1 Filed 3/11/15 C.T. v. Super. Ct. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE DISTRICT DIVISION TWO

C.T. et al., Petitioners,

v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent;
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest; M.W. et al., Real Parties in Interest. E062455 (Super.Ct.No. SWJ010208) OPINION

ORIGINAL PROCEEDINGS; petition for ex traordinary writ. Harry Staley, Judge. Petition denied. David A. Goldstein for Petitioner C.T. (mother). Kim Hasler for Petitioner R.C. (father).2 No appearance for Respondent. No appearance for Real Party in Interest Riverside County Department of Public Social Services (DPSS). Law office of Arthur J. La Cilento and Arthur J. LaC ilento for Real Parties in Interest M.W. and S.W. (legal guardians). Petitioners C.T. (mother) and R.C. (father) 1 are the parents of Ca.T. (child), a medically fragile child who was removed from mother’s care in July 2010. The child was fifteen months old at rem oval and five years old at the time of the challenged orders. In this writ petition, mother challenges the ju venile court’s order of November 24, 2014, granting the legal guardians’ pe tition under Welfare and Institu tions Code section 388 to set a section 366.26 hearing to consider chan ging the child’s permanent plan from legal guardianship to adoption. 2 Specifically, mother argues the juvenile court abused its discretion in even granting a hearing on th e petition because the petition did not establish a prima facie case for the requested change, in that it was supported solely by the legal guardian’s self-serving declaration, with no other supporting evidence. Father, who is an alleged father, joins in mothe r’s arguments. Because we find that the legal guardian’s declaration establishes the key changed ci rcumstance—that she and her husband now

1 The alleged father never expressed any interest in supporting the child and was never raised to the status of a presumed fath er, and so he is mentioned here only because he filed a request for joinder to mother’s writ petition.

2 All section references are to the Welf are and Institutions Code unless otherwise indicated.3 wished to adopt the child to provide her with permanency—and th at the record as a whole shows that this would be in the ch ild’s best interest, we deny the petition.
F ACTS AND P ROCEDURE Removal and Detention—July 2010 The child was initially rem oved from mother’s care in July 2010 be cause mother was not complying with the child’s medical tr eatment plan. The ch ild was born with a gastrointestinal defect that required surger y to cut out a portion of the small bowel, in addition to other surgeries. The resulting “short bowel syndrome” means the child has less bowel area available to absorb nutrients and must be fed by “total parenteral nutrition” (TPN). TPN is administered through a central line catheter in the chest. This requires close monitoring to avoid infections and to make sure the child is getting enough nutrients and not losing weight. The child spen t most of her first year of life at Loma Linda University Medical Center a nd was released on March 2, 2010. Between Los Angeles Coun ty and Riverside County, child protective services received referrals regarding the child in Marc h 2010 and April 2010, twice in May 2010, and again in July 2010 alleging general neglec t. The following problems were reported: First, mother participated in on ly three days of a five-day be dside training to enable her to carry out the child’s feeding regimen so thatthe child could be discharged from a tenmonth hospital stay into mothe r’s care. Mother stated th at she suffers from untreated anxiety and depression. Second, mother take s the child out of town to her boyfriend’s home where they use and sell drugs, leavi ng the child unattended and crying while mother uses drugs. Third, one day mother told the nurse who come s to the home each4 day to help with feeding the child 3 that the family was leavin g for the day, and promised to start the TPN—however when the nurse returned the next day the child had been fed only a small fraction of what she required. Mo ther reported she “forgot” to start the TPN and that the child was very h ungry, so mother fed her “all kinds of food, which she can eat but in small amounts.” The child became dehydrated and fevered from not receiving enough liquids, and had to be ho spitalized. “The referral furthe r stated that if the child misses regular feedings, she can become dehydrated or septic, which can be life threatening.” Fourth, the child was hospitalized for 22 days in April and again in May because of multiple infections ne ar the site of the TPN line. In addition, the line had been cut, which could result in the child starving. Fifth, after being told by do ctors at Loma Linda that the child would need surgery to treat a bowel obstruction, mother stated that she wanted to seek a second opinion. However, mother reportedly to ok the child to th e emergency room at both Cedars Sinai Hospital and UCLA Medical Center to seek th e second opinion, rather than making an appointment as Loma Linda st aff had advised her to do. Medical staff at Loma Linda were concerned that the child was losing wei ght during this time, because the child would not be able to withstand the surgery if she lost too much weight. The TPN line began to leak, so Loma Linda medical personnel directed mother to take the child directly to the emergency room so the child co uld be admitted and the source of the leak found. Mother

3 It appears from the record that the child received th e TPN feeding each day from 4:30 pm until noon the next day, and that th e child was provided w ith home nursing care to assist with the TPN.5 failed to do this and both medical staff and the social worker were unable to contact mother. The social worker went to the home with a Sheriff’s deputy the following evening. After consulting with a supervisor and the on-call doctor at the hospital, who reported that “this has been an on-going problem with [mot her] not following through with appointments,” th e child was placed into protectiv e custody and the social worker arranged for the child to be transported to the hospital by ambulance. Mother and her boyfriend initially refused to allow the parame dics into the home and resisted having the child taken to the hosp ital. They then insi sted the child be tran sported to UCLA. The boyfriend became quite agitated and other people present at th e property “began to make the situation more difficult and began interfering in the investigation . . . .” The deputy determined that the boyfriend had been arrested in May for a domestic violence incident with mother at the home. Moth er initially denied the incident , but later stated that it was an argument that did not involve a physical al tercation. It was later determined that mother and her boyfriend were arrested t ogether in February 2010 for drug possession. 4 At the detention hearing he ld on July 28, 2010, the j uvenile court detained the child and set supervised visitation at a minimum of twice per week. Jurisdiction and Disposition—September 2010 In the jurisdiction and di sposition report filed Septembe r 17, 2010, the Department of Public Social Services (DPSS) reported th at the child was doing well in her placement in the sub acute unit at San Bernardino Commun ity Hospital, and appeared to be slightly

4 Mother has an older daughter in lega l guardianship with mother’s grandparents. {CT 16, 916-917}6 developmentally delayed. Mother acted appropriately while vi siting the child, who seemed to be comforted by mother’s presen ce. Mother appeared to have untreated mental health and de pendent personality issues, and the social worker opined from speaking with family members and medical staff that moth er may have suffered past traumas. Hospital staff reported that mothe r’s boyfriend appeared to emotionally abuse mother. Attached to the report was a doctor’s summary of the child’s medical and safety issues. The doctor concluded that the child has “multiple diagnos es which may be lifethreatening when her condition is n’t stable,” that the child’s condition had not been stable since she was initially sent hom e from the hospital in March, that mother did not appear to be able to stabilize the child at home de spite training and in-home nursing assistance, and that the child is consider ed medically fragile and would require a specialized foster home. A nurse, who was one of two primary caregivers fo r the child in the NICU at Loma Linda and had become a family frie nd, asked for her and her husband to be considered for placement. Att ached to the report is a long email from the nurse detailing the child’s many surgeries, inf ections, diagnoses and crises while in the hospital for ten months. At the jurisdiction and disposition heari ng held on September 22 and 23, 2010, the juvenile court sustained allegations in a se cond amended petition unde r section 300. The sustained allegations were, under subdivision (b), failure to protect, that mother: 1) fails to follow through with medical treatment for the child , who suffers from “short bowel syndrome,” resulting in the child being hospitalized; 2) moth er and her boyfriend engage in domestic violence in the child ’s presence; and 3) the child’s alleged father has failed to7 provide her with support. Under subdivision (g), no prov ision for support, the court found true the allegation that the alleged fa ther’s whereabouts are unknown and that he has failed to provide her with support. Th e court ordered reunification services for mother and denied them to father, who was only an alleged father. The court ordered mother to participate in a psychological evaluation to determine whether she could provide appropriate care for the child. The court ordered DPSS to obtain a second opinion regarding the proposed surgery and auth orized mother to participate in medical decisions. Six-Month Review—May 2011 In the six-month review report file d on March 8, 2011, DPSS recommended continuing reunification services to mother. Mother had obtained a restraining order against her boyfriend after he was arrested for kidnapping and assaulting her. The psychological evalua tion resulted in a diagnosis of “m ixed personality disorder which will impact her ability to care for a child with multiple medi cal needs.” Mother was not taking any medication for this. Mother’s arrest the previous year with her boyfriend for possessing drugs for sale resulte d in felony charges that we re still pending. In January, the child was placed with th e nurse from Loma Linda wh o had requested placement. 5 Mother objected to having the child immuni zed, and so immuniza tion was delayed until DPSS got a court order. The child remained me dically fragile, was often sick because of infections and other complica tions, and was hospitalized thr ee more times. DPSS sought

5 The foster mother quit her position at Loma Linda so she could provide 24-hour nursing care for the child at the foster home. {CT 979}8 and obtained a court order to ha ve the surgery to wh ich mother had objected prior to the dependency. The child was developing norm ally and appeared to be happy when medically stable. Several people told the so cial worker that mother was still drinking heavily and doing drugs; mother de nied this but did not show up for a hair follicle test. Medical staff reported that mo ther would bring different “w eird looking” men with her when she visited the child in the sub acute unit, and that th e men appeared to be on drugs. Mother was making progress in her service plan. In the addendum report filed on May 2, 2011, the social worker reported that mother had a negative hair follicle test for drugs. For this reason, the social worker recommended six more months of services, but expressed concerns regarding “the company the mother continue s to keep around her.” The six-month review hearing was even tually held on Ma y 2, 2011. The 

### juvenile court continued the child as a dependent of the court and continued mother’s reunification services. Twelve-Month Review—September 2011 In the 12-month review report filed September 8, 2011, DPSS recommended six more months of reunification services fo r mother. DPSS also recommended mother begin unsupervised weekend visits once moth er completes one-on-one medically fragile classes with the Public Health Nurse (PHN), with the possibility of placing the child with mother on family maintenance if weekend vi sits and mother’s case plan go well. Mother’s criminal case for drug possession was still pending. Mother had two negative hair follicle tests for drugs. Mother complete d her domestic violence classes, obtained9 her own housing and stated sh e has had no negative contact with her former boyfriend and did not even know his whereabouts. Mo ther completed a parenting class and part one of the medically fragile training class, a nd agreed to begin one-on-one sessions with the PHN. The child was develo ping normally at age two a nd appeared happy. The child was still suffering from infections, skin breakdown, leakage in her J-tube 6 and other complications of her medical condition, bu t had not been hospitalized during this reporting period. The foster mother had a “g ood working relationship with [mother] and wants to see mother and child reunified if at all possible. One of the reasons she is working so hard to provide me dical care and consistency that promotes steady progress is to insure a more successful long-term reuni fication with a less taxing level of medical acuity. At present, the level of care is challenging for an RN, let alone a non-medical single mother.” The social wo rker, mother, foster mother and PHN we re working closely to get mother trained so she could transiti on to caring for the child and her extensive medical problems. Mother visited with the ch ild at the foster home two to four times per week and attended some doctor visits. Mother refrained from bringing her friends to the foster home. Mother was appropriate in he r visits, although she was anxious to get the child to eat regular food despite the occupatio nal therapist warnings against rushing this. Mother had completed most of her case plan and the focus was on getting her trained to care for the child medically and completing a slow transition to ensure mother was capable of caring for th e child. The concurrent plan was adoption by the foster mother.

6 The J-tube is used for feeding a nutrition formula and sometimes medication directly into the intestines.10 The 12-month review hearing was held on September 21, 2011. The court continued the child as a dependent of the court and continued mother’s reunification services. The court authorized mother to have unsupervised weekend and overnight visits once the mother complete d her one-on-one medically fragile classes with the PHN. Eighteen-Month Revi ew—September 2012 In the status review report filed Janua ry 6, 2012, DPSS recommended returning the child to mother on family maintenance. Mother stated she was ta king a weekly drug awareness class for 18 months as part of a pl an to mitigate her felony charges. Mother was also working with a ther apist on her mental health issues. Mother was making progress on training to care fo r the child’s medical needs, having completed one-on-one training with both the PHN and the foster mo ther. The paternal great-grandmother was being trained to provide bac kup babysitting for th e child. The child was also making strides in her overall development and all par ties were working to wean her from the TPN feedings. She was down to three days per we ek of 14-hour TPN, rather than every day, and was making stop-and-go progress in eating food, although she was doing well at drinking water. The child was not hospitalized during this reporting period. As of the date of the report, the plan wa s to keep the child with the fo ster mother for approximately three more months to get her onto regular f ood and off the TPN before transitioning her to mother’s care. The child had four successf ul, unsupervised, 12-hour visits with mother on days when she did not have TPN. The ch ild then had two successful overnight stays at mother’s home, at least one of which was during her TPN.11 On January 12, 2012, the fo ster mother filed a request to be declared a de facto parent. The court granted that request on May 17, 2012. DPSS filed an addendum report on Marc h 26, 2012, in which it continued to recommend the child be returned to mother on family main tenance, but warned that mother would have to avoid do mestic violence contacts with her previous boyfriend. The three-year-old child had mentioned that the boyfriend had come to see her and/or given her a Christmas present during an unsupervised visit at mother’s home in December of 2011. According to police reports dated December 26 and 27, mother reported the boyfriend had contacted and threatened her on several previous occasions, although she did not report this to the police until he ca me to her home on December 26, and again on December 27 after he bailed himself out of jail from the December 26 incident. Upon being arrested for violating th e restraining order, the boyfrie nd stated he was allowed to go to mother’s home, and that he had spent the night there before . One of mother’s neighbors stated that she had seen the boy friend at mother’s apartment several times since the end of October, and had seen hi m knocking on the doors and windows. On May 2, 2012, DPSS filed an addendum report recommending mother’s reunifications services be term inated and a section 366.26 hearing be set to consider a permanent plan of legal guardianship. The attempt to wean the child from the TPN was unsuccessful, and the child started to lose wei ght. The child had to have another surgery in March to fix the J-tube site. The TPN was resumed 14 hours per day, every day. This meant the child would continue to require intense, continuous monitoring and care. In addition, while mother was receiving exte nsive training in caring for the child, and12 mother obviously loves the child , the social worker expressed concern that DPSS still had to caution mother to use judgment “when co ntemplating ‘excursions’ she wants to embark on” during unsupervised visits. The fo ster mother believed mother showed poor judgment while the child was re covering from surgery in Marc h by taking the child to the playroom for excessive amounts of time rather than letting the child rest. In April, mother volunteered to mix the TPN and connec t it to the central line at the end of a supervised visit at the foster parents’ home. The next morning th e foster mother found that mother had neglected to turn on the pump, so the child did not receive any TPN all night. After an unsupervised visit in April, mother returned the child with the central line not properly secured. This compromised the lin e’s sterile integrity a nd risked infection. This also risked having the lin e pulled out, which “could resu lt in a major bleed out and is to be avoided at all costs.” The mother wa s appropriately concerned and receptive to the foster mother’s later reinforc ement of proper care of the central line, but this episode caused concern in light of the extensive training mother had already received. DPSS filed a second adde ndum report on August 30, 20 12. DPSS renewed its recommendation that reunification services to mother be terminated and a section 366.26 hearing be set to consider legal guardianship. TPN was reduced from seven days per week to five days. The foster mother a nd social worker continued to be concerned regarding mother’s ability to care for the child and her co mprehension of the serious nature of the child’s condition. The child wa s hospitalized for four days in August when it was suspected she might have an infection in her central line. Mo ther complained to the social worker that the ch ild had been hospitaliz ed for “no apparent reason” and that it13 had been a waste of time. Mo ther continued to tell the soci al worker that the child was not an invalid and should spend more time going to dance classes, skating and other outdoor activities. Mother wanted the child to have a portable TPN pump so she could go outside more. The foster mo ther attempted this, but the child would not tolerate the portable pump. The social worker was con cerned that mother was placing the child’s social needs ahead of her medical needs. During unsupe rvised visits, mother was improperly bandaging the child’s J-tube in a way that was less cumbersome and increased the child’s m obility, but resulted in excessive leak age. Previous leakage in the J-tube had necessitated the surgery the previous March. The 18-month review hearing was eventua lly held on September 5, 2012. The court terminated mother’s reunification servi ces and set a section 366.26 permanent plan selection and implementation hear ing. The court ordered that mother be informed of the child’s medical appointments and that she be allowed to attend, and authorized one supervised visit per week. Section 366.26 Hearing—January 2013 In a report filed October 24, 2012, DPSS recommended the dependency be terminated and the child be pl aced in legal guardianship. The child had reduced TPN to three days per week, and then in October the child began a tr ial routine of no TPN. The child received most of her nutrition through the J-tube and was be ginning to eat some solid food three times per day. The previous problems with J-tube leakage had become minimal once supervised visits with mother were ended at the 18-month review in September. The social worker opined that the child’s success in ther apy to help her eat14 normally had improved once the supervised vi sits were stopped, because she was in a consistent care environment where the foster mother enforced th e rules. The child continued to develop normally. Mother agre ed to the proposed legal guardianship. DPSS filed an addendum report on January 16, 2013. The child had been healthy since the last court date and had increased or al intake of nutrition from 15 percent to 33 percent. The 67 percent J-tube nutrition wa s going well. The social worker received information from several source s, including relatives, the fo ster parents, and the child herself, that mother was back w ith her former boyfriend. Moth er denied this. The foster parents stated they were w illing to adopt the child if mo ther could not change her behavior patterns, but prefe rred legal guardianship at that time to give mother the opportunity to make life changes and regain custody of the child. DPSS recommended legal guardianship with the option to upgra de to adoption in th e future, with one supervised visit per month. At the section 366.26 heari ng held on January 28, 2013, the court selected legal guardianship with the foster parents as the child’s permanent plan and terminated the dependency. The court ordered mother to have visits as set forth in a mediation agreement, which allowed mother to have supervised visits for three hours every other Friday. Section 388 Petition—Septem ber through November 2014 On September 12, 2014, legal guardians filed a section 3 88 petition asking the court to allow them to adop t the child. The new informa tion cited in the petition was: (1) the child would require ongoing medical care for the rest of her life; (2) after four15 years of dependency, mother had failed to ma ke changes in her life that would allow her to care for the child; and (3) mother not only continues to not understand the child’s medical needs, but denies th at the child has medical needs. The petition stated the requested change would be in the child’s best interest because: (1 ) the child has thrived and her medical condition has improved during the time she has been in the care of the legal guardians; and (2) the child needs long-te rm stability and a family that can provide for her medical needs on a permanent basis. Attached to the petition is the legal guardian’s declaration describing the child’s medical and personal progress in her care, mother’s failure to b ecome capable of providing for th e child’s complex medical needs after four years of dependency, and the le gal guardians’ desire to adopt the child. At the hearing on the petition held on November 24, 2014, the juvenile court granted the petition, finding “that there is a ch ange of circumstances, in that the legal guardians seek to adopt, and based upon the s ituation as described with the child and the mother and the legal guardian, those change of circumstances would make it in the best interest of the child to grant the motion to set the .26 heari ng.” The court reinstated the dependency and set a section 366. 26 hearing for March 24, 2015. This writ petition followed.
D ISCUSSION Mother argues the juvenile court abused its discretion when it set a section 366.26 hearing to consider changing the permanent plan to adoption. Mother contends the legal guardian’s section 388 petition asking for th e section 366.26 hearing did not contain supporting evidence other than the guardian’s self-serving declaration. DPSS responds16 that the legal guardian made a prima faci e showing as to the required change in circumstances and best interest of the child . The legal guardian did so, DPSS argues, when she informed the court of: (1) their ne w willingness to adopt the child in the face of mother’s four-year failure to make progress in becoming ab le to care for the child’s medical needs; and (2) the strengthening bond between the child and the guardians. “A juvenile court order may be changed, mo dified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the pr oposed change would promote the best interests of the child. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearin g to consider the parent’s request. [Citation.] [¶] However, if the liber ally construed allegati ons of the petition do not make a prima facie showing of changed ci rcumstances and that the proposed change would promote the best interests of the child , the court need not or der a hearing on the petition. [Citations.]” ( In re Zachary G. (1999) 77 Cal.App. 4th 799, 806.) “In determining whether the petition makes the n ecessary showing, the court may consider the entire factual and procedural hist ory of the case. [Citation.]” ( In re Justice P. (2004) 123 Cal.App.4th 181, 189.) “[ A] primary consideration in determining the child’s best interest is the goal of assuri ng stability and continuity.” ( In re Stephanie M . (1994) 7 Cal.4th 295, 317.) Here, the key changed circumstance, as se t forth by the juvenile court at the section 388 hearing, and in the legal guardian’ s declaration, is that the legal guardians17 now wished to adopt the child . We find the declaration a ttached to the petition to be sufficient to establish a prima facie case of this changed circum stance. The record indicates the concurrent plan all along had been legal guardi anship or adoption, and that DPSS recommended legal guardianship instead of adoption solely because the foster parents wished to give mother as much a chance as possibl e to reunify with the child. That is why the key changed circumstance is the legal guardians’ decision to adopt, and the declaration more than ad equately establishes this. Regarding the child’s best interest, as stat ed above this can be shown by the entire factual and procedural history of the case. The record is clear that the child’s very serious medical condition improved when she was in the care of the legal guardians, that it worsened when she was in mother’s care to the point of being life threatening, and that unsupervised visits, and even in one instance an unsupervised visit, caused actual medical harm to the child. For these reasons, we have no trouble whatsoever in denying this writ petition based on the overwhelming evidence in the record that the section 388 petition established a prima facie case for changed circ umstances and that the proposed change to a permanent plan of adoption is in the best interest of the child.
D ISPOSITION The petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.18 We concur: HOLLENHORST J. McKINSTER J.