Filed 1/12/18 In re B.O. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 B.O., a Person Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

L.H.,

Defendant and Appellant.


E068862

(Super.Ct.No. RIJ1501456)

OPINION


APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
L.H. (mother) appeals from an order terminating parental rights to her daughter B.O. (the child). When it set the hearing on termination of parental rights, the juvenile court terminated reunification services and ordered that mother have reduced supervised visits a minimum of once a month. Mother then petitioned the juvenile court to vacate the hearing on terminating parental rights and to grant her an additional six months of reunification services. The juvenile court denied mother’s petition, terminated mother’s parental rights, and freed the child for adoption.
Mother argues the juvenile court erred by reducing her visitation and denying her six more months of reunification services. Because the juvenile court reduced mother’s visitation when it set the hearing on termination of parental rights, mother was required to challenge the visitation order by timely filing a petition for writ of mandate. Mother did not file a petition for writ of mandate, timely or otherwise, and we find no basis for excusing her failure to do so. We concluded mother forfeited her challenge to the visitation order. Finally, we conclude the juvenile court did not abuse its discretion by denying mother’s request for an additional six months of reunification services. Therefore, we affirm the order terminating mother’s parental rights.
I.
FACTS
A. Initial Incident Giving Rise to Dependency.
On Christmas Eve 2015, Riverside County Department of Public Social Services (DPSS) received a referral regarding possible child neglect or abuse. While attending a gathering at a friend’s home, mother and the child’s father drank heavily and quarreled. While the child was between her legs, mother bashed father in the head with a hammer. Police officers took mother into custody for assault with a deadly weapon and child endangerment, and father was taken to the hospital with a gash on the side of his head. DPSS took the child into protective custody.
Father (who is not a party to this appeal) told the social worker that mother is “not well” in the head, had wild moods swings, and stabbed him in the leg some months prior. Mother told the social worker that father is an alcoholic and had threatened to take the child to Mexico. Mother said the Christmas Eve argument with father had turned physical, but she denied hitting him with a hammer. Mother denied that she suffers from mental illness, but admitted she suffered from anxiety and had a medical marijuana card. Mother explained she only smoked cannabis outside while the child slept.
B. Petition and Detention Hearing.
DPSS filed a petition in the juvenile court alleging mother and father failed to protect the child within the meaning of Welfare and Institutions Code section 300, subdivision (b) (all additional statutory references are to the Welf. & Inst. Code), due to their engaging in domestic violence, abusing alcohol and controlled substances, and their transient lifestyle. In addition, DPSS alleged mother was incarcerated and unable to care for the child, within the meaning of section 300, subdivision (g).
At the detention hearing, the juvenile court made a prima facie finding that: the child came within section 300, subdivisions (b) and (g); there was a substantial danger the child would suffer emotional damage if returned to her parents; and the child should remain in the custody and care of DPSS. The court ordered that the parents receive reunification services, and ordered that mother be granted supervised visits once a week as long as she was incarcerated and a minimum of twice a week for two hours after she was released from custody.
C. Jurisdiction Hearing.
In a report for the jurisdiction hearing, the social worker noted mother had visited the child and was very loving and engaged with the child. However, the social worker had to admonish mother not to discuss the juvenile proceedings in front of the child and not to take photos of the child during visits. Mother had not yet made herself available to discuss her concurrent case plan. Because mother was no longer in custody, the social worker recommended the juvenile court not find true the allegation that mother was unable to care for the child. The social worker recommended the juvenile court find the allegations of neglect to be true, and that the previous reunification services and visitation orders remain in effect.
Mother’s attorney requested a contested jurisdiction hearing, so the juvenile court continued the hearing. At the same time, the court followed the social worker’s


recommendation in the jurisdiction report and ordered mother to submit to a hair follicle test and to submit to two psychological evaluations.
In an addendum report, the social worker reported that mother continued to regularly visit the child and interact with her appropriately, but mother wasted much of her time during some visits complaining about the child’s caregivers and insulting them. Mother wanted the child removed from her current caregivers and placed in a new home, and her contacts with the social worker became increasingly unpleasant and hostile. Mother participated in one psychological evaluation, but she failed to make an appointment for a second evaluation. Mother also failed to submit to hair follicle testing. When told to remove one of the braids in her hair for the test, mother refused, saying she spent too much money having her hair braided to have one cut out. Mother told the social worker she would submit to the test when her hair had grown out longer.
In a psychological evaluation submitted to the juvenile court, a clinical psychologist reported that mother cooperated with her evaluation and “presented in a fashion that [was] at odds with some information in the written record.” Mother denied having a history of psychiatric hospitalization, though the record indicated mother was diagnosed as bipolar in North Carolina. Mother also denied having wild mood swings, as reported by father, and denied drinking alcohol to excess. With respect to the Christmas Eve party, mother said there was no proof she was intoxicated because she did not submit to a blood-alcohol concentration test. Mother denied that she hit father in the head with a hammer, pointing to the fact that the charges of assault with a deadly weapon had been dropped. Mother admitted that in North Carolina she was “with some people who robbed a bank” and, despite not knowing what “was occurring,” she served 18 months in a North Carolina prison.
At the contested jurisdiction hearing, counsel for mother submitted on the social worker’s recommendations and requested that DPSS be authorized to liberalize visitation when appropriate. The juvenile court: found true the allegation of neglect; found the child to be a dependent of the court; removed custody of the child; ordered reunification services; and authorized liberalized visitation.
D. Six-month Status Review Hearing.
A little more than four months later, DPSS filed an ex parte application requesting an amended case plan for mother. Mother’s contacts with the social worker had become increasingly hostile, with mother calling the social worker a “fucking bitch” and threatening to assault her after office hours. In addition, the child’s caregivers requested that the child be placed in another home because they could no longer take mother’s abuse. The social worker recommended the court order mother to attend anger management classes. The juvenile court granted the application.
In a report for the six-month status review hearing, the social worker reported that, at the request of the child’s first caregivers, the child had been placed with a new foster family. The child was adjusting well to her new home. Mother was pregnant again and said she had discontinued using medical cannabis. Since the jurisdiction hearing, mother had been arrested for misdemeanor battery, charged with receiving stolen property and vandalism, and had an outstanding warrant for failing to appear for her arraignment. The social worker reported that mother had made only moderate progress on her case plan. Mother was referred to anger management classes, but did not confirm that she had enrolled. Mother was also referred to general counseling, but took almost five months to start attending sessions. She denied hitting father in the head, telling the therapist she had no charges pending from the incident so the allegations were untrue. Mother had yet to submit to a second psychological evaluation. The social worker reported mother still needed to address her anger issues and accept responsibility for her actions. Mother attended a few parenting education classes, but stopped going after being involved in an accident. The social worker gave mother a 30-day bus pass so she would have transportation to her classes. DPSS referred her to another parenting class, but mother never confirmed her enrollment. After significant delay, mother submitted to a hair follicle test, which came back negative for controlled substances. Mother failed to appear for a number of random drug tests and tested positive for marijuana when she did appear. Mother had appropriate visits with the child twice weekly and acted appropriately with the child’s new caregivers.
The social worker opined that mother’s chances of reuniting with the child were unlikely because she had yet to adequately address the issues that gave rise to the dependency. The concurrent plan for the child at that time was adoption. The social worker recommended that reunification services continue for both parents and that mother be granted overnight, unsupervised visits depending on mother’s progress on her case plan. The notice of the review hearing that was served on mother stated, “No change in orders, services, placement, custody, or status.”
The day before the six-month status review hearing, DPSS filed an addendum report. The social worker now recommended that the juvenile court terminate reunification services, set a hearing pursuant to section 366.26 for termination of parental rights, and order supervised visitation a minimum of once a month. The social worker reported that mother appeared at DPSS’s offices six days prior and asked the social worker, “Why did you lie in the report?” Mother stated that “she was doing everything she was supposed to do,” but she had not provided the social worker with any confirmation that she had, in fact, participated in her reunification services. Mother took a picture of the social worker with her cellular phone and said she was in contact with an attorney. Mother’s new therapist told the social worker that mother had yet to make an appointment for a session; the provider for mother’s anger management classes told the social worker that mother had failed to attend her first scheduled class; and the social worker could not confirm mother’s enrollment in any parenting classes. The social worker reported that mother had not been consistent or compliant with her case plan, she did not appear to be benefiting from counseling, and mother continued to deny the incident of domestic violence that gave rise to the dependency.
At 9:28 a.m., at the six-month status review hearing, the juvenile court called mother’s case. Counsel for mother informed the court that mother was not present. Counsel objected to the social worker’s recommendations in the addendum report and, instead, asked that the court follow the recommendations in the report filed August 25, 2016. Counsel argued mother had participated in her case plan, albeit minimally, and requested services be continued through the full 12 months. The juvenile court found by a preponderance of the evidence that DPSS had made reasonable efforts to return the child to mother by providing her with reunification services, but mother failed to make substantial progress in completing her case plan and failed to address the causes of the dependency. The court also found by a preponderance of the evidence that it was not reasonably probable mother would reunite with the child if given an additional six months of reunification services. The court therefore terminated mother’s reunification services and set a hearing under section 366.36 for termination of parental rights and selection of an appropriate plan for the child. Because mother was not present, the court directed the clerk to provide mother with written notice of her right to challenge the setting order by petition for writ of mandate. Finally, the court adopted the remaining recommendations and orders attached to the social worker’s addendum report, which included the order for visitation a minimum of once a month.
The juvenile court recalled the case at 9:55 a.m., the same morning, and was informed mother was present in court. Mother’s counsel told the court she had advised mother of the court’s ruling and told mother she had to be present for the hearing on termination of parental rights. The court stated on the record that the matter had already been called and that it would be following “the recommendations of the Department” and setting a section 366.26 hearing. Counsel for DPSS asked that the court verbally advise mother of her writ rights. The court stated: “Services have been terminated so I’m advising . . . mother . . . that in order to preserve the right to review on appeal of this order, a party must seek an extraordinary writ by filing a notice of intent to file a writ petition and request for the record which may be submitted on the [form] JV-820, notice of intent to file writ petition and request for the record to review order, setting a hearing under Welfare and Institutions Code Section 366.26 and a petition for extraordinary writ which may be submitted on the [form] JV-825, petition for extraordinary writ. A copy of each form is available here in the courtroom for mother.” Finally, the court advised mother that she had to file the notice of intent and request for record within seven days of the hearing.
Mother did not file a notice of intent to file a petition for writ of mandate challenging the order setting a hearing for termination of parental rights or the reduced visitation order.


E. Denial of Mother’s Petition for Additional Services and Termination of Parental Rights at the Section 366.26 Hearing.
In a report for the section 366.26 hearing, the social worker reported that mother still had outstanding warrants for her arrest. Mother had been visiting the child once a month for two hours. The child appeared to be well bonded with her caregivers, who provided her with a safe and caring home. The social worker opined the child was likely to be adopted. In an addendum report, the social worker reported that the child’s caregivers had submitted an adoption packet and wished to be considered for permanent placement. The child was thriving in her placement.
Mother filed a petition under section 388 requesting the court vacate the hearing on terminating parental rights and grant an additional six months of reunification services. Since the six-month status review hearing, mother had completed a one-day parenting class, a four-hour anger management class, and a four-hour domestic violence class. Mother argued additional reunification services would benefit the child because she and the child had appropriate visits, during which they played together and enjoyed each other’s company, and because mother had a very strong bond with the child and wanted her to return home. The juvenile court set the petition to be heard the same day as the section 366.26 hearing.
In reports filed before the section 366.26 hearing, the social worker informed the court that the child’s caregivers had been preliminarily assessed for adoption and recommended that the court terminate mother’s parental rights and proceed with adoption planning with the child’s caregivers. The social worker reported that the child’s maternal grandmother, who resided in North Carolina, had also been considered for adoption but was not recommended for placement.
At the hearing, counsel for DPSS asked the juvenile court to deny mother’s section 388 petition because mother did not show changed circumstances or that granting the petition would be in the child’s best interests. Counsel argued that completion of a four-hour anger management class and a four-hour domestic violence class was simply insufficient to address the reasons for the dependency. Moreover, counsel argued mother had failed to complete substance abuse testing or programs. Counsel requested the court terminate parental rights and free the child for adoption.
Mother’s counsel argued that mother believed she had “learned a great deal” from the parenting, anger management and domestic violence classes she had completed, and this constituted changed circumstances. Counsel informed the court that mother was working and stable, and she submitted photographs of mother with the child and of mother’s new home. Mother’s attorney also informed the court that, contrary to the argument from counsel for DPSS, mother had completed her psychological evaluations. Finally, counsel argued that mother believed she had a very strong bond with the child and granting additional reunification services would be in the child’s best interests.
Counsel for the child argued the petition should be denied, noting that mother had “not addressed any substance abuse issues with regard to it being in the best interest of this minor.” Counsel also argued that the child, who was three years old at the time, had been in her caregiver’s home for almost one year; the child had developed “a significant relationship with the current caretaker”; and mother had not demonstrated that it would be in the child’s best interest to disturb her placement.
The court found that mother had not made a showing of changed circumstances, which would warrant granting additional reunification services. The court also noted that the child was thriving and was bonded with her caregivers, so granting the petition would not be in her best interests. Therefore, the court denied the petition.
With respect to termination of parental rights, mother’s counsel again argued that mother and the child had a strong bond and relationship, and asked that the court consider guardianship as a permanent plan instead of termination of parental rights and adoption. The juvenile court found that the child is likely to be adopted, found applicable no exception to termination of parental rights, terminated mother’s parental rights, and freed the child for adoption.
Mother timely appealed.
II.
DISCUSSION
A. Mother Forfeited Her Challenge to the Visitation Order Made at the Setting Hearing.
Mother contends the juvenile court erred by reducing her visits with the child to once a month. According to mother, the social worker consistently reported that mother’s visits were appropriate, and DPSS submitted and the juvenile court considered no evidence to support the reduction. Mother also suggests, without supporting legal citation, that DPSS should have petitioned the court to modify visitation rather than merely recommend a change in an addendum report. However, as mother concedes, she did not timely challenge the reduction in visitation by petition for writ of mandate. We conclude that failure dooms her argument.
“‘Section 366.26, subdivision (l), provides that an order setting a section 366.26 hearing “is not appealable at any time” unless “[a] petition for extraordinary writ review was filed in a timely manner,” the petition raised the substantive issues and they were supported by an adequate record, and the writ petition “was summarily denied or otherwise not decided on the merits.” (§ 366.26, subd. (l)(1); see § 366.26, subd. (l)(2).) This writ requirement is implemented by the California Rules of Court. (See § 366.26, subd. (l)(3); rules 8.450, 8.452; see also rule 8.403(b)(1).)’ [Citation.] ‘Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section.’ (§ 366.26, subd. (l)(2).)” (In re A.A. (2016) 243 Cal.App.4th 1220, 1239.) “This rule applies to all orders . . . made contemporaneously with the setting of the hearing. [Citations.]” (Maggie S. v. Superior Court (2013) 220 Cal.App.4th 662, 671, italics added.)
As this court recently noted, “[t]he courts have consistently held that when a parent is not properly advised of his or her right to challenge the setting order by extraordinary writ, and consequently the parent does not timely file a writ petition, good cause exists to consider issues relating to the setting hearing in an appeal from the order terminating parental rights. [Citations.]” (In re A.A., supra, 243 Cal.App.4th at p. 1235; see id. at p. 1240.) Mother does not dispute that the juvenile court complied with rule 5.590(b) of the California Rules of Court when it provided her with both written and verbal notice of her right to challenge the setting order by petition for writ of mandate. Instead, mother seems to suggest she was not provided with adequate notice that the juvenile court had reduced her visitation and, therefore, her failure to timely file a notice of intent to challenge the order by writ petition should be excused. We are not persuaded. The record does not support mother’s claim that she had inadequate notice that her visitation had been reduced.
At the six-month status review hearing, counsel for DPSS submitted on the social worker’s original status review report and on the addendum report “with amended recommendations.” Despite having proper notice of the date and time of the hearing, mother was not present in court when the juvenile court called the case. Mother’s attorney specifically objected to the social worker’s recommendations in the addendum report, which included reduced visitation, and instead requested the juvenile court adopt the recommendations made in the original status review report. The court stated it was admitting both status review reports into evidence. Although the juvenile court did not specifically mention visitation orally on the record, after terminating reunification services and setting a hearing under section 366.26, the court said it was “adopt[ing] the remaining proposed findings and orders under Attachment A to the report as the findings and orders of the Court.” (Italics added.) As reflected in the minutes, the proposed findings and order the court adopted included the social worker’s recommendation that “[v]isitation between the mother . . . and the child . . . be a minimum of once per month, and continue to be supervised.” The juvenile court directed the clerk of court to provide mother with written notice of her right to challenge the order setting a hearing under section 366.26 by petition for writ of mandate, and to mail her copies of Judicial Counsel forms JV-820 (notice of intent to file writ petition and request for record to review order setting a hearing under Welf. & Inst. Code, § 366.26 (Calif. Rules of Court, rule 8.450)) and JV-825 (petition for extraordinary writ).
When the matter was recalled a short while later, after mother finally appeared in court, her attorney told the juvenile court, “I did have an opportunity to speak to my client and advise her of the Court’s ruling.” (Italics added.) The juvenile court informed mother that the matter had been called earlier, and that the court had “followed the recommendations of the Department and set a [section] 366.26 hearing.” (Italics added.) The court then orally advised mother of her right to challenge the setting order by writ petition.
On this record, we simply cannot conclude that mother, who was represented by counsel at the setting hearing, did not receive notice that the juvenile court had reduced her visitation. Because mother was properly advised both orally and in writing of her right to challenge that order by petition for writ of mandate, and she failed to do so, we must conclude mother forfeited her challenge to the reduced visitation order.
B. The Juvenile Court Did Not Abuse Its Discretion by Denying Mother’s Request for Additional Reunification Services.
Mother contends her section 388 petition requested “a conservative modification” of the order terminating reunification services to serve the child’s best interests by allowing further time for mother to reunite with the child. According to mother, she engaged cooperatively in her services throughout this case and worked to remedy the issues that led to the dependency. Mother argues she proved changed circumstances, and additional reunification services would be in the child’s best interests. We find no abuse of discretion.
“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 evidence or changed circumstances exist and (2) the proposed change would promote the best interests 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.] Generally, the petitioner must show by a preponderance of the evidence that the child’s welfare requires the modification sought. [Citation.]” (In re A.A. (2012) 203 Cal.App.4th 597, 611-612.)
“A petition for modification is ‘committed to the sound discretion of the juvenile court, and the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.]’ [Citations.] ‘ . . . “[‘]The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’” [Citation.]’” (In re A.R. (2015) 235 Cal.App.4th 1102, 1116-1117.)
Section 388 is “an ‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528, italics added.) It is not enough for a parent to show an incomplete reformation or that she is in the process of changing the circumstances which lead to the dependency. “After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ [citation] . . . . 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, the best interests of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) “‘A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point, does not promote stability for the child or the child’s best interests. [Citation.] “‘[C]hildhood does not wait for the parent to become adequate.’”’ [Citation.]” (In re Mary G. (2007) 151 Cal.App.4th 184, 206.)
The record demonstrates that, rather than address the core issues that gave rise to the dependency, mother constantly minimized her responsibility and failed to meaningfully participate in services. The child came to the attention of DPSS because mother was arrested for hitting father in the head with a hammer. Mother denied that she drank to excess or that she hit father in the head, saying, essentially, that because charges were dropped and her blood-alcohol concentration was not tested, the incident simply did not happen, and the cause of father’s injuries are a mystery. Mother also quarreled throughout the life of this case with her social worker, subtly threatened to assault and/or sue her, and badgered the child’s first caregivers to the point that they requested the child be removed from their home. This behavior mirrored mother’s contentious child dependency history in North Carolina. Moreover, mother was arrested for misdemeanor battery and had outstanding warrants for her arrest. In light of mother’s persistent issues with domestic violence and her failure to participate in anger management classes prior to termination of reunification services, mother’s belated completion of mere four-hour anger management and domestic violence classes hardly demonstrates the type of reformation required for relief under section 388. Mother was barely starting to address her anger, and there is no evidence that she finally admitted responsibility for the event which brought the child into the juvenile system in the first place. Mother’s belated completion of a single parenting class, in light of her persistent failure to comply with her case plan throughout the life of this case, does not demonstrate changed circumstances either.
Nor has mother shown that additional reunification services would be in the child’s best interests. True, mother visited with the child regularly and there is no dispute that she and the child share a loving relationship. However, by the time the juvenile court had denied mother’s petition and terminated her parental rights, the child, who was three years old, had spent almost an entire year in the home of her caregivers. The social worker reported that the child had bonded with her caregivers and that she had been provided a loving and safe home. Mother simply did not show that delaying further the permanency and stability the child needs would be in the child’s best interests.
On this record, we conclude the juvenile court did not abuse its discretion by denying mother’s petition.
III.
DISPOSITION
The order terminating mother’s parental rights is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.
We concur:



MILLER
J.



FIELDS
J.