Aaron L. v. Super. Ct.

Filed 6/19/08 Aaron L. v. Super. Ct. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Aaron L. challenges by writ petitions the juvenile courts March 2008 decision to set a Welfare and Institutions Code section 366.26 hearing regarding his daughter C.G. He claims that the juvenile court erred in failing to hold a contested post‑permanency planning placement review hearing, in scheduling a new permanency planning hearing, and in denying his Welfare and Institutions Code section[1]388 petition without an evidentiary hearing. Aaron also contends that the juvenile courts May 2007 permanency planning order improperly delegated decisions regarding visitation to the legal guardian, resulting in an interruption in his visits for a two-month period in the fall of 2007. Finally, he maintains that the juvenile court erred in failing to appoint counsel to represent him prior to or immediately after an August 2006 paternity test established that he is C.s biological father, rather than waiting until just before his release from prison in February 2007. We reject his contentions and deny his petitions.

I. Background

C. was born in March 2004. C. was detained and placed in a foster home in November 2005 after C.s mother, Miranda G., was arrested for physically abusing C. Miranda initially identified Jose C. as C.s father. Joses whereabouts were initially unknown. The November 2005 section 300 petition identified Jose as C.s alleged father. The petition did not name Aaron or contain any allegations regarding him. Paternity testing thereafter excluded Jose as C.s father. In December 2005, Miranda identified Aaron as C.s possible father, but she did not immediately provide the Department with a last name, birthdate or any other information about Aaron.

Miranda gave birth to Isaiah G. in January 2006. Aaron is not Isaiahs father. A section 300 petition was thereafter filed with regard to Isaiah. Isaiah was immediately placed with Mirandas godmother.

A jurisdictional and dispositional hearing was held for C. in February 2006. The social workers jurisdictional/dispositional report recommended that the court provide reunification services to Miranda and deny reunification services to the alleged father, Aaron (last name unknown). The case plan was to reunify C. with Miranda.

The petition was amended to allege that Miranda had identified Aaron (last name unknown) as C.s father and that [t]he whereabouts, interest in, and ability of Aaron to care for C. are currently unknown. The court found that [t]he whereabouts and full identity of the alleged father are unknown. Aaron (last name unknown), who is claimed to be C.G[.]s father, is not a statutorily presumed father of the child, and he is not entitled to reunification services because no court has declared that he is the childs biological father [Sec.361.5 (a)] and because the provision of services to him would not benefit the child. Visitation with the child by the alleged father, as set forth in the report of the court social worker, would be detrimental to the child.[2] The court denied reunification services to Aaron unless and until his identity and whereabouts becomes known.

Mirandas godmother told the social worker that she was willing to provide a home for C. and ultimately to adopt her. On February 13, 2006, C. was moved from her initial foster home placement to Mirandas godmothers home.

Aaron, who was incarcerated in state prison for a possession of a controlled substance conviction, was first notified of C.s existence in June 2006, and he immediately requested a paternity test. Aaron also apparently made unsuccessful attempts to contact the Department.

The six-month review hearing was held on July 21, 2006. Aaron, who remained incarcerated, was notified of this hearing, but no attorney was appointed to represent him.

An August 2006 paternity test determined that Aaron is C.s biological father. Aaron immediately contacted his mother and asked her to request that C. be placed with her until he was released from prison in February 2007. In the meantime, Aaron apparently arranged with Miranda for weekly telephone calls between Aaron and C.

Aaron was notified of an oral review hearing that was held on October 18, 2006. At this hearing, the Department informed the court that [C.s] father, Mr. [L.], was found, through child support; hes incarcerated, but he did do the paternity test, and we are trying to locate the paternity test results. The social worker interjected: Everybody received the paternity test results in September, except me. The social worker also noted that Aarons mother had been visiting C. Miranda said that Aaron was due to be released in February 2007, and she provided a copy of the paternity test results to her attorney.

The Department did not file the paternity test results with the court until December 2006. At that time, Aaron remained incarcerated in state prison.

Aaron, who remained in prison and unrepresented by counsel, was notified of a scheduled January 2007 12-month review hearing at which the Department was recommending that Mirandas reunification services be terminated. Aarons mother had been visiting C. one to two times a week during Mirandas visits, and she had requested separate visits. The Department was recommending monthly supervised visits for Aarons mother. Aarons mother had asked the Department to consider her as a placement for C. The Department did not want to do so because C. has been in her current placement for 11 months and has established a strong bond with her caregiver. C. was also strongly attached to her half-brother Isaiah, who was also placed with Mirandas godmother. Miranda had decided to voluntarily relinquish Isaiah so that her godmother could adopt him.

At the scheduled January 2007 12-month review hearing, the court continued C.s 12-month review hearing for six weeks to give Miranda a final opportunity to show that she might be able to reunify with C.[3] At the January hearing, Aarons mothers attorney told the court that he was going to be filing a section 388 petition seeking placement of C. with Aarons mother. Mirandas attorney suggested to the court that we need an attorney for [Aaron] at this time. The court appointed Richard West, who was not present but had previously represented Jose C., to represent Aaron. In January 2007, C. had an overnight weekend visit with Aarons mother.

Aarons mother filed a section 388 petition in February 2007 requesting placement of C. with her. Aarons mother owned a four-bedroom home and a business, and she was willing to provide a permanent placement for C. Many members of her extended family, including many children, lived in the local area. She had contacted the Department in September 2006, as soon as she learned of the paternity test results, to request visits and consideration as a placement for C. Aarons mother began visiting C. in September 2006 with Mirandas consent, but her repeated calls to the Department regarding placement were not returned. C. had developed a relationship with Aarons mother and with her extended family. Mirandas mother supported Aarons mothers request. The Departments sole reason for opposing Aarons mothers placement request was: Since C. was in a concurrent placement long before [the paternity test results established that Aaron is her father], it was unnecessary for the Department to consider the paternal grandmothers request for placement. The Department asserted that it would not consider that request unless it was necessary to change C.s placement.

Aaron was released from prison on parole on February 1, 2007. He attended the February 2 hearing on his mothers section 388 petition. West was not present, but Mirandas counsel stated that she was appearing for West on behalf of Aaron. Aarons mothers attorney asked for an evidentiary hearing. The Department conceded that Aarons mother is a wonderful human being, but it considered this irrelevant as it was not planning to change C.s placement. The matter was taken under submission.

Aaron immediately began visiting C. on a weekly basis, and his mother continued to have frequent visits with C.

The continued 12-month review hearing was held on March 2, 2007. Aaron was present for the hearing, and was represented by West. West submitted the matter after stating that Aaron was simply requesting that he be given an opportunity likewise . . . . The court declared that Aaron is C.s father, but did not order visits for him. His mothers visits were continued. Mirandas reunification services were terminated, and a permanency planning hearing was scheduled for May 18, 2007.

On March 12, 2007, Aaron filed a request for appointment of counsel to represent him. On March 23, 2007, Susan Sutton was appointed to represent Aaron in place of West, who had declared a conflict.

In March 2007, C.s attorney filed a letter from Mirandas godmother in which Mirandas godmother stated, among other things, that C. had told her that she did not want to visit Aaron and that she was afraid of him.

On April 17, 2007, Aaron filed a section 388 petition seeking reunification services. He asked the court to vacate the scheduled permanency planning hearing and to hold a jurisdictional/dispositional hearing for him. Aarons petition detailed his efforts to establish a relationship with C. Aaron had been having two eight-hour visits with C. each week for the last three months. The Departments opposition to Aarons petition was based on its argument that he was simply an alleged father who was not entitled to reunification services. It asserted that provision of services to Aaron would not benefit C. because there was only a month left before the expiration of the 18-month period. While it is understandable that [Aaron] wishes to develop a relationship with C., his effort comes too late.

On April 27, 2007, the court held a hearing on Aarons petition and Aarons mothers petition. The court noted that there were only three weeks left in the maximum reunification period. C.s attorney acknowledged that theres a rich, growing relationship [between Aaron and C.] at this time. He believed that services to the father could benefit my client. But in three weeks, you know, Im not sure what he can accomplish. The court found that it would not be in C.s best interests to extend services to Aaron, and denied Aarons petition. The court also denied Aarons mothers petition. The court emphasized the stability of C.s placement and the fact that she was placed with her half-brother Isaiah. The court directed the Department to continue the current visitation schedule for Aaron and his mother, and encouraged it to increase that visitation at the discretion of the department.

The social workers report for the May 2007 permanency planning hearing recommended that Mirandas godmother be appointed C.s legal guardian. Mirandas godmother was not currently willing to adopt C. because she believed that Miranda was on a course to reunify with C. She would be willing to adopt C. if reunification did not occur within another year.

Aaron had been visiting with C. twice a week for two-hour supervised visits, and the social worker recommended moving to unsupervised visits at the discretion of the caregiver. C. responds well to the visits with her father and seems to be comfortable with him. She calls him daddy, and plays openly with him. Since his location and identification as the father of C., Aaron [L.] has maintained regular visitation and contact with the minor, C. would benefit from continuing the relationship with her father, and such benefit would outweigh the benefits the child would receive from adoption. The social worker concluded that Aaron seems motivated to fully comply with his parole, seek and maintain employment, and assume responsibility of [C.], although he was not in a position to parent her at this time. The case plan provided that Aaron would have unsupervised visits with C. [a]t least once or more each week.

Aaron was represented by Sutton at the May 2007 permanency planning hearing. The court selected legal guardianship as C.s permanent plan, and Mirandas godmother was appointed C.s legal guardian. The court also designated a court appointed special advocate (CASA) for C. The court found that visitation between Aaron and C. would not be detrimental to the child. However, the courts visitation order stated: The father may have visitation with the child. The frequency, time, place, for any such visits by the father shall be arranged by the guardian. A review hearing was set for November 30, 2007.

Aaron, Miranda, and Aarons mother subsequently had weekly unsupervised and overnight visits with C. [C.] responded well to these visits and has developed positive connections with the adults. Letters of guardianship issued on August 29, 2007.

On August 29, 2007, C.s legal guardian (the guardian) abruptly terminated Aarons visits with C. A few days later, after an allegation that Aaron had sexually abused C. was determined to be unfounded, Aarons visits were reinstated. However, on September 13, 2007, the Department informed Aaron that his visitation had been terminated.

On September 27, 2007, Aarons attorney met with the social worker, her supervisor, the Departments attorney, Aarons mothers attorney, and C.s attorney. The Departments attorney said that it was out of the Departments hands that the court order lets the guardian to [sic] determine all visitation. The social worker said that she was going to send the case to the adoption unit, as the guardian had informed the social worker that she now wished to adopt C.

Aaron was not permitted to visit with C. between September 13 and November 16 except for a single supervised visit with C. in October at her preschool.

On October 29, 2007, Aaron filed a request that the court reinstate unsupervised visitation. At the November 2, 2007 hearing on his request, the court initially said it was inclined to at this point perhaps to give an opportunity for an evidentiary hearing on the issue of the level of visitation that would be best for [C.]. . . . The court later said that it wanted all counsel to communicate with C.s therapist to somehow try to work this out and we can have a further discussion in two weeks and then at that point if there needs to be further setting and actually take testimony and with a request that there be some modification to the orders, we can do that. [] But . . . Im inclined to believe that the orders are probably appropriate with [the guardian] being the one, as the guardian, in a position to establish the visitation. The court set another hearing for November 16, 2007. In the interim, the court modified the visitation order to reflect that visitation between [C.] and [Aaron] will be arranged by the guardian in consultation with [C.s therapist]. At Aarons counsels request, the court provisionally schedule[d] an evidentiary hearing regarding visitation for January 11, 2008. But Im hoping that we can vacate that when we reconvene in two weeks.

C.s CASA submitted a report on November 13, 2007. The CASAs report favored placing C. with Aaron. As soon as Aaron found out that he was [C.s] biological father, he has been doing as much as he is allowed to, to show the court that he is a loving and devoted father to his child. He has been taking parenting classes, following up with visitations, hiring his own attorney, attending court hearings, claiming more time to spend with his daughter, etc. I have been able to observe the father and grandmothers interactions with [C.]. I can say that both, Aaron and Irma [Aarons mother], share a strong love for [C.], they are devoted to her and [C.], to some level, feels this. She shows love and trust towards her father and grandmother. [C.] is playful with them, smiles a lot and she will sit on their laps and/or give them hugs without hesitation. When [C.] is with them, she just seems very happy; enjoying herself in their company. She would have the best of two worlds if she is given to her father or grandmother . . . . The CASA noted that the guardian was very controlling and uncooperative with Aaron and Irma. Their visiting rights are being underminded [sic] by [the guardian]. I feel [C.] would be best served if full custody is given to the grandmother and/or father.

At the November 16, 2007 hearing, Aarons counsel explained that the guardian was unwilling to allow anything more than a single two-hour supervised visit per month. Aarons counsel was seeking one day a week unsupervised during the day. The court commented: What Im hearing is that everyone feels that more contact with [Aaron], more contact with his mother would be appropriate and in [C.s] best interest. [] I think the question really seems to be how to get there and according to what time frame. Im trying to give all those people an opportunity to come to an agreement, develop a relationship and decide what visitation and contact is in [C.s] best interest. If that cant be achieved, I can have an evidentiary hearing, and I, who have never met [C.], can make those decisions.

The court made an interim visitation order. I think once a month is, in my view too little . . . . [I]t would be in [Cs.] best interest to have some more frequent contact. I would like to see that [C.] have [supervised] contact in person on a weekly basis with either [Aaron] or his mother or both. [] Thats what I would like to see happen on an interim basis until we can get to something more detailed. But Im convinced thats in [C.s] best interest. Aaron immediately resumed weekly visits with C.

The social workers report for the November 30, 2007 placement review hearing did not recommend any change in placement, custody or status. She noted that the guardian had informed her that C. had often been exhausted and poorly behaved after visits prior to September 2007. Her behavior had improved when the visits were suspended. The interactions between the adults have been problematic. There have been many accusations made in regards to the care of [C.] and this behavior can only be stressful for [C.] as she is caught in the crossfire. [] [C.] needs stability in her young life. While it remains in her best interest to have permanent connections with her biological relatives, it is imperative that [C.] know and recognize a permanent home. The social worker recommended that visitation continue, but be less frequent. She stated that the visits should be based on the childs emotional well being and should be at the discretion of the caregiver. The social worker recommended that adoption be selected as C.s permanent plan now that the guardian was willing to adopt her.

A letter from the guardian dated November 21, 2007 was attached to the social workers report. In this letter, the guardian stated her belief that the visits with Aaron and his mother were disruptive to C.s schedule and behavior. The guardian also sent an ex parte letter to the court dated November 30, 2007 in which she complained about the CASAs initiation of discussions with her about Aarons visitation schedule. She stated her belief that the CASA has a[n] agenda for the family of Aaron and asked that the CASA be dismissed from this case.

At the commencement of the November 30, 2007 hearing, the court noted that it had received and considered the social workers report and had received a November 30 letter from the guardian that it had not reviewed. The court said that it would not consider this letter at this hearing. Aaron submitted proof that he had completed two parenting courses. He requested a contested hearing, and the court continued the matter to January 11, 2008 for a contested review hearing and for a hearing regarding Aarons visitation. The court clarified that the interim visitation order required a meaningful visit of one to three hours each week.

On January 7, 2008, Aaron filed a request for a continuance of the scheduled hearing so that it could be heard in conjunction with the section 388 petition that he intended to file.

The CASA submitted a second report on January 8, 2008. She opined that the bond between C. and Aaron was continuing to grow.

On January 9, 2008, the social worker submitted additional letters from the guardian, her respite care provider, C.s therapist, and others. The letters from the guardian again complained about the CASA and attempted to refute the CASAs statements in the CASAs November report.

On January 10, 2008, Aaron filed a section 388 petition. He asserted that he had made many positive changes in his life and had deepened his relationship with his daughter. Aaron had obtained fulltime employment, and rented a four-bedroom house with a fenced yard. He had completed two parenting courses. Aaron was due to be discharged from parole in March 2008, and he had been drug tested and found to be drug-free. Aaron claimed that he was ready to have C. placed in his custody. He asked the court to order an evidentiary hearing so that the Father may present evidence to the court in support of his petition.

The court continued the January 11, 2008 hearing to January 18 to allow the court to review all of the information that had been submitted. The Department submitted two more letters from the guardian.

On January 17, 2008, Aarons mother filed a section 388 petition in which she asked the court to either grant Aarons petition or place C. with her.

On January 18, 2008, the court continued the hearing because it had decided that an attorney should be appointed to represent the guardian. It continued the hearing to February 6, 2008 for further hearing and the setting of an evidentiary hearing. On February 6 the hearing was again continued because the attorney appointed to represent the guardian had a conflict. A different attorney was appointed, and the hearing was continued to February 13, 2008 for further hearing, the setting of an evidentiary hearing, and consideration of the section 388 petitions.

Aaron continued to have weekly supervised visits with C. On February 13, 2008, the guardian submitted another letter to the court. She asserted that the weekly visits were too much for C. and I As her guardian [should] be able to back them off, but due to the court order, I cant.

At the February 13, 2008 hearing, the court noted that it was not permitted to read ex parte letters from the guardian. The court said: Were going to have contested hearings. Well have contested hearings. All parties agreed that the court could read a letter from the guardian about visitation dated February 12. However, Aarons counsel objected to the court considering the letter as evidence because Aaron had not had the opportunity to respond to it. The court heard a limited amount of argument from the attorneys about how the visitation schedule had been working. The Departments attorney asserted that if the Department maintains visits, then theyre reduced to once a month . . . , just because . . . we have to use our limited resources for families that are in the reunification process.

The court made a new interim visitation order. Pending -- its here for a 388 modification and setting of that hearing. Right. Pending the conduct of that hearing, Im going to set a schedule for visitation between the grandmother, Ms. M[.], and the father at the Department of Social Services once a month. Okay. Because I just dont -- based on what I have heard, I dont think its fair to either [the guardian] or [C.] to have all these adults -- my sense is that everybody is pulling her in different directions. . . . Im sure -- my guess is we are going to end up litigating this issue, and Im not foreclosing anybodys right to present any further evidence . . . . [] . . .  And I think the visits should be joint visits. The court ordered that Aaron and his mother would have a two-hour visit every month on a Tuesday morning.

The court set the next hearing for February 29, 2008. Aarons counsel reminded the court that the contested review hearing had never been held. She suggested that the court combine the contested review hearing with the hearing on the section 388 petitions. She asked the court if it was still going to delay ruling on the 388 petition. The court said [y]es, and Mirandas attorney interjected [t]hats a setting for that? The court replied: Right. My guess is its going to be a contested hearing. It then said [y]ou all agree on that? and Aarons counsel responded I think so.

On February 14, 2008, the Department filed its response to Aarons section 388 petition. It asserted that Aaron was not entitled to an evidentiary hearing because he had not alleged how placement with him would be better for C. than her continued placement with [the guardian] and [Isaiah, who had been adopted by the guardian].

On February 22, 2008, Aaron filed a motion for reconsideration of the courts new interim visitation order.

At the outset of the February 29, 2008 hearing, the court addressed Aarons reconsideration motion. Aarons counsel asserted that we have not had a chance to even challenge the guardians representations regarding visitation. The court responded: Everybody in this case has challenged everything about this case since the very, very beginning. So I have no doubt that were going to have all kinds of contested hearings. Im not going to change that order based on any information I have at this point. So your request is denied. Aarons counsel asked for a statement of decision, and the court explained its reasoning. My reasons for doing it is that my feelings are that this child is being pulled in different directions by [the guardian], by the grandmother, by [Aaron], and I dont think thats right. And I dont -- I also dont think its right, based on the amount of time that [the guardian], based on the letter that she sent and the information that I had, the amount of time that she has spent trying to accommodate [Aaron] and the grandmother in visitation. I just dont think thats fair. (Italics added.) When Aarons counsel challenged the courts consideration of the guardians hearsay statements in her letter as true, the court said it was considering those statements [o]nly for the aspect of how much time and effort [the guardian] has put into making [C.] available for visitation with her father and her grandmother. When Aarons mothers attorney tried to argue further, the court cut her off and said: If you all cant tell that Im getting very impatient with the group of you collectively on this case, youre not very perceptive.

Aarons mothers attorney suggested that the court set the section 388 petitions for an evidentiary hearing so that there would be an opportunity to test the evidence . . . . The court said I agree with you completely . . . . The court suggested that the hearing on the section 388 petitions is going to take at least three to four hours. Aarons mothers attorney countered that the hearing was probably going to take several days, Your Honor. The Departments attorney repeatedly stated that the petitions did not merit a hearing. The court said: This case will be on my calendar one week from today for me to review the [section 388] petitions . . . . That will be for me to review the previously submitted documentations, and also, if necessary, to set a hearing date, and I totally expect that we probably will be. The court set the next hearing for March 7, 2008. Aarons counsel asked the court to set a hearing on Aarons section 388 petition, and the court said Ill set that next week for a hearing, if I decide its appropriate.

At the beginning of the March 7, 2008 hearing, the court entertained argument from Aarons mothers attorney and Aarons counsel on whether each of their section 388 petitions contained a prima facie showing that justified an evidentiary hearing. The Departments attorney argued that neither of them had shown changed circumstances. The court found that Aarons mother had not shown changed circumstances and denied her petition. As to [Aaron] . . . , its a little bit different because there have been some changes, at least in his life, with regard to parenting classes and trying to achieve those skills. But based on everything that I have read, including the last court report that was filed for the November hearing . . . based on what Ive read, I think the visits have been detrimental to [C.], because of her reaction to whats going on, and quite frankly, the fathers unhoned parenting skills, if you will. My comments regarding visitation are based upon the last court report that was received into evidence by this Court in the November hearing, the social workers report. I think it would be detrimental to [C.s] well-being to change the permanent plan. The court denied Aarons petition on that basis. Aarons counsel said: Your Honor, I would like to speak on [Aarons] behalf in regards to this Courts orders. The court responded: No. The court then set a section 366.26 hearing for June 27, 2008.

The courts written order made a finding that Aaron has not made substantive progress toward alleviating or mitigating the causes necessitating placement of the child in foster care. It also found that visitation between Aaron and C. would not be detrimental to the child. The courts order stated that [t]he frequency, time, place, and supervision for any such visits by the father shall be arranged by the Legal Guardian.

The court subsequently re-calendared the case for March 19, 2008 on its own motion because at the time of the last hearing [on March 7], I thought that Judge Grover back in -- at the November date, had received the court report into evidence and based her findings on that, and after reviewing the file . . . I determined that that was not the case. Aarons counsel argued that an evidentiary hearing should be held. [W]e do have evidence we would like to put it on, that indicates to us very strongly that Aaron is not going to have much contact with C. after this case if the -- if the Court does not at least let us put on our hearing. The court reiterated its denial of Aarons petition. I dont think that there has been a sufficient change to, one, justify modifying the permanent plan; and, No. 2, I dont think it would be in [C.s] . . . best interest to change the permanent plan. The court reset the section 366.26 hearing for July 2, 2008.

Aaron filed a timely notice of intent to file a writ petition, and he has filed a timely writ petition and a supplemental petition.

II. Discussion

A. Failure to Hold Contested Placement Review Hearing

Aaron contends that the juvenile court erred in failing to hold a contested section 366.3 post-permanency planning review hearing at his request.

Subdivisions (a), (b), and (c) of section 366.3 apply to children in legal guardianships, while subdivisions (d), (e), (g), and (h) of section 366.3 apply to children in long term foster care. ( 366.3.) The cases cited by both Aaron and the Department are inapposite because each of those cases involved a post-permanency planning hearing for a child in a permanent plan of long term foster care rather than legal guardianship. (In re Josiah S. (2002) 102 Cal.App.4th 403 [long term foster care]; In re Kelly D. (2000) 82 Cal.App.4th 433 [long term foster care]; Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138 [long term foster care]; In re Heather P. (1989) 209 Cal.App.3d 886 [long term foster care].) The cases cited by the parties involved the provisions of section 366.3, subdivisions (d), (e), (g), and (h). Those provisions are inapplicable here. Subdivisions (a), (b), and (c), which apply here, do not contain the requirements that were at issue in the cases cited by the parties.

We therefore turn to the provisions of the applicable subdivisions of section 366.3. Subdivision (a) provides, in relevant part: If a juvenile court orders a permanent plan of adoption or legal guardianship pursuant to Section 360 or 366.26, the court shall retain jurisdiction over the child until the child is adopted or the legal guardianship is established, except as provided for in Section 366.29. The status of the child shall be reviewed every six months to ensure that the adoption or legal guardianship is completed as expeditiously as possible. ( 366.3, subd. (a).) Subdivision (b) applies only where dependency jurisdiction has been dismissed after the establishment of the legal guardianship, which was not the case here. Subdivision (c) provides, in relevant part: If, following the establishment of a legal guardianship, the county welfare department becomes aware of changed circumstances that indicate adoption may be an appropriate plan for the child, the department shall so notify the court. ( 366.3, subd. (c).)

The applicable provisions of section 366.3 require that a review hearing be held every six months to ensure that the legal guardianship is quickly established and to permit the Department to notify the court of a change of circumstances that indicates that the permanent plan should be changed to adoption. Unlike the provisions regarding the review hearing for a child in foster care, the provisions regarding the review hearing for a child in a legal guardianship do not require the court to consider the parents progress in alleviating the cause for the childs removal. (See 366.3, subd. (e)(7).)

Since the sole purpose of a section 366.3 hearing where a legal guardianship has been established is to permit the Department to notify the court of a change of circumstances, the only issue that could conceivably be contested at such a hearing would be whether there had been such a change of circumstances that justified a change in the permanent plan to adoption. Aarons request for a contested hearing had nothing to do with the basis for the change of circumstances (the guardians decision that she wished to adopt C.). Consequently, the juvenile court did not err in failing to hold a contested review hearing.

Aaron also contends that the court abused its discretion in continuing the guardianship and setting a new permanency planning hearing. He claims that there was no evidence of changed circumstances. As we have already pointed out, the sole issue at the post-permanency planning placement review hearing, after the legal guardianship had been established, was whether changed circumstances merited a new permanency planning hearing to consider adoption as the permanent plan. Here, the guardians decision that she wished to adopt C. was a change of circumstances that merited a new permanency planning hearing. The juvenile court did not abuse its discretion in continuing the guardianship and setting a new permanency planning hearing on this basis.

B. Failure to Hold Evidentiary Hearing on Aarons Section 388 Petition

Aaron contends that the juvenile court abused its discretion in denying his section 388 petition without holding an evidentiary hearing.

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 petitioners relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction. ( 388, subd. (a).) 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 . . . . ( 388, subd. (c).)

Section 388 petitions are to be liberally construed in favor of granting a hearing to consider the parents request. [Citations.] The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310 (Marilyn H.).) However, [t]he prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).) Under section 388, a juvenile court is not required to order a hearing on a section 388 petition simply because the petition alleges a change of circumstance; a hearing is required only [i]f it appears that the best interest of the child may be promoted by the change sought by the petition. (Zachary G.,at p. 806.) And the juvenile courts decision need not be premised solely on the allegations of the petition. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189 (Justice P.).)

We must uphold the juvenile courts ruling unless it was an abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460 (Angel B.); In re Anthony W. (2001) 87 Cal.App.4th 246, 250; Zachary G, supra, 77 Cal.App.4th at p. 808; Justice P., supra, 123 Cal.App.4th at pp. 190-191.) 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. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 (Stephanie M.), internal quotation marks omitted.)

The question before us is not whether we believe that Aaron should have been accorded a hearing on his petition. Our role is solely to determine whether the juvenile court abused its discretion in concluding that Aaron had failed to make a prima facie showing that C.s best interests would be promoted by removing her from the guardians custody and placing her in Aarons custody.

After the termination of reunification services, the parents interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point the focus shifts to the needs of the child for permanency and stability (In re Marilyn H., supra, 5 Cal.4th 295, 309), and in fact, there is a rebuttable presumption that continued foster care [or guardianship] is in the best interests of the child. (Id., at p. 302.) A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (Stephanie M., supra, 7 Cal.4th at p. 317.) To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification. (Angel B., supra, 97 Cal.App.4th at p. 465.)

[A] primary consideration in determining the childs best interest is the goal of assuring stability and continuity. [Citation.] When custody continues over a significant period, the childs need for continuity and stability assumes an increasingly important role. [Citation.] That need often will dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. [Citation.] Thus, one moving for a change of placement bears the burden of proof to show, by a preponderance of the evidence that there is new evidence or that there are changed circumstances that may mean a change of placement is in the best interest of the child. [Citations.] [] This is a difficult burden to meet in many cases, and particularly so when, as here, reunification services have been terminated or never ordered. After the termination of reunification services, a parents interest in the care, custody and companionship of the child is no longer paramount. [Citation.] Rather, at this point, the focus shifts to the needs of the child for permanency and stability. (Angel B., supra, 97 Cal.App.4th at p. 464.)

Aaron needed to overcome the rebuttable presumption that continued care by the guardian was in C.s best interest. The factual and procedural history of this case supports, rather than rebuts, the presumption that C.s placement should not be changed. Four-year-old C. is in a stable placement with the guardian. This placement permits C. to live with her younger brother, with whom she has become closely bonded, and who has been adopted by the guardian. The guardian has permitted visitation between C. and Aaron, Aarons mother, Miranda, and other relatives, and she is committed to an open adoption that will ensure continued contact between C. and her biological relatives. In contrast, Aaron only learned of C.s existence when C. was two years old, and he first met her when she was almost three years old. Although he had been able to forge a relationship with C. through visits during the following year, he has never been C.s primary caretaker.

While Aaron has clearly undertaken to acquire parenting skills and to otherwise create an environment in which he would be capable of parenting C., and he has made substantial, admirable, and successful efforts to build a bond with C., the juvenile court could reasonably conclude that, despite Aarons efforts, given the factual and procedural history of this case, C.s best interests would be impeded by ending her stable placement with the guardian. It was undisputed that C. had been living happily with the guardian and with her brother for more than half of her young life. The juvenile court could have concluded that terminating this stable placement would be contrary to C.s best interests in light of C.s indisputable bond with her brother and the benefits to her of remaining in a place she had come to regard as her home. The juvenile court could reasonably conclude, even without an evidentiary hearing, that C.s best interests favored protecting her bond with her brother and her stable placement rather than building a stronger bond with Aaron. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 531-532.) On this basis, the juvenile court could have concluded that a hearing was not necessary on Aarons petition.

As this conclusion does not exceed the bounds of reason, we find no abuse of discretion in the juvenile courts denial of Aarons petition without a hearing. This holding should not be misunderstood. The fact that we find no abuse of discretion in the juvenile courts denial of Aarons section 388 petition does not mean that Aaron has no further options. He is free to file another section 388 petition prior to the section 366.26 hearing in which he may be able to make a stronger showing based on a change of circumstances or new evidence.

C. Delegation of Visitation Discretion

Aaron complains that the juvenile courts May 2007 order erroneously delegated to the guardian the courts authority to set visitation. However, the validity of that order is not before us in this proceeding.[4] [A]n unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) Nor may such a final order be attacked in a writ petition challenging a subsequent order. (Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1396.) Aaron did not appeal from the juvenile courts appealable May 2007 order, so he may not attack its validity in this writ proceeding.

D. Failure to Appoint Counsel For Aaron Earlier

Aaron challenges the juvenile courts failure to appoint counsel to represent him prior to its appointment of his current counsel in March 2007.

[A]n alleged father is not entitled to appointed counsel or reunification services. [] Due process for an alleged father requires only that the alleged father be given notice and an opportunity to appear and assert a position and attempt to change his paternity status. (In re Paul H. (2003) 111 Cal.App.4th 753, 760, internal citations and quotation marks omitted.) Until Aaron was determined to be C.s biological father in August 2006, he was merely an alleged father, and was not entitled to counsel or reunification services. After he was determined to be C.s biological father, Aaron could only obtain reunification services if he could establish that services would be in the best interest of the child. (In re O. S. (2002) 102 Cal.App.4th 1402, 1410.)

Aaron was not entitled to counsel prior to the determination that he was C.s biological father, and the record before us does not support Aarons claim that the Department unreasonably delayed locating him and conducting the paternity test. Aaron claims that the Department knew his identity in March 2006, but the record contains no support for this claim. The record reflects that the Departments initial contact with Aaron occurred in June 2006, and there is no basis in the record for concluding that this initial contact was anything other than promptly initiated after the Department learned his identity. The paternity test occurred within a reasonable time thereafter.

At the point that Aaron was determined to be C.s biological father, Aaron remained in prison. Aaron has failed to demonstrate that, even if he had been appointed counsel in August 2006, his counsel would have been able to establish that it was in C.s best interest to provide him with reunification services. Two-year-old C. had been in a stable placement for six months when Aaron was determined to be her biological father, and he was in prison and in no position to assume custody of her. He was not scheduled to be released for another six months, and, given C.s tender age and the limited reunification period, his prospects for reunification appeared extremely unlikely.

The juvenile court provided Aaron with appointed counsel prior to his release from prison when it appointed West to represent Aaron in January 2007. Aaron was represented by counsel at every hearing after his release from prison. The record before us simply does not support Aarons claim that the provision of counsel at any earlier point would have influenced the outcome. Accordingly, he was not prejudiced by the courts failure to appoint counsel prior to January 2007.

III. Disposition

The writ petitions are denied.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Bamattre-Manoukian, Acting P.J.

_____________________________

Duffy, J.

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[1] Subsequent statutory references are to the Welfare and Institutions Code unless otherwise specified.

[2] There was no information in the social workers report about Aaron as his identity was unknown.

[3] At that point, the social worker was recommending termination of parental rights and adoption. However, the Departments attorney suggested at the hearing that the Department would probably make the permanent plan . . . legal guardianship which would give [Miranda] an opportunity down the road to change and regain custody. The social worker subsequently changed her recommendation from adoption to legal guardianship.

[4] The juvenile courts order was erroneous. A juvenile courts visitation order that delegates the courts authority to set visitation to the legal guardian is an abuse of discretion where the order leaves every aspect of visitation, other than supervision, to the discretion of the legal guardian. (In re M.R. (2005) 132 Cal.App.4th 269, 274.) The [juvenile] court may delegate authority to the legal guardian to decide the time, place, and manner in which visitation will take place, but may not delegate to the legal guardian the authority to decide any other aspect of visitation. (In re M.R., at p. 274, italics added.)

The juvenile courts May 2007 visitation order improperly delegated to the guardian the authority to set the frequency and length of Aarons visits with C. As a result, Aaron received just a single visit during a two-month period beginning in mid-September 2007. His visits were restored by court order on November 16, 2007.