Filed 3/27/14 M.A. v. Superior Court CA5




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

M.A.,
                   Petitioner,
                                                                                       F068619
         v.
                                                                       (Super. Ct. No. 12CEJ300224-1)
THE SUPERIOR COURT OF FRESNO
COUNTY,
                                                                                   OPINION
                   Respondent;

FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,

                   Real Party in Interest.


                                                   THE COURT
         ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Brian M.
Arax, Judge.
         M.A., in pro. per., for Petitioner.
         No appearance for Respondent.
         Kevin Briggs, County Counsel, and Amy K. Cobb, Deputy County Counsel, for
Real Party in Interest.
                                                        -ooOoo-

        Before Gomes, Acting P.J., Franson, J., and Peña, J.
       M.A. (mother), in propria persona, seeks an extraordinary writ from the juvenile
court’s orders issued at a contested 12-month review hearing (Welf. & Inst. Code,
§ 366.21, subd. (f))1 terminating her reunification services and setting a section 366.26
hearing as to her 17-month-old son, Daniel. She contends the juvenile court judge should
have disqualified himself because he knew Daniel’s foster father. Additionally, she
challenges the accuracy of documentary evidence admitted to the court and provides
updated information about her financial status. We deny the petition.
                    PROCEDURAL AND FACTUAL SUMMARY
       In August 2012, mother, then 34 years old, gave birth to Daniel at 25-weeks
gestation. Mother stated she was homeless and drank alcohol during her pregnancy to
ease “withdrawal tremors.” She also smoked marijuana.
       Daniel was admitted to the neonatal intensive care unit in critical condition on a
ventilator in cardiorespiratory distress and shock with liver and renal injury. He
remained there until January 2013 when he was discharged to the care of foster parents,
Mr. and Mrs. S., as mother had not provided any information about relatives for possible
placement. During the course of Daniel’s treatment, he was diagnosed with fetal alcohol
syndrome and underwent a small bowel resection for necrotizing enterocolitis.
       Meanwhile, the Fresno County Department of Social Services (department) filed
an original dependency petition on Daniel’s behalf alleging mother’s substance abuse
placed him at a substantial risk of harm. (§ 300, subd. (b).) The whereabouts of Daniel’s
alleged father were unknown.
       In September 2012, the matter came before Judge Brian Arax sitting as the
juvenile court. The juvenile court detained Daniel and ordered the department to offer


1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


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mother parenting classes, substance abuse and mental health evaluations and any
recommended treatment, and random drug testing. Judge Arax presided over all
subsequent hearings in the case.
       Mother completed a substance abuse assessment. She said she drank alcohol and
experimented with cocaine and methamphetamine in her late teens. However, she had
not used either drug since she was 30 and alcohol had not been a problem until the year
before when she began to drink heavily. She drank every day before she realized she was
pregnant with Daniel. Afterward, she tried to wean herself off of alcohol. Mother also
said she completed the “PC 1000” program over three years ago after being arrested for
public drunkenness. The assessor recommended she participate in residential substance
abuse treatment.
       Mother also completed a mental health assessment and the clinician concurred she
needed residential treatment. At that time, mother was living with her father and relied
on him for financial support. She told the clinician her father was an alcoholic and they
had physical altercations.
       In December 2012, mother entered Spirit of Women 90-day residential substance
abuse treatment program. While there, she visited Daniel regularly.
       In January 2013, the juvenile court ordered reunification services for mother
consisting of the services already offered plus a domestic violence assessment and
recommended treatment. The court did not order any services for Daniel’s alleged father.
       In February 2013, Daniel was admitted to the hospital with feeding dysfunction
with aspiration. Daniel underwent open gastrostomy placement and mother and Mr. and
Mrs. S. were trained in feeding him through a gastrostomy tube (G-tube).
       In March 2013, mother completed residential treatment at Spirit of Women. In
May, her father died.



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      In July 2013, the department filed its report for the six-month review hearing and
recommended the juvenile court continue mother’s reunification services to the 12-month
review hearing. Mother was living in a mobilehome she inherited from her father and
was looking for work so she could pay for the rental space. She was participating in
aftercare, mental health services and domestic violence counseling through the Phoenix
Program, and testing negative for drugs and alcohol. In addition, she was visiting Daniel
one to two times a week under the supervision of Mr. and Mrs. S. During her visits,
mother learned to feed Daniel with the G-tube. She also bathed him and cared for him.
Mr. and Mrs. S. reported that mother was attentive to Daniel’s needs and was learning to
use his medical equipment. Mother began unsupervised visitation in July.
      In July 2013, the juvenile court found there was a substantial probability Daniel
could be returned to mother’s custody and continued reunification services to the 12-
month review hearing, which it set for October 31, 2013.
      In its report for the 12-month review hearing, the department advised the juvenile
court that mother was making efforts to complete her services but had not demonstrated
the ability to meet Daniel’s special needs. Daniel required nightly feeding through a G-
tube and close monitoring for aspiration and there were indications mother was struggling
with sobriety and depression. She said she suffered depression to the point of not
wanting to get up in the morning several times a month. She also tested positive for
marijuana in August on two consecutive days and subsequently missed several tests. She
had not completed aftercare, did not have a sponsor, and was not attending
Alcoholics/Narcotics Anonymous (AA/NA) meetings. Mother was, however, visiting
Daniel during the day unsupervised and Daniel recognized her and reached for her.
      The department also reported that Mr. and Mrs. S. were willing to adopt Daniel or
become his legal guardians if mother was not able to reunify with him. They actively
participated in all of Daniel’s therapies and medical appointments and researched medical

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support websites for ways to care for short gut premature children, G-tube management,
and other issues related to prematurity and fetal alcohol syndrome.
       The department recommended the juvenile court terminate mother’s reunification
services and set a hearing to implement a permanent plan. The department also
recommended that the court limit mother’s educational rights and appoint Mr. and Mrs.
S. as Daniel’s surrogate educational representatives. This was the first time the
department identified Mr. and Mrs. S. as Daniel’s foster parents.
       On October 31, 2013, Judge Brian Arax convened the 12-month review hearing
and disclosed that he played Little League baseball with Mr. S. in the late 1960’s. The
court stated:

       “That was 1967, ‘8 and ‘9. He was our first baseman. I played against him
       in school when we were in separate schools. I would see him, his brother,
       his dad. [I was warmly] disposed to his dad when I was a kid as one of our
       assistant coaches. We’d see their children, in turn, at various baseball
       games. That has not occurred in the last, probably, four years now. We are
       not friends in the sense that we hang out together or socialize, it is more of
       an acquaintance. But we do go back quite some ways and I do know him.
       So I must disclose the fact that I know him in court. The Court does not
       consider that in any way, shape, or form the subject of personal
       disqualification on my own motion and I’m convinced that I could be fair
       and impartial, but I think a reasonable person would want to know if I knew
       the care provider, and I do along the lines I’ve suggested.”
No one objected to Judge Arax presiding over the matter. The court set a contested 12-
month review hearing for December 2013.
       Mother’s attorney filed a statement of issues informing the juvenile court that
mother completed a parenting class, was participating in therapy, was attending aftercare,
and tested negative for alcohol and drugs since August. Mother believed she made
significant progress and asked the juvenile court to continue her reunification services to
the 18-month review hearing.



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         Prior to the hearing, the juvenile court received a letter from Spirit of Women
Case Manager Rachel Aguirre stating mother completed all phases of treatment and
presented herself as “a responsible woman that has learned to seek out help when
needed.” In addition, mother set “appropriate boundaries in her life with great promise
for her future.”
         In December 2013, the juvenile court convened the contested 12-month review
hearing. County counsel advised the court that it received an updated report from the
testing laboratory reflecting that mother tested positive for alcohol on December 5 at the
highest possible measurement and for marijuana on December 16. Mother’s attorney
stated that mother questioned the results and requested a continuance so she could take a
hair follicle test. The court denied her request.
         Social worker Tiffany Murphy-Deaver testified that Aguirre’s letter would not
change her recommendation to terminate mother’s reunification services because
mother’s positive tests indicated she did not benefit from substance abuse treatment and
because mother struggled from depression. Mother told Murphy-Deaver she tested
positive for alcohol because she consumed NyQuil but Murphy-Deaver confirmed with
the testing laboratory that NyQuil would not produce that result. Mother did not have an
explanation for the positive results for marijuana. Mother told Murphy-Deaver on
December 17 that she did not want to get out of bed that morning. Murphy-Deaver
believed mother’s level of depression posed a risk of harm to Daniel given his special
needs.
         Mother testified Daniel was considered a medically fragile child and had cognitive
delays. She was participating in a program with Daniel called Loretta’s Little Miracles
where Daniel received physical therapy. She also participated with Daniel in Exceptional
Parents Unlimited where she received assistance in parenting. She said she completed
instruction in parenting and domestic violence and aftercare through Spirit of Women.

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She also participated in the Phoenix Program, a separate domestic violence program, and
would complete the program after three to four more sessions. She had unsupervised
visits with Daniel twice a week. She acknowledged cancelling a visit because she was
sick but denied cancelling visits because she was tired or “having a bad day.”
       Mother explained the positive test for alcohol by stating she consumed a full bottle
of NyQuil in a 24-hour period. She was using the NyQuil because she was sick. She
could not explain the positive test for marijuana. She said she did not smoke marijuana
and had not done so for a year. She thought perhaps she ingested it when she went to her
neighbors’ house because she knew they smoked marijuana. However, they did not
smoke marijuana when she was at their home and she did not smell marijuana while at
their home.
       Mother testified she wanted Daniel returned to her under family maintenance. She
said she knew how to feed Daniel through the G-tube and had done so previously when
he was fed that way during the day. She also said he passed his swallow test and could
eat regular food, which she knew how to prepare and feed him.
       Murphy-Deaver, recalled to the stand, testified that mother’s depression could be
detrimental to Daniel if it caused her to mismanage his feeding through the G-tube. She
explained Daniel is fed through the G-tube for 10 hours each night and needed to be
released from it. If he were left for a prolonged period, he could wrap himself in the tube
and harm himself. In addition, the tube needed to be cleaned.
       The juvenile court found it would be detrimental to return Daniel to mother’s
custody, she was provided reasonable services, and there was not a substantial likelihood
Daniel could be returned to her custody by the 18-month review hearing in March 2014.
The court terminated mother’s reunification services and set a section 366.26 hearing.
This petition ensued.



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                                       DISCUSSION
       Mother’s petition consists mainly of a listing of complaints, which distilled to their
essence challenge the accuracy of documentary evidence, offer new evidence, and fault
the juvenile court for not disqualifying itself. We will address them in that order.
       Mother contends the department embellished her drug use and falsely stated she
was dropped from the Phoenix Program in its status reports. She also contends medical
records included with the status reports inaccurately documented Daniel’s ethnicity and
falsely stated that she could not be located to authorize Daniel’s surgery. We conclude
that mother waived the right to challenge any of the evidentiary documentation she cites
because the department’s reports and all attached documents were entered into evidence
without objection. (Evid. Code, § 353.) Consequently, we cannot review mother’s
contentions as to them.
       Mother also offers information as to her current income and identifies a relative
who wants to adopt Daniel. We cannot review this information either because we cannot
review evidence that was not before the juvenile court. (In re Zeth S. (2003) 31 Cal.4th
396, 405.)
       Finally, mother contends Judge Arax was not objective and should have recused
himself because he knew Mr. S. She also claims he attacked her and called her a “liar.”
       Real party in interest argues this court should disregard mother’s contention
because she failed to provide adequate legal citations or argument in her petition. We
agree mother’s petition is devoid of legal citations pertaining to this issue. Further,
mother’s attorney did not object to Judge Arax presiding over her case. Consequently,
mother’s attorney waived mother’s right to challenge the issue on appeal. (People v.
Williams (1997) 16 Cal.4th 635, 651-652.)
       Assuming, however, for the sake of argument the issue is not waived, we would
nevertheless find no merit to mother’s claim Judge Arax was biased. “A judge shall be

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disqualified if … [¶] … [¶] [f]or any reason: (i) The judge believes his or her recusal
would further the interests of justice. [¶] (ii) The judge believes there is a substantial
doubt as to his or her capacity to be impartial. [¶] (iii) A person aware of the facts might
reasonably entertain a doubt that the judge would be able to be impartial.” (Code Civ.
Proc., § 170.1, subd. (a)(6)(A).)
       We have reviewed the reporter’s transcript and find no evidence that Judge Arax
“attacked” mother or called her a “liar.” Further, we find no evidence Judge Arax was in
any way biased.
       We construe mother’s arguments as challenging Judge Arax’s findings it would be
detrimental to return Daniel to her custody and there was not a substantial probability
Daniel could be returned to her custody by the 18-month review hearing in March 2014.
We conclude substantial evidence supports Judge Arax’s findings.
       Daniel was medically very fragile and required a vigilant care provider. Mother,
however, was still using alcohol and marijuana and was not honest about it. In addition,
she expressed being depressed to the point of not wanting to get out of bed. Under the
circumstances, it was not safe to return Daniel to her custody.
       Further, there was not a substantial likelihood Daniel could be returned to
mother’s custody within the three months remaining before the 18-month review hearing.
In order to make such a finding, Judge Arax had to find mother “demonstrated the
capacity and ability both to complete the objectives of … her treatment plan and to
provide for [Daniel’s] safety, protection, physical and emotional well-being, and special
needs.” (§ 366.21, subd. (g)(1)(C).) Given mother’s fragile emotional state and dubious
sobriety, Judge Arax could reasonably conclude Daniel could not be safely returned to
mother by the 18-month review hearing.




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       We find no error on this record and deny the petition. Mother may, however,
petition the juvenile court under section 388 to reinstate reunification services if her
circumstances warrant doing so.2
                                      DISPOSITION
       The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.




2       Section 388 allows the parent of a child adjudged a dependent of the juvenile court
to petition the court to change, modify or set aside any order upon grounds of change of
circumstance or new evidence. (§ 388, subd. (a)(1).) The parent bears the burden of
showing a genuine change of circumstance has occurred or new evidence has been
obtained and undoing the prior order would be in the best interest of the child. (In re
Kimberly F. (1997) 56 Cal.App.4th 519, 529.)


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