Filed 8/27/14 T.W. v. Super. Ct. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


T.W.,
         Petitioner,
v.                                                                   A142179
THE SUPERIOR COURT OF CONTRA                                         (Contra Costa County
COSTA COUNTY,                                                        Super. Ct. No. J11-01448)
         Respondent;
CONTRA COSTA COUNTY CHILDREN
AND FAMILY SERVICES BUREAU,
         Real Party in Interest.

         This is a petition for an extraordinary writ, as authorized by rule 8.452 of the
California Rules of Court. The petitioner is a mother who seeks to have overturned the
order of respondent Superior Court setting a hearing pursuant to Welfare and Institutions
Code section 366.261 at which petitioner’s parental rights may be terminated with respect
to petitioner’s daughter. She contends that the daughter should have been returned to her
custody, and with additional reunification services. We conclude both contentions are
without merit, and deny the petition on the merits.




         1
             Statutory references are to the Welfare and Institutions Code.


                                                             1
                                     BACKGROUND
       The underlying dependency began in October 2011, when the minor was 13 years
of age. Real Party in Interest Contra Costa County Children and Family Services Bureau
(Bureau) filed a petition in which it was alleged that the minor qualified as a dependent
because petitioner and the presumed father (who is not a party to this proceeding) failed
to protect the child (§ 300, subd. (b)). The minor was immediately detained. Petitioner
did not contest the allegation. It was not until June 2012 that the minor was adjudged a
dependent, placed with the Bureau, and petitioner ordered to receive services that would
promote reunification with her daughter.
       For the combined six-month and 12-month review hearing, the Bureau submitted a
lengthy report advising the juvenile court that the minor was a freshman in high school,
“has a history of doing well academically and we believe she is capable of passing all of
her academic classes.” Her placement with foster parents “is going very well. The foster
parents are committed to raising [the minor] to majority and have embraced her as part of
their family. The minor “does not believe that she can return to the care of her mother as
long as the father remains in the home. She is afraid of her father. She would like to
remain in her current foster home.” Both parents “have never acknowledged
responsibility” for the necessity of judicial intervention. “The Bureau respectfully
recommends that the Court terminate Family Reunification Services as to both parents
and set a 366.26 hearing to establish a permanent plan” of long term foster care for the
minor. The juvenile court accepted these recommendations in January 2013.
       The next scheduled action was for what the Bureau termed “Post Permanent Plan
Review Hearing” in July 2013 In its “Status Review Report” for that hearing, the Bureau
informed the court that the minor had encountered difficulties. She completed her
freshman year of high school, but her disappointing academic performance was attributed
to excessive socializing with peers, as well as “minor and expected rebellion often
associated with this age group.” Her placement had been changed to her godmother.
       Petitioner was reported to have suffered a “psychiatric crisis” that at least once
necessitated her involuntary commitment, but the information known by the Bureau was


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incomplete.2 The case worker hoped that visitation would resume “once [petitioner’s]
mental health has stabilized.” The court was advised that the minor’s “recent placement
with her Godmother will hopefully provide her with a better sense of being with family
and therefore, impact her sometimes melancholy disposition. It is highly unlikely, given
[petitioner’s] behavior over the past year, that she will do what she needs to do to create a
change in the permanent plan. With this in mind, this [case]worker will be assessing the
appropriateness of creating a permanent plan of guardianship with the Godmother. In the
meantime,” the Bureau’s recommendation was that “the court continue the Permanent
Plan of Long Term Foster Care and set a review for six months.”
       At the brief July hearing, petitioner was described as “recently hospitalized” and
not in contact with the Bureau. Although petitioner was present, no further detail was
provided. With one exception not material here, petitioner did not contest the Bureau’s
recommendation which was accepted by the court.
       The next status review hearing was held in December of 2013. The caseworker
informed the court that petitioner had repeated hospitalizations since September, and had
been diagnosed with “Adjustment Disorder with mixed anxiety and depressed mood.”
The caseworker had spoken to petitioner’s therapist, who “stated in her professional
opinion” that petitioner cannot care for children “any time soon,” and certainly not “at
this time.” Visitation had resumed only the month before. The minor’s academic
performance had improved, and was expected to improve even further. The minor was
now placed with a maternal cousin. The Bureau’s assessment and recommendation
remained the same—“that the court continue the Permanent Plan of Long Term Foster

       2
         “[Petitioner], at last report, was hospitalized at the Martinez Medical Center and
on a 5152 hold due to a psychiatric crisis. Over the last several months, [petitioner] went
to and from the maternal grandmother’s home in San Francisco as a result of ongoing
conflict with [the father]. [Petitioner] indicated that the conflicts escalated into some
physical contact. She was hospitalized after a 5150 hold while with [the father] in
Antioch.” The “5150” and “5152” references are to provisions of the
Lanterman-Petris-Short Act, which allows a person who, “as a result of a mental health
disorder, is a danger to others, or to himself or herself,” to be held for “up to 72 hours for
assessment, evaluation, and crisis intervention.” (§ 5150, subd. (a).)


                                              3
Care and set a review for six months.” Those recommendations were again accepted by
the court.
       The final status review was held on June 4, 2014. The caseworker had no new
information about petitioner’s mental state, but her situation had apparently stabilized,
and petitioner was now living with her mother in San Francisco. Petitioner has not
visited since November 2013. The minor’s was still placed with the maternal cousin.
The placement was going so well that the Bureau “is seeking legal guardianship . . . with
the maternal cousin. [¶] . . . [¶] The Bureau asserts that legal guardianship is the most
appropriate plan . . . at this time. At this point, [petitioner] continues to not demonstrate
stability and could not provide care for [the minor]. [Petitioner’s] Family Reunification
services were terminated on January 28, 2013 . . . . The difficulties that brought the
family to this dependency court are not being addressed by . . . the mother.” The minor’s
current placement “has provided her with a better sense of being with family and has had
a positive impact on her life. It is highly unlikely, given [petitioner’s] behavior over the
last year, that she will do what she needs to do to create a change in the permanent plan.”
The Bureau’s final recommendation was that the court set a “section 366.26 hearing.”
       Much of the hearing was devoted to an issue not germane to this appeal, namely,
the mechanics and propriety of a motion that might establish a reason that would preclude
termination of parental rights as to a younger sibling. The only witness was caseworker
Victoria King, and virtually all of her testimony related to that same issue. However, as
relevant to the minor who is the subject of this petition, King testified that she still does
not know “the extent or details” of petitioner’s “mental health issues.”
       Petitioner’s counsel’s argument, in its entirety, was as follows:
       “My client would be objecting to the .26 hearing. She’s requesting from this
Court an opportunity to reunify. She’s finished the La Ofsted program, which is the drug
program she was in as well as she’s finished her parenting class.
       “Unfortunately, she was unaware that there was a new social worker until April of
this year, even though Ms. King testified that she became the social worker in February.



                                               4
       “Once [petitioner] learned that Ms. King was the new social worker, she was
given an incorrect telephone number and actually did not make contact with Ms. King for
some time. So she is—she’s asking this Court to deny the .26 to allow her to have time
to reunify with her son [the other sibling] now that she’s taken care of a number of
components of her case plan.
       “She is currently working as a security guard at the Moscone Center, and she is
taking care of her father as he is arthritic and having a difficult time.
       “For these reasons, she is objecting to terminating parental rights and requesting
the Court to give her an opportunity to reunify with her son.” (Italics added.)
       At this point, counsel for the other minor addressed the court: “Just briefly as to
the mom’s request. [¶] I would note that reunification services have already been
terminated. It sounds to me that mom is requesting additional services, and that’s not
properly before the Court. That should have been filed as a 388 motion.”3
       The court then ruled: “I agree . . . that the proper mechanism for mother to request
additional services or time to reunify would be through a 388 motion which was not filed
by her. Nor is there any evidence before the Court of any change in circumstance to
warrant the Court to pause and consider that as opposed to proceeding with a permanent
placement of this child.”
       The court proceeded to terminate both parents’ rights with respect to the sibling.
It then moved to the minor’s status review:

       3
         “A juvenile court order may be changed, modified or set aside under section 388
if the petitioner establishes by a preponderance of the evidence that (1) new or changed
circumstances exist, and (2) the proposed change would promote the best interest of the
child. [Citation.] The parent bears the burden to show both ‘ “a legitimate change of
circumstances” ’ and that undoing the prior order would be in the best interest of the
child. [Citation.] The petition is addressed to the sound discretion of the juvenile court,
and its decision will not be overturned on appeal in the absence of a clear abuse of
discretion. [Citation.]” (In re S.J. (2008) 167 Cal.App.4th 953, 959–960.) Such a
motion was made, by the minor, in an unsuccessful attempt to halt the termination of
parental rights as to her brother. A copy of the motion was not included in the record
provided by petitioner, so this court has no way of ascertaining either the precise
ground(s) for the motion, or the documentary evidence submitted in support of it.


                                               5
       “I will adopt the recommended findings and set this matter for a .26 hearing to
determine the most appropriate permanent plan . . . [¶] It’s clear to the Court that it is
time to move on for her [the minor]. She has been a dependent of the Court for a number
of years, and neither parent has complied with a case plan or participated in any
meaningful way with services to address the issues that brought [the minor] . . . and this
family before the Court.”
                                         REVIEW
       Petitioner argues: (1) “The Court erred in not returning [the minor] to her
Mother,” and (2) “The Court erred in failing to order reunification services be provided to
achieve reunification with [the minor].” The first argument is essentially one involving a
custody or placement determination, a decision confided to the juvenile court’s discretion
which a reviewing court could overturn if there was a demonstrable abuse of that
discretion.4 (E.g., Montenegro v. Diaz (2001) 26 Cal.4th 249, 255; Alicia B. v. Superior
Court (2004) 116 Cal.App.4th 856, 863.) The same test governs decisions concerning
additional reunification services to the parent of a defendant minor. (E.g., V.C. v.
Superior Court (2010) 188 Cal.App.4th 521, 528; In re William B. (2008)
163 Cal.App.4th 1220, 1229.)
       It would not be possible to find abuse on either point because, as the court noted,
petitioner had not properly asked for either. “A party on appeal cannot successfully
complain because the trial court failed to do something which it was not asked to do
. . . .” (In re Cheryl E. (1984) 161 Cal.App.3d 587, 603.)
       In any event, even if a proper request had been made, both placement and
reunification service decisions are grounded on the best interests of the minor. (E.g.,
In re Stephanie M. (1994) 7 Cal.4th 295, 317 [placement]; §§ 361.5, subd. (b), 366.22,
subd. (b) [additional reunification services].) Moreover, at each of the post permanent
planning review hearings, “it shall be presumed that continued care is in the best interests

       4
         There is no dispute that the court had the authority to order reunification services
at the post permanent planning review hearing. (§ 366.3; In re Z.C. (2009)
178 Cal.App.4th 1271, 1277.)


                                              6
of the child, unless the parent or parents prove, by a preponderance of the evidence, that
further efforts at reunification are the best alternative for the child.” (§ 366.3, subd. (f).)
Here, petitioner presented no evidence to overcome that presumption, no evidence, as the
juvenile court noted, “of any change in circumstance,” no evidence that she now
acknowledged her role in the need for the dependency. Most significantly, petitioner was
not forthcoming with any details of her medical condition, and what she was doing to
prevent a recurrence of her involuntary commitment. If, as our Supreme Court notes, “ ‘a
measure of a parent’s future potential is undoubtedly revealed in the parent’s past
behavior with the child’ ” (In re Jasmon O. (1994) 8 Cal.4th 398, 424), the juvenile court
would be naturally hesitant to thrust a teenager into an environment where there might be
any potential risk of her having to confront such a traumatic event, particularly as it might
entail physical peril. (See fn. 2, ante.) This sounds very much like holding the minor’s
best interests foremost in the court’s thinking.
       Finally, petitioner’s failure to benefit from the 12 months of reunification services
she had already received provided scant assurance that additional services would be
better used.
                                       DISPOSITION
       The petition is denied on the merits. This opinion is final forthwith. (Cal. Rules
of Court, rules 8.452(i), 8.490(b)(2)(A).) The stay heretofore issued is dissolved.

                                                    _________________________
                                                    Richman, J.

We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.



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