gno.law

San Diego County Department of Social Services v. Lee P.

California Court of Appeal · D007569 · 1989-04-17 · Published · 209 Cal. App. 3d 886 · 257 Cal. Rptr. 545 · 1989 Cal. App. LEXIS 357

In Re HEATHER P., a Minor. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. LEE P., Objector and Appellant

Area
dependency
Panel
Froehlich (author)

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T07:39Z · confidence high

The trial court refused to hear evidence challenging a custody order at a post-permanency review hearing, ruling that such challenges must be brought via a section 388 petition. The Court of Appeal affirmed, holding that section 366.3 limits the scope of review hearings and that section 388 provides an adequate procedural mechanism that satisfies due process.

Ruling reviewedStandardThe courtThe model
Refusal to hear evidence challenging the custody order at the section 366.3 review hearing
“We find nothing in the language of this statute to indicate that during a review hearing a court should consider whether to return a child to a parent’s custody.”
de novocorrectagree with court
The appellate court correctly interpreted Welfare and Institutions Code section 366.3(c) as limiting the scope of post-permanency review hearings to the progress of the permanent plan and the appropriateness of placement, excluding the re-litigation of custody determinations made at the permanency planning hearing. This interpretation aligns with the legislative intent to provide stability and prevent constant relitigation of the child's status.
Denial of the mother's due process claim regarding the requirement to file a section 388 petition
“The requirement to petition the court for a hearing must be viewed in the context of the dependency proceedings as a whole.”
de novocorrectagree with court
The court held that the section 388 procedure, which requires a showing of changed circumstances or new evidence, constitutes an adequate alternative means of challenging the custody order. The court reasoned that the 'best interests of the child' standard is sufficiently clear and that the short delay required for a hearing does not violate substantive or procedural due process given the state's compelling interest in permanency.

Authorities

  • relied: In re Elizabeth G. (1988) 205 Cal.App.3d 1327 — Post-permanency review hearings under section 366.3 are limited in scope and do not allow for the relitigation of the necessity of the permanency plan or custody orders.
  • relied: In re Mark V. (1986) 177 Cal.App.3d 754 — The state has a compelling interest in providing stable, permanent homes for children removed from parental custody when reunification efforts have been unsuccessful.

The appellate opinion: sound — The opinion is sound because it correctly applies the statutory framework of the Welfare and Institutions Code to distinguish between the limited scope of section 366.3 review hearings and the broader scope of section 388 petitions. It adequately addresses the due process arguments by demonstrating that the section 388 procedure provides a sufficient and timely mechanism for challenging custody orders.

How this analysis was made · dispute it

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:32Z · confidence medium

At a post-permanency-plan six-month review hearing under Welfare and Institutions Code section 366.3, the juvenile court refused to hear the mother's evidence that Heather should be returned to her custody, ruling that the only issue was continuation of the plan and that a custody challenge must be brought by section 388 petition; it continued the dependency and the aunt placement and denied rehearing. The Court of Appeal affirmed, holding section 366.3(c) limits the review hearing to placement and plan-compliance issues, that section 388 and rules 1391(c) and 1393 afford adequate procedural due process, and that the state's compelling interest in stable permanent homes defeats the substantive due process claim.

Ruling reviewedStandardThe courtThe model
Refusal under section 366.3(c) to hear evidence challenging the custody order at the post-permanency-plan review hearing
“We find nothing in the language of this statute to indicate that during a review hearing a court should consider whether to return a child to a parent’s custody.”
de novocorrectagree with court
The court read section 366.3(c) as confining the review to progress toward a permanent home, appropriateness of placement, plan compliance and adequacy of services, and relied on In re Elizabeth G. for the point that the detriment finding made at permanency planning need not be remade at each later review and that section 366.2 does not govern post-permanency reviews. That reading of the statutory text is defensible. The opinion does not, however, explain the relationship between its holding and the second paragraph of 366.3(c) it quotes, which lets a parent prove by a preponderance that further reunification efforts are the best alternative; the mother's offer was framed as a return-of-custody challenge rather than a request for renewed services, so the result holds, but the point goes unaddressed.
Rejection of the mother's procedural due process claim that a section 388 petition is an inadequate means to challenge the custody order
“The court is required to construe liberally the petition in favor of its sufficiency.”
de novocorrectagree with court
The court answered each of the mother's three objections: the discretion to deny a hearing is cabined by rule 1393(a)'s liberal-construction requirement; the best-interests standard is sufficiently definite because it necessarily focuses on eliminating the conditions that required removal; and the 30-day hearing deadline under sections 388 and 387(b) and rule 1393(d) is not excessive delay. It also placed the procedure in context, noting the mother had a full right to contest return at every hearing through permanency planning. The reasoning is coherent and the statutory and rule citations support it.
Rejection of the mother's substantive due process claim that she was deprived of fundamental parental rights without a hearing absent a compelling state interest
“The state’s interest requires the court to concentrate its efforts after a permanency plan on the child’s placement and well-being, rather than on a parent’s challenge to a custody order.”
de novocorrectagree with court
The court identified the legislatively declared interest in stable, permanent homes for children for whom reunification has failed (section 366.25(a); In re Mark V.), characterized it as compelling, and held that requiring a section 388 petition rather than denying any hearing satisfies substantive due process. The analysis is brief and does not cite the leading California or federal parental-rights cases, but given that the mother retained a procedural avenue to be heard, the conclusion is supportable.
Rejection of minor's counsel's suggestion that the appeal was moot due to post-appeal events
“Since these events occurred after the order being appealed, however, they can have no effect on our review.”
de novocorrectagree with court
The court declined to find mootness, citing Witkin for the principle that review is confined to the record as of the order appealed. The disposition is reasonable, though the court's stated rationale conflates the record-on-appeal rule with the distinct question of whether subsequent events can moot an appeal; because the court reached the merits anyway and the mother's section 388 petition was still pending, no harm resulted.

Authorities

  • relied: In re Elizabeth G. (1988) 205 Cal.App.3d 1327 — A review hearing after a permanency plan is governed by section 366.3, not section 366.2, and the court need not remake the detriment finding at each subsequent review once made at the permanency planning hearing.
  • relied: In re Mark V. (1986) 177 Cal.App.3d 754 — The state has a declared interest in providing stable, permanent homes for children removed from parental custody for whom reunification has been unsuccessful.

The appellate opinion: sound with gaps — The opinion correctly reads section 366.3(c) as limiting post-permanency review hearings and sensibly channels custody challenges into the section 388 petition procedure, answering each of the mother's due process objections with the governing statutes and rules. It leaves gaps by not reconciling its holding with the statutory language it quotes allowing a parent to prove at the review that further reunification efforts are the best alternative, and by treating the substantive due process and mootness points summarily without the leading parental-rights authorities.

How this analysis was made · dispute it

Opinion — Froehlich

Opinion

FROEHLICH,

J.—In this appeal we determine Welfare and Institutions Code 1 section 366.3 precludes presenting evidence to challenge a juvenile court’s custody order at a review hearing after a permanency plan. A petition under section 388 is adequate means to present such a challenge.

I

Factual and Procedural Background

A petition seeking to declare Heather P. (born August 26, 1981) to be a dependent child of the juvenile court under the provisions of section 300(d) was filed on November 22, 1985. The petition alleged Heather’s home was an unfit place for Heather due to her mother’s neglect, in that Heather showed physical symptoms of sexual molestation. The alleged perpetrator of the molestation was the mother’s boyfriend.

At the December 6, 1985, dispositional hearing, 2 Heather was declared a dependent child of the juvenile court and placed with her maternal aunt. At the permanency planning hearing 3 on December 9, 1986, the court made an express finding that returning Heather to her mother would create a substantial risk of detriment to Heather’s physical or emotional well-being and therefore it was unlikely she would be returned within six months. The report prepared by the case social worker indicated the mother was motivated to work toward reunification but would have considerable difficulty being an appropriate parent or providing for Heather’s special needs. The court continued Heather’s placement with her aunt, pending placement in licensed foster care. 4

*889 At a subsequent permanency planning hearing on June 5, 1987, the court again found it would be detrimental to Heather’s best interests to be placed with her mother. The court continued Heather’s dependent child status and continued placement with her aunt. 5

At a six-month review hearing held on December 4, 1987, the social worker’s report recommended continuing Heather’s placement with her aunt. This recommendation was contested by the mother, and the matter was continued until January 13, 1988.

At the January 13 hearing the mother’s counsel stated she was prepared to present evidence that the court could no longer find that the mother should continue to be deprived of custody. The court refused to hear the evidence, indicating under section 366.3 such an issue was not before it. The court determined the only issue for it to decide was whether the case plan should be continued. It indicated the appropriate procedure to challenge the custody order was to petition the court under section 388 on the grounds of a change of circumstances. The court then continued Heather as a dependent child of the court, and continued placement with the aunt. The mother’s application for a rehearing was denied.

The mother appeals, contending section 366.3(c) does not preclude a parent from presenting evidence to challenge a custody order at a review hearing after a permanency plan. She maintains the juvenile court violated her constitutional rights to substantive and procedural due process by not allowing her to present such evidence at the review hearing. 6

*890 II

Discussion

The juvenile court did not deny the mother’s due process rights by refusing to hear the evidence she wished to present.

A

An important purpose of dependency proceedings is to provide children with stable, permanent homes. To fulfill that purpose, the juvenile court is required to conduct a permanency planning hearing no more than 12 months after a disposition hearing in which a child was removed from the parents’ custody. (§ 366.25(a).) After the permanency plan has been formed, the court must review the child’s status every six months as long as it retains jurisdiction. (§ 366.3(a) and (c).) Section 366.3(c) governs review hearings for a child like Heather, who has been placed in other than a preadoptive home or the home of a legal guardian under a permanency plan. That section indicates that such a review has a limited purpose. It states in pertinent part: “The reviewing body shall inquire about the progress being made to provide a permanent home for the minor and shall determine the appropriateness of the placement, the continuing appropriateness and extent of compliance with the permanent plan for the child, the extent of compliance with the case plan, and the adequacy of services provided to the child.

“It shall be presumed that continued care is in the interests of the minor, unless the parent or parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the minor. In those cases, the court may order that further reunification services be provided to the parent or parents for a period not to exceed six months.”

We find nothing in the language of this statute to indicate that during a review hearing a court should consider whether to return a child to a parent’s custody. The court made an explicit finding at the permanency planning hearing that returning Heather to her mother’s custody would create a substantial risk of detriment to her well-being. After the court had made that finding, it did not need to continue to make it at each subsequent review. {In re Elizabeth G. (1988) 205 Cal.App.3d 1327 [253 Cal.Rptr. 161].) We agree with the juvenile court’s view that the permanency planning procedure allows “the child permanency and the department [of social services] the opportunity to provide the child with services, rather than constantly relitigating the necessity of the child’s permanent planning continuing.” It was incumbent upon the court to limit the evidence to those issues it was required to consider under section 366.3(c).

*891 The mother argues the court should have heard her evidence because section 366.2 requires a court to return the child to a parent unless it finds the return would create a risk of detriment to the child. Her reliance on this section is misplaced. A review hearing after a permanency plan is governed by section 366.3, not by section 366.2. (In re Elizabeth G., supra, 205 Cal.App.3d 1327.)

The mother also claims it was inconsistent for the court to find there would be a risk to Heather if placed in her mother’s care after indicating at the same hearing this was not an issue to be decided. This argument is groundless. The court did not make the finding at the review hearing, but at the earlier permanency planning hearing.

B

Section 388 and California Rules of Court, 7 rules 1391(c) and 1393, provide adequate means to challenge a custody order. Under this procedure a parent may petition the court on grounds of a change of circumstances or new evidence, to change, modify, or set aside a court order or terminate jurisdiction. If the court determines the best interests of the child may be promoted by any of these changes, it must order a hearing on the matter. 8

The mother claims this procedure is inadequate to protect her due process rights because it gives the court discretion to determine whether to grant a hearing. She argues the procedure does not consider the parent’s rights, and the standard the court must use (the best interests of the child) is deficient because it does not identify the specific factors which should be considered. She also claims the procedure takes too much time.

These arguments are without merit. The court is required to construe liberally the petition in favor of its sufficiency. (Rule 1393(a).) Thus, if the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.

The requirement to petition the court for a hearing must be viewed in the context of the dependency proceedings as a whole. At each hearing until after the permanency plan, the mother had the right to present evidence that Heather could be returned home safely. By the time the permanency plan was formed, the court reasonably assumed the mother would not be able to eliminate the problems which required Heather’s placement outside her home. After the permanency plan it was reasonable to require her to *892 petition the court if she wished to present evidence that her circumstances had changed.

The “best interests of the child” standard is sufficiently clear. Although the specific factors a court must consider vary with each case, each child’s best interests would necessarily involve eliminating the specific factors which required placement outside the parent’s home.

The time required for a section 388 petition is not excessive. If a hearing is granted, it must be set for not more than 30 days after the filing of the petition. (§§ 388, 387(b); rule 1393(d).) This short delay is insignificant when considering the importance of a stable, appropriate home for Heather and the fact that the conditions which required placing her out of her mother’s custody had existed for over two years.

C

The mother also argues her rights to substantive due process were violated because the court deprived her of fundamental parental rights without a hearing in the absence of a compelling state interest. This claim also is unfounded. The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with the parents have been unsuccessful. (§ 366.25(a); In re Mark V. (1986) 177 Cal.App.3d 754, 760 [225 Cal.Rptr. 460].) We believe this interest is compelling. The state’s interest requires the court to concentrate its efforts after a permanency plan on the child’s placement and well-being, rather than on a parent’s challenge to a custody order. The mother was not deprived of substantive due process because she was required to petition the court to hear her challenge to the custody order.

Disposition

The order is affirmed.

Kremer, P. J., and Huffman, J., concurred.

On May 16, 1989, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied July 12, 1989.

1

All statutory references are to the Welfare and Institutions Code unless otherwise specified. When referring to statutory subparts we omit repetition of the word “subdivision.”

2

When the court finds a minor is a person described in section 300, it must hold a hearing to hear evidence on the question of the proper disposition to be made of the case. (§ 358; Cal. Rules of Court, rule 1376(a).)

3

If a minor cannot be returned home, a court must conduct a permanency planning hearing to determine the minor’s future status. (§ 366.25(a).)

4

Heather’s aunt had indicated she would not care for Heather beyond six more months. She and her husband later agreed to continue their commitment to care for her. The court *889 found Heather was not considered adoptable because of psychological and other problems. Although the court did not explicitly so state, we assume that placement with Heather’s aunt pending placement in long-term foster care was the court’s permanency plan for Heather at the December 9 hearing.

5

It is clear from the record that both at the December 1986 and June 1987 hearings the court considered that it had made a permanency plan order. Under section 366.25 there are three types of permanent plans: adoption, legal guardianship, or long-term foster care. A “reunification plan,” which seeks as its ultimate objective the reunification of parent and child, is appropriate during the time-limited reunification period of 12 to 18 months prior to permanency planning. (See § 361.5(a); Cal. Rules of Court, rule 1377(g).) Notwithstanding the court’s decision to implement a permanency plan, it nevertheless at both the December and June hearings ordered that a reunification plan remain in effect. Ordinarily, neither a reunification plan nor reunification services are appropriate in a postpermanency-planning setting. We believe from the entire record the court did not intend, by its continued reference to a “reunification plan,” to undermine its implementation of the permanency plan. A case can, of course, be taken out of permanency planning and ordered back into a period of reunification pursuant to section 366.3. That was not, however, the court’s intention in this case, as is illustrated by its refusal to hear evidence pertaining to potential change of custody at the later hearing in January of 1988.

6

Heather’s attorney suggests the appeal is moot because of events which happened after the mother filed her notice of appeal. Since these events occurred after the order being appealed, however, they can have no effect on our review. (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 252, pp. 258-259.)

7

All rule references are to the California Rules of Court.

8

In fact, subsequent to the hearing which is the subject of this appeal, the mother followed this procedure and filed a section 388 petition, challenging the custody order. There is no indication in our records of any action taken on that petition.

Cites, in this corpus

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