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Court of Appeal, Fourth District, Division 1, California.

IN RE: SARAH D., a Per Coming under the Juvenile Court Law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. CYNTHIA D., Objector and Appellant.

No. D015933.

Decided: April 09, 1992

Barbara A. Smith, Spring Valley, under appointment by the Court of Appeal, for objector and appellant. Lloyd M. Harmon, Jr., County Counsel, Susan Strom, Chief Deputy County Counsel, and Gary C. Seiser, Deputy County Counsel, for petitioner and respondent.

Miriam R. Kennedy, under appointment by the Court of Appeal, for Minor.

Cynthia D. (mother) appeals from an order issued at a selection and implementation hearing 2 under Welfare and Institutions Code section 366.26.3  Mother also asserts error in a hearing, held on the same day, of a motion to modify an earlier order, brought in accordance with section 388.   We dispense summarily the contentions of error in the section 366.26 hearing (366.26 hearing).   The bulk of our decision reviews the disposition by the trial court of the section 388 motion (388 motion).   We will find that the court erred in failing to grant a formal hearing of the 388 motion, but in light of the totality of the proceedings held in reference to the 366.26 hearing conclude that no prejudicial error occurred, and the appellant's request for a reversal of the section 366.26 order based on section 388 error should be denied.


On April 13, 1989, the San Diego Department of Social Services (the department) filed a petition alleging Sarah D. (born August 7, 1985) came under the provisions of Welfare and Institutions Code section 300, subdivision (b) because of the presence of multiple abrasions and bruises around her eyes and physical indications that she had been sexually molested.   The petition also alleged mother used methamphetamines, marijuana and alcohol to excess, rendering her unable to provide Sarah with regular care.   On June 22, 1989, Sarah was declared a dependent child of the court and placed with her great aunt and uncle.   In May 1990 the department filed a petition under section 387 stating that Sarah's relatives were no longer willing to provide care for her and she was subsequently moved to the Andrews' foster home.   Shelly Andrew, the foster mother, had provided care for Sarah when Sarah and mother were her neighbors.   Andrew had applied for foster home licensing with the express purpose of providing foster care for Sarah.

At the 12–month review hearing on June 20, 1990, the court considered the social worker's report and found there was a substantial probability Sarah would be returned to mother within six months.   The court ordered continuation of Sarah's foster care at the Andrews' home, ordered continuation of reunification services, and set an 18–month review hearing for October 11, 1990.4

A contested 18–month hearing under section 366.22 was held on May 29, 1991.   The court considered evidence consisting of four reports from social workers, three reports from a court-appointed special advocate, and testimony from Sarah and four other witnesses.   The court found that although reasonable reunification services and visitation had been provided, Sarah would be under substantial risk of detriment if she were returned to mother.   The court terminated reunification services and ordered a selection and implementation hearing.   The section 366.26 hearing was eventually set for November 13, 1991.

On November 8, 1991, mother filed a petition under section 388 on the grounds of a change in circumstances, seeking to modify the order made at the 18–month review hearing.   In her petition, mother requested Sarah's dependency be terminated, she be granted custody, reunification services be continued, and the selection and implementation hearing be stayed pending a hearing on the petition under section 388.   On the November 13, 1991 hearing date the court first considered the 388 motion and, based on the moving papers, summarily denied a hearing of the motion.   The court then proceeded to the section 366.26 selection and implementation hearing, continuing and completing the hearing on November 27, 1991.

At the selection and implementation hearings on November 13 and November 27, 1991, the assessment worker testified Sarah did not have a parental relationship with mother and adoption was in her best interests.   She testified mother had made progress in therapy and had maintained regular visitation with Sarah.   She further testified, however, that although Sarah appeared comfortable during visits, afterward she would express her wish not to revisit mother.   Mother testified as to her personal growth through her church, volunteer work at a school, therapy and parenting classes.   The foster mother testified that the relationship between Sarah and mother was not a loving mother/daughter relationship.   She stated if she were to adopt Sarah she would allow visitation if Sarah wished it, but pointed out that between visits Sarah never said she wanted to see mother.   Sarah's previous therapist stated she had not seen Sarah for 14 months, but during the time she was seeing mother and Sarah together she believed, because of the love and affection between them, they would benefit from a continued relationship.   Sarah's previous social worker testified that Sarah had a significant emotional attachment to her foster mother but also had a friendly relationship with mother.   She stated Sarah would benefit from continued contact with mother, suggesting, however, that it would not be detrimental to stop visitation.   The court received into evidence a report by the court-appointed special advocate which recommended adoption based on Sarah's wishes and best interests.   It also received into evidence a bonding study, which indicated that although Sarah saw mother as an important figure in her life, she needed the stability of an adoptive home.

In rendering the decision, the court noted mother's great progress and Sarah's needs and wishes.   It found that Sarah would not benefit from a continued relationship with mother and that there did not exist any of the circumstances listed in section 366.26, subdivision (c)(1) which would make termination of parental rights detrimental to Sarah.   The court found by clear and convincing evidence that Sarah was adoptable, that severing the relationship with mother would not be detrimental to Sarah, and that Sarah's best interests would be served if she were adopted.   The court then terminated parental rights.   Mother appeals.





We were very recently faced with the problem of the effect on a selection and implementation hearing of the erroneous denial of a motion to modify a previous order brought under section 388.   We decided in In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1409, 5 Cal.Rptr.2d 148, that failure to grant a hearing on a 388 motion, where the moving papers sufficiently supported the motion, was error which invalidated action taken at the immediately succeeding section 366.26 selection and implementation hearing.   If, therefore, prejudicial error was committed in the administration of mother's 388 motion, reversal of the selection and implementation order would be required in order to permit reconsideration of the 388 motion.  (See In re Sean E. (1992) 3 Cal.App.4th 1594, 5 Cal.Rptr.2d 193.)5

As a preface to our examination of the section 388 issue in this case, we find it helpful to review the generalities of our present system for disposition of dependent children who are found not to be returnable to parental custody.   The proceedings which govern either the reunification of dependent children with their parents or their permanent separation therefrom track along a “legislatively mandated time grid defining when and under what circumstances [the juvenile court] may act.”  (In re Sean E., supra, 3 Cal.App.4th at p. 1596, 5 Cal.Rptr.2d 193.)   The decisions the juvenile court may make at each step in the progression of a dependency case are finely delineated by the section 300 series of statutes.   A sequential program of review hearings is required during the time a parent is deprived of physical custody of the child.   At each such hearing, extending over a period of as long as 18 months,6 the child must be returned to the parent's custody unless the court finds that such return “would create a substantial risk of detriment to the physical or emotional well-being of the minor.”  (§§ 366.21, subd. (e), 366.21, subd. (f), 366.22, subd. (a).)

 Once the court determines, however, that there is no substantial likelihood the child can be returned to the parent's custody,7 the emphasis completely shifts.   The court, absent unusual circumstances,8 is obliged to set a 366.26 hearing for selection of a final disposition of the child, to be held within 120 days.   Any alleged error in the section 366.21 or 366.22 hearing, and any challenge to the order setting a 366.26 hearing, must be raised by timely writ, and cannot be deferred until after the 366.26 hearing.  (§ 366.26, subd. (k), In re Taya C. (1991) 2 Cal.App.4th 1, 8, 9, 2 Cal.Rptr.2d 810.)   If not raised by writ petition any such error is waived.  (In re Amanda B. (1992) 3 Cal.App.4th 935, 939–940, 4 Cal.Rptr.2d 922.)   Further, issues resolved at the section 366.21 or 366.22 review hearings may not be revisited at the section 366.26 selection and implementation hearing.  (In re Marilyn H. (1992) 3 Cal.App.4th 138, 149, 4 Cal.Rptr.2d 79.)   The selection and implementation hearing proceeds upon the premise that efforts to reunify with the parent are over, and the objective is to select the long-term plan for care and custody which will most benefit the child.   Parental rights will be completely terminated only if the child is found to be adoptable, but the alternatives short of adoption, which do not result in termination of parental rights, all involve placement of the child with a guardian, foster parent or other non-parental care facility.  (See § 366.26, subd. (c)(1)(A), (B), (C), (D).)

 Thus, the parent who has lost custody of his or her child is given a finite time within which to remedy the fault which caused the loss.   If the requisite adjustments in the parent's life and circumstances cannot be made within 12 months, or 18 months at the outside, the state “gives up” on that parent and focuses on the best possible alternative for the child, other than return to the parent.   This seemingly arbitrary cutoff of concern for parental interests is justified by the desire to provide an early selection of a permanent, stable home for otherwise displaced children.  (In re Heather P. (1989) 209 Cal.App.3d 886, 892, 257 Cal.Rptr. 545.)

This framework for disposition of dependent children, and the various proof requirements contained in its several steps, have been declared not violative of constitutional due process or equal protection.  (See In re Taya C., supra, 2 Cal.App.4th 1, 8, 9, 2 Cal.Rptr.2d 810;  Cynthia D., supra, 3 Cal.App.4th at p. 933, 4 Cal.Rptr.2d 909;  In re Marilyn H. (1992) 3 Cal.App.4th 138, 150, 4 Cal.Rptr.2d 79.)   As we stated in Cynthia D., our satisfaction with the essential fairness of the process does not depend upon the procedures utilized at any one hearing, but relies on “[t]he totality of the system [being] such as to provide a measure of confidence in the probable correctness of the decision․”  (Cynthia D., supra, 3 Cal.App.4th at p. 931, 4 Cal.Rptr.2d 909.)   Our satisfaction as to the overall fairness of the system depends, however, in no small degree, upon the availability of safety valves and review procedures at virtually every step in the process.   The procedure made available by section 388 is, in our view, an important factor in the statutory framework.

Section 388 9 permits a parent, or anyone else with “interest in a child,” to petition the court for a hearing “to change, modify, or set aside any order of court previously made․”  There is no limitation upon the nature of a dependency order which can be challenged by a 388 motion.   Clearly orders made from section 366.21 or 366.22 hearings are subject to 388 motions to set aside or modify.   No time limit is imposed which would circumscribe the power of a parent to file a 388 motion.   Thus, while the 388 motion should obviously be made at the earliest feasible date, nothing precludes its being made shortly before the time scheduled for a selection and implementation hearing.   A hearing on the motion must be held within 30 days, but no minimum time for notice is prescribed.  (Rule 1432(d).) 10  Notice of the hearing is to be given to the various interested parties in the manner prescribed for notice of an original petition under section 300 (rules 1432(e), 1407(d)–(j)), and the provisions for notice are flexible.   We have previously suggested that where time is short it would be appropriate to hold a section 388 hearing (388 hearing) in conjunction with the previously scheduled selection and implementation hearing, provided the 388 hearing be held first.   (In re Jeremy W., supra, 3 Cal.App.4th at p. 1416, fn. 14, 5 Cal.Rptr.2d 148.)

 The key requirement for a successful section 388 motion is that there be either a “change of circumstances” or “new evidence.”   Absent notice in the form of the 388 motion the court is justifiably precluded from considering evidence of changed circumstances in the course of its selection and implementation hearing.  (In re Marilyn H., supra, 3 Cal.App.4th at p. 150, 4 Cal.Rptr.2d 79.)   The placement options prescribed by section 366.26 are specific and exclusive and do not permit re-examination of the determination to terminate reunification efforts.  (Id. at pp. 145, 146, 4 Cal.Rptr.2d 79.)   When put on notice of a change of circumstances via a 388 motion, however, the court is obliged to review the status of the parties and set aside or defer, if appropriate, the selection and implementation hearing.

 The showing in this case was facially appropriate for a 388 motion.   The order sought to be reviewed was that resulting from the 18–month hearing.   Evidence before the court at this hearing indicated substantial risk in returning Sarah to her mother's care.   The reports reviewed by the court at that time cast doubt on mother's stability.   Mother's 388 motion presented evidence of a change in circumstances since the 18–month hearing.   An updated social service report said mother had conquered her drug and alcohol abuse and made “remarkable strides in personal growth.”   She had given birth to a new child, and the social worker predicted she would be a “good mother to the new child.”   In light of these facts the social worker found it “indeed difficult to recommend that [mother's] parental rights be terminated.”

 Upon receipt of a 388 motion the juvenile court is required to undertake an adjudicative process involving two distinct stages or steps.   The first step requires the court to make a preliminary determination, based upon a review of the paperwork, as to whether a hearing of the motion is warranted.   If it appears from the motion papers “that the best interests of the child may be promoted by the proposed change of order ․ the court shall order that a hearing be held․”  (§ 388.)   The first stage of review, therefore, is a determination that some benefit may be promoted by the review.   This statutory wording requires that a liberal construction be given in determining the sufficiency of the 388 petition.  (See also rule 1432(a).)   “[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.”  (In re Heather P., supra, 209 Cal.App.3d at p. 891, 257 Cal.Rptr. 545, emphasis added.)   As we stated in In re Jeremy W., supra, 3 Cal.App.4th at p. 1416, 5 Cal.Rptr.2d 148, the parent has only “to make a prima facie showing to trigger her right to proceed by way of a full hearing.”

 Thus the burden imposed upon a parent in terms of presenting evidence sufficient to justify the granting of a hearing is insubstantial.11  The statutory preference is for the granting of a hearing where any doubt exists as to its potential merit.   The trial court may, of course, deny the hearing where the moving papers are patently defective, showing neither substantial new evidence nor any material change in circumstances.  (Rule 1432(b).)   The unexplained summary denial of a facially sufficient 388 motion, however, particularly as evidenced only by a check mark on a printed form, will require reversal.  (In re Jeremy W., supra, 3 Cal.App.4th at p. ––––, 5 Cal.Rptr.2d 148.)

 We now turn our attention to the disposition of the 388 motion in this case.   On the date set for the selection and implementation hearing the court first considered, as is proper, the pending 388 motion.   While the court may have thought it was holding a 388 hearing, our review of the record indicates that in fact it did not do so.   The court considered all proffered documentary evidence and permitted brief argument from counsel, but then ruled as to “the 388, I will not order a hearing on it.”

The reason given by the court for its ruling suggests the error in the court's process.   The judge stated that the hearing was denied on the basis of the court's review of the documents supporting the motion papers, i.e., the current social service reports.   The court concluded that reunification of Sarah with mother, after the long separation, would not be in the best interests of the child.   In other words, the court reached the substance of the motion without actually granting a hearing on it.   Had a formal hearing been granted mother would have been afforded an opportunity to introduce evidence in addition to that contained in her written motion papers, to call witnesses, and to testify on her own behalf.12

This procedure was erroneous.   The 388 petition in this case was persuasive.   It offered sound and substantial evidence of a change of circumstances, which evidence came from the pens of independent social workers.   A prima facie case of potential modification of the section 366.22 referral order was made, under any reasonable interpretation of the showing.   The court was obliged to grant a 388 hearing.

 We must next consider whether this error warrants reversal of the section 388 order and hence also the 366.26 judgment.   Dependency case orders made after erroneous rulings are, like other orders in civil cases, subject to the doctrine of harmless error.  “No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction or defect was prejudicial․”  (Code Civ.Proc., § 475.)   Article VI, section 13 of the California Constitution reinforces this rule by stating:  “No judgment shall be set aside, or a new trial granted, in any cause, ․ for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”   We review the entire record in this case, considering whether the resolution of the hearings in November 1991 would have been different had the court granted the 388 hearing mother sought.

In weighing the probable effect of the error we must compare the contentions raised by the 388 motion with the issues thereafter before the court at the 366.26 hearing.   The previous order which the 388 motion sought to modify was the order terminating reunification services and referring the case for a selection and implementation hearing.   The 388 motion sought leave to hold a hearing to demonstrate that mother had improved in her ability to be a parent, had completed a therapy program, had a stable home, and had given birth to a new child, for whom she was providing good care.   The objective of this evidence was to show that the previous doubts about mother's ability to parent had been resolved.

The 366.26 hearing embraced other issues, such as the adoptability of Sarah.   It nevertheless pertained to a considerable extent to the same issues which mother sought to raise via the 388 motion.   Counsel for mother quite apparently focused on section 366.26, subdivision (c)(1)(A), which precludes adoption if a parent can show maintenance of regular visitation with the child and benefit from a continued relationship, such that termination of the parental relationship would be detrimental to the child.   Counsel for mother was given ample time and full opportunity to present evidence bearing on this issue.   We find the evidence presented to be very similar, if not identical, to the evidence which would have been presented at the 388 hearing.

The social worker who had prepared the adoptability assessment for the 366.26 hearing was extensively examined.   She had personally contacted the child, the foster parents and mother, and had observed the child's interaction with the mother.   Her testimony, though favorable in many respects to mother's interests, confirmed her written report recommending adoption and severance of parental ties.   The foster mother, who had had custody of Sarah for a year and a half, was called as an adverse witness by counsel for mother and testified at length.   The social worker who had supervised conjoint therapy of Sarah with mother was called by mother and testified.   Mother's social worker appeared and it was stipulated that she would testify favorably to mother's improvement in impulse control, increased insight, and improvement in behavioral patterns that affect Sarah.   Another social worker who had previously supervised mother's visits with Sarah gave testimony.   Finally, mother, who was present throughout the hearing, testified in her own behalf.   Her testimony was in no respect limited.

From all that appears in the record, counsel for mother was permitted to introduce all the evidence and testimony he could muster which bore upon the then ability of mother to parent.   Counsel rested his case voluntarily and submitted the matter for court decision.   The court reviewed the evidence in a lengthy oral recitation of facts and findings.   It considered the case to be “particularly sensitive,” finding that mother had rehabilitated herself, had exerted a great deal of effort to achieve reunification, had maintained regular visitation, and had a good relationship with Sarah.   Notwithstanding, and principally in light of the long time period in which Sarah had been in foster care and the desirability of permanency in her disposition, the court decided adoption was the alternative in the best interests of the child.

We conclude that, when it made its crucial determinations leading to termination of parental custody, the court had before it all the evidence the 388 hearing would have produced.   In its 366.26 hearing the court was considering an issue of essential similarity to that which it would have viewed had it held a formal 388 hearing.   The decision the court made—that continuing the parent-child relationship would not be beneficial to the minor and that adoption is in the best interest of the child—was the same decision it would have faced at the 388 hearing:  whether the child's best interests would be promoted by modifying the 366.22 order terminating reunification efforts.   Considering these several factors, we have no doubt that had the court in its November hearings segregated the 388 issue and heard it first, the end result would have been the same as that which occurred without benefit of the formal 388 hearing.   We therefore conclude the court's error in failing to grant a formal 388 hearing was nonprejudicial.


The orders which are the subject of this appeal are affirmed.


2.   We continue to use the term “selection and implementation” hearing to describe the hearing held in accordance with section 366.26.  (See Cynthia D. v. Superior Court (1992) 3 Cal.App.4th 913, 917, fn. 2, 4 Cal.Rptr.2d 909.)

3.   On appeal, the appellant also contends the evidence was insufficient to establish that reasonable reunification services were offered and findings of detriment to the child were made under an insufficient standard of proof.   In our opinion, Cynthia D. v. Superior Court (1992) 3 Cal.App.4th 913, 4 Cal.Rptr.2d 909, in response to the mother's petition for a writ, we rejected mother's contentions as to those issues.   That opinion represents the law of the case as to those issues, and mother's contentions regarding them will not be discussed here.All statutory references are to the Welfare and Institutions Code unless otherwise specified.

4.   The social study reported that since the six-month hearing mother had married, and she and her new husband, who was disabled, recently had begun therapy because of her acts of physical abuse toward him.   Mother had also attempted suicide.   She was attending therapy with three different therapists, who recommended that therapy continue.   Therapist L.C. Miccio–Fonseca stated mother needed to improve her impulse control, manage her anger, and improve her communication and coping skills.   Mother still questioned whether Sarah had been molested.   Mother had completed a parenting class, and her in-home New Alternatives worker praised the relationship she observed between mother and Sarah.   Mother had again been referred for drug testing.   She continued to have frequent visitations with Sarah.   The study recommended mother be given more time to comply with the reunification plan.

FOOTNOTE.   See footnote 1, ante.

5.   Any order resulting from a 388 motion comes within the general ambit of appealability as prescribed by section 395, qualifying as “any subsequent order” following a judgment in a proceeding under section 300, and not precluded by the special requirement of writ review for orders referring the case to a selection and implementation hearing, under section 366.26, subdivision (k).

6.   While the legislative mandate requires final determination of reunification with a parent within 18 months after the original detention order (§§ 366.21, subd. (e), 366.22, subd. (a)), and reference to a selection and implementation hearing within 120 days thereafter if reunification is found not possible, we note that the period may for good cause be extended.   Even though the court must “give substantial weight to a minor's need for prompt resolution of his or her custody status,” it may nevertheless continue any hearing “beyond the time limit within which the hearing is otherwise required to be held” provided only that such is not contrary to the best interests of the minor.  (§ 352, and see In re Sean E., supra, 3 Cal.App.4th at p. 1598, 5 Cal.Rptr.2d 193;  rule 1422(a).)   “Continuances are expressly discouraged,” however.  (In re Emily L. (1989) 212 Cal.App.3d 734, 743, 260 Cal.Rptr. 810.)

7.   This determination is made at either the 12–month hearing, if the court makes a finding that there is no substantial likelihood the child can be returned to the parent within the next six months (§ 366.21, subd. (g)(1));  or at the 18–month hearing if at that time the child cannot be returned to the parent (§ 366.22, subd. (a)).

8.   For instance, the court will not order a 366.26 hearing even though it finds the child cannot be returned to the parent if it determines by clear and convincing evidence that the child is not adoptable and has no one willing to accept legal guardianship.   In such case no selection and implementation hearing is held and long-term foster care is ordered.  (§ 366.21, subd. (g)(2);  § 366.22, subd. (a).)

9.   Section 388 states:“Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself through a properly appointed guardian 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.   The petition shall be verified and, if made by a person other than the child, shall state the petitioner's relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require such change of order or termination of jurisdiction.“If it appears that the best interests of the child may be promoted by the proposed change of order or termination of jurisdiction, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to such persons and by such means as prescribed by Section 386, and, in such instances as the means of giving notice is not prescribed by such sections, then by such means as the court prescribes.”

10.   All rule references are to the California Rules of Court.

11.   This slight burden is, of course, to be distinguished from the burden of proof imposed upon a parent if the formal 388 hearing is granted and heard.   In such event it is the parent's burden to show by a preponderance of the evidence not only the new evidence or changed circumstances, but also that a modification of the prior order in light of such showing will be in the best interests of the child.  (In re Audrey D. (1979) 100 Cal.App.3d 34, 45, 160 Cal.Rptr. 802;  rule 1432(f).)

12.   The juvenile court rules applicable before July 1, 1989, provided that at a 388 hearing “The court shall receive in evidence ․ relevant and material evidence offered by the petitioner, the minor, or the parent or guardian.”  (Rules 1371(d), 1393(g).)   The revision of juvenile court rules adopted as of July 1, 1989 caused renumbering, using a 1400 series instead of the previous 1300 series.   Rule 1432(f), which now governs the hearing of petitions under section 388, provides that “proof may be by declaration and other documentary evidence, or by testimony, or both, at the discretion of the court.”   We find nothing in explanatory materials regarding the rule changes which would indicate an intention to reduce or restrict the evidence which may be offered by a parent at a 388 hearing, and presume the reference to the court's discretion in terms of admission of evidence is nothing more than a restatement of the general rule of trial court discretion to apply and administer the rules of evidence.

FROEHLICH, Associate Justice.

KREMER, P.J., and TODD, J., concur.

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