Opinion
A100451.
7-25-2003
In re FOLEY C., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. PAUL C., Defendant and Appellant.
Paul C. (Paul) appeals from an order issued after a post-permanent planning hearing (Welf. & Inst. Code, § 366.3, subd. (d)), which in part denied his petition under section 388 for return of his minor daughter, Foley C. (Foley). Paul contends the juvenile court erred in not holding a contested hearing on Foleys placement and in failing to make "an informed decision." We disagree and affirm the order.
All further section references are to the Welfare and Institutions Code.
I. FACTS AND PROCEDURAL
HISTORY
This juvenile dependency case is before us for the fourth time, all on appeals filed by Paul or Foleys mother, Cornelia C. (Cornelia). None of the prior appeals were successful. To assist the reader, we repeat our discussion of the background of the case from our opinion in appeal No. A098913, and then turn to subsequent matters giving rise to the issues on appeal.
A. BACKGROUND
"Foley is the daughter of Cornelia and Paul C. In 1999, the juvenile court ordered that Foley be placed in the custody of her current caretaker, Karen H. Paul appealed (case Nos. A088356 & A090668), and we affirmed the order.
"In January 2001, the juvenile court terminated reunification services as to both Cornelia and Paul. Cornelia filed a notice of intent to appeal, but failed to file a brief to perfect the appeal.
"The following July, the San Francisco Department of Human Services (Department) reported that Foley was flourishing in the home of Karen H., was an A student in school, and played the flute. Cornelia had supervised visits with Foley at the California Parenting Institute. The Department recommended that long term placement remain the permanent plan.
"Later in July, the Department filed an addendum report. Social worker Maryanne Cleary (Cleary) wrote that Foley had begun family therapy with Cornelia and Paul, who attended every session. Foley stated she did not want unsupervised contact with them and did not want Cornelia to write letters or to telephone her between visits. When Foley was told there would be no short-term changes in her placement, she seemed relieved and more committed to family therapy. According to Cleary, Foley appeared to be flourishing in the placement with [Karen H.] and seemed to cherish the security and predictability that this relationship provides for her.
"In November 2001, Paul filed a section 388 petition for modification of Foleys case plan, requesting unsupervised visitation with Foley. Paul alleged he was drug free and had completed a parenting class, his therapist believed he was ready for unsupervised visitation, and he and Cornelia had not missed any supervised visits. Further, Paul alleged, Foley actually wanted unsupervised visits but was afraid to say so out of fear Karen H. would become angry and punish her. The court granted Paul and Cornelia an eight-hour unsupervised visit with Foley in their home on December 24, 2001.
"The Department prepared a status review report in December 2001 (filed January 4, 2002). According to Cleary, Foley continued to do well in Karen H.s care, played basketball, participated in the school band, received As and Bs in school, and was described by her school counselor as a fantastic kid.
"Cleary reported Karen H. had canceled two supervised visits in five months without notice to the Department, and had shown poor judgment by having Foley make the changes or cancellations instead of dealing with the social worker. Cleary twice wrote Karen H., admonishing her for failing to notify the Department in this regard, and took the extraordinary step of reporting Karen H. to her foster care licensing agency. Cleary expressed concern that Karens animosity toward Paul and Cornelia was affecting Foley, and a change of placement would be considered if this systemic problem can not be solved.
"On the other hand, Cleary reported favorably on Pauls and Cornelias supervised visits with Foley: The [parents] have been very cooperative with the [Department] and in their participation in Court ordered services. They are to be commended for the lengths they have been willing to go to maintain their relationship [with their] daughter. Each week they travel to Santa Rosa on Tuesday for family therapy and on Wednesday they again make the trip to Santa Rosa for supervised visitation with Foley. In their visits, Cornelia and Paul demonstrated appropriate behavior and concern for Foleys needs, and Foley appeared relaxed and frequently happy during [the] visits. Although Foley was reticent about regular unsupervised visits, Cleary was willing to consider additional unsupervised visits if the Christmas Eve visit went well. Cleary hoped Foley would enjoy the visits with Paul and Cornelia if she were repeatedly assured there was no plan for reunification.
"On January 11, 2002, the Department filed an addendum report. After meeting with Foley, Cleary reported positively on the unsupervised Christmas Eve visit. Cleary also noted Paul and Cornelia have demonstrated that they are abstinent from illicit drug use and they are focused on spending quality time with their daughter. While Foley was clear that she does not want reunification with her parents, she was told that unsupervised visits with her parents would not mean that she would be reunified with them, and Foley appeared to understand. Cleary recommended that there be further unsupervised visits: while Foley may not be ready for a completely unsupervised format of visitation . . . the visitation order [should] be modified to include monthly unsupervised day visits on weekends while continuing weekly or biweekly supervised visitation until Foley is more comfortable with regular unsupervised visitation.
"On January 22, 2002, Cornelia filed a petition under section 388, requesting the court to move Foley to a placement that supports the minors relationship with her family. Cornelia alleged that Foleys placement with Karen H. interfered with her relationship with Foley and caused Foley stress. Among other things, Cornelia alleged Karen H. refused to have contact with Paul and Cornelia, expressed her negative judgment of them, and did not cooperate in the delivery of family-related services.
"At the six-month review hearing on the same date, the Department withdrew its recommendation for unsupervised visitation.
"The court thereafter granted Karen H.s application for de facto parent status and ordered the parties to mediation regarding visitation and Cornelias section 388 petition for modification. No agreement was reached, and the matter was set for a contested hearing on April 29, 2002.
"In her trial readiness statement of April 16, 2002, Cornelia no longer requested a change in Foleys placement, but merely sought unsupervised visits with Foley instead.
"On April 17, 2002, the Department opposed Cornelias request for unsupervised visitation, on the ground it would be detrimental to Foley. Foley had made it abundantly clear to the child welfare worker, as well as her individual therapist, and her attorney, that she does not want unsupervised visits with [her] parents. Her opposition arose because during [the] visits she often feels pressured or cornered on the issue of reunification. The Department also argued that Cornelia failed to demonstrate how forcing unsupervised visits on Foley was in her best interest.
"The contested hearing on Cornelias section 388 petition went forward on April 29, 2002. Cornelia confirmed she had abandoned her request for a change of placement, and instead sought only unsupervised visitation. Foleys attorney joined in the Departments opposition to the petition. The court took judicial notice of the status review report filed on January 4, 2002, and the addendum report filed on January 11, 2002.
"Cleary was the only witness at the hearing. She confirmed she had changed her recommendation from monthly unsupervised visitation to supervised visitation because she believed unsupervised contact would be detrimental to Foley. Cleary based her opinion on the statements of Foleys therapist (Ms. Medansky) and Foley herself, who was adamant (as recently as the Tuesday before the hearing) that no unsupervised visits occur.
"Foleys opposition, Cleary explained, derived from her continued fear that unsupervised visits would lead to reunification with Paul and Cornelia and a change in her placement. When Foley was told of Cornelias request to change Foleys placement, she went straight to bed and began biting her nails and cuticles until they nearly bled. Foley thereafter became more forceful in her position and began to talk about the pressure she felt coming from her parents around reunification. Foley had been adamant all the way down the line that she truly enjoys the life that she has in Rohnert Park with Ms. [H.] and in no way does she want to risk that life changing in any way . . . she absolutely does not trust if she were to go to unsupervised visits that in some way that life might not be threatened at some point.
"Cleary explained that her major concern . . . is that [Foley] has been through a great deal. What I see is that she is really learning to relax and really enjoy her life and actually be a child. This was a child that was extraordinarily parentified. She has friends, she has a social life, she is doing well in school. Cleary wanted Foleys case plan to support her own development and needs.
"Cleary conceded she had not thought unsupervised visitation would be detrimental when she initially recommended it, based on what she understood then. To the contrary, she believed it would improve Foleys relationship with her parents. Nor was her change of recommendation due to any concern with Foleys physical safety; Paul and Cornelia had consistently met their visitation obligations and had conducted themselves appropriately. Cleary also acknowledged that Foley was most likely affected by Karens animosity toward Paul and Cornelia, and that Karen had not supported Foleys family therapy contact with them and had acted in a defiant, sabotaging manner.
"The court denied Cornelias petition for modification, finding she had failed to show by a preponderance of the evidence that unsupervised visits would be in Foleys best interest. The court continued the permanent plan, including weekly supervised visitation. The court explained: Based on the evidence presented at this hearing I think its not only the minors express wishes in the matter, but also her therapists recommendation — I believe the social worker testified that she had a lengthy consultation with the minors therapist that was influential in changing her original recommendation — that the therapist felt that there was at least a risk of detriment. [P] I understand that the parents have been consistent and are very eager to I guess intensify their relationship with their daughter and to repair the damage and to eventually reunify. But I think they are just going to have to adapt their wishes to the pace at which the minor is able to get to a point where she also wants the next step, and it seems that has not happened yet. [P] So I am going to just leave the current visitation arrangement in place. I do feel the burden of showing that this would be in the best interest of the minor has not been established."
We held that the juvenile court had not abused its discretion in denying Cornelias petition under section 388.
B. SUBSEQUENT PROCEEDINGS
On May 24, 2002, Foley filed a petition under section 388 for termination of family therapy because she was "extremely disturbed by the therapy sessions, in that each week [Foley] feels that she repeats her desires to remain out of home and maintain supervised visitation. It is revisited on a weekly basis and she feels pressured by the parents [to] change her mind." The juvenile court sustained Foleys petition.
Cleary filed her status review report for the upcoming post permanency review hearing on July 1, 2002. ( § 366.3, subd. (d).) She noted that Foleys success in school and at home with Karen H. continued. Foley had completed seventh grade, where she had been an "A" and "B" student, had been playing flute and piccolo in the band, and was popular with her peers. Her therapist reported she had made significant progress in therapy and was in a stable placement.
Cleary reported there was no direct communication between Karen H. and Paul and Cornelia, and negative attitudes and emotions existed between the parties. Cleary also mentioned a letter purportedly written by a neighbor of Karen H. expressing concerns about Karen H.s mental status and the effect it might have on Foley. The allegations were investigated and determined to be unfounded.
Although Paul and Cornelia had a history of substance abuse, Cleary reported that drug tests showed Paul was drug free and Cornelia was positive only for drugs prescribed by her doctor. They had been very cooperative with the Department and in their participation in court-ordered services, and they were to be "commended for the lengths they have been willing to go to maintain their relationship with their daughter." Their behavior during visitation appeared caring and supportive of Foleys interests and needs, and Foley seemed generally relaxed during the visits.
Although Paul and Cornelia wanted additional visits with Foley, Foley "specifically expressed that she does not wish to see her parents in public venues" and, in fact, wanted to reduce visitation to once a month. Cleary recommended that the current visitation schedule be maintained to "allow time for Foley to incorporate the ending of family therapy and perhaps reevaluate her desires regarding visit frequency." She also recommended that the court continue the plan of long-term placement. Cleary explained: "the parents strongly desire to be reunited [but] . . . Foley does not wish to live with her parents. Foley[s] stated wish is to remain in her current placement."
On July 18, 2002, Paul filed a petition under section 388, asking the court to return Foley to the custody of Paul and Cornelia or change her placement to a different foster home. Circumstances had changed since the placement, Paul alleged, in that Karen H. was antagonistic and discouraging visitation. He contended a change in placement would be in Foleys best interests, because Foley was afraid to express her feelings out of fear of Karen H. In a supporting declaration, he claimed: "I believe that my daughter, Foley, is afraid of the foster mother, Karen H[]. Foley has indicated in more than one way that she cannot properly express her desires. When we are together at our visits, she is happy and likes to spend time with us. [P] My son has tried to speak with Foley, but has been met with resistence [sic] by Ms. H[]. The former social worker told me that Ms. H[] was causing problems and not cooperating with the department. I believe that Foley would be willing to live with us if she was not afraid of the foster mother. If you look at the visiting room reports, it is obvious that we have a good relationship. [P] I am afraid for Foleys well being in the home of Ms. H[]. I am requesting that the court look at the entirety of the situation with Foley with Ms. H[] as well as her unpleasant and difficult interaction with the social workers. [P] The court had previously ordered that Foley would get a cell phone and a post office box so that she could communicate with us without any interference from the foster mother. As of this date, she has not been given either the cell phone or the PO box."
Both the section 366.3, subdivision (d), review hearing and the hearing on Pauls section 388 petition were held on July 30 and continued to August 6, 2002. The Department, Foley, and Karen H. opposed Pauls petition, arguing there was no change in circumstances warranting a contested hearing and Foley did not want a mailbox, cell phone, or any communication with her parents beyond what she already had. Pauls attorney asserted the placement with Karen H. was "distancing" Foley from Paul and Cornelia, and visitation was reduced. He requested the petition be set for an evidentiary hearing so Paul and Cornelia could show how the placement is not in Foleys best interest.
The court denied Pauls section 388 petition, without a contested hearing, on the grounds that it failed to state facts supporting the allegations, failed to state new evidence or a change of circumstances, and failed to state how the requested change in placement would promote Foleys interests. In addition, the court made the following findings pursuant to section 366.3: the Department had provided reasonable services to Foley; Foleys placement in foster care was necessary and appropriate; she would remain in the Departments care and custody for placement, planning, and supervision; and the Department complied with the case plan, making reasonable efforts to make it possible for Foley to safely return to her home and to complete whatever steps are necessary to finalize her permanent placement. Further, the court ordered that, "after reviewing all permanent planning options," the permanent plan continued to be a "planned permanent living arrangement."
Paul filed the instant appeal.
II. DISCUSSION
Paul maintains the juvenile court erred by denying his request for a contested hearing and failing to make an informed decision. We disagree.
A. LACK OF HEARING UNDER SECTION 366.3.
At the time of the hearing in July and August 2002, section 366.3, subdivision (e)(8), provided in part: "Unless their parental rights have been permanently terminated, the parent or parents of the child are entitled to receive notice of, and participate in," hearings under section 366.3, subdivision (d). (Stats. 2001, ch. 747, § 5.)
There is no question Paul received notice of the hearing, attended the hearing, and was represented at the hearing by counsel. Nevertheless, he contends he was entitled to a contested hearing under section 366.3, on the issue of Foleys placement. For this assertion he relies on In re Kelly D. (2000) 82 Cal.App.4th 433 (Kelly D.). There, the agency had raised a visitation issue at the hearing without notice. The juvenile court denied the fathers request for a contested hearing. The Court of Appeal reversed, explaining that a parents right to "participate" in the review hearing under section 366.3, subdivision (e), "connotes involvement as a party to the proceeding, one essential aspect of which is the reasonable expectation that parents could challenge departmental proposals and proposed court modifications." (Kelly D. , supra, at p. 438.) Noting that Kelly D. was followed in In re Josiah S. (2002) 102 Cal.App.4th 403 (Josiah S.), Paul concludes: "For the reasons stated in Kelly D. and Josiah S., it was reversible error to deny appellant the opportunity to contest the Departments recommendation that Foley remain in the home of Karen H. Therefore, this court should reverse the orders below." (Underscoring in original.)
In Josiah S., the juvenile court denied the parents request to contest the continued long-term placement of her son at a review hearing conducted pursuant to section 366.3. (Josiah S ., supra, 102 Cal.App.4th at pp. 406, 413.) The court also denied her request for a contested hearing on a visitation issue that had been continued to a later date. (Id . at p. 415.) The Court of Appeal held the refusal to hold contested hearings was error, since the parent requested them, even though she had not made a formal offer of proof. (Id . at p. 417.)
Neither Kelly D. nor Josiah S. compels reversal of the order of the juvenile court. In the matter before us, Paul never asked the juvenile court to set a contested section 366.3 hearing on the Departments recommendation to continue the plan of long-term care. Nor did he object at the August 6 hearing when the court made its findings under section 366.3. His failure to raise the matter in the juvenile court waived his challenge. (See, e.g., In re Riva M. (1991) 235 Cal. App. 3d 403, 411-412, 286 Cal. Rptr. 592.) Because he never asked for a contested section 366.3 hearing, his reliance on Kelly D. and Josiah S. is misplaced. In each of those cases, the parent had requested a contested hearing. (Kelly D., supra, 82 Cal.App.4th at p. 436; Josiah S., supra, 102 Cal.App.4th at pp. 406, 413.)
Paul has not established that the absence of a contested section 366.3 hearing was reversible error.
B. DENIAL OF SECTION 388 PETITION WITHOUT A HEARING
Paul did request a hearing on his section 388 petition. To the extent he argues that the court erred in denying this request, he is incorrect.
Under section 388, a person having an interest in a dependent child "may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." ( § 388, subd. (a).) To obtain a full hearing, the petitioner must make a prima facie showing (In re Marilyn H. (1993) 5 Cal.4th 295, 310, 851 P.2d 826), including: (1) a genuine change of circumstances or new evidence, and (2) revoking the previous order would be in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529; see also Josiah S., supra, 102 Cal.App.4th at p. 418 ["A "prima facie" showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited."].)
In this regard, a petition must be liberally construed, and the court may deny the petition without a hearing if it "fails to state a change of circumstance or new evidence that might require a change of order or termination of jurisdiction . . . . "(Cal. Rules of Court, rule 1432(a), (b); Josiah S., supra, 102 Cal.App.4th at pp. 418-419.) "Conversely, the hearing on the section 388 petition is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition." (Josiah S., supra, at p. 419; see § 388, subd. (c) ["If it appears that the best interests of the child may be promoted by the proposed change of order . . . or termination of jurisdiction, the court shall order that a hearing be held and shall give prior notice . . . ."].)
We review a juvenile courts denial of a section 388 petition for abuse of discretion. If two or more inferences can reasonably be drawn from the evidence, we will not substitute our interpretation for that of the juvenile court. (Josiah S., supra, 102 Cal.App.4th at p. 419.)
The juvenile court did not abuse its discretion in concluding that Paul had failed to make out a prima facie case. In the first place, Paul did not allege a change in circumstances sufficient to warrant a modification of the courts prior orders. Rather, he alleged that Karen H. was not encouraging visitation, was antagonistic to the Department, and "refused to cooperate." At the hearing, Pauls lawyer also suggested that Karen H. was "distancing" Foley from Paul and Cornelia and visitation was reduced. These issues had been dealt with before, however, as both Paul and Cornelia had long asserted that Karen H. was adversely influencing Foley and interfering in their relationship. In November 2001, for example, Paul asserted that Foley desired unsupervised visits but was afraid to say so out of fear of Karen H. In January 2002, Cornelia requested that Foleys placement be changed because Karen H. interfered with her relationship with Foley, caused Foley stress, refused to have contact with Paul and Cornelia, and refused to cooperate in the delivery of services. Paul later joined in the petition, a contested hearing was held, and the social worker opined that unsupervised visitation was not in Foleys best interests even though Karen H. had acted in a defiant sabotaging manner. The petition was therefore denied, and we upheld the denial. Pauls latest section 388 petition gives no indication of any substantially new and distinct development in this regard. (See In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451 (Jamika).)
Pauls petition did assert that Foley had not been provided a mailbox and cell phone, which would have allowed him to communicate with Foley without interference from Karen H. But neither this assertion-nor any of the allegations of Pauls section 388 petition-indicated that a change in placement would be in Foleys best interests.
Although Paul alleged that Foley was "afraid to express her real desires because of her fear of [Karen H.]," the only support for this allegation was his "belief" that she was afraid and that "Foley has indicated in more than one way that she cannot properly express her desires." Paul also claimed, without explanation, that he was "afraid for Foleys well being in the home of Ms. H[]." These bare assertions do not amount to a prima facie showing that a change in placement would be in Foleys best interest.
Moreover, even if a hearing had been held on his section 388 petition, the evidence he proffered would have been overwhelmed once again by the evidence to the contrary. For instance, Foley told both her social worker and her attorney that she did not want a mailbox or cell phone because she did not want any contact with Paul beyond supervised visitation. Foley also insisted repeatedly that she did not want her placement changed and did not want to reunify with Paul. Foleys desires are "powerful demonstrative evidence" of her best interests. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) And, Foley was thriving in Karen H.s care, playing basketball, participating in the school band, and earning "As" and "Bs" in school; her placement with Karen H. allowed her to develop a life that Cleary described as "crucial" to her well-being. Paul, by contrast, did not identify any evidence or avenue of cross-examination that would have garnered him a favorable result at a contested hearing. In short, Pauls petition did not demonstrate how changing Foleys stable and secure placement with Karen H. would be in her best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 317, 867 P.2d 706 [primary consideration in determining childs best interest is goal of assuring stability and continuity]; see In re Angel B. (2002) 97 Cal.App.4th 454, 462-465 [summary denial of section 388 petition upheld where allegations failed to show that the childs best interests would be promoted by a change of order]; Jamika, supra, 54 Cal.App.4th at p. 1451 [same].)
Paul has not established any error in regard to the summary denial of his section 388 petition.
C. SECTION 366.3 FINDINGS
As applicable here, Paul argues, section 366.3, subdivision (e), required the juvenile court to consider and determine the following at the section 366.3, subdivision (d), hearing: (1) the continuing need and appropriateness of Foleys placement; (2) the continuing appropriateness and extent of compliance with Foleys permanent plan; (3) the extent of the Departments compliance with the case plan in making reasonable efforts to return Foley to a safe home and to complete whatever steps are necessary to finalize her permanent placement; (4) the adequacy of the services to Foley; (5) the extent of progress Paul and Cornelia have made toward alleviating or mitigating the causes necessitating Foleys placement in foster care; and (6) the likely date by which Foley may be returned to and safely maintained in the home, placed for adoption, legal guardianship, or in another planned permanent living arrangement. The court was also required to determine whether the Department had made reasonable efforts to finalize a permanent placement. In addition, Paul notes, the juvenile court had to consider all permanency planning options for Foley, including whether she should be returned to Pauls home. (See § 366.3, subd. (g).)
Paul argues that the juvenile court either did not consider or decide all of these matters, and failed to be sufficiently informed when ruling on them.
In the first place, the court made explicit findings on most of the issues listed in section 366.3, subdivisions (e) and (g). The court found reasonable services had been provided, Foleys placement continued to be necessary and appropriate, the Department had complied with the case plan, and the Department had made reasonable efforts to make it possible for Foley to return to her home and/or to complete the steps necessary to finalize her permanent placement. Furthermore, as set forth in the minute order, the court reviewed the permanent planning options before concluding the permanent plan would be maintained.
Paul fails to establish error in regard to any of these findings. He notes the Departments report incorrectly stated at one point that Foleys placement plan involved a guardianship rather than foster care. But the report also specified correctly that Foley was in "foster care placement" and the case plans goal was "Long Term Foster Care with Non-Relative." Obviously no one was misled by this discrepancy, and Pauls contention that this single glitch in the social workers multi-page report made it "impossible" for the court to make an informed decision is absurd. So too is his contention that the absence of a contested hearing rendered the courts decision "uninformed." The social workers report set forth Foleys circumstances, including the following: Foley was performing as an "exemplary and well-rounded student," earning As and Bs; she was described by her band teacher as a "cheerful child" who was "coming into her own as a young lady;" she was well liked by friends and well adjusted; her psychotherapist opined that she was stable in her placement with Karen H., living with Karen H. was very important to her, and she experienced less stress since the cessation of family therapy; Karen H. provided an important sense and experience of safety, security, and stability for Foley; the social worker had recently noted a "higher degree of cooperation from Ms. H[];" and Foley did not want to see Paul and Cornelia in public and wanted to limit visitation with them to once a month. As to the case plan, the report noted: "The plan remains appropriate. The parents strongly desire to be reunified with Foley. However, Foley does not wish to live with her parents. Foley[s] stated wish is to remain in her current placement. She is enjoying a stable and secure home environment that has allowed her to pursue normal childhood relationships and activities."
We also point out that the attorneys for Foley, Cornelia, and Paul, as well as the Department, had ample opportunity at the hearing to supplement or controvert the assertions in the Departments report. Pauls petition led no one to believe that he had any meaningful admissible evidence to offer, and his counsel made no offer of proof at the hearing of any additional evidence he wanted to introduce. Based on the Departments report, substantial evidence supported the juvenile courts findings.
Next, even if the court had not made an express finding on a matter listed in section 366.3, subdivision (e), Paul did not object at the hearing or ask the court to make such a finding. Nor does he now assert any prejudice from the omission of any finding. He therefore fails to demonstrate reversible error.
Finally, Paul asserts the juvenile court commissioner presiding at the hearing had received the case just a few months earlier and seemed "unfamiliar with juvenile court procedures." Our review of the record indicates the court was well prepared; indeed, perhaps better prepared than Pauls counsel at the July 30 hearing, when the parties were addressing whether there should be a contested hearing on the section 388 petition: "[PAULS COUNSEL]: . . . [P] We would like to have this set for a settlement conference where the parents can work out with the counsel for the foster mother a schedule of unsupervised visitation and working towards Ms. H[] not interfering with the visitation of the minor with her parents. [P] [DEPARTMENTS COUNSEL]: Your Honor, Im sorry, are we dealing with the 388 petition or are we dealing with another issue? [P] THE COURT: I am not quite sure, because not long ago the Court heard another contested 388 petition which found that unsupervised visitation would be detrimental to the minor based on the minors therapists opinion. I believe that is up on appeal. [P] [PAULS COUNSEL]: The father is saying that Ms. H[] is interfering. [P] THE COURT: Yes, I have read the petition. I know what the father is saying. . . ."
We conclude that the appeal must fail.
We deferred ruling on Pauls request for judicial notice, filed March 12, 2003. (See People v. Preslie (1977) 70 Cal. App. 3d 486, 493-494, 138 Cal. Rptr. 828.) We now deny his request because the material is not relevant or helpful to the resolution of the appeal and was not presented to the trial court in the underlying proceeding.
III. DISPOSITION
The order is affirmed.
We concur. JONES, P.J., GEMELLO, J.