SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES v. SYLVIA

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

SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; SYLVIA A. et al., Minors, Real Parties in Interest.

No. D024170.

Decided: November 28, 1995

Lloyd M. Harmon, Jr., County Counsel, Susan Strom, Chief Deputy County Counsel, and Gary C. Seiser, Deputy County Counsel for Petitioner. No appearance for Respondent. Judith Abeles and Judith Klein for Real Parties in Interest.

We address here the procedural issue of what a social services agency must do to trigger a second Welfare and Institutions Code 1 section 366.26 hearing after the court has approved a permanent plan of long-term foster care.   The juvenile court held the San Diego County Department of Social Services (Department) must file a section 388 petition.   We determine a section 388 petition was unnecessary, and the court had the authority to respond to the Department's request for a change of placement made at a regular post-permanent plan review hearing by directly scheduling a section 366.26 hearing.

FACTUAL AND PROCEDURAL BACKGROUND

Ten-year-old Sylvia A. and eight-year-old Victoria M. are sisters.   Their mother is Sandra M. and their father is Victor M.

On July 29, 1992, the juvenile court declared Sylvia and Victoria dependents because of sexual abuse by their father.  (§ 300, subd. (d).)  The court removed the girls from their parents' custody and placed them with their maternal aunt.   At the 12–month hearing, the court continued the out-of-home placement, finding that returning Sylvia and Victoria to their parents would subject the girls to substantial physical and emotional risk.   They were later placed with another maternal aunt.   In about October 1994, Sylvia and Victoria were removed from their aunt's home at their aunt's request.   The Department placed the girls in the foster home of Gloria Rodriguez.   The court terminated the parents' reunification services on June 28, 1994.

On January 5, 1995, a section 366.26 “permanency planning” hearing was held.2  The parents' whereabouts were unknown at that time.   The court made a finding by clear and convincing evidence that Sylvia and Victoria were not adoptable and had no one willing to accept legal guardianship.   The court ordered a permanent plan of long-term foster care for Sylvia and Victoria.   The court set a post-permanent plan review hearing for July 6, 1995.

In February 1995, foster parent Rodriguez notified the Department that Sylvia and Victoria would have to be moved to another home because she was going on an extended vacation.   In April 1995, the girls' mother (Sandra) returned to the San Diego area.   Sandra expressed her desire that each girl be placed with one of her (Sandra's) sisters.

A post-permanent plan review hearing was held on July 20, 1995.3  Sandra appeared at the hearing and was represented by counsel.   The Department submitted a review report in connection with that hearing.   In the report, social worker Barbara Shustek noted the mother's contact with the children had been minimal and the father had not made any attempt to see them.   The report attached a therapist's letter, stressing the importance of a permanent and stable home for Sylvia and Victoria and in keeping the girls together in any future placements.   In light of the therapist's conclusions and of her independent analysis, Shustek stated that the current permanent plan of foster care was “not appropriate.”   Shustek explained:

“In reviewing the case, it was clear that the parents and the extended family were not going to be able to provide consistency, nurturance and support for these children.   I referred the case for a permanency planning assessment in order to determine if adoption might be a feasible plan.   The Permanency Planning and Assessment Unit notified me in March that ․ the children were adoptable.  [¶]  In early June, I was notified by [a] ․ social worker ․ that he did have a prospective adoptive parent who was interested in Sylvia and Victoria.   The adoptive parent is currently undergoing the evaluation process.”

The report concluded that “Sylvia and Victoria deserve to have a permanent home and family.   It appears that they may have this opportunity.  [¶]  In view of this, I am recommending that the Court set a [section 366].26 hearing so that the permanent plan can be changed from long-term foster care [to adoption].”

At the outset of the July 20, 1995 hearing, the Department's counsel asked that the matter “go to a secondary [section 366].26 [hearing].”  The court denied the Department's request “without the filing of a [section] 388 [motion].”  The court reasoned that it believed it was bound by In re Nina P. (1995) 26 Cal.App.4th 615, 31 Cal.Rptr.2d 687.   The court thereafter issued an order stating that “[t]he request to proceed to a [section 366].26 hearing is denied without the filing of a 388 motion.”   The Department challenges this order.

DISCUSSION

Once a court orders long-term foster care after a section 366.26 hearing, the case enters the post-permanent plan stage, governed by sections 366.3, subdivision (c) and 16503 and by California Rules of Court, rule 1466(b).4  (See In re Heather P. (1989) 209 Cal.App.3d 886, 890–891, 257 Cal.Rptr. 545.)   These provisions require a review of the minor's case to be conducted every six months.  (§ 366.3, subd. (c).)  The review may be performed by the court or an appropriate local agency (e.g., the Department).   (Ibid.)  The court must conduct the review at least once every 18 months or at the request of the minor's parents, guardian or of the minor.  (Ibid.)

The object of the periodic review is to determine “whether the plan continues to be appropriate for the child.”  (Rule 1466(b).)   Thus, at each review hearing, the reviewing body must “inquire about the progress being made to provide a permanent home for the minor and shall determine the appropriateness of the placement, the continuing appropriateness and extent of compliance with the permanent plan for the child, the extent of compliance with the case plan, and the adequacy of services provided to the child․”  (§ 366.3, subd. (c).)

 With this general statutory framework in mind, we turn to the specific issue here:  what are the procedural requirements for changing a permanent plan of long-term foster care?   Specifically, is a petition and hearing pursuant to section 388 5 a prerequisite to changing a long-term foster care plan to adoption?

In resolving this issue, we do not write on a clean slate.   The First District Court of Appeal has held a verified section 388 petition is required “each time a modification is requested” after the implementation of a permanent plan.  (In re Nina P., supra, 26 Cal.App.4th at p. 622, 31 Cal.Rptr.2d 687.)   In Nina P., the juvenile court selected a plan of long-term foster care at a section 366.26 hearing and placed the minor (Nina) in foster care with her grandmother.   At a post-permanent plan review hearing, the social worker submitted a report requesting that the grandmother be declared Nina's legal guardian.   The court scheduled a hearing to consider this request.   At the hearing, the evidence established it was in Nina's best interest to change her grandmother's status from a foster parent to a legal guardian.   The court therefore appointed the grandmother as the minor's legal guardian.  (Id. at pp. 617–618, 31 Cal.Rptr.2d 687.)

The minor's mother appealed, arguing the court erred in ordering a change from long-term foster care to guardianship without a section 388 verified petition and hearing.   The Nina P. majority agreed, reasoning that section 388 contains “procedural safeguards” which may not be available pursuant to post-permanent plan procedures.  (In re Nina P., supra, 26 Cal.App.4th at p. 622, 31 Cal.Rptr.2d 687.)   The court concluded, however, the error was harmless because the mother had adequate notice and an opportunity to appear at the hearing on the modification.  (Id. at p. 623, 31 Cal.Rptr.2d 687.)

In a concurring opinion, one of the panel members, Justice Benson, “strong[ly] disagree[d]” with the majority's requirement of a section 388 hearing and opined that it was sufficient for a court to schedule and then conduct a full evidentiary hearing on the change.  (In re Nina P., supra, 26 Cal.App.4th at p. 624, 31 Cal.Rptr.2d 687.)   Justice Benson explained that a section 388 requirement would “emasculate the policies behind the periodic review process” which “favor[ ] modification of long-term foster care placements․”  (Id. at p. 627, 31 Cal.Rptr.2d 687.)   Justice Benson stressed that a court's authority to change the permanent plan if circumstances warrant is implicit in the statutory scheme's regular review procedures.  (Ibid.)

We are persuaded that Justice Benson's opinion reflects the better view in the factual context of this case.   First, rule 1466(b), governing post-permanent plan review hearings, contains a specific provision addressing modifications of long-term foster care.   The rule states in relevant part:  “If circumstances have changed since the permanent plan was ordered, the court may order a new permanent plan under section 366.25 or 366.26 at any subsequent hearing, or any party may seek a new permanent plan by a motion filed under rule 1432 [governing section 388 petitions].”  (Italics added.)

Viewing the plain language of this rule, the manner in which a change of placement may be sought is stated in the alternative.  (See In re John F. (1994) 27 Cal.App.4th 1365, 1375, 33 Cal.Rptr.2d 225.) 6  A court may order a hearing pursuant to sections 366.25 or 366.26 or a party may file a section 388 petition.  (Rule 1466(b);  In re John F., supra, at p. 1375, 33 Cal.Rptr.2d 225.)   This rule expressly permits a court to order a section 366.26 hearing absent a section 388 motion.

The majority in Nina P. reached a contrary interpretation of rule 1466(b), construing the modification language to mean that a court may order a change of placement without a section 388 petition only where the change was “based on the court's independent assessment that guardianship was warranted by the changed circumstances.”  (In re Nina P., supra, 26 Cal.App.4th at p. 621, 31 Cal.Rptr.2d 687, fn. omitted.)   Where, however, a change is “not motivated by the court's sua sponte determination ․, but was the product of [the Department's] request for [a change],” a section 388 request is required.  (Id. at pp. 621–622, 31 Cal.Rptr.2d 687.)

We are not persuaded the rule makes this distinction.  Rule 1466(b) does not say a court may order a hearing to modify a permanent plan only where the court is the entity initiating the idea for the change.   Such interpretation unnecessarily focuses the determination on which entity motivates the request for a modification.   This determination not only lends itself to easy manipulation, but does not appear to serve a useful purpose.

Further, we question the primary basis of the Nina P. majority's conclusion—that section 388 contains “procedural safeguards” which are not available in the rules governing post-permanent plan hearings.   The rules governing post-permanent plan hearings require that parents (whose rights have not been terminated) receive actual notice and be provided the opportunity to appear and present evidence at the review hearings.  (See § 366.3, subd. (c);  rule 1466(b).) 7  The rules specifically require that the parents be notified of any proposed modifications to the permanent plan.  (Rules 1460(b)(1), 1466(b).)   In light of such procedures, section 388 is unnecessary to ensure parents are accorded due process.   Moreover, the existence of the detailed notice procedures makes clear that the Legislature (and the Judicial Council which formulated the implementing rules) contemplated that modifications of long-term foster care plans can occur within the regular review process.

Our conclusion applies with particular force in this situation where the agency is merely requesting the juvenile court to schedule a section 366.26 hearing to consider a change.   Special statutory rules provide a parent a right to notice and to participate at all section 366.26 hearings.  (See § 366.23.) 8  If an agency is seeking termination of parental rights, such fact must be included on the notice.  (Ibid.)  Sandra concedes she was present (and represented by counsel) at the hearing where the Department requested a section 366.26 hearing.   The Department acknowledged in its report filed at the review hearing that it would need to prepare a new statutory assessment report (§ 366.21, subd. (i)) and serve such report on the parties.   Thus, Sandra will have notice of the Department's proposed modification and the reasons for the requested change and will have the full opportunity to appear at, prepare for, and present any relevant evidence at the section 366.26 hearing.

 Finally, we note that in the circumstances before us, the legal and factual issues at a section 388 hearing would be identical to the threshold issues at a section 366.26 hearing.   To prevail on a section 388 petition, the Department must prove by a preponderance of the evidence (1) a change of circumstances or new evidence, and (2) the proposed modification is in the child's best interests.  (In re Jasmon O. (1994) 8 Cal.4th 398, 415–416, 33 Cal.Rptr.2d 85, 878 P.2d 1297.)   At a section 366.26 hearing where the Department is recommending adoption, the Department must initially establish by clear and convincing evidence the minor is adoptable.  (See Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)   At that point, parental rights are terminated unless the case falls into one of four statutory categories, requiring a consideration of the child's best interests.  (See § 366.26, subd. (c)(1)(A)(B)(C)(D).)

Accordingly, at each hearing (the section 366.26 and the section 388) the Department would have to establish the girls are now adoptable and the court's focus must necessarily be on whether it is in the girls' best interest to change from long-term foster care to adoption.   Thus, there is no legitimate reason to hold a separate section 388 hearing.   The same issues would need to be decided at each hearing—the primary difference is that a more demanding burden of proof is placed on the Department to prove adoptability at the section 366.26 hearing.   Further, as discussed above, essentially the same notice requirements apply at each hearing.9

DISPOSITION

Let a writ of mandate issue directing the superior court to vacate that portion of its order requiring the Department to file a section 388 petition before the court schedules a section 366.26 hearing.   This opinion is made final as to this court five days from the filing date.  (Rule 24(d).)

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code..  FN1. All further statutory references are to the Welfare and Institutions Code.

2.   The record is unclear as to why it took two and one-half years for the court to hold a section 366.26 hearing.   From our review of the record, it appears the section 366.26 hearing was first ordered on June 28, 1994, but that the court granted several continuances apparently because the parents could not be found.   Although the parties do not challenge the delay, we note that such delay is inconsistent with the statutory scheme.We further note that when this matter was initially briefed, there was some confusion among the parties as to whether a section 366.26 hearing had been held.   We thereafter obtained a transcript of the January 5, 1995 hearing, which clarified that a section 366.26 hearing had been held on that date.

3.   The initial hearing was scheduled for July 6, 1995.   However, because Sandra did not appear, the court continued the hearing to permit the social worker to contact Sandra to inform her that she must appear at the next hearing if she wanted appointed counsel.

4.   Section 366.3, subdivision (c) provides in relevant part:“If the minor is in a placement other than a preadoptive home or the home of a legal guardian and jurisdiction has not been dismissed, the status of the minor shall be reviewed every six months.   This review may be conducted by the court or an appropriate local agency;  the court shall conduct the review upon the request of the minor's parents or guardian or of the minor and shall conduct the review 18 months after the hearing held pursuant to Section 366.26 and every 18 months thereafter.   The reviewing body shall inquire about the progress being made to provide a permanent home for the minor and shall determine the appropriateness of the placement, the continuing appropriateness and extent of compliance with the permanent plan for the child, the extent of compliance with the case plan, and the adequacy of services provided to the child.“․”Unless their parental rights have been permanently terminated, the parent or parents of the minor are entitled to receive notice of, and participate in, those hearings.   It shall be presumed that continued care is in the interests of the minor, unless the parent or parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the minor.   In those cases, the court may order that further reunification services be provided to the parent or parents for a period not to exceed six months.”Effective January 1, 1996, section 366.3, subdivision (c) has been revised and renumbered as section 366.3, subdivision (d).  (§ 366.3, subd. (d);  Stats.1995, ch. 540, § 9, No. 8 West's Cal.Legis. Service, p. 3302.)   Other relevant provisions have been added at section 366.3, subdivisions (f) and (g).  (See infra at fn. 9.)California Rules of Court, rule 1466(b) provides in relevant part:“Following the establishment of a plan for long-term foster care, ․ review hearings shall be conducted every six months by the court or by a local review board.   At the review hearing, the court or review board shall consider the report of the petitioner and the report of any court-appointed child advocate.   No less frequently than once every 18 months, the court shall conduct a review of the previously ordered permanent plan to consider whether the plan continues to be appropriate for the child․   If circumstances have changed since the permanent plan was ordered, the court may order a new permanent plan under section 366.25 or 366.26 at any subsequent hearing, or any party may seek a new permanent plan by a motion filed under rule 1432.   Notice of the hearing shall be given as provided in rule 1460.   Parents are to be given notice of all hearings unless their parental rights have been terminated.   The court shall continue the child in foster care unless the parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child.   In those cases, the court may order reunification services for a period not to exceed six months.”Prior to July 1, 1995, this rule was numbered rule 1465(b).   Effective July 1, 1995, this rule was renumbered as rule 1466(b).All future rule references are to the California Rules of Court.

5.   Section 388 provides in pertinent part:“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 ․ 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 ․ 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, ․ to such persons and by such means as prescribed by Section 386․”

6.   Although John F. arose in a different procedural context than here, the court recognized in dicta that parties have two options in seeking to modify a plan to adoption during the post-permanent plan stage:  request a section 366.26 hearing at a review hearing or file a section 388 petition.  (In re John F., supra, 27 Cal.App.4th at p. 1375, 33 Cal.Rptr.2d 225.)

7.   The Department must serve the written notice “no[ ] earlier than 30 nor less than 15 calendar days before the hearing date․”  (Rules 1460(b), 1466(b).)   The notice must “contain ․ the nature of the hearing, and any recommended change in custody or status, and include a statement that the child and the parent or guardian have a right ․ [t]o be present at the hearing;  [t]o be represented by counsel ․;   and [t]o present evidence․ ”  (Rules 1460(b)(1), italics added, 1466(b).)  “The notice of hearing shall be served by personal service or certified mail addressed to the last known address of the person to be notified.”  (Rules 1460(b), 1466(b).)   Where a parent's name and address is not known, notice must be sent to “the names and addresses of any adult relative known to reside within the county, or of the adult relative residing nearest the county․”  (Rules 1407(a)(5), 1407(e)(3), 1460(b).)

8.   Section 366.23, subdivision (a) provides in relevant part:  “Whenever a juvenile court schedules a hearing pursuant to Section 366.26 ․, it shall direct that the [parents] ․ of the minor ․ shall be notified of the time and place of the proceedings and advised that they may appear.   The notice shall also advise them of the right to counsel, the nature of the proceedings, and of the requirement that at the proceedings the court shall select and implement a plan of adoption, legal guardianship, or long-term foster care for the minor․   Service of the notice shall be completed at least 45 days before the date of the hearing, except in those cases where notice by publication is ordered․   If the petitioner is recommending termination of parental rights, notice of this recommendation shall be either included in the notice of a hearing scheduled pursuant to Section 366.26 and served within the time period specified in this subdivision or provided by separate notice ․ by first-class mail at least 15 days before the scheduled hearing.”

9.   We note that effective January 1, 1996, the Legislature amended section 366.3 to require a court reviewing a permanent plan of long-term foster care to order a section 366.26 hearing “[a]t least every 18 months” unless the “court finds by clear and convincing evidence ․ that the minor is not a proper subject for adoption, and no one is willing to accept legal guardianship․”  (§ 366.3 subds. (f) & (g);  Stats.1995, ch. 540, § 9, No. 8 West's Cal.Legis. Service, p. 3302.)   This amendment makes clear the Legislature's intent that a court is not required to conduct a section 388 hearing before it can schedule a section 366.26 hearing to consider whether a long-term plan of foster care should be changed.

HALLER, Associate Justice.

WORK, Acting P.J., and HUFFMAN, J., concur.