substantial risk of detriment to the safety, protection, physical or emotional well-being of the child. The facts upon which the decision that return of the child would be detrimental include but are not necessarily limited to the courts initial remarks in this process, and also the evidence put before the court in regards to the childs present condition and functional level, and the mothers present functional level.

[] . . . [] Reunification services . . . are terminated based on the fact that [more than] 18 months from detention has elapsed. [] The Court finds reasonable efforts have been provided . . . which were designed to aid the parents to overcome the problems which led to the initial removal . . . . [] . . . The Agency has complied with the case plan by making reasonable efforts to return the child to a safe home, and to complete whatever steps as necessary to finalize the permanent placement of the child.

The extent of progress made . . . toward alleviating or mitigating the causes necessitating placement have been . . . minimal by the mother. . . .

[] . . . [] Dependency status of the child is renewed. The child is to remain in the care and custody of the Department . . . for placement, planning and supervision. The Court approves the . . . placement of the minor with the maternal grandmother . . . . [] The Court has adopted as the permanent plan foster care with a goal of return to the mother . . . and I find this to be the appropriate permanent plan.

Because this decision was made by a commissioner, appellant sought rehearing by a superior court judge. Rehearing was denied, and appellant was advised that a motion pursuant to section 388 was the preferred method for asking the commissioner to change an order made at the review hearing. Mother then filed a timely notice of appeal from the commissioners order at the review hearing (A113220).

Mother also filed the suggested section 388 motion. The object of the motion was modification of the commissioners decision not to return custody of Alexis to appellant. The basis for the motion was stated as follows: New evidence proves that the mother could never have complied with the court order that required her to submit to drug tests in order to compare her levels of medication to the dosages prescribed. See Attachment A & B.

Attachment A was a letter from Dr. Frank Fisher, expressing his opinion that it was not feasible to [set] up a program for the testing of blood levels of opioid analgesics in a patient suffering from chronic intractable pain, for the purpose of determining whether or not she has been taking exactly the dosage of these medications prescribed. Attachment B was a letter from Dr. Maybury, who stated: [I]n order for [appellant] to have custody of her child, she has been asked by the court to provide proof by blood testing that she is taking the pain medicines as prescribed. This type of test does not exist.

The motion was the subject of a brief hearing held on March 23, 2006. The commissioner heard argument only, and denied mothers request to hold an evidentiary hearing on her motion. The Department opposed both the request for the full hearing, and the motion on its merits. The commissioner denied both the request and the motion, on the grounds that the motion did not either state new evidence or a change of circumstances or show how it will be in the best interest of the child.

The commissioner told the parties at the hearing: I think there is an outstanding issue of monitoring how much drugs the mother is taking, and I continue to believe that is an outstanding issue. And if you all want to negotiate how that is going to be monitored and present the court with a plan, Im fine with that. Whether that includes, you know, I think the process of that is open to you, obviously, is one of tracking the amount of drugs that she takes by making the inquiry that is allowed by investigators to make the statement as to her medication use, et cetera.

I mean that might be part of it. Using the Social Security numbers that she uses to do that. You know. My understanding [is] that she uses her own Social Security number and on occasion she uses her daughters. So I think if you would check on those things that would be a starting point. You know. But the court remains concerned about the amount of drugs she is consuming and her resistance to anything in relationship to supervising that or in relationship to having another doctorrepeatedly, doctors have said to her, You are addicted, and she doesnt want to deal with that. Thats fine. But I think we need to have some sense of how much drugs were talking about and what the impact of that is.

Mother filed a timely notice of appeal from the order denying her motion (A113862).

We granted appellants motion to consolidate appeals A113220 and A113862.

While the records and briefs for these appeals were being prepared, appellant in June 2006 presented another motion pursuant to section 388.[8] Once again she sought return of Alexis to her custody, this time on the ground that she has new evidence of her compliance with her medication prescriptions. In response to the question on the Judicial Council form for the motion Why would the changes you are requesting be better for the child? appellant stated: Alexis has a diagnosed moderate to severe anxiety disorder which requires consistency. Alexis can only begin to heal from this infliction by going home to her mother and receiving the unconditional love, support and consistency that only a mother can truly provide.

Appellants motion had several attachments. One was the same letter by Dr. Maybury that was attached to the previous motion. Another attachment was a two‑year-old declaration by Dr. Maybury dealing with his treatment of appellant through March 2004. The third attachment was a letter from appellants San Francisco pharmacist to appellants attorney in which the pharmacist states that it would require a criminal effort of great proportions to get a prescription for a controlled substance filled at more than one pharmacy. The pharmacist also stated his opinion that To the best of our knowledge, she [appellant] has always followed her physicians orders carefully and not used the medications inappropriately. [] . . . [Appellant] manages her pain very well, both with prescription and non-prescription medications, as well as other alternative therapies. It is my opinion that she does not abuse these medications in any way.

The fourth and final attachment was a declaration by appellant. In it, she described how with her current regimen of prescription medication and a number of alternative therapies, she was successfully managing my pain. She stated that No such test exists that would satisfy the courts desire to see drug screens that could verify that I was ingesting the correct amount of medication on a daily basis. Appellant further stated that had completed her reunification plan. Ms. Leach was replaced as the case worker around February 2006, but the new case worker ignored appellants numerous attempts to contact her until just before this court hearing. Moreover, appellants parental authority is [being] continually undermined by the visitation supervisor/therapist. Appellant further stated that Alexis has been deeply scarred by the dependency, and that the best way to relieve her anxieties is for her to come home so that we can work together to help her recover from this tremendous ordeal.

On June 14, 2006, the court again conducted a brief hearing at which it heard only argument, including the Departments opposition, and then denied the motion. Mother filed a timely notice of appeal from this denial. On our motion, we ordered this appeal (A115955) consolidated with the others.

DISCUSSION

I

Appellants initial contention is that the record does not contain substantial evidence to support the juvenile courts finding that returning custody of Alexis to appellant would pose a substantial risk of harm to Alexis. Appellant subdivides this general contention into two more precise arguments. She first argues that she complied with all case plan requirements and made substantial progress in ameliorating the conditions that had necessitated continued removal. Second, appellant argues that Alexiss anxiety condition and conflicted loyalties are not a basis for continuing to remove her from appellants care.

Although appellant frames her general contention as if she is challenging only a single finding, she is plainly intending to attack on a broader scale. She is going after the juvenile courts determination that Return of this child to a parent would create substantial risk of detriment to the safety, protection, physical or emotional well-being of the child. Her first subargument targets the finding that The extent of progress made . . . toward alleviating or mitigating the causes necessitating placement have been . . . minimal by the mother. Finally, her second subargument appears to challenge one of the cited reasons for the detriment finding, i.e., the evidence put before the court in regards to the childs present condition and functional level, and the mothers present functional level.

Appellants general contention and argument are to be reviewed according to well‑established principles. The issue of the sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals. If there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile courts order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.] (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) [F]act-specific arguments which ignore the substantial evidence standard of review are not appropriate. . . . [O]ur sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile courts finding. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762)

Appellants first argument is fact-specific. The evidence is exhaustively reexamined in her brief to demonstrate that appellant complied with her case plan. The logic of this appellate strategy is not immediately apparent. Appellant is implicitly asking us to reweigh evidence; as just noted, that is not our function. In addition, the obvious target for the argument about appellants case plan compliance would be the courts finding that her progress was only minimal, but it goes unmentioned in appellants brief. Moreover, even were appellant to prevail, it might be a hollow triumph: overturning that finding would not, by itself, require reversal unless the detriment finding is also overturned. ( 366.22, subd. (a); In re Dustin R. (1997) 54 Cal.App.4th 1131, 1139-1143 [simply complying with the reunification plan . . . is not determinative].)

However, just as she is ending her argument, appellant makes a decisive shift in its emphasis: In the instant case, as in David B. [v. Superior Court (2004) 123 Cal.App.4th 768], a reasonable case plan and services were initially developed, but fundamental flaws and inadequacies developed or became apparent in those case plans and services over time, which the social worker knew about but did not take adequate steps to address, as a result of which, despite complying with services and making substantial progress, the parent was not in a position to have the child returned at the eighteen-month review. . . . In the instant case, the social workers knew that the ordinary drug testing was not providing the information which the court needed to know, but did not find out how to provide a kind of testing that would produce the information the court wanted. The social worker also knew she was not getting from appellants doctors the information she needed in order to determine whether appellant was achieving one of her primary case plan objectives, but did nothing to correct that problem, simply blaming appellant for it at the end. What we said in In re Dustin R., supra, 54 Cal.App.4th 1131, 1141, is equally applicable here: Thus, she [the appellant mother] asserts she was essentially sandbagged with new requirements at the 18-month review hearing.

Initially, we note that appellant did not complain at the hearing about any deficiencies in either the particulars of her case plan or the details of its implementation. Her failure to raise this issue in the juvenile court precludes her from presenting the issue to the this court. (E.g., In re Elijah V. (2005) 127 Cal.App.4th 576, 582; In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886.)

Secondly, it is simply incorrect for appellant to imply that the issue of her recalcitrance on her medical information releases was a rabbit that Ms. Leach pulled out of a hat at the hearing. On the contrary, it was a constant refrain in Ms. Leachs reports to the court. Moreover, this issue was clearly tied to appellants testing. Thus, in her third and final addendum to her status review report, Ms. Leach told the court: On 7/8/05 [appellant] refused to sign a release allowing either Dr. Maybury or Dr. Lee from UCSF Pain Management Center to read the result of her toxicology screens to ensure that they were at the appropriate levels for her prescriptions. (Italics added.) (See fn, 10, post.) Finally, appellants case plan clearly provided that appellant is to comply with random drug screens, and for the drug screens to provide the levels of each drug detected.[9] (Italics added.)

Third, and most fundamentally, appellant refuses to assume any responsibility for the court not getting the information it wanted. She argues: True, had appellant signed releases authorizing her doctors to read her urine screens, perhaps they would have been able to, perhaps they would even have been able to determine from them what the court wanted to know, or been able to help the social worker find other ways. We do not know. But to claim that, by not signing those releases appellant prevented the social worker from being able to solve this problem, is unsupported and unjustified.

On the contrary, it is entirely justified. Appellant is not a disinterested party. It was, after all, her admitted substance abuse issues that initiated the dependency. A dependents parent is expected to cooperate with the social worker; the system cannot be expected to work if the parent refuses to participate in overcoming the causes of the dependency. (In re Raymond R. (1994) 26 Cal.App.4th 436, 441; In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220; In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.) It was therefore eminently appropriate for the court to hold appellant accountable for her grudging and selective cooperation with the Department, [10] for her resistance to releasing her medical information, and for her decision to stop appearing for the drug tests she had a history of failing.

Appellants second argument is nothing more than an attempt to defeat the courts detriment finding by reframing the scope of the inquiry. Instead of recognizing that the detriment finding can rest on anything in the record, appellant tries to narrow it to Alexiss anxiety condition and conflicted loyalties between her mother (appellant) and her grandmother.

Social worker reports in dependency proceedings are legally admissible evidence, despite the fact that a report is itself hearsay and may contain multiple levels of hearsay. (See 358, subd. (b); In re Cindy L. (1997) 17 Cal.4th 15, 21-31; Cal. Rules of Court, rule 5.684(c).) The reports and addenda received in evidencenot incidentally, without objection from appellantare by themselves more than ample to sustain the challenged findings.

They document appellants long-standing reluctance to acknowledge any responsibility as the source of the problems. They also show appellants persistent hostility and refusal to cooperate with Department personnel in overcoming those problems. And they also demonstrate appellants history of rebarbative relationships with relatives and friends. Ms. Leachs writings also describe the progress made by Alexis in the placement with her grandparents, whom the court had already recognized as her de facto parents. And fears that appellant was adding alcohol to her problems would only compound the courts reluctance to restore Alexis to her. Lastly, the court would hardly be likely to overlook the fact that within the last years Alexis had obtained a restraining order against appellant after appellant talked about getting a gun and killing her mother, Alexiss grandmother and de facto parent.

The court also had evidence that these factors constituted a substantial risk of detriment should Alexis be returned to appellants custody. This was not just the opinion of Ms. Leach, but also the conclusion of Alexiss therapist, who agreed with Leach that recommending reunification at this time would be irresponsible. Two other therapists to Alexis believed that changing the status quo would be psychologically damaging to her.

At the combined review hearing, the court was under a statutory mandate to order the return of the child to the physical custody of . . . her parent . . . unless the court finds, by a preponderance of the evidence that the return of the child to . . . her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. . . . In making its determination, the court shall review and consider the social workers report and recommendations . . . [and] shall consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which . . . she availed . . . herself to services . . . . ( 366.21, subd. (e), 366.22, subd. (a).)

It is undisputed that appellant received more than the 18 months of reunification services allowed by section 361.5. During that period, appellant made only minimal progress in complying with her case plan provision. Even if it is conceded that Alexis is not unnaturally conflicted with mixed loyalties to appellant, her mother, and her grandmother, who is now her foster parent and primary caregiver, that psychological division is a direct consequence of appellants problems that led to the dependency, and thus to Alexis being separated from appellant and placed with the grandmother in the first place. (See In re Dustin R., supra, 54 Cal.App.4th 1131, 1140-1141; In re Joseph B. (1996) 42 Cal.App.4th 890, 903.)

Appellant strives to demonstrate that, concerning Alexiss split loyalties, the court may have been inadvertently lured into error by the written report from Dr. Weiss, because Dr. Weiss may not have understood the nature of a dependency, and thus may not have grasped what the legal issues were, or had any idea what kind of standards applied to decisions like whether to continue to remove a child from the parents care, whether to terminate services for reunification, or whether and if so under what circumstances parental visitation should occur. If the doctors written report was flawed, appellant should not have allowed it in evidence without objection. Moreover, any discrepancy or misunderstanding could have been cured when appellant cross‑examined Dr. Weiss at the hearing. Finally, appellants counsel did not mention the matter in closing argument at the hearing. There is consequently no basis for finding reversible error. (Evid. Code,  353, subd. (a); In re Elijah H., supra, 127 Cal.App.4th 576, 582.)

In light of the foregoing, we conclude that the record reflects more than ample evidence to support the finding of the juvenile court that returning Alexis to appellants custody would be detrimental to Alexiss well-being.

II

Notwithstanding the literal language of section 361.5, courts have allowed a parent to receive more than 18 months of reunification services; the reasoning is that by continuing the review hearing as authorized by section 352, the court can allow additional services to make good patent inadequacies of either the case plan or the services already offered. (E.g., Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1465-1466; In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1067-1068.)

Appellant appears to argue that she was entitled to this exception. She argues: In the instant case, there is no evidence that the court considered whether an extension of time for reunification efforts was warranted. The social workers reports did not raise the issue or suggest an extension of the reunification period as an option, even though the Department wanted to give the mother more time to reunify. Although it was alluded to in minors counsels closing argumentwhen she suggested that the court could order long-term placement and the Department . . . continue to provide services, or the court could make an exception and give them more timethe issue was not discussed and the court did not mention it in its decision. . . . [T]he Department suggested the court terminate reunification services and appellant keep doing what she is doing because what she is doing is great, and come back to the court with a [section] 388 [petition].  There are several reasons this argument is not persuasive.

First, as appellant obliquely concedes, she did not ask for a continuance, and the juvenile court cannot be held to have abused a discretion it was never asked to exercise. (E.g., Helfand v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 17; In re Providian Credit Card Cases(2002) 96 Cal.App.4th 292, 309.) Second, although the court had discretion to order the hearing continued on its own motion (Renee J. v. Superior Court, supra, 96 Cal.App.4th 1450, 1466), it was clearly not obligated to do so.

Third, the court almost certainly would have rejected the continuance because it would have not accepted the predicate for such a request. In light of its express findings that appellant had been offered reasonable services by the Department, there appears no likelihood that the court would have ruled that a continuance was necessary because those services were inadequate, or that the case plan those services were intended to implement was deficient. Fourth, there is absolutely nothing to indicate that either appellant, or the court, or any other interested person, had the least inclination to have the hearing delayed, and the dependency extended even further. Section 352 expressly provides that no continuance shall be granted that is contrary to the interest of the minor. ( 352, subd. (a).) Nothing in the record, or in appellants brief, suggests that the court would have seen Alexiss need for stability as helped by yet another delay in holding the review hearing.

For each and all of these reasons, we conclude that reversal is not required. Stated another way, we are satisfied that substantial evidence supports the courts findings concerning the reasonableness of the Departments case plan and its reunification services to implement the plan that were offered to appellant.

III

Section 388 provides in pertinent part: (a) Any parent . . . 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 . . . for a hearing to change, modify, or set aside any order of court previously made . . . . The petition shall be verified and . . . shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order . . . . [] . . . []  (c) If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . .

The conditional language of section 388[, subdivision (c)] makes clear that the hearing is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806-807; see Cal. Rules of Court, rule 5.570, subds. (d) & (e).)

At the dispositional hearing in October 2004, the court ordered that appellant is going to be required to participate in ongoing urine screening as part of the pain management. [] If, for some reason, those urine screens indicate a drug problem, meaning use of excessive drugs beyond what is prescribed, then the court will consider . . . what, if any, action should be taken. [] . . . [] The drug screens . . . theyre pretty standard . . . . [] . . . They can tell the amount of ingestion and they can be compared, because Ive read reports; so I know that thats true.

As previously mentioned, the basis for appellants motion in March 2006 was that the court had in effect imposed a condition that was scientifically impossible to satisfy. Appellant stated that the basis for her motion was that New evidence proves that the mother could never have complied with the court order that required her to submit to drug tests in order to compare her levels of medication to the dosages prescribed. Supporting evidence was in the form of unsworn letters from Dr. Maybury and Dr. Fisher.

Dr. Mayburys letter was very brief, two short paragraphs. The first paragraph merely recites his connection and knowledge of appellants situation. As relevant here, the second paragraph reads: In order for her to have custody of her child, she has been asked by the court to provide proof by blood testing that she is taking the pain medications as prescribed. This type of test does not exist.

Dr. Fisher spent one paragraph of his letter demonstrating that testing of blood levels of opioid analgesics was not feasible as a practical matter because metabolic rates vary from one individual to another. The remaining eight paragraphs of the letter are devoted to establishing that such a testing regime would not be productive as a medical matter.

Appellant contends that her initial modification motion had sufficient substance to require a full hearing, and thus the juvenile court erred in denying it summarily (that is, after listening to argument but without holding an evidentiary hearing) on the ground that neither a change of circumstance or a best interest argument has been made. Whether appellants showing was sufficient to require an evidentiary hearing was a matter committed to the broad discretion of the juvenile court, whose decision may be overturned only if it amounts to a manifest abuse of that discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; Inre Stephanie M. (1994) 7 Cal.4th 295, 318-319.)[11] Nothing like abuse is shown here.

Dr. Mayburys letter is so terse and conclusory that it is devoid of value. Dr. Fishers letter suffers from a different but no less crippling disabilitythe doctor says there is no blood test, but the court had imposed urine testing. Thus, to accept that there is no feasible blood test does not establish that urine testing is impossible.

In addition, the information would hardly qualify as new. The court had made itself clear when it imposed the testing requirement in October 2004, but appellant did not challenge the feasibility of the requirement until 15 months later. Moreover, appellant never raised the subject at the review hearing. This point is particularly sharp because Dr. Maybury testified at that hearing, as a witness for appellant, yet he was never questioned by her as to whether the court had imposed a requirement that could not be satisfied.

Finally, the court was obliged to look beyond appellants situation and pay greater attention to Alexis. Although a motion pursuant to section 388 for a change of custody may be made at any time after the child has been declared a dependent, when, as here, it is made after reunification services have been terminated, the childs need for stability is now the paramount consideration. (In re Stephanie M., supra, 7 Cal.4th 295, 317.)

 When custody continues over a significant period, the childs 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.  (Ibid.; accord, In re Jasmon O., supra, 8 Cal.4th 398, 418-421.)

All appellant presented on the issue of Alexiss best interest was this bare assertion: Alexis [E.] continues to suffer emotionally by being separated from her mother. She has developed an anxiety disorder because she has been torn apart from her mother and can only visit with her for less than one hour per week under the supervision of a family therapist. Less than six weeks before, the court had concluded that Alexis should not be returned to appellants custody but should remain in foster care with her grandmother and de facto parent. We have already sustained that finding (see part I, ante). In light of the evidence it had recently heard, which included testimony from Dr. Weiss that Alexiss need for stability was particularly acute as well as the hearsay opinion of Dr. Lieberman to the same effect, the court was entitled to disregard appellants tendentious and conclusory statement.

For all of the above reasons, we conclude that the juvenile court did not abuse its discretion in denying appellants first modification motion.

IV

The summary denial of appellants second motion to change custody pursuant to section 388 is the subject of her appeal in A115955. She contends: The juvenile court erred in denying a hearing on Appellants section 388 petition because the petition made a prima facie showing of new evidence and circumstances that might make it in the best interests of Alexis to be returned to appellants care. We conclude that the denial of appellants second motion was not an abuse of discretion.

Appellant stated in her motion that she has new evidence of her compliance with her medication prescriptions, but her showing was, if anything, even weaker than that advanced in support of her first motion. As noted in part III, ante, Dr. Mayburys letter of February 2006 is too conclusory to have much weight. In addition, because it had already been seen by the court, it obviously did not qualify as new evidence. The doctors declaration of March 2004 is too stale to be relevant on the concerns expressed by the court at the January 2006 review hearing, after the court had heard Dr. Maybury testify about appellants more current treatment.

Nor does the pharmacists letter swing the balance. On the issue of how well appellant was managing her pain, and thus presumably was without need to abuse her prescription medication, the pharmacist was simply expressing a personal opinion based on a personal impression, i.e., the same basis which underlay Dr. Mayburys testimony to the same effect which the juvenile court had already heard at the review hearing. Moreover, the remainder of the pharmacists letter is devoted to the matter of how hard it would be for a person to have the same prescription filled at more than one pharmacy, which did nothing to resolve the courts mind on the existence of scientific drug testing. And it does nothing to put to rest the concerns of the social worker and the court that appellants efforts to control access to all of her medical history were impeding a definitive answer to whether appellant was not exceeding her prescribed medications.

The only other material submitted in support of appellants motion was appellants declaration. On the prescription issue, appellant continues to display the same insistence on deciding what information the court and the Department will get. In reviewing her compliance with her case plan requirement that she sign releases for information; appellant states: I have signed releases of information which were sufficient for the [Department] to assess my progress and my medical condition. (Italics added.) Appellant is still unwilling or unable to accept the fact that she does not make the rules.[12]

With respect to the issue of Alexiss best interests, appellant is undoubtedly heartfelt in her desire to be reunited with her daughter. She states in her declaration: I want to work with Alexis to help ease her of [her] anxiety. I believe the best way to do this is for her to come home so that we can work together to help her recover from this tremendous ordeal. . . . I want my child to heal, not to be further divided. Alexis needs to come home. Now. The sincerity of appellants maternal concern is beyond question.

But hers is a lay opinion, however natural its sentiments. Within the context of a dependency, the juvenile court must hear the expertise of the Department and other professionals. Of course, the court is not expected to rubberstamp those opinions or accept them uncritically. Here, there is no indication that the court abdicated that responsibility. However, it did hear, and find credible, the opinion of Ms. Leach and others (i.e., Dr. Lieberman and Dr. Weiss) that returning Alexiss custody to appellant was fraught with peril to the childs well-being. As a credibility determination, it is not subject to revision by a reviewing court. (See In re L.Y.L., supra, 101 Cal.App.4th 942, 947.)[13] The court made a second credibility determination of appellants declaration. Because it likewise cannot be overturned on appeal, it does not qualify as an abuse of the courts discretion.

It bears emphasis that the drug-testing issue figured prominently in both of appellants motions. Yet it does not appear that appellant ever attempted to achieve a meeting of the minds with the court on this point. The court was under the impression that the tests it contemplated were pretty standard . . . [] Ive read reports. When it denied appellants first motion, the court told her: I think there is an outstanding issue of monitoring how much drugs [sic] the mother is taking and I continue to believe that it is an outstanding issue. And if you all want to negotiate how that is going to be monitored and present the court with a plan, then Im fine with that. Rather than ask the court to identify those reports, appellant simply, and repeatedly, told the court it was wrong, that there were no such tests. Nor is there any indication that appellant ever attempted to work out a testing plan with the Department that would satisfy the court. These were hardly fruitful approaches for a person who, according to Ms. Leach, flunked every test she bothered to take, the person the court characterized as having made her [own] life difficult and who refused to cooperate in alleviating its concerns.

Finally, even if appellants position about the tests was sound, that would not compel us to overturn the juvenile courts orders. As previously shown, the determinative concern was what was best for Alexis. Even if appellant satisfied the court about her medications, there would still remain the finding that it was not yet in the childs best interests to be reunited with appellant.

In light of the foregoing, we find no abuse of discretion in the juvenile courts summary denial of appellants second motion. (In re Jasmon O., supra, 8 Cal.4th 398, 415; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)

DISPOSITION

The orders are affirmed.

_________________________

Richman, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Lambden, J.

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[1] Statutory references are to this code unless otherwise indicated.

[2] A month later, in November 2004, the court ordered appellant to wear an electronic bracelet for 45 days to monitor her alcohol consumption. There were no violations.

[3] Due to the passage of time, the review was treated as a combined six‑month, 12‑month, and 18‑month review.

[4] It was during Dr. Mayburys testimony that the number and identity of appellants physicians became an issue. This issue was one of several which occupied a great deal of time at the hearing; others were appellants employment and certain visitation incidents. These issues did not figure in the juvenile courts eventual decision and do not warrant extended discussion here.

The only pertinent aspect of the physician issue is that appellant does not seem to have been particularly scrupulous in keeping the Department advised of the physicians she was no longer seeing, or the identity of the replacement physicians.

[5] Dr. Maybury testified that prescribing two painkillers has a distinct purpose: one medication, in appellants case, the oxycodone, is the regular medication, while the other, in appellants case the Percoset, is used for breakthough pain, which occurs when the regular painkiller fails.

[6] Dr. Weisss report had already been received in evidence as an attachment to one of Ms. Leachs addenda.

[7] At a later point in her testimony, Dr. Weiss characterized Alexis as gifted.

[8] Actually, appellant filed one motion on May 26, 2006, and then a first amended motion on June 9, 2006. The actual motion forms were identical, but the amended motion was accompanied by additional attachments. For purposes of simplicity, we shall accept the two as only one motion, and accept the amended version as the operative pleading.

[9] The copy of the case plan attached to M