In re N.T.

Filed 12/17/09 In re N.T. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Imperial County, Juan Ulloa, Judge. Affirmed.

April V. and Jorge T. appeal a judgment terminating their parental rights to their minor children, N.T. and Delilah T. (together, the minors), under Welfare and Institutions Code section 366.26.[1]

April contends: (1) because she was a minor, the court committed reversible error when it did not appoint her a guardian ad litem; (2) the court erred when it denied April reunification services for N.T.; (3) the court abused its discretion when it did not place the minors with their paternal grandmother; and (4) the court erred by summarily denying her section 388 petition for modification seeking to have the minors returned to her custody, or alternatively, further reunification services. April further contends, in a separate "Application for Constructive Filing of Notice of Appeal" (Application), that the court did not inform her of her right to seek appellate review after the court terminated services at a July 21, 2008, disposition hearing. Jorge argues that the court erred by denying his section 388 petition for modification seeking placement of the minors with their paternal grandmother. Jorge further joins in April's arguments. We affirm the judgment and deny the Application.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2007 then 10-month-old N.T. became a dependent of the juvenile court under section 300, subdivision (b) and was removed from parental custody based on findings Jorge and April exposed her to drugs. April was 15 years old and Jorge was 18 years old at the time a petition was filed on behalf of N.T.

According to the detention report filed by the Imperial County Department of Social Services (Department), drug tests showed N.T. had been exposed to drugs on a continual basis while she lived in the home of her paternal grandmother, along with her parents. Specifically, N.T. tested positive for marijuana, methamphetamines and amphetamines. Drug tests further showed that Jorge had tested positive for cocaine, methamphetamines and marijuana. April tested negative for these substances.

In a disposition report, social workers for the Department recommended that April and Jorge receive six months of family maintenance services. Services to be provided to April and Jorge included parenting courses, substance abuse counseling, random drug testing and vocational training. April had tested positive for illegal drugs in the past but she recently tested negative. Jorge admitted he had been abusing drugs since he was a minor and had received some substance abuse counseling services when he was in high school. The report noted April was expecting a baby. She planned to marry Jorge in the near future. Jorge and April indicated to the Department that they intended to do whatever was necessary to regain custody of N.T. and keep her safe.

In January 2008 the court held a disposition hearing. The court ordered family maintenance services for April and placed N.T. in April's care. Jorge also received services. The court scheduled a six-month review hearing.

Later that month, April gave birth to Delilah T. April, who had been living with the minors at the Door of Hope in San Diego, California, ran away. Her whereabouts were unknown, and she left N.T. and Delilah behind without any supervision or arrangements for their care. The court issued a bench warrant for April.

In April 2008 the Department filed a section 387 petition on behalf of N.T. The petition alleged that April had run away from her placement and had left the minors behind with no provisions for support. The petition further alleged April had tested positive for marijuana. The Department also filed a petition under section 300, subdivision (g) on behalf of two-month-old Delilah. The petition alleged April had run away from her placement and left Delilah behind. The Department social worker reported that April had been located and a social worker had spoken with April to discuss the minors' situation. April did not disclose her whereabouts to the social worker.

The court held a detention hearing for both N.T. and Delilah. April and Jorge did not appear for the hearing, but were represented by counsel. The minors' paternal grandmother was present and the Department represented that she would be considered for placement. The court detained the minors and scheduled a jurisdiction and disposition hearing.

In its jurisdiction and disposition report, the Department reported that the minors had been placed together in a foster home. April turned herself in and she was also placed in a foster home. A few weeks later, however, April had been accused of stealing. She further admitted to ditching school and tested positive for marijuana use. The Department noted April had not made any progress toward her case plan but recommended that she and Jorge continue to receive services.

In June 2008 the court held a jurisdiction hearing. April and Jorge appeared at the hearing and were both represented by counsel. Counsel for both parents requested that the paternal grandmother be considered for placement of the minors. The Department expressed its concerns that the paternal grandmother would not be able to protect the minors from the parents or from drugs since N.T. had been exposed to drugs in her home. Further, the paternal grandmother's home had not been licensed for foster care. The court recognized that relatives are preferred for placement but that it would not delay the case further while waiting for the paternal grandmother's home to become a qualified foster placement. The court declared the minors dependents and placed them in foster care.

In an addendum report filed by the Department on behalf of Delilah, the Department recommended that the court schedule a selection and implementation hearing under section 366.26. Jorge and April had not complied with their case plans as ordered in January 2008. April tested positive for drug use in March 2008 and following the jurisdiction hearing in June 2008, April ran away from her placement. April had run away on more than one occasion during the previous six-month period. The social worker believed April "lack[ed] concern about the possibility of reunification with her two children." Jorge also did not comply with his case plan and continued to abuse drugs.

In July 2008 a section 388 modification petition was filed by counsel for the minors. In the petition, minors' counsel alleged that circumstances of the case had changed because the minors' paternal grandmother had complied with and completed all necessary documents and services required by the Department. Counsel requested that the minors be placed in their paternal grandmother's care. The change was in the minors' best interests because they would have the opportunity to live with family and their paternal grandmother loved them. The paternal grandmother would also be able to provide them with a stable home. Jorge also agreed that the minors should live with their paternal grandmother.

The Department filed a report recommending that the court deny the section 388 petition. The Department asserted that the paternal grandmother's current home did not meet requirements that would allow the placement of both siblings in the same home. The paternal grandmother met the requirements that would allow her to have N.T. placed in her home, but not Delilah. The bedroom the paternal grandmother had for N.T. was not large enough to accommodate Delilah. The Department informed the paternal grandmother of this issue and the paternal grandmother had indicated she would look for a larger apartment. In addition, the Department reiterated its concerns with the paternal grandmother's lack of cooperation with the social worker. When April ran away from her placement, she would go to the minors' paternal grandmother's home. The paternal grandmother would not inform the Department. The Department admonished the paternal grandmother but she expressed that her son, Jorge, would become upset or even violent with her if she tried to interfere with allowing April to stay at her home. The Department expressed concern that if the minors were allowed to live with the paternal grandmother, the paternal grandmother would allow the parents to have unauthorized contact with the minors, thereby placing the minors at risk of becoming exposed to drugs again.

The court held a jurisdiction hearing on July 21, 2008. April and Jorge appeared at the hearing and were represented by counsel. Jorge requested that the court place the minors with their paternal grandmother. Counsel for the minors withdrew the previously filed section 388 petition stating it was not yet ripe to be heard. The court found that April and Jorge had made minimal progress with their case plan and they had not regularly visited with the minors. The court terminated services to both April and Jorge and scheduled a section 366.26 hearing.[2] The court ordered that the minors remain placed in their current foster home. At the conclusion of the hearing, the court stated to April and to Jorge that if they "disagree[d] with today's ruling, you can make an appellate review, file notice of intent to file a writ within seven days of [the] hearing. If you choose to do that, your attorney will assist you."

In October 2008 Jorge filed a section 388 petition requesting that the minors be placed with the paternal grandmother. In his petition he alleged circumstances had changed because the paternal grandmother was willing to adopt the minors. Jorge claimed it would be in the minors' best interests to modify the court's order because the paternal grandmother had remained in continuous contact with the minors. The court summarily denied the petition because the petition did not make a prima facie case.

In November 2008 the paternal grandmother filed a section 388 petition requesting placement of the minors in her care. The paternal grandmother alleged that she wanted to adopt the minors. April and Jorge also wanted her to adopt the minors and she had been approved for the placement of one of the children. The paternal grandmother claimed it would be in the minors' best interests to live with her because the law favored relative placements over foster care placements. The court summarily denied the petition.

In preparation for the section 366.26 hearing, the Department filed an assessment report recommending adoption as the most appropriate permanent plan for the minors. N.T. and Delilah were in good physical health and lacked significant developmental problems. The minors did not require counseling and the minors' caregiver did not report any negative behaviors by either child. The current caregivers for the minors want to adopt both girls as a sibling set. They have fostered the girls since July 2008 and treat the minors as their own in addition to providing them with a loving and nurturing home. The minors show a strong bond with their caregivers. They look to the caregivers for love and guidance and the social worker opined that the relationship between the caregivers and the minors is that of a parent-child relationship. The social worker did not believe that terminating parental rights would result in detriment to the minors. Rather, removing the minors from their current placement would have adverse effects on them.

Visits between April and the minors were sporadic throughout the proceedings. In April 2008 April was allowed to have weekly visits with the minors. In May 2008 she ran away from her placement. Between May and November 2008 April saw the minors a few times. The minors appeared to enjoy visiting April. Jorge also had not regularly visited the minors. He saw the minors before court hearings but he did not make an effort to see them in between the hearings. The minors last saw Jorge in July 2008 and the social worker believed that the minors did not share a strong bond with him.

The minors also had visits with their paternal grandmother. In recent months, the visits became irregular possibly because of the paternal grandmother's work schedule. The minors enjoyed visiting their paternal grandmother and N.T. usually cried at the end of the visits. The paternal grandmother provided a name of an individual who was to be a sub-care provider and a reference for her. However, when contacted by the Department, that individual told the social worker that she would not be providing babysitting services for the paternal grandmother.

In December 2008 Jorge filed another section 388 petition seeking to have the minors placed with their paternal grandmother. As changed circumstances, Jorge alleged the paternal grandmother had completed a parenting class and wanted to adopt the minors. The petition further alleged it was in the minors' best interests to maintain contact with their paternal grandmother. The court scheduled the matter for a hearing.

In January 2009 April filed a section 388 petition requesting additional reunification services. In her petition, April alleged circumstances had changed because she was participating in an alcohol and drug program, she was willing to complete a parenting class and she had started viewing parenting videos. April claimed it would be in the minors' best interests to modify the court's order because she had maintained contact with the minors during the dependency proceedings.

The Department recommended that the court deny April's petition. April had started to have monthly visits with the minors and the visits generally were appropriate. However, April recently tested positive for marijuana use and was expecting a baby. April did not complete her daily chores at her group home and the group home had difficulties getting April to go to school. April had also refused to go to counseling services. In addition to concerns surrounding placement with April, the Department did not recommend placing the minors with the paternal grandmother. It reiterated its concerns that the paternal grandmother had been involved with April as a runaway, and the paternal grandmother had not made adequate plans or arrangements to care for the minors if they were placed in her care.

The Court Appointed Special Advocate (CASA) for the minors filed a report in January 2009, in anticipation of the 366.26 hearing. The CASA reported that the minors had not had contact with their father since July 2008. The CASA acknowledged that following visits with April, the minors sometimes became very clingy and N.T. was reported to have cried. However, the CASA opined it would be detrimental if the minors were removed from their current caregivers' home. The minors, until now, had little stability in their lives. N.T. had been in several placements since the start of the proceedings and April had abandoned N.T. on two occasions. Delilah had been in three placements and was abandoned at least one time by April. The CASA believed the minors' current placement provided the minors with stability they had not had until now. The minors showed signs of being content, loved and feeling secure ever since they started living with the caregivers. The minors had adapted to their placement, they showed a strong connection to the caregivers and the caregivers wanted to adopt the minors.

In February 2009 the court held an evidentiary hearing to address Jorge's section 388 petition. The court received in evidence the Department's reports and heard testimony from the paternal grandmother and from social worker Esther Martinez.

The paternal grandmother testified that she had applied for licensing for both children. She believed that she did not need a license because she was the minors' paternal grandmother. She claimed that if the minors were to be placed in her care, she would have a proper home for them to live in before they moved in with her. She admitted that she allowed April to stay with her after April ran away from a group home. She further acknowledged that she was not licensed to care for both minors. However, she wanted to adopt the minors because they were her grandchildren.

Martinez testified that she had been involved with the minors' care since July or August 2008. During that time, she had met the paternal grandmother six or seven times and that the paternal grandmother had visited the minors about four times. The paternal grandmother was appropriate during visits. N.T. recognized the paternal grandmother and sometimes cried when visits ended. Based on these visits, Martinez did not believe the paternal grandmother would be able to protect the minors from the parents. She further believed the paternal grandmother had not given adoption a lot of thought and she was concerned about the paternal grandmother's ability to supervise the children and the paternal grandmother's choice of allowing April to stay with her while April was on runaway status. Martinez further testified that N.T. had tested positive for drugs while she lived in the paternal grandmother's home, further raising concerns about the paternal grandmother's ability to protect the minors.

The court, after reviewing the reports in evidence and hearing testimony from the witnesses, denied Jorge's section 388 petition. The court noted that the paternal grandmother did not understand that the children needed protection from the parents.

The court then heard argument from the parties as to whether an evidentiary hearing should be granted on April's section 388 petition. The court summarily denied the petition after finding the petition contained conclusory statements and no evidence was attached to the petition. The court then proceeded to the section 366.26 hearing. The court terminated parental rights after finding the minors were adoptable and that none of the exceptions to adoption applied to preclude terminating parental rights. The court advised the parents of their right to appeal the decision. April and Jorge timely filed notices of appeal.

DISCUSSION

I.

Appointment of a Guardian ad Litem

April asserts the trial court violated her right to due process when it failed, sua sponte, to appoint her a guardian ad litem during the various dependency hearings in this case. Specifically, she asserts that being a minor parent and her status as a dependent of the court was enough to show that she would be unable to understand the court proceedings surrounding the dependency of the minors. She further asserts that even though she was represented by counsel, having counsel did not eliminate the need for the assistance of a guardian ad litem.

A.

In dependency cases, courts have looked to Code of Civil Procedure sections 372 and 373 for guidance and authority for the appointment of a guardian ad litem for a minor. Code of Civil Procedure section 372, subdivision (a) provides in pertinent part: "When a minor, an incompetent person, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case." (Code Civ. Proc., 372.)

While Code of Civil Procedure section 372 states that minors "shall" appear by a guardian ad litem, "[u]se of the word 'shall,'. . . does not necessarily indicate a mandatory requirement." (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419.) Where a statute does not set forth a consequence for not complying with the statute, the language should be considered "directory rather than mandatory." (Ibid.) As such, "[t]he lack of strict compliance with [a statute], in the absence of prejudice, does not render the subsequent proceedings void." (Ibid.)

Dependency proceedings are "special proceedings" governed by the Welfare and Institutions Code. Therefore, unless the Welfare and Institutions Code specifies otherwise, provisions of other codes, for example the Civil Code or the Code of Civil Procedure, do not apply to dependency proceedings. (In re Jennifer R. (1993) 14 Cal.App.4th 704, 711.) Before January 1, 2009, the Welfare and Institutions Code did not provide guidance concerning the appointment of a guardian ad litem to a minor parent. Therefore, "in the absence of a dispositive provision in the Welfare and Institutions Code, we may look to these requirements [in the Code of Civil Procedure] for guidance. [Citation.]" (In re Josiah Z. (2005) 36 Cal.4th 664, 678-679.)[3]

B.

For purposes of addressing the issue presented in this case, we shall presume that the Code of Civil Procedure sections relating to the appointment of a guardian ad litem are applicable to situations where, as here, a parent who is a party in a dependency proceeding also is a minor. Accordingly, under Code of Civil Procedure section 372, April was entitled to the appointment of a guardian ad litem to represent her. The issue remaining, therefore, is whether April was prejudiced by the failure to appoint a guardian ad litem. We conclude that, after reviewing the entire record, April suffered no prejudice and no miscarriage of justice occurred. (In re Andrew S. (1994) 27 Cal.App.4th 541, 549-550.)

In this case, April was represented by counsel, who argued on April's behalf during the course of these proceedings. During the proceedings, neither the trial court nor April's counsel suggested that April lacked the capacity to assist counsel in preparing her case. April attended most of the hearings. Even when she was not present, April was at all times represented by counsel. At no time did her counsel advise the juvenile court that April did not understand the nature of the proceedings or was unable to assist counsel in the protection of her interests.

The record shows April had been provided the opportunity to participate in services, including parenting courses, substance abuse counseling, random drug testing and vocational training. April and her counsel did not object to these services. Instead, April did not avail herself to these services and made little or no progress to address the issues leading to the minors' dependency. April also did not maintain regular contact with the social workers, she did not complete any of her plan requirements and she did not regularly visit the minors after they had been removed from her care. At times, April's whereabouts became unknown and on more than one occasion, April "ran away" from her placement and left the minors behind without any provisions for care or supervision. April's counsel continued to represent her even when her whereabouts were unknown.

In this case, there is nothing to show that the outcome of these proceedings would have been any different had a guardian ad litem been appointed by the trial court. Our review of the entire record leads us to conclude that regardless of the absence of a guardian ad litem, the trial court had no alternative but to order the termination of services and eventually the termination of parental rights. There was no miscarriage of justice. (See In re Albert B. (1989) 215 Cal.App.3d 361, 379-381.)

II.

Family Maintenance and Family Reunification Services

April argues that the trial court erred by terminating her family maintenance services and scheduling a section 366.26 hearing without first providing her with reunification services.

A.

In October 2007 the Department filed a petition on behalf of N.T. Following N.T.'s detention, the court placed N.T. in April's care. In January 2008 the court ordered that April receive family maintenance services and that Jorge receive reunification services. In April 2008 April ran away from her placement, leaving N.T. and newborn Delilah behind. The Department filed a petition on behalf of Delilah under section 300, subdivision (g). In addition, the Department requested that N.T. be removed from April's care and that family maintenance services be changed to family reunification services.

In June 2008 the Department reported that April had run away from her placement for the second time. The Department changed its recommendation that April receive additional services and instead stated that the court should terminate services and schedule a section 366.26 hearing. In July 2008 the court terminated services for April and scheduled a section 366.26 hearing. April did not timely file a notice of intent to file a writ seeking appellate review of the court's findings.

B.

As a general rule, a parent's failure to object or raise certain issues in the juvenile court prevents the parent from claiming error on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Application of the forfeiture rule, although not automatic, is designed to keep litigants from acquiescing and later seeking relief for error that could have been prevented or cured. (Ibid.; In re Riva M. (1991) 235 Cal.App.3d 403, 412.) Although we have discretion to excuse forfeiture, we exercise that discretion rarely and only in cases presenting an important legal issue. (In re S.B., supra, at p. 1293.) This is especially true in dependency proceedings where "considerations such as permanency and stability are of paramount importance." (Ibid.)

On July 21, 2008, the court held a section 387 disposition hearing on behalf of N.T. and a section 300 disposition hearing on behalf of Delilah. At the hearings, April was present and represented by counsel. The court terminated services and scheduled a section 366.26 hearing. April did not raise any objections or argue against the Department's recommendation that she not receive further services. In addition, April did not challenge the issue on appeal by timely filing a notice of intent to file a writ following the disposition hearing held on July 21, 2008.[4] By her silence and acquiescence, April has forfeited her right to claim error on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)

In a separate Application filed along with this appeal, April asserts that this court should excuse the fact that she did not timely file a notice of intent to file a writ because the trial court "entirely failed" to inform her of her right to seek appellate review. The record does not support April's assertion. The trial court, following the termination of services and scheduling the 366.26 hearing, stated, "If you disagree with today's ruling, you can make an appellate review, file notice of intent to file a writ petition within seven days of today's hearing. If you choose to do that, your attorney will assist you." The trial court made this statement concerning their right to appellate review concerning both Delilah and N.T. The trial court properly advised April of her right to seek writ review. April's Application is denied.

III.

Preferential Consideration of Placement with Relatives Under Section 361.3

April asserts the court erred by failing to apply the relative placement preference under section 361.3. Specifically, April claims the Department did not properly evaluate the paternal grandmother for placement. The trial court, therefore, did not have enough information to consider all the criteria set forth under section 361.3.

A.

Section 361.3 requires the court to give "preferential consideration" to a relative's request for placement when a child is removed from the physical custody of his or her parents under section 361 or whenever a new placement of the child after disposition is necessary. (361.3, subds. (a) & (d).)[5] In the second situation, the overriding inquiry is whether the change in placement is in the child's best interests. (See In re Stephanie M. (1994)7 Cal.4th 295, 320-321.)

" 'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (361.3, subd. (c)(1).) Thus, the relative placement preference does not create an evidentiary presumption in favor of relatives, but merely puts them " 'at the head of the line' " when the court determines which placement is in a minor's best interests. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.)

To determine whether placement with a relative is appropriate, "the county social worker and [the] court shall consider, but shall not be limited to, consideration," of eight listed factors.[6] ( 361.3, subd. (a).) "The linchpin of a section 361.3 analysis is whether placement with a relative is in the best interests of the minor." (Alicia B. v. Superior Court, supra,116 Cal.App.4th at pp. 862-863.) "The overriding concern . . . is not the interest of extended family members but the interest of the child. '[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child. . . .' " (In re Lauren R. (2007) 148 Cal.App.4th 841, 855.)

"We review a juvenile court's custody placement orders under the abuse of discretion standard of review; the court is given wide discretion and its determination will not be disturbed absent a manifest showing of abuse. [Citations.] 'Broad deference must be shown to the trial judge. The reviewing court should interfere only " 'if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did.' " ' " (Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 863.)

B.

First, we reiterate our conclusion that April has forfeited her right to claim error on appeal. As noted, ante, April did not file an appeal challenging the court's findings made at the disposition hearing held on July 21, 2008. As such, she has forfeited her right to raise the issue here. (See In re Lorenzo C., supra,54 Cal.App.4th at p. 1339.)

In any event, the trial court did not abuse its discretion when it declined to place the minors in the paternal grandmother's care because the placement was not in the minors' best interests. The record showed paternal grandmother's ability to protect the minors from future harm was questionable. The dependency proceedings began after N.T. was exposed to drugs while in the paternal grandmother's home. Specifically, N.T. tested positive for methamphetamines, marijuana and amphetamines while living with the paternal grandmother. It is reasonable to infer that the minors' parents abused drugs in the paternal grandmother's home and the paternal grandmother did not recognize the risk or protect the minors from harm. Further, the paternal grandmother allowed April to live in her home while April was on "runaway" status from her placement. The paternal grandmother should have contacted the social workers to notify them that April was in her home, but she did not do so. The paternal grandmother also testified that she had no control over her son and that he had acted violently in the past. Based on her statements and past actions, it would be reasonable to infer that the paternal grandmother might not be able to keep the minors safe from the parents when necessary.

The court also had the opportunity to consider the nature and duration of the relationship between the paternal grandmother and the minors in determining whether the placement was appropriate. ( 361.3, subd. (a)(6).) The record shows that the paternal grandmother attended all the dependency proceedings, she had completed a parenting class and that she shared a relationship with N.T. We acknowledge the paternal grandmother's efforts, the love she has for the children and her interest in wanting custody of the minors.

However, the evidence showed the paternal grandmother's ability to protect the minors from future harm and give them a proper home was questionable. At the onset of the proceedings, the paternal grandmother allowed the parents to expose the minors to illegal drugs while the minors lived in her home. She allowed April to live in her home even though the paternal grandmother should have notified the Department. The paternal grandmother admitted to social workers that Jorge would become violent against her if she tried to stop April from living in her home. She also admitted that she was afraid of her son and she had no control over him. Further, during the course of the proceedings, the paternal grandmother had not shown that she could provide a proper home for the minors or proper childcare arrangements for periods of time when she might be working or spending time outside of the home.

The court, after considering the Department's reports, found the minors' best interests would not be served by placing them with the paternal grandmother. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Zachary G. (1999) 77 Cal.App.4th 799, 812.) We conclude that the juvenile court fulfilled its fundamental duty to assure the minors' best interests when it denied placement with the paternal grandmother. (See In re Stephanie M., supra,7 Cal.4th at p. 321; Alicia B. v. Superior Court, supra,116 Cal.App.4th at p. 864.)

IV.

April's Section 388 Petition

April contends the court erred by summarily denying her January 2009 section 388 modification petition seeking additional services. April asserts the petition stated a prima facie case of changed circumstances in that she was enrolled in an alcohol and drug program, she was willing to complete a parenting class and she began watching parenting videos at the group home. April claims the modification of the court's order was in the minors' best interests because she had maintained contact with the minors throughout the proceedings.

A

Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed modification is in the child's best interests. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.) The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "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., supra,at p. 310.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (Jasmon O., supra, at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) However, if the liberally construed allegations of the petition do not make a prima facie showing that the relief sought would promote the best interests of the child, the court may deny the petition without an evidentiary hearing. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 322-323.) "The 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., supra, 77 Cal.App.4th at p. 806.) The summary denial of a section 388 modification petition does not violate a parent's due process rights. (In re Jasmon O., supra, at p. 419.)[7]

B

The court correctly determined that the modification petition did not state a prima facie case. (See Marilyn H., supra,5 Cal.4th at p. 310; In re Hashem H., supra, 45 Cal.App.4th at pp. 1798-1799; In re Zachary G., supra,77 Cal.App.4th at p. 806.) Here, April did not make a prima facie showing of a change in circumstances. An absence of any showing of a change in circumstances obviated the requirement that the court hold a hearing on April's section 388 petition. (In re Angel B. (2002) 97 Cal.App.4th 454, 465.) As changed circumstances, April alleged she was in a drug treatment program. However, she recently tested positive for drug use. April was pregnant with her third child and the date of the positive drug test suggests April had been abusing drugs while pregnant. April also argued that she was willing to participate in a parenting class. However, there was no showing that she had completed parenting courses. Instead, April was not following the rules at her group home, she was getting in trouble at school and she refused to go to counseling services. The evidence shows April's circumstances had not changed.

Even had April shown changed circumstances, April did not make a prima facie showing that it was in the minors' best interests that she receive more services. In her section 388 petition, April argues it was in the best interests of the minors that she receive additional services because she had maintained contact with the minors and shared a relationship with them. We acknowledge that April had been visiting the minors on a monthly basis and that the visits generally were appropriate. However, after termination of services, the focus of dependency proceedings is to provide the child with permanency and stability. (See In re Baby Boy L. (1994) 24 Cal.App.4th 596, 609-610 [after services are terminated, the focus of the court's concern shifts from assisting the parent in reunification to securing a stable new home for the child]; Kimberly H. v. Superior Court (2000) 83 Cal.App.4th 67, 71-72.) Throughout the dependency proceedings, April did not comply with the services she was offered. She tested positive for drug use as recently as the month before the section 366.26 hearing. She also had a history of running away from her placements and not disclosing her whereabouts to the social workers. In one instance, April ran away from her group home placement, leaving the minors behind and forcing them into yet another foster home placement. April had the opportunity to pursue services and to show she could take care of the minors, but she did not avail herself to the services given to her. The current caregivers had been approved for adoptive placement and wanted to adopt the minors. The minors had formed a strong bond with their caregivers and were doing well in this placement. Because the facts alleged in the petition would not have sustained a favorable decision on the section 388 petition, April was not entitled to an evidentiary hearing. (In re Zachary G., supra, 77 Cal.App.4th at p. 806.)

V.

Jorge's Section 388 Petition

Jorge argues the court abused its discretion by denying his section 388 petition for modification seeking placement of the minors in the paternal grandmother's care. He asserts his circumstances had changed because the paternal grandmother had completed a parenting class and was willing to adopt the minors. He further asserts it was in the minors' best interests to be placed with the paternal grandmother because the paternal grandmother visited the minors on a regular basis and the minors shared a relationship with her.

A.

Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, there is a change in circumstances or new evidence, and the proposed change is in the child's best interests. ( 388; In re Jasmon O., supra, 8 Cal.4th 398 at pp. 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M., supra, 7 Cal.4th at p. 318; In re Casey D., supra, 70 Cal.App.4th at p. 47.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we may not substitute our decision for that of the trial court. (In re Stephanie M., supra,at pp. 318-319; In re Casey D., supra, at p. 47.)

When the court evaluates the appropriate placement for a child after reunification services have been terminated, its sole task is to determine the child's best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 320.) In this context, the goal is to assure the child "stability and continuity." (Id. at p. 317.) The need for stability and continuity

" 'will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citation.]" (Ibid.) Thus, after the court terminates reunification services, "there is a rebuttable presumption that continued foster care is in the best interest of the child." (Ibid.)

B.

In support of his December 2008 petition, Jorge claimed circumstances had changed after the court denied placement of the minors with the paternal grandmother because she had completed a parenting class and the paternal grandmother wanted to adopt the minors. Admittedly, the paternal grandmother presented a parenting class completion certificate and she testified she wanted the minors to be placed in her care. The record also shows the paternal grandmother visited the minors during the proceedings. However, the paternal grandmother had made minimal progress toward creating a stable home for the minors and the Department expressed its concerns that the paternal grandmother would not be able to keep the minors safe in her home.

At the section 388 evidentiary hearing, the paternal grandmother testified she did not have enough room in her home for both N.T. and Delilah and that she would have to rent a new place once the minors were placed in her care. The paternal grandmother also admitted she did not have any child care arrangements in place should the minors be placed in her care. We acknowledge that the paternal grandmother testified she would not allow the minors to have contact with April and Jorge should the minors be placed in her home. However, reports show that the paternal grandmother stated she had no control over Jorge, who would get upset and violent if she interfered with allowing April to stay in the home. The paternal grandmother also admitted she was afraid of Jorge. The Department expressed its concerns that the paternal grandmother might allow Jorge and April to have contact with the minors, thereby placing the minors at risk of abduction or exposure to drugs. In addition, Martinez testified about her ongoing concerns that the paternal grandmother had allowed April into her home without reporting April to the Department. It was also in the paternal grandmother's home that N.T. was exposed to illegal substances and tested positive for methamphetamines. The drug exposure led to the minors' dependency. Further, Martinez believed that at the time she assessed the paternal grandmother for placement, the paternal grandmother had not given a lot of thought to adoption and the responsibilities it would bring. The paternal grandmother may have completed a parenting class and shown some signs of her willingness to care for the minors and keep them safe. At best, the paternal grandmother's circumstances were "changing." However, they had not changed sufficiently to warrant placing the minors in her care. (In re Baby Boy L., supra, 24 Cal.App.4th at p. 610.)

Even had Jorge shown changed circumstances, he did not show that moving the minors into the paternal grandmother's home was in the minors' best interests. At the time of the hearing on Jorge's modification petition, the focus of the proceedings had shifted to providing the minors with a safe, stable and permanent home. (See In re Marilyn H., supra, 5 Cal.4th at p. 309.) The minors currently lived with caregivers that wanted to adopt them. The minors received stability and security in their current home. The CASA reported that the minors had strong connections with their caregivers. Where, as here, " 'custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' " (In re Stephanie M., supra,7 Cal.4th at p. 317.) The court evaluated the evidence, including the minors' need for stability and security, and found their best interests would not be served by removing them from a stable and loving home. The court acted within its discretion by denying Jorge's modification petition.

DISPOSITION

The judgment is affirmed and April's Application is denied.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.

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

[2] The court denied services to Jorge and April for Delilah under section 361.5 (b)(10).

[3] Effective January 1, 2009, Code of Civil Procedure section 372 was amended to allow minor parents to appear in dependency actions and certain other proceedings without a litigation guardian unless the court finds the minor is unable to understand the nature of the proceedings or assist counsel. (Code Civ. Proc., 372, subds. (c)(1), (c)(2), amended by Stats. 2008, ch. 181, 1 (S.B. 1612).) Also effective January 1, 2009, section 326.7 provides that "[a]ppointment of a guardian ad litem shall not be required for a minor who is a parent of the child who is the subject of the dependency petition, unless the minor parent is unable to understand the nature of the proceedings or to assist counsel in preparing the case." ( 326.7, amended by Stats. 2008, ch. 181, 3 (S.B. 1612.) These sections went into effect before the conclusion of the section 366.26 hearing but after the court terminated services for April and Jorge. We do not retroactively apply these code sections to this case. However, the sections are persuasive in that they show the Legislature did not intend for a guardian ad litem to be automatically appointed in cases involving a parent who is also a minor.

[4] A hearing setting a section 366.26 selection and implementation hearing is reviewable upon the filing of a notice to file a writ petition. (See Rules of Court, rules 8.450 & 8.452.)

[5] Section 361.3, subdivision (a)(3) refers to Family Code section 7950, subdivision (a)(1), which requires the court to consider placing a dependent minor with a relative unless the placement would not be in the minor's best interests.

[6] Those factors are: "(1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [] (2) The wishes of the parent, the relative, and child, if appropriate. [] (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. [] (4) Placement of siblings and half-siblings in the same home, if that placement is found to be in the best interest of each of the children as provided in Section 16002. [] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [] (6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful. [] (7) The ability of the relative to do the following: [] (A) Provide a safe, secure, and stable environment for the child. [] (B) Exercise proper and effective care and control of the child. [] (C) Provide a home and the necessities of life for the child. [] (D) Protect the child from his or her parents. [] (E) Facilitate court-ordered reunification efforts with the parents. [] (F) Facilitate visitation with the child's other relatives. [] (G) Facilitate implementation of all elements of the case plan. [] (H) Provide legal permanence for the child if reunification fails. [] . . . [] (I) Arrange for appropriate and safe child care, as necessary. [] (8) The safety of the relative's  

home. . . ." ( 361.3, subd. (a).)

[7] April asserts that the trial court did not use the correct standard in evaluating her section 388 petition. A review of the record shows counsel for April, the minors and the Department all stated to the court that the first step in evaluating April's petition was to determine whether a prima facie showing, changed circumstances and best interests had been made. When counsel for April asked the court whether it understood it was only addressing a prima facie case at that time, the court replied, "that's exactly what I've addressed." The court used the proper standard.