Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J06-00951/52
Lambden, J.
Prior to this appeal, L.D. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452 in this court. In her petition, mother challenged the juvenile court’s order terminating reunifications services for her children, J.D. and Jay D., and the setting of a hearing pursuant to Welfare and Institutions Code section 366.26. We denied that petition. She now appeals from the lower court’s order denying her section 388 petition, which requested reinstitution of reunification services and reinstatement of visitation with her children. She also appeals from the order terminating her parental rights, arguing that the court erroneously suspended her visits with her children. Since she could not visit with her children and develop a bond with them, she claims she could not present any defense to the termination of her parental rights under section 366.26 and her due process rights were violated. We conclude that the lower court did not abuse its discretion in denying mother’s section 388 petition and that mother’s due process rights were not violated when the court terminated her parental rights because the court had not erroneously denied her visitation with her children.
All further unspecified code sections refer to the Welfare and Institutions Code.
BACKGROUND
The relevant facts that occurred prior to mother’s filing her section 388 petition have already been set forth in our nonpublished decision, Latoya D. v. Superior Court, A117023, filed on April 5, 2007. These facts are as follows:
On May 16, 2006, the Contra Costa County Bureau of Children and Family Services Bureau (the bureau) filed a petition pursuant to section 300, seeking to have the 18-month-old fraternal twins, J.D. and Jay D., declared persons coming under section 300 and declared dependent children of the juvenile court. The amended petition alleged that, under section 300, subdivision (b)(1) and (2), mother had a history of substance abuse and of engaging in domestic violence. On June 20, 2006, mother pleaded no contest to the amended petition, and the case was set for a disposition hearing.
In its disposition report dated July 11, 2006, the social worker for the bureau recommended that mother be offered reunification services. The report stated that the bureau had 17 previous referrals regarding mother’s other children, although only three of these referrals were substantiated on behalf of J.D. and Jay D. In November 2004, mother was offered a voluntary family maintenance plan, but mother failed the plan as she failed to follow through with drug testing, counseling, and parenting classes.
The disposition report further asserted that mother had continued to test positive for cocaine, alcohol, and marijuana. The report stated: “[Mother] also engaged in domestic violence with three different individuals in the last year.” The domestic violence incidents involved verbal abuse and mother reported sexual abuse. Mother, however, remained involved with these men where there was domestic violence.
The disposition report declared that the fraternal twins, J.D. and Jay D., did not appear “to be on target developmentally.” In addition to making “very few utterances when in the presence of other people[, the twins] also display very disturbing behavior[,] which includes taking feces out of their diaper and smearing it on their body including their face, on the walls, and on furniture.” The children did not speak, but grunted when they spotted food or liquids. They also had very flat affect.
The disposition report indicated that the children would not be safe in mother’s home. Mother was continuing to see the men who had abused her. Further, she refused to permit the bureau to enter her home and it could not determine without her cooperation the level of risk to the children in the home.
According to the disposition report, the court had ordered weekly visitation for mother and her children and the social worker supervised this visitation. Mother participated in the first scheduled visit, which lasted about one hour. When the children saw their mother, they just stared at her and neither gestured nor made any utterances to her. Mother did not participate in any other visits and provided numerous reasons for not participating.
In its final assessment, the disposition report indicated that mother had not followed through with any of the services that the bureau had requested of her. This included court “ordered weekly visitation, proof of filing restraining orders against three of her abusers, drug testing, parenting classes, and [Alcoholics Anonymous/Narcotics Anonymous] meetings.” The social worker visited mother at her home on June 5, 2006, and mother appeared disheveled and under the influence of drugs. Mother refused to permit the social worker to enter the home and the social worker left when mother cursed and threatened her. On June 8, 2006, mother was hospitalized due to her volatile behavior. Hospital staff reported that mother tested positive for cocaine and alcohol. On June 27, 2006, mother again tested positive for marijuana.
The bureau recommended that the children be adjudged dependents of the court and that the court find by clear and convincing evidence that there was a substantial danger to the physical health, safety, protection or physical or emotional well-being of the children if they were returned home and there were no reasonable means by which the children’s physical health could be protected without removing the children from their mother’s physical custody. On July 11, 2006, the juvenile court followed the bureau’s recommendation and set the matter for a six-month review.
The court held a review hearing on December 19, 2006. The court suspended mother’s visits with the children.
Prior to the contested hearing on February 21, 2007, the social worker for the bureau submitted a memorandum dated February 15, 2007, to the court to provide an update on mother and the twins. The report stated that mother had been in the Orchid Residential Program (Orchid) in Oakland. Orchid is a residential substance abuse treatment program. According to mother’s counselor in the program, mother had been an active participant, although mother had been having severe headaches that at times hindered her ability to participate fully in the program. Mother learned that she had to have a cyst removed from the back of her head. Additionally, the counselor told the social worker that she was concerned with the amount of time mother was missing from the program because “of her hurry to try and meet the requirements of her case plan.” It was unknown at that time whether mother would be able to stay in the program or be able to allocate sufficient time to her treatment program because of the outpatient surgery for her cyst.
While at Orchid, mother attended individual therapy on a weekly basis, participated in parent education twice a month for two hours, and attended 12-step meetings twice weekly. She began attending a program for domestic violence at the end of January 2007.
The children continued to have developmental issues. The children, who were 28 months old at the time of the report, were functioning at the level of a nine- and/or 10-month-old child. They continued to have a limited vocabulary and still shoved large amounts of food into their mouths and did not know when to stop eating. Both children now recognized their names and would hug one another when directed to do so. Both were affectionate with their caretaker.
The report noted that mother had lost custody of another set of twins to the children’s father because she had failed to attend the court hearings. One of her sons suffered from severe asthma requiring many hospitalizations, but mother failed to follow her son’s treatment plan and denied the seriousness of his condition. This information was of particular significance to the social worker because mother remained in denial of the physical and mental health of Jay D. and J.D.
The memorandum concluded: “This social worker is requesting that the mother continue to be denied visits with her children. It is a fact that these children were severely neglected and witnessed a great deal of domestic violence between the mother and her partners. Their negative behaviors, the feces smearing, hurting themselves and each other, the excessive screaming, and tantrums are clear indications that these children were mentally if not physically abused in the past. . . . It also makes this social worker deeply sad that the mother has denied since my first meeting with her in early August 2006 that there is anything wrong with her children. She stated to this social worker that they did not have these problems until they became dependents of the court. This social worker worries about the mother’s ability to care for [these] children’s issues if they are returned to her care in the future.”
The social worker noted that mother was now finally working on her case plan. However, mother had only attended four of the 52-week sessions in a certified domestic violence program and had not yet received her mental health assessment.
The social worker for the bureau filed her status review report on February 21, 2007. The report stated that the court-ordered plan for mother required her to attend individual therapy, to complete a mental health assessment, to complete a domestic violence program, to complete parenting education, to attend a 12-step program, to complete successfully an outpatient substance abuse program, and to participate in random drug testing. Mother had not complied with any component of her plan. Since the last court date of July 11, 2006, mother had visited with her children only once, on November 15, 2006. During the visit, J.D. clung to the caretaker and would not respond to mother. Jay D. engaged with his mother after a few minutes into the visit, but he responded to her as if she were a stranger, not a parent.
When the social worker discussed with mother the progress of her children, mother “would become very defensive and state that the children did not have the problems they [were] experiencing until after they were taken from her. She [stated] repeatedly that she was a good mother.” In September 2006, the social worker stopped all phone calls between mother and the foster mother because mother was verbally abusive. Mother denied being verbally abusive, but the social worker was present when the foster parent received one of the abusive calls. Additionally, the social worker learned that mother had been evicted from her apartment because she continued to be drunk and to have domestic violence disputes with men visiting her.
The twins continued to have developmental issues. Both did not speak any words and had difficulty sleeping; they often cried and screamed all night. Both had tantrums and hit each other. Neither child knew when to stop eating or drinking, and both tried to shove large amounts of food into their mouths. They exhibited their wants by reaching for things, crying, and screaming. Both continued to smear feces on themselves, furniture, and walls. They had destroyed two playpens. The children’s behavior had improved from when they were first removed from the home, but they had regressed and their negative behaviors had escalated after their visit with mother on November 15, 2006.
The bureau recommended that reunification services be terminated and that a section 366.26 hearing be set.
The social worker assigned to mother’s case, Sophia Webb, testified at the hearing on February 21, 2006. She stated that mother had told her that she did not want to visit her children and that mother had not complied with any part of her case plan until the status review report was written. She further confirmed that the current foster parent was interested in adoption.
Counsel for mother submitted three exhibits. The first exhibit was a letter dated February 21, 2007, from mother’s counselor at Orchid. The letter confirmed that mother was at Orchid since December 8, 2006, and that she was in “full program compliance, attending and participating in the Orchid program as required.” The letter also confirmed mother’s weekly attendance of a certified domestic violence class. The second exhibit was a letter dated February 20, 2007, from the social worker providing mother with domestic violence counseling. Mother had started counseling on January 26, 2007, and had participated in five sessions. The social worker opined that mother appeared “to be sincerely motivated to make lifestyle changes which will improve her future. [Mother] is able to express her need to set limits in relationships and to take the steps to avoid situations that could lead to domestic violence.” The final exhibit submitted by mother’s counsel set forth the weekly program activity schedule for mother at Orchid.
Counsel for the children told the court that she agreed that the court had “no other option but to terminate services to the mother in this case.” She agreed that mother “started the services way too late in these children’s lives, and as the court––as the court knows, time is not tolled for parents to basically decide that they are going to start at––you now, working on their plan.” She added: “There is not one possibility that the law would support this court giving her more services at this time for the six-month review period, which is the time that she was supposed to work on her plan. She did nothing.” Counsel for the children also found it “appalling” that mother had only one visit with the children since the court hearing in July 2006.
The court found that mother did not have regular contact with the children, had not made significant progress in resolving the problems that led to the removal of her children, and had not demonstrated the capacity and the ability to complete the objectives of the treatment plan. The only evidence mother had presented was that she had been attending a program for two months after doing nothing for six or seven months. The court concluded that it could not find there was a substantial probability that these children would be returned to mother in six months. The court terminated reunification services and set the matter for a section 366.26 hearing.
Mother filed a writ petition pursuant to California Rules of Court, rule 8.452, on March 16, 2007. We denied that petition on April 5, 2007, in our nonpublished decision (Latoya D. v. Superior Court, A117023). We concluded that mother had waited more than six months to start trying to meet the objectives of her reunification plan, which prevented her from being able to establish a demonstrated capacity and ability to complete the objectives of her case plan to provide for her children’s safety, protection, and well-being. Further, we concluded that the record established that mother only visited the children twice since the time they were removed in May 2006, until visitation was suspended in December 2006. Moreover, during this period, mother told the social worker that she did not want to visit the children. Thus, the record was devoid of any evidence supporting a finding that she regularly visited the children. Similarly, the record established that mother never acknowledged that she had any role in her children’s developmental problems; she continued to assert that the children had no problems until they were removed from her care. We therefore concluded that the record supported a finding that she had not made significant progress in resolving the problem prompting the children’s removal from her custody.
In her extraordinary writ petition, mother also challenged the court’s order of December 19, 2006, suspending visitation between the twins and her. We concluded that this challenge was untimely. Mother had 60 days from December 19, 2006, to appeal that decision. (Cal. Rules of Court, rules 8.400(d)(1) & 5.585(f).) However, she filed her writ petitionon March 16, 2007, almost one month after the time for appealing the visitation order had expired.
Following our decision in mother’s writ petition, mother filed a section 388 petition with the superior court on June 11, 2007. Mother asserted that she had completed her residential substance abuse program at Orchid on June 8, 2007. Further, she alleged that she had completed alcohol and drug education, relapse prevention, anger management, and parenting education. She maintained that she had been drug free since her admittance into Orchid on December 8, 2006. She therefore requested reinstitution of reunification service and visitation with her children. She noted that her twins have special needs and asserted that it was important for them to have the support of their mother. She claimed that she was now well and able to care for and love them. Mother submitted documentation that she had completed the requirements at Orchid and had left Orchid in good standing with a comprehensive exit plan.
On June 19, 2007, social worker Michele Colbert filed a memorandum in response to mother’s section 388 motion. She stated that the twins had only visited with mother on two occasions since their removal from her care on May 12, 2006, when they were approximately 19 months old. She maintained that the twins do not have a relationship with their mother and that they would not benefit from any further contact with her. She challenged the assertion that the children would benefit if reunification services were reinstated with mother because they were special needs children. She pointed out that “[i]t was only after being removed from their mother’s care and placed with their current caregiver, that both [children] began to make progress. . . . The current caregiver provides [the children] a stable home that is full of love. The children are not neglected and everyday they continue to make positive progress. . . .” The social worker added, “Both children are happy where they are and deserve to continue to be happy and continue to receive the same amount of love, support and care that they currently do.” She concluded that this could only happen if the court denied mother’s section 388 petition.
On June 20, 2007, the juvenile court held the hearing on mother’s section 388 petition. Social worker Colbert testified that the current caregiver was willing to adopt the twins, and the caregiver’s home had an approved adoptive home study. Colbert did not believe that providing mother six more months of reunification services would be in the children’s best interest because they had been in their current placement for over one year and had made great strides. She stated that mother had only visited with the children twice in the past year and the children would not recognize her as the caregiver.
Colbert testified that mother’s former reunification services plan had required her to attend general individual counseling, participate in a domestic violence program, complete a psychological evaluation, attend a parenting education program, go to a 12-step substance abuse program, attend an outpatient substance abuse program, and have substance abuse testing. Mother was required to participate in a 52-week domestic violence program, but had only gone to eight individual domestic violence specific counseling sessions between January and March 2007. Additionally, Colbert stated that mother had not had a psychological evaluation, and she was unaware whether mother had participated in 12-step meetings since leaving Orchid. She noted that mother had parenting classes at Orchid and this program satisfied the substance abuse treatment requirement. While Colbert acknowledged that mother had drug testing while at Orchid, Colbert testified that she had not received the results of the tests and did not know the frequency of the tests or whether they were random.
Colbert testified that the children were 19 months old when placed with the foster parent and, at that time, they displayed signs of malnourishment. Mother had been offered eight visits with her children, but attended only two. The children had not recognized mother at her November 2006 visit with them.
Mother testified and she declared that she was currently continuing to participate in her 12-step program. She stated that she learned “a lot” at her parenting classes and believed she could now successfully parent her children with the support of the services, if they were needed. She said that it took her seven months after her children had been removed to enter Orchid because she had given up. Mother admitted that her children had special needs, but she only acknowledged needs related to asthma and a learning disability. She mentioned that the children had been present in the home while she had been physically abused, but she insisted that they were asleep when the abuse occurred.
Mother testified that she had been an addict for the previous one- and one-half year, and denied being an addict before that. She stated that she did not have any excuse for not visiting her children for their scheduled visits from May to November 2006. She maintained that she had seen and was receiving treatment from a psychiatrist. She claimed that she had obtained a written psychiatric evaluation in December 2006, but she agreed that she had not provided a copy of the evaluation to the social worker.
Counsel for the children stated that she believed that it was really significant that mother had visited with the children only twice and that mother did not “really have an explanation as to why she didn’t do that. And in the five months until November, when she missed the visits, the children no longer really knew who she was and established a bond with their foster mother to the point that in the November visit they, you know, as the [section] 366.26 report says, you know, continue to go to their foster mom and want to be held in her arms.”
At the end of the hearing, the juvenile court stated that it was “obvious” that mother had “made significant progress in the recent past . . . .” However, the court noted that the “test is whether it would be in the best interest of the children to rupture a strong bond with an adoptive—potential adoptive family in the hopes that a bond could be reestablished that’s of equal value back in mother’s home. [¶] Given the kids’ significant issues and the fact that that last question has not yet been satisfactorily answered, I don’t think I can find and I won’t find that it’s in their best interest to extend services. So the petition is denied.”
The juvenile court further remarked: “And I do that with great sadness . . . . It’s not often that I see someone that’s worked as hard at this point as you have. I didn’t write the law, but I do have to follow it. And the law requires me to do what I just did.” The court told mother that she had done well for herself and her family.
The juvenile court held the section 366.26 hearing on August 1, 2007. The court read and considered the bureaus’ report prepared for the hearing. The report described both children as being diagnosed as victims of severe neglect and with post traumatic stress disorder resulting from being in a home with domestic violence. The children had expressive language disorder and mild developmental delay. The report summarized mother’s visitation with the children and described the foster mother’s commitment to the children. The report noted that the foster mother had a completed adoptive home study. The report recommended that the court find the children likely to be adopted and terminate parental rights.
Mother presented no evidence at this hearing. Mother’s attorney urged the court to appoint the children’s caregiver as their legal guardian rather than terminate parental rights because the adoption might not be completed after parental rights were terminated. Counsel for mother stated, “for the record, [we] would still object to the termination of [mother’s] services and to the termination of visitation.”
The court followed the bureau’s recommendation and terminated parental rights.
Mother filed timely notices of appeal from the order denying her section 388 petition and the order terminating parental rights. We granted her motion to consolidate these appeals.
DISCUSSION
I. Denial of Mother’s Section 388 Petition
Mother claims that the juvenile court abused its discretion in denying her section 388 motion. She asserts that the court should have reinstituted reunification services or, at a minimum, reinstated visitation between mother and her twins.
A juvenile court’s ruling on a section 388 petition is reviewed for abuse of discretion. (In re Jasmon O. (l994) 8 Cal .4th 398, 415.) The lower court’s decision will not be disturbed unless the court has abused its discretion by making a capricious, arbitrary, or absurd determination. (Ibid.; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) In reviewing the decision and the evidence supporting it, an appellate court may not substitute its judgment for that of the trial court, but must view all evidence in the light most favorable to the ruling, indulging in all reasonable inferences to support the decision, keeping in mind the principle that matters of fact and credibility are the province of the hearing court. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.)
Section 388, subdivision (a) provides in relevant part that “[a]ny parent . . . having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . .” “If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . .” (§ 388, subd. (c).)
At the close of the section 388 hearing, the juvenile court, according to mother, failed to specify the burden of proof or what burden of proof it was applying. She argues that this failure constitutes error. We, however, presume that the trial court has applied the correct standard of proof unless it expressly applies the incorrect standard or manifests confusion about the correct standard. (See, e.g., In re Katrina C. (1988) 201 Cal. App.3d 540, 547-548.) Furthermore, in the present case, mother had the burden of proving changed circumstances as well as showing that reunification services for her or visitation with her children was in her children’s best interests or promoted stability for her children. The trial court clearly found that mother had failed to meet her burden and the record amply supports this finding.
As already stressed, mother had the burden of establishing that circumstances had changed as well as that the granting of her petition would promote the children’s need for permanency or would be in their best interest. Because mother’s reunification services had been terminated, a presumption existed that continued care in the prospective adoptive home was in the twins’ best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 317 [after reunification services are terminated, “ ‘the focus shifts” to the child’s need for permanency].) Thus, mother had to present evidence to rebut this presumption. “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, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” (In re Casey D. (1999) 70 Cal. App.4th 38, 47.)
As to the issue of the children’s best interests or promoting the children’s need for permanency, mother completely failed to meet her burden of proof. The social worker and the attorney for the children both concluded that the twins were thriving in the foster home, that the children looked to the foster mother for nurturance, and that the foster mother wanted to adopt the children. The social worker and counsel for the children also concurred that the children no longer really knew who their mother was and they had not established a bond with her. In fact, the children did not recognize mother at her last visit with them in November 2006.
Other than making a conclusory statement that the court should have provided her with reunification services, mother’s entire argument focuses on the court’s refusal to reinstate visitation. Mother asserts, while providing no citation to any part of the record, the following: “At a minimum, the court should have reinstated visits at the 388 hearing. After learning via the [bureau] worker’s testimony that the missed visits before the suspension of visits in November of 2006 was not because of [mother’s] disinterest, which had been the assertion put forward by the [bureau] before, but was because [mother] had not given a confirmation call to the [bureau] prior to the visits, the court knew that its earlier order was erroneous.”
Mother’s argument misrepresents the record. In our prior nonpublished opinion, we concluded that the record established that mother only visited the children twice since the time they were removed in May 2006, until visitation was suspended in December 2006. During this period, mother told the social worker that she did not want to visit the children. Indeed, at the hearing on mother’s section 388 petition, mother admitted that she did not have any excuse for not visiting her children for their scheduled visits from May to November 2006. Accordingly, mother’s argument that her visitation was terminated simply because the bureau failed to receive confirmation calls from her is not supported by the record.
In her reply brief, mother asserts that the juvenile court should have reinstituted visitation absent a showing of detriment and she cites section 366.21, subdivision (h) and In re David D. (1994) 28 Cal.App.4th 941, 953-954 (lower court improperly suspended visitation when no detriment had been established because the evidence showed visits were in the children’s best interest and the court failed to consider the effect “an abrupt termination of visitation would have upon the minors”]). This authority cited by mother, however, confirms that detriment needs to be shown when the court is considering whether to discontinue visitation. In the present case, visitation had been suspended in December 2006 and this appeal concerns the order denying mother’s request to reinstate visitation. Thus, mother was requesting the court to change its prior order that had discontinued visitation and she had the burden of establishing that this requested change was in the children’s best interest; the bureau did not have any burden to show detriment in response to mother’s section 388 motion.
Section 366.21, subdivision (h) provides: “In any case in which the court orders that a hearing pursuant to Section 366.26 shall be held, it shall also order the termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child. . . .” (Italics added.)
Mother is belatedly attempting to contest the lower court’s order in December 2006, suspending her visitation with her children. As we have already held in our nonpublished opinion related to her writ petition, such a challenge is untimely. Moreover, when challenging the order suspending her visitation in her writ petition, mother failed to provide this court with an adequate record to consider this issue. Similarly, here, mother does not provide this court with an adequate record. The only document in this record related to the visitation order is the actual minute order. The record does not contain a transcript of the hearing on visitation. Mother has the burden of producing an adequate record on appeal. (See, e.g., Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447.)
Mother also contends that the lower court based its denial of her section 388 petition on her failure to submit a copy of her psychiatric evaluation into evidence when she testified that she had received the document but had failed to bring it with her to the hearing. She seems to suggest that the court should have requested a copy of the document and waited to issue its ruling until after it received the document. Firstly, the record does not indicate that the court needed this document to make its ruling. The record contained other evidence that mother had not completed all of the requirements of her reunification plan. The plan required mother to participate in a 52-week domestic violence program. Yet, she had only attended eight individual domestic violence specific counseling sessions between January and March 2007. Further, mother testified that she had participated in 12-step meetings since leaving Orchid, but the social worker had no knowledge whether this was true. Moreover, mother had drug testing while at Orchid, but the social worker had not received the results of these tests and did not know whether the tests were random, nor did she know their frequency. Mother had completed parenting classes, but she displayed little in-depth understanding of her children’s special needs. Thus, given the lack of documentation regarding mother’s compliance with many of the requirements of her reunification plan and the lack of insight she displayed regarding the special needs of her children, the psychiatric evaluation was not critical to the court’s determination. Secondly, and more significantly, mother was the only person asserting that such a document existed and it was her responsibility—not the court’s responsibility—to have all relevant evidence submitted as evidence.
Finally, mother claims that visits and extending services would not have removed the twins from their foster care and would have simply given them the “opportunity to reacquaint themselves with their mother . . . .” The problem is that mother did not avail herself of the opportunity to develop a relationship with the children from the time the children were removed from her care in May 2006 until the court suspended visitation in December 2006. By the time of the section 388 hearing in June 2007, the children had been in the foster home for over one year and the court’s focus properly changed to considerations of permanence and stability for the children. (See, e.g., In re Stephanie M., supra, 7 Cal.4th at p. 317.)
Mother’s averments of changed circumstances and a desire now for a relationship with the children speak more to her own interests than to those of the twins. Mother failed to meet her burden of demonstrating that reinstating reunification services for her or resuming visitation between the children and her would benefit the children or promote their need for stability and permanence. Accordingly, we affirm the lower court’s denial of mother’s section 388 petition.
II. Due Process Rights
Mother claims that her due process rights were violated because she was prevented from visiting her children and therefore stopped from proving a close and strong bond between her children, which was her only available defense to terminating her parental rights.
“ ‘It is axiomatic that due process guarantees apply to dependency proceedings.’ [Citations.] ‘A parent’s interest in the companionship, care, custody and management of his or her children is a fundamental civil right.’ [Citation.] Statutory procedures used for termination of parental rights satisfy due process requirements only because of the demanding requirements and multiple safeguards built into the dependency scheme at the early stages of the process. [Citations.] ‘If a parent is denied those safeguards through no fault of her own, her due process rights are compromised.’ [Citation.]” (In re Valerie A. (2007) 152 Cal.App.4th 987, 1006.)
“Under section 366.26, subdivision (c)(1)(A), a parent may avoid termination of parental rights only if the parent has maintained regular contact and visitation with the child, and the child would benefit from continuing the relationship. [Citation.] To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child’s life, resulting in a significant, positive emotional attachment of the child to the parent. [Citations.] ‘Obviously, the only way a parent has any hope of satisfying this statutory exception is if she maintains regular contact with her child.’ [Citation.] If a parent is deprived of visitation with his or her child, the parent is not going to be able to establish the exception or have any meaningful opportunity to avoid the termination of parental rights under section 366.26, subdivision (c)(1)(A). [Citation.] Thus, the erroneous denial of parent-child visitation compromises a parent’s due process rights to litigate and establish the section 366.26, subdivision (c)(1)(A) exception.” (In re Valerie A., supra, 152 Cal.App.4th at p. 1007, italics added.)
In the present case, mother maintains that she repeatedly requested the right to visit with her children, but was ignored. She claims that the juvenile court could have corrected its error of discontinuing the visits at her section 388 hearing, but it failed to do so. She asserts that the erroneous denial of parent-child visitation compromised her due process rights to litigate. (See In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504.)
As already discussed, mother failed to seek timely appellate review of the order of December 19, 2006, which suspended her visitation. “[A]n unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order.” (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) In the foregoing circumstance due process is implicated only if the parent shows: (1) there was a defect in the proceedings that fundamentally undermined the statutory scheme so as to prevent the parent from availing him or herself of the protections afforded by the scheme as a whole, and (2) the defect was not merely an error that might have been held reversible had it been timely reviewed. (In re Janee J. (1999) 74 Cal.App.4th 198, 208-209.)
Here, there was no defect in the proceedings. Mother has not demonstrated that the proceedings fundamentally undermined the statutory scheme so as to keep her from availing herself of its protections as a whole. Mother had appointed counsel at all the stages in the proceedings, and both mother and her attorney were provided with adequate notices of the hearings and mother’s appellate rights. Further, the propriety of the court's visitation order was an issue that was theoretically reversible had it been timely reviewed. Mother’s belated claim on appeal is not excused from the waiver rule under the circumstances of this case. (In re Janee J., supra, 74 Cal.App.4th at p. 209.)
Further, as already stressed, the court committed no error in either suspending or refusing to resume visitation for mother. As mother admitted, she had no good reason for visiting her children only twice when eight visits had been scheduled. With regard to the section 388 motion, as already discussed, mother failed to establish that resuming visitation at this point in her children’s life would be in the children’s best interests as they had no bond with her and did not recognize her as their mother. Thus, there was no error in suspending the visitation or in refusing to reinstate visitation and mother therefore cannot establish any due process violation.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J. Richman, J.