IN RE: ASHLEY T. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

I. INTRODUCTION

This is an appeal by the child, Ashley T., from a juvenile court order granting a Welfare and Institutions Code 1 section 388 petition.   The juvenile court reinstated reunification services to the child's mother, Lori W. (“the mother”).   We conclude that the stated grounds of the juvenile court for granting the section 388 petition constitute an order beyond the allowable scope of judicial discretion for reinstituting the provisions of reunification services to the mother.   The mother had never lived with the child who was three and one-half years old.   The juvenile court's decision was premised on the theory that the mother had recently begun to act in a more responsible fashion.   This changed circumstance finding on the scheduled date of the permanent plan hearing, under these circumstances, is not a proper ground for granting the section 388 petition.

II. BACKGROUND

On May 11, 2007 the department filed a section 300 petition on the child's behalf after she was taken into protective custody from her father, John T. (“the father”).   At the time the section 300 petition was filed, the child was three months old.   The mother was incarcerated on burglary charges.   The May 11, 2007 petition alleged the child was at risk from the father who:  had a history of drug abuse and mental and emotional problems including bi-polar disorder;  was under the influence of illicit drugs on May 3, 2007;  and had been hospitalized in October 2006 with a drug induced psychosis.   The petition was subsequently amended to include allegations the mother had extensive criminal substance abuse histories.

The detention report stated a department social worker responded to a referral regarding the father's conduct.   The father was appearing in superior court on an unrelated matter in April 2007.   The father had the child with him.   The father was filthy and behaving in an odd manner.   The father was hallucinating and swore at the judge.   While the father was having mental issues in the courtroom, he would not allow the paternal grandmother, Maria D., to assist him with the child.   A psychiatric emergency team was called in to assess the father but he did not meet the criteria for hospitalization.

After the assessment, the father left and returned in a motor home to the front of the paternal grandmother's home where he was staying.   The child was observed to be clean.   The mobile home was clean and had appropriate supplies and equipment to provide for the child's care and safety.

Children's Social Worker Liza Mutis spoke to Barbara Hollis, a member of the psychiatric emergency team regarding the father's assessment.   Ms. Hollis stated the father had a history of drug use and mental illness.   Ms. Hollis stated the father's behavior and failure to take his medication were causes for concern.   Ms. Hollis described the paternal grandmother as controlling.   The father stated the

paternal grandmother was an alcoholic and had been abusive to him when he was a youngster.   The father did not want the paternal grandmother involved in the team decision making meeting process.

The paternal grandmother stated the father's mental health issues interfered with his ability to adequately care for the child.   The father suffered from severe mental health issues including delusions, paranoia, schizophrenia and bipolar disorder.   The father stated he had epilepsy and anxiety disorder, which were being treated by medication.   The father did not regularly take the medication because it made him tired and “knock[ed] him” out.   Although the father initially agreed to undergo drug testing, he did not follow up, at one point stating it was an invasion of his privacy.   The father denied having a drug problem.   However, the father had a drug induced psychosis in October 2006, from the presence of methamphetamines, marijuana, and opiates.   The father also had a history of violent and psychotic episodes.   The father denied any history of domestic, criminal activity, or substance abuse.

The department detained the child after a team decision making meeting on May 8, 2007, which the father refused to attend.   A deputy sheriff had searched the father's mobile home about a week earlier.   The search was conducted due to the father's suspicious behavior.   The search revealed residue from methamphetamine and marijuana but not enough to test.   The father stated that someone else left the drugs there.

At the May 11, 2007 detention hearing, the father had been arrested on outstanding warrants.   The father was found to be the presumed father.   The mother, who was still incarcerated, was present at the hearing.   The juvenile court ordered the child detained, family reunification services and monitored visits for the parents.

In a report filed on June 19, 2007, the department reported the mother and the father each had a criminal history.   The mother had been released from custody on May 28, 2007.   The mother did not make herself available for an interview with the department or for drug tests.   The mother did contact the department regarding the child's placement.   However, the mother denied the father used drugs.

The mother had a criminal history which included:  child cruelty;  receiving stolen property;  being under the influence or in possession of a controlled substance;  hit and run with property damage;  deserting a child under the age of 14 with the intent to abandon;  theft;  and burglary.   The maternal grandmother, Katherine W., raised the child's two older siblings, who are now adults.   The older siblings were removed from the mother's care due to neglect.   But the mother ultimately reunified with them.   The mother subsequently left the siblings with the maternal grandmother who raised them until they were adults.   According to the maternal grandmother, the mother only cared for the two older children for about a month or two at the most.   The maternal grandmother also stated the mother had a history of abusing heroin and other drugs.

The father's mental health provider, Dr. Lauren Cheung, described him as a very loose, paranoid and disturbing adult.   Although initially cooperative, the father stated he was no longer willing to meet with department social worker.   Neither the mother nor the father had visited the child.   The father, purportedly speaking on behalf of both parents, stated they did not want arranged visits because they believed the child would be released to their care at a June 19, 2007 juvenile court hearing.   Both parents also declined to participate in a second team decision making meeting offer after the mother was released from jail on May 28, 2007.   According, to the social worker, “[The father] does not the wish to deal with the [department]” or have any type of meeting.

At the June 19, 2007 hearing, the parents indicated they wanted to be represented by the same attorney.   After pointing out the potential conflict issue from the dual representation, the juvenile court continued the matter to allow the parents to retain private counsel, who would be willing to represent both of them.   The parents ultimately were represented by separate counsel.

In a July 2007 interim review report, the department stated Dr. Cheung indicated the father was unstable and needed to be on medication.   The father, however, had no insight into his illness and was very inconsistent with his treatment.   The parents only visited the child once on July 12, 2007.   The parents arrived 30 minutes late.   The visit did not go well because of the father's behavior.   During the visit, the father referred to himself as “the Messiah.”   The father made derogatory remarks to the department's staff.   The paternal grandmother became upset and frustrated and left the room several times.   The paternal grandmother informed the new Children's Social Worker, Bonnie Franzie, that the father might not have taken his medication.   The father was saying strange things on the way to the visit.   The paternal grandmother subsequently recanted the claim.

Both parents were affectionate with the child.   But, at the end of the visit, the father stated that neither parent wanted to arrange further visits with the child.   Notwithstanding the father's statement, Ms. Franzle made efforts to schedule visits for the parents.   The parents declined an offer of one visit.   The parents scheduled a visit the following week.   But they cancelled the visit after the child had already arrived.

After a contested adjudication and disposition hearing on July 31, 2007, the juvenile court sustained the first amended petition.   The juvenile court found:  both parents had extensive substance abuse problems;  the father suffered from mental and emotional problems;  and the mother has an extensive criminal record.   The child was declared a dependent of the juvenile court and ordered to be suitably placed.   The department was ordered to provide family reunification services for both parents.   The mother was ordered to:  take a parenting class;  participate in substance abuse counseling with random drug testing;  and participate in individual counseling to address substance abuse and mental health issues.

Following the July 31, 2007 disposition hearing, the mother failed to comply with court orders regarding the case plan.   On September 25, 2007, the department reported the mother and the father resided in a mobile home but not at any specific address.   The department was unable to locate either parent.   The father came to the department for a drug test referral in August 2007.   But the father did not follow through with a test.   Neither parent has visited the child since the last court date.   The department noted that neither parent seemed “very motivated to work towards reunification” with the child.

For a six-month status review hearing on January 29, 2008, the department advised the juvenile court that the child had been placed with a maternal cousin, Tanya K. in November 2007.   The child still remained in Tanya's care and appeared emotionally stable.   The child turned to Tanya for comfort.   Tanya was willing to provide a permanent home for the child through adoption if the parents could not reunify with the youngster.

Neither parent made an effort to comply with court orders including missing all drug tests.   However, on January 4, 2008, both parents claimed they had completed all the requirements.   They stated they had been on vacation and wanted to see the child.

The parents visited the child on January 11, and 15, 2008, but arrived 20 to 30 minutes late for each visit.   The father complained during the visits and was argumentative with the social worker monitoring the visit.   The parents arranged to visit the child on her first birthday and then failed to appear.

The department recommended family reunification services be terminated and the child be adopted.   The report noted the parents had only visited the child three times since she was detained on May 8, 2007.   And, the child's everyday needs were being met by Tanya who wanted to adopt the youngster.   The department also attached letters from maternal relatives describing the mother's behavior while the child's two older siblings were growing up.   The relatives also described the mother's substance abuse history.

On January 29, 2008, the mother did not appear at the six-month review hearing because she was incarcerated after she was arrested on January 16, 2008 on a burglary charge.   The matter was continued to February 28, 2008 for a contested hearing.   For the February 28, 2008 hearing, Ms. Franzle reported the father appeared for only one of three on demand drug tests.   The test results indicated he had used amphetamines, methamphetamine and cannabis.   Neither parent had contacted the department since January 15, 2008.   The mother was arrested for burglary on January 16, 2008, and released on January 30, 2008.   The mother had not complied with the case plan at all.   The mother had never drug tested.   The mother had visited the child only once since the youngster was detained in May 2007.   On February 28, 2008, the matter was continued to March 13, 2008 because the mother was again incarcerated but was not transported from state prison to Los Angeles for the hearing.

On March 13, 2008, the department filed a section 388 petition to require that the paternal grandmother's visits be monitored.   On March 13, 2008, the juvenile court continued the matter to April 16, 2008, for a hearing on the department's section 388 petition.   The mother also had not been transported from Chowchilla State Prison.

On April 16, 2008, the department reported the father was visiting the child.   The visits were viewed as appropriate.   The father had positive drug tests for opiates and hydrocodone.   The mother had not tested at all.   The mother was not at the hearing on April 16, 2008, because she refused to be transported from Chowchilla State Prison to Los Angeles.   In addition, the mother would not execute a waiver of right to be personally present at the juvenile court hearing.   As a result, the mother's attorney, Rikka Fountain, was given specific instructions by the juvenile court to secure a waiver of personal presence:  “That's why I am going to instruct you, Ms. Fountain, to contact [the] mother.   Get a proper waiver.   A lot of times, incarcerated parents have no idea what they are waiving.   You need to contact her and tell her this is for a 21E hearing and give her what standard is for 21E hearing so we can proceed next time.”

On May 14, 2008, the department recommended the father continue to receive reunification services.   The department also recommended that the mother's reunification services be terminated.   On May 15, 2008, the juvenile court ordered continued reunification services for the father and terminated the mother's reunification services.   The juvenile court also granted the department's section 388 petition modifying the paternal grandmother's from unmonitored to supervised.

In July 2008, Children's Social Worker Kimberly Avery–Smith reported the father was actively participating in his case plan.   The father was enrolled in an anger management class and was receiving mental health treatment and counseling.   The father completed a parenting class.   The father was complying with the juvenile court's random drug testing order.   The father had routinely visited the child.   The department also recommended the paternal grandmother have unmonitored visits.

On July 15, 2008, the father argued the child should be returned to him.   The matter was continued to August 27, 2008, for a contested hearing.   At the contested hearing, the juvenile court ordered the reunification services continued for the father and set the matter for an 18–month review on February 26, 2009.

On February 26, 2009, the department reported the father had been convicted of arson on November 8, 2008, and sentenced to three years in prison.   The child remained placed with Tanya.   The child was being appropriately cared for by Tanya.   The child and Tanya had a loving bond.   The child appeared happy and comfortable in Tanya's presence at all times.   The father's last contact with the department and the child was on August 26, 2008.   Ms. Avery–Smith concluded:  the paternal grandmother's visits went very well;  the paternal grandmother demonstrated very appropriate parenting skills;  the child appeared to be very bonded with the paternal grandmother;  and the child laughed throughout the visits, which she appeared to enjoy.   According to the report, the mother was released from prison.   The mother then began visiting the child.   The mother did not interact with the child.   Rather, the mother sat back while the paternal grandmother interacted with child.   The child did not appear to know who the mother was.   The child's attention was focused on the paternal grandmother.

The department recommended a permanent plan of adoption for the child and identified Tanya as the prospective adoptive parent.   The department recommended the father's reunification services be terminated.   On February 26, 2009, the matter was continued to April 2, 2009, for the father to be brought in from the prison for his contested hearing.

On April 2, 2009, the father's counsel appeared at an uncontested hearing.   The juvenile court terminated family reunification services for the father.   The juvenile court noted the mother's termination services had been previously terminated.   The matter was set for a section 366.26 permanent plan hearing on July 30, 2009.

In July 2009, the department submitted a section 366.26 permanent plan assessment report prepared by Children's Social Worker Judy Thomas.   The department reported that the two and half year-old child was emotionally and mentally healthy.   The child was thriving in her prospective adoptive home.   An adoptive home study of Tanya had been completed and approved.   Tanya was very committed to adopting and providing the child with a safe, stable and loving permanent home.   The social worker's report states:  “[Tanya] loves the [child] and thinks of her as her own daughter.  [¶] ․ [The child] has developed a strong attachment to [Tanya] and thinks of her as her mother.”   The child was happy and meeting developmental milestones.   The report stated it was in the child's best interest to remain in the prospective adoptive parent's home and proceed with adoption.

After being released from prison in November 2008, the mother had consistently and regularly visited the child.   The mother acted appropriately during the visits and was attentive to the child's needs.   The child appeared to enjoy the visits and played with the mother the whole time.   The child transitioned easily from the visits with the mother back to her foster home.

On July 30, 2009, at the mother's request, the juvenile court continued the section 366.26 hearing to September 28, 2009, for a contested proceeding.   On September 8, 2009, the mother filed a section 388 petition.   The section 388 petition sought:  the return of the child to the mother's custody;  reopening reunification services;  and unmonitored visits for the paternal grandmother.   As an alternative, the mother suggested that visits with the child be monitored by the paternal grandmother.   On September 25, 2009, the mother filed a first amended section 388 petition.   The mother asserted that during and after incarceration, she addressed her mental health needs and completed court-ordered programs.   The mother contended it was in the child's best interest to grant the petition because they had developed a bond.   In addition, the child now had an eight-month-old younger brother.   The mother and the child's new sibling were both residing with the paternal grandmother.   The September 28, 2009 section 366.26 hearing was continued to October 14, 2009 because there was no available courtroom.

On October 1, 2009, the department filed a status review report.   The child appeared to be healthy and was doing well in her placement.   The child and Tanya appeared to share a very loving and bonded relationship.   Ms. Avery–Smith recommended the previously discussed plan of adoption be pursued.

The child was comfortable and happy in Tanya's presence at all times.   During the six month supervision period, the mother visited once a week for three hours.   The mother had cancelled some visits and was usually 10 to 15 minutes late.   The mother acted very appropriately during the visits.   The child enjoyed seeing the mother.   The paternal grandmother was present during the mother's visits.   The department relates, “The child ․ appears to be very fond of the [maternal grandmother] and immediately runs to her when the grandmother arrives for the visit.”   The paternal grandmother also brought the child's younger sibling to the visits.   The child looked forward to seeing the younger sibling and they appeared to have a good time playing with each other.

On October 14, 2009, the matter was continued to November 5, 2009, for the department to prepare a response to the mother's section 388 petition, which was set for hearing at the same time as the section 366.26 hearing.   The department was also ordered to supplement the section 366.26 report regarding the mother's visits.

On November 5, 2009, the department supplemented the section 366.26 report by adding the mother was usually present for the visits.   The mother cancelled a minimum of one visit per month.   Some months the mother cancelled two or more visits.   In response to the mother's section 388 petition, the department reported that the mother had completed anger management and parenting education in 2008 while she was incarcerated.   The mother did not show any significant progress in addressing her long drug abuse.   The mother provided two letters from her parole agent, Steven A. Preciado.   One letter stated the mother had tested nine times with negative results but had no dates.   The second letter had dates and listed three negative tests.   The mother had not provided any documentation showing she was participating in counseling to address her mental health issues.

At the hearing on November 5, 2009, the child's attorney, Kelly Parker, requested the child be assessed for therapeutic services because of “night terrors” and new issues with visits.   After taking the matter under submission, the juvenile court denied the mother's initial section 388 petition.   The juvenile court found:  the mother had been inconsistent in her visits with the child;  the mother had been out of prison for 10 months without completing a drug rehabilitation program;  and the mother had not made “any substantive progress” in complying with the reunification program.   The section 366.26 permanent plan hearing was continued to December 11, 2009.

On December 11, 2009, at Ms. Parker's request, the juvenile court ordered the child assessed for therapeutic services.   Ms. Parker stated that the child was having behavior issues especially after visits and during court hearings.   The behavior issues had apparently caused problems at her school.   The matter was continued to January 22, 2010, due to court congestion.

The section 366.26 hearing was subsequently scheduled to proceed on May 27, 2010.   However, on that date, the mother filed her second section 388 petition which is the subject of this appeal.   The second petition raised the same issues as the mother's first petition.   But the second petition contained more evidence of the mother's compliance with the case plan.   The mother submitted a declaration stating that she had been sober for over a year.   The mother provided letters from her parole agent indicating the mother had completed parole and provided 12 clean drug tests.   The mother also provided negative drug tests between January and May 2010.   The second petition requested:  return of the child to the mother's custody;  reopening reunification services;  or the mother and paternal grandmother to have unmonitored visits.   The mother asserted the modification would be in the child's best interests because they regularly visited and had a strong bond.   The child had a younger sibling who was living with the mother and the paternal grandmother.   The juvenile court continued the matter to June 29, 2010, for hearing on the permanent plan selection issue and the section 388 petition.

On June 29, 2010, in a Last Minute Information For The Court document, the department gave a progress report on the mother's visits.   Ms. Avery–Smith wrote that the mother had visited regularly and consistently over the past six months.   The mother had missed 5 to 6 of 25 scheduled visits.   The mother and the child had a loving bond.   The mother's parenting skills were adequate.   The child did not show signs of distress or discomfort during the visits.   The child did exhibit defiant behavior during the visits.   The child was also defiant in school and at home with the foster mother.

In response to the section 388 petition, the department reported that since being paroled in November 2008, the mother was making good progress in addressing her long drug abuse history.   Due to the mother's life changes, the department recommended that family reunification services be offered to the mother.   The department also recommended that the mother have monitored visits with discretion to liberalize.

The hearings on the matters were continued several times after June 2010.   On July 12, 2010, Ms. Parker objected to the reinstatement of the mother's family reunification services on the ground it was not in the child's best interests.   Ms. Parker argued:  the department's report did not adequately reflect how the mother's visits were affecting the child and the child's reactions to the visits;  the child's therapist stated the youngster has nightmares about being taken away from Tanya;  the child called Tanya “mom”;  the child's defiant and acting out behavior coincided with the mother's visitation;  the child was three and half years old and had been dealing with a dependency proceeding most of her life;  Ms. Parker asserted that it was not in the child's best interest to prolong the state of confusion and anxiety;  the mother also never visited the child without either the paternal grandmother or another adult present;  the mother also stated that she wanted two hour visits instead of three hour visits;  and this was because the mother could not handle any more time with the child.   Ms. Parker requested that the mother visit the child without another adult present to see how the visitation fared.   The juvenile court ordered the mother visit the child without another adult other than the monitor.   The matter was continued to August 30, 2010, and subsequently to September 14, 2010.

In a supplemental report for September 14, 2010, Ms. Avery–Smith noted the mother had visited consistently during the preceding nine months.   The mother missed 7 to 8 of 38 scheduled visits.   The visits were missed due to illness of the mother's medical or psychological appointments.   The mother interacted appropriately with the child.   The mother demonstrated good parenting skills and was very engaged with the child.   During some visits, the mother just wanted to lie down with the child and read a book or play with dolls.   On June 10, 2010, the child was lying on the mother in a very loving and bonded way.   The child did not want to leave when the visit was over.

On September 14, 2010, the sections 388 and 366.26 hearings were held.   The juvenile court first took up the section 388 petition.   Cynthia Leal, the child's therapist, was called to testify.   The child was referred to therapy for defiant behavior, difficulty sleeping, excessive crying, screaming and temper tantrums.   The child stated she had nightmares.   The child had been asked to be removed from one preschool due to physically aggressive behavior towards adults and peers.

Ms. Leal had weekly sessions with the child since March 2010.   The sessions usually occurred right after the mother's visits.   The child would say the visits were “good” but was “avoidant and quite hesitant” about talking about the mother.   Ms. Leal had not observed as much evasive behavior in other three-year-old children.   The child stated that she had nightmares and expressed the concern, “taking me away.”   Tanya and Ms. Leal observed that the child's defiant behavior and hyperactivity increased after visits.   However, Ms. Leal could not say that the mother's visits caused the behavior.   Ms. Leal had observed the child on three occasions when there were no visits.   The child seemed more mellow and quiet.   The child's behavior had improved overall since the therapy sessions began in March 2010.   The child was bonded to Tanya.   Also, the child called Tanya “mommy.”

The matter was continued to September 30, 2010.   In a status review report, the department continued to recommend adoption as the permanent plan for the child.   The mother missed a visit on September 17, 2010.   The mother's visits were appropriate and she demonstrated good parenting skills.

At the hearing on September 30, 2010, Tanya testified.   Tanya and the child were cousins.   The mother was Tanya's aunt.   The child called Tanya “mom or mommy.”   They had lived together since the child was 10 months old.   Tanya was asked, “Are you trying to keep [the child] away from her mother?”   Tanya testified in response:  “No. My intention was helping [the mother] to make sure that she got to see her kid.   I didn't want somebody to end up with her kid that we didn't know.”   Tanya spoke positively of the mother to the child:  “[W]e clarified to make sure ․ she knows she had two mommies, a mommy at home that loves her very much and a mommy that she visits with that loves her very much.”

The child was having nightmares and behavioral problems.   Tanya believed the behavioral problems coincided with the mother's increased visitation.   The child had nightmares about being taken away or not being able to live with Tanya anymore.   Tanya did not announce when the visits would occur.   This was because the child would have nightmares the night before the visit.   If the child knows about the visit, it was difficult getting her to leave the home.   The child would “melt” down, refuse to speak to anyone or freeze up if told about the visits.

The child was excited to see Tanya after the visits.   The child would run down the hall to meet Tanya.   The child was more “rambunctious” and “a little bit defiant” after visits.   The child had nightmares “pretty much every Friday” when the mother visited.

Ms. Leal told Tanya the child might be suffering from post traumatic stress and some attachment disorders issues.   The trauma might be due to the initial removal and the disruption of the child's life by starting visits after such a long time.

Tanya thought the mother could be a “really neat person” and a “really loving” parent.   However, Tanya did not believe the mother should have the child at present.

Tanya testified:  “I believe she shouldn't have her on a permanent basis right now.   I think she should have contact with her.   She's her kid․  I can't testify as to how she is now because she won't speak to me.   But I always remember her being a really neat person and really loving.   And I think she can be a really loving mom.”

At the conclusion of Tanya's testimony, the juvenile court conferred with counsel.   The juvenile court ordered that the mother have three-hour unmonitored visits with the child.   The mother was ordered to bring the child to Ms. Leal's office after the visits.   The department was ordered to submit a report on the visits for the continued hearing date of November 1, 2010.

On November 1, 2010, Ms. Avery–Smith reported that the weekly unsupervised visits began on October 1, 2010.   However, Ms. Leal was unable to see the child for the first two visits.   Ms. Leal saw the child on October 14, 2010.   The child was quiet and calm.   The child, according to Ms. Leal, appeared avoidant and hesitant to discuss the mother and the visit.   The child appeared hostile when the mother would prepare to leave.   The child also ignored the mother's presence and rejected the mother's affection.

At the November 1, 2010 hearing, the juvenile court announced its intent to grant the section 388 petition to reinstate family reunification services for the mother.   Ms. Parker asserted the mother might have shown changed circumstances but not that the modification was in the child's best interests.   The juvenile court explained that there were some issues of family discord.   However, the visits were going well and that was to be the starting point.   The juvenile court stated that Tanya's testimony about nightmares after every visit was not credible.   The juvenile court then explained:  “What would be the purpose of a [section] 388 [petition] unless the court can actually look a [t] a parent's rather late compliance with the case plan, turning her life around.   Hopefully she has, and hopefully she'll be able to demonstrate that to this court.”   The child appealed the order granting the section 388 petition.

III. DISCUSSION

Section 388 provides in part:  “(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself or herself 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 or in which a guardianship was ordered pursuant to Section 360 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 that are alleged to require the change of order or termination of jurisdiction ․ [¶] (d) If it appears that the best interests of the child may be promoted by the proposed change of order, ․ termination of jurisdiction, or clear and convincing evidence supports revocation or termination of court ordered reunification services, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to the persons and by the means prescribed by Section 386, and, in those instances in which the means of giving notice is not prescribed by those sections, then by means the court prescribes.”

The child was removed from the father's custody in May 2007 when she was about three months old.   At that time, the mother was incarcerated on burglary charges.   The mother was subsequently released from custody followed by back to back arrests in the early part of 2008.   The mother's reunification services were terminated in May 2008.   The mother was released from prison in November 2008 and began visiting the child.   On April 2, 2009, the juvenile court set the matter for a section 366.26 hearing in July 2009.   After the mother requested a contested section 366.26 hearing, the juvenile court continued the permanent plan hearing to September 2009.   In the interim, the mother filed her initial section 388 petition which was denied by the juvenile court.   The mother's appeal from the denial of her section 388 petition was subsequently dismissed.   During the numerous delays caused by court congestion and the two section 388 petitions, the mother continued to have visits with the child.   No doubt, the mother apparently stabilized her life during this time frame.   The parties do not dispute that the mother established changed circumstances.

But, the question raised by the child's appeal is the juvenile court abused its discretion in determining it was in the child's best interests to reopen the mother's reunification services.  (In re Jasmon O. (1994) 8 Cal.4th 398, 415;  In re Stephanie M. (1994) 7 Cal.4th 295, 317;  In re Marilyn H. (1993) 5 Cal.4th 295, 309–310;  In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.)   The mother's modification request must be viewed in the context of the dependency proceedings as a whole.  (In re Marilyn H., supra, 5 Cal.4th at p. 307;  In re Heather P. (1989) 209 Cal.App.3d 886, 891.)   As our Supreme Court explained:  “The requirement of petitioning the court for a hearing pursuant to section 388 to show changed circumstances must be viewed in the context of the dependency proceedings as a whole.  (Cynthia D. v. Superior Court [ (1993) 5 Cal.4th] 242, 253.)   Dependency proceedings are proceedings of an ongoing nature.   While different hearings within the dependency process have different standards and purposes, they are part of an overall process and ongoing case.   One section of the dependency law may not be considered in a vacuum.   It must be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.  (Dyna–Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386–1387.)”  (In re Marilyn H., supra, 5 Cal.4th at p. 307.)   After reunification services have been terminated, the court's focus has shifted to the needs of the child for permanency and stability.  (In re Zacharia D. (1993) 6 Cal.4th 435, 447;  In re Marilyn H., supra, 5 Cal.4th at p. 309.)   When the section 388 modification petition is filed after reunification services have been terminated and the section 366.26 selection and implementation hearing has been set, the juvenile court must recognize that the focus of the proceedings has shifted from the parent's interest in the care, custody and companionship of the child to the youngster's best interests.   (In re Stephanie M., supra, 7 Cal.4th at p. 317;  In re Janee J. (1999) 74 Cal.App.4th 198, 211.)

The juvenile court's order was based solely on the mother's changed circumstances.   We agree with the child that, under the circumstances, the juvenile court did not have the discretion to modify the order at this extraordinarily late stage of the proceedings based solely on the mother's changed circumstances.   A child's best interests and need for stability are not promoted by delays in the selection of a permanent home for child when there have been numerous failures to reunify with the child.  (In re Casey D. (1999) 70 Cal.App.4th 38, 47;  In re Edward H. (1996) 43 Cal.App.4th 584, 594;  In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)   Our Supreme Court has held, “Childhood does not wait for the parent to become adequate.”  (In re Marilyn H., supra, 5 Cal.4th at p. 310;  see In re A.S. (2009) 180 Cal.App.4th 351, 358.)   Nothing about this record shows it was in the child's best interests to reinstate reunification services because the mother ultimately showed progress during visitations.  (In re Stephanie M., supra, 7 Cal.4th at p. 317;  In re Marilyn H., supra, 5 Cal.4th at pp. 309–310;  In re Cliffton B. (2000) 81 Cal.App.4th 415, 423–424;  In re Casey D., supra, 70 Cal.App.4th at pp. 48–49.)

The child had been a dependent of the court since she was approximately three months old in May 2007.   At that time, the child was not living with the mother who was incarcerated.   The mother and the child have never lived together.   The child had been living with Tanya since the age of 10 months.   The mother's reunification services were terminated in May 2008.   The child did not even appear to know who the mother was when the visits began in November 2008.   The matter was initially set for a permanent plan hearing in July 2009.   A number of delays resulted in continued visits between the mother and the child.   The mother's first section 388 petition was filed in September 2009 which was 18 months after her reunification services had been terminated.   And, the child was almost four years old by the time the mother's reunification services were reinstated in November 2010.   While the child was not having visits, she was described by all accounts as happy and emotionally stable.   When the visits began with the mother, the child began to have difficulty about being taken away from the only home she had ever known.   The child's behavior after she began visiting the mother caused her to be removed from preschool.   The child began therapy after the mother began to visit consistently and regularly.   This child has waited over four years to have stability and continuity in her life.   Prolonging the proceedings solely on the basis of the mother's “late compliance” was an order beyond the allowable scope of jurisdiction available to a juvenile court bench officer.

IV. DISPOSITION

The order granting the section 388 petition is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

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.

ARMSTRONG, J. KRIEGLER, J.