IN RE: J.S. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

T.S. ( mother) appeals from the findings and orders of June 30, 2009, denying her petition for a change of order under Welfare and Institutions Code section 388 ¹ and terminating parental rights to her son, J.S. She contends denial of the section 388 petition was an abuse of discretion.   She further contends the dependency court abused its discretion in failing to review the Department of Children and Family Services's (the Department) denial of a waiver of maternal grandmother's criminal convictions.   Denial of the section 388 petition was not an abuse of discretion.   The contention the dependency court failed to review the Department's denial of a waiver was forfeited by mother's failure to request the relief in the dependency court.   Accordingly, we affirm the judgment.

STATEMENT OF FACTS AND PROCEDURE

J. was born in June 2007 to mother and A.W., the biological father, when mother was a 16-year-old dependent of the court.²  J. was detained at birth, as mother was incarcerated in juvenile hall on a charge of vandalism ³ and was on probation for assaulting a school staff member.⁴  A section 300 dependency petition was filed.

Mother had a history of ten psychiatric hospitalizations.   She was diagnosed with conduct disorder, bipolar disorder, and attention deficit hyperactivity disorder.   She was highly volatile, destructive, and assaultive, and she refused to control her behavior.   Her psychiatrist characterized her as “a serious danger to others ․ and expresse[d] no remorse for her actions.”   Mother tried to injure J. in utero on two occasions during the pregnancy.

Mother wanted J. placed with maternal grandmother, despite their tumultuous and violent relationship, maternal grandmother's criminal convictions, and maternal grandmother's open dependency case.   Approval of the home by the Department's Adoption and Safety Family Act/Kinship Division (ASFA) was required before J. could be placed in the home, and, because of the criminal convictions, this could not occur unless ASFA granted an exemption from the requirements of section 361.4 ⁵ for placement in a non-licensed relative's home.  (See § 361.4 subd. (d)(2);  Los Angeles County Dept. of Children & Fam. Services v. Superior court (2001) 87 Cal.App.4th 1161, 1163.)   The process of seeking an exemption was begun in June 2007.

On June 28, 2007, the dependency court ordered the Department to begin providing mother with reunification services and to facilitate visits.   J. was ordered detained in maternal grandmother's home pending the next hearing.

Mother was released from juvenile hall and placed in a foster home.   She refused to take her psychiatric medications.   In July 2007, the foster home demanded her removal because she threatened another resident, but she refused to cooperate and had to be forcibly removed by three policemen.   She was very combative with the police at the police station and tried to cut herself.

On August 1, 2007, ASFA denied a waiver of maternal grandmother's criminal convictions, meaning that placement could not be made in maternal grandmother's home.   ASFA would not approve the home for the further reason that maternal grandmother was unable to reunify with several of her biological children and had an open dependency case.   Maternal grandmother planned to file an administrative appeal of the determination.

Mother was moved four times during the week of August 15, 2007.   She was placed in a group home.

On August 15, 2007, J. was removed from maternal grandmother's home when maternal grandmother requested respite care so that she could undergo surgery.   J. was placed in the foster home of Susan and Patrick E. (the E.'s).

On August 28, 2007, the dependency court sustained the section 300 petition.   Under section 300, subdivision (b), the court found that J. has suffered, or there was a substantial risk he would suffer, serious physical harm or illness as a result of the parent's failure or inability to adequately supervise or protect the child, in that mother had mental and emotional problems diagnosed as bipolar disorder and conduct disorder, which limited her ability to provide regular care and supervision.   The disposition hearing was continued for the results of paternity testing.   The court ordered J. returned to maternal grandmother's care once she was able to care for him.

J. had respiratory issues and eczema.   Contrary to instructions, maternal grandmother treated the eczema with an unauthorized cream, which caused an allergic reaction.   She exposed him to second-hand smoke and fed him solid food.   Maternal grandmother failed to comply with the social worker's direction to take J. to the hospital.

Mother was returned to juvenile hall on a charge of making a criminal threat.   While there, she struck a probation officer in the chest on October 22, 2007, and was charged with assault.

On October 30, 2007, the dependency court ordered mother to undergo a psychological evaluation for the dispositional hearing.

On December 2, 2007, mother was hospitalized in a psychiatric ward because she attempted suicide.

Mother continued her aggressive, violent, threatening, abusive, defiant behavior through the end of 2007.   She frequently assaulted staff members at juvenile hall, was housed in the Special Handling Unit, often required one-on-one supervision, and refused to take her medication.

Mother was evaluated by Dr. Michael Ward, a psychologist, in late 2007.   He reported:  “She appears to be quite lacking in insight and judgment and seems very immature.”   She has a severe Conduct Disorder and possibly an Intermittent Explosive Disorder.   She appeared to be developing a personality disorder, in that she has more control over her behavior than she chooses to exercise.   [¶] ․ [¶] ․ [T]here is ․ a definite ‘willful’ quality to some of her acting out, with little or no regard to the consequences of that behavior for herself or others.”  “To be frank and blunt, in light of [mother's] history, and given her obvious continuing problems, the prospects for reunification within the legal timeframe are quite poor.  [Mother's] behavior is and has been out of control for far too long, and there is no reasonable basis for expecting that she is going to develop more controls any time soon․  [S]he needs and deserves some intensive and sensitive treatment services.   However, she also has to finally take responsibility for controlling her behavior, which she clearly has not done to date.   In addition to some very specific psychiatric consultation regarding the most appropriate medication regime for her, she really needs some very intensive psychotherapy.   However, that therapy needs to take into account some of her cognitive characteristics as well as her immaturity and lack of insight.   In other words this is going to be a long-term proposition, which again relates to the whole issue of reunification, particularly in terms of the legal framework involved.   Nevertheless, that is about all we can do in this kind of situation, given this girl's problems and her potential to be problematic․  [S]he is either going to start taking responsibility for her behavior and benefiting from the services that will be provided, or the answer will be obvious.”

Mother showed improvement in January 2008 when she began to take a mood stabilizing drug.

On February 14, 2008, J. was declared a dependent of the court.   Custody was taken from mother and given to the Department for suitable placement.   The dependency court denied placement with maternal grandmother.   Reunification services were ordered.   Mother was ordered to participate in parent education and individual counseling, and she was ordered to comply with her prescribed medication and the treatment plan outlined in Dr. Ward's evaluation.   Mother was granted monitored visits once a week as allowed by the delinquency court.

Mother was released from juvenile hall in March 2008.   Thereafter, she lived in numerous placements, including in foster and group homes and the home of maternal grandmother.   Her placements failed because she was demanding and highly volatile, engaged in threatening and assaultive behaviors, caused injuries to people and property, and was physically and verbally abusive.   Moreover, she refused to take responsibility for her behavior, take her medications, participate in counseling, or attend school.   Her outbursts and defiance occurred almost daily.   When she wanted to be moved to a new placement, she used violence, threats, and other inappropriate behavior to get her way.   The Los Angeles County Sheriff's Department placed her in a psychiatric facility in August 2008 after she damaged the kitchen in her foster home and kicked out the windows of a patrol car.

Visits with mother upset J. It took several days after a visit for him to calm down.

Pursuant to concurrent planning, the E.'s were interested in adopting J. In March 2008, over J.'s objection, the social worker removed J. from the E.'s home and placed him in the home of Moezeller because of conflicts caused by mother's and maternal grandmother's changing demands and refusals to cooperate with visitation and their complaints about the E.'s. The E.'s tried to remain informed about J.'s welfare.

In June 2008, J. was removed from the home of Moezeller at Moezeller's request and placed in the foster home of Terri, because mother and maternal grandmother were too difficult to get along with.  “From the beginning of the placement [with Moezeller] in March 2008, [maternal grandmother and mother] were difficult to please due to their ever changing demands of the foster mother.   In an attempt to accommodate the visitation policy and increasing demands of [mother and maternal grandmother,] related to supplies for the visits, the foster mother transported the minor to various locations at different times and constantly increased the quantity of supplies for each visit.   There were difficulties with keeping J.'s skin and diaper rashes in good condition due to the types of foods and sodas that were given to J. during the visits with his birth mother.”

As of August 2008, mother was not in compliance with the requirements of the reunification plan that she participate in individual counseling and take her medication.   She completed a parenting course, but needed guidance in parenting when she visited J. She felt she did not need rehabilitation services and did not need her medications.   She believed J. should be returned to her immediately.  “[Mother] does not appear to [understand] or have the maturity to understand the seriousness of her situation at this time.   Her behavior has been out of control for so long and she has been able to manipulate the people around her by making threats in order to get what she wants.   At this time, she does not present as if she is wanting or willing to try to control her behavior and her anger at this time.   She continues to have outbursts on an almost daily basis.”

On August 14, 2008, reunification services were continued and the matter continued for a hearing under section 366.22 (18-month review) on December 16, 2008.

Visits with mother and maternal grandmother continued to upset J. After visits, he could not go to sleep and acted out with high-pitched noises and screams when frustrated.   When Terri inquired why this might be, mother and maternal grandmother became irate and called the child protection hotline to make false statements about Terri.   Terri was afraid to take J. to maternal grandmother's home for visits.   Mother and maternal grandmother wanted maternal grandmother to adopt J. To that end, mother and maternal grandmother sought to manipulate J.'s placement by calling the child protection hotline with allegations about Terri and sending the sheriff out to Terri's home.   Terri did not want to adopt J.

Based on visitation observations in October 2008, the social worker concluded mother needed to learn appropriate parenting skills.   Throughout a meeting at mother's group home, mother used profanities and shouted at all the adults.   She refused to control her behavior.   She refused to take her psychiatric medications, stating she was “ ‘not going to take that shit.’ ”   Due to her outbursts, her psychiatrist could not complete an appointment with her.   Mother's psychotherapist believed therapy would be a “long uphill battle with [mother].”   Mother “was always fighting with everyone over everything.”   She refused to have visits with J. when she did not like where the visit was to take place or did not like having a monitor.

In November 2008, when mother wanted to be moved out of her group home because she was angry over the scheduling of a visit with J. and the social worker told her no, mother ranted and raved stating she “will do whatever she has to, to get moved and that she would fuck the place up and make their lives a living hell so that she will have to be moved.”   When the group home refused to accede to mother's demand that the group home give a removal notice, mother made a specific threat to beat up one of the girls in the group home if she was not moved.   This threat caused the group home to request mother's removal from the home.   Mother stated she did not care if her behavior caused her to lose J.:  “I don't give a fuck.   I still have a womb and I can pop another one (child) out whenever I want.”

In November 2008, mother's behavior to all who were present in a meeting with her psychotherapist and group home staff was so outrageous that the therapist stated she had “never seen a child being so disrespectful to the staff and that she feels that [mother] is truly out of control.”   Maternal grandmother refused to continue being the monitor for mother's visits with J., stating she felt mother believed she had so much power she could control everything.   Mother appeared to cooperate with her psychiatrist during an appointment in November 2008, but then refused to take her medication because she believed she was not crazy and did not need it.   Mother stated she had a job but refused to provide any documentation and said she was paid in cash.

On November 11, 2008, maternal grandmother called Terri and stated, “I'm going to get you, bitch.'  ․ Just wait and see what happens to you.”   That night, a brick was thrown through the back window of Terri's car.   The next day, maternal grandmother called Terri and stated, “How did you like what we did to your car?'  ․ It's not over, bitch.”   On the following day, mother called Terri and told her, “ ‘It's not over.’  ․ ‘If you think what happened to your car is bad, just wait and see what happens to you.’ ”   Mother and maternal grandmother made more than 50 other phone calls to Terri within a one-month period, harassing her and threatening physical violence.   Terri was afraid to leave her home, stopped answering her phone, and felt she had to move in order to be safe.

Mother was in partial compliance with visitation, but was not employing the parenting techniques that were taught in her parenting class.   She had angry outbursts five times a week and was defiant six times a week.   She began participating in psychotherapy on October 12, 2008, and attended a total of three sessions prior to December 1, 2008.   She began taking her prescribed medication.   She had not completed her education.   In anticipation of turning 18 years old in January 2009, mother stated that she wanted to be emancipated, but did not want to enroll in a transitional program because she did not like living by anyone else's rules.  “I ain't doing no ILP [Independent Living Program] services or nothing else for you guys (meaning DCFS), all you do is try to run me and tell me what to do and I ain't doin it.   Fuck that.   I just want to be let up out of this fucked up system so I can do me.”

On January 13, 2009, J. was removed from Terri's home at Terri's request due to months of ongoing conflict with the biological family, and he was placed in the home of Cassandra.

On January 16, 2009, maternal grandmother filed a petition under section 388 for an order placing J. in her home.   As ASFA had denied a criminal convictions waiver in 2007, the social worker spoke with maternal grandmother about requesting the waiver again.   On February 4, 2009, the dependency court denied the petition because no placement may be made without an ASFA waiver of the criminal convictions.

The section 366.22 hearing was held on February 4, 2009.   Mother's behavior since mid-December 2008 had improved, and mother was in the process of getting into Job Corps.   She planned to obtain her GED and a certificate in child care so that she could get a job working with children.   The dependency court found that the conditions that originally brought J. within the jurisdiction of the court still existed, return of J. to mother's custody would create a substantial risk of detriment, and mother made no progress until recently.   Mother was granted unmonitored visits in maternal grandmother's home and the Department was given discretion to liberalize the visits.   Family reunification services were terminated, and the matter set for a section 366.26 hearing June 4, 2009.   Mother stated she would like J. placed with maternal grandmother.   The dependency court ordered that, “as soon as the (ASFA) waiver is granted, barring any other change in circumstances, the child is to be placed with grandmother.”   A progress hearing was set for March 4, 2009, to address the issue of the ASFA waiver.

The ASFA criminal waiver staff had the following concerns about maternal grandmother's criminal conduct and history with the Department.   Maternal grandmother's criminal convictions were for violent misdemeanors.   She failed to reunify with two sons and still had an open case with mother.   She never took responsibility for the fact her children were in the system or for violently attacking a social worker in 1991.   Maternal grandmother understood that ASFA would not approve placement of J. in her home.

In late February 2009, mother was returned to maternal grandmother's home for an extended visit.   On March 11, 2009, maternal grandmother demanded that mother be removed from her home because mother was out of control.   Mother was placed into a foster placement the next day.   The foster placement failed within two weeks because mother was out of control.   Mother had engaged in a violent altercation with another resident, destroyed furniture, punched holes in the walls, and destroyed a door.   When she learned the foster mother might contact the police, mother left the foster home without permission and did not return.

At the progress report hearing on March 4, 2009, the Department reported there had been an ASFA evaluation of maternal grandmother's home and the determination was made not to grant a waiver.   Thus, the home could not be certified for placement, and the dependency court denied placement with maternal grandmother.   Mother did not object to the report or request any relief.

On March 31, 2009, Cassandra gave a 30-day notice demanding removal of J. from the home because of ongoing issues with the biological family.

On April 6, 2009, the E.'s filed a section 388 petition requesting that J. be returned to their home.   They wanted to adopt him.   J. and the Department wanted the dependency court to grant the petition and order J. returned to the E.'s.

On May 7, 2009, the dependency court allowed J. to be placed with the E.'s pending a hearing on their section 388 petition on May 28, 2009.   The address of the E.'s was to be “kept absolutely confidential.”   As early as the first visit, J. recognized the E.'s and warmed up to them.  “[He] played freely with them, talking to them and bonding with them.   He seemed very bonded to the foster father.   By the end of the visit, J. gave each of them several hugs.”   J. was moved into the E.'s' home on May 8, 2009.   He thrived in the home and bonded with his caretakers.

The Department acknowledged that it had made a mistake when it removed J. from the E.'s in 2008 and admitted that the removal had not been in J.'s best interest.   Mother declined any visitation, changed her mind three days later, and five days later requested that a friend who had criminal convictions and a warrant out for her arrest provide the transportation for the visit.   When the social worker did not accede to this demand, mother yelled and cursed and hung up the phone.   The visit did not take place, and mother did not request another visit.

On May 28, 2009, after a contested hearing, the dependency court granted the E.'s' section 388 petition.   The court found that “[J.] has had ․ six different placements in his life.   And a lot of those changes were due to conflicts with the biological family.  [¶] I think [the E.'s] went to the trouble of filing a 388 and asking that he be placed back in their home, when ․ they understood that we were having trouble finding an adoptive home.   And I think that speaks volumes to how they feel about J. [¶] ․ [I]t is in the best interests of the child to be placed in this home, where they seem to be very, very committed.”   Mother's request for unmonitored visits was denied.

On May 28, 2009, mother filed a section 388 petition requesting that the order of February 4, 2009, terminating reunification services and setting a permanent plan hearing be changed.   Mother asked the dependency court to return J. to her custody or, in the alternative, order six additional months of reunification services and take the permanent plan hearing off calendar.   Mother alleged circumstances had changed, in that she completed a parenting program, participated in individual counseling, resided with maternal grandmother when maternal grandmother had almost daily care of J., had a loving and consistent relationship with J., was in the process of obtaining her own apartment, and was now mentally and emotionally stable and fully capable of taking care of J. She alleged the change of order was in J.'s best interest because she continued to make progress in becoming a more responsible parent, including participation in programs, involvement in Job Corp., and maintaining a close relationship with J. Mother believed she has addressed all case issues and shared a deep bond with J. In support of the section 388 petition, mother attached proof she completed a seven-week parenting program in May 2008, a letter from her therapist, and a letter from mother The therapist's letter stated that mother attended individual therapy from October 27, 2008, to February 3, 2009, and the two had met for therapy many years ago.   The letter was silent on mother's progress, if any, in therapy.⁶  In her own letter, mother stated she did everything that was required of her to get J. back, she does not understand why she was not given a chance to prove herself as a suitable parent, she can make sure her son is safe with her, the social worker abused her power, and mother should not have let the social worker lie to her.

On June 30, 2009, a hearing was held on mother's section 388 petition and the contested section 366.26 hearing was held.   Mother's therapist reported that, during the 14 weeks mother was enrolled in therapy in late 2008/early 2009, mother frequently missed appointments, refused to come in for her scheduled appointments, and tended to blame everyone else for what was happening to her.   Mother's visits were monitored except she was allowed unmonitored contact in maternal grandmother's home.   Prior to the termination of family reunification services on February 4, 2009, mother cancelled visits when she did not like the location or monitor.   After February 4, 2009, mother did not call to arrange any visits at all until February 27, 2009, visited four times in March, April, and June, and once in May. Most of these visits were the result of the Department's initiative as the Department was trying to strengthen family ties.   Mother's and maternal grandmother's behavior was characterized by an “unwillingness to travel to visitation, transport the child and provide for his basic necessities during the visitation.”   Maternal grandmother, who supported mother's section 388 petition, testified that mother lived with her and was not currently taking her medication, and had not taken it for the past year.   Mother testified she had not been involved in counseling since early in the case.   She stated she had not taken any medication since approximately December 2008 because her psychiatrist told her in 2008 she did not need to take it if she felt she was in control of her behavior.   She testified she controlled her behavior.   Mother testified she did everything she was supposed to do, and she did it without the social worker's help.   She was not currently working and was not attending Job Corps.   She testified that, after she was released from incarceration in March 2008, she controlled her temper, was never removed from placements because of her behavior, was not verbally abuse to social workers, and never refused to keep therapy appointments.   The E.'s had an approved adoptive home study to adopt J.J. was very attached to the E.'s, who were eager to adopt him.

The dependency court denied mother's section 388 petition.  “[T]here has not been a significant change in circumstances․  [T]here's been little progress made at all.  [¶] ․ [¶] ․ [T]he documentation ․ pretty overwhelmingly lays out the lack of progress that has been made in almost two years, which is how long this case has been in the system.  [¶] ․ [Mother] was released [from incarceration] well over a year ago and has not cooperated.  [¶] ․ [¶] ․ [M]other may have actually shown up for counseling, but I don't believe she benefited from it.   So I cannot find that there's a significant change in circumstances.   And even if there were, I would not be able to find it's in the best interests of the child to grant more reunification services.  [¶] This child has had multiple, multiple placements.   He's back with caretakers who came forward when they heard he was going to be moved again and volunteered their home.   And this child is a child that desperately needs stability.”

The dependency court then terminated parental rights, finding that any benefit of maintaining the parent-child relationship “is vastly outweighed by this child's need for stability.”

Mother timely appealed the June 30, 2009 orders denying her section 388 petition and terminating parental rights.

DISCUSSION

Denial of Mother's Section 388 Petition Was Not an Abuse of Discretion

Mother contends that the dependency court abused its discretion in denying her section 388 petition because there was evidence that supported the petition.   The dependency court did not abuse its discretion.

Under section 388,⁷ the dependency court should modify an order if circumstances have changed such that it would be in the child's best interests for the modification to be made.  (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 & fn. 5.) “Whether a previously made order should be modified rests within the dependency court's discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established.”   (In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.)   Abuse of discretion is established if the determination is not supported by substantial evidence.   (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 796.)   The party requesting the change of order has the burden of proof.  (Cal. Rules of Court, rule 5.570(h)(1);  In re Michael B., supra, at p. 1703.)

Once reunification services are terminated, the focus shifts from reunification to the child's need for permanency and stability, and a section 366.26 hearing to select and implement a permanent plan must be held within 120 days.  (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)   For a parent “to revive the reunification issue,” the parent must prove under section 388 that circumstances have changed such that reunification is in the child's best interest.  (Id. at pp. 309-310.)  “In deciding what services or placement are best for the child, time is of the essence.  ‘After reunification efforts have failed, it is not only important to seek an appropriate permanent solution-usually adoption when possible-it is also important to implement that solution reasonably promptly to minimize the time during which the child is in legal limbo․  Courts should strive to give the child [a] stable, permanent placement, and [a] full emotional commitment, as promptly as reasonably possible consistent with protecting the parties' rights and making a reasoned decision.’  [Citations.]  ‘It is undisputed that children require secure, stable, long-term, continuous relationships with their parents or foster parents.   There is little that can be as detrimental to a child's sound development as uncertainty over whether he is to remain in his current “home,” under the care of his parents or foster parents, especially when such uncertainty is prolonged.’  [Citation.]”  (In re Josiah Z. (2005) 36 Cal.4th 664, 674.)  “While [the up to 22[ ⁸ ] months that must pass before a section 366.26 hearing is held] may not seem a long period of time to an adult, it can be a lifetime to a young child.   Childhood does not wait for the parent to become adequate.”  (In re Marilyn H., supra, at p. 310.)

Mother does not argue the dependency court should have returned J. to her custody.   She contends she should have been awarded six more months of reunification services, on top of the 20 months she had already received.   However, the statutory cut-off for reunification services is the point in time 24 months after the child was originally removed from parental custody. (§ 361.5, subd. (a)(4).) ⁹  The 24-month period had expired in this case by the date of the hearing.   The dependency court properly considered the 24-month length of the dependency proceedings in denying mother's petition, as the statutorily authorized time period for ordering reunification services had expired prior to the section 388 hearing.

In any event, overwhelming evidence supports the conclusion that circumstances had not sufficiently changed to warrant finding further reunification services were in J.'s best interest.   When reunification services were terminated in February 2008, the following circumstances existed.   Mother had completed a parenting program but did not know how to utilize the skills she had been taught.   She had not significantly participated in therapy which she sorely needed.   She did not take her medications.   She was extremely volatile, aggressive, assaultive, threatening, defiant, uncooperative, and immature.   She refused to control her behavior, and instead, used her volatility and skill at behaving badly to manipulate.   She did not maintain a stable placement.   She refused to go to school.   She purposefully disrupted J.'s placements.   She took no responsibility for her situation.   She was in the process of enrolling in the Job Corps.   J.'s circumstances were characterized by extreme placement instability and upsetting visits with his biological family.

Not one of mother's circumstances had changed for the better by the time the section 388 petition was heard.   She continued having numerous failed placements, was out of control, and engaged in manipulative, violent, combative, destructive, defiant, and disruptive behaviors.   She was not in therapy, not taking her medication, and not in school or the Job Corps.   She took no responsibility for her circumstances.   J. was finally in a stable home that was committed to adopting him and where he was bonded with his caretakers.

Moreover, J.'s best interest required rejecting delay and proceeding expeditiously to the permanency and stability of adoption.   Mother had never provided him with a safe and nurturing home.   He had suffered through numerous moves from placement to placement, even though he was an adorable, healthy child whose foster parents all loved him.   In a permanent plan of adoption by the E.'s, J. would finally find stability and permanency that was long overdue and would no longer be subjected to the chaos and volatility that mother created in his life.   Denial of the section 388 petition was not an abuse of discretion.

Mother Forfeited the Contention that the Dependency Court Abused its Discretion in Failing to Review the Department's Denial of Maternal Grandmother's Criminal Convictions Waiver

Mother contends the dependency court abused its discretion in failing to review ASFA's denial of a waiver of maternal grandmother's criminal convictions.   The Department argues that mother forfeited the issue.   We agree.

ASFA's second determination denying a waiver was before the dependency court at the progress report hearing on March 4, 2009.   Based on this determination, the dependency court denied placement of J. with maternal grandmother.   Mother did not ask the dependency court to exercise its discretion to review the administrative determination.¹⁰  “Ordinarily, a [party] who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal.  [Citation.]  [No] ‘ “procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” ’   [Citations.]”  (In re Sheena K. (2007) 40 Cal.4th 875, 880-881;  In re Christopher B. (1996) 43 Cal.App.4th 551, 558 [“In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court;  otherwise those arguments have been waived and may not be raised for the first time on appeal.”].) As mother did request relief in the dependency court, she forfeited the contention that the dependency court failed to review the Department's denial of a waiver.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

FN2. Mother was born in 1991with drugs in her system.   She and her siblings were made dependents of the court and removed from maternal grandmother's custody.   Maternal grandmother violently attacked a social worker in 1991.   Mother was returned to maternal grandmother's custody and dependency jurisdiction was terminated in 2001.   The dependency court again took jurisdiction over mother in 2002 because of mother's “special and unique problems” which maternal grandmother could not handle.   The dependency court subsequently found that maternal grandmother physically abused mother by “unnecessarily whipping the child” and that mother engaged in aggressive, assaultive behavior such that maternal grandmother refused to allow mother to return to her home.   Mother had 47 placements before J.'s birth..  FN2. Mother was born in 1991with drugs in her system.   She and her siblings were made dependents of the court and removed from maternal grandmother's custody.   Maternal grandmother violently attacked a social worker in 1991.   Mother was returned to maternal grandmother's custody and dependency jurisdiction was terminated in 2001.   The dependency court again took jurisdiction over mother in 2002 because of mother's “special and unique problems” which maternal grandmother could not handle.   The dependency court subsequently found that maternal grandmother physically abused mother by “unnecessarily whipping the child” and that mother engaged in aggressive, assaultive behavior such that maternal grandmother refused to allow mother to return to her home.   Mother had 47 placements before J.'s birth.

FN3. Mother, in a violent rage, destroyed furniture, electronics, walls, and a door in her foster home..  FN3. Mother, in a violent rage, destroyed furniture, electronics, walls, and a door in her foster home.

FN4. Mother was under the joint supervision of the Department and the Department of Probation (delinquency court)..  FN4. Mother was under the joint supervision of the Department and the Department of Probation (delinquency court).

FN5. Pursuant to section 361.4, subdivision (d)(2), no child shall be placed in the home of a relative who has a criminal conviction, other than for a minor traffic violation, unless a criminal records exemption was granted by the county..  FN5. Pursuant to section 361.4, subdivision (d)(2), no child shall be placed in the home of a relative who has a criminal conviction, other than for a minor traffic violation, unless a criminal records exemption was granted by the county.

FN6. Mother had asked the therapist for a letter recommending J. be returned to her, but all the therapist was willing to provide was a letter stating the dates of service..  FN6. Mother had asked the therapist for a letter recommending J. be returned to her, but all the therapist was willing to provide was a letter stating the dates of service.

FN7. Section 388 provides in pertinent part that a parent “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․  [¶] ․ [¶] If it appears 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[.]”.  FN7. Section 388 provides in pertinent part that a parent “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․  [¶] ․ [¶] If it appears 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[.]”

FN8. Effective January 1, 2009, the maximum time that may pass before the section 366.26 hearing is held is 28 months from the date the child was originally removed from parental custody.  (See § 361.5, subd. (a)(4);  In re Marilyn H., supra, 5 Cal.4th at p. 310.).  FN8. Effective January 1, 2009, the maximum time that may pass before the section 366.26 hearing is held is 28 months from the date the child was originally removed from parental custody.  (See § 361.5, subd. (a)(4);  In re Marilyn H., supra, 5 Cal.4th at p. 310.)

FN9. Section 361.5, subdivision (a)(4) provides in pertinent part:  “court-ordered services may be extended up to a maximum time period not to exceed 24 months after the date the child was originally removed from physical custody of his or her parent or guardian if it is shown, at the hearing held pursuant to subdivision (b) of Section 366.22, 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.”.  FN9. Section 361.5, subdivision (a)(4) provides in pertinent part:  “court-ordered services may be extended up to a maximum time period not to exceed 24 months after the date the child was originally removed from physical custody of his or her parent or guardian if it is shown, at the hearing held pursuant to subdivision (b) of Section 366.22, 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.”

FN10. “[T]he juvenile court has jurisdiction to review the agency's denial of a criminal records exemption for abuse of discretion.”  (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1049.).  FN10. “[T]he juvenile court has jurisdiction to review the agency's denial of a criminal records exemption for abuse of discretion.”  (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1049.)