Opinion
A150418 A150670 A150758
11-07-2017
In re S.B. et al., Persons Coming Under the Juvenile Court Law. NAPA COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. SONNY B. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. Nos. JV18200 & JV18201)
In these consolidated appeals, Veronica C. (Mother), mother of three-year-old S.B. and two-year-old J.B. appeals from the juvenile court's order denying her petition for modification, filed pursuant to section 388, and its orders terminating her parental rights and ordering adoption as the permanent plan, pursuant to Welfare and Institutions Code section 366.26. Mother contends the court abused its discretion when it set aside its previous order granting her section 388 petition and entered a new order denying the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Diana C. (Grandmother), appeals from the court's denial of her section 388 petitions for modification requesting that the two children be placed with her. Grandmother contends the court erred in failing to order the two children placed with her under the relative placement preference. (§ 361.3.)
Sonny B. (Father) appeals from the juvenile court's orders terminating his parental rights and ordering adoption as the permanent plan. (See § 366.26.) He also appeals from the court's denial of Mother's and Grandmother's section 388 petitions for modification. Pursuant to California Rules of Court, rule 8.200(a)(5), Father joins in the opening briefs filed by Mother and Grandmother, "to the extent they inure to his benefit." Mother also joins in Grandmother's brief.
We shall affirm the juvenile court's orders.
FACTUAL AND PROCEDURAL BACKGROUND
On November 19, 2015, the Napa County Department of Health and Human Services (Department) filed original petitions alleging that then 14-month-old S.B. and 1-month-old J.B. came within subdivisions (b) and (j) of section 300. Specifically, the petitions alleged that Mother had a significant history of substance abuse and continued to use methamphetamine and marijuana; Mother was late to prenatal care during her pregnancy with J.B. and tested positive for methamphetamine and marijuana four times during her pregnancy with J.B.; there were multiple adults living in the home with the children who were using methamphetamine; Father had a significant history of substance abuse and continued to use methamphetamine and marijuana; Father had a history of serious acts of violence; and Father was involved in an open child welfare case involving the children's half sibling, in which he had not complied with reunification services.
In an investigative narrative, the emergency response worker reported that Mother and the two children lived with the maternal grandparents and three of Mother's brothers. A fourth brother and his wife lived elsewhere, but spent time at the home as well. The emergency response worker met with Grandmother, who said that Mother seemed to be "doing well with two small children to care for." She was not aware of any drug use by Mother and did not permit drug use in her house. The maternal grandfather told the emergency response worker that he was not aware of Mother's current drug use and had not noticed anything different in her behavior. He said he was not at home during the day, and so could not be checking on Mother. He also said, however, that "[h]e thinks that his wife might know something but said she is manipulated by the children to think otherwise." Mother's sister-in-law told the emergency response worker that Mother was still using methamphetamine three to four times a week, going into the garage and coming back exhibiting symptoms of being under the influence. She also said that Grandmother did not allow Father into the house, but he came over when Grandmother was not home.
In her assessment, the emergency response worker stated that Mother, who had used drugs during and after her most recent pregnancy, was unable to disengage from people who used drugs as "demonstrated by her relationship with the children's father and having two children with him, and continuing to reside in the family home where multiple family members have chronic substance abuse and recent criminal drug charges, including drugs and drug paraphernalia found in the home as recently as February 2015." The emergency response worker also expressed concern about family members' "denial of the mother's drug use; family members report that they are unaware of her drug use; and/or they are so aligned and protective of the mother to the point of being unable to work together with the Department to develop an in-home safety plan. As a result, the Department has been unable to identify and engage family members who are able to place the children's safety and well-being as a priority . . . ."
On November 20, 2015, the court held a contested detention hearing, at which the social worker and Grandmother testified. The social worker testified that the fact that family members in the home with Mother, other than her sister in law, were saying they had no knowledge that Mother was under the influence of methamphetamine in the home was a concern because if no one was aware that she was using methamphetamine, the children's safety was at risk. The social worker was also concerned that other people in the home were using illegal substances and also caring for the children.
Grandmother testified that, in addition to herself, Mother, S.B., and J.B., Grandmother's husband and three sons lived in the home. Grandmother said she could ensure that Mother was never left alone with the children by quitting her job and staying at home.
At the conclusion of the hearing, the court ordered the children detained, after finding that it would not be safe to allow the children to remain in the grandparents' home. As the court explained: "I take to heart not only the fact that [Mother] tested positive for methamphetamine recently, but we have her own family member [her sister in law], saying that she continues to use methamphetamine three to four times a week in the morning. She goes into the garage and then comes back high. Her sister-in-law says that she—[Mother's] mother doesn't know that [Mother] is using drugs. How one would not know that is beyond my imagination. Even if you are not a drug user, you can tell whether someone is not acting right."
In the jurisdiction report filed on December 15, 2015, the social worker reported that Father had been arrested on a bench warrant on December 2, 2015, for failing to appear and possession of drug paraphernalia. He had been released on December 9, on supervised probation. Father's criminal history included convictions between 2005 and 2015, for attempted murder, possession of a weapon as a prisoner, possession of controlled substance paraphernalia, and receiving stolen property. Father was also participating in a dependency case with a half sibling of the children. He had not participated in any components of the reunification plan in that case because he wanted the child to be adopted by his second cousin, who could give the child a better life than he could and because he wanted to focus now on S.B. and J.B.
Father was the presumed Father of S.B. and the alleged father of J.B. He told the social worker that he had never used drugs with Mother and that they had broken up while she was pregnant with S.B. When asked how he could have had a second child with Mother a year after S.B. was born, he said J.B. was conceived when he was "in between break ups with the mother of one of his other children."
Mother had misdemeanor convictions for driving under the influence of alcohol and driving with a suspended license. During a meeting with the social worker on November 25, 2015, Mother stated that she was ready to do whatever was necessary to reunite with her children. She knew she needed to get help and had signed up for a parenting class, attended an alcohol and drug assessment, and hoped to soon begin residential treatment. Throughout the meeting, Mother maintained little to no eye contact with the social worker, her speech was erratic, her body movements were jittery, and she fidgeted nervously with her hands. She appeared to be under the influence.
The social worker also spoke with Grandmother, who again said she did not know about any drugs. She just knew Mother was really tired, but she did not help Mother much because of her long work hours. Grandmother denied having any worries about Mother.
The Department recommended that the court take jurisdiction over the two children.
At the December 17, 2015 jurisdiction hearing, both parents waived their rights to a trial, and the court found the allegations of the petitions to be true and further found that the children came within section 300, subdivisions (b) and (j).
In the disposition report filed on February 18, 2016, the social worker reported that the children remained in the foster home in which they were placed at the outset of the dependency. S.B. appeared to be developmentally delayed and would require further assessment. J.B. appeared to be developmentally on target.
The social worker further reported that the court in Father's other dependency case had terminated his reunification services and that Father had neither visited with that child nor participated in services. The social worker in the present matter had attempted to contact Father by phone and mail on five occasions to discuss the case, but Father did not respond. He had not contacted the Department to inquire about his children's well-being and had not attended any scheduled visits.
Mother told the social worker that she had begun to use methamphetamine when she was pregnant with J.B. She had entered a residential drug treatment program in December 2015, and her drug tests had been negative since December 10. Mother had participated in supervised visits with S.B. and J.B. once a week for three hours. She had not missed any visits and the visits had been appropriate, with Mother being attentive to both children's needs.
The social worker also reported that Grandmother had asked to be considered for placement. The Department had gathered initial information from her, but needed additional information to proceed with the assessment. However, Grandmother had not provided the Department with the additional information needed before processing her home assessment "and the 45 day timeline per Child Welfare policy lapsed." Grandmother's failure to be forthcoming with requested information led to additional concerns regarding placing the children in her home.
The Department nonetheless assessed the family using the factors set forth in section 361.3. A social worker had met with Grandmother on December 14, 2015, to discuss placement. Grandmother said the maternal uncle had recently been released on parole after serving eight years in prison, but was unable to say why he had been sent to prison. Grandmother denied seeing any of the maternal uncles or Mother using drugs in the home, despite officers finding a pipe with methamphetamine residue there in February 2015.
On January 29, 2016, the social worker explained to Grandmother and Mother "that due to the children's young and fragile age and the history of drug use in the home without the maternal grandparents' knowledge as well as [Grandmother] not completing the placement process, the Department would not be placing the children with the maternal grandparents." Grandmother was informed of her right to appeal the Department's decision. The social worker reported that the Department had "fully assessed" Grandmother as an option for the children's placement, but continued to believe placement with Grandmother was not in their best interest "due to the concerns outlined above."
The Department recommended that the court order reunification services for Mother, but that it deny reunification services for Father pursuant to section 361.5, subdivision (b)(10).
Section 361.5, subdivision (b)(10) provides that reunification services need not be provided to a parent where "the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and . . . , according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian."
At the February 18, 2016 disposition hearing, at which Mother and Grandmother were present, the parents submitted on the Department's recommendations and the court adjudged the children dependents of the court and placed them in the custody of the Department. The court ordered reunification services for Mother and denied services to Father.
Mother's reunification plan included the following requirements: Comply with all orders of the court; comply with the visitation plan; sign all necessary authorizations; meet with the social worker once per month; allow the social worker access to her residence through unannounced home visits; secure and maintain a stable, safe, sanitary, and substance free place for the children to live; obtain and demonstrate knowledge of the children's medical and developmental needs by attending appropriate appointments; participate in counseling/therapy; complete residential treatment and follow all aftercare treatment recommendations; attend a minimum of three NA/AA meetings per week; submit to random urinalysis drug testing upon the social worker's request; and participate in the Substance Abuse Management Recovery System, including attending a parent recovery court hearing once a month.
In the August 9, 2016 six-month review report, the social worker reported that Mother was not in compliance with her case plan. She had attended 20 out of 22 visits with the children. Her visits had progressed from supervised to monitored in February, but had returned to supervised in April after Mother could not verify her sobriety through testing or complying with her outpatient treatment program. During two visits in June, Mother appeared to be under the influence. Overall, the visits had been positive as Mother remained engaged with the children throughout the visits. She had missed several monthly meetings with the social worker, but had attended the last several meetings.
The social worker had discussed with Mother her desire to reunify with the children while residing with Grandmother. The social worker explained the Department's concerns about Grandmother's home "and informed the mother that when she reunifies she would need to ensure the children are around safe adults and in a drug and violence free environment." In April 2016, Mother told the social worker that she had been " 'kicked out' " of Grandmother's house, but Grandmother later confirmed that Mother continued to reside in the home. Grandmother also told the social worker that Father was sneaking in through Mother's window and staying overnight with Mother, and was also there during the day when the family was working. Grandmother had found a glass pipe in a garden bed, which she believed belonged to Father. Mother denied this, and said the pipe belonged to a maternal uncle who was on an ankle monitor and should not have been in the home.
Mother began weekly therapy in May 2016. The therapist said she was working with Mother on preventing future drug use. Mother had begun residential drug treatment in December 2015, and had successfully graduated in February 2016. Mother was then directed to complete aftercare treatment and, although she attended three groups, her counselor reported that she had difficulty engaging Mother, who was inconsistent in her attendance at outpatient treatment. As of June 2016, Mother had attended only 16 treatment program groups out of 64. In July, Mother admitted that she was unable to stop using drugs, and her counselor recommended that she return to residential treatment. Mother had completed an assessment and detoxification at her former residential treatment program, but remained noncompliant with outpatient treatment while waiting for residential treatment to begin.
Nor was Mother in compliance with her case plan requirement of attending a minimum of three Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meetings per week. She had provided the social worker with verification of attendance at a total of only three meetings. Regarding the random drug testing requirement, Mother had tested negative for all substances in March 2016, positive for alcohol in April, positive for methamphetamine in May, positive for methamphetamine and alcohol in early June, negative for all substances in mid-June, and positive for methamphetamine and alcohol in late June. Mother had also failed to test when requested to do so nine times between March and June. Finally, Mother was not in compliance with the requirement that she attend parent recovery court hearings. She had attended in March and April 2016, but had failed to attend the May through July hearings.
Father had monthly visits with S.B., and had visited him for three out of seven possible visits, in April, May, and July 2016. S.B. appeared comfortable during the first two visits, but in July, he was quiet and unresponsive to Father. Father had been arrested in July 2016, on a variety of charges, including violation of probation, possession of drug paraphernalia, possession of burglary tools, failure to appear, driving without a license, possession of methamphetamine, and unlawful possession of teargas. He currently remained incarcerated.
S.B. and J.B. continued to live in the same placement they had been in since they were taken into protective custody. S.B. continued to be nonverbal, and attempted to speak through gibberish and hand gestures, which was a concern. His social-emotional development, however, appeared to be on track. J.B. was developmentally, socially, and emotionally on target. The children appeared to be content and happy in their placement with the foster parents, who were committed to caring for the children as long as necessary.
The Department believed it would be detrimental to the children to return them to Mother at that time, given that she had only been clean and sober for 28 days and had been unable to remain sober throughout the majority of the reporting period. Although the Department did not question Mother's love for her children, in light of her inability to make substantial progress in her reunification plan, it requested that her reunification services be terminated and that a section 366.26 hearing be set.
In an August 26, 2016 addendum report for the six-month review hearing, the social worker reported that on August 9, after observing that Mother appeared to be under the influence, she asked Mother to submit to a drug test. After initially denying drug use, Mother admitted she was under the influence and further admitted that a prior hospitalization had not been due to a kidney infection, as she had reported, but was due to a mild heart attack from methamphetamine use. She also said she sought Father out for drugs after he was released from jail. He was physically violent towards her when he was under the influence. Mother then submitted to a drug test, which was positive for amphetamines/methamphetamine. Finally, Mother had reentered residential treatment on August 13, 2016, but was discharged on August 18, after testing positive for methamphetamine and alcohol.
The six-month review hearing took place on August 31, 2016. The social worker testified that Mother had no clean tests demonstrating her sobriety from March to May and July to the present. Mother testified that she had missed 2 of 20 visits with S.B. and J.B. due to her hospitalization for a kidney infection and sepsis. At visits, she was affectionate with the children. She also talked, sang, and played with them, changed their diapers, and brought them snacks. She had missed meetings with the social worker and outpatient treatment groups because she was under the influence. She did not believe she had made any progress in therapy because she had not considered the advice the therapist gave her. Mother had last used drugs 10 days earlier, but wanted to be sober and was scheduled to reenter residential drug treatment later that day.
At the conclusion of the hearing, the court found that return of the children would create a substantial risk of detriment, and therefore terminated Mother's reunification services and set the matter for a section 366.26 hearing.
On September 28, 2016, the maternal grandparents filed a request to be appointed the de facto parents of the two children. On October 20, the court denied the request on the ground that it had been almost a full year since the children had lived in their home.
In the section 366.26 report filed on December 1, 2016, the social worker reported that S.B. continued to be almost entirely nonverbal and had been referred for further assessment. The social worker had observed him to be affectionate and sociable with the foster parents, who were now the prospective adoptive parents. The social worker had observed J.B. to be outgoing and friendly. "He was a happy little boy" who enjoyed being with the prospective adoptive parents and S.B. The children had been in the home of the prospective adoptive parents since removal from Mother in November 2015, and they were committed to adopting the children providing them with stability and permanency. The social worker had observed that the children looked to them for support and depended on them to meet all of their needs. The prospective adoptive parents were aware that the children could display future delays due to their drug exposure, but they still wanted to adopt them. A strong bond had developed between the children and the prospective adoptive parents.
Mother's visits had been reduced to once a month since reunification services were terminated. During the previous few visits, the social worker supervising visits had observed S.B. crying a lot during the visits and having a difficult time transitioning into the visit. J.B. also cried and could not be consoled by Mother during visits.
The Department recommended termination of the parental rights of both parents and a permanent plan of adoption.
On November 18, 2016, Mother filed a section 388 petition, requesting that the children be returned to her care at the residential treatment program where she currently resided, under a plan of family maintenance. She had been in the program since November 4, and the children would be permitted to live with her. The hearing on the petition was scheduled for the same date as the pending section 366.26 hearing.
On December 2, 2016, Grandmother filed section 388 petitions, requesting that each of the children be placed with her. On December 15, 2016, the court denied Grandmother's petitions "on [their] face for failing to state adequate change in circumstances." On January 23, 2017, both Grandmother and Father filed notices of appeal from the court's order denying the petitions.
In a January 10, 2017 addendum report, the social worker reported that genetic testing had confirmed that Father was J.B.'s biological father. In addition, the social worker had spoken with Mother's counselor at her outpatient substance abuse treatment program, where she participated in weekly individual counseling and biweekly group sessions. She had tested positive for opiates on November 16, 2016, but had tested negative on three dates in December. The social worker had also spoken with the counselor at Mother's inpatient treatment program, who said that Mother had been in the program's transitional living facility since November 4, and was attending weekly therapy and biweekly life skills classes. Regarding visitation, the social worker reported that during the December visit with Mother, "both children appeared to be resistant and uncomfortable." J.B. cried for much of the visit and S.B. resisted any interaction with Mother.
The social worker believed it would be detrimental to return the children to Mother because her "current situation does not provide evidence of a change in circumstances from her pattern of repeatedly attending treatment and then relapsing. In addition, the children appear to be growing increasingly distant and uncomfortable with [Mother] during supervised visits." The children had formed attachments with their prospective adoptive parents, who were eager to adopt them, and the social worker believed it was in the children's best interests that they be adopted.
The hearing on Mother's section 388 petition took place on February 1, 2017. Stephanie Stevens, the lead counselor at Mother's residential treatment program testified that the "Rays of Hope Program" "focused on men and women that are coming out of homelessness that have substance abuse issues, mental health issues, child reunification." Essentially, it was "a jobs skills program with other services wrapped around it." Mother was attending NA meetings twice a week through that program, as well as other programming three times a week at her outpatient drug treatment program. She was also gaining retail sales experience at the residential program's thrift store.
The section 366.26 hearing was scheduled to take place on the same date, at the conclusion of the section 388 hearing.
Mother was also regularly taking drug tests. On November 15, 2016, the date Mother tested positive through her outpatient program for opiates, she was also tested at her inpatient program and tested negative. Stevens believed the positive test was a false positive. The inpatient program had administered five drug tests to Mother between October 2016 and January 2017, all of which were negative.
The children would be permitted to live at the program facility with Mother, whose anticipated graduation date was July 2017. In addition, recent graduates were allowed to stay after they graduated "for as long as necessary in order to learn a new structure." Stevens had seen a change in Mother since she had become a client in November 2016. Initially, she was very withdrawn and appeared defeated and hopeless. She was now thriving in the program. Over time, she had become a leader among her peers and was one of the hardest workers at the thrift store. She attended all of her classes and was always willing to help. She had learned to talk about her boys and was learning how to process her feelings. Mother was also seeing a therapist weekly through her outpatient program, which seemed to have helped her immensely.
Stevens anticipated a good outcome for Mother, based on her observations of and work with Mother, who was taking an active role in making necessary life changes for her and her children. She was on track with her program and had not relapsed. When asked on cross-examination whether Mother still needed services "in order to reach a place where she is the sole provider [for] her children, Stevens responded, "Absolutely."
Mother also testified at the hearing. Although she had previously been unable to follow through with treatment programs, she was doing so this time. She was now taking her medication every day, participating in morning meeting, and working all day at the thrift shop. She also attended evening classes and met with a therapist.
Mother had had obstacles in her life, including low self-esteem, not being stable or having a stable place to live, not having transportation, using drugs, and not being focused. She had worked to change those things, and believed she was not the same person she was four months ago. She was now different in that she was able to communicate with her family and had been clean and sober for 90 days. She had also learned to take full responsibility for her mistakes. She had been regularly attending NA and AA meetings and had recently begun parenting classes. Mother believed it would be good for her children to be returned to her care because she was ready to take full responsibility for them, and because she was their mother and she missed them. She did not have a concrete plan for how she would take care of the children while also performing the duties of her treatment program, but would ask for the program's help in doing so.
At the conclusion of the hearing, the court granted Mother's section 388 petition. However, two days later, on February 3, 2017, the Department requested reconsideration under section 385. On February 7, after receiving opposition from the parents' attorneys and hearing argument on the issue, the court stated that it was proceeding on its "own motion," reversed its previous decision, and denied Mother's section 388 petition.
In an addendum report filed on February 23, 2017, for the section 366.26 hearing, the social worker reported that S.B. had been assessed on December 27, 2016, for possible delays. The results showed he had severe delays in receptive and expressive language skills, pragmatic skills, and play skills. A service plan had been created involving weekly participation in speech therapy and psychological evaluation. The prospective adoptive parents were aware of the assessment's findings and recommendations and had expressed their continued commitment to adopting both children. They remained ready and willing to provide him with the consistency needed to help him improve his developmental skills.
The section 366.26 hearing took place on March 6, 2017. Mother testified that she had attended all of her scheduled supervised visits with the children except for the three dates when she was in the hospital. She showed her children love by attending to their needs and being there for them. S.B. had been in her care for a little over a year and J.B. had been in her care for a month before they were removed. Mother believed that she and S.B. had a close bond, but did not believe J.B. had an emotional attachment to her.
Father also testified at the hearing. After S.B. was born, Mother was his primary parent. She took care of his needs and he looked to her for comfort. During Father's postremoval visits with S.B., which sometimes followed Mother's, he saw that S.B. wondered where Mother was and still looked to her for care.
At the conclusion of the hearing, the court found that the beneficial parent-child relationship exception to adoption did not apply. The court also found by clear and convincing evidence that it was likely that the children would be adopted. It ordered adoption as the permanent plan and terminated both parents' parental rights.
On March 8, 2017, Mother filed a notice of appeal. On March 20, 2017, Father filed a notice of appeal.
On May 18, 2017, we granted Mother's unopposed motion to consolidate the appeals of Mother, Father, and Grandmother.
DISCUSSION
I. Juvenile Court's Denial of Grandmother's Section 388 Petitions
Grandmother contends the juvenile court should have previously ordered S.B. and J.B. placed with her under the relative placement preference (§ 361.3), and further argues that the court was required to evaluate her subsequent change of placement request under section 361.3, rather than section 388.
A. Trial Court Background
In her December 2, 2016 section 388 petitions, Grandmother requested a change in the court's orders placing S.B. and J.B. in foster care and denying her request that they be placed with her. She asked that the permanent plan be changed to place the children with her and stated that the changed circumstances justifying the change in placement were that "[f]amily reunification services have been terminated to the mother with a recommendation for termination of parental rights" and "[t]he Department has denied maternal grandmother's request for increased visitation and placement." The petition stated that the requested order would be in the children's best interest because they had resided in Grandmother's home before they were removed and "they have a strong bond with mother's siblings and with the maternal grandparents. The children express love and a desire to be with their family. Placement and a permanent plan to reside with the maternal grandmother [are] in the children's best interest to ensure the children to [sic] preserve the familial bond."
On December 15, 2016, after hearing argument from counsel, the court declined to hold an evidentiary hearing and denied Grandmother's section 388 petition "for failing to state adequate change in circumstances."
B. Legal Analysis
Section 361.3, subdivision (a) provides: "In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative . . . ." For purposes of the statute, " '[p]referential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) "By its own terms, then, the statute [does] not supply an evidentiary presumption that placement with a relative is in the child's best interests." (In re Stephanie M. (1994) 7 Cal.4th 295, 320 (Stephanie M.).) Rather, "the statute expresse[s] a command that relatives be assessed and considered favorably, subject to the juvenile court's consideration of the suitability of the relative's home and the best interests of the child. In the context of a motion pursuant to section 388 for change of placement after the termination of reunification services, the predominant task of the court [is] to determine the child's best interests . . . ." (Ibid.)
When determining whether placement with a relative is appropriate, the Department and the court must consider multiple factors, including, inter alia, "[t]he best interest of the child" (§ 361.3, subd. (a)(1)); "[t]he good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect" (§ 361.3, subd. (a)(5)); the ability of the relative to "[p]rovide a safe, secure, and stable environment for the child," "[e]xercise proper and effective care and control of the child," and "[p]rotect the child from his or her parents" (§ 361.3, subd. (a)(7)(A), (B) & (D)); and "[t]he safety of the relative's home." (§ 361.3, subd. (a)(8)(A).) The statute further provides that relatives "desiring placement shall be assessed according to the factors enumerated in this subdivision. The county social worker shall document these efforts in the social study prepared pursuant to Section 358.1. . . . However, this investigation shall not be construed as good cause for continuance of the dispositional hearing conducted pursuant to Section 358." (§ 361.3, subd. (a)(8)(B).)
The factors set forth in subdivision (a) of section 361.3 include all of the following: "(1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. [¶] (4) Placement of siblings and half siblings in the same home, unless that placement is found to be contrary to the safety and well-being of any of the siblings, as provided in Section 16002. [¶] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [¶] (6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful. [¶] (7) The ability of the relative to do the following: [¶] (A) Provide a safe, secure, and stable environment for the child. [¶] (B) Exercise proper and effective care and control of the child. [¶] (C) Provide a home and the necessities of life for the child. [¶] (D) Protect the child from his or her parents. [¶] (E) Facilitate court-ordered reunification efforts with the parents. [¶] (F) Facilitate visitation with the child's other relatives. [¶] (G) Facilitate implementation of all elements of the case plan. [¶] (H)(i) Provide legal permanence for the child if reunification fails. [¶] ( ii) However, any finding made with respect to the factor considered pursuant to this subparagraph and pursuant to subparagraph (G) shall not be the sole basis for precluding preferential placement with a relative. [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8)(A) The safety of the relative's home. For a relative to be considered appropriate to receive placement of a child under this section on an emergency basis, the relative's home shall first be assessed pursuant to the process and standards described in subdivision (d) of Section 309."
In the present case, the Department evaluated the grandparents for placement before disposition. Grandmother claims, however, that the Department "did not abide by the statutory requirements concerning the conduct of a genuine study of the possibility of placing the children with" her. Therefore, according to Grandmother, she "was entitled to a full hearing on the placement issues" after Mother's reunification services had been terminated and the section 366.26 hearing had been set, and she "should not have had to resort to the procedures of section 388."
In making this argument, Grandmother relies on In re Isabella G. (2016) 246 Cal.App.4th 708, 712-713 (Isabella G.) in which the 23-month-old child had lived with the grandparents for most of her life and the grandparents had repeatedly asked to have her placed with them. The social services agency, however, placed the child with a nonrelative extended family member without assessing the grandparents' home for placement and erroneously told the grandparents the agency would have to wait a year before the child could be moved again. (Id. at pp. 713-714.) After reunification services were terminated, the grandparents filed a section 388 petition seeking the child's placement with them. (Isabella G., at p. 715.) The juvenile court denied the petition, concluding that the relative placement preference did not apply because reunification services had been terminated and the best interest of the child would be served by adoption by the nonrelative extended family member, to whom she had substantial emotional ties. (Id. at p. 717.)
The appellate court reversed, concluding "that when a relative requests placement of the child prior to the dispositional hearing, and the Agency does not timely complete a relative home assessment as required by law, the relative requesting placement is entitled to a hearing under section 361.3 without having to file a section 388 petition." (Isabella G., supra, 246 Cal.App.4th at p. 712, fn. omitted; see also In re R.T. (2015) 232 Cal.App.4th 1284, 1300 (R.T.) [where relative invoked relative placement preference before dispositional hearing, and agency and court failed to apply it at disposition, court was required to consider preference upon relative's subsequent filing of a section 388 petition].)
The present case is distinguishable from Isabella G. in that the Department had previously considered placing the children with the grandparents and completed an assessment of their home before disposition. The Department ultimately recommended against placement with the grandparents due to various safety concerns, as stated in the disposition report, and the court ordered the children to remain in their foster family placement. Accordingly, in this case, it was appropriate for the court to address the section 388 petition on its merits, rather than pursuant to section 361.3. (Compare Isabella G., supra, 246 Cal.App.4th at p. 712; R.T., supra, 232 Cal.App.4th at p. 1300.)
We also reject Grandmother's claim that the Department failed to genuinely consider the grandparents' request for placement before disposition, and that, as a result, the court was required—like the court in Isabella G.—to consider her subsequent request for placement under section 361.3, rather than section 388.
First, neither Grandmother nor either parent appealed from the denial of the placement request. Instead, Grandmother waited more than nine months, until after Mother's reunification services had been terminated and a section 366.26 hearing had been set, to file a section 388 petition requesting that the children be placed with her. Nor did she provide any information suggesting that the circumstances that had led to the unsuitability finding had changed. As the appellate court explained in In re A.K. (2017) 12 Cal.App.5th 492, 501, when it found forfeited the father's attempt to raise the relative placement preference at the time of the section 366.26 hearing: "If Father believed the social worker had not complied with the statutory requirements in pursuing the paternal grandmother as a relative placement, he could have raised the issue in the juvenile court and, thereafter, on appeals from the disposition order, the 12-month review order, or other appealable orders. He did not do so. He therefore forfeited his objection. [¶] Even if father could still challenge the adequacy of the social worker's pursuit of placement with the paternal grandmother at the time of the section 366.26 hearing, father still forfeited his claim by failing to raise his relative placement preference objection at the hearing. . . . By failing to litigate this issue or request a ruling from the juvenile court, father failed to preserve the issue on appeal. [Citations.]" The forfeiture finding in In re A.K. is equally applicable here. We decline to address Grandmother's tardy attempt to relitigate the unsuitability finding made at the time of disposition.
Second, even were the issue preserved on appeal, Grandmother's claim of a flawed assessment is not supported by the record. The record reflects the Department's concern, from the outset, about Grandmother's ability to keep the children safe in her home. She told the social worker that she was completely unaware of any drug use by Mother or her adult sons who also lived in the home, despite the fact that Mother's sister-in-law had reported that Mother used drugs several times a week and that Father, who grandmother did not allow into the house, came over late at night and when Grandmother was not home. At the outset of the dependency, the grandfather told the social worker that he was not aware of any drug use, but "[h]e thinks that his wife might know something but said she is manipulated by [her] children to think otherwise."
Also of concern was Grandmother's statement that the maternal uncle had recently been released on parole after serving eight years in prison, but she was unable to say why he had been sent to prison. In addition, there were concerns about the children living in the family home where multiple family members had chronic substance abuse and recent criminal drug charges. (See § 361.3, subd. (a)(5).) The social worker was therefore reasonably concerned about the safety of the grandparents' home and family members' state of denial with respect to Mother's drug use. Indeed, as the court stated at the detention hearing regarding Grandmother's claim that she did not know Mother was using drugs: "How one would not know that is beyond my imagination. Even if you are not a drug user, you can tell whether someone is not acting right." (See § 361.3, subds. (7) & (8).)
The investigative report stated that consultation "with law enforcement revealed numerous criminal acts perpetrated by several household members. The acts include possession of a controlled substance, shoplifting, false information to a peace officer, involved party in a controlled substance possession, parole violation, witness to armed robbery, selling marijuana and cruelty to child/possible injury or death . . . . The dates in which the household members committed these acts range from 2013 to as recently as the end of October 2015."
Grandmother had also failed to provide all information requested by the social worker for the assessment in a timely manner, and her failure to be forthcoming with requested information led to additional concerns about placing the children in her home. The social worker nevertheless moved forward with the assessment based on the information she had. (Cf. § 361.3, subd. (a)(8)(B) [social worker's "investigation shall not be construed as good cause for continuance of the dispositional hearing"]; § 358.1, subd. (h) [Department's consideration of appropriateness of relative's home "may not be cause for continuance of the dispositional hearing"].)
The record thus reflects that the Department fully assessed Grandmother for placement pursuant to section 361.3 before disposition, utilizing the information she and others had provided. However, despite Grandmother's claim that she was willing to quit her job and never leave the children alone with Mother, given the many concerns about the drug use and criminal histories of people in the home, together with Grandmother's apparent state of denial, the Department—and subsequently the juvenile court—reasonably concluded it would not be in the children's best interest to be placed in Grandmother's home. (See § 361.3, subd. (a)(1); Stephanie M., supra, 7 Cal.4th at p. 324.)
Grandmother points out that the juvenile court did not state on the record at the disposition hearing its reasons for denying the placement request, as is required by subdivision (e) of section 361.3, which provides: "If the court does not place the child with a relative who has been considered for placement pursuant to this section, the court shall state for the record the reasons placement with that relative was denied." Even assuming Grandmother may raise this issue for the first time on appeal (but see In re A.K., supra, 12 Cal.App.5th at p. 501 ), we would find the court's error harmless. (See In re Corienna G. (1989) 213 Cal.App.3d 73, 83 [Court's findings could be implied on record before appellate court, substantial evidence supported court's determination, and appellants had not shown prejudice; hence, remand for determination on record would have no practical purpose].) As already discussed, the reasons for the denial of the placement request were set forth in the Department's dispositional report and were supported by substantial evidence, and the court adopted the Department's recommendations. We would therefore imply the missing findings. (See Corienna G., at p. 83.)
Finally, even assuming, as Grandmother maintains, that Isabella G. stands for the proposition that a court must analyze a request by a relative for placement under section 361.3 at whatever point in the proceedings the relative requests such a placement, regardless of whether the relative was previously assessed and found unsuitable, Grandmother cannot show she was prejudiced by the court's failure to consider her petition as a request for placement under section 361.3. The proper focus at the time Grandmother filed her section 388 petition—after reunification services had been terminated and a section 366.26 hearing set—was "on the child[ren's] interests, rather than the grandmother's interest." (Stephanie M., supra, 7 Cal.4th at p. 324; § 361.3, subd. (a); accord, In re Lauren R. (2007) 148 Cal.App.4th 841, 855 [" '[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interest of the child, whose bond with a foster parent may require that placement with a relative be rejected' "].) First, at the time Grandmother filed her section 388 petition, there was no evidence in the record or information in the petition suggesting that Grandmother's home would now be approved for placement. (Compare Isabella G., supra, 246 Cal.App.4th at p. 715; R.T., supra, 232 Cal.App.4th at p. 1293.)
More importantly, S.B. and J.B. had been living with the prospective adoptive parents for more than a year, were deeply bonded with them, and were thriving in their care. The prospective adoptive parents were committed to providing both children with permanency and supporting S.B. in overcoming his severe developmental delays. Here, as in Stephanie M., "[f]rom the point of view of the child[ren], the grandmother's intervention did come too late; the child[ren were] already bonded to [their] foster parents." (Stephanie M., supra, 7 Cal.4th at p. 323; compare Isabella G., supra, 246 Cal.App.4th at p. 724 [grandmother was child's "primary caregiver from birth until she was almost two years old," child missed grandmother and was happy to be with her, and child "consistently said she wanted to stay with" current caregiver or grandparents].) Grandmother cannot show she was prejudiced by any failure to apply the relative placement preference to her after she filed her section 388 petition.
Turning to the court's summary denial of Grandmother's section 388 petition, which we review for an abuse of discretion (In re A.S. (2009) 180 Cal.App.4th 351, 358), Grandmother contends the court improperly denied the petition without conducting an evidentiary hearing.
Under section 388, "[a]ny parent or other person 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 in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . ." (§ 388, subd. (a)(1).) "If it appears that the best interests of the child . . . may be promoted by the proposed change of order," the juvenile court "shall" order a hearing. (§ 388, subd. (d).)
To trigger the right to a hearing on a section 388 petition, a parent need only make a prima facie showing that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. (In re Mary G. (2007) 151 Cal.App.4th 184, 205 (Mary G.).) " '[T]he petition should be liberally construed in favor of granting a hearing to consider the parent's request.' [Citation.] [¶] 'However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.' [Citation.]" (Ibid.; accord, In re Angel B. (2002) 97 Cal.App.4th 454, 461 [court may deny petition without a hearing "only if the petition fails to state a change of circumstance or new evidence that even might require a change of order or termination of jurisdiction"])
Here, the only changed circumstances described in the petition were that reunification services had been terminated, the Department had recommended termination of parental rights and, the Department has denied Grandmother's request for increased visitation and placement. These alleged changed circumstances added nothing that was not already in the record and, moreover, did not provide any information about changes in the situation of Grandmother or the family home that would support a reconsideration of the previous placement denial. In addition, for the reasons already discussed, Grandmother could not have shown that removal of the children from the home of the prospective adoptive parents would be in their best interests. (See Stephanie M., supra, 7 Cal.4th at p. 320.)
In short, the court did not abuse its discretion in denying Grandmother's section 388 petition without holding an evidentiary hearing, given that Grandmother had not made a prima facie showing of changed circumstances or that granting the petition would be in the children's best interests. (See In re A.S., supra, 180 Cal.App.4th at p. 358; In re Mary G., supra, 151 Cal.App.4th at p. 205.)
II. Juvenile Court's Denial of Mother's Section 388 Petition
Mother contends the court abused its discretion when it set aside its previous order granting her section 388 petition for modification and entered a new order denying the petition.
A. Trial Court Background
In her November 18, 2016 section 388 petition, Mother stated that since her reunification services were terminated, she had been in residential drug treatment from August 31 until she left voluntarily on September 13. She then attended a transitional housing/residential treatment program until September 23, when she was discharged for returning late from her job search. Between September 23 and November 4, she attended an outpatient program, until she was able to enter another residential treatment program. She entered that program on November 4, and had been there ever since. The program was nine months long and allowed children to be placed with their mother. Mother also stated that since termination of her reunification services, she had drug tested five times, and all of the tests were negative. She had also continued to participate in monthly visits with the children.
In a handwritten attachment to the petition, Mother stated that return of the children to her care would be in their best interest because they needed her and she needed them, she was willing to do whatever it took to reunite with them, and she knew that "the new version of me will be good for my children . . . ."
Also attached to the petition were documents verifying, inter alia, Mother's participation in drug treatment and NA/AA meetings in November 2016. On November 22, Mother's attorney submitted additional documentation and another statement by Mother, in support of the petition. In the statement, Mother requested another chance to prove that she could do better for her children, stating that she "would like to give [her] children the chance to live and thrive with their mom and be in their lives in a healthier manner."
At the conclusion of the February 1, 2017 hearing on Mother's section 388 petition, Mother's attorney asked the court to return the children to Mother with family maintenance services. For the first time, counsel requested, in the alternative, that the court reinstate Mother's reunification services. Counsel for the Department pointed out that even if Mother were to receive additional services, it would be for only eight days, until the deadline for the 12-month review hearing on February 9, 2016.
The children's counsel stated that she did not believe it would be in the best interests of the children to be returned to Mother at that time, given that she was "early in her changes right now." But counsel would be in favor of continued services if there were any legal way for the court to make such an order, which counsel had not researched.
After a short recess to give the court time to research the issue, the court granted Mother's section 388 petition, stating, "it's hard to see any harm. [¶] And the upside, besides obviously giving mom another chance, the upside is that if ultimately mom was successful, then these children could be with their biological parent and have hopefully the same level of stability that they would have if they went on the path of adoption." The court acknowledged that the case of In re Angel B., supra, 97 Cal.App.4th 454 was "worded in such a way where I almost feel compelled to deny the 388. But I think I still have a little room to use my discretion in the opposite way because of some of the unique circumstances here," including that "the children are so young, are in a very adoptable situation, and we have appeals pending." The court acknowledged that it would have to find it "substantially likely" at the 12-month hearing that it would be able to return the children home on family maintenance by the end of the 18-month period. The court believed the possibility "of finding it substantially likely that we'll go to family maintenance in a few months [is] pretty slim, but there is a chance of it." The court then found the section 366.26 hearing moot and set the matter for a 12-month review hearing in nine days.
Section 361.5, subdivision (a)(1)(B) provides: For a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was under three years of age, court-ordered services shall be provided for a period of six months from the dispositional hearing as provided in subdivision (e) of Section 366.21, but no longer than 12 months from the date the child entered foster care, as provided in Section 361.49, unless the child is returned to the home of the parent or guardian."
Subdivision (a)(3)(A) of section 361.5 provides in relevant part: "Notwithstanding subparagraphs (A), (B), and (C) of paragraph (1), courtordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent or guardian if it can be shown . . . that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period. The court shall extend the time period only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or guardian within the extended time period . . . ."
On February 3, 2017, two days after the court granted Mother's section 388 petition, the Department filed a motion, pursuant to section 385, requesting that the court reconsider its order granting the petition on the ground that it was erroneously granted.
On February 6, 2017, the court heard comments of counsel before continuing the matter to give all counsel time to file additional briefing. On February 7, Mother's and Father's attorneys filed opposition to the request for reconsideration.
Also on February 7, 2016, the court held a hearing on the request for reconsideration, at which all parties appeared. The court stated that it had received, reviewed, and considered the opposition briefs filed by counsel for Mother and Father. The court stated that it was proceeding "I guess, essentially, on the court's own motion for reconsideration." The court explained: "After having an opportunity to read through all of that case law, knowing the evidence that I heard, I feel that the decision I made last week abused my discretion. It was outside the bounds of the discretion that I had under the law. I wanted to do that. That's why I did it. But I believe it would be an abuse of my discretion, and that's why I am re—I'm inclined to reconsider my decision, and that's how we're proceeding today."
Later in the hearing, the court stated, "we're moving forward on my own motion because I feel it's the right thing to do. [¶] I do also want to point out that even though I said I think it was an abuse of my discretion, to the extent it was not an abuse, I think the opposite ruling that I'm intending to enter today is the appropriate exercise of my discretion. So I don't want to be locked in to saying that that was my ruling and my finding but I think it was an abuse, therefore I'm changing it. What I'm saying is, upon my own reconsideration, I'm exercising my discretion to deny the petition." The court further explained that it did not believe the changes Mother had made, while meaningful, were sufficient when also considering the best interests of the children.
B. Legal Analysis
Section 385 provides: "Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article." "[T]he juvenile court thus has the authority pursuant to section 385 to change, modify or set aside its prior orders sua sponte. [Citations.] Under this section the juvenile court may modify an order that contains a clerical error, but may also reconsider the substance of a previous order the court considers to have been erroneously, inadvertently or improvidently granted. [Citations.]" (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 116 (Nickolas F.).) Moreover, the court's authority to modify a previous order under section 385 "is not contingent on a party seeking a modification pursuant to section 388." (Nickolas F., at p. 99.) Section 385 is thus "the procedural mechanism by which the juvenile court may modify a previous order, sua sponte, in dependency proceedings." (Nickolas F., at p. 116.)
Section 386 provides: "No order changing, modifying, or setting aside a previous order of the juvenile court shall be made either in chambers, or otherwise, unless prior notice of the application therefor has been given by the judge or the clerk of the court to the social worker and to the child's counsel of record, or, if there is no counsel of record, to the child and his or her parent or guardian."
In addition, "the juvenile court has inherent authority, pursuant to California Constitution, article VI, section 1, to reconsider its prior interim orders when necessary to prevent a miscarriage of justice, provided that in so doing, the court does not violate the constitutional rights of the parties." (Nickolas F., supra, 144 Cal.App.4th at pp. 98-99.)
"Whether an order should be modified rests within the sound discretion of the juvenile court. Its decision will not be disturbed on appeal absent a clear abuse of discretion. [Citation.]" (Nickolas F., supra, 144 Cal.App.4th at pp. 118-119.)
In Nickolas F., the social services agency filed a section 388 petition requesting that the juvenile court change its previous dispositional order and deny the father reunification services, and the court purported to grant the petition. In finding that any error in utilizing section 388 to make the change was harmless, the appellate court explained: "[T]he juvenile court's determination of the merits underlying the modification of the disposition order was fundamentally sound. A trial court's judgment may not be set aside for procedural error unless the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) If the court had made the modification in this case sua sponte, through either its statutory authority pursuant to section 385, or its constitutional authority under California Constitution, article VI, section 1, rather than pursuant to the parties' petitions for modification under section 388, the result would have been the same. The procedural error does not affect the validity of the court's ruling, and there has been no miscarriage of justice." (Nickolas F., supra, 144 Cal.App.4th at p. 119.)
Here, Mother asserts the juvenile court procedurally erred in three ways when it set aside its initial ruling and denied her section 388 petition. First, she claims the court had no authority to reconsider its ruling under section 385 because it did not do so sua sponte, but instead was responding to the Department's request for reconsideration. Although the Department brought the alleged error to the court's attention through a motion asking it to reconsider its order under section 385, the court specifically stated that it was reconsidering its initial order "essentially, on the court's own motion for reconsideration." We are not persuaded by Mother's attempt to split hairs regarding the nature of the court's review. While its changed order was presumably prompted by the Department's request, the court's decision to reconsider and ultimately change its initial order was appropriate under section 385. (See Nickolas F., supra, 144 Cal.App.4th at p. 98.)
Second, Mother claims the Department was required to bring a petition under section 388, not section 385, to ask the court to reconsider its prior decision and demonstrate a change of circumstances. We agree with the Nickolas F. court's response to this assertion, in which it stated: "Where, as here, the court independently recognizes that it improvidently directed the Agency to provide reunification services to a parent, requiring that a party file a petition under section 388 before the court may modify the order, or worse, requiring that the parties comply with the erroneous order, would constitute a waste of time and resources. [Citation.]" (Nickolas F., supra, 144 Cal.App.4th at p. 110.) The Agency was not required to file a section 388 petition before the court could modify its previous order. (See ibid.)
Third, Mother claims that, even if the court had authority to proceed under section 385, it never made the required finding that the original order granting Mother's section 388 petition was "erroneously, inadvertently or improvidently made." (Nickolas F., supra, 144 Cal.App.4th at p. 99.) In making this argument, Mother notes that at the hearing on the court's decision to reconsider its previous order, it initially stated, "I feel that the decision I made last week abused my discretion. It was outside the bounds of the discretion I had under the law. . . ." Mother further notes, however, that the court later "point[ed] out that even though I said I think it was an abuse of my discretion, to the extent it was not an abuse, I think the opposite ruling that I'm entering today is the appropriate exercise of my discretion. . . ." The court's full explanation of the reason for changing its order plainly shows that it believed its prior order was, if not actually erroneous, at least improvidently made, given its subsequent review of the relevant case law and its determination that the evidence did not support the initial order. Moreover, it was not required to use particular words in making its determination. (See § 385 [court may change, modify, or set aside any order "as the judge deems meet and proper"].)
Accordingly, the court did not abuse its discretion when it changed its order pursuant to section 385. (See Nickolas F., supra, 144 Cal.App.4th at pp. 118-119.)
In addition, the court could have modified its order pursuant to its "inherent authority to make such a modification to avoid a miscarriage of justice." (Nickolas F., supra, 144 Cal.App.4th at p. 117; see Cal. Const., art. VI, § 1.) First, the court gave proper notice to the parties that it intended to reconsider its order granting Mother's section 388 petition, and gave counsel the opportunity to file opposition, which it then considered. (See § 386; Nickolas F., at pp. 117-118.)
Second, given the circumstances that existed at the time of the court's February 7, 2017 order, the court rightly found that the prior order granting Mother additional reunification services was not appropriate in the circumstances. Mother had begun her most recent inpatient drug treatment program on November 4, 2016, over two months after her reunification services had been terminated, and had been in the program less than three months at the time of the hearing on her section 388 petition. The court applauded Mother's recent efforts, but ultimately concluded the changes Mother had made were not sufficient when also considering the best interests of the children, who were in a long term, stable placement with prospective adoptive parents who were committed to adopting them. (See § 361.5, subd. (a)(1)(B), (a)(3)(A).) As the appellate court stated in In re Mary G., supra, 151 Cal.App.4th at page 206, in explaining that the mother's three months of sobriety "was not particularly compelling": " 'A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.] " 'Childhood does not wait for the parent to become adequate.' " ' [Citation.]"
Delaying permanency for S.B. and J.B. at this late stage in the dependency process would not have promoted their stability and plainly would not have been in their best interests. " 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child' [Citations.]" (Stephanie M., supra, 7 Cal.4th at p. 317; accord, In re Mary G., supra, 151 Cal.App.4th at p. 206.) The court properly used its "inherent authority to make such a modification to prevent a miscarriage of justice." (Nickolas F., supra, 144 Cal.App.4th at p. 117.)
In light of our resolution of Mother's and Grandmother's contentions, Father's claim that the court erred in denying their section 388 petitions and that, therefore, the order terminating his parental rights must be reversed, also fails. --------
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.