In re A.C.

Filed 1/19/10 In re A.C. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court for the County of Los Angeles.

Sherri Sobel, Referee. Affirmed.

Lori A. Fields, under appointment by the Court of Appeal; Law Offices of Vincent W. Davis & Associates and Mark L. Tseselsky, for Defendant and Appellant.

Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.

_______________________________

SUMMARY

The mother appeals from orders that (1) denied her Welfare and Institutions Code section 388 petition to change a previous order terminating her reunification services and (2) terminated parental rights to her baby son, A.C., who was then 14 months old.[1] She contends the juvenile court used the wrong legal standard to evaluate her section 388 petition and abused its discretion under the correct legal standard. She also contends she established the continuing beneficial relationship exception to termination of parental rights. Finding no merit in the mothers contentions, we affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

A.C. was born prematurely in February 2008. His mother used illicit drugs and had a positive toxicology screen for amphetamines when the baby was born. A.C. was in critical condition at birth and remained in the hospital for most of the following five months. Because of the mothers drug use, A.C. was detained by the Department shortly after he was born.

At the jurisdictional hearing on April 24, 2008, the juvenile court sustained allegations that the mother had a history of drug use and was a current user of amphetamine and methamphetamine, limiting her ability to provide regular care for the child and placing him at risk of harm.[2] The court ordered a drug rehabilitation program with random testing for the mother, as well as parenting class and individual counseling, and ordered monitored visitation for her at least two times per week (and, so long as the baby was hospitalized, as often as the hospital would allow). The court warned the mother that, if she did not get her baby back within six months (by October 23, 2008), the court could impose a permanent plan for the child that could include termination of her parental rights, so [y]ou need to really do what you need to do. [3]

A.C. is a medically fragile baby, who had (and continues to have) multiple medical issues, including reactive airway disease (which can cause respiratory distress requiring the use of a nebulizer to help open the airway), bronco pulmonary dysplagia, subglottic stenosis, a weak immune system, gastric reflux disease, and other conditions. A.C. requires ongoing care. He takes at least five medications and sees several specialists, including an ear, nose and throat specialist at Loma Linda (who has performed a number of outpatient surgeries for A.C.), an ophthalmologist and a pediatrician.[4]

A.C. was initially released from the hospital and placed with foster parents on June 11, 2008. (While both paternal and maternal grandmothers wanted custody of A.C., neither was qualified to undertake his care for various reasons; A.C.s caretakers must take classes designed to train them to meet the medical needs of medically fragile children.) But A.C. had to return to the hospital one day later; he was eventually released from Loma Linda, in the care of the foster parents, on July 23, 2008. Since then, A.C. has remained with the foster parents and his health has remained stable with no complications requiring hospitalization, although emergency medical services have been provided on more than one occasion because of severe vomiting and diarrhea. A.C.s foster mother is trained as a nurse and shows to be very involved in his care; his foster parents want to adopt A.C.

On October 23, 2008, the date for the six-month review hearing, the court observed that the mother was completely not in compliance, or out of compliance with her case plan. The Department recommended termination of the mothers reunification services. The mother had had a positive drug test on June 10, 2008, and was terminated from her drug treatment program for noncompliance on August 15, 2008; her individual therapy had also been terminated on October 6, 2008, for the same reason. The mothers counsel requested a contested hearing, which was scheduled for November 20, 2008.

At the November 20, 2008 hearing, the juvenile court terminated the mothers reunification services, observing that the mother had regular and consistent contact with the baby, but the court could not find that the mother had made significant progress in resolving the problems which led to the removal of the child. [5] As the court observed, You waited way too long. You were warned at least three times that your child was under the age of three, and hes special needs, to boot. A section 366.26 hearing on termination of parental rights and A.C.s permanent placement was set for March 19, 2009; the court stated the mother had the right to continue visiting A.C. The mother was advised of her right to appeal the courts decision by filing an extraordinary writ, but she did not do so.

On the date of the hearing (March 19, 2009), the mother filed a section 388 petition to change the courts November 20, 2008 order terminating family reunification services, but included no proof. The court allowed counsel to withdraw it without prejudice to re-filing, and set a contested hearing on termination of parental rights and on the mothers anticipated section 388 petition for April 29, 2009.

On the day before the April 29 hearing, the mother refiled her section 388 petition, requesting A.C.s return or alternatively that her reunification services be reinstated and extended to September 7, 2009 (18 months from the date A.C. was detained). Her petition showed she was currently (as of April 2) in compliance with her drug treatment program;[6] she had enrolled in individual therapy counseling on November 10, 2008, and (as of November 12, 2008) appeared open, frank and forthcoming to therapy. She had successfully completed CPR and standard first aid classes. The mother declared she had tested clean consistently since June 2008; was fully committed to [her] sobriety and ready, willing and able to have [A.C.] home; and was aware of his medical condition and able to provide any special care that he requires or to arrange for any such care when I am working.

At the hearing, the court observed the section 388 petition was untimely, but allowed evidence to be presented on the petition. The mother presented testimony from Jose Galindo, a Department social worker. Galindo had monitored a visit by the mother on November 5, 2008, and complimented her for the positive interaction he observed between mother and son; he testified the mother was consistent with her visits and that the visits had gone well. The mother testified that A.C. smiles and touches mothers face when she holds him; she would finish her drug treatment program on May 13, 2009; that she was trained on the use of the nebulizer for A.C. in April 2008; she understood A.C. sometimes needs dilation (which had occurred six times from July to October 2008) because of the scarring in his throat; she first learned that A.C. needs his heart rate monitored on the day of her testimony; she learned a few months previously that A.C. would need to wear a helmet (for a misshapen head from being on a ventilator), which he had begun to do in April 2009; and she was not aware of any eye problems until the day of her testimony. The mother testified that she lived in the same house as her uncle (who had exhibited aggressive, disrespectful and threatening behavior at a meeting in February 2009, causing the Department great concern over the mothers housing arrangements), but would be willing and able to live elsewhere, as she could support herself and provide for A.C. The foster mother also testified, describing A.C.s several medical conditions (see ante at page 3 and footnote 4): she also stated that A.C.s developmental delays required physical therapy twice a week and that speech therapy would begin soon. The foster mother testified that the mother began attending A.C.s medical appointments in November or December, but did not ask any questions about A.C.s medical needs.

The mothers counsel argued that the mother had demonstrated resolve to be an appropriate and caring parent sufficient to justify reopening reunification services and giving her until the 18-month date to deepen her involvement with the child and to put herself in a position to take A.C. home, which I think can is something that we can reasonably look forward to accomplishing in that time period.

The juvenile court denied the mothers petition. The court observed that the mother had had regular and consistent contact with the child and had demonstrated the capacity and ability to complete the objectives of her treatment plan and provide for A.C.s safety, well-being and special needs. However, the court stated that it could not find that the mother had made significant progress in resolving the problems that led to A.C.s removal, and that while there were changing circumstances, the court could not find a substantial probability that A.C. could be returned to the mother in the next 120 days (i.e., by the end of the 18-month period).[7] I cannot find that the mother has changed enough to make that an available option for me,^[[8]] and I certainly cannot find by a preponderance of the evidence that it is in the best interest of the child to let her try.[9] After stating that [t]his case does not give me any pleasure whatsoever, the court terminated parental rights, finding A.C. was adoptable and rejecting the mothers claim that her evidence established the continuing beneficial relationship exception to termination of parental rights.

The mother filed a timely appeal.

DISCUSSION

The mother contends the court used the wrong legal standard to evaluate her section 388 petition and abused its discretion under the correct legal standard. She also claims the court erred in terminating her parental rights. We find no merit in any of the mothers claims.

1.      The court did not err in denying the mothers

section 388 petition.

We briefly review a few salient points in the statutory scheme.

First, in cases like this one, where the child is under three years old when removed from the parents, the presumptive rule is that reunification services will not exceed a period of six months from the date the child entered foster care. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 174-175 (M.V.).) The unique developmental needs of infants and toddlers [citation] justifies a greater emphasis on establishing permanency and stability earlier in the dependency process in cases with a poor prognosis for family reunification [citation]. (Id. at p. 175.)

Second, the status of dependent children in foster care must be reviewed at least once every six months (M.V., supra, 167 Cal.App.4th at p. 175), and normally reunification services may be extended up to a maximum period not to exceed 18 months after the child is removed from the parents physical custody. (361.5, subd. (a)(3)); Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 848 (Tonya M.) [18 months represents the ultimate lid on services].)[10] For children under the age of three, during the first six-month period reunification services are afforded essentially as a matter of right except under certain circumstances. (Tonya M., at p. 845.) During the second six-month period, a heightened showing is required to continue services; the juvenile court must find a substantial probability that the child may be safely returned to the parent within six months in order to continue services. (Ibid., quoting 366.21, subd. (e).) And during the final six-month period, services are available only if the juvenile court finds specifically that the parent has consistently and regularly contacted and visited with the child, made significant progress on the problems that led to removal, and demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs. (Ibid., quoting 366.21, subd. (g)(1)(A)(C).)

Third, once reunification services are ordered terminated (as in this case), the focus shifts to the needs of the child for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) Then, to revive the reunification issue the burden is on the parent to prove changed circumstances pursuant to section 388 . (Ibid.) Under section 388, which permits a parent to petition the juvenile court for a hearing to change, modify or set aside a previous order, the parent has the burden of showing, by a preponderance of the evidence, both changed circumstances or new evidence and that the proposed change in the order would promote the best interests of the child. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446.)

We turn now to this case. The mother first argues the juvenile court did not use the correct legal standard, which is as we have just stated: the mother must show both changed circumstances and that providing further reunification services would promote A.C.s best interests. (In re Aaliyah R., supra, 136 Cal.App.4th at p. 446.) The mother claims the court erroneously considered the three factors that must be evaluated when the court decides, at a 12-month review hearing, whether to extend reunification services for an additional six months. (See ante; 366.21, subd. (g)(1)(A)-(C).) The court did indeed consider those factors whether the mother consistently visited the child, made significant progress on the problems leading to removal, and demonstrated the ability to complete her treatment plan and provide for the childs well-being and special needs but we can discern no error in the courts having done so.

The statutory scheme prohibits the court from providing reunification services beyond the 18-month lid, which in the mothers case would have ended on or around September 7, 2009, approximately four months after the section 388 hearing (18 months after A.C.s removal on March 7, 2008). And Tonya M. tells us that in the usual case (where reunification services have not yet been terminated) [d]uring the final period services are available only if the juvenile court finds specifically each of the three specified factors. (Tonya M., supra, 42 Cal.4th at p. 845, emphasis added.) Accordingly, the juvenile courts observation that it could not find a substantial probability that A.C. could be returned to the mother in the next 120 days and specifically that it could not find that the mother had made significant progress in resolving the problems that led to A.C.s removal (the second factor) was entirely appropriate.

The mother insists the juvenile court was not required to find that A.C. would be returned to mother at any specific point in time in order to find a change of circumstances or that [A.C.s] best interests would be promoted by providing mother with additional services to facilitate ultimate reunification, and that the courts belief to the contrary was erroneous and prejudicial. She points to Marilyn H., supra, 5 Cal.4th 295, which explained that section 388 provides a parent with an opportunity to revive the reunification issue by proving changed circumstances, even after 18 months of reunification services have been provided and a permanency hearing has been set. (Id. at p. 309.) But nothing in Marilyn H. suggests that the court, in deciding whether circumstances have changed, may ignore the very factors that determine whether additional reunification services should be provided. Indeed, Marilyn H. emphasizes the importance of the childs interests at this stage:

It is presumed, at that point [after termination of reunification services], that continued [foster] care is in the best interest of the child. The parent, however, may rebut that presumption by showing that circumstances have changed that would warrant further consideration of reunification. [] It must be remembered that up until the time the section 366.26 hearing is set, the parents interest in reunification is given precedence over the childs need for stability and permanency. This could be for a period as long as 18 months. Another four months may pass before the section 366.26 hearing is held. While this may not seem a long period of time to an adult, it can be a lifetime to a young child. Childhood does not wait for the parent to become adequate. (Marilyn H., supra, 5 Cal.4th at p. 310.)

In short, after reunifications services are terminated, as in this case, the parents interest is no longer paramount, and the focus shifts to the needs of the child for permanency and stability. (In re Angel B. (2002) 97 Cal.App.4th 454, 464 (Angel B.).) The rebuttable presumption that continued foster care is in the best interest of the child obviously applies with even greater strength when the permanent plan is adoption rather than foster care. (Ibid.) Accordingly, it was entirely proper for the court to consider whether the change in circumstances asserted by the mother established a substantial probability that A.C. could be returned to her within the 18-month period.

In the end, however, even if the juvenile courts use of the statutory factors necessary for providing extended reunification services were improper in the context of a section 388 petition, that fact would avail the mother nothing. This is because the court in any event expressly stated that it certainly [could not] find by a preponderance of the evidence that it is in the best interest of the child to provide further reunification services to the mother. This point whether the proposed change in the courts order would promote the best interests of the child is the sine qua non for grant of a section 388 petition. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 (Kimberly F.) [[i]t is not enough for a parent to show just a genuine change of circumstances; the parent must show that the undoing of the prior order would be in the best interests of the child].) We may not disturb the juvenile courts ruling unless the mother can show it was an abuse of discretion (In re Casey D. (1999) 70 Cal.App.4th 38, 47), and she has not done so.

The factors that should be examined in determining a childs best interests under a motion made pursuant to section 388 include (1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.[11] (Kimberly F., supra, 56 Cal.App.4th at pp. 530, 532.) The mothers evidence that it would be in A.C.s best interests to give her a further opportunity to reunify with her child consisted of these facts: she consistently and regularly visited A.C.; she interacted with A.C. in a loving manner and mother and child shared a positive relationship; the social worker reported after a visit in November 2008 that the mother demonstrated appropriate bonding to her son and A.C. responded well to his mother with smiles and comfort (and since mother continued consistent twice-a-week visitation since that time, this would have only strengthened that bond and relationship); and A.C. had a large extended family, several of whom spent a substantial time visiting him and developing relationships with him.

On this record, we cannot say the trial court abused its discretion in concluding, as it emphatically did, that mother did not establish that A.C.s best interests would be served by providing further reunification services. First, A.C. was 14 months old and had been in the care of his prospective adoptive parents for the last nine of those 14 months. The Departments report stated that:

[A]ll of [A.C.s] global needs have been successfully addressed by the [foster parents]. In addition, [the foster mother] continues to apply her knowledge and skills to meet [A.C.s] medical needs as well as to advocate for his current medical care. To date, the [foster parents] have been successful [in] meeting all of [A.C.s] medically fragile needs as well as his emotional needs. This is evidence by [A.C.s] current medical stability and his current attachment to the [foster parents].

Second, the problem that brought A.C. into the dependency system the mothers drug use during her pregnancy was a serious one, and it continued through the six-month reunification period, resulting in the termination of services. Third, drug abuse is notoriously not a problem that is easily removed or ameliorated. (See Kimberly F., supra, 56 Cal.App.4th at pp. 532, 531, fn. 9 [noting its doubt that the parent who loses custody of a child because of the consumption of illegal drugs and whose compliance with a reunification plan is incomplete during the reunification period could ever show a sufficient change of circumstances to warrant granting a section 388 motion; [i]t is the nature of addiction that one must be clean for a much longer period than 120 days to show real reform]; In re Edward H. (1996) 43 Cal.App.4th 584, 594 [on the eve of the section 366.26 permanency planning hearing the childrens interest in stability was the courts foremost concern and outweighed any interest in reunification; the prospect of an additional six months of reunification to see if the mother would and could do what was required to regain custody would not have promoted stability for the children and thus would not have promoted their best interests].)

In re Angel B., supra, 97 Cal.App.4th 454 is instructive. There, the facts presented by the section 388 petition showed that Mother is doing well, in the sense that she has remained sober, completed various classes, obtained employment, and visited regularly with Angel. (Id. at pp. 464-465.) Further, the court assumed, for purposes of the appeal, that the mother would be able to remain sober, employed, and so on. Even so, the court concluded, those facts were not legally sufficient to require a hearing on the mothers section 388 petition, because she made no factual showing that the best interests of the child would be served by changing the courts order to give her custody or reunification services. (Id. at p. 465.) The court explained:

Here, Mother has not made such a showing, and it is difficult to imagine how she could have done so, given the fact that Mother never actually parented Angel before her removal, and Angel was immediately placed with an adoptive family and her own sibling. Angel was removed from Mothers custody directly from the hospital, just two days after her birth. . . .  The parents in [the family with whom Angel was placed] clearly, by deed if not by name, were Angels parents. They, not Mother, provided Angel with all the day-to-day, hour-by-hour care needed by a helpless infant and then growing toddler. Thus, although Mothers petition states that she has bonded with Angel, and that Angel is happy to see her and reaches for her on their visits, such visits, in total, add up to only a tiny fraction of the time Angel has spent with the foster parents. On this record, no reasonable trier of fact could conclude that the bond, if any, Angel feels toward Mother (as opposed to the bond that Mother feels toward Angel) is that of a child for a parent. [] Perhaps if Angel were not adoptable and Mother was the only mother-figure in Angels life, and Angels only hope of having a family in the future, the result might be different. [Citation.] But those are not the facts presented here. (Angel B., supra, 97 Cal.App.4th at p. 465.)

The same is true in the case before us, and the result is likewise the same: there was no abuse of discretion in the juvenile courts denial of the mothers section 388 petition.

2.      The court did not err in terminating parental rights.

The mother also contends the juvenile court should not have terminated her parental rights because she established a statutory exception to termination of parental rights that applies when termination would be detrimental to the child because the parent has maintained regular visitation and the child would benefit from continuing the relationship (sometimes referred to as the continuing beneficial relationship exception).[12] The mothers claim has no merit.

When, as here, a child is found adoptable, the termination of parental rights and adoption is considered the best mechanism to ensure the child has a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.] (In re Helen W. (2007) 150 Cal.App.4th 71, 80 (Helen W.).) The parent asserting the beneficial relationship exception to termination of parental rights has the burden to show both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship. (Id. at pp. 80-81, citing cases.) Further:

To overcome the strong policy in favor of terminating parental rights and to fall within [the purview of the beneficial relationship exception], the parent must show more than frequent and loving contact [citation], and be more to the child than a mere friendly visitor or friendly nonparent relative. [Citation.] The parent must show the parent-child bond is a substantial, positive emotional attachment such that the child would be greatly harmed if parental rights were terminated. [Citation.]

In deciding whether the exception applies, the juvenile court must balance the strength and quality of the natural parent/child relationship against the security and the sense of belonging a new family would confer. [Citation.] The factors to be considered include: (1) the age of the child, (2) the portion of the childs life spent in the parents custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the childs particular needs. [Citation.] (Id. at p. 81.)

Here, there is no doubt the mother visited A.C. regularly from the time he was born, and she continued her twice-weekly monitored visits up to the time of the hearing. But it is also clear that, as in Helen W., sufficient evidence supports the juvenile courts conclusion that the exception did not apply, as there was no evidence of a substantial, positive emotional attachment such that the child would be greatly harmed if parental rights were terminated. (Helen W., supra, 150 Cal.App.4th at p. 81.) A.C. was 14 months old and had never spent any time in the mothers care and custody. As in Helen W., It is the foster mother who has provided the children with food, shelter, and care . . . . (Ibid.) As in Helen W., Nothing in the record indicates that [the child has] any needs that can be met only by the mother. (Ibid.)

As in Helen W., it is clear that the mother loves A.C. and believes he loves her. But this is simply not enough to outweigh the sense of security and belonging an adoptive home would provide. (Ibid.) Accordingly, the trial court did not err in terminating the mothers parental rights.[13]

DISPOSITION

The orders denying the mothers section 388 petition and terminating parental rights are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOHR, J.*

We concur:

FLIER, Acting P. J.

BIGELOW, J.

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

[2] At the time of the jurisdictional hearing, the father was non-offending but unable to take custody of the child. A month later, the father was killed in a street fight.

[3] If a child is under three years old when removed from the parents, the court may, at the review hearing held six months after the initial dispositional hearing, schedule a permanency planning hearing if it finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan. ( 366.21, subd. (e).)

[4] A March 4, 2009 letter from a pediatric pulmonologist at Loma Linda University Childrens Hospital indicated A.C. was under her care for bronchopulmonary dysplasia, gastroesophageal reflux, failure to thrive, retinopathy of prematurity and laryngomalacia. The letter indicated that A.C. requires monthly visits to monitor his respiratory status and development and to provide vaccines, and that breathing treatments are required daily as well as medication.

[5] The evidence showed that the mother continued her monitored visits with A.C. (as she had always done), demonstrating appropriate bonding with her son, who responded well to his mother. The mother had re-enrolled in her substance abuse program on October 22, 2008, and completed her parenting program on October 29, 2008.

[6] The mother had a positive drug test on June 10, 2008 for methamphetamines and amphetamines. She tested negative on December 26, 2008, and on subsequent dates in January and February, 2009.

[7] Under section 361.5, which governs reunification services, court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent or guardian . The court shall extend the time period only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or guardian within the extended time period . ( 361.5, subd. (a)(3).)

[8] The court said, of the mothers progress, The last report I have from her individual therapist is November of 08. I have nothing today thats been updated. She continues in her program. And I believe thats meaningful. I dont have information that she can live apart from her family. I dont have information that she has been clean and sober for at least a year. I dont have information that shes ever had one unmonitored visit with her special-needs child. Not one.

[9] The court continued: The information was she needed to get this done in the first six months. The fact that she is young and did not take that time The reason that her child is able to raise up his hand and touch her face is due to the care thats provided by the caretakers of this child 24 hours a day, seven days a week, through five or six or seven medical conditions requiring at least four, five, or six medications, regular doctors appointments which they have done to bring this child through enough so that he can touch the face of his mother, a pleasant visitor to his life.

[10] The statute was amended in 2009, adding a provision that reunification services may be extended up to a maximum time period not to exceed 24 months in certain circumstances, if it is shown at the permanency review hearing ( 366.22, subd. (b)) that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period. ( 361.5, subd. (a)(4).) To do so, the court must find it is in the childs best interest to have the time period extended and that there is a substantial probability that the child will be returned to the physical custody of his or her parent or guardian within the extended time period . (Ibid.)

[11] The juvenile court mentioned each of these factors.

[12] If the juvenile court finds it is likely the child will be adopted, the court shall terminate parental rights unless either of the following applies: [] . . . [] The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [] The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(B)(i).)

[13] In her reply brief, the mother contends the juvenile court wrongfully combined its rulings and should have held separate hearings on her section 388 petition and on termination of her parental rights. The point was not raised in the mothers opening brief and is therefore waived. In addition, the mother cites no authority to support her contention, and the mother waited until the day before the 366.26 hearing to file her section 388 petition. Therefore, she is in no position to assert she was entitled to a separate hearing.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.