In re V.B.

Filed 8/26/08 In re V.B. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEALS from an order of the Superior Court of Los Angeles County, Steven Berman, Temporary Judge. (Pursuant to Cal. Const., art. VI, 13.) Affirmed.

Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant M. B.

Cameryn Schmidt, under appointment by the Court of Appeal, for Defendant and Appellant D. C.

Raymond G. Fortner, Jr., Los Angeles County Counsel, James M. Owens, Assistant County Counsel and Aleen Langton, Deputy County Counsel for Plaintiff and Respondent.

I. INTRODUCTION

D.C. (the mother) and M.B. (the father) separately appeal from a January 14, 2008 juvenile court order terminating their parental rights as to their four children pursuant to Welfare and Institutions Code section 366.26. (All further statutory references are to the Welfare and Institutions Code unless otherwise noted.) The father also appeals from the order setting the section 366.26 hearing. And the mother appeals from the denial of her section 388 modification petition. The mother contends: it was error to deny her section 388 petition without a hearing; there was no substantial evidence the children were likely to be adopted; and there was no substantial evidence to support a finding the beneficial relationship exception did not apply. The father argues: he was not properly advised of his writ review rights with respect to the order setting the section 366.26 hearing, therefore he may challenge the setting order on appeal; and there was no substantial evidence the Department of Children and Family Services (the department) provided him with reasonable reunification services. We affirm the order.

II. BACKGROUND

A. The July 13, 2005 Detention

The department detained the four children on July 13, 2005, after Los Angeles Police Department officers found the family living in an unsafe and unsanitary van. The van was cluttered with soiled diapers, trash, and beer cans. There was a foul odor and there were many flies in the van. The children all had lice. The van had a flat tire and a dead battery. The children ranged in age from seven months to seven years. The seven-month-old child had a severe diaper rash. The father, who appeared to be intoxicated, admitted he had been an alcoholic for 25 years. The mother said: the family had been residing in a shelter; but they left because she was not allowed to sleep in the same room with her children; additionally, she was told she would have to seek employment, which meant being away from her kids. The oldest child, V.B., was seven years old in July 2005. He had not been enrolled in school because the family lacked a permanent address. He did not know how to read or write. The family had seven prior caretaker incapacity or general neglect referrals dating from February 2001 through January 2005. The department social worker who worked with the family in December 2004 and January 2005 said their situation had greatly worsened by July 2005. After the children were detained, department social worker Maria Gonzalez gave the parents bus tokens so they could attend the upcoming court hearing.

B. July 18, 2005

A section 300 petition was filed on July 18, 2005. The department reported the parents whereabouts were unknown. The juvenile court ordered the children detained. The juvenile court ordered the father to undergo alcohol and drug testing and rehabilitation and to attend parenting classes and individual counseling. The mother was ordered to undergo alcohol awareness training, attend parenting classes, and receive individual counseling. The juvenile court also ordered individual counseling for the children. The juvenile court declared the children a sibling group, and ordered that they be placed in a local school. The next hearing date was set for August 25, 2005. It was subsequently reset for September 21, 2005.

Ms. Gonzalez, the social worker, visited the parents on July 20, 2005. She gave the mother copies of the case plan and the juvenile courts minute order. Ms. Gonzalez also provided the mother with parenting, substance abuse, and counseling referrals. Ms. Gonzalez explained the case plan to the mother, who then signed it. Ms. Gonzalez attempted to speak to the father, but he was uncooperative. Ms. Gonzalez attempted to visit the parents on August 4, 2005, but was unable to locate them. Ms. Gonzalez met with the mother on August 19, 2005. The parents had not yet begun to comply with the court orders. The mother denied using any alcohol or drugs. The mother was advised about the importance of complying with the court orders in order to reunify with her children. The father appeared at Ms. Gonzalezs office on August 24, 2005, and insulted her but otherwise did not stay to talk. Later that day, Ms. Gonzalez contacted the parents saying she was on her way to visit them. The mother said she was busy cleaning the van and she did not have time for a visit. When Ms. Gonzalez arrived at the park where the family usually resided in the van, she could not find the parents and the mother did not answer her cellular telephone.

The foster mother reported the children were doing well, but they missed their mother. The foster mother thought the children would benefit from therapy. V.B. was temperamental and often screamed at his brothers. V.B. told his little brothers he was going to run away. V.B. was scheduled to begin therapy in late August 2005.

C. August 25, 2005

As reflected in the departments August 25, 2005 jurisdiction and disposition report, V.B. spoke to a dependency investigator, Carlysle R. Hooks. V.B. stated that his parents had not visited the children in their foster home. He said the family had been living in the van, which was a little dirty, for about a year. The mother told Mr. Hooks that the parents were too busy to go to counseling. The foster mother said the parents had not visited the children. But the mother did telephone the foster mother daily. On one occasion, the mother wanted to speak to the children, but she seemed to be very intoxicated. So the foster mother hung up the telephone on the mother. The foster mother reported that V.B. had 11 cavities, A.B. needed multiple extractions, and three-year old E.B.s teeth were rotten.

On August 25, 2005, the matter was walked on so as to permit the parents to make their first appearance. The parents provided the juvenile court with a mailing address and telephone number for a paternal uncle for notice purposes. The juvenile court ordered the parents to notify the social worker and their counsel within five days of any address or telephone number changes. They were also ordered to advise the juvenile court of any such change. The juvenile court emphasized how important it was that the parents receive notices. The parents declared they had no American Indian ancestry. The juvenile court found the father was the presumed father of each of the four boys.

Ms. Gonzalez visited the children in their foster home on September 20, 2005. The children were well cared for and were doing nicely. She met with the mother the following day. Ms. Gonzalez reported: [I] provided [the mother] with referrals to counseling sites and [Alcoholics Anonymous] meetings. [I] inquired about their attending any meetings and [the mother] reported they had not had any time to start attending. [I] provided them with the address of the drug and alcohol testing site and informed mother they had to appear today for on demand test and then call every day to find out about their date for the random testing. [M]other was reluctant to go and started making excuses. [I] emphasized the importance of her doing the testing as well as the [Alcoholics Anonymous] meetings. (In fact, the juvenile court had not ordered that the mother undertake drug testing.)

D. September 26, 2005

The parents were present at the September 26, 2005 hearing. The departments report was due September 21, 2005, but was not filed until September 26, 2005. The matter was set for mediation on November 7, 2005.

E. October 2005

Ms. Gonzalez visited the children in their foster home on October 12, 2005. The foster mother said the mother had called only once. The mother had not kept her promise to call on a weekly basis. Ms. Gonzalez reported the mother was unable to speak to the parents as their whereabouts were unknown, they did not answer their cellular telephone, and they did not return messages left for them.

The foster care agency, Five Acres, assessed the children as of October 13, 2005. Foster care social worker Laura Starla Means reported the children were happy in their foster home: The children have quickly bonded to their foster mother and have made themselves at home in their new environment. They call [the foster mother] Nana, and tell her they love her. Likewise, [the foster mother] has a strong attachment to all the children, particularly A[.B.], whom she has mentioned she would consider adopting. She has also mentioned the possibility of providing long term foster care in order to avoid separating the children, should family reunification be severed. She is very concerned for their well-being, health, and happiness. The children are affectionate with her, and respond eagerly to her praise and requests. They are all polite and respectful, and obey the house rules. [The foster mother] has reported that she has no problems with the children, and she enjoys having them in her home. [Ms. Means] has observed the children acting comfortably in their home environment, and demonstrating that they feel safe and cared for by [the foster mother]. [The foster mother] is quick to report any concerns to this [foster care social worker], so that the childrens needs are appropriately addressed.

Ms. Means said the parents had shown little effort towards reunifying with their children. She reported: [V.B.s] mother and father called consistently the first month the children were placed. Phone calls are monitored by the foster mother. However, as time has passed, they are calling less frequently, at one point missing phone contact for up to [a] consecutive 6 days. [V.B.] has expressed that he is hurt by this lack of effort. His foster mother encouraged him to tell his parents how he feels. This [foster care social worker] monitored this particular phone call to provide support for [V.B.], as it required much courage on his part to express himself so openly. He asked his parents why they do not call when they say they will, and why they do not call more frequently. He also told his parents that their children should be the most important thing to them. The parents both agreed and promised to be more consistent. This [foster care social worker] later spoke privately with the mother and discussed the importance of maintaining positive conversation, encouraging the childrens success and happiness, and keeping promises. At that time, this [foster care social worker] also explained in detail what the parents must do to initiate visits with their children. The mother indicated that the [department social worker] does not return her phone calls, which this [foster care social worker] verified is inaccurate. The parents have frequently made themselves unavailable and difficult to locate. This [foster care social worker] recommended that the mother document all of her attempts to contact the [department social worker], and to use the same cell phone so that the phone bill could be used as evidence. To date, the mother has not followed through with these recommendations.

F. The November 7, 2005 Disposition

A mediation agreement was reached on November 7, 2005. The parents waived their rights and agreed to submit to the petition as amended per In re Malinda S. (1990) 51 Cal.3d 368, 375-382. The juvenile court found: the father had a history of alcohol abuse and was a frequent user of alcohol; the mother knew or should have known the father used alcohol to an excess in the home where the children were and did not take appropriate action to protect them; the parents created a detrimental home environment for the children in that they had a transient lifestyle, the children wore dirty clothes, spent the day in a van, and were not bathed for several days; and the parents never enrolled V.B. in school. The children were declared dependents of the juvenile court. The parents agreed to attend parenting classes and to undergo individual counseling. The father agreed to attend an alcohol rehabilitation program and to submit to random alcohol and drug testing. The juvenile court so ordered. The juvenile court also ordered the mother to attend at least three meetings of Alanon or a similar alcohol awareness program and V.B. was to receive individual counseling. The juvenile court admonished the parents as follows: [Y]ou have six months, under the law, to complete all of the programs. That doesnt mean a full six months. If you dont start the programs or do anything, the court doesnt have to wait six months to terminate your parental rights, so make sure you get into those programs right away. The matter was continued to March 15, 1006.

Ms. Gonzalez visited the children in their foster home on November 10, 2005. The children were doing well. The foster mother said that although she was very attached to the children and would hate to see them leave, she would not be able to adopt them due to her age and financial situation. The parents called only sporadically, which upset the children. Additionally, the parents tried to have unacceptable conversations with the children, so the foster mother had to monitor the calls.

G. December 2005

The children had a monitored visit with their parents on December 12, 2005. This was the first visit between the children and the parents since the youngsters were detained. The three older boys appeared attached to their parents. The parents behaved appropriately and lovingly toward their sons. They brought toys for the children and said they were happy to see them. But the youngest child, A.C., wanted to be with the foster mother most of the time. Following the visit, Ms. Gonzalez inquired whether the parents were complying with the juvenile courts orders. They said they had started parenting classes and counseling, but they did not know the name of the provider. Ms. Gonzalez asked the parents to call her with the information. The parents requested bi-weekly visitation at the departments offices.

Ms. Gonzalez contacted the director of the Center for Individual and Family Counseling, Carol Bishop, to verify the parents enrollment in counseling. Ms. Bishop said the parents intake was on December 11, 2005, and they had begun counseling on December 18, 2005. The mother had attended every Sunday since that time with the exception of two dates in January 2006.

H. February 2006

As of February 2006, the mother was attending therapy regularly and making progress. The father was also attending therapy. The fathers therapist, Jessica Carey: described him as hopeful, willing, and eager to do what needed to be done to get his children back; stated he was attending Alcoholics Anonymous meetings and appeared to be happy about it; and believed he had not started parenting classes or random testing because of financial problems as he thought he had to pay for these services. The children visited with their parents on February 2, 2006. The visit went well. Ms. Gonzalez had left messages for the mother on January 20, 2006, and on February 1, 6, and 15. But the mother had not responded to Ms. Gonzalezs telephone messages. The children continued to thrive in their foster home. The foster mother wanted to enroll them in private school and asked Ms. Gonzalez whether there was financial assistance available. Ms. Gonzalez resolved to look into the matter.

I. March 2006; The Six-Month Review Hearing

Ms. Gonzalez prepared the March 8, 2006 status review report. The children were living in the foster home where they had lived since they were detained. The foster mother reported the children were stable and presented no problems. The foster mother also said it was obvious that not being with their parents had affected the children, but they were strong and were beginning to cope with their circumstances. Ms. Gonzalez observed: All children appear to have a close relationship with [their foster mother]; they all call her nana and appear to be very respectful and loving to her. During [Ms. Gonzalezs] visits with [the] children, they appeared to be bonding with [the] foster mother and to be happy in the foster home. The home is always decorated with pictures and drawings that the children take part in. [The foster mother] is always proud to show the decorations that the children have made and the work they bring home from school. The home is always orderly and child friendly. [Ms. Gonzalez] has observed that [the] children feel and appear to be in a loving supportive environment. V.B. was attending first grade and was receiving individual therapy. A.B. was attending pre-school.

Ms. Gonzalez reported that the parents had been scheduled to be live scanned on July 18, 2005, but they failed to appear. Attempts to reschedule the live scan had been unsuccessful. It had been difficult for Ms. Gonzalez to arrange meetings with the parents. The parents were living in their van and nomadically moved from place to place. As of December 2005, the parents were attending individual counseling. The father also was attending daily Alcoholics Anonymous meetings. The fathers therapist, Ms. Carey, believed the father was afraid of her; additionally, he had not been attending parenting classes and was not randomly testing because he thought he would have to pay for those services and he did not have the money. The parents had visited the children twice, on December 12, 2005, and January 14, 2006. No additional visit had been scheduled. The parents telephone calls to the children were inconsistent. The mother appeared to be pregnant. With respect to the mothers desire to reunify with the children, Ms. Gonzalez reported: [The mother] has been reluctant to comply with the court orders. Though [the mother] has expressed interest in getting her children back, she has not showed any effort on the matter. Ms. Gonzalez had not had any contact with the parents since December 12, 2005. Ms. Gonzalez recommended that the juvenile court terminate reunification services and set a permanent plan hearing.

The departments report included information about the fathers criminal record. He had been arrested in 1987 and again in 1989 for inflicting corporal injury on a spouse or cohabitant. He was convicted of a misdemeanor following the 1989 arrest, imposition of sentence was suspended, and the father was placed on 36 months probation. In 1992, the father was arrested for rape by force or fear. The charges were subsequently dropped for lack of evidence.

Ms. Gonzalez met with the parents in her office on March 16, 2006. She described the mother as reluctant to cooperate. Ms. Gonzalez asked the parents to keep her informed about what they were doing so she could document it. The parents had no permanent address where she could contact them. And on numerous visits to the park Ms. Gonzalez had been unable to locate them. Ms. Gonzalez reminded the parents they needed to submit to random alcohol and drug testing. Further, Ms. Gonzalez told the parents they needed to start calling every day so as to facilitate drug and alcohol testing. (In fact, the juvenile court had ordered alcohol and drug testing only for the father. )

A six-month review hearing ( 366.21, subd. (e)) was held on March 23, 2006. The juvenile court found: the parents had not completed parent education and had started individual counseling only a few months earlier; the mother had not attended any Alanon meetings; and the parents had only visited the children twice in six months. The juvenile court ordered supplemental reports and continued the hearing to April 25, 2006. The juvenile court also ordered, The social worker is also ordered . . . [to bring] Title 20s, referrals, or whatever evidence we need for that hearing.

Ms. Gonzalez visited the children in their foster home on March 30, 2006. The children were doing well. The foster mother said the mother had admitted calling the children while under the influence. The foster mother believed the mother was pregnant. But the mother denied being pregnant.

J. April 2006

Ms. Gonzalez reported that on April 10, 2006: [The mother] became verbally aggressive toward [me] and was close to becoming physically assaultive towards [me] as she got close to [me] as to physically assault [me]. Security had to intercede and ask [the mother] to leave. [The mother] has always been disrespectful, but this time she was more assaultive than usual to the point [I] feared getting hurt []. From now on, [I] will schedule visits with the parent[s] in the office due to [the mothers] highly volatile mood swings and the fears [I] could be physically assaulted if not on [the departments] premises. As noted, a security officer had to intervene.

The childrens therapist disclosed that A.B. had reported physical abuse by the fatherhe hit them with a wet belt with hot water on their back and their buttocks. Ms. Gonzalez interviewed the foster mother and the three older boys. Ms. Gonzalez reported as follows: Foster mother informed [Ms. Gonzalez] that children have talked about their physical abuse with her. She reported that [A.B.] has reported to being beat with a wet belt by his father. [] [Ms. Gonzalez] first met with [V.B.] who was hesitant to answer any questions at first but then started to talk. Minor informed [Ms. Gonzalez] that father would hit him with his hand on his buttocks and in his hands when he would misbehave but he would not do it hard. [V.B.] then added that a belt hurt too much and that is why his father did not hurt him [with] a belt. [Ms. Gonzalez] asked how [he knew] that a belt would hurt. Minor did not answer and soon asked about the possibility of going back to his parents, minor added that his father is no longer drinking and this is because he loves them very much and does not want to lose them. Minor also added that father would only hit him when he was under the influence. [] [Ms. Gonzalez] then interviewed [E.B.] who reported to being hit by his mother but never by his father as he was stronger and would hurt him. He reported to his father hitting [V.B.] and [A.B.] because they were bigger and stronger. Minor reported to [A.C.] never being hit as he was in his mothers belly. [] [Ms. Gonzalez] then interviewed [A.B.] Minor became saddened by the questions and answered by saying that he had already had this conversation with [Ms. Gonzalez.] [Ms. Gonzalez] told minor she had never talked to child about this. He then remembered and stated he had this conversation with [his therapist, Sarah Holroyde]. Child reported to his father hitting him with a belt. He also reported to his brother [V.B.] also being hit with a belt and [E.B.] only being hit by his mother, as he was too small for his father to hit him. [A.B.] reported to not wanting to go back with his parents and wanting to stay [in the foster home]. Ms. Gonzalez left telephone messages for the parents on April 28, May 10, and May 23, but did not hear from them.

Ms. Gonzalez recommended that reunification services to the parents be continued. In an Information for Court Officer for the April 25, 2006 hearing, Ms. Gonzalez wrote: It is respectfully recommended that __ more [months] of reunification services be granted to the parents as they have started to comply with some of the court orders. Both parents have started to attend therapy sessions. Their first visit was on [December 18, 2005]. [The father] has reported to having been attending [Alcoholics Anonymous] meetings. He started attending on December 15, 2005. Both [parents] have completed parenting classes with the Center for Individual and Family Parenting . . . . Classes were completed on [April 18, 2006.] [The father] has also been attending Alcohol and Drug education sessions (5).

Both parents appeared at the April 25, 2006 hearing. The matter was set for a contested six-month review hearing. There had been an off-the-record discussion, however, and an agreement had been reached to extend reunification services. The juvenile court continued reunification services. As part of their individual counseling, the parents were to address anger management with a therapist with appropriate expertise. The father had been alcohol and drug testing every other week. But the juvenile court had ordered him to test weekly. Therefore the juvenile court ordered: Father is to test once per week. If any test is missed or dirty, then father must attend a full [drug and alcohol] program. As of April 18, 2006, both parents had completed a Systematic Training for Effective Parenting class. The juvenile court further ordered the parents to complete 10 more weeks of parent education. The parties stipulated to hold a progress hearing on June 6, 2006. A permanent plan hearing was set for October 24, 2006. The mothers counsel stated, My client is pregnant.

K. May 2006

On May 24, 2006, the foster mother reported the parents had been visiting every Sunday for a few hours. The visits had gone smoothly and the children were happy to see their parents, but often ran after the foster mother seeking her approval. The children acted up for a few days following each visit, but soon went back to normal.

L. June 2006

The department filed a June 20, 2006 interim review report. The children remained in their foster home. Ms. Gonzalez continued to have difficulty meeting with the parents. Ms. Gonzalez reported, The two last times that [I] met with [the mother], she has been extremely confrontational and has become verbally aggressive towards [me]. Ms. Gonzalez attempted to contact the parents by phone on April 2 and May 10, 23, and 26, 2006. Ms. Gonzalez met with the parents on April 10, 2006. She gave the father a referral to an alcohol testing facility that was more convenient for him. The mother was again verbally aggressive toward Ms. Gonzalez. A security officer once again had to intervene. On May 26, 2006, Ms. Gonzalez went to the park where the parents lived in their van. The mother was once again upset and hostile. The mother moved very close to Ms. Gonzalez. It was as if the mother was about to physically assault Ms. Gonzalez. The mother eventually refused to talk to Ms. Gonzalez. The mother threatened to summon the police. Finally, the mother insulted Ms. Gonzalez and walked away. Ms. Gonzalez attempted to speak quietly so that other transients would not hear what was being said.

Ms. Gonzalez had been unable to obtain any significant information as to the parents progress in therapy. According to an unidentified therapist, the parents were attending weekly therapy sessions. The unidentified therapist promised to send Ms. Gonzalez a letter. The fathers therapist, Ms. Carey, had not returned Ms. Gonzalezs telephone call. The director of the therapy center, Carol Bishop, sent an April 23, 2006 letter regarding the parents attendance. But Ms. Bishop provided no information on the parents progress in therapy. On June 12, 2006, the fathers therapist, Ms. Carey, reported the father was no longer attending therapy sessions. This was because the father wanted to work with a male therapist. The mother had also stopped attending therapy. The parents told Ms. Carey it was their last visit. Ms. Bishop, the director of the Center for Individual and Family Counseling, confirmed that the parents had stopped attending therapy in May. V.B.s therapist, Sarah Holroyde, reported on June 1, 2006, that the child appeared to have been exposed to sexual activity by others while he was living in the van with his parents and siblings. Ms. Holroyde filed a suspected child abuse report.

With respect to visitation, Ms. Gonzalez reported: Parents have been meeting with the children weekly. Foster mother has informed [me] that the meetings are always nice and that the children appear to be happy to see their parents though they often tend to seek out foster mother during the visit for comfort. Foster mother reports that the children seem to be bonded to their parents and that both parents appear to be happy to be with their children and usually bring them toys and food.

Ms. Gonzalez reported the parents had been complying with the juvenile courts orders. The parents had completed parenting classes. The father was attending 12-step meetings and participating in a 3-month alcohol and drug program. The father was in compliance with the program requirements from March 27 through April 24, 2006. The father had been testing randomly with several negative results. Ms. Gonzalez recommended psychological, drug, and alcohol testing for the mother: The Department respectfully recommends that [the mother] be ordered to get psychological testing as well as to be ordered to drug and alcohol test as there have been reports of the possibility of mother using in the past and to further understand [the mothers] uncooperative behavior in receiving services from [the department] and regaining custody of her children.

The parents were present at the June 20, 2006 hearing. The matter had been set for a progress report, with a 12-month review hearing set for October 24, 2006. The mother said she was not getting anger management therapy yet because it was too much money. The juvenile court ordered, [The department] shal[l] assist mother in having a psychological testing . . . . In two separate telephone conversations in July 2006, Ms. Gonzalez gave the parents referral information for the father to continue therapy and the mother to complete a psychological evaluation.

M. July 2006

On July 11, 2006, a meeting was conducted with Ms. Gonzalez, the foster family agency case manager, Laura Means, and the foster mother. They discussed the mothers behavior and her lack of interest in and bonding with her children. According to a department report: [The] mother called [the] foster mother to verbally attack her and accuse her of calling her cell phone and telling her off and hanging up. Then [the] mother told [the] foster mother she was going to call the police to report her for the calls. The foster mother referred to the mothers odd behavior. According to the foster mother, during visits there was little interaction with the children. The foster mother saw no attempt by the mother to bond with the children. The mother was easily annoyed by the children and did not hold or hug them. The mother gave the youngest child back to the foster mother for changing and feeding. The mother would sit on a bench in the park and rarely tried to interact or play with the children. The mother failed to thank the children for a birthday present they gave her. The mother became annoyed once when she called and the children were anxious to go back outside and play; she told them, [I]f they were so busy she was never, ever going to call them again. The foster mother believed the mother should be required to drug and alcohol test.

Ms. Gonzalez spoke to the mother on July 29, 2006. For a second time, the mother was provided psychological evaluation referrals. The mother said: the parents were looking for an apartment in Pasadena; she was not attending counseling; she was looking for counseling sites in Pasadena; and she was aware of the juvenile courts order to attend anger management classes and she needed referrals for such a program in Pasadena.

N. October 2006

The father met Ms. Gonzalez at her office on October 20, 2006. Ms. Gonzalezs notes state as follows: [The father] came to meet with [me] to inquire about referrals for anger management and counseling. [I] inquired about why he waited [until] three days before the court [hearing] before asking for referrals . . . . [The father] reported to having no time before. [I] inquired about the reports [I] had given [the mother] through the [foster family agency] case manager and to him in the past. [H]e reported to misplacing them. [] [I] informed [the father] that [I] had completed the report[] and that [I] was recommending to terminate services as [I] had not had any contact with [the parents] and was not aware of any services they had completed. [The father] admitted to not doing counseling or therapy all this time. He further reported to not having a home for the children. [The father] reported to not wanting to lose his children and would do whatever it took to get his children back. [] [I] went over the report with [the father], he denied mother being standoffish with the children and alluded his reaction to the children at times because she suffered from bad headaches. [Sic] [] [I] inquired about [a]n address that [I] could send correspondence to, he reported to not having an address at this time. [I] suggested getting a PO [box] in order for them to receive important correspondence. The childrens therapist, Ms. Holroyde, recommended that the parents and their oldest child, V.B., participate in family therapy. The parents refused.

The department filed an October 24, 2006 status review report. The children remained in their foster home where they appeared happy and comfortable. The foster mother had, through persistent effort, enrolled the two oldest boys in a local private Catholic school. All of the children were doing well. They did not have any developmental or behavioral problems. The three older boys enjoyed school. The children were visiting with their parents every other Sunday for four hours. The parents and foster mother had agreed to this schedule. They agreed it was difficult for the parents to travel to the foster mothers neighborhood every week. Ms. Gonzalez offered to pick the children up and bring them to the departments office for visits with the parents, but they never followed up on the offer.

On September 28, 2006, Ms. Gonzalez had asked V.B. how he felt about going home to his parents. V.B. was hesitant to answer. He said it was a hard decision to make. Ms. Gonzalez reported, In previous meetings with the children, children have reported to [me] that they would like to go back to their parents once they have a home to live in like nanas and when [the] father stops drinking.

The foster mother reported continuing concerns about the mother. The mother said she drank alcohol due to her being depressed because the children were detained. On one occasion the mother called the foster mother. Again, the mother verbally abused the foster mother during the telephone conversation. In the conversation, the mother attempted to excuse her behavior by claiming she did not know what she was doing because she was under the influence in her words. There were concerns the mother might be abusing an illegal substance given her awkward and sometimes aggressive behavior.

The foster mother reported that on October 1, 2006, the parents arrived late to a school event. According to the foster mother, the mother: look[ed] as if she had the worst hangover; was slouched on a bench and did not interact with her children; and left the event early. The mother told the foster mothers cousin, [T]here was too much noise and too many people for her to be there. The father, on the other hand, did show an interest in the children. He took an active role in visits with them. The foster mother expressed concern about the mothers lack of a bond with the children. Ms. Gonzalez noted, This has been a concern that foster mother has brought up throughout the six months.

Despite attempts to contact them, Ms. Gonzalez had not met with the parents for several months, since May 26, 2006. (As noted, the departments report was dated October 24, 2006.) On September 30, 2006, the father told Ms. Gonzalez the parents had not continued with parent education or with anger management counseling as they thought they had completed those requirements. The father also said the mother had not yet completed a psychological evaluation. The father said he was saving his money and would look for an apartment once the juvenile court said he could get his children back. Ms. Gonzalez advised him to start looking for an apartment before the next court date. The father had six random drug tests with negative results from May through October 2006. He missed 10 random tests between September 2005 and September 2006.

Ms. Gonzalez concluded her October 24, 2006 status review report as follows: Due to there being minimal contact with the family and not knowing what it is that they are planning to do or what they have completed due to their lack of communication with the department, it is difficult to make an educated assessment. It appears that the family has not been in compliance with court orders as well as with the case plan. [] [I] continued to have a difficult time in meeting with [the parents]. [Since May 26, 2006,] when [I] attempted to meet with mother at the park and she became aggressive[, the mother] has not been willing to meet with [me] since. [I have] tried to contact the family on the phone with little response. The times [I] was able to speak with [the parents], they always made it a point to be quick and hang up due to their being busy. [I] did not meet face to face with the parents in the last six months due to their resistance. [I] had telephonic contact with mother on [July 29, 2006]. Further [I] had telephonic contact with father on [July 5, 2006] and [September 30, 2006]. On both occasions [the father] informed [me] that he was busy and he would call [me] later or would come to the office when he had some time. [The father] did neither. Ms. Gonzalez also noted: the mother had not completed a court ordered psychological evaluation; she stopped attending therapy in May 2006; and she had not made an effort to work with the department in order to reunify with her children; further, she did not appear interested in forming a bond with her children. With respect to the father, Ms. Gonzalez observed that he had partially complied with his case plan and court orders. He had submitted to random testing, although he had also missed some test dates. He completed alcohol and drug education sessions, group discussion sessions, and Alcoholics Anonymous meetings. Ms. Gonzalez recommended that family reunification services be terminated and that the department provide permanent placement services to the children. Ms. Gonzalez further recommended that adoption be the permanent plan. Initial adoption assessments were prepared on October 17, 2006. The children were found likely to be adopted.

Both parents appeared at the 12-month review hearing on October 24, 2006. The juvenile court found the mother had not received proper notice; the reports were not mailed to her. The juvenile court ordered 10 additional weeks of parenting classes for the parents.

Ms. Gonzalez spoke to the mother by telephone on October 27, 2006. The mother said she had enrolled in psychological services, but had not started yet; she was waiting for an intake appointment. The mother also said she would be getting counseling and anger management classes from the same establishment. The mother provided Ms. Gonzalez a mailing addressher brother-in-lawswhich she said she had given to the court many times. The mother denied using alcohol or being under the influence or hung-over in the childrens presence.

O. November 2006

The department filed a November 9, 2006 interim review report. The children remained in their foster home. There was no new information with respect to the parents. The parents were present at the November 9, 2006 hearing, which the juvenile court noted was set for a hearing on the selection of a permanent plan. The hearing was continued to November 17, 2006, as the fathers attorney was unavailable.

Department social worker Maria Madrigal spoke to the foster mother about adoption on November 2, 2006. The foster mother said she would love to adopt the children as she is very attached to them, but she thought it would be better if a more financially well off family adopted them. She expressed concern that as the children got older they would need extras that she could not provide, and it would be an injustice.

A contested section 366.21, subdivision (f) permanency hearing was held on November 17, 2006. The parents were both present. The departments March 8, June 20, October 24, and November 9, 2006 reports were admitted into evidence without objection. The department also requested judicial notice be taken of the juvenile court file. The fathers counsel introduced the departments delivered service logs. The parties stipulated that, if called to testify, the mother would say: she had just started individual counseling on October 26; she had attended one counseling session; and she would continue to do so on a weekly basis. The parties further stipulated that, if called to testify, the father would say: he had completed a parenting class as ordered by the court; he had completed an alcohol and drug program through N.C.A.D.D., as evidenced by a letter from Susan Turnbull; he had randomly drug tested on at least seven separate occasions; but he did not have receipts for the other times he had drug and alcohol tested; he had participated in individual counseling; that was terminated as a conflict between the father and his female therapist arose; the father desired to undergo therapy with a male therapist; and he had enrolled in individual counseling with a male therapist in October and was continuing to attend. The department acknowledged that the parenting component has been completed as well as the alcohol program. The juvenile court found the mother was not compliant with her case plan, and the father was in only partial compliance with his. Specifically, with respect to the father, the juvenile court found: He finished half the parenting. The court ordered 10 more weeks, that he did not do, so he did half of the parenting. Hes done some of the counseling even though he quit in June. He never finished counseling. He never finished parenting. He may have done the N.C.A.A.D. alcohol program but hes not in compliance with testing. The juvenile court: found the children could not be returned to their parents physical custody; there was no substantial probability the children would be returned within six months; terminated reunification services; and set a 366.26 hearing for March 16, 2007. The juvenile court directed counsel, Youre to give your clients a copy of their appeal rights, including the right to seek an extraordinary writ and a right to a rehearing by a judge. The juvenile court further stated, Clerks office is to do the same thing, notify the parents at their last known address.

P. January Through March 2007

The department filed a January 10, 2007 addendum report which indicated adoptive worker Robert Mariscal was looking for an adoptive home for the children. On February 27, 2007, a family therapy session was held with the parents, foster mother, and V.B. Ms. Holroyde reported: [B]irth mother displayed a difficulty in listening to or acknowledging [V.B.s] feelings and as a result no follow up session was scheduled as this therapist was concerned it would negatively impact [V.B.]. Also, the department filed a March 6, 2007 section 366.26 report. There were no prospective adoptive homes available as of that date. An adoptive family was actively being sought. The parents both appeared at the March 6, 2007 hearing. The juvenile court declared the children to be a sibling group and ordered the children placed together. The juvenile court also ordered the department to submit a report addressing possible guardianship with the foster mother.

Q. May 2007

The department filed a May 18, 2007 status review report. The case had been transferred to department social worker Yaquelin Rodriguez. The oldest child, V.B., was upset that reunification with the parents had not occurred. Ms. Rodriguez reported: on May 8, 2007, Ms. Holroyde said V.B. was up and down because he had not been returned home with his parents; he was angry that reunification had not occurred; and he hated the word adoption. The children continued to have twice monthly monitored visits with their parents. The foster family agency social worker, Ms. Means, who monitored the visits, had to cancel one of them because the mother once again became verbally aggressive. But, apart from the mothers aggressive conduct directed at Ms. Means, the visits had otherwise gone well. A married couple had expressed an interest in adopting the children. They were scheduled to meet with the children in their foster home. By letter dated May 9, 2007, Ms. Holroyde reported that V.B. needed a clear plan for his future. He was suffering increased anxiety given the unknown nature of his future. The parents were present at the May 18, 2007 hearing. The court found the department was making reasonable efforts to move the case to permanence. The next hearing date was set for August 16, 2007.

R. August 2007

In August 2007, Ms. Holroyde requested that V.B. and his siblings not be required to attend court on August 16, 2007. She reported that V.B. had been having suicidal thoughts. Ms. Holroyde was concerned about his safety and well-being.

The department filed an August 16, 2007 section 366.26 report. The report noted: Ms. Holroyde stated in her letter dated [July 13, 2007] that it is in her professional opinion that the visits with the biological parents should be restricted to once a month or not at all as the boys are regressing and appear to feel guilty for having fun when they are with the adoptive parents. They are struggling with [t]he fact that they are leaving the [foster] mother and having visits with the biological parents. Also the adoptive parents appear to be leading to some confusion for them. Furthermore, the boys have so many visits and appointments it is hard for them to find time to be children and play. The August 16, 2007 report further observed: The visits with birth parents have historically been unpredictable, with regards to birth parents appropriate interactions with the boys and this unpredictability continues. . . . As reported by [the foster family agency social worker], during the last visit birth mother proceed[ed] to enter the visit, sit down, place her head down on the table, and come in and out of sleep throughout the visit without interacting with any of her children. The next day, foster mother reported, mother called and spoke with [V.B.] asking him to explain why he did not play with mother at the visit. This shows birth mothers continued difficulty in being able to recognize, identify, or appropriately respond to the emotional needs of her children. This further suggests the need for a tapering off of visits/contacts with birth parents.

Prospective adoptive parents had been identified. They had been visiting with the children, including an overnight visit from July 13 to 15, 2007. On July 16, 2007, the social worker told the boys they would be moving in with the prospective adoptive parents within a few weeks. The process had taken an emotional toll on the children. V.B. displayed increased aggression towards his siblings, and defiance towards the foster mother. A.B. was withdrawn. E.B. was exhibiting regressive behaviors such as clinging to his foster mother. The children were placed in the adoptive home in July 2007. The adoptive mother said the boys were adjusting well. The department recommended that parental rights be terminated. A section 366.26 hearing was held on August 16, 2007. The matter was continued to November 15, 2007, for supplemental reports. The court ordered the department and the parents to agree on a regular visitation date every other week for two hours.

S. November 2007

The department filed a November 15, 2007 section 366.26 report. The children were adjusting to their new placement. The children were receiving family therapy with their prospective adoptive parents. The children continued to visit with their biological parents.

The parents appeared at the November 15, 2007 hearing. At the request of mothers counsel, who had just substituted into the case, the matter was continued to January 14, 2008. The mothers new attorney stated in part, Id request a sufficient amount of time to confer with my client to determine whether theres a 388 possibility . . . . The juvenile court responded, If theres going to be a 388 filed, it must be filed timely. The court does not grant continuances of .26s for 388s, pursuant to Marilyn H. The court gave the department discretion to reduce the frequency of parental visitation.

T. The Mothers Section 388 Petition Filed On January 14, 2008

The mother filed a section 388 petition on January 14, 2008. She sought to change the juvenile courts order terminating reunification services, an order returning the children to her, or continuing reunification services with unmonitored visitation. The petition was not verified as required by section 388. The petition declared: Mother . . . has completed individual counseling that addressed anger issues with Gitty Rassouli, Psy. D.; has completed a parenting course; and now has stable housing. [The mother] also did counseling at the Center for Individual and Family Counseling. She has also visited her children regularly. The petition further declared: [The mother] has shown a willingness to reunite with her children by completing court-ordered programs. She has visited them regularly and the visits have gone well. Mother has established a strong bond with her children and it is in the childrens best interests to reunite with her. The mother declared: I live at [an address in Pacoima, California]; I have been routinely participating in individual counseling with Gitty Rassouli, Psy. D., in Van Nuys for approximately one and a half years; I also did counseling at the Center for Individual and Family Counseling; I have completed a parenting program and received a certificate of completion; I have been visiting my children regularly, at least two times per month[, and] [t]he visits have gone well; and I currently have stable housing and am ready, willing, and able to have my children returned to me.

At the January 14, 2005 hearing, the following occurred: The Court [addressing mothers counsel, John Reilly]: Mr. Reilly, any evidence to present? [] Mr. Reilly: Your honor, I propose the stipulated testimony on behalf of my client. My client has indicatedI provided a declaration on her behalf attached to a 388 petition filed and served on all parties today. [] The Court: I have not seen the 388 or the declaration. [] [Morgan Spector, representing the father]: I dont have it, your honor. [] The Court: So, basically, Im not going to be acting on it. Its untimely. [] [Mr. Reilly]: Id like to call my client to the stand. [] The Court: All right.

The juvenile court denied the petition by a written order dated January 14, 2008. The juvenile court found: the petition did not show that it would be in the childrens best interest to change the order; the petition was filed at the section 366.26 hearing and was untimely; and there was no continuance request.

U. The January 14, 2008 Hearing

The contested section 366.26 hearing was held on January 14, 2008. The departments reports dated March 6, August 16, and November 15, 2007, together with information for court officer dated August 16, 2007, were admitted into evidence without objection. The department also requested judicial notice to be taken of the juvenile court file. The parties stipulated that the father would testify as follows: [T]here is, remains, and continues to be a strong bond between him and the children; that they constantly ask himthey refer to him as daddy or father. They continue to ask him when they are going to come home. They tell him that they want to come home, and they do not want to remain with the foster parents. [] . . . [He] has in fact completed all of his programs, and hes ready, willing, and able to receive the children back in his home at this time. The home is clean and a safe place for the children to be.

The mother testified as follows. She was ordered by the court to complete a program of individual counseling and parenting classes. The mother participated in individual counseling with a counselor, identified only as Giddy. The mother did not recall Giddys last name. The mother thought the counseling had lasted three months. The mother had seen a counselor named Abbey before that, for two or three months. She also attended two parenting classes. She completed her parenting class. She stated, I have my certificates too, but they got lost here in the files. She had been visiting her children regularly. During the past six months, she had been visiting her children approximately twice a month. The visits lasted two hours. She played with the children during the visits. The parents brought them things to eat and toys. The children call her Mom sometimes. She did not help them with their homework, but she did talk to them about school. She talked to them about their teachers and told them to be good to their instructors. She knew what grades her children were in. She remembered them talking to her about their favorite school subjects. She did not know what kind of interests V.B. had because, We hardly talk. She did not know what interests A.B. had. She thought the children liked soccer, but she was unsure. Her children had not told her that they were interested in any subjects in school because, We hardly dont have a lot of time to talk that long. She had stable housing in Pacoima. There were two bedrooms and two bathrooms. One bedroom was for the children. They had the financial means to take care of the children. She wanted the children returned to her. Her visits with the children had been consistent. She looked forward to her visits with the children.

The juvenile court terminated the mothers and fathers parental rights. It ordered the department to refer the matter to the consortium to consider post-adoption contact.

III. DISCUSSION

A. The Mothers Appeal

1. The Section 388 Petition

The mother contends the juvenile court erroneously denied her section 388 petition without a hearing based on a blanket policy to not consider such petitions filed . . . on the eve of a section 366.26 hearing. Also, she contends the juvenile court failed to exercise its discretion in determining whether the modification petition made a prima facie showing of changed circumstances and best interests of the children. As a result, the mother concludes, reversal and remand is mandatory. In addition, the mother asserts her modification petition made the requisite prima facie showing; therefore, it was an abuse of discretion to deny the petition without affording her a hearing. We find no error nor abuse of discretion.

Section 388 provides in part: (a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself or herself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child, shall state the 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. . . .   [] (c) If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, or termination of jurisdiction, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to the persons and by the means prescribed by Section 386, and, in those instances in which the means of giving notice is not prescribed by those sections, then by means the court prescribes.

Our Supreme Court stated the standards applicable to a section 388 petition as follows: The petition for modification must contain a concise statement of any change of circumstance or new evidence that requires changing the [previous order. [Citation.] The petition must be liberally construed in favor of its sufficiency. [Citations.]. . . [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.] (In re Jasmon O. (1994) 8 Cal.4th 398, 415; see In re Hector A. (2005) 125 Cal.App.4th 783, 792-793.) Whether the order should be modified rests within the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (In re Jasmon O., supra, 8 Cal.4th at p. 415; In re Stephanie M. (1994) 7 Cal.4th 295, 316.) The parent has the burden of showing changed circumstances by a preponderance of the evidence. (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.)

The request for change must be viewed in the context of the dependency proceedings as a whole. (In re Marilyn H., supra, 5 Cal.4th at p. 307; In re Heather P. (1989) 209 Cal.App.3d 886, 891.) As our Supreme Court explained in Marilyn H.: The requirement of petitioning the court for a hearing pursuant to section 388 to show changed circumstances must be viewed in the context of the dependency proceedings as a whole. (Cynthia D. v. Superior Court [(1993) 5 Cal.4th 242,] 253.) Dependency proceedings are proceedings of an ongoing nature. While different hearings within the dependency process have different standards and purposes, they are part of an overall process and ongoing case. One section of the