Filed 4/12/16 In re A.H. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



 In re A.H. et al., Persons Coming Under
 the Juvenile Court Law.

 RIVERSIDE COUNTY DEPARTMENT
 OF PUBLIC SOCIAL SERVICES,                                              E064839

          Plaintiff and Respondent,                                      (Super.Ct.No. RIJ1300527)

 v.                                                                      OPINION

 R.W.,

          Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson,

Judge. Affirmed.

         Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Gregory P. Priamos, County Counsel, and Julie Koons Jarvi, Deputy County

Counsel, for Plaintiff and Respondent.



                                                             1
       R.W. (mother) appeals from the juvenile court’s orders denying her Welfare and

Institutions Code section 3881 petitions and terminating her parental rights with respect to

her three children. Mother contends the trial court abused its discretion by denying her

section 388 petitions without an evidentiary hearing.2 Finding no abuse of discretion, we

affirm the challenged orders.

                                              I

                      FACTS AND PROCEDURAL BACKGROUND

       A.      Jurisdiction and Removal

       Mother and her three young children, Aa.H., An.H., and Ar.H. (the children) came

to the attention of the Riverside County Department of Public Social Services (the

Department) in May 2013, by way of a referral for general neglect. Mother and the

children were homeless. They had been staying at a motel on a voucher, and had been

seen digging in the trash and lying on the stairs after the hotel voucher expired. Mother

admitted she had no place to stay and no family or friends she could contact for help.

Mother had no money and no baby formula for her youngest child. She had not been

taking her children to the doctor for checkups. Father admitted to seeing the children




       1   Unlabeled statutory references are to the Welfare and Institutions Code.

       2  Mother’s challenge to the order terminating her parental rights is based on the
success of her challenge to the court’s denial of her section 388 petitions. She asserts that
if the orders denying her petitions are reversed, the later order terminating her parental
rights must also be reversed.


                                              2
despite a restraining order prohibiting him from contact with mother. Father used

marijuana, had a criminal record, and was on probation.3

       The Department placed the children in protective custody and filed a dependency

petition alleging mother was transient and unable to provide her children with adequate

food, clothing, medical treatment, and protection. The petition also alleged that mother

abused marijuana while supervising her children, had a history of domestic violence with

father, and had a history with the San Bernardino County Children And Family Services

as a result of allegations of emotional abuse and general neglect. At the time of the

petition, Aa.H. was two years old, An.H. was 19 months old, and Ar.H. was eight months

old.

       In the jurisdiction and disposition report, the social worker noted the children had

been returned to mother’s care. Mother reported she was diagnosed as having depression

and anxiety. She reported having a medical marijuana card and using marijuana to

address her mental health issues. The social worker provided mother with referrals for

domestic violence counseling, individual counseling, and a psychotropic medication

evaluation.

       On June 10, 2013, the juvenile court found the allegations in the petition true,

permitted mother to retain physical custody of the children, and ordered the Department

to provide her with family maintenance services. Mother’s case plan included domestic




       3   Father is not a party to this appeal.

                                                   3
violence and parenting programs, counseling, substance abuse assessment and testing,

and a psychotropic medication evaluation.

       About a week later, on June 25, 2013, the Department took the children into

protective custody. Two days later, the Department filed a supplemental dependency

petition alleging mother had left the children without adult supervision on several

occasions and had failed to enroll in any case plan services. The executive director of the

shelter facility in which mother was residing had reported that mother had “repeatedly

left the very young children alone in their residence, without any supervision.” The

director reported that it was typical for mother to leave her children unsupervised while

she went to the store, that mother had left them alone even after having been instructed

not to, and that the children were often seen wandering around the facility by themselves.

       On June 28, 2013, the court detained the children and the Department placed them

in a foster home. The court ordered mother to submit to a psychological evaluation.

       In the July 25, 2013 supplemental jurisdiction and disposition report, the social

worker stated that mother “consistently disregarded my directives to provide appropriate

supervision for her children. Her blatant disregard for her children’s safety continues to

put them at risk.” The social worker described numerous reports she had received about

mother leaving her children unsupervised. Aa.H. was often found in the parking lot and

she was twice found on the main street. On one occasion, Aa.H. walked into the shower

when a male resident was taking a shower. Mother told the social worker she had left her

children unsupervised “only . . . like five times and it was so that I can get them


                                              4
something to eat. If I didn’t you would have an issue with me not feeding them.” The

social worker observed that mother had failed to take advantage of the services provided

to her, and that mother had unresolved mental health issues.

          Subsequently, the social worker received a letter, dated August 19, 2013, from

Victorious Living Institute, a home for women, reflecting mother was residing in that

facility and receiving daily life skill training, drug and alcohol counseling, anger

management, relapse prevention, parenting, and spiritual studies. The Department

amended its supplemental petition to strike the allegation that mother had failed to enroll

in any case plan services.

          On August 27, 2013, the court found true the supplemental allegation that mother

frequently left the children unsupervised. The court removed the children from mother’s

custody.

          B.     The Reunification Period

          Mother was given reunification services for about a year and a half, from June

2013 to November 2014. Mother did make some progress on her case plan. She

completed parenting and domestic violence programs and provided negative drug test

results. However, during the entirety of the reunification period, mother was

unemployed, had difficulty maintaining housing, and failed to resolve her mental health

issues.

          In total, mother resided in four shelter facilities, two motels, and had spent time

living with a relative. In October 2014, mother reported that she was asked to leave a


                                                 5
domestic violence shelter in Riverside County because she was trying to establish contact

with father. As of November 2014, the social worker did not know where mother was

living. She had moved out of her most recent shelter and did not provide the social

worker with another address.

       Initially, mother was visiting the children during the review period on a consistent

basis, twice a week for four hours, and the visits were going well. The foster mother

would transport the children to mother’s shelter facility. However, starting in October

2014, mother stopped making efforts to visit the children. Mother was living in a new

shelter and was not taking advantage of the bus passes the social worker provided to

assist her in meeting the foster mother at a “halfway” point.

       Mother also failed to participate in case plan services designed to address her

mental health problems. In December 2013, mother’s evaluator, Dr. Robert Suiter,

diagnosed mother with Bipolar I Disorder and opined she was “in need of individual

psychotherapy and the administration of psychotropic medications.” He observed mother

was a “poor and unreliable historian” who had difficulty recounting how her children had

been removed from her care and “could not even state reliably who is the father of her

three children.” Dr. Suiter found mother’s statements regarding her history of marijuana

use particularly unreliable. He noted that mother “may have some mental confusion and

have some predisposition to experience hallucinations.” He concluded it would be

“overtly detrimental” to return the children to her care and that she was unlikely to

benefit from reunification services.


                                             6
       In the 12-month status review report dated August 13, 2014, the social worker

recommended terminating mother’s reunification services. One of the main reasons for

this recommendation was mother had “yet to address her mental health issues.” Mother

believed the children’s true father was Lance Gross, a television actor who lived in Los

Angeles. She believed that father had stolen Mr. Gross’s identity and was impersonating

him in order to stalk her. The social worker was concerned about mother’s “mental

stability,” noting that mother “has built an elaborate fantasy and appears to be delusional

about her relationship with the actor, Lance Grossman [sic].” Despite being given three

referrals for counseling and a psychotropic medication evaluation, mother failed to

participate in counseling regularly and failed to attend a medication evaluation.

       On September 23, 2014, the court ordered the Department to refer mother to

counseling services and a medication evaluation. On November 5, 2014, the social

worker filed an addendum report noting mother had been given referrals to at least four

different therapists and three psychiatrists for medication evaluations, and had

nevertheless failed to make “any efforts to engage in services.”

       At the review hearing on November 13, 2014, the court observed that mother still

had not participated in the court-ordered medication evaluation. The court found mother

had not made satisfactory progress on her case plan, terminated her reunification services,

and set the section 366.26 hearing.4

       4 In a previous order, we denied mother’s writ petition challenging the juvenile
court’s decision to terminate family reunification services and set the section 366.26
hearing. (Case No. E062341.)

                                             7
       C.     The Section 366.26 Report and Mother’s Section 388 Petitions

       On February 23, 2015, the Department placed the children in the home of the

prospective adoptive parent. The children were doing well in the home and had

established a healthy parent-child bond with the prospective adoptive parent, who was

providing the children with “nurture, emotional support and a stable home.” The

prospective adoptive parent desired to adopt all three children and keep the siblings

together. She had enrolled the children in “head start and a daycare program.” 5

       In the section 366.26 report filed on February 27, 2015, the social worker reported

that mother remained unemployed and had moved in with father. Mother told the social

worker she needed “another year to get herself together.” Mother wanted the court to

give her an opportunity to find stable housing and employment.

       Mother was attending the majority of the visits, which had been reduced from

twice a week to twice a month. By all accounts, mother acted appropriately and the

children appeared comfortable with her.

       In the section 366.26 report filed on September 1, 2015, the social worker reported

that mother was still unemployed and had no income. Mother had informed the social

worker she was no longer with father and was living in a domestic violence shelter.

According to the social worker, mother called the children on a weekly basis but had

missed many scheduled visits.

       5 The Department wanted to assess the children’s maternal grandmother for
prospective adoptive placement, but the maternal grandmother told the Department she
could not accommodate the children in her current living situation.

                                             8
       The social worker remained concerned about mother’s mental health. Mother was

pregnant and believed the father was the professional NBA athlete Dwayne Wade.

Mother also believed Mr. Wade may be the children’s father as well. She said she had

attempted to notify Mr. Wade that she was pregnant, but discovered he had a wife and

children. Mother had still not taken any steps to seek psychological assistance or

participate in a medical evaluation.

       On September 14, 2015, mother filed a section 388 petition as to each child,

requesting six more months of reunification services. Mother alleged her circumstances

had changed since the court terminated reunification services in that she had “worked

very hard to stabilize her living situation, stabilize any mental health issues, and . . .

improve her parenting capabilities.” Mother further alleged that more reunification

services would be in the children’s best interests because she had “never given up hope in

having the children returned to her care.” She stated she had addressed the issues

supporting jurisdiction—she had stopped using marijuana, found stable housing, no

longer claimed there was another father, had addressed the domestic violence issues with

father, and had participated in therapy and parenting classes.

       Mother filed the following supporting documentation with the court: letters from

“Mama’s House,” a home for pregnant women, confirming she was living at the shelter

(and could live there for up to three months after the birth of her baby) and was involved

in various classes and therapy sessions; certificates showing she had completed parenting

classes through “Birth Choice of the Desert,” “Triple P,” and “Native Challenge,” and a


                                               9
job search workshop through “Desert Best Friend’s Closet”; a letter from one of her

instructors describing her as motivated, enthusiastic, and prepared; documentation that

she had obtained CalFresh aid; a certificate showing she had completed a domestic

violence class in June 2014; a negative drug test from October 2015; and her own

declaration stating she had been clean and sober for 90 days.

       Mother also submitted the results of a psychological evaluation she had attended

on September 24 and October 1, 2015. Her evaluator, Dr. Jamie Kirkpatrick, observed

that she was in need of outside support and a stable place to live after Mama’s House.

Dr. Kirkpatrick could not “ethically advise as to whether [mother] should have her

children returned to her,” but observed that if mother did not obtain additional support,

“her prognosis [was] poor.”

       The court summarily denied mother’s section 388 petitions on the ground that

providing more reunification services would not promote the children’s best interests.

       D.     Termination of Parental Rights

       The court held the section 366.26 hearing on November 9, 2015. Mother testified

she had been living in a women’s shelter for the past six months. She apologized for

having made accusations that father was not the children’s father. She described her

visits with the children. She used to see them twice a week, but her visits had been

reduced to twice a month. Mother testified she was concerned because her children used

to call her “Mommy,” but had started calling her “Mommy R[ ].” Nevertheless, she felt

she had a deep bond with her children. They would run up to her and hug and kiss her at


                                            10
the beginning of each visit and were sad when each visit ended. Mother testified that her

goal would be to “in some way come together [with father] and raise our children like

two responsible adults.” Mother stressed that she “would do anything for [her children]”

and “love[s] them with all [her] heart.”

       The children’s maternal grandmother testified that she had attended at least four to

six visits, and every time the children would hug and kiss mother. Maternal grandmother

stated it was apparent that the children loved each other and loved mother.

                                               II

                                        DISCUSSION

       Mother contends the juvenile court abused its discretion by summarily denying her

section 388 petitions. For the reasons stated below, we find no abuse of discretion.

       “Section 388 permits ‘[a]ny parent or other person having an interest in a child

who is a dependent child of the juvenile court’ to petition ‘for a hearing to change,

modify, or set aside any order of court previously made or to terminate the jurisdiction of

the court’ on grounds of ‘change of circumstance or new evidence.’ (§ 388, subd. (a).)

‘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. . . .’ [Citation.] Section 388 thus

gives the court two choices: (1) summarily deny the petition or (2) hold a hearing.

[Citations.] In order to avoid summary denial, the petitioner must make a ‘prima facie’

showing of ‘facts which will sustain a favorable decision if the evidence submitted in




                                               11
support of the allegations by the petitioner is credited.’ [Citations.]” (In re Lesly G.

(2008) 162 Cal.App.4th 904, 912.)

       There are two requirements for a prima facie showing: The petitioner must show

that (1) there is a genuine change of circumstances or new evidence, and (2) a

modification of a previous order would be in the best interests of the child. (In re

Anthony W. (2001) 87 Cal.App.4th 246, 250.) In considering whether such a showing

has been made, the court may consider, among other things, “(1) the seriousness of the

problem which led to the dependency, and the reason for any continuation of that

problem; (2) the strength of relative bonds between the dependent children to both parent

and caretakers; and (3) the degree to which the problem may be easily removed or

ameliorated, and the degree to which it actually has been.” (In re Kimberly F. (1997) 56

Cal.App.4th 519, 531-532.)

       We review a summary denial of a hearing on a modification petition for abuse of

discretion. (In re A.S. (2009) 180 Cal.App.4th 351, 358.) “Under this standard of

review, we will not disturb the decision of the trial court unless the trial court exceeded

the limits of legal discretion by making an arbitrary, capricious or patently absurd

determination.” (Ibid.)

       The juvenile court’s decision to summarily deny mother’s section 388 petitions

was not arbitrary, capricious, or patently absurd. It is doubtful mother made a prima facie

showing of a genuine change of circumstances or new evidence. As of the time of her

petitions, she had not found stable housing, resolved her mental health issues, or been


                                             12
clean and sober for a significant amount of time. While it is true mother had found

temporary housing at Mama’s House, she was only permitted to stay at that shelter for a

maximum of three months after her child was born. She had completed a job skills class,

but she did not assert she had obtained employment. Without a job or other asserted

income, it is unclear how mother would provide a stable residence once she could no

longer stay at Mama’s House.

       Also, while mother alleged her mental health issues were resolved, it is not clear

how that could be the case. Mother did not allege that she had finally completed the

court-ordered medication evaluation. She was involved in therapy, according to her

petitions, but there was no indication of her progress. Furthermore, the psychological

assessment she attached to her petitions indicated she was still suffering from unresolved

mental health issues. Mother’s evaluator, Dr. Kirkpatrick, was unable to recommend

returning the children to her care and observed that without more support her prognosis

was “poor.” Finally, although mother’s alleged 90 days of sobriety is a commendable

step in the right direction, “[i]t is the nature of addiction that one must be ‘clean’ for a

much longer period than 120 days to show real reform.” (In re Kimberly F. (1997) 56

Cal.App.4th 519, 531, fn. 9.)

       Mother argues that “[i]ndigency, by itself, does not make one an unqualified

parent.” While this is true, poverty was not the only issue mother struggled with as a

parent. Mother also demonstrated an inability to properly supervise her children and an

unwillingness to resolve her mental health issues. Unfortunately, the record lacks


                                              13
evidence that mother’s inability to provide a safe and stable home for herself, let alone

her children, has been resolved.

       Even assuming a genuine change of circumstance, mother failed to make a prima

facie showing that six more months of reunification services was in the children’s best

interests. The problems that led to this dependency were mother’s inability to provide a

safe and stable environment for her children, as well as her mental health issues and use

of marijuana while parenting. Such problems are not easily solved or ameliorated, and

mother had only just begun to take steps in that direction. More importantly from the

perspective of the children’s best interests, the children had developed strong bonds with

their prospective adoptive parent. The record shows they were thriving in their

prospective adoptive home, and that mother’s efforts to visit them decreased dramatically

starting in October 2014.

       Mother had nearly two years to reunify with her children, but she was unable to do

so. Once the court terminated services in November 2014, the children’s interests in the

permanency and stability they had found outside mother’s care was paramount. “After

the termination of reunification services . . . ‘the focus shifts to the needs of the child for

permanency and stability.’” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Mother did

not allege in her section 388 petitions how returning the children to her care would

benefit the children in any way. Mother may well feel a deep bond with her children, as

she asserted in her section 388 petitions; however, we cannot conclude the juvenile court

acted unreasonably or arbitrarily in finding it would be detrimental to disturb the bond


                                               14
between the children and their prospective adoptive parent and to introduce further delay

in the process of adoption. As such, summary denial of the section 388 petitions was

proper.

                                           III

                                     DISPOSITION

      The orders appealed from are affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                              SLOUGH
                                                                                        J.

We concur:


McKINSTER
                Acting P. J.


MILLER
                          J.




                                           15
