Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. JV320034
Margulies, J.
Soon after his birth, Justin F. was removed from the custody of his mother, Charline P. (Mother), who was unable to care for him as a result of a long-standing methamphetamine addiction. A few months later, Mother entered a rehabilitation program. After emerging from the program, she got a job and stayed drug-free for a considerable period of time. In a prior nonpublished opinion, In re Justin F. (Feb. 21, 2006, A110496) (Justin I), we reversed the juvenile court’s denial of a Welfare and Institutions Code section 388 petition seeking reinstatement of reunification services and vacated its order terminating Mother’s parental rights, concluding that the juvenile court had denied the petition solely on the basis of the bond developed between Justin and his foster parents.
All statutory references are to the Welfare and Institutions Code.
On remand, the juvenile court denied a renewed section 388 petition and reinstated its order terminating parental rights, concluding that further reunification services would not be in Justin’s best interests because (1) Mother was living with a man who, until recently, had been a regular methamphetamine user; (2) Mother’s home was unsuitable for an infant; (3) Mother’s work was unsuitable; and (4) severance of Justin’s bond with his foster parents might cause him significant psychological harm. We affirm.
I. BACKGROUND
This is the second appeal in this matter. As described in our initial opinion in Justin I, supra, A110496, and incorporated by reference, the Lake County Department of Social Services (County) filed a juvenile dependency petition with respect to Justin, who was three weeks old at the time, on June 8, 2004. The petition alleged that Mother’s substance abuse, primarily of methamphetamine, rendered her unable adequately to supervise and care for Justin. At a later hearing, Mother acknowledged that she had been addicted to methamphetamine for 10 years, since she was 16 years old. The juvenile court sustained the petition at an uncontested jurisdictional hearing.
At the time of the interim review hearing, held on August 30, 2004, nearly three months after Justin was placed in foster care, Mother had made little or no progress in her struggle with drug abuse. By January 2005, however, Mother had successfully completed a 90-day residential drug treatment program, had been free of drugs for five months, and was holding down a job. On the other hand, it had been discovered that she was subject to pending criminal charges for welfare fraud, possession of an illegal substance, and being under the influence of an illegal substance. In addition, Mother had become engaged to be married, and then broken off her engagement, to a reputed drug-user, who was also the brother of Justin’s father. Mother explained that she had broken off the engagement because, “I can’t stay clean if I’m going to be with somebody that’s not.”
The juvenile court commended Mother, but it characterized her progress as “moderate but insufficient and untimely progress for—for the benefit of the child.” Noting that Justin had bonded with the foster parents, not his biological parents, the court adopted the recommendation of the County that reunification services and parental rights be terminated.
At a subsequent hearing on June 13, 2005, the court denied a section 388 petition by Mother seeking the reinstatement of reunification services as a result of her continued success in overcoming drug dependency. In denying continued services to Mother, the court referred to a letter submitted by the foster parents, reading into the record sentences from that letter describing the agony of their first two months helping Justin to overcome his exposure to methamphetamine, the joy both he and they felt in the bond that had developed subsequently, and their efforts to understand and anticipate the needs of a child born with drug dependency. Addressing Mother, the court said, “It’s not about you and how you cleaned up but who has cleaned up the child.”
In Justin I, supra, A110496, we concluded that the juvenile court had given insufficient weight to the possibility of parental reunification. As we noted, “[w]hile the court correctly recognized that the proper standard to apply is the best interests of the child, there is no indication that it engaged in the careful weighing of relevant factors required by [In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.)]. Rather, the court appears to have based its decision solely on the hard work and successful bonding of the foster parents” and discounted the potential for Justin, still a baby, to bond with Mother. We reversed and remanded “for rehearing of the section 388 petition and a new selection and implementation hearing pursuant to section 366.26, if such a hearing is necessary.” (Justin I, supra, A110496.)
After remand, the County social worker prepared a status report, dated April 24, 2006. The report noted that Mother had not had any contact with Justin since her parental rights were terminated nearly a year before. Mother had renewed her relationship with Justin’s uncle, Troy, which Mother previously testified she had ended because of Troy’s drug use, and was cohabiting with him. At the time of the status report, however, Troy was serving time in jail for substance abuse. Mother’s probation status had not yet been terminated because her probation officer worried that continuous contact with an active addict would be a violation of the conditions of her probation.
Despite her relationship with Troy, Mother had continued to test negative for drug use; by the time of the report, Mother had been drug-free for 20 months. Information submitted with her renewed section 388 petition demonstrated that she was making consistent satisfactory progress in the treatment for her addiction, with very good participation in the program. She had obtained spring and summer employment at a Clear Lake resort, where she worked “from 1 to 3 days a week.” She had been prescribed medication to control the symptoms of what was diagnosed as bipolar disorder.
At the hearing on Mother’s renewed section 388 petition, it emerged that Mother’s previous full-time job had been lost when the company she worked for went out of business.
At the subsequent hearing, Mother testified that her treating psychiatrist later changed her diagnosis from bipolar disorder to depression and gave her medication appropriate to that diagnosis.
Prior to hearing on the section 388 petition, the County submitted a further report recommending that the petition be denied. The County concluded that the mobile home maintained by Mother and Troy was “considerably more cluttered and unkempt” than a year prior and that the home did not “offer[] a safe and friendly environment for an active two-year-old.” It also noted that her employment as a bartender lasted only from April to October, with afternoon and evening working hours. The County’s primary concerns, however, were (1) Mother’s continued relationship with Troy, who had been released from jail and resumed residency with Mother; and (2) Justin’s bond with his potential adoptive parents, whom he viewed as his “primary and only family.”
The County also submitted a “bonding assessment” performed by a clinical psychologist that discussed the impact on Justin of severing his relationship with his foster parents. The assessment noted that the adoptive parents lived with their two biological children, aged 18 and 7, and another foster child, a 19-month-old boy. After observing Justin at his foster home and during a one-hour visit with Mother, the psychologist concluded that Justin “is securely attached to [the foster parents] for ongoing nurturance, emotional support and care. . . . Justin has accomplished one of the major milestones of early development in that he has formed a secure attachment to caretakers. Observation of his behavior suggests that his attachment is quite specific to his foster parents . . . . [¶] There would be short-term and long term effects of separation. . . . A loss of this magnitude at this stage in his development would raise the possibility of short and long term depression with the possibility that he could become unable to form new attachments. [¶] . . . [¶] . . . Any disruption in this bond would be extremely detrimental to his welfare.” Not surprisingly, since Justin was taken from Mother at three weeks old and had spent little time with her, the psychologist found no substance in Justin’s bond with Mother. “While there may be some incidental benefit to [his relationship with Mother], it does not constitute a viable relationship which would be supportive to the toddler in terms of day to day caretaking and emotional support.”
Hearing on the renewed section 388 petition occurred on August 21 and 22, 2006. Mother testified at length. She explained that she had been in continuing substance abuse treatment since September 2004, and had not used drugs during that time. She was living in a single-wide, two-bedroom trailer with her seven-year-old daughter and Troy. The mobile home is owned by Troy’s uncle and is located on the uncle’s land. Mother and Troy pay monthly rent. Since moving in, they had made several improvements to the trailer, but it still needed work. The water heater, normally enclosed, was exposed in the kitchen. She and Troy were making plans to build a new residence, to be owned by the uncle, on the same land. Mother testified that she had lined up a full-time job to supplement or replace her part-time work at the resort.
Troy had been living with Mother continuously since February or March of 2005. Mother acknowledged that Troy had used methamphetamine during much of that time, but she insisted that he had stopped using since entering jail five months before the hearing, in March 2006. At that time, he began serving a brief sentence for drug use. Although Troy had not participated in any substance abuse programs since being released in May 2006, he was working on a construction crew for well over 40 hours per week. Because he was working, Troy was not present on either day of the hearing.
The social worker who had characterized Troy as an active methamphetamine user in her report acknowledged at the hearing that she had no evidence Troy had used drugs since entering jail in March.
In the years prior to his entering jail, Mother testified, Troy had periods of methamphetamine use, followed by periods of abstinence. She agreed that he had “a history of doing well, doing bad, doing well, doing bad.” During the time he was living with Mother, there were periods when “[h]e wouldn’t come home for some days,” presumably as a result of drug use. Although he did not use drugs in their home, at times he would leave for two to three hours and return under the influence. This occurred once or twice per week during the time prior to his entering jail. During much of this time, Mother’s daughter was also living in the home. On some occasions, Troy would return under the influence while the daughter was present, which was a matter of concern to Mother. Mother was confident, however, that her contact with Troy did not increase the risk that she would relapse into drug use, since she was firmly resolved against such a relapse.
Mother acknowledged that Troy had a criminal history of violence, including assaults against a former girlfriend and the police. She attributed the violence to his drug use, acknowledging that methamphetamine use could lead to violence. Despite his history, Troy had never been violent in her presence.
The section 388 hearing was conducted by the same commissioner who had heard and ruled on the original petition. After the conclusion of testimony and argument, he denied the petition and reinstated the section 366.26 orders that had been vacated by this court. Explaining his ruling, the commissioner stated, “[T]he possibility of reunification with the natural parent does not offer the child a superior alternative to life with the adoptive foster parents, and that’s even taking into consideration both the supposed value inherent in a natural family unit and, also, the remaining risks presented by the mother’s continuing conduct. [¶] [T]he mother appears blind to some of these risks or in denial about them. She continues to reside in partner with a methamphetamine user, despite the risks of domestic violence, potential relapse, methamphetamine-related violence, et cetera. [¶] The housing and living situation continues to be substandard and there continues to be a risk of harm to [the children]. [¶] I think she is also blind to the risks inherent in the type of work she’s doing. As a recovering substance abuser, to work as a bartender, . . . increas[es] the possibility of relapses. [¶] Further . . ., severing the bond between Justin and his adoptive foster parents would cause long-term serious emotional damage to the child. [¶] . . . [¶] [A] presumption that there’s some sort of . . . ‘inherent value’ . . . to this natural family unit is not valid in this case. It certainly can be distinguished from other cases where there has been, actually, a bond that existed between one of the natural parents and the child before removal. We don’t have that here. [¶] . . . [¶] It would not be in the best interests of the child to grant the 388.”
The juvenile court then proceeded to address the termination of parental rights under section 366.26. The court inquired of counsel whether “we need to notice [a section 366.26 hearing] for another date before we reinstate [the prior orders] or is that legally possible today?” Because counsel for the County was unable to recall whether the notice of hearing had mentioned section 366.26, he requested that counsel for Mother stipulate that notice was adequate. Before counsel for Mother could respond, counsel for the foster parents persuaded the court that further notice was unnecessary, and the court reinstated its earlier orders under section 366.26 terminating Mother’s parental rights. Counsel for Mother thereafter made no clear objection to this procedure, saying only, “I think we should follow the appellate recommendation and decision,” without further explanation.
II. DISCUSSION
Mother contends that the juvenile court abused its discretion and violated her constitutional rights in denying her petition under section 388 and that the court violated her right to due process by reinstating its section 366.26 orders without proper notice.
As we discussed in Justin I, supra, A110496, the purpose of the child dependency laws is to protect abused and neglected children and to provide them permanent, stable homes. (In re Marilyn H. (1993) 5 Cal.4th 295, 307 (Marilyn H).) After children have been removed from the custody of their natural parents under this system, the initial focus is on reuniting children and parents through the provision of services designed to correct the problems that led to the dependency proceeding. (Id. at p. 304.) After a statutorily prescribed time dependent upon the age of the child (§ 361.5, subd. (a)), the juvenile court must terminate reunification services and make provision for the permanent care of the child. (§ 366.21, subd. (f).) At this point, the focus shifts from reunification to the child’s need for permanency and stability. The court must schedule a selection and implementation hearing pursuant to section 366.26, at which a plan for permanent care is chosen. (Marilyn H., at pp. 304, 309.) If the natural parents have been unsuccessful, this may entail permanent removal of the children from their home. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.)
Throughout the reunification process and thereafter, section 388 grants to parents a right to petition for the modification of any court order on the basis of changed circumstances or new evidence. (Marilyn H., supra, 5 Cal.4th at pp. 308–309.) Use of the section 388 modification procedure is particularly appropriate when a parent begins to comply with the reunification plan late in the statutory process. “[R]eunification pursuant to section 388 must remain a viable possibility even after the formal termination of reunification services . . . if there is . . . a ‘legitimate change of circumstances.’ ” (Kimberly F., supra, 56 Cal.App.4th at p. 529; see similarly In re Jasmon O. (1994) 8 Cal.4th 398, 415 (Jasmon O.).) “[S]ection 388 really 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.” (Kimberly F., at p. 528.) Under section 388, the burden of proof is on the petitioner to demonstrate by a preponderance of the evidence that the proposed modification is in the child’s best interests. (Jasmon O., at p. 415.) The petition “is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (Ibid.)
In Kimberly F., the court established an analytical framework for evaluating a section 388 petition seeking to modify an order terminating reunification services. As that decision describes in more detail, the juvenile court should weigh (1) the seriousness of the problem that led to the dependency and the reason for any continuation of that problem or, alternatively, the reason the problem was not overcome prior to the section 366.26 hearing; (2) the strength of the relative bonds between the dependent child and both caretakers and parents, which in turn is affected by the length of time the child has been in the dependency system; and (3) the degree to which the original problem may be easily removed or ameliorated, and the degree to which it actually has been. (Kimberly F., supra, 56 Cal.App.4th at pp. 530–531.) “While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion.” (Id. at p. 532; see also In re Amber M. (2002) 103 Cal.App.4th 681, 685.)
In concluding that reinstating reunification services was not in Justin’s best interests, the juvenile court relied on several factors, including (1) Mother’s continued relationship with Troy, who until recently was a regular methamphetamine user; (2) Mother’s modest home; (3) Mother’s employment as a bartender; and (4) the strength of the emotional bond that has developed between Justin and his adoptive foster parents and the lack of any established bonds or family unit with Mother. Because the section 388 petition was seeking only the reinstatement of reunification services, we are inclined to discount the second and third factors. The evidence that Mother’s home presented a true hazard to Justin was slim, and what problems existed were relatively easily fixed. There was no evidence the home was unsanitary. Further, because Mother was not an alcoholic, the court’s assumption that she was at a heightened risk of relapse from working as a bartender was speculative, and, in any event, Mother testified that she had secured alternative office work. Contrary to the court’s finding, Mother appeared to have made adequate child care provisions for her seven-year-old daughter during the time she was at work. Because Mother was not seeking immediate custody of Justin, the natures of her home and work were by no means disqualifying.
The other factors mentioned by the court cannot be so easily dismissed. At the initial section 388 hearing in 2005, Mother stated that she had ended her relationship with Troy because she recognized that “I can’t stay clean if I’m going to be with somebody that’s not.” Mother’s resolve echoed the commonsense views of her probation officer and drug abuse treatment adviser that it is easier for a recovering addict to lapse back into drug use if he or she associates with persons who are using drugs.
We now know that Mother’s resolve was only temporary. Within months, Troy was back in her life and her household. This occurred despite Mother’s awareness that he was still using methamphetamine on a regular basis, that methamphetamine is a drug that at times leads to violent conduct, and that it had led Troy to criminally violent conduct, including domestic violence, on more than one occasion in the past. Although she may not have permitted him to bring the drugs into the home, Mother would, as often as twice a week, allow Troy to return to the home under their influence, despite the presence of Mother’s young daughter in the home.
Even assuming Troy has stopped using methamphetamine, there is an ever-present possibility that he will lapse back into drug use. He has refused any current treatment for drug abuse, and Mother testified that he has relapsed after ceasing drug use in the past. Troy’s presence in her home and life therefore increases the possibility that Mother will relapse, too. Further, her tolerance of Troy’s drug use, despite her recognition that it was potentially harmful to her, calls into question the resolve she claimed at the hearing to abandon him if he starts using drugs again. She made the same declaration not to associate with Troy because of his drug use at the earlier hearing, yet she permitted him to return without having ended it. Given Mother’s living situation, in a home owned by Troy’s uncle, ending the relationship might prove practically difficult, as well. For these reasons, we agree with the juvenile court that Mother’s relationship with Troy calls into question her ability to resist the risks that could lead to relapse, as well as to judge realistically the risks presented by those around her. As we noted in Justin I, supra, A110496, the juvenile court was properly permitted to “tak[e] into consideration . . . the risks, if any remain, presented by the natural parents’ conduct.”
Troy did not attend the hearings, using his work as an excuse for non-attendance. The juvenile court therefore had no opportunity to question Troy about his drug use directly, despite its obvious importance to the decision before the court. Particularly because the court had no opportunity to evaluate Troy for itself, the court was justified in taking a cautious view toward his likely future conduct, based on the record of his past conduct.
In addition, the year that passed between the first and second section 388 hearings worked a considerable change in Justin’s family dynamics. At the time of the first hearing, he was barely a year old. There was no evidence that the emotional bond he had formed with his foster parents was an enduring one. By the time of second hearing, Justin was over two years old and had developed more substantial bonds to his foster parents. The report of the psychologist was that, given the strength of these bonds, there was more risk in severing them now: “A loss of this magnitude at this stage in his development would raise the possibility of short and long term depression with the possibility that he could become unable to form new attachments. [¶] . . . [¶] . . . Any disruption in this bond would be extremely detrimental to his welfare.” Because of Justin’s increased age and the passage of time, this is no longer a situation in which “a child’s distress in severing a temporary bond is simply situational, and . . . a transitory problem.” (Jasmon O., supra, 8 Cal.4th at pp. 418–419 .) For that reason, the juvenile court was permitted to “place great weight on evidence that after a substantial period in foster care, the severing of a bond with the foster parents will cause long-term, serious emotional damage to the child.” (Ibid.)
As we noted in Justin I, supra, A110496, the juvenile court was required to consider the section 388 petition in light of current conditions, not those existing at the time of its prior decision. (See, e.g., In re Eileen A. (2000) 84 Cal.App.4th 1248, 1259, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413–414; In re Rodrigo S. (1990) 225 Cal.App.3d 1179, 1186.)
It is important to note that, unlike the child in Kimberly F., Justin was not taken from an existing natural family unit. Not only is there little bond between Mother and Justin, but there are no bonds between Justin and other siblings or extended family members either. At about the time Justin was taken from Mother, his father was imprisoned. Justin’s sister was staying with others as a result of Mother’s inability to care for her, and Mother’s addiction made it impossible for her to care for Justin during the short time he lived with her. For these reasons, Justin was not taken from, and has never been part of, a natural family.
Given these factors, and applying the analytical approach of Kimberley F., we find no abuse of discretion in the juvenile court’s denial of the section 388 petition. The original problem that led to Justin’s removal was extraordinarily serious. Not only did Mother give birth to a baby who was addicted to methamphetamine, but also, as a result of her own addiction, she was wholly incapable of caring for him. Because of the residual power of addiction, this is not a problem that is easily resolved. As Mother recognizes, it can be a struggle for an addict to remain free of drugs, even after his or her drug use ends. Yet any slip back into addiction by Mother will pose an immediate threat to Justin’s physical and mental health. Mother has shown remarkable and laudable fortitude in staying free of drugs, even after the shocks posed by the death of her mother and her loss of parental rights in Justin, but her continued relationship with Troy, in particular, suggests caution in concluding that the threat posed by her past addiction has been entirely resolved.
Posed against this uncertain situation is Justin’s current family life. His family bond is entirely with the foster parents, not with Mother. The evidence submitted to the juvenile court suggests that breaking that bond would present serious risks to Justin’s psychological health. Mother contends in her opening brief that the juvenile court was precluded from relying on the psychiatrist’s report because, quoting Jasmon O., supra, 8 Cal.4that page 419, it did not demonstrate “that disruption of the bond with the foster parents ‘will cause the child serious, long-term emotional damage[,]’ ” but only that “such damage is a possibility . . . .” Evidence that “ ‘long-term emotional damage’ ” is a certainty is unnecessary, however. The risk of serious psychological damage should not be ignored because it is merely a risk, not a certainty. Further, in Jasmon O., the certainty demanded by Mother was required before the juvenile court could base its conclusion solely on the existence of that bond. (Id. at p. 419.) Here, the foster parental bond was only one factor in the juvenile court’s reasoning.
While we agree that the psychologist was provided with questionable information about Mother by the County, that information was irrelevant to the psychologist’s conclusion about the impact on Justin of taking him from his foster parents. The conclusion was not based on Mother’s character (other than, perhaps, the lack of a strong mother-son bond) but on the nature of Justin’s relationship to his foster parents and the importance of that bond in his life.
It is true, as Mother argues, that her section 388 petition merely sought renewed reunification services, which would not immediately threaten the relationship between Justin and his foster parents. A transitional plan could have been employed to ease his separation from them. While we agree that the juvenile court could have employed such techniques had it otherwise viewed reunification as in the child’s best interests, it was not mandatory for the juvenile court to disregard the strength of the bond merely because ways might have been found to mitigate damage from its severance. In light of the factors discussed above, the juvenile court did not abuse its discretion in concluding that it was in Justin’s best interests not to renew reunification with Mother.
We do not agree with Mother that the juvenile court misinterpreted or misapplied our prior decision in Justin I, supra, A110496. The character of the juvenile court’s prior analysis was reflected in its comment, “It’s not about you [i.e., Mother] and how you cleaned up but who has cleaned up the child,” which we noted “suggests the type of one-dimensional comparison between the foster and natural homes that is proscribed by Kimberly F.” We further explained that “[w]hat a section 388 petition is ‘about’ in these circumstances is whether the possibility of reunification with the natural parent or parents offers the child a superior alternative to life with adoptive or foster parents, taking into consideration both the value inherent in the natural family unit and the risks, if any remain, presented by the natural parents’ conduct.” This time, in contrast to its prior ruling, the juvenile court did not base its decision solely on the bond that had developed between Justin and his foster parents but made an appropriate evaluation of the alternatives presented. The court took into full account the nature of the situation that Justin was presented with in reunifying with Mother, adding to that an awareness of the more significant bond Justin had developed with the foster parents as a toddler, in contrast to the more mutable bond of a baby. It concluded that the substantial adjustment that will be required of Justin at this point in his young life, combined with the continuing risks of exposure to methamphetamine abuse presented by Mother’s inability or unwillingness to separate herself entirely from her past life, outweighed the value of establishing a natural family unit. On the basis of the evidence presented, there is no abuse of discretion in this conclusion.
Mother also contends that it was improper for the juvenile court to consider Justin’s lack of bond with her because she was precluded from forming such a bond, citing In re Hunter S. (2006) 142 Cal.App.4th 1497. In Hunter S., however, the court found that the mother’s inability to develop a relationship resulted from the failure of the juvenile court to enforce her visitation rights during the reunification period. (Id. at p. 1507.) In contrast, Mother’s failure to form a strong bond with Justin resulted in part from her own incapacity during the first months of his life, which she spent practicing, and then rehabilitating from, a serious addiction, and, more recently, from a lack of visitation during the pendency of the prior appeal. It was not an error of the juvenile court that led to this failure. While it is unfortunate that Mother has not been in a position to develop a solid bond with her son, the lack of that bond is now a reality that cannot be disregarded in determining Justin’s best interests.
We recognize that we concluded that the juvenile court erred in our prior decision. We did not, however, conclude that there was no legal basis for denying Mother’s first section 388 petition, but only that the juvenile court’s analysis of that petition was flawed. For that reason, we are unwilling to attribute the lack of contact during the period of the prior appeal to error by the juvenile court.
The court’s approach did not deprive Mother of her constitutional rights. Mother’s claim that, as a matter of substantive due process, “[p]arental rights may be terminated only upon a finding of present parental unfitness,” is not supported by the case cited, Santosky v. Kramer (1982) 455 U.S. 745, 760, and represents an over-simplification of the constitutional issues involved. As explained in Marilyn H., the child dependency statutes stand at the crossroads of two sets of compelling, and sometimes competing, constitutional interests: parents’ rights to “the companionship, care, custody and management of [their] children” and children’s “rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.” (Marilyn H., supra, 5 Cal.4th at p. 306.) The dependency statutes create a process for mediating between these interests, and they must be viewed as such. (Id. at p. 307.) The process is designed to favor parental rights during the period of reunification, but the emphasis shifts to the rights of the child once parental rights have been terminated. (Id. at pp. 309–310.) While section 388 is critical to the constitutionality of the process, the role of section 388 at the time of the section 366.26 hearing is limited to giving the parent the opportunity to rebut the presumption “that continued care is in the best interest of the child” that would otherwise exist as a result of the termination of parental rights. (Id. at p. 310.) Here, Mother was given the opportunity to rebut that presumption. For the reasons discussed above, we find no abuse of discretion in the juvenile court’s conclusion that she was unsuccessful.
Finally, we find no error in the court’s failure to hold a new section 366.26 hearing. Although Mother was entitled to notice of the juvenile court’s consideration of section 366.26 issues, we conclude that any failure to give notice was not prejudicial.
Our remand order required the court to hold a new selection and implementation hearing, “if such a hearing is necessary.” (Justin I, supra, A110496.) The juvenile court properly interpreted that direction as requiring a new hearing only if the section 388 proceedings demonstrated new circumstances that called into question the validity of its prior section 366.26 orders. We find no error in the juvenile court’s conclusion that no new circumstances were demonstrated that made a new section 366.26 necessary, nor has Mother suggested any such circumstances.
Contrary to Mother’s contention, there is no general rule that a new section 366.26 hearing must be held “in cases involving unlimited reversal.” The case cited by Mother, In re Terrance B. (2006) 144 Cal.App.4th 965, holds only that a new hearing need not be held after a limited remand for Indian Child Welfare Act compliance (id. at pp. 974–975). It does not purport to state a broader rule.
We agree with Mother, however, that she was entitled to notice that reinstatement of the section 366.26 orders would be considered at the hearing. (In re Anna M. (1997) 54 Cal.App.4th 463, 468.) As Mother points out, the notice on which the parties proceeded listed only “388 Petition, Continued,” without mentioning the possibility of reinstatement of the section 366.26 orders. In reinstating the section 366.26 orders without Mother having been given advance notice that section 366.26 issues would be considered, the juvenile court erred.
Nonetheless, we find no grounds for reversal because any error was harmless beyond a reasonable doubt. (In re Angela C. (2002) 99 Cal.App.4th 389, 395.) As noted in Angela C., “Once the court finds the likelihood of adoption, termination of parental rights is the preferred permanent plan absent proof that termination would be detrimental to the child’s best interests.” (Id. at p. 396.) The court had made a finding that reinstatement of reunification services would not be in Justin’s best interests. That conclusion led directly to the finding that termination of parental rights would not be detrimental. At the hearing, Mother’s counsel did not suggest any additional evidence that she would have presented bearing on this question that had not already been presented at the section 388 hearing, nor does appellate counsel point to such evidence. Moreover, it is difficult to imagine that any additional evidence or arguments could have been offered, since the issues under sections 366.26 and 388 largely overlapped in these circumstances. It is clear beyond a reasonable doubt that the outcome would have been the same if Mother had been provided proper notice.
On appeal, Mother argues that she was prejudiced because she would have established a stronger bond with Justin if she had been given an additional four months of visitation with him. Putting aside the speculative nature of the claim, it is not a proper measure of prejudice in these circumstances. The pertinent issue is whether Mother was prejudiced by the failure to give advance notice of this hearing, not whether she would have benefited by a continued hearing. In that regard, Mother points to no additional evidence she would have presented or arguments she would have made had proper notice been given.
Nor do we find this to create grounds for prejudice. An additional four months would not have made a substantial difference in the relative strength of the bonds between Justin and his foster parents and Mother. It is clear beyond a reasonable doubt that any change that reasonably could have been anticipated from four more months of visitation would not have changed the juvenile court’s decision.
III. DISPOSITION
The juvenile court’s orders are affirmed.
We concur: Stein, Acting P.J., Swager, J.