Filed 8/18/20 In re Abdul CA1/4

                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                  DIVISION FOUR


 In re Abdul K., A Person Coming
 Under the Juvenile Court Law.


 ALAMEDA COUNTY SOCIAL
 SERVICES AGENCY,
                                                                        A159443
           Plaintiff and Respondent,
 v.                                                                     (Alameda County
                                                                        Super. Ct. No. JD-02769702)
 N.M.,
           Defendant and Appellant.


         In September 2019, the juvenile court set a hearing to terminate
parental rights over Abdul K., a medically fragile child who did not receive
adequate care in his parents’ home. Abdul’s mother, N.M. (mother),
challenged the September 2019 order in a petition for an extraordinary writ,
which this court denied. (N.M. v. Superior Court, A158485.) Subsequently,
mother’s trial counsel filed a petition requesting that Abdul be returned to
mother because of changed circumstances, which the juvenile court denied.
(Welf. & Inst. Code, § 388; statutory references are to this code.) In the
present appeal, mother contends the juvenile court erred by summarily
denying the section 388 petition. We disagree and affirm the order.


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                FACTUAL AND PROCEDURAL HISTORY
I. Background1
      Abdul was born premature with a positive toxicology report for opiates
and exposure to methadone. During an investigation by the Alameda County
Social Services Agency, mother accused her husband, N.K. (father), of
domestic abuse, but she later recanted. The Agency provided family
maintenance services until January 2017, when a dependency petition was
filed, and Abdul was removed from the home. In April, Abdul was returned
to father’s custody, again with family maintenance services. In December
2017, the dependency case was dismissed.
      In April 2018, the Agency filed another dependency petition, which
described Abdul as a “medically fragile” child who has been diagnosed with
“oral [a]version, motor delay, global hypertonia, reflux, and is G-Tube
dependent.” Dependency jurisdiction was alleged under section 300,
subdivision (b) (failure to provide adequate care) based on three factual
claims: Abdul had been hospitalized multiple times for failure to thrive; on
one occasion, Abdul was left in distress while his parents engaged in domestic
violence in front of him; and parents had received family maintenance
services and family reunification services, but still could not demonstrate the
ability to provide adequate care for Abdul.
      Abdul was detained and placed in foster care after mother admitted she
was overwhelmed and needed help because father had recently abandoned
her and the children. In May 2018, mother reported that father had left the
country with one of their five children, leaving her and the other children
homeless and with no means of support.


      1This background information comes from the decision denying
mother’s writ petition, which is included in the appellate record.

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      In September 2018, the juvenile court sustained jurisdictional
allegations, declared Abdul a court dependent, and ordered reunification
services for mother. Mother was receiving public assistance and had some
family support, which enabled her to meet the basic needs of her older
children. But she had failed to demonstrate that she was capable of caring
for Abdul.
      In November 2018, Abdul was moved to a new placement after his
original foster family reported that they were having trouble meeting Abdul’s
medical needs and that mother failed to respect appropriate boundaries. The
court approved a placement in the “Non Related Extended Family Member”
home of a couple who had a good relationship with Abdul’s maternal
grandparents.
      In March 2019, the Agency recommended that the court terminate
mother’s reunification services at the six-month status review. Mother had
not been consistent about attending Abdul’s medical appointments, was not
compliant in therapy, and appeared to have untreated mental health issues.
She did not understand why Abdul was removed from her care despite the
social worker’s efforts to explain the Agency’s concerns. And her lack of
comprehension about Abdul’s medical needs impacted her ability to
demonstrate that she could care for him.
      A contested review hearing was scheduled for June 2019. Meanwhile,
the Agency reported ongoing concerns about mother and her inability to care
for Abdul. She did not regularly attend Abdul’s medical appointments and
was often disruptive when she did attend. Abdul’s gastroenterologist opposed
reunification because Abdul experienced distress when mother was present.
Mother’s supervised visits were not consistently positive; she did not follow
the Agency rules, brought inappropriate food, and was not careful with



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Abdul. Her therapist terminated her due to non-compliance, and she
repeatedly cancelled or missed appointments for a substance abuse
evaluation until she was finally evaluated in late May 2019.
      A contested 6- and 12-month review hearing was held between June
and September 2019. The court admitted several Agency reports into
evidence and heard testimony from four witnesses.
      The county elicited testimony from Nancy Roth, the Agency’s nurse for
“medically fragile” children. Roth had been Abdul’s nurse since May 2017
and had frequent direct contact with mother. Roth testified that mother
cannot meet Abdul’s medical needs, voicing three factual concerns: mother
never demonstrated an ability to use the G-tube to feed Abdul; mother
consistently maintained that Abdul could eat food, ignoring that his oral
aversion made him throw up food that he ate; and mother did not pay
attention to doctors who attempted to explain Abdul’s medical condition.
Roth testified that when Abdul was living with mother, he lost weight and
was hospitalized several times. After he was removed, mother brought food
that Abdul should not eat to his supervised visits, which made him sick. In
his current placement, Abdul was doing well and gaining weight and the
family was implementing a plan to decrease G-tube feedings, with the goal of
enabling Abdul to take more food by mouth.
      The County also presented testimony from Melanie Pang, the Agency
social worker assigned to Abdul’s case. Pang opined that mother would not
reunify with Abdul because she did not understand his medical needs and
required constant reminders to attend appointments. Furthermore, mother
had not complied with her case plan other than to complete a parenting class.
She missed several of Abdul’s medical appointments and was disruptive or
inattentive at appointments she did attend. After mother was terminated



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from therapy for noncompliance, the Agency provided another referral, but
mother had missed half of those appointments. Her behavior during
supervised visits was inconsistent and she needed reminders to be cautious
around Abdul.
      Mother elicited testimony from her brother, Nazir. Nazir testified that
he was a support person for mother and her children, who had moved into his
home in May 2019. Nazir helped mother with her communication problems
and assisted her in understanding what she needed to do to improve her
situation. He also helped with transportation and finances. Nazir testified
that mother had experienced trauma and struggled with mental health
problems in the past. But he believed mother had shown significant
improvement. She was attending appointments, participating in therapy and
taking good care of her children.
      Mother also testified on her own behalf. She stated that Abdul was
removed from her care because of his weight and because of domestic
violence. According to mother, nobody understood why Abdul kept losing
weight. When he was in her care, she sought medical assistance and always
followed the doctor’s advice, but he did not get better. Mother testified that
she understood her case plan requirements and substantially completed all of
them. But under cross-examination, mother testified that she did not
understand why this case was in juvenile court. She felt she had done
everything a mother could do. She acknowledged that Abdul is medically
fragile, but she denied playing any role in his malnutrition. Mother testified
that she always fed Abdul what he was supposed to eat and made sure his
needs were met. After Abdul was removed, she did everything the Agency
told her to do.




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      On September 5, 2019, the juvenile court found, among other things,
that mother was provided with reasonable reunification services, Abdul could
not be returned safely to mother’s care, and there was no substantial
probability that Abdul could or would be returned to mother and safely
maintained in her home prior to the date of an 18-month review. The matter
was continued for a section 366.26 hearing, to consider terminating parental
rights and select a permanent plan for Abdul.
      Mother filed a petition for extraordinary review challenging the
September 2019 order setting this case for a section 366.26 hearing. Her writ
counsel presented extensive argument in support of two basic claims. First,
Abdul should have been returned to mother’s custody at the review hearing.
Alternatively, mother was entitled to additional reunification services.
      On December 5, 2019, this court denied mother’s petition on the merits,
affirming the juvenile court’s three material findings. First, Abdul could not
be safely returned home at the review hearing because mother made only
partial progress in reaching the objectives of her case plan and failed to
demonstrate that she fully understood and would meet Abdul’s special needs.
(§ 366.21, subd. (e).) Second, mother had been provided with reasonable
reunification services designed to assist her in demonstrating that she was
willing and able to meet Abdul’s special needs. (§ 366.21, subd. (g)(1).)
Finally, there was no substantial probability Abdul could be returned to
mother within the extended period because she did not make substantial
progress in resolving the problems that led to the dependency and failed to
demonstrate her capacity and ability to provide Abdul a safe home where his
medical needs would be met. (§ 366.21, subd. (g)(1)(B) & (C).)




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II. The Section 388 Petition
      On January 21, 2020, mother’s trial counsel, Mary Day, filed a petition
under section 388 to change a prior court order. Day requested that the
juvenile court set aside the September 2019 order setting this matter for a
section 366.26 hearing and order instead that Abdul to be returned to mother
with family maintenance services.
      Day provided the following reason for her request: “Upon information
and belief the mother’s counsel believes the minor is no longer medically
fragile, no longer needs to be fed through a g-tube and is now eating solid
foods; and the mother has progressed during visitation to being engaged with
the child, attentive to the minor’s needs, and takes steps to ensure the
minor’s safety.”
      Day stated that granting her petition would benefit Abdul because it
was consistent with the presumption that a child should be placed with a
parent whenever possible, Abdul has become more enthusiastic about seeing
mother at visits, and Abdul enjoys playing with his siblings.
      On January 22, 2020, the juvenile court denied the section 388 petition,
finding that the proposed change of order “does not promote the best interest
of the child.”
                                DISCUSSION
      Mother contends the juvenile court erred by denying the section 388
petition without holding an evidentiary hearing. Arguing that she made a
prima facie case for setting aside the September 2019 order, mother requests
that this court reverse the summary denial of the section 388 petition and
every subsequent order the juvenile court has made in this case. We are
unpersuaded by mother’s contentions.




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      Section 388 provides that any person having an interest in a dependent
child “may, upon grounds of change of circumstance or new evidence, petition
the court in the same action in which the child was found to be a dependent
child of the juvenile court . . . for a hearing to change, modify, or set aside any
order of court previously made or to terminate the jurisdiction of the court.
The petition shall . . . set forth in concise language any change of
circumstance or new evidence that is alleged to require the change of order
. . .” (§ 388, subd.(a).) The juvenile court is required to order a hearing on a
section 388 petition “[i]f it appears that the best interests of the child may be
promoted by the proposed change of order.” (§ 388, subd. (d).)
      The party filing a section 388 petition “has the burden to show, by a
preponderance of the evidence, there is a change of circumstances or new
evidence, and the proposed modification is in the child’s best interests.
[Citations.] The court must liberally construe the petition in favor of its
sufficiency. [Citations.] ‘The [petitioner] need only make a prima facie
showing to trigger the right to proceed by way of a full hearing.’ ” (In re A.S.
(2009) 180 Cal.App.4th 351, 357–358 (A.S.).)
      We review rulings under section 388 for abuse of discretion. (In re
Angel B. (2002) 97 Cal.App.4th 454, 460.) Here, the juvenile court did not
abuse its discretion by denying the section 388 petition without holding a
hearing. The petition proffered by mother’s trial counsel is unsupported by a
statement of facts or an offer of proof that could be used to establish a change
of circumstance justifying the proposed modification. Nor did counsel make a
prima facie showing that placing Abdul in mother’s custody would be in the
best interest of Abdul.
      Trial counsel’s allegation on information and belief that Abdul is no
longer medically fragile carries no weight; counsel provided no information



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supporting this assertion making her personal belief irrelevant. The petition
states that Abdul no longer “needs” to be fed with a G-tube and that he is
“now eating solid foods,” but the fact that Abdul is eating solid food is not
new. Abdul’s nurse testified at the review hearing that the foster family was
in the process of implementing a plan to reduce the use of the G-tube so that
Abdul could take more food by mouth. We find no basis in this record for trial
counsel’s assumption that if Abdul no longer “needs” the G-tube, he no longer
requires special medical care. Indeed, the record establishes that it has
taken a years-long process and a great deal of professional help to bring
Abdul this far. The trial court could reasonably determine it was not in
Abdul’s best interests to jeopardize that progress by returning him to a
parent who seems not to have understood the special care he needs.
      Trial counsel also states that Abdul enjoys supervised visits with
mother and playing with his siblings. Even if these were new facts, they are
unrelated to the primary problem that led to Abdul’s dependency and
persisted despite the provision of 12 months of reasonable reunification
services, namely his mother’s inability to care for Abdul’s special needs.
Thus, proving these new allegations would not establish that returning Abdul
to mother’s custody would serve his best interest.
      Finally, the section 388 petition attempts to invoke the presumption in
favor of placing a dependent child with his parent, which no longer applies in
this case because mother’s reunification services have been terminated. (In
re Angel B., supra, 97 Cal.App.4th at p. 464.) “Rather, at this point, the focus
shifts to the needs of the child for permanency and stability. [Citation.] In
fact, there is a rebuttable presumption that continued foster care is in the
best interest of the child [citation]; such presumption obviously applies with
even greater strength when the permanent plan is adoption rather than



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foster care. A court hearing a motion for change of placement at this stage of
the proceedings must recognize this shift of focus in determining the ultimate
question before it, that is, what is in the best interest of the child.” (Ibid.)
Here, the juvenile court concluded reasonably, that Abdul’s best interest
would be served by maintaining his current placement because mother did
not present evidence that she had remedied the problems that led to this
dependency.
      On appeal, mother contends that her case is materially different from
cases affirming the summary denial of section 388 petitions, such as A.S.,
supra, 180 Cal.App.4th 351. In that case, a father challenged the summary
denial of his section 388 petition to change an order setting a section 366.26
hearing. In the petition, father asserted that his recent completion of a
parenting class and participation in therapy were changed circumstances
entitling him to a custody order or reunification services. (Id. at p. 358.) The
A.S. court found that father’s showing of “changing circumstances” was
insufficient to establish an actual change of circumstance that would justify
the order he requested. Moreover, father did not make the requisite prima
facie showing that granting his petition would be in the best interest of the
children. (Ibid.)
      The section 388 petition filed in this case is more cursory than the
petition that was found lacking in A.S. Mother’s counsel did not allege that
mother has done something new or different to resolve the problems that led
to this dependency. Evidence that Abdul’s health has improved, leaving him
less dependent on the G-tube, was presented at prior review hearings. Even
if this steady improvement could be characterized as a new fact, it is at best a
changing circumstance, which would not establish that Abdul can be safely




                                         10
returned to mother’s custody or otherwise justify setting aside the September
2019 order.
      A.S. also confirms that a section 388 petition may be summarily denied
when, as here, the petitioner fails to make a prima facie showing that the
proposed change order is in the best interest of the dependent child. (A.S.,
supra, 180 Cal.App.4th at p. 358.) In this case, mother’s trial counsel did not
“make the requisite showing of [Abdul’s] best interests.” (Ibid.) Counsel’s
assertion that Abdul enjoys spending time with mother and his siblings does
not suffice to explain why it would be in Abdul’s best interest to return Abdul
to the custody of mother.
      Mother relies on In re Josiah S. (2002) 102 Cal.App.4th 403 (Josiah S.),
a protracted dependency proceeding involving a minor who was born with
multiple serious medical problems and was hospitalized when he was six
months old for “non-organic failure to thrive.” (Id. at p. 407.) The minor was
declared a dependent pursuant to a petition alleging that his mother suffered
from emotional problems limiting her ability to provide adequate care. (Ibid.)
After the mother failed to reunify, the boy was placed in long-term foster
care. In a post-permanency planning review report, the agency recommended
suspending visitation on the ground that mother’s difficult behavior was not
consistent with a sincere interest in visitation. (Id. at p. 415.) Mother
requested a contested hearing and also filed a section 388 petition so she
could present medical evidence indicating that the minor’s health problems
were not attributable to mother’s abuse or neglect. (Id. at p. 419–420.) The
juvenile court denied mother’s request for a contest and summarily denied
the section 388 petition. The Josiah S. court found that the juvenile court
erred by denying mother her statutory right to a contested hearing. The
court also set aside the denial of mother’s section 388 petition because the



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entire record, including the refusal to hold a contested hearing, undermined
the appellate court’s confidence in the trial court’s summary denial of the
section 388 petition. (Id. at p. 420.)
      We reject mother’s contention that this case is “similar” to Josiah S.
The bare-bones section 388 petition submitted by mother’s trial counsel was
not supported by an offer to present any evidence, let alone medical evidence.
Nor was this mother denied her statutory right to a contested hearing. The
juvenile court held a comprehensive review hearing before terminating
reunification services and scheduling the section 366.26 hearing. Mother
challenged the September 2019 order in her writ case, which afforded her an
additional opportunity to be heard. After the writ was denied on the merits,
mother’s counsel filed a section 388 petition that was not based on new
evidence or changed circumstances, and not supported by a prima facie
showing that returning Abdul to mother’s custody would be in the best
interest of the child. Under the circumstances, the court did not abuse its
discretion by denying the section 388 petition without holding a hearing.
                                 DISPOSITION
      The order is affirmed.




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                                        _________________________
                                        TUCHER, J.


WE CONCUR:


_________________________
POLLAK, P. J.


_________________________
BROWN, J.




Alameda County v. N.M. (A159443)




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