Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. JUV092931. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, Acting County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Brent Riggs, under appointment by the Court of Appeal, for Minors.
OPINION
RICHLI, Acting P.J.
C.R. (mother) appeals from an order denying her “changed circumstances” petition under Welfare and Institutions Code section 388 (section 388), contending that the evidence required the juvenile court to grant the petition. She further appeals from an order terminating her parental rights to three of her children, contending that the juvenile court erred by failing to inquire as to why the children were not present at the hearing. We find no error. Hence, we will affirm both orders.
I
GENERAL FACTUAL AND PROCEDURAL BACKGROUND
As of March 2005, the mother was living with three of her children — T.K, a boy, then aged 11; R.M., a boy, then aged 7; and K.J., a girl, then aged 4. The two older children had been the subjects of a previous dependency proceeding, filed in March 1998, after the mother was incarcerated on a drug-related probation violation, and terminated in April 1999.
In October 2004, the mother had been convicted of possession of methamphetamine and placed on probation. In February and again in March 2005, she tested positive for methamphetamine, in violation of her probation.
The family was staying with a man named “J.J.” J.J. and the mother engaged in frequent arguments, including “loud yelling,” in the presence of the children. Also, J.J. had hit the children. According to the mother, J.J. was using methamphetamine.
J.J. ordered the mother to move out by April 1, 2005. A social worker was trying to get the mother into a residential drug treatment program where she could have the children with her, but on March 22, 2005, she absconded.
On March 28, 2005, a family friend found the oldest child, T.K., “wandering down... a high traffic road.” He could not say where the mother was. As a result, he was detained, and the Riverside County Department of Public Social Services (the Department) filed a dependency petition concerning all three children. By the time of the detention hearing, on April 1, 2005, the two younger children had been located and had also been detained.
In May 2005, at the jurisdictional/dispositional hearing, the juvenile court asserted jurisdiction based on failure to protect (Welf. & Inst. Code, § 300, subd. (b)) and failure to support (as to the fathers of T.K and R.M. only) (id., subd. (g)). It formally removed the children from their parents’ custody, and it ordered that the mother be provided with reunification services.
Meanwhile, earlier in May 2005, the mother had been arrested on various charges, including possession of a controlled substance. In August 2005, she was sentenced to state prison.
Initially, R.M. was placed separately from the other two children. In December 2005, however, the two other children were placed with him. The foster family was interested in adopting all three children.
In January 2006, at the six-month review hearing, the juvenile court terminated reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26).
In August 2006, at the section 366.26 hearing, the juvenile court found that termination of parental rights would be detrimental, because (1) T.K., the oldest child, was 12 or older and was objecting to termination, and (2) as to the two younger children, termination would substantially interfere with a sibling relationship. Accordingly, it selected legal guardianship as their permanent plan. It appointed the foster parents as guardians and terminated the dependency.
In May 2008, the Department filed section 388 petitions as to each child. It alleged that all three children now wanted to be adopted by the guardians and that the guardians wanted to adopt them. It asked the juvenile court to reinstate the dependency and to set a new section 366.26 hearing. In June 2008, the juvenile court granted the petitions; accordingly, it reinstated the dependency and set a 366.26 hearing.
Meanwhile, also in June 2008, the mother was released on parole.
She had apparently been released briefly sometime in early 2007 before being arrested and charged with burglary in May 2007.
In October 2008, the mother filed a section 388 petition, asking the juvenile court to vacate the order setting the section 366.26 hearing and to reinstate reunification services. The juvenile court set a hearing on the petition. The parties stipulated that the section 388 hearing could be held on the same date as the section 366.26 hearing.
Later in October 2008, the juvenile court denied the section 388 petition. It then held a section 366.26 hearing, at the end of which it terminated parental rights.
II
THE MOTHER’S SECTION 388 PETITION
The mother contends that the juvenile court erred by denying her section 388 petition.
A. Additional Factual and Procedural Background.
The evidence at the hearing on the section 388 petition, in addition to the petition itself, consisted of two specified social worker’s reports, plus statements by the mother and the prospective adoptive parents that were read into the record. We limit our review to this evidence, which showed the following.
These statements were referred to as “stipulated testimony.” When the trial court asked, “Do all parties stipulate and waive cross?,” all of the parties replied, “So stipulated. Waive cross.”
The mother had a long history of substance abuse. She had been arrested multiple times on substance abuse related charges. In 2006 and 2007, she had completed a prison substance abuse program, a residential drug treatment program, and a halfway house drug treatment program. In 2008, after her return to prison, she had completed numerous self-improvement programs, including parenting, domestic violence, anger management, substance abuse, and relapse prevention. In June 2008, the mother had been released on parole. She was currently enrolled in a drug rehabilitation program. She testified that she had not used drugs since her release.
The mother’s most recent visit with the children had occurred in April 2007 — i.e., over a year and a half before the section 388 hearing. At that time, her “behavior was very erratic.... The children became uncomfortable during the visit.... After the visit, the children began reacting with very negative behaviors.”
The mother claimed that the prospective adoptive parents had “thwarted” her efforts at visitation but did not specify how they had supposedly done so. The prospective adoptive parents responded that “they were more than willing to allow... visitation if that’s what the children wanted.” After the April 2007 visit, however, they had concluded that visitation was detrimental to the children.
The children had not asked for visits. The two older children had specifically said that they “d[id] not want to have face to face contact or telephone contact with their mother,” although they would be open to “written contact.” The mother had been told that she could send letters to the children, but she had not sent any.
The children had been placed with the prospective adoptive parents for over two years. The social worker reported that they were “thriving in their prospective adoptive home. The children have adjusted well to their environment and are closely bonded to the prospective adoptive parents.... The prospective adoptive parents provide a safe, stable, and loving environment for the children and the children have made monumental strides in all areas of their lives.”
The two oldest children both told the social worker several times that they “want[ed] to stay in the home and want[ed] to be adopted.” When the youngest child, K.J., was asked about adoption, “[s]he mistakenly thought [it] meant that she would be removed from her current home and placed in a new home for adoption, which upset her deeply. [She] report[ed] that she want[ed] to stay in her current home and d[id] not want to be moved anywhere else.”
The juvenile court denied the petition. It explained:
“[T]he Court is required to do a two-prong analysis, first of all, that there is a change of circumstances that would warrant the Court making that change in its orders.
“In evaluating the mother, I do note that she has, from all intents, remained clean for a number of months. She has done a number of programs. She is making change in her life. Whether that constitutes a change in process or a completed change I don’t necessarily think is the crucial issue here.
“I mean, a person who has a long-term drug addiction I think will constantly be going through changes in life whether it lasts six months or whether it lasts a number of years. So I do see that there has been change in the mother’s life sufficient to get over that first hurdle, the prong that requires there to be a change.
“Secondly, the Court would need to consider whether that change warrants granting reunification services because it’s in the best interest of the children. That one is a hurdle that I don’t think that the mother can overcome. The challenge I have here is the length of time is significant. These children were first removed three and a half years ago.
“The law desires for children to have permanence in their lives, stability. These children currently have that in their lives. To disrupt that, to go back into reunification with the hope or the chance that mom’s changes in her life will continue and that will maybe somehow provide a stable environment for these children, I can’t find that.
“These kids, in their declarations or in their discussions with the social worker, have indicated that they don’t really desire meeting with mom. They don’t desire visitation. They want to be right where they are. Therefore, I can’t find that it’s in the best interest of the children to change my previous order, so at this time, the 388 motion will be denied.”
B. Analysis.
“A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. [Citation.] The parent bears the burden to show both a ‘“legitimate change of circumstances”’ and that undoing the prior order would be in the best interest of the child. [Citation.]” (In re S.J. (2008) 167 Cal.App.4th 953, 959 [Fourth Dist., Div. Two].)
“The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion. [Citation.]” (In re S.J., supra, 167 Cal.App.4th at pp. 959-960.) “... ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ [Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, original quotation marks corrected.)
There was ample support for the juvenile court’s finding that granting the petition would not be in the best interest of the children. “Once services have been terminated, the juvenile court’s focus shifts from family reunification to the child’s permanent placement and well-being, and the burden accordingly shifts to the parent to show that a termination of parental rights is not in the child’s best interests. [Citations.]” (In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) Here, on one hand, the children had not seen the mother for over a year and a half and had no desire to see her. On the other hand, they were attached to the prospective adoptive parents and wanted to be adopted by them.
The mother nevertheless argues that this finding was an abuse of discretion because the prospective adoptive parents had “suspend[ed] visitation.” She does not explain how this could override the best interest standard of section 388. Assuming — solely for purposes of argument — that the prospective adoptive parents did improperly prevent the mother from exercising her visitation rights, her remedy was to ask the Department for visitation, and if that failed, to ask the guardianship court. There is no indication that she requested any visits after April 2007. The social worker told her that she could write to the children, but she never did. Once a year and a half had gone by, there had been no visits, and the children had bonded with the prospective adoptive parents, it was too late to complain about lack of visitation.
We therefore conclude that the juvenile court did not err by denying the mother’s section 388 petition.
III
FAILURE TO INQUIRE REGARDING
THE OLDER CHILDREN’S NOTICE AND OPPORTUNITY TO ATTEND
The mother contends that the juvenile court erroneously failed to inquire as to whether the two older children had been properly notified of the section 366.26 hearing and had been given an opportunity to attend.
A. Additional Factual and Procedural Background.
In June 2008, the juvenile court set the section 366.26 hearing for a date in September 2008. At the request of minors’ counsel, it also ordered that the children be personally present at the hearing.
On the hearing date in September 2008, the juvenile court continued the hearing to October 2008. The children were not personally present. Minors’ counsel likewise was not present, but counsel for the Department made a special appearance for her.
Counsel for the legal guardians asked “that the children’s presence be waived for the next hearing so they don’t continue to miss school.” Counsel for the Department said she would ask minors’ counsel “if she would waive their presence. But at this point, I can’t really speak for her....” The juvenile court therefore ruled, “I will order the children to be, at least, placed on call.”
In October 2008, at the section 366.26 hearing, the children were not personally present, but minors’ counsel was present. The juvenile court found that notice had been given as required by law. It did not inquire on the record as to why any of the children were absent.
B. Analysis.
At the time of the section 366.26 hearing, the oldest child, T.K., was 15, and the middle child, R.M., was 11. The mother relies on Welfare and Institutions Code section 349, subdivision (d), which provides that, if a minor who is the subject of a juvenile court hearing “is 10 years of age or older and he or she is not present at the hearing, the court shall determine whether the minor was properly notified of his or her right to attend the hearing and inquire whether the minor was given an opportunity to attend.”
This particular version of Welfare and Institutions Code section 349 (Stats. 2008, ch. 166, § 3) did not go into effect until January 1, 2009 — i.e., after the section 366.26 hearing.
The mother lacks standing to raise this argument. “A party has standing to seek review of a judgment or order by demonstrating that the party is legally aggrieved within the meaning of Code of Civil Procedure section 902. [Citations.]” (In re Jasmine S. (2007) 153 Cal.App.4th 835, 841-842.) “‘To be aggrieved, a party must have a legally cognizable immediate and substantial interest which is injuriously affected by the court’s decision. A nominal interest or remote consequence of the ruling does not satisfy this requirement.’ [Citation.]” (In re Holly B. (2009) 172 Cal.App.4th 1261, 1265.)
The mother argues that she is aggrieved because her “right to her children is directly impacted” by the asserted error. She relies on In re L.Y.L. (2002) 101 Cal.App.4th 942, which held that a parent has standing to argue that the trial court should have applied the sibling exception to termination of parental rights (former Welf. & Inst. Code, § 366.26, subd. (c)(1)(E); see now Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(v)). (L.Y.L., at pp. 948-951.) It reasoned, in part, that “the parent’s right to the child is directly impacted by a determination of the applicability of the exception.” (Id. at p. 948.) However, it also reasoned that a parent has standing to raise — and indeed, has the burden of proving — all other exceptions to termination. (Id. at pp. 948-949.) In other words, these exceptions are intended to be taken advantage of by the parent and to benefit the parent.
Similarly, In re Steven H. (2001) 86 Cal.App.4th 1023 held that a parent has standing to raise a failure to give notice to a grandparent, as required by former Welfare and Institutions Code section 366.23, subdivision (b)(5)(B) (see now Welf. & Inst. Code, § 294, subd. (a)(5)). It explained: “We think it significant that grandparent notification is required only when the parent cannot be located. If the purpose of the requirement was merely to give the grandparents an opportunity to preserve their own relationship with the child, then presumably the grandparents would be entitled to notice in every case, not only in situations when the parents are gone. But that is not the case. Grandparent notification is only required when direct parental notification cannot be achieved. [¶]... [¶] We conclude that the grandparent notification provision of section 366.23, subdivision (b)(5)(B) is intended, at least in part, as an attempt to get notice to the missing parent. Consequently, when that required notice is not given, the parent has standing to raise the issue on appeal.” (Steven H., at pp. 1032-1033.)
Here, by contrast, the requirement that the juvenile court inquire regarding the child’s notice and opportunity to attend is designed solely to benefit the child. The parent has no right to compel the child to attend. A child who is 10 or older may receive notice, yet choose not to attend the hearing. The child may also choose to waive a lack of proper notice.
The mother does not appear to be arguing that she was deprived of an opportunity to examine or cross-examine the children. We note, however, if only out of an excess of caution, that the statutory requirement that a child who is 10 or older be given notice (Welf. & Inst. Code, § 294, subd. (a)(3)), as well as the requirement that the juvenile court inquire regarding the child’s notice and opportunity to attend, have nothing to do with ensuring the child’s availability as a witness. Once again, the child could unilaterally choose to stay away. If the mother wanted the children to testify, she should have subpoenaed them. (See In re Malinda S. (1990) 51 Cal.3d 368, 383-385 [parent has the burden of subpoenaing witnesses whose hearsay statements are included in the social worker’s report].) It was minors’ counsel, not the mother’s counsel, who originally asked the juvenile court to order that the children be present. The juvenile court’s failure to inquire about their absence did not impact the mother’s rights.
The mother does suggest that, if the two older children had been present, they might have expressed an interest in maintaining contact with her. Evidently that was not the case, however, as their counsel was present at the hearing and did not object to termination. Moreover, they have not appealed from the order terminating parental rights.
Separately and alternatively, the mother also forfeited this argument by failing to raise it below. “[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.] [¶] Dependency matters are not exempt from this rule. [Citations.]” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) The rule extends to issues of lack of notice. (In re P.A. (2007) 155 Cal.App.4th 1197, 1207-1210 [father forfeited issue of lack of notice to him by appearing and failing to raise it below]; In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1419 [mother forfeited issue of lack of notice to all parties by failing to raise it below].)
We therefore conclude that, even assuming the juvenile court erred, the mother cannot raise the error in this appeal.
IV
DISPOSITION
The orders appealed from are affirmed.
We concur: GAUT, J., MILLER, J.
Unfortunately, no one ever explained precisely what the parties were stipulating to. Hence, the record is ambiguous: They could have been stipulating that the testimony was true, or they could have been merely stipulating that it was admissible.
Significantly, the prospective adoptive parents’ statement contradicted the mother’s statement in some respects. Because the parties were offering conflicting testimony, we can only conclude that they were stipulating that the testimony offered by the other side was admissible, not that it was true.
Because of the potential for misunderstanding, however, we urge the parties and the juvenile court to be more specific in the future regarding the use of “stipulated testimony.”
Welfare and Institutions Code section 349, as it stood at the time of the section 366.26 hearing, merely provided: “If the minor is 10 years of age or older and he or she is not present at the hearing, the court shall determine whether the minor was properly notified of his or her right to attend the hearing.” (Former Welf. & Inst. Code, § 349, Stats. 2003, ch. 813, § 1.) In light of the grounds on which we resolve this contention, however, the difference is immaterial.