In re Leticia M.

Filed 6/25/07 In re Leticia M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. James C. McGuire, Judge. Affirmed.

Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and P. Joanne Fenton, Deputy County Counsel, for Plaintiff and Respondent.

Neil R. Trop, under appointment by the Court of Appeal, for Minors.

I. INTRODUCTION

Christina M. (mother) appeals the juvenile courts September 15, 2006, order denying her petition seeking the return of her three youngest children to her care or, alternatively, further reunification services. (Welf. & Inst. Code,  388.)^[1] Mother also appeals an order of the same date establishing a guardianship as the permanent plan for the children. ( 366.26.) The children, Christopher, Donald, and Leticia, were ages 15, 11, and 9, respectively, at the time of the September 15, 2006, section 366.26 hearing. We find no error, and affirm the orders.

II. FACTS AND PROCEDURAL HISTORY

A. Background

On August 10, 2004, the Department of Childrens Services (DCS) learned that mother and Donald M., mothers husband and the childrens father (father), had both been arrested for domestic violence. Law enforcement officials were familiar with the couple based on prior incidents of domestic violence. Father admitted marijuana use and mother admitted methamphetamine use. Several hours after their arrests, mother and father were released from custody and neither was charged with any crime.

As of August 2004, mother and father had known each other for approximately 23 years, since they were ages 13 and 15, respectively. They have five children, including Christopher, Donald, and Leticia.^[2] They married after Leticia was born in July 1997.

At the time of their parents arrest, Christopher (then age 13), Donald (then age 9), and Leticia (then age 7), reported that their parents fought often, and it was very disturbing to them. At times, the children tried to intervene in their parents fights, but they became frightened and usually ran to a neighbors house. All three children also had untreated head lice.

At the detention hearing on August 13, the children were ordered detained and placed in foster care. The parents were allowed separate, supervised visitation. DCS filed petitions on behalf of all three children, alleging failure to protect based on domestic violence, medical neglect, and substance abuse. ( 300, subd. (b).)

B. The Jurisdictional/Dispositional Report (September 2004)

A jurisdictional/dispositional hearing was scheduled for September 3. Prior to the hearing, DCS recommended out-of-home placement with family reunification services. Mother reported that father had always had an explosive temper, and there had been a lot of yelling and screaming throughout their relationship.

Matters took a turn for the worse in May 2004, when mother began having an extramarital affair with a married man. Mother and father had several physical altercations since that time. Mother admitted having phone contact with her lover just prior to the August 10 altercation for which the parents were arrested. Mother had also taken the couples 15-year-old daughter Amber with her to drink beer and play pool, then contact her lover. Father took 18-year-old William with him to try and catch mother.

Mother admitted that Leticia had missed weeks of school due to her head lice problem. According to father, mother had made half-hearted attempts to treat the problem. Mother blamed Leticia for the problem, saying she would not sit still and allow mother to comb through her hair. Father reported that conditions in the home had deteriorated over the previous four months. The home was now filthy and infested with roaches. Father surmised that the decline in housekeeping and care for the children stemmed from mothers drug use.

Father reported that mothers lover used speed, and there had been a lot of other recent changes in mothers behavior that he suspected were drug related. Mother used to be very involved in her church, attending regularly and teaching bible study, but suddenly stopped attending and distanced herself from her church friends. She disappeared for two days in July 2004 and missed Leticias seventh birthday.

Mother admitted using methamphetamine a week before the children were removed. But mother claimed that the only other time she had ever used speed was seven years earlier at the time of her brothers death. Father admitted to being addicted to marijuana and drinking a lot of alcohol. He said he had never paid for speed and only used the drug when the opportunity was presented to him.

Both mother and father were unemployed. Mother had had only three jobs in her life, none of them very long in duration. Father had worked regularly for most of his adult life, but had not worked since learning of his wifes affair in May 2004. He was concerned about leaving his wife unattended. Mother and the couples two oldest children, William and Amber, were developmentally delayed and received social security or SSI benefits.

Despite fathers belief that mother was only staying with him because her lover refused to leave his wife, both parents were committed to maintaining their relationship and participating in family reunification services. Previously, in June 2004, DCS gave the parents counseling and domestic violence referrals. The social workers prognosis for reunification was fair given the parents neglect of the childrens needs, their focus on themselves and their drug addictions, and mothers infidelity.

As of September 2004, all three children were developmentally on target, were attending school, and got along well with others. Donald did not appear to be quite as advanced as his siblings. Christopher was described as very bright, very parentified, and the boss of his two younger siblings. Leticia missed her mother the most and the boys missed their father. All three children appeared relatively unscathed given their circumstances. At weekly supervised visits all three children appeared to be very happy to see their parents.

C. The Mediation and Jurisdictional/Dispositional Orders

On September 3, the jurisdictional/dispositional hearing was continued, and a mediation was scheduled for September 15 to address issues concerning the allegations of the petition and the family reunification plan. A pretrial settlement conference was scheduled for September 21, and a contested jurisdictional/dispositional hearing was set for September 29.

At the mediation, mother agreed to attend a domestic violence program and father agreed to attend an anger management program. Both parents agreed to begin a 12-step program, make an appointment at Inland Behavioral and Health Services (IBHS) for drug treatment, and submit to random drug tests. Both parents executed a waiver of rights, and consented to continue the children in foster care until they could be returned home.

Both parents also agreed to submit to the domestic violence allegations as written. Father agreed to submit to the substance abuse allegations as written, and mother agreed to submit to the substance abuse allegations as modified to state that her methamphetamine addiction periodically compromised her ability to parent. DCS agreed not to seek findings on all other allegations, including the medical neglect allegations.

At the pretrial settlement conference on September 21, the court made findings pursuant to the mediation agreement, declared the children dependents, and approved the parents case plan as written. The court ordered weekly supervised visits to be liberalized as appropriate. The children were ordered to counseling to address domestic violence issues.

D. TheSix-Month Status Review (March 2005)

The six-month status review hearing was held on March 22, 2005. Prior to the hearing, the social worker reported that the parents were working on maintaining and improving their relationship. They were still living together and were trying to improve their apartment. They admitted their apartment had been messy, with piles of clothing and other belongings stacked in parts of the home.

Mother had enrolled at IBHS for outpatient drug treatment services. She had completed the substance abuse program and all her drug tests had been negative. She had also completed the anger management/domestic violence program.

Father was participating in the anger management/domestic violence program at IBHS, but he continued to have unresolved frustration and anger issues. He was enrolled in the IBHS substance abuse program, but his attendance was sporadic. He admitted using marijuana and alcohol in late January 2005 and tested positive for marijuana on January 7, 2005. He failed to drug test in November 2004. Mother told the social worker she was willing to separate from father and attempt to gain sole custody of the children if father failed to make significant progress in his service plan.

The parents initially attended joint therapy sessions, but the therapist felt father had significant anger issues and requested that each parent receive individual treatment. Father had begun to verbalize his feelings and address his issues in his individual therapy sessions.

Mother was making slow progress in individual therapy. The therapist and social worker agreed that mother needed ongoing counseling to address self-esteem/self-identity issues and communications skills. The therapist also believed mother suffered from major depressive disorder and needed a psychiatric evaluation. The results of the psychiatric evaluation were not available at the time of the six-month review hearing.

The childrens therapist reported that the children had been witness to substantial sexual activity, information about their parents affairs and other adult behaviors and situations. The children felt caught in between their parents ongoing marriage battles despite being out of the home. The social worker discussed the therapists concerns with the parents, and how detrimental it was to put the children in the middle of the parents problems. The parents agreed not to discuss their problems with the children.

The children also told their therapist that father had sexually abused their older sister Amber. The therapist recommended that the children have individual therapy sessions, and that Christopher be referred to a psychiatrist to address his severely depressed moods. At this point, Christopher was struggling academically.

The parents had consistently visited the children since the childrens removal in August 2004. For a time, the visits were liberalized to allow weekend visits at a local park and movie attendance. The foster mother remained in the vicinity of the visits but allowed the family sufficient space. Later, the visits were limited to supervised visits at DCS offices, after the children reported that father was talking to them about mothers marital indiscretions and the parents sexual activities.

At the six-month review hearing on March 22, the juvenile court commended mother for the great progress she had made over the previous six months, and admonished father to address his substance abuse and unresolved anger issues. The parents reunification services were continued for an additional six months, and the children were continued in foster care.

Shortly after the six-month review hearing, the social worker began to transition the children to placement with mother, but on April 22 the mother tested positive for methamphetamine. Mother denied using speed and insisted that someone spiked her drink. On May 4, mother tested again and gave an extremely diluted urine sample, compromising the test. The children were moved to another foster home because their existing foster parent was giving up child care.

E. The 12-Month Review (September 2005)

The 12-month review hearing was held on September 22, 2005. The children and both parents were present in court. The social worker recommended, and the juvenile court ordered, six more months of services for both parents

Prior to the hearing, DCS reported that the parents joint problems of domestic violence, infidelity, ongoing alcoholism and drug use, and poor anger management skills did not appear to be near resolution. In June 2005, mother had bruises on her arm and legs, and reported that father had physically abused her. Father had no recollection of the abuse because he was heavily intoxicated with alcohol. After being advised to seek immediate protection, mother contacted a shelter and pressed battery charges. Mother also obtained a temporary restraining order but failed to make it permanent after reconciling with father. Father pleaded guilty to spousal battery, paid a fine, and was ordered to serve weekends in jail for several months.

In August 2005, mother admitted she was again unfaithful to father. She believed her infidelity stemmed from her own sexual abuse as a child. At the time of the September 22 review hearing, the parents were still attempting to reconcile. They both believed they needed to move to another apartment because their current environment was not conducive to their sobriety.

In May 2005, following her April 22 relapse, mother reenrolled in the drug treatment program at IBHS. During her previous enrollment, she had a 95 percent attendance record, but as of September 2005, she had only attended 63 percent of her sessions. Still, mother was expected to complete the program during the fall of 2005. All of mothers recent drug tests had been negative.

Mother had been prescribed medication for her depression. The medication was stabilizing her mood and helping her sleep better. Mothers therapist described her as continuing to vacillate regarding her relationship with father. Mother was making slow progress in developing parenting skills and providing safety and stability for the children.

Father still had unresolved anger management issues as indicated by the June 2005 battery incident. As of September 2005, he had not yet enrolled in the next series of anger management classes, although the IBHS anger management facilitator had recommended he do so. He was disenrolled from the IBHS substance abuse program after March 2005 due to his failure to participate. He tested positive for methamphetamines and marijuana on March 22, and positive for marijuana on May 26 and July 28. Father said he wanted to enter an inpatient drug treatment program, but he was hesitant to do so because he feared mother would again cheat on him. Finally, in August 2005, father reenrolled in the IBHS substance abuse program. He was no longer attending individual therapy, however, due to lack of attendance.

Since May 13, 2005, the children had been living with their second foster mother, and they were meeting most of their developmental milestones. Donald had a tendency to act out aggressively or use verbal threats to intimidate peers. He seemed to have taken on some of the aggressive acts he had observed in his parents home. Christopher was now doing very well academically, and his therapist was working with him to become less parentified and enjoy his childhood. He still struggled with trying to help his parents repair their relationship, and he exhibited a twitch in his neck and face when discussing issues involving his parents. Leticia was passive by nature and only lashed out when seriously provoked. She, too, acted very mature for her age and often did not engage in age-appropriate childlike activities.

Visitation had again been liberalized to allow visits at parks and at the childrens church in the presence of the foster mother. As before, the liberalized visitation worked well for a time. But in August 2005, father became angry and confronted mother when he noticed a hickey on her neck. Father called Christopher over and showed him the hickey. Again, the social worker had to explain to the parents the importance of establishing healthy boundaries and advised them that visits would again be supervised at DCS offices beginning August 10, 2005.

The social worker expressed concern that mother continued to engage in self-destructive behaviors. She had recently taken her eldest daughter Amber to the home of her lover. Amber then claimed that the lover touched her in a sexual manner and attempted to kiss her while mother was asleep in his home. The social worker believed the parents truly wanted to reconcile their marriage and reunify with the children, but failed to realize that the actions and poor decisions led to chaos and instability. The children were described as desperate to return to their parents care, although they liked their new foster mother and appeared to be very comfortable in her home.

F. The 18-Month Status Review Report (March 2006)

The 18-month status review hearing was scheduled for March 22, 2006. At that time, the children were still living with their second foster mother with whom they had lived since May 13, 2005. DCS recommended terminating both parents services and setting a section 366.26 hearing to establish a permanent plan of guardianship.

In the section 366.22 report filed shortly before March 22, DCS reported that mother had been terminated from her individual counseling sessions in October 2005, due to nonattendance. She reenrolled in November 2005, but was again terminated two weeks later for nonattendance. She later attended two marital counseling sessions with father. In March 2006, the marriage counselor reported that mother was determined to believe there is no domestic violence in her marriage. As of March 6, mother had participated in three individual sessions with the marriage counselor.

Mother enrolled in the IBHS aftercare program in November 2005 but did not attend the program after December 2005. She had not tested positive for drugs since April 22, 2005, however. She enrolled in another outpatient substance abuse program in February 2006, her third since August 2004.

Donald was having behavior and academic problems in school. He was suspended from school in November 2005 for verbal aggression with another student. His November 2005 progress report showed two failing grades and one D. Tutoring had been made available to him, and since November 2005 his behavior had improved. Donald struck the foster mothers adoptive daughter without provocation. All three children were still in therapy.

In December 2005, the foster mother reported that mother was burdening Leticia with her problems during phone calls. Mother told Leticia to tell her (Leticias) therapist that she (Leticia) cried after every phone call to mother. But according to the foster mother, this was not true. The foster mother believed that Leticia and Christopher worried the most about their parents problems. The social worker was also informed that mother told the children how to act in court. She told them to cry and tell the judge they wanted to go home.

Mother was also failing to monitor medication that had been prescribed to Amber for small seizures, and that Amber was not consistently taking her medication. The parents apartment was still unkempt and smelled of urine. Father was arrested in August 2005 because he failed to appear to serve his jail time for his spousal battery conviction. He was terminated from a 52-week court-ordered anger management program due to nonattendance and had ceased to participate in his service plan.

G. The 18-Month Status Review (April 2006)

Shortly before the scheduled March 22, 2006, section 366.22 hearing, mother reported that father had left the home and she was no longer living with him due to DCSs recommendation that services be terminated for both parents. As noted, DCS also recommended setting a section 366.26 hearing and selecting a permanent plan of guardianship.

At the hearing on March 22, the parents requested mediation on the choice of permanent plan, namely, long-term foster care or guardianship, and parental visitation. The juvenile court set a mediation date on April 7, a pretrial settlement conference on April 26, and a contested section 366.22 hearing on May 11.

At the mediation, both parents agreed that the childrens current foster mother would become the childrens legal guardian. At the pretrial settlement conference on April 26, all three children were present and spoke with the judge. The court asked the children whether they had any questions, and explained that they would be going to the home of their foster mother. The children did not have any questions.

On April 26, the juvenile court terminated the parents reunification services and ordered DCS to initiate guardianship proceedings. Visitation was ordered for one hour each week. The court set a section 366.26 hearing on August 24, 2006. Neither parent filed an extraordinary writ petition contesting the termination of their services or the setting of the section 366.26 hearing.

H. The Section 366.26 Hearing and Mothers Section 388 Petition

All three children were present at the scheduled section 366.26 hearing on August 24, 2006. The hearing was continued to September 15, because mother decided to contest the hearing. A pretrial settlement conference was scheduled on September 6. At the close of the August 24 hearing, the childrens counsel stated, Minors do not have to return. They can go [to] school. The court said, I think thats a good idea to go to school.

On September 8, mother filed a section 388 petition seeking to modify the courts April 26 order terminating her services and setting the section 366.26 hearing. Mother sought to have the children returned to her care; alternatively, she sought additional reunification services.

In her petition, mother asserted she had benefited from domestic violence classes; there was currently no domestic violence in her home; the children wanted to be returned to mothers care; and mother provided the best opportunity for consistancy [sic] in the childrens lives. In a declaration in support of her petition, mother said she had consistently visited the children, she and the children shared a loving bond, she had benefited from domestic violence training, and she had successfully completed parenting and anger management classes and substance abuse treatment.

The section 388 petition was set for hearing on September 15, the same date as the contested section 366.26 hearing. On September 15, the court heard the section 388 petition first. No formal opposition was filed. Nor was any additional evidence or testimony taken in support of or in opposition to the petition. DCS argued that the mother had failed to meet her burden of showing either a change in circumstances or that granting the requested relief would serve the best interests of the children. The juvenile court agreed, and denied the petition.

The court then proceeded with the section 366.26 hearing. Father joined mothers objection to the appointment of the foster mother as the childrens guardian, and indicated he supported the mothers efforts to have the children returned to her care. The court admitted into evidence DCSs section 366.26 report dated August 24, and DCS rested.

Mother testified. She said she did not agree with the appointment of any guardian because she thought she deserved to have the children returned to her. She had consistently visited the children and had a good relationship with the foster mother and proposed guardian. She had a strong bond with the children. The children liked their foster mother, but preferred to be home with mother. Mother did not believe that the appointment of the foster mother would interfere with the bond between mother and children. If the children could not be returned to mothers care, it was okay with mother if they stayed with the foster mother.

None of the children were present in court on September 15. However, neither parent raised any objection or concern that the children were not present or had not been given notice of the hearing. The minors counsel told the court she had spoken with the children on August 24, and all of them wanted to go forward with the guardianship. They understood the guardianship as being halfway between foster care and adoption. They were bonded to mother and wanted to see her, but they crave[d] stability and guardianship was their best option for stability.

The juvenile court found that the children had been properly notified of their right to be present; that two of the three children (Christopher & Donald) were over 10 years of age and their wishes had been conveyed by their attorney. The court found that termination of parental rights would be detrimental to the children because the parents had maintained regular visitation and the children would benefit from continuing a relationship with the parents. The court selected guardianship as the permanent plan and appointed the foster mother as the childrens guardian.

III. DISCUSSION

A. Mothers Section 388 Petition Was Properly Denied

Mother argues that the juvenile court abused its discretion in denying her section 388 petition to return the children to her care or, alternatively, provide her with additional services with the goal of returning the children to her care. We find no abuse of discretion.

1. Applicable Law

Section 388 allows a parent in a juvenile dependency proceeding to petition the juvenile court to change, modify, or set aside any previous order, including an order terminating reunification services and continuing the children in foster care. The moving party has the burden of showing by a preponderance of the evidence that (1) there is new evidence or a change of circumstances, and (2) the modification would serve the best interests of the child. ( 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Matthew P. (1999) 71 Cal.App.4th 841, 849.) On appeal, the juvenile courts ruling on a section 388 petition will not be disturbed absent a showing of a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)

After reunification services have ended, the parents interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point the focus shifts to the needs of the child for permanency and stability [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

2. Analysis

Mother argues that her section 388 petition showed a change of circumstances because mother had [rid] her home of the threat of domestic violence, and returning the children to her care was in the childrens best interests given the childrens bond with her, as well as her ability to provide them with a safe, stable home. Mother further argues that there was no basis for denying the petition, because no formal opposition was filed and no evidence was offered to dispute mothers claims. We disagree. On its face, the petition was insufficient to show a change in circumstances or that returning the children to mothers care would serve the childrens best interests.

As of the date the petition was filed, September 8, 2006, mother had not completed any new services or programs on her own that she had not already completed at the time her services were terminated on April 24. At most, mother had attended some additional counseling sessions and had continued with her substance abuse treatment since April 24.

Moreover, mother failed to show she had gained any new insight into how her and fathers history of domestic violence had impacted and was continuing to impact the children. She also failed to show that she was capable of providing a safe and stable home for the children, or that she had the emotional maturity necessary to address the childrens ongoing needs.

Indeed, mothers progress in therapy had always been slow and she never developed adequate parenting skills. As of March 2006, she was coaching Leticia to lie to the foster mother and to the court. She was also not monitoring 17-year-old Ambers medication. Her home was unkempt and smelled of urine. There was no showing that the mother had remedied or was capable of remedying her lack of parenting skills. Her lack of parenting skills and her poor judgment were continuing symptoms of the domestic violence, substance abuse, and related problems that resulted in the childrens dependency.

All three children were sensitive to their parents problems and were continuing to recover from years of inappropriate exposure to the parents domestic violence, substance abuse, and other problems. Donald continued to struggle with inappropriate, aggressive behavior. Christopher and Leticia acted very mature for their ages and continued to worry about their parents problems. The children had a critical and ongoing need for a safe and stable home environment, free of exposure to adult problems and situations.

Mothers separation from father and the loving bond between mother and the children were not enough to remedy the problems that led to the childrens dependency, or to address the childrens ongoing needs. What was needed was for mother to gain the insight, maturity, and parenting skills necessary to remedy the problems that led to the childrens dependency and address their ongoing needs. Mother did not make that showing.

Mothers reliance on In re Kimberly F. (1997) 56 Cal.App.4th 519 and In re Michael D. (1996) 51 Cal.App.4th 1074 is misplaced. In these cases, the mothers section 388 petitions had merit because the mothers had remedied the problems that led to the childrens dependency. Not so here. As discussed, mother still had poor parenting skills and poor judgment ‑‑ continuing symptoms of domestic violence, substance abuse, and related problems that led to the childrens dependency. Mothers termination of her relationship with father and her loving bond with the children did not address her poor parenting skills or her poor judgment.

Finally, mother claims she was denied her due process right to a full hearing on her petition, specifically, her right to cross-examine the social worker. (In re Clifton V. (2001) 93 Cal.App.4th 1400, 1404-1405 [parent has due process right to cross-examine witnesses on section 388 petition when opposing declarations give rise to a clear credibility contest], In re Matthew P., supra, 71 Cal.App.4th at p. 849 [same].) Mother argues that, because her petition was sufficient on its face and no opposing declarations were filed, the juvenile court must have denied her petition based on conflicting evidence in DCSs reports, including the social workers claim that mother denied that there was any domestic violence in her home as late as November 2005.

We reject this claim. In contrast to Clifton V. and Matthew P., mother did not request, nor did the juvenile court refuse, to allow mother to cross-examine the social worker or any other witnesses. Furthermore, any error in refusing to allow mother to cross-examine witnesses was harmless beyond a reasonable doubt. (Clifton V., supra, 93 Cal.App.4th at p. 1406.) Mothers petition was insufficient on its face and its denial could not have been based on any conflicting evidence. Notwithstanding mothers claim that she had ended the domestic violence in her home by ending her relationship with father, she exhibited poor parenting skills and poor judgment throughout the dependency proceedings, and she did not attempt to show she had acquired the parenting skills and good judgment necessary to provide the children with a safe and stable home environment. There was no credibility contest on the critical issue of mothers continuing lack of parenting skills.

B. The Juvenile Court Properly Considered the Childrens Wishes Regarding the Guardianship

Mother contends that the juvenile court erroneously failed to ascertain the childrens wishes concerning whether they preferred guardianship or long-term foster care over being returned to mother. She further argues that the court erroneously failed to inquire why the children were not present at the section 366.26 hearing, and whether they received proper notice of their right to appear at the hearing. ( 349, 366.26, subd. (h).) We find no error.

1. Applicable Law

At a section 366.26 hearing, the juvenile court is required to consider the wishes of the child and act in the best interests of the child. ( 366.26, subd. (h)(1); In re Joshua G. (2005) 129 Cal.App.4th 189, 201.) The statute does not require that the court ascertain the childs wishes through direct testimony. (In re Leo M. (1993) 19 Cal.App.4th 1583, 1592; cf. In re Diana G. (1992) 10 Cal.App.4th 1468, 1480.) Instead, the court is required to consider the preferences to the extent those preferences are reasonably ascertainable. (In re Leo M., supra, at pp. 1592-1593.)

Section 366.26, subdivision (h)(2) governs notice to the child. It provides: If the child is 10 years of age or older and is not present at a hearing held pursuant to this section, the court shall determine whether the minor was properly notified of his or her right to attend the hearing and inquire as to the reason why the child is not present. Section 349 provides that the child has a right to be present at the hearing, and if the child is 10 years of age or older and is not present at the hearing, the court shall determine whether the minor was properly notified of his or her right to attend the hearing.

2. Analysis

Regarding notice, Christopher and Donald were over 10 years old at the time of the section 366.26 hearing on September 15, 2006, but Leticia was only nine years old. Accordingly, the court had a duty to inquire whether Christopher and Donald had been properly notified of the September 15 hearing and inquire why they were not present. ( 349, 366.26, subd. (h)(2).)

In any event, all three children were given notice of the September 15 hearing. All three children were present in court at the scheduled section 366.26 hearing on August 24. On that date, the hearing was set contested and continued to September 15. There is no indication that the children did not understand that they had a right to be present at the September 15 hearing. Indeed, on August 24, minors counsel told the court that the children could go to school rather than attend the September 15 hearing, and the court agreed. At that time, none of the children indicated they wanted to attend the September 15 hearing.

Regarding the childrens wishes, the juvenile court made appropriate inquiries of the minors counsel at the September 15 hearing. The minors counsel told the court that she had interviewed the children on August 24, and they all said they wanted to go forward with the guardianship. They understood that the guardianship was halfway between adoption and foster care. They were still very bonded to mother, and wanted to see her, but they crave[d] stability.

In addition, the juvenile court spoke with all three children on April 26, after the parents agreed in mediation to the establishment of a guardianship with the foster mother. At that time, the children indicated to the court that they understood they were going to the home of [the foster mother], and none of them had any questions for the court or responded when the court asked them whether they had anything they wanted to tell the court. Accordingly, the juvenile court made a sufficient inquiry concerning the childrens wishes.

Furthermore, and as minors counsel points out, the issue at the September 15 section 366.26 hearing was not whether the children were going to be returned to mother. Nor was there any possibility that parental rights were going to be terminated and the children placed for adoption. Instead, the issue was whether the court should select guardianship or long-term foster care, and there was no indication that any of the children preferred long-term foster care over guardianship.

By all accounts, the children liked their foster mother and proposed guardian and preferred guardianship to long-term foster care. Under these circumstances, it is not reasonably possible that direct testimony from the children or any further attempt to ascertain the childrens wishes could have better informed the courts decision to select guardianship over long-term foster care.

IV. DISPOSITION

The September 16, 2006, orders denying the section 388 petition and selecting guardianship as the long-term plan for the children, Christopher, Donald, and Leticia, is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Miller

J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

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

^[2] The two oldest children, William and Amber, were ages 18 and 15, respectively, in August 2004. Neither father, William, nor Amber are parties to this appeal, nor are William or Amber subjects of this appeal.