In re Mia V.

Filed 5/23/08 In re Mia V. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed.

Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant Mother.

Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant Father.

Joe S. Rank, County Counsel, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.

Karen J. Dodd, under appointment by the Court of Appeal, for Minor.

Mother appeals from juvenile court orders denying her Welfare and Institutions Code section 388^[1]petition and terminating her parental rights to her two and one-half-year-old daughter, Mia. Father joins in mothers appeal and seeks reversal of termination of his parental rights in the event mother prevails on her appeal.

Mother contends the juvenile court failed to hold a proper evidentiary hearing on her section 388 petition and seeks remand to allow a full and fair hearing on her section 388 petition.

We conclude the trial court conducted a proper evidentiary hearing on mothers section 388 petition and mother forfeited any objection on appeal to the hearing by failing to object during the hearing. We thus affirm the juvenile court orders denying the section 388 petition and terminating parental rights.

1. Facts and Procedural Background

Several days before Mias birth in August 2005, mother was placed in a hospital intensive care unit due to complications with mothers heart. At the time of Mias birth, mother tested positive for phencyclidine (PCP). She also tested positive for methamphetamine three days before Mias birth. Mother admitted that she was addicted to methamphetamine and said that father also used methamphetamine.

Mother was advised at the time of her discharge from the hospital that she had a serious heart condition in which use of methamphetamine or illegal drugs could result in her immediate death.

Due to Mias premature birth and low birth weight, Mia remained hospitalized until her discharge 11 days after her birth. Mother was released from the hospital three days earlier.

Before mothers release, the hospital social worker discussed with mother her living arrangements and options upon mother and Mias release from the hospital. Mother, who had just turned 18 years old, said she had run away from home when she was 17 and moved in with her boyfriend, father, who was 30 years old. While living with father, mother became pregnant. Mother said she was currently living with Mias maternal grandmother and mothers brother in a single room at a motel. The social worker attempted to assist mother in enrolling in an inpatient drug rehabilitation program and was placed on a waiting list for the program.

At the time of Mias discharge, mother could not be located at the motel where she had said she was living. As a consequence, the Department of Public Social Services (DPSS) placed Mia in a foster home, where she remained throughout the juvenile dependency proceedings.

Shortly after Mias discharge from the hospital, grandmother called the DPSS and left a message asking if mother could pick up Mia. Grandmother said that she and mother had moved to another room at the same motel where they had previously been living.

On August 22, 2005, the DPSS social worker spoke to mother about the need to detain Mia and that mothers use of drugs could lead to heart failure. Mother provided fathers phone number, which the DPSS social worker called. Father acknowledged he had a criminal history and had been arrested for being under the influence. According to mother, father had five other children by other women. The children lived with their maternal grandmothers. The DPSS determined that father had four other children whom the court had declared dependents of the court in 2001, and with whom father failed to reunify successfully.

On August 23, 2005, the DPSS filed a juvenile dependency petition, alleging Mia came within section 300, subdivision (b), based on mother and fathers history of substance abuse and fathers criminal history. At the dependency hearing, the court ordered Mia detained.

At the jurisdiction/disposition hearing on October 24, 2005, the court declared Mia to be dependent, ordered her removed from her parents custody, denied father reunification services, and offered mother reunification services.

At the time of the six-month review hearing on April 17, 2006, Mia was still living with the same foster family. Mother had completed a parenting education program and had begun a 90-day in-patient substance abuse treatment program on March 3, 2006. She had been on a waiting list for the program since November 2005. The social worker noted that mother had been homeless and this could impede mothers ability to benefit from services offered. Mother had nevertheless visited Mia and her visits were appropriate. The court ordered that mother continue to receive reunification services.

The 12-month status review report filed in September 2006, stated that the social worker was notified in May 2006, that mother had left her in-patient treatment program. Mother claimed that she was going to enroll in an out-patient program but never did. Mothers visits with Mia were inconsistent, mainly due to mother being arrested for drug possession in July 2006 and robbery in September 2006.

Mother pled guilty to the drug related charges in August 2006, and was granted three years probation. Mother was told upon her release to enroll in a drug treatment program but she failed to do so. Shortly thereafter she was arrested and convicted of robbery. Mother anticipated being released from prison in June 2008.

At the 12-month review hearing in December 2006, the court terminated mothers reunification services and set a section 366.26 hearing (.26 hearing).

Meanwhile Mia remained with her foster family, with whom she had been living since 11 days after her birth. She was strongly bonded to her foster family and they wished to adopt her. Father had not visited Mia in more than a year. In April 2006, the court suspended his visits because they were detrimental to Mias well being. As of March 2007, mother remained incarcerated and had not visited Mia since August 16, 2006, according to the .26 hearing report.

On November 28, 2007, mother filed a section 388 petition requesting the court vacate the December 2006 order terminating reunification services. Mother claimed that her circumstances had changed in that, while incarcerated, she received her cosmetology certificate, completed a pre-GED test, was awaiting testing for the GED, and was on the waiting list for a parenting class. Mother also asserted that granting the section 388 petition was in Mias best interest because mother desperately wishes to reunify with her child and is attempting to utilize any means available, services and classes, to better herself for her child.

The trial court ordered the section 388 petition set for a hearing based on findings that the petition request might promote Mias best interest and the petition stated a change of circumstances or new evidence.

On December 17, 2007, the trial court held a hearing on the section 388 petition. Neither mother nor father was present. Mothers attorney argued that mother was attempting to become a responsible parent by the time of her release in June 2008. While in prison, she trained as a cosmetologist so she could find gainful employment upon her release and also was in the process of completing her GED. In addition, she completed a parenting course. Mothers attorney requested filing the certificate of completion and the trial court accepted it. Mothers attorney concluded by stating that mother desperately wanted to be part of Mias life and did not want her parental rights terminated.

The trial court denied mothers section 388 petition, noting that mothers eleventh-hour progress was insufficient to support a finding that it was in Mias best interest to grant mothers section 388 petition.

After denying mothers section 388 petition, the court conducted a .26 hearing and ordered mother and fathers parental rights terminated.

2. Hearing on Mothers Section 388 Petition

Mother contends the trial court failed to conduct a full and fair evidentiary hearing on her section 388 petition. We disagree.

First, mother forfeited this objection by failing to raise it in the trial court during the hearing on her section 388 petition on December 17, 2007. After the court ordered on November 27, 2007, a hearing on mothers section 388 petition, the court conducted the noticed hearing on December 17, 2007, during which all parties were permitted to argue and submit evidence on the petition. Attorneys for the DPSS, for the parents, and for Mia, were all present, and mothers, fathers and the DPSSs attorneys argued the matter. Mothers attorney also requested filing additional evidence, consisting of the parenting class certificate, which the court accepted. None of the parties requested to present testimony.

Generally, issues not properly raised at trial will not be considered on appeal. (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 15.) A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.] Forfeiture, also referred to as waiver, applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings. [Citations.] (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.)

At the time of the section 388 hearing, mother failed to object to any deficiencies in the hearing or the manner in which the trial court conducted the section 388 hearing. While mother complains the hearing was not a proper evidentiary hearing and thus the court merely summarily denied the petition without according mother her due process right to a full and fair evidentiary hearing, mother did not request to present any testimony or other evidence at the hearing, with the exception of a parenting class certificate. Mother and father were not even present to testify.

Had mother complained at the hearing that it was not a full and fair evidentiary hearing, the trial court could have considered and addressed her objection at that time. Mother thus forfeited the right to object on appeal to any deficiencies or improprieties in the hearing. (In re Dakota H., supra, 132 Cal.App.4th at pp. 221-222.)

Even if the doctrine of forfeiture does not apply, we would reject mothers claim that she was deprived of a proper evidentiary hearing on her section 388 petition. Section 388 provides, in pertinent part, that, Any parent . . . 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 . . . for a hearing to change, modify, or set aside any order of court previously made . . . . The petition shall be verified 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. [] . . . [] If it appears that the best interests of the child may be promoted by the proposed change of order . . . or termination of jurisdiction, the court shall order that a hearing be held . . . .

According to the express statutory language, a hearing is required if the section 388 petition alleges facts showing changed circumstances such that the requested modification would be in the best interests of the child. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.] (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)

Here, the trial court found mothers petition made a prima facie showing triggering the right to a full hearing and accordingly ordered the matter set for a hearing. The hearing was held on December 17, 2007. During the hearing, the court considered the petition, heard argument from all parties, permitted the submission of evidence if requested, and upon the parties submission on the matter, ruled on the petition. None of the parties requested to present testimony.

Under such circumstances, we conclude mother was afforded a full and fair evidentiary hearing on her petition. She had the opportunity to present evidence to do so, with the exception of the parenting class certificate of completion.

3. Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Richli

Acting P. J.

s/Miller

J.

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^[1] Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.