IN RE: BRITTENY J.

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Court of Appeal, Fourth District, Division 3, California.

IN RE: BRITTENY J., A Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. CHRISTOPHER J. et al., Defendants and Appellants.

No. G015801.

Decided: November 29, 1994

John L. Dodd, Karen J. Dodd, Tustin, and Roni Keller, under appointment by Court of Appeal, Agoura, for defendants and appellants. Terry C. Andrus, County Counsel, and Yasmin B. Kamkar, Deputy County Counsel, for plaintiff and respondent. Michael D. Randall, under appointment by Court of Appeal, Rancho Palos Verdes, for minor.

OPINION

Christopher J. and Diana K. appeal from a judgment terminating their parental rights to their daughter, Britteny, under Welfare and Institutions Code section 366.26.1  They contend the court abused its discretion in refusing to grant a continuance to permit the filing of a section 388 petition.   We agree.

Background 2

Britteny J. tested positive for cocaine following her birth in November 1992 and was taken into protective custody.   The Orange County Social Services Agency (SSA) successfully petitioned to declare her dependency due to her mother's substance abuse and her father's failure to protect her.  (§ 300, subd. (b).)  Christopher and Diana received the standard service plans requiring them to maintain regular visitation, obtain suitable housing and establish an adequate income.   Christopher was also required to participate in a comprehensive drug treatment program, including drug testing, and to remain drug-free.   Diana was required to participate in drug treatment and attend parenting classes if available to her while incarcerated.

Neither Christopher nor Diana made significant progress with their service plans during the first six months of reunification.   Both were incarcerated for some portion of it;  Diana for most, Christopher for about half.   At the six-month review, both parents stipulated to findings necessary to continue jurisdiction, including the finding they had been offered reasonable services.   The court ordered six more months of reunification services and set a twelve-month review.

Christopher and Diana fared no better the second six months of reunification.   Christopher was reincarcerated some time after the six-month review and released in August.   He failed to make any contact with SSA and, for two months, his progress with his service plan and whereabouts were unknown.   Diana was released from custody in October 1993 and disappeared.   Her whereabouts were still unknown to SSA at the time of the 12–month review in December 1993.

At that hearing, the court found by clear and convincing evidence the conditions still existed which justified initial assumption of jurisdiction, terminated reunification services and set a selection and implementation hearing for April 1994.   Both parents were entitled to monthly one-hour monitored visitation pending the hearing.   Diana resurfaced sometime prior to January 1994 and recommenced visitation with Britteny.

At the outset of the selection and implementation hearing, Christopher moved for a continuance for the purpose of filing a section 388 motion.   In support of his motion, he made the following offer of proof:  Following his release from custody three months earlier, he had been participating in weekly recovery groups, attending a weekly “12–step” group, and had been drug free.   In addition, he had completed one parenting class and was taking another.   He also had suitable housing for himself and Britteny.

Diana also joined in the request for a continuance in order to file a section 388 motion.   Her offer of proof was that during the three months following the termination of reunification services, she had been attending an “insight” group, a recovery group, a sexuality group, a parenting class, marriage counseling, Narcotics Anonymous meetings, and had been regularly testing drug free.

SSA objected to a hearing under section 388 on the grounds the petition was not timely filed.

The court took the matter under submission and declared a recess.   When court reconvened, Christopher's counsel indicated he had a section 388 motion that was ready to be filed.   Nevertheless, the court denied the request for a continuance stating, “[H]aving heard the offer of proof for counsel, considering the fact a [section] 388 [motion] has not yet been filed, taking notice of the contents of the ․ permanency hearing report for today, the previous one, upon which the termination of services were based, ․ the age of the child, the fact that many of the services which [they are] now partaking of voluntarily were what the family plan was prior to termination of reunification services, the court would find that, in weighing those, the minor's interests of prompt resolution of custody status, her need for a stable environment and damage to, potentially, her emotional health by prolonging her current status, the court finds continuance will be contrary to the best interests of the minor and deny the continuance under [section] 352.”

DISCUSSION

The court then proceeded to the selection and implementation hearing, made the requisite findings and terminated Diana's and Christopher's parental rights.   Both appeal.

 Both parents challenge the court's refusal to grant a continuance for the purpose of filing a section 388 3 motion, contending a “slight” continuance would not be contrary to Britteny's best interests and the court abused its discretion in so finding.   We agree.

Section 352, subdivision (a) provides:  “Upon request of counsel for the parent, ․ the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor.   In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.”   This section contemplates that any juvenile dependency hearing, including a selection and implementation hearing, may be continued if the circumstances warrant.  (In re Michael R. (1992) 5 Cal.App.4th 687, 694, 7 Cal.Rptr.2d 139.)   This is consistent with the “overriding purpose governing dependency proceedings—the welfare of the minor.”  (Ibid.)

 We now turn to the question of what circumstances warrant the granting of a continuance for purposes of filing a section 388 motion.   To trigger the right to a section 388 hearing, all a parent need do is make a prima facie showing of change of circumstances which would require a modification of a previous order.  (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416, 5 Cal.Rptr.2d 148.)   And although the decision as to whether to grant a continuance to permit the filing of a section 388 motion is within the court's sound discretion, there are safeguards to prevent arbitrary denials of such requests:  “[A] petition must be liberally construed in favor of its sufficiency [citation] and a hearing may be denied only if the application fails to reveal any change of circumstance or new evidence which might require a change of order.   Only in this limited context may the court deny the petition ex parte.  [Citation.]”  (In re Jeremy W., supra, 3 Cal.App.4th at pp. 1413–1414, 5 Cal.Rptr.2d 148, emphasis added.)

In Jeremy W., reunification services were terminated at the 12–month review and the matter was set for a selection and implementation hearing.   Approximately 10 days before the hearing was scheduled to take place, the mother filed a petition under section 388 to have the referral order set aside, accompanied by the uncontradicted declarations of the maternal grandmother and a clinical psychologist, as well as her own declaration.   The petition was summarily denied three days before the hearing.  (3 Cal.App.4th at pp. 1412–1413, 1416, 5 Cal.Rptr.2d 148.)

In reversing the judgment, the Court of Appeal explained that the trial court's “extensive discretion” in determining the best interests of the minor is not applicable in its consideration of the procedural due process right to a full hearing on the merits of a section 388 petition.   In that situation, all the parent need do is establish a prima facie case of changed circumstances or new evidence.  (3 Cal.App.4th at p. 1416, 5 Cal.Rptr.2d 148.)   Because the mother in Jeremy W. had more than met her burden, the judgment was reversed and the matter remanded to the trial court for a section 388 hearing.

 Here, Christopher had in hand a section 388 petition ready to be filed which, if proved, would establish he had fully complied with the requirements of his reunification plan.   Assuming compliance, the court, at the section 388 hearing, would then have discretion to set aside the previous referral order which might ultimately result in additional reunification time.   That is certainly sufficient to satisfy the “ ‘probable cause’ ” requirement entitling Christopher to a hearing on his petition.  (In re Jeremy W., supra, 3 Cal.App.4th at p. 1414, 5 Cal.Rptr.2d 148.)

Finally, although the court, under section 352, must give “substantial weight to a minor's need for prompt resolution of his or her custody status” (§ 352, subd. (a)), “[t]he time required for a section 388 petition is not excessive ․ [and such] short delay is insignificant when considering the importance of a stable, appropriate home for [the minor]․”  (In re Heather P. (1989) 209 Cal.App.3d 886, 892, 257 Cal.Rptr. 545.)  “[I]t is implicit in the juvenile dependency statutes that it is always in the best interests of a minor to have a dependency adjudication based upon all material facts and circumstances and the participation of all interested parties entitled to notice.”  (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 490–491, 229 Cal.Rptr. 771.) 4

Having concluded Christopher has established his right to a full hearing on his section 388 petition, there is no reason to not afford Diana the same opportunity.   Should the petitions be granted, the trial court is directed to vacate the referral made at the 12–month review and hold a new 12–month review.   In the event the court finds Christopher and Diana have not met the burden imposed by section 388, it shall conduct a new section 366.26 hearing and make such orders as may be appropriate after evaluating current information.

The judgment terminating the parental rights of Christopher and Diana is reversed and the matter is remanded to the juvenile court for further proceedings consistent with this decision.5

FOOTNOTES

1.   All future statutory references are to the Welfare and Institutions Code.

2.   A detailed recitation of the facts of this case is unnecessary given our resolution of the section 388 issue.

3.   Section 388 provides, in part, as follows:  “Any 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.”   This statutory provision has been characterized as the “ ‘escape mechanism’ ” which allows the juvenile court the opportunity to consider new information any time prior to the selection and implementation hearing.  (In re Marilyn H. (1993) 5 Cal.4th 295, 309, 19 Cal.Rptr.2d 544, 851 P.2d 826.)

4.   Our holding is limited to the specific facts of this case.   This court can envision other scenarios in which it would be an appropriate exercise of discretion to deny a continuance.   For example, prior unsuccessful 11th–hour petitions or offers of proof showing facts which, even if proved, would not provide a sufficient basis to overturn a previous order might be cause for the trial court to exercise its discretion in that manner.

5.   Our disposition of this case eliminates the necessity of addressing the numerous other arguments of appellate counsel.   However, one point bears mention.   If Christopher and Diana are ultimately granted additional reunification time, their reunification plans must contain relevant requirements and, if their efforts are unsatisfactory to SSA, it must inform them specifically what those shortcomings are and the manner in which they can be remedied.

WALLIN, Acting Presiding Justice.

SONENSHINE and CROSBY, JJ., concur.

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