In re L.W.

Filed 10/27/06 In re L.W. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christopher J. Sheldon, Judge. Affirmed.

Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and L. Alexandra Fong, Deputy County Counsel, for Plaintiff and Respondent.

Carl Fabian, under appointment by the Court of Appeal, for Minors.

In this appeal from an order terminating his parental rights to his son, L.W., and his daughters, Renee and Marie W., appellant L.W. (father) contends that reversal is mandated because the juvenile court committed structural error in refusing to file his petition under Welfare and Institutions Code^[1] section 388. He also contends the court compounded its error by failing to apply the so-called “benefit exception“ set forth in section 366.26, subdivision (c)(1)(A). Neither claim has merit. While we agree that the juvenile court erred in refusing to file the petition, we do not perceive the error as structural. Rather, we apply the Chapman^[2] standard and find the error to be harmless beyond a reasonable doubt. As for father’s remaining contention, he has forfeited the issue for failing to address it below, and in any event, the evidence does not support his position.

FACTUAL AND PROCEDURAL BACKGROUND

Juvenile dependency proceedings involving L.W. (born November 1997), Renee (born July 2003), and Marie (born August 2004), were initiated in August 2004, several days following Marie’s birth, at which time their mother, Nicole A. (mother), tested positive for amphetamine and marijuana. Marie, born three months prematurely, suffered from various medical conditions, including respiratory distress syndrome, apnea, intracranial hemorrhage, and a heart defect. In fact, all three children had been exposed to drugs during mother’s pregnancies and each was born prematurely, requiring extensive hospital stays.

The dependency petition alleged, in pertinent part, that mother has a chronic history of substance abuse which limits her ability to provide care to her children and places her children at risk of harm; that both parents failed to obtain appropriate care for their daughter, Renee, who has a cardiac condition; that both parents failed to drug test as directed by the Department of Public Social Services (DPSS) at an earlier date; and that father has no regular means of support,^[3] which limits his ability to provide for his children’s needs.

Two days after the children were taken into protective custody, father, who admitted to using marijuana and having problems with law enforcement in the past, and who had an outstanding arrest warrant, was taken into custody after resisting arrest. Moreover, the social worker expressed concern with regard to the condition of the home, which was in need of extensive cleaning and repairs.

A jurisdictional/dispositional hearing was held on September 2, 2004. After both parents submitted on the petitions, the court found the allegations to be true and declared the children dependents. Both parents were to be provided with reunification services and were to have frequent and liberal visitation with the children, so long as they were not under the influence of any prohibited substances. The two older children were placed with their maternal grandparents, who resided in Bishop, while Marie remained in a licensed home for medically fragile children.

A six-month review hearing was held on March 23, 2005. Father testified that during the previous December, after being on a waiting list for six weeks, he began an inpatient substance abuse program and completed it on February 23, 2005. He was currently in after-care and attends regularly three times a week, except when he has transportation problems. He was also drug testing and all tests had been negative since late December. He had not yet received a referral for medically fragile training, complaining that the social worker was “giving [him] the runaround.” Nor had he received a referral for counseling, even though his service plan called for participation in eight weeks of anger management and parenting classes, as well as group counseling and individual counseling sessions. He was living with his mother and his 13-year-old sister. Having temporarily separated from mother, it was his intention to make the separation permanent if she did not complete her program; however, his hope was to reunify the family if she did. He was visiting his two older children, but the social worker would not allow him to visit Marie, whom he had not seen since she was hospitalized three or four months earlier.

The court terminated mother’s reunification services, but continued father’s for an additional 90 days, during which time he was to participate in medically fragile training. The court indicated that if sufficient progress was not made, it would terminate services at the conclusion of that time period. The review hearing was scheduled for June 23, 2005, with a 12-month review hearing scheduled for August 31, 2005.

On June 23, 2005, the court found father’s progress to be adequate but incomplete, and ordered services to continue. The court also ordered Marie be placed with her maternal grandparents. The 12-month review hearing was advanced to August 24.

On August 10, the court reinstated services to mother upon the filing of her section 388 petition. The social worker’s report recommended that father be given an additional six months of services. By this time, all three children were residing with their maternal grandparents, who wished to adopt them if reunification with their parents failed. The grandparents were “doing a good job caring for all three children, providing the love, structure and discipline the children were previously lacking.”

At this time, both parents were situated in Desert Hot Springs; father was still living with his mother, and mother with her sister. The parents had monthly visits with the children when their maternal grandparents would bring them to Desert Hot Springs for a few days. When this occurred, the parents were provided an opportunity to tend to their children’s needs, and the care provided had apparently been satisfactory. Although neither parent was then “quite ready to take on the responsibility of caring for their three children,” the social worker seemed confident that “reunification will happen within the next [six] months.”

On August 24, 2005, the court scheduled a contested 12-month review hearing for October 25, 2005. By October, the parents were living together in a four-bedroom home. However, the social worker questioned whether they would be able to take on the responsibilities of attending to the children’s needs on a permanent basis even though they had “completed the bulk of their respective case plans and are genuine in their desire to reunify with their children.” Moreover, the parents were still smoking cigarettes, and although they said that they would be sure to smoke outside if the children were returned to them, the social worker “reminded them that baby Marie could easily go into respiratory distress should she be exposed to second-hand smoke, due to her underdeveloped lungs. With the stress of running their own household added to the challenges of their three young children, [the social] worker believe[d] the parents would soon be overcome with all the responsibilities. Although the parents [were] complying in completing their case plan, [the social worker indicated] they seem to respond well only when pressured to do so. They had an additional two months, but they still have not quite met the medically fragile protocol required to reunify with their children.” The social worker therefore recommended terminating services to both parents.

The 12-month review hearing eventually proceeded on November 2, 2005. The deputy county counsel informed the court that DPSS’s recommendation was to terminate reunification services. Counsel further indicated that DPSS was recommending legal guardianship for the three children, to be “upgrade[ed]” to adoption at a later date. Counsel also requested that, inasmuch as the children were residing a distance away, the parents be given frequent and liberal visitation no less than once a month and that they be permitted to have overnight visits with the children, either at the grandparents’ home or at their home, so long as the grandparents approved. Counsel made it clear that although services were to be terminated, DPSS was “trying to make every effort to allow these parents to -- not necessarily reunite, at least show the court so they can come in with a 388 and reunify.” Counsel for the parents submitted on the recommendation, with father’s trial counsel asserting that his client has “completed his program, he just needs to show stability, and he’s ready for the challenge.” The court terminated reunification services and scheduled a permanency hearing for February 28. The parents were informed of their right to file a writ petition, but neither did.

On February 28, 2006, at the request of the deputy county counsel, the hearing was continued to May 15, 2006, to permit notice by publication to an unknown alleged father of Marie. Meanwhile, according to father’s counsel, the parents were no longer living together; father, who apparently had finished his case plan, opted to separate upon realizing that mother was not going to finish hers. Counsel also indicated that the information contained in the current DPSS report was incorrect, after which the court said, “If you think it’s incorrect, you want to do something about it, file the appropriate motion.” Counsel replied, “We’ll file the appropriate motion then.” The following week, father telephoned the social worker to say that his attorney would be filing a section 388 petition.^[4]

On the continued date, counsel for father informed the court that five days earlier she had attempted to file a section 388 petition^[5] on father’s behalf with regard to all three children. According to counsel, the petition “explained that the father has completed his entire case plan, and the mother is no longer living with him in the home, so there is a change of circumstances. Also there was something in the report indicating that he had not finished the medically fragile training class. However, we attached . . . a note from the medically fragile training person that he completed that in 2005.”

After being reminded that the section 366.26 hearing date of February 28, 2006, had been set on November 2, 2005, and was then continued to May 15, 2006, the court responded it was “not going to hear a [section 388 petition] that’s filed eight months after the thing was set. So the request to file the [petition] is denied. We’ll proceed with the .26.”

Thereafter, in the absence of an adoption assessment, which the deputy county counsel indicated was not included with the section 366.26 report, the court found the children to be adoptable based upon a comment in the status review report to the effect that the maternal grandparents “continue to do the best job possible in caring for their grandchildren, but a lot of needed services simply are not available where they live. Of note is the fact that the social worker from Sacramento assigned to complete the Preliminary Adoptive Study on the . . . family has made two appointments within the last three months, but canceled them both.” The report further states that the social worker had been informed there was no absolute need to obtain a Preliminary Adoptive Study prior to terminating parental rights and that such report would be submitted upon its completion.

Counsel for father then voiced her objection to terminating parental rights on the basis that father “completed his case plan back in 2005. The only thing he was waiting for was for the mother to complete her case plan. When she clearly failed, he moved her out of the house, that was at the last hearing. She’s out of the housing as of the last hearing. She continued: “He’s done every single thing that was asked of him in this case plan, including the medically fragile training, which is attached to the JV-180 that was not accepted by the court. So a lot of the information that is contained in . . . these reports are [sic] untrue. He would take the stand, as an offer of proof, and tell the court that the mother is no longer in the house,^[[6]] and that he has completed all of his case plan, and he has completed it awhile [sic] ago. We were just waiting for mother. On the late filing of the JV-180, however it was given to the court five days before the hearing.”

Minors’ counsel informed the court that father had had no contact with the social worker since February 2006. The social worker reported in May that with the exception of a telephone call on March 6, there had been no contact since February 28, 2006.

Said the court: “This is another situation where the parents wait too long to get things before the court and get going with the program. Even if they had a changed circumstances, best interest of the children is clearly to stay where they are. They’ve been there for a long time. This family can take care of them, has taken care of them in the face of extremely difficult obstacles and travel problems.” (Italics added.)

In terminating both parents’ parental rights,^[7] the court indicated that it was adopting the findings contained in the status review report, i.e., that by clear and convincing evidence, the children will likely be adopted; adoption is in their best interests; termination of parental rights would not be detrimental to their best interests; and none of the exceptions set forth in section 366.26, subdivision (c)(1) applied.

DISCUSSION

A. The court erred in refusing to file father’s section 388 petition.

Father maintains that in refusing to file his section 388 petition, the juvenile court abused its discretion, acted in excess of its jurisdiction, and deprived him of due process. Appellate counsel for the minors agrees with father that the juvenile court lacks discretion to take that sort of action. DPSS essentially concedes the issue, arguing only that “it was harmless error for the trial court to decline to file [father’s] section 388 petition.” We agree that the court’s outright refusal to file the petition constituted a denial of father’s right to due process.

Under section 388, a parent may petition the court to change, modify, or set aside a previous court order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petition must allege why the requested change is “in the best interest of the dependent child.” (§ 388, subd. (b).) If it appears the best interests of the child “may be promoted by the proposed change of order,” the court is required to hold a hearing on the petition. (§ 388, subd. (c).)

As such, section 388 serves as an “‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) “[It] provides a means for the court to address a legitimate change of circumstances” to afford the parent one last opportunity to reinstate reunification services prior to final resolution of custody status. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) “[S]ection 388 is vital to the constitutionality of our dependency scheme as a whole, and the termination statute, section 366.26, in particular. [Citation.]” (Id. at p. 528.) Moreover, “Marilyn H. makes clear that reunification pursuant to section 388 must remain a viable possibility even after the formal termination of reunification services in a 12 or 18-month review if there is . . . a ‘legitimate change of circumstances.’” (Kimberly F., at p. 529.) It therefore follows that to deprive a parent of this “one last opportunity” is contrary to law and a denial of due process.

While the summary denial of a section 388 petition is not a deprivation of due process unless the moving party met his or her threshold burden of proof (In re Zachary G. (1999) 77 Cal.App.4th 799, 808), in this case father was denied due process because the juvenile court plainly refused to file his petition, ostensibly because it believed the petition came too late, and thus did not even consider whether father met his burden.^[8] The court expressly stated it was “not going to hear a 180 that’s filed eight months after the thing was set.” While the court did have discretion to deny the petition without a hearing if, as discussed later in this opinion, the petition failed to make a prima facie showing,^[9] it had no discretion to deny father the right to file his petition--the effect of which was to deny father his final opportunity to have the court consider his allegations of changed circumstances and perhaps to modify the prior order. Indeed, father is correct in his assertion there is no case law, statute, or court rule permitting a juvenile court to preclude a parent from filing a section 388 petition. Nor is there any time limit for filing a section 388 petition; it may be filed at any time before parental rights are terminated. (In re Baby Boy L. (1994) 24 Cal.App.4th 598, 609; see also In re Marilyn H. (1993) 5 Cal.4th 295, 308-309.) Thus, the juvenile court erred in arbitrarily determining that father’s petition was untimely and in refusing to consider it on that basis.

B. Applying the standard enunciated in Chapman, the error was harmless beyond a reasonable doubt.

Having concluded that the court erred in refusing to file father’s section 388 petition, we must determine the applicable standard of review for assessing the effect of the error. As indicated above, father contends the error is of the structural variety, mandating per se reversal. Alternatively, he contends that even if we were to apply the Chapman standard, reversal is required nonetheless. As we shall explain, the error is not structural and is harmless.

To be characterized as a structural defect, a constitutional error must be so pervasive and debilitating as to contravene the very essence of the legal system. (Arizona v. Fulminante (1991) 499 U.S. 279, 310.) Thus, the category of structural error has been reserved for a very limited class of cases, including the total deprivation of the right to counsel at trial and trial before a judge who is biased. (Ibid.) A structural defect affects “the framework within which the trial proceeds.” (Ibid.) The common denominator of structural errors is that they infect the entire conduct of the trial “from beginning to end.” (Id. at pp. 309-310, italics added.) In short, an error may be properly categorized as structural only if it so fundamentally undermines the fairness or the validity of the trial that the result must be voided regardless of identifiable prejudice. (Yarborough v. Keane (1996) 101 F.3d 894, 897.)

“Trial error,” in contrast, is error that occurs during the presentation of the case. (Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 555.) An error that occurs during the trial process does not require automatic reversal because a court may quantitatively assess such error in the context of other evidence presented in order to determine whether the error was harmless. (Id. at p. 554.) Indeed, even a constitutional error “as a general rule does not automatically require reversal. In determining the effect of ‘most constitutional errors,’ appellate courts can properly apply a Chapman harmless error analysis. [Citation.]” (In re Angela C. (2002) 99 Cal.App.4th 389, 394.)

Father contends the error here is structural in that it did not occur during the presentation of the case, but rather, “precluded a hearing at all.” He also argues the error “affected the fundamental fairness of the proceedings by totally depriving [him] of his right to file a section 388 petition” and to present evidence. We disagree with father’s rationale. Although, as he points out, a hearing on his petition was, in fact, precluded, his effort to file the petition occurred during the presentation of his case and, because we are privy to its contents, the petition is susceptible to review. Thus, because the error can be quantitatively assessed, it is a trial error.

As one appellate court stated in a case involving a failure to provide a parent with notice of a section 366.26 hearing: “To the extent structural error implicates the fundamental fairness of judicial proceedings, we reason the error in this case is not structural. [Citation.] . . . [G]iven [mother’s] prior participation in the proceedings . . . we can quantitatively assess the error in the context of other evidence presented in order to determine whether the error was harmless beyond a reasonable doubt. [Citation].” (In re Angela C., supra, 99 Cal.App.4th at p. 395.) Similarly, by reviewing the petition itself, which has been made a part of the record by means of father’s motion to augment, we are able to assess the effect, if any, of the court’s refusal to hear his petition and/or grant a hearing. Indeed, the relief which father seeks--remand to the juvenile court with directions to file his section 388 petition and “determine whether it should hold a hearing on the petition based on the criteria set forth in section 388 and relevant case law”--essentially defines the determination which we must make. That is, the dispositive question is whether reversal is required by reason of the court’s error in depriving father of a hearing on his section 388 petition.

Having reviewed the record under the Chapman standard, we find the juvenile court’s denial of a hearing on father’s section 388 petition--an inevitable result of the court’s unwarranted refusal to consider the petition--was harmless beyond a reasonable doubt.

With regard to the element of changed circumstances, the petition alleged as follows: “Father has completed his case plan including medically fragile training. He has quit smoking. He has separated himself from the mother. Furthermore, the child Marie is no longer medically fragile. He has visited the children as often as he can[,] given the distance.”

As for why the requested change would be better for the children, the petition alleged: “These children have lived with their father in the past. He visits often and they are very attached to him. The father has done all that he could to reunify with them and has been completed with his case plan.”

Attached to the petition were certificates of completion of anger management classes and drug and alcohol program, both dated February 23, 2005, and a letter dated February 23, 2005, from father’s case manager at Ranch Recovery Centers, Inc., stating that father has completed eight weeks (i.e., eight hours) of parenting classes “structured to give the client concepts of balanced parenting skills, reparenting the inner child, and include lectures, films, peer group discussion, modeling and role-playing.” Also attached was a letter dated November 2, 2005, from Olivia Marmolego, R.N., indicating that father had attended the final meeting for medically fragile training specific to Marie’s needs and that he appeared capable of caring for Marie.

Father contends his petition “contains sufficient facts to make a prima facie showing that (1) there is a genuine change of circumstance and new evidence, and (2) it would be in the children’s best interest to modify the previous order, thereby triggering the right to a full hearing.” Thus, he insists it cannot be said that the error was harmless beyond a reasonable doubt.

In performing our Chapman analysis here, we must determine whether it can be definitively said, beyond a reasonable doubt, that no judge would have granted father a hearing based on the contents of his petition. To assist us in making that determination, we look at what a section 388 petition must include to justify a hearing.^[10]

“The parent seeking modification must ‘make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]’ [Citations.] There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.]” (Anthony W., supra, 87 Cal.App.4th at p. 250.) The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would support a favorable decision on the petition. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)

“It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child. [Citation.]” (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) Indeed, “[a] petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

Moreover, “[t]he petition may not be conclusory. ‘[S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence” is required. [Citation.] Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence.” (Anthony W., supra, 87 Cal.App.4th at p. 250.)

Applying the foregoing criteria, we are confident beyond a reasonable doubt that no judge would have granted father a hearing on his petition; thus, the error was harmless.

At the outset, the petition was signed not by father, but by his attorney, and did not include a declaration from father attesting to any of the allegations put forth by his attorney, i.e., that he was no longer living with mother and that he had stopped smoking. (See In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348.) Nor did father’s attorney offer an explanation, if any existed, as to why the petition did not include father’s supporting declaration.

Further, the petition failed to show that circumstances had changed since the prior order. Indeed, the attachments to the petition, evidencing father’s completion in various programs, predated the order terminating reunification services. As for the letter attesting to the fact that father had actually completed the medically fragile training, this pertained only to Marie, and even so did not establish that father was now in a position to care for all three children.

More importantly, the petition alleged no facts showing that a change would be in the children’s best interests. “[S]ection 388 makes clear that the hearing is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 807.) Relevant to best interests, the petition herein alleged only that the children had lived with father in the past, that he visits often, that the children are attached to him, that he has done everything possible to accomplish reunification. But this says nothing about the children’s best interests, or that they would derive any benefit from being removed from their stable home with their grandparents.

In short, father failed to meet either prong. His petition fell short of establishing the kind of prima facie showing that might have warranted a hearing. That is, it failed to demonstrate that he had made significant changes in his circumstances and that he would be able, at some point in the near future, to resume custody of his children, and that the proposed modification would serve the children’s best interests. Indeed, at that point in the proceedings, “the child’s interest in stability [was] the court’s foremost concern, outweighing the parent’s interest in reunification. Thus, a section 388 petition seeking reinstatement . . . of reunification services must be directed at the best interest of the child. [Citations.]” (In re Ramone R., supra, 132 Cal.App.4th at pp. 1348-1349.) In that regard, it should be noted that even if the court did not consider the contents of father’s petition, it did recognize that the children were in a stable home, where they had been for some time, and that it would be in their best interests to remain there. We have no doubt that any reasonable judge reviewing the petition would have found that any chance for stability with father was far too tenuous to warrant the requested relief.

C. By failing to raise the issue below, father has forfeited his right to challenge the juvenile court’s finding that the benefit exception did not apply.

The benefit exception provides that parental rights shall not be terminated if “[t]he parents . . . have maintained regular visitation and contact with the child and the child

would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) For the first time on appeal, father argues that the exception applies and that the court erred in finding otherwise. DPSS does not argue waiver or forfeiture.

Nonetheless, “[i]f a parent fails to raise one of the exceptions [to terminating parental rights] at the hearing, not only does this deprive the juvenile court of the ability to evaluate the critical facts and make the necessary findings, but it also deprives [the appellate] court of a sufficient factual record from which to conclude whether the trial court’s determination is supported by substantial evidence. [Citation.] Allowing the [parent] to raise the exception for the first time on appeal would be inconsistent with [the appellate] court’s role of reviewing orders terminating parental rights for the sufficiency of the evidence.” (In re Erik P. (2002) 104 Cal.App.4th 395, 403.)

Accordingly, father cannot assail the juvenile court’s failure to apply the benefit exception. He did not allude to it in the juvenile court, nor did he offer any evidence that his children would benefit from continuing any relationship they may have had with him. Thus, we conclude that father has waived his right, at this late date, to assert the exception’s applicability.

Even if the issue were not forfeited, there is simply no evidence in this record that would support application of the benefit exception based on father’s relationship with the children. The beneficial parental relationship exception requires a showing of “regular visitation and contact” and “benefit” to the child from “continuing the relationship.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Father did not and could not meet his burden of proof.

When the court terminated reunification services at the 12-month review hearing, the deputy county counsel articulated DPSS’s intention to make every effort to allow the parents to thereafter “come in with a 388 and reunify.” To that end, the deputy county counsel advocated frequent and liberal visitation no less than once a month and overnight visits upon approval by the grandparents. Thus, the court ordered overnight and weekend visitation at DPSS’s discretion. Nonetheless, the record is devoid of any efforts on father’s behalf to maintain a visitation schedule after that date. In fact, father had minimal, if any, contact with the social worker between February 2006 and the permanency hearing in May 2006, which was essentially a prerequisite for arranging future visits.

Father relies on In re Brandon C. (1999) 71 Cal.App.4th 1530 to support his contention that the geographical distance between him and the children affected his ability to maintain visitation during the dependency. In that case, the juvenile court found, pursuant to section 366.26, subdivision (c)(1)(A), that the children’s best interests would be served by maintaining their relationship with their mother--a relationship which consisted of consistent visitation, although not as extensive as mother had wanted. Thus, in affirming the juvenile court’s order, the Court of Appeal stated: “The benefit of continued contact between mother and children must be considered in the context of the very limited visitation mother was permitted to have.” (Id. at pp. 1537-1538, italics added.) There, however, unlike the present case, the juvenile court had evidence, in the form of testimony from the mother and the children’s grandmother/caretaker, that a beneficial relationship between the mother and her children did in fact exist, and based on that evidence, the court found that the benefit exception did apply. Simply put, there is no similarity between the two cases. Indeed, father is not entitled to special consideration simply because he lived in Riverside County and the children were in Bishop. The best that father can offer on appeal is that, as stated in his brief, when provided with an opportunity to care for his children during overnight visits in August 2005, “he did so satisfactorily.” But that, without more, does not mean that any harm in severing any relationship he had with his children would outweigh the benefits the children would receive from the stability of adoption.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ RICHLI

J.

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

^[2] Chapman v. California (1967) 386 U.S. 18 (Chapman).

^[3] Father described himself as a “rapper,” who “‘provide[s] for [his] kids when [he has] concerts, which [is] not very often.’”

^[4] The social worker reported that father also asked her what she thought about such a petition. She wrote: “I told him that I would say the same thing to him that I did to [his attorney], namely that it was too little, too late. I do not believe it [is] realistic for him to pull this off this late in the game. I do believe that he has been trying hard lately, but if his in-laws have their hands full with the [three] kids, how much more difficult would it be for a single man to try to stay on top of [three] very active kids, one of whom is medically fragile.”

^[5] In preparing the petition, father’s counsel utilized a Judicial Council Form JV-180. Effective January 1, 2006, the Judicial Council revised form JV-180 and made its use mandatory. (Judicial Council Forms, form JV-180 [rev. Jan.1, 2006]; see Cal. Rules of Court, rule 201.1(b)(2), (c)(2).) California Rules of Court, rule 201.1(b) states, in part: “(1) Forms adopted by the Judicial Council for mandatory use are forms prescribed under Government Code section 68511. Wherever applicable, they must be used by all parties and must be accepted for filing by all the courts.” (Italics added.)

^[6] The record reveals that as of April 2006, the social worker had knowledge that the parents were still living together.

^[7] Mother has not appealed the termination of her parental rights.

^[8] Although we surmise the court did not look at the petition and thus could not have made a determination as to whether it made a prima facie showing sufficient to warrant a hearing, we note that it expressly stated “[e]ven if [the parents] had a changed circumstances, best interest of the children is clearly to stay where they are.” Thus, it is not unreasonable for us to also surmise that the court would have denied a hearing had it read the petition.

^[9] The court would not have had discretion, however, even if it had allowed father to file his petition, to deny a hearing solely on the basis that too much time had elapsed since the section 366.26 hearing was scheduled.

^[10] In so doing, we recognize that the situation here is, of course, unlike that in which a court denies a hearing on a section 388 petition after reviewing the petition and finding that a hearing is not required, in which case the standard of review is abuse of discretion. (In Re Anthony W. (2001) 87 Cal.App.4th 246, 250 (Anthony W.).)