IN RE: BIANCA A. et al. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Lisa D. (mother) appeals, and the father of Marissa G., Steve A. (father) joins,¹ from orders of the juvenile court denying mother's petition pursuant to Welfare and Institutions Code section 388 ² and terminating parental rights to their children, Bianca A., Brianna A., and Marissa G. (children), pursuant to section 366.26.   Mother contends the denial of her section 388 petition was an abuse of discretion.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We set forth the facts and proceedings contained in the record.   The Department's June 4, 2008, detention report provided that Bianca A., and Brianna A., came to the Department's attention after the Department received an immediate child abuse response referral.   Bianca A. had a one and one-half to two inch long laceration on the left side of her head that was somewhat swollen and tender.   Bianca A. said that mother was mad at her for no reason and threw the telephone at her and hit her on the head.   Bianca A. also said that mother sometimes hit her with a belt, pushed her, and struck her on the back of the hand with mother's fist.

The detention report further stated that two years earlier—in June 2006—the Department had filed a petition under section 300, subdivisions (a), (b), (i), and (j), (prior dependency proceeding) alleging that on June 26, 2006, mother had been arrested and incarcerated for physically abusing Bianca A. Mother struck Bianca A.'s face with a telephone cord resulting in a three inch laceration, and on numerous occasions mother struck Bianca A. with mother's hands.   The Department also alleged that mother had a history of illicit drug abuse which rendered mother incapable of providing Bianca A. and Brianna A. with regular care and supervision.   Bianca A. and Brianna A. were detained in the prior dependency proceeding and placed in the custody of Michelle G., their maternal aunt.

At a June 4, 2008, detention hearing, the juvenile court detained Bianca A. and Brianna A. and placed them with Michelle G. The juvenile court provided mother with monitored visits with Bianca A. and Brianna A., and ordered the Department to provide mother with family reunification services, including substance abuse, anger management, and individual counseling to address case issues, and parenting education.

On July 22, 2008, the Department filed a jurisdiction/disposition report stating that in the prior dependency proceeding, Bianca A. and Brianna A. ultimately were returned to mother's custody, and jurisdiction was terminated over the proceedings in August 2007.   After the prior dependency proceeding had been terminated, Bianca A. said that mother continued to hit her, including with a stick;  struck her on the back causing bruises;  and pushed Bianca A. and Brianna A. against walls.   Bianca A. also said that mother used “a white thing, like powder, then they'd all go to the restroom together.   A lot of times.”   Thereafter, mother put the “stuff in my mom's closet․  They would act different, crazy.   It was scary․”

At the August 1, 2008, jurisdiction/disposition hearing, Bianca A. and Brianna A. were declared dependents of the juvenile court based on sustained allegations under section 300, subdivisions (a), (b) and (g) (current dependency proceeding).³  The sustained allegations against mother provided that in May 2008, mother physically abused Bianca A. by, inter alia, throwing a telephone at her, striking her head causing a bleeding laceration, and mother's physical abuse of Bianca A. endangered the physical and emotional health and safety of Bianca A. and Brianna A. The sustained allegations against mother also provided that mother had a current history of substance abuse, which rendered her incapable of providing Bianca A. and Brianna A. with regular care and supervision and endangered the physical and emotional health and safety of Bianca A. and Brianna A.⁴

At the jurisdiction/disposition hearing, the juvenile court ordered that custody of Bianca A. and Brianna A. be removed from mother and their father, Anthony A., and Bianca A. and Brianna A. be suitably placed.   The juvenile court declined to order that family reunification services be provided, but it allowed mother to have monitored visits with Bianca A. and Brianna A. The juvenile court set the matter for a section 366.26 hearing to select and implement a permanent plan.

From August through November 2008, the Department reported that mother had no contact with Bianca A., and only one contact—by telephone—with Brianna A. Bianca A. and Brianna A. loved Michelle G., and they expressed their desire to continue living with Michelle G. on a permanent basis.   Michelle G. remained committed to provide a stable, permanent home for Bianca A. and Brianna A.

At the November 26, 2008, section 366.26 hearing, the juvenile court identified adoption as the ultimate goal, ordered a current plan of legal guardianship, and appointed Michelle G. as the legal guardian for Bianca A. and Brianna A. The juvenile court set a further section 366.26 hearing for May 27, 2009.

On May 27, 2009, the Department filed an addendum report stating that the Department recommended that it not move forward on an adoptive home study for Michelle G. because of her history of mental health and domestic violence, but it did not impact Michelle G.'s ability to continue to care for Bianca A. and Brianna A. The juvenile court, therefore, took the May 27, 2009, section 366.26 hearing off calendar.

On August 5, 2009, the Department filed a detention report stating that mother admitted to substance abuse dating back about eight years, and abusing methamphetamine “off and on” for about a year.   The report stated that on July 29, 2009, mother said during the prior year she had been diagnosed with bipolar disorder, and since September 2008, mother had been taking medication which continued to be adjusted by her therapist.   Mother denied that she purposely injured Bianca A. during the incident leading to the current dependency proceeding.

The detention report stated that in April 2009, mother gave birth to Marissa A. Because the Department was concerned about leaving such a young baby in the care of mother who had been diagnosed with bipolar disorder and had a history of physical abuse, the Department took Marissa A. into protective custody.

At the August 5, 2009, detention hearing, the juvenile court ordered Marissa A. detained in shelter care.   At the August 10, 2009, progress hearing, based upon the Department's interviews with mother's doctors, the juvenile court ordered Marissa A. released to mother.

On September 3, 2009, the Department filed a jurisdiction/disposition report stating that mother said she used drugs in the past, and her drug of choice was marijuana, which she used sporadically since age 16.   On September 16, 2009, the Department filed a detention report stating that a law enforcement officer called the Department to report that mother made a false police report that father had kidnapped her.   The officer believed that mother minimized the seriousness of alleging that a kidnapping had occurred.   The officer was concerned about mother's mental stability and whether mother was capable of caring for Marissa A. The report stated that mother seemed incoherent.   Mother appeared not to remember anything that happened in connection with reporting to the police that father had kidnapped her, and denied that she told the police that she was being kidnapped.

On September 17, 2009, at a hearing on a motion pursuant to section 385, the juvenile court detained Marissa A. Marissa A. was placed in a foster home.   At the September 22, 2009, pre-trial release investigation hearing, the juvenile court ordered Marissa A. be placed with Michelle G.

On January 12, 2010, the Department filed a status review report stating that mother frequently failed to appear to visit the children as scheduled and failed to give notice of the cancellation of visits.   From October 2009 to January 2010, mother failed to visit the children 17 times, and never contacted the Department to request a “make up visit.”   Mother said she had missed the visitation sessions because she forgot or because she went shopping.   On January 29, 2010, the Department filed a status review report stating that mother had stopped visiting Bianca A. and Brianna A. altogether.

At the January 29, 2010, adjudication hearing, Marissa A. was declared a dependent of the juvenile court, based on allegations sustained under section 300, subdivision (b) that mother had a mental health diagnosis of bipolar disorder that periodically rendered mother incapable of providing regular care of Marissa A., and mother's mental health issues placed Marissa A. at current risk of harm.⁵  The juvenile court removed Marissa A. from the parents' custody, and ordered that she be suitably placed.   The juvenile court also ordered that the Department provide the parents with family reunification services, and ordered that the parents participate in parent education, individual counseling, and to comply with all psychiatric appointments and take psychiatric medication as proscribed.

On February 23, 2010, the Department filed a supplemental report stating that Michelle G. requested that the dependency case not be terminated because she wished to adopt Bianca A. and Brianna A. Michelle G. was advised that, due to changes in her life, it was possible that her home study would be approved.   At the February 23, 2010, section 366.3 post permanent plan review hearing, the juvenile court ordered the Department to assess Michelle G.'s desire to adopt Bianca A. and Brianna A. and, if Michelle G. was interested in adoption, to reinstitute an adoptive home study.

On April 30, 2010, the Department filed a last minute information stating that on March 17, 2010, the parents were arrested for drug-related charges, and at the time of their arrest had tested positive for methamphetamine.   Two weeks later, mother appeared to be under the influence of drugs during her visit with Marissa A. Mother's pupils were dilated, her hands and neck twitched, and she had difficulty keeping her eyes open and maintaining her balance.   When mother was asked if she had taken any drugs, mother responded aggressively—swearing, talking loudly, and waiving her arms.   Mother refused to take a drug test.   Father had to restrain mother from physically attacking the Department's social worker.   Mother later apologized for her behavior, but continued to refuse to be tested for drugs.

The last minute information also stated that on numerous occasions mother failed to appear for her scheduled visitations with Marissa A., and frequently cancelled the visits at the last minute, providing “poor excuses.”   Michelle G. stated she was interested in adopting all of the children, and the Department initiated an adoption home study for her.

At the April 30, 2010, progress report hearing, the juvenile court ordered that the Department had discretion to drug test the parents on demand, and advised the parents' counsel to inform their clients to cooperate with the Department.   On July 30, 2010, the Department filed a status review report stating that mother had not cooperated with the Department in her drug testing.   Mother stated she could not undergo the drug test because she did not have an identification card, but mother refused to cooperate with the Department in obtaining one.   Family members had reported that mother was using drugs.

According to the report, since mid-January, mother only visited with Marissa on two occasions, and mother had not visited Bianca A. or Brianna A. The children were happy and received excellent care from Michelle G. Bianca A. and Brianna A. loved Marissa A., and sometimes worried that Marissa A. would be returned to mother.   Michelle G. had amply demonstrated to the Department her commitment to care for and eventually adopt the children, and because her personal circumstances had changed and improved, it was anticipated that her home study would be approved.

On September 15, 2010, the Department filed an interim review report stating that mother failed to cooperate with the Department in her drug testing.   Mother failed to test for drugs in July through September, and stated that the reason was because she had lost her identification card.   The Department received a facsimile from Behavior Health Services stating that mother enrolled in a drug diversion program on August 26, 2010, with an anticipated completion date of December 7, 2010.

The report stated that Michelle G. said mother had not visited Marissa A. since May 18, 2010.   The children were “thriving in their current placement” with Michelle G.

At the September 15, 2010, review hearing, the juvenile court found that the parents were in partial compliance with the case plan, and the return of Marissa A. to the custody of the parents would create a substantial risk of detriment to her physical and emotional well being.   The juvenile court terminated reunification services and set the matter for a section 366.26 hearing to be held on December 1, 2010.

On December 1, 2010, the Department filed an interim review report stating that on November 30, 2010, Michelle G.'s adoption home study was approved, and the Department recommended termination of parental rights.   The Department also filed on December 1, 2010, a section 366.26 report stating that on November 23, 2010, mother completed her out patient drug diversion program at Behavior Health Services.

The section 366.26 report stated that mother's whereabouts were unknown.   Mother had been living with father in his parents' home, but father's parents evicted mother and father, and mother had not advised the Department of her current location or contact information.

The report also stated that Michelle G. said mother rarely called her or the children.   When mother did call it was late at night when the children were asleep, and mother only asked about Marissa A. Bianca A. and Brianna A. said they do not want to see mother.   Michelle G. was attentive to the children's needs.   The children were very happy living in Michelle G.'s home, and Michelle G. and the children had a close rapport.

On January 28, 2011, the Department filed a status review report stating that Michelle G. said that Bianca A. and Brianna A. were constantly asking her when Michelle G. would be adopting them, and Bianca A. and Brianna A. said that they were tired of social workers and court hearings.   Bianca A. said “I want this to hurry up,” and Michelle G., Bianca A., and Brianna A. cried when discussing the lack of resolution regarding Michelle G.'s adoption of the children.

The report also stated that Brianna A. wanted to be adopted by Michelle G., and said, “I love [Michelle G.] and I call her mom.   I don't call [mother] mom.   I call her ‘Lisa.’ I don't want to go with [mother].”   Bianca A. said that while she missed mother and “sort of” wanted to live with her, “more of me wants to be with [Michelle G.]” The Department had asked mother for her address, but mother responded that she did not have one.

On February 28, 2011, mother filed a section 388 petition requesting either the return of the children or the reinstatement of family reunification services and liberalized unmonitored visits with children.   Mother alleged that there had been a change of circumstances since being denied family reunification services, and the requested modification would promote the children's best interest, because she had completed drug, anger management, parenting courses, personal counseling sessions, and was complying with her psychiatric treatment and medication requirements.

On March 2, 2011, the Department filed an addendum report stating that Michelle G. said mother was “high” at her grandmother's funeral, and that mother “was sticking her tongue out like a lizard, was really abrupt with the children and answered her cell phone calls during the wake with a loud voice.”   Michelle G. said mother told her that mother attempted to participate in a half-way house but she left because she found that the rules were too restrictive.

On March 2, 2011, the juvenile court heard mother's section 388 petition and held the section 366.26 hearing.   The petition was denied, as mother did not prove circumstances had changed so as to warrant the granting of the petition, or that granting the petition would be in the children's best interest.

The juvenile court stated at the hearing that it believed it could not extend the reunification services since the statutory reunification period had expired.⁶  The juvenile court also stated mother had not established that the circumstances had changed because mother was supposed to be in a half-way house for sober living but she decided to leave because she believed that the rules were too strict.   The juvenile court said that the circumstances “may be changing but they haven't changed, in the court's view.”

The juvenile court further stated that, assuming arguendo that there were changed circumstances, mother had not established that granting the section 388 petition would be in the children's best interest.   The juvenile court stated that the children have formed a strong bond with Michelle G., their legal guardian, and Marissa A. had been in Michelle G.'s care “pretty much since birth.”   The juvenile court also said that because the children had previously been removed from, and thereafter unsuccessfully returned to, mother, it would not be in the children's best interest to again return them to mother.

At the section 366.26 hearing, the juvenile court terminated parental rights, finding the children were adoptable.   The juvenile court designated Michelle G. as the prospective adoptive parent.

DISCUSSION

A.  Standard of Review

The facts are not in dispute.   Mother's challenge to the order denying her section 388 petition is reviewed for abuse of discretion.   A section 388 petition “is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.”  (In re Jasmon O. (1994) 8 Cal.4th 398, 415–416;  In re B.D. (2008) 159 Cal.App.4th 1218, 1228 [“We review the grant or denial of a petition for modification under section 388 for an abuse of discretion”].)   “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.   When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’  [Citations.]”  (In re Stephanie M. (1994) 7 Cal.4th 295, 318–319.)   We will not disturb a juvenile court's decision as an abuse of discretion unless the juvenile court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.  (Id. at p. 318.)

B. Analysis

Mother contends that the juvenile court abused its discretion in denying her section 388 petition requesting the return of the children or in the alternative the reinstatement of family reunification services because there was a substantial change of circumstances and it would be in the children's best interest to continue their relationship with mother.   Mother also contends that the juvenile court abused its discretion because the juvenile court erroneously believed that as the statutory reunification period had expired,⁷ it did not have the discretion to reinstate family reunification services.   Because, as discussed post, mother had failed to establish that there was a change of circumstances or that the requested modification would promote the children's best interests, we do not reach the issue concerning the juvenile court's purported belief that it did not have the discretion to reinstate family reunification services.

Section 388, subdivision (a) permits anyone having an interest in a dependent child to petition the juvenile court for a hearing to change, modify, or set aside a previous order on the ground of changed circumstances or new evidence.⁸  If the petition shows changed circumstances or new evidence indicating that the proposed modification may be in the child's best interests, the juvenile court must hold a hearing on the petition within 30 days.   (Cal. Rules of Court, rule 5.570(e)-(g);  § 388, subd. (d).)  There is no contention here that a hearing was not held.   The party “requesting the change of order has the burden of establishing that the change is justified.  (In re Audrey D. (1979) 100 Cal.App.3d 34, 43 [160 Cal.Rptr. 802].)   The standard of proof is a preponderance of the evidence.  (In re Fred J. (1979) 89 Cal.App.3d 168, 174–175 [152 Cal.Rptr. 327].)”  (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.)

The current dependency action commenced because mother physically abused Bianca A. Mother, however, failed to take responsibility for the physical abuse of Bianca A. and contended it was merely an accident.   In addition, the juvenile court found true the allegations that mother had a history of substance abuse which endangered the physical and emotional health and safety of Bianca A. and Brianna A. Mother also admitted to substance abuse, including abusing methamphetamine, and had used marijuana since she was 16 years old.

Mother was also the subject of a prior dependency proceeding that commenced in June 2006, based on mother's history of illicit drug abuse.   Mother's drug abuse rendered her incapable of providing Bianca A. and Brianna A. with regular care and supervision, and mother had been arrested for physically abusing Bianca A. In that proceeding, Bianca A. and Brianna A. were detained from mother in August, 2006, but they were ultimately returned to mother's custody after mother had completed all the required court-ordered programs in the prior proceeding.   There was evidence that nonetheless, mother thereafter continued to abuse illicit drugs and to physically abuse Bianca A. and Brianna A.

More than 21 months after the commencement of the current dependency proceeding, mother was arrested on drug-related charges and tested positive for methamphetamine, and two weeks thereafter mother appeared to be under the influence of drugs during her visit with Marissa A. There was evidence that throughout the pendency of the current dependency proceeding mother refused to cooperate with the Department in undergoing drug testing, and as recently as July through September 2010, mother failed to test for drugs.   Prior to the juvenile court ruling on mother's section 300 petition mother left a half-way house for drug treatment because the rules were too strict.   The juvenile court reasonably could have inferred from these facts that mother had not been rehabilitated from her substance abuse problem.   The juvenile court did not abuse its discretion in finding that mother had not established a change of circumstances.

In addition, there was evidence that neither the return of the children to mother nor the reinstatement of family reunification services for mother would have been in the children's best interest.   The children have endured prolonged uncertainty about having a permanent home.   Bianca A. and Brianna A. had been detained since June 2008, and except for approximately 5 weeks, Marissa G. had been detained since August 2009.  “ ‘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.)   Time is of the essence when it comes to securing a stable, permanent home for children;  prolonged uncertainty is not in their best interest.  (Id.) “While [the 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. (1993) 5 Cal.4th 295, 310.)   The juvenile court did not abuse its discretion in finding that it would be detrimental to the children to continue to live with such uncertainty in their lives.

In addition, there was evidence that the children were bonded to Michelle G, happy in her care, had their needs met, and wished to remain with Michelle G. The children wanted to be adopted as soon as possible.   Generally, disrupting an existing psychological bond with caretakers is not in a child's best interest.  (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531.)   Although they may have loved and occasionally missed mother, Bianca A. and Brianna A. did not wish to visit her for much of the dependency proceedings, and they made it clear that they wished to remain with Michelle G. Mother had also only sporadically visited the children.

Evidence indicated that mother did not have a stable residence of her own.   On December 1, 2010, the Department reported that mother's whereabouts were unknown because mother's father and mother-in-law evicted her, and on January 28, 2011, mother said she did not have an address to provide to the Department.

The juvenile court did not abuse its discretion in concluding that the circumstances had not changed since mother was denied reunification services, and granting mother custody or granting mother family reunification services—thereby delaying in a decision to provide the children with a permanent home—was not in the children's best interest.   Denial of mother's section 388 petition was not an abuse of discretion because it was not arbitrary, capricious, or patently absurd.  (In re Jasmon O., supra, 8 Cal.4th at p. 415;  In re Stephanie M., supra, 7 Cal.4th at pp. 318–319.)

DISPOSITION

The juvenile court's orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. Father makes no independent argument of error by the juvenile court..  FN1. Father makes no independent argument of error by the juvenile court.

FN2. All statutory references are to the Welfare and Institutions Code, unless otherwise indicated..  FN2. All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

FN3. The allegations under section 300, subdivision (g), and one of the paragraph allegations under subdivision (b), were asserted exclusively against Bianca A.'s and Brianna A.'s father, who is not a party to this appeal..  FN3. The allegations under section 300, subdivision (g), and one of the paragraph allegations under subdivision (b), were asserted exclusively against Bianca A.'s and Brianna A.'s father, who is not a party to this appeal.

FN4. The allegations under section 300, subdivision (a), sustained against mother, provided that, “In May 2008, the children, Bianca A[.] and Brianna [A.]'s mother ․ physically abused the child, Bianca [A.], by throwing a telephone at the child, striking the child's head and inflicting swelling and a bleeding laceration to the child's head.   On numerous prior occasions ․ mother struck the child's body with belts and with ․ mother's fists.  [M]other pushed the child.   Such physical abuse of the child, Bianca [A.], by ․ mother was excessive and caused the child unreasonable pain and suffering.   Such ongoing physical abuse of the child, Bianca [A.] by ․ mother endangers the child's physical and emotional health and safety and places the child and the child's sibling, Brianna [A.], at risk of physical and emotional harm, damage, danger and physical abuse.”The allegations under section 300, subdivision (b), sustained against mother, provided that, “The children, Bianca A[.] and Brianna A[.]'s mother ․ has a current history of substance abuse which renders ․ mother incapable of providing the children with regular care and supervision.  [M]other abused alcohol in the child Bianca [A.]'s presence.  [M]other's abuse of substance endangers the children's physical and emotional health and safety, creates a detrimental home environment and places the children at risk of physical and emotional harm and damage.”.  FN4. The allegations under section 300, subdivision (a), sustained against mother, provided that, “In May 2008, the children, Bianca A[.] and Brianna [A.]'s mother ․ physically abused the child, Bianca [A.], by throwing a telephone at the child, striking the child's head and inflicting swelling and a bleeding laceration to the child's head.   On numerous prior occasions ․ mother struck the child's body with belts and with ․ mother's fists.  [M]other pushed the child.   Such physical abuse of the child, Bianca [A.], by ․ mother was excessive and caused the child unreasonable pain and suffering.   Such ongoing physical abuse of the child, Bianca [A.] by ․ mother endangers the child's physical and emotional health and safety and places the child and the child's sibling, Brianna [A.], at risk of physical and emotional harm, damage, danger and physical abuse.”The allegations under section 300, subdivision (b), sustained against mother, provided that, “The children, Bianca A[.] and Brianna A[.]'s mother ․ has a current history of substance abuse which renders ․ mother incapable of providing the children with regular care and supervision.  [M]other abused alcohol in the child Bianca [A.]'s presence.  [M]other's abuse of substance endangers the children's physical and emotional health and safety, creates a detrimental home environment and places the children at risk of physical and emotional harm and damage.”

FN5. The sustained allegations also provided that father was currently unable to provide Marissa A. with the necessities of life, thereby placing Marissa A. at current risk of harm..  FN5. The sustained allegations also provided that father was currently unable to provide Marissa A. with the necessities of life, thereby placing Marissa A. at current risk of harm.

FN6. The juvenile court stated that, “Well, court would note that this time around that it has been two years and nine months from the time that the older children were detained and approximately one year and four months from when Marissa was detained.   I know that there may be some inconsistency or perhaps some confusion in the case law or in the courts of appeal regarding whether—when the time for reunification period in the statute is expired.   Which is:  for a child under the age of three, could be six months;  and for a child over the age of three, a year, and in some instances extended at the court's discretion.  [¶] Whether at a 388 court could even consider extending reunification services in a case such as this.   While it probably is within the court's broad discretion, it's my view that it's inconsistent with the law and the general scheme of dependency when the children require and statutorily are obligated to have permanency as soon as possible, that the court will extend reunification services in the hope that mother could establish her bond with these children or establish a bond with these children to a point where we could return them.   So it is the court's view and, I think, the better view in terms of the viewing of the overall dependency scheme, that at a point where we're past or way past the statutory time for reunification, that the court could even consider extending reunification services.   So I don't think I'd do that.   So the only issue is whether—at that particular point the court will even consider:  either denying the 388 or returning.   I think that's the only—the court's only option.”.  FN6. The juvenile court stated that, “Well, court would note that this time around that it has been two years and nine months from the time that the older children were detained and approximately one year and four months from when Marissa was detained.   I know that there may be some inconsistency or perhaps some confusion in the case law or in the courts of appeal regarding whether—when the time for reunification period in the statute is expired.   Which is:  for a child under the age of three, could be six months;  and for a child over the age of three, a year, and in some instances extended at the court's discretion.  [¶] Whether at a 388 court could even consider extending reunification services in a case such as this.   While it probably is within the court's broad discretion, it's my view that it's inconsistent with the law and the general scheme of dependency when the children require and statutorily are obligated to have permanency as soon as possible, that the court will extend reunification services in the hope that mother could establish her bond with these children or establish a bond with these children to a point where we could return them.   So it is the court's view and, I think, the better view in terms of the viewing of the overall dependency scheme, that at a point where we're past or way past the statutory time for reunification, that the court could even consider extending reunification services.   So I don't think I'd do that.   So the only issue is whether—at that particular point the court will even consider:  either denying the 388 or returning.   I think that's the only—the court's only option.”

FN7. Section 361.5, subsection (a)(1), provides in pertinent part that, “Family reunification services, when provided, shall be provided as follows:  [¶] (A) Except as otherwise provided in subparagraph (C), for a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was three years of age or older, court-ordered services shall be provided beginning with the dispositional hearing and ending 12 months after the date the child entered foster care as defined in Section 361.49, unless the child is returned to the home of the parent or guardian.  [¶] (B) For a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was under three years of age, court-ordered services shall be provided for a period of six months from the dispositional hearing as provided in subdivision (e) of Section 366.21, but no longer than 12 months from the date the child entered foster care as defined in Section 361.49 unless the child is returned to the home of the parent or guardian.  [¶] (C) For the purpose of placing and maintaining a sibling group together in a permanent home should reunification efforts fail, for a child in a sibling group whose members were removed from parental custody at the same time, and in which one member of the sibling group was under three years of age on the date of initial removal from the physical custody of his or her parent or guardian, court-ordered services for some or all of the sibling group may be limited as set forth in subparagraph (B).  For the purposes of this paragraph, ‘a sibling group’ shall mean two or more children who are related to each other as full or half siblings.”Section 361.5, subsection (a)(3), provides in pertinent part that, “Notwithstanding subparagraphs (A), (B), and (C) of paragraph (1), court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent or guardian if it can be shown, at the hearing held pursuant to subdivision (f) of Section 366.21, 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.”.  FN7. Section 361.5, subsection (a)(1), provides in pertinent part that, “Family reunification services, when provided, shall be provided as follows:  [¶] (A) Except as otherwise provided in subparagraph (C), for a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was three years of age or older, court-ordered services shall be provided beginning with the dispositional hearing and ending 12 months after the date the child entered foster care as defined in Section 361.49, unless the child is returned to the home of the parent or guardian.  [¶] (B) For a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was under three years of age, court-ordered services shall be provided for a period of six months from the dispositional hearing as provided in subdivision (e) of Section 366.21, but no longer than 12 months from the date the child entered foster care as defined in Section 361.49 unless the child is returned to the home of the parent or guardian.  [¶] (C) For the purpose of placing and maintaining a sibling group together in a permanent home should reunification efforts fail, for a child in a sibling group whose members were removed from parental custody at the same time, and in which one member of the sibling group was under three years of age on the date of initial removal from the physical custody of his or her parent or guardian, court-ordered services for some or all of the sibling group may be limited as set forth in subparagraph (B).  For the purposes of this paragraph, ‘a sibling group’ shall mean two or more children who are related to each other as full or half siblings.”Section 361.5, subsection (a)(3), provides in pertinent part that, “Notwithstanding subparagraphs (A), (B), and (C) of paragraph (1), court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent or guardian if it can be shown, at the hearing held pursuant to subdivision (f) of Section 366.21, 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.”

FN8. Section 388, subdivision (a) provides in pertinent part that, “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.”.  FN8. Section 388, subdivision (a) provides in pertinent part that, “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.”

TURNER, P. J. ARMSTRONG, J.