Filed 3/3/22 In re B.Y. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Gary L. Green, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

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

No appearance for Plaintiff and Respondent.

-ooOoo-

K.Y. (mother) appeals from the juvenile court’s July 29, 2021 order denying her petition under Welfare and Institutions Code section 388,[1] requesting the return of her then eight-month-old son, B.Y., to her custody. After reviewing the juvenile court record, mother’s court-appointed attorney informed this court he could find no arguable issues to raise on mother’s behalf. This court granted mother leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844.) Mother filed a letter but failed to make the requisite showing. We dismiss the appeal.

PROCEDURAL AND FACTUAL SUMMARY

In February 2021, the Fresno County Department of Social Services (department) received a report that then two-month-old B.Y. was in the hospital for failure to thrive. He was underweight due to insufficient feeding. Mother worked from 4:00 p.m. to 10:00 or 11:00 p.m. The staff encouraged her to participate in caring for B.Y. but she let him lie in the crib excessively and had to be encouraged to feed and change him. He required feeding every two to three hours and mother was supposed to keep a feeding log. She told the nurses it was their job, not hers to feed B.Y. The nurses asked mother to pump her milk because B.Y. did not like formula but she changed her story several times about whether she had a pump. B.Y. did not sleep much and the staff noticed that he did not have motor control of his neck. They also had difficulty getting mother to wake up while in the hospital and noticed that she talked to herself and offered her mental health services. The lactation staff were concerned that mother was not connecting with B.Y. and it was affecting his ability to latch. The staff suspected she had postpartum depression. They could not discharge B.Y. from the hospital until he began to gain weight.

The department offered mother voluntary family maintenance services but she declined. Several days later, the department received another referral that mother was refusing to feed and change B.Y. B.Y. was gaining weight in the hospital and there was no medical reason for his prior failure to gain weight. The hospital staff did not feel safe allowing mother to take B.Y. home without a plan. Mother said she was feeding him. On February 11, 2021, the department obtained a protective warrant and B.Y. was detained. The next day he was discharged from the hospital and placed in foster care. By March 8, he had gained approximately one pound.

The department filed a dependency petition, alleging B.Y. was a child described under section 300, subdivision (b)(1) because mother failed to feed him, causing him to lose weight. It further alleged she refused to follow the medical staff’s instructions for properly caring for him. Jason R. was identified as B.Y.’s alleged father. He was living in Australia and he and mother agreed that she would raise B.Y. on her own.

The juvenile court ordered B.Y. detained, offered mother parenting classes and mental health evaluation and treatment, and ordered weekly supervised visits. The court set a jurisdictional/dispositional hearing for March 18, 2021. On March 18, mother’s attorney submitted the matter of jurisdiction. The court sustained the allegation and set the dispositional hearing for May 27, 2021.

On March 19, 2021, mother completed a mental health assessment. She presented with “depressed mood, sadness, headaches, dizziness, ‘racing’ and obsessive thoughts, worry, restlessness, and hallucinatory symptoms.” She was taking psychotropic medication monitored by her primary care physician and said she was recently prescribed medication for anxiety. The therapist who completed her mental health assessment recommended she complete a psychological evaluation to clarify a diagnosis, including a diagnosis related to intellectual impairment.

On May 3, 2021, B.Y. was diagnosed with “[l]ips/[t]ongue [t]ie.” On May 17, 2021, he was diagnosed with gastro-esophageal reflux disease without esophagitis and was referred to the pediatric gastroenterology clinic. He was also diagnosed with a heart murmur and had an echocardiogram on June 1, 2021, and was being monitored by a pediatrician.

On May 26, 2021, mother filed a modification petition under section 388 (section 388 petition), alleging B.Y.’s failure to thrive was the result of tongue and lip ties on his upper and lower lips. A frenectomy to surgically correct the situation was necessary. Mother asked the juvenile court to return B.Y. immediately to her custody and demanded an apology from the department and the pediatric staff at the hospital.

On May 27, 2021, the department filed an addendum report recommending the juvenile court order mother to complete a parenting class and a mental health assessment and any recommended treatment and a psychological evaluation. The department recommended the court deny Jason R. reunification services. (§ 361.5, subd. (a).)

Mother appeared with her attorney at the dispositional hearing on May 27, 2021, submitted on the recommendation for reunification services but objected to participating in a psychological evaluation. Her attorney informed the juvenile court that while in foster care B.Y. was diagnosed with a defect in his mouth that hindered his ability to suckle and caused him to lose weight. Mother sent his medical records to the department, which were received. The court ordered B.Y. removed from mother’s custody after finding by clear and convincing evidence that returning B.Y. to her custody would place him at a substantial risk of detriment and there were no reasonable alternatives to removal. The court ordered mother to participate in reunification services as recommended, denied Jason reunification services and set the six-month review hearing for November 18, 2021. Mother appealed from the dispositional order, contending there was insufficient evidence to support its jurisdictional finding and removal order.[2]

On May 28, 2021, mother filed a second section 388 petition, identical to the one filed on May 26, 2021. The court summarily denied it that same day, finding it did not state new evidence or a change of circumstances. On June 1, the court summarily denied mother’s section 388 petition filed on May 26, on the same grounds.

On July 2, 2021, B.Y. underwent a frenectomy, to correct his tongue and lip ties. On July 19, he was referred for pediatric surgery for “G-tube placement.”

On July 13, 2021, mother filed a section 388 petition asking the juvenile court to vacate its jurisdictional findings and dispositional orders and return B.Y. to her custody because new evidence provided a medical explanation for why B.Y. was not gaining weight; he had “tongue and lip tie[s],” which required a maxillary buccal frenectomy and a mandibular lingual frenectomy. Returning B.Y. to mother’s custody was in his best interest because his failure to thrive was not because of her negligence. He failed to thrive even after he was removed from her because of his medical condition. The court set an evidentiary hearing for July 29, 2021.

The department recommended against placing B.Y. with mother. Although he was consuming more, he had not gained the desired weight and mother continued to need prompting and guidance to care for him. On June 4, 2021, during B.Y.’s occupational therapy session, mother was on her phone, talking to herself and randomly giggling. She covered herself with a blanket and had her face down into the blanket and did not participate in the session. She was unable to read B.Y.’s cues and her anxiety increased when he was fussy or crying.

Mother appeared with her attorney at the hearing on July 29, 2021. Her attorney argued B.Y. did not lose weight because mother failed to feed him but because he had a medical condition, which was surgically corrected. As a result, he was tolerating full‑bottle feedings and progressing toward meeting his weight goals. Since mother was not responsible for his weight loss, her attorney argued, the juvenile court should return B.Y. to her custody. County counsel acknowledged B.Y.’s medical condition caused his failure to thrive, however, believed the department needed to monitor mother to make sure she was able to safely parent him. Minor’s counsel concurred, noting that mother seemed indifferent at times to B.Y. while caring for him. He argued there was sufficient grounds for jurisdiction given B.Y.’s tender age and medical vulnerability and asked the court to either deny the petition or continue the hearing until the department received the results of mother’s psychological evaluation, which the department expected to receive within another two weeks.

The juvenile court denied mother’s section 388 petition. It found mother’s circumstances were “changing” in that a medical cause of B.Y.’s failure to thrive had been discovered and repaired and he was improving and starting to thrive. However, the court was concerned that mother may not be able to handle the medical complexities associated with B.Y.’s medical conditions, explaining its concerns arose “out of behaviors on her part that have been documented and her own behaviors I’ve seen exhibited when she’s appeared before me, going back to detention .…” The court confirmed the six-month review hearing for November 8, 2021.

DISCUSSION

An appealed-from judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is appellant’s burden to raise claims of reversible error or other defect and present argument and authority on each point made. If appellant fails to do so, the appeal may be dismissed. (In re Sade C. (1996) 13 Cal.4th 952, 994.)

Mother contends the medical staff treating B.Y. were negligent for not discovering his tongue and lip ties sooner, the juvenile court deprived her of her rights to an attorney and to confront her accusers, the department deprived her of her right to remain silent during its investigation and failed to inform her of her parental rights, and her court‑appointed attorney was inadequate.

The challenge for mother on this appeal is that she did not raise any of those issues in the section 388 petition which was the subject of the July 29, 2021 hearing. Further, she had the burden of proving not only that her circumstances had changed but that a modification to the court’s findings and orders served B.Y.’s best interest, which she failed to accomplish.

Section 388, subdivision (a)(1) allows a parent of a child who is a dependent of the juvenile court to petition the court “upon grounds of change of circumstance or new evidence … for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.” The parent bears the burden of showing by a preponderance of the evidence both (1) a legitimate change of circumstances or new evidence exists and (2) that undoing the prior order would serve the child’s best interest. (In re A.A. (2012) 203 Cal.App.4th 597, 611–612.)

Here, the juvenile court acknowledged the new evidence establishing a medical cause for B.Y.’s failure to thrive. However, the court did not believe that B.Y.’s medical condition was the only circumstance endangering his health and well-being. The court also believed mother may not be able to adequately care for him based on her behavior. Consequently, the resolution of B.Y.’s medical condition was just one change in a “changing” circumstance. It was not sufficient to warrant modifying its finding and order. Further, the court did not believe returning B.Y. to mother’s care was in his best interest until his safety could be ascertained.

The juvenile court’s decision whether to change an order by granting a section 388 petition is “committed to the sound discretion of the juvenile court, and the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Though not required to, we have reviewed the transcript on appeal for the hearing conducted on July 29, 2021, and find no arguable issues related to the juvenile court’s ruling on the section 388 petition that merit briefing.

We conclude mother failed to make a good cause showing that an arguable issue of reversible error exists and dismiss the appeal.

DISPOSITION

This appeal is dismissed.

* Before Poochigian, Acting P. J., Detjen, J. and Franson, J.

[1] Statutory references are to the Welfare and Institutions Code.

[2] Appellate counsel filed a “no issues” letter pursuant to In re Phoenix H., supra, 47 Cal.4th 835, 844 in our case No. F083109 and we granted mother leave to file a letter setting forth a good cause showing that an arguable issue exists on the record. Her appeal is pending our review.