Filed 3/8/17

          CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
           SECOND APPELLATE DISTRICT
                  DIVISION TWO

In re ALAYAH J., et al., Persons        B275728
Coming Under the Juvenile Court
Law.                                    (Los Angeles County
                                        Super. Ct. No. DK05617)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

       Plaintiff and Respondent.

       v.

NIEMA B.,

       Defendant and Appellant.




     APPEAL from an order of the Superior Court of Los
Angeles County. D. Zeke Zeidler, Judge. Affirmed.

      Lori N. Siegel, under appointment by the Court of Appeal,
for Defendant and Appellant.

      Mary C. Wickham, County Counsel, R. Keith Davis,
Assistant County Counsel, and Stephanie Jo Reagan, Deputy
County Counsel for Plaintiff and Respondent.
      Appellant Niema B. (mother) appeals from the juvenile
court’s order terminating parental rights over her children
Alayah J. (born Sept. 2010), Curley B. (born Oct. 2012), and
Christopher B. (born Dec. 2014). Mother contends the order must
be reversed because the juvenile court erred by initially granting
her a hearing on her Welfare and Institutions Code section 3881
petition seeking unmonitored visits and an assessment of her
home for overnight visits and placement of the children, and then
subsequently denying her such a hearing, and by terminating her
parental rights before considering her section 388 petition.
       We agree that the juvenile court erred by terminating
mother’s parental rights without first considering her section 388
petition. We conclude that no miscarriage of justice occurred,
however, as a result of that error and therefore affirm the order
terminating mother’s parental rights.
                         BACKGROUND
Detention and section 300 petition as to Alayah J. and
Curley B.
       In March 2013, the Los Angeles County Department of
Children and Family Services (the Department) received a
referral alleging that Alayah J. and Curley B. were victims of
general neglect and that their parents were abusing drugs.
Mother told the responding social worker that she had been
diagnosed with mild mental retardation and that she receives
Social Security benefits because of her disability. She tested
positive for marijuana in an on demand drug test. Curley’s B.
father, Curley B. Sr. (Curley Sr.),2 told the social worker that he
was diagnosed with paranoid schizophrenia and though he does

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

2     Curley Sr. is not a party to this appeal.




                                 2
not receive psychiatric services, he uses marijuana to manage his
mental health problems. Both parents declined voluntary
services.
      In July 2013, the Department received another referral
alleging that Alayah J. was a victim of emotional and physical
abuse by her father, David J.3, who arrived at the children’s home
and said he was taking Alayah J. with him. An altercation with
mother ensued, but David J. left before law enforcement arrived
at the scene. Mother filed a police report alleging that David J.
had punched both her and Alayah J. in the face. Mother stated
she was a victim of domestic violence from David J. and that she
has a restraining order against him.
      In September 2013, the Department received another
referral alleging that Curley Sr. was arrested following an
incident of domestic violence with mother. The report alleged
that mother and Curley Sr. argued and slapped each other in the
presence of the children and that Curley Sr. was arrested when
the altercation continued onto the street.
      In February 2014, the Department again met with mother
and Curley Sr. in an effort to persuade them to participate in
voluntary services. When the parents declined, the Department
obtained a detention warrant and filed a section 300 petition on
behalf of the children. The petition alleged that the parents
engaged in domestic violence, drug use, including daily use of
marijuana, and that both parents had emotional and/or mental
health problems rendering them incapable of providing care for
the children.
      At the March 24, 2014 detention hearing, the juvenile court
found Curley Sr. to be the presumed father of Curley B. and
David J. to be the alleged father of Alayah J. The court ordered
both children detained and accorded the parents monitored visits.

3     David J. is not a party to this appeal.




                                 3
Adjudication and disposition hearing as to Alayah J. and
Curley B.
      On May 9, 2014, both mother and Curley Sr. pled no
contest to an amended petition. The sustained allegations stated
that mother and Curley Sr. had been involved in a physical
altercation in the presence of the children in which Curley Sr.
struck mother and that he was arrested and convicted of
domestic violence; that Curley Sr. had mental health problems,
including paranoid schizophrenia and substance abuse, and was
a recent abuser of marijuana.
      Mother agreed to a court ordered case plan that required
her to participate in a domestic violence support group for
victims; random or on demand consecutive drug tests; a full
rehabilitation program with random testing in the event of any
missed or positive drug test; a parenting program; a psychological
assessment/psychiatric evaluation; and individual counseling to
address case issues, including substance abuse, domestic
violence, and protective parenting.
Review proceedings and termination of reunification
services
      In November 2014, the Department reported that Alayah J.
and Curley B. were both placed with a paternal great-aunt,
Ms. B., and were thriving under her care. Ms. B. was also
monitoring mother’s and Curley Sr.’s twice weekly visits with the
children. She reported in August that the parents had appeared
unannounced at her home. When Ms. B. told mother that
Alayah J. was being disciplined for kissing a boy, mother slapped
Alayah J. across the face with a sandal, causing the child’s nose
to bleed. Mother and Curley Sr. returned to Ms. B.’s home the
following day and attempted to take a television from the home.
In the ensuing argument, the parents assaulted Ms. B. and her




                                4
16-year-old granddaughter. Curley Sr. was subsequently
arrested on a warrant relating to the assault.
       The social worker advised Ms. B. to have the parents
contact the Department for future visits. Neither parent
contacted the Department to schedule a visit during the months
of September and October.
       Mother appeared at the November 7, 2014 review hearing,
but Curley Sr. remained incarcerated. At the parents’ request,
the matter was set for a contested hearing on January 5, 2015.
       In December, Curley Sr. told the social worker that he and
mother were living with friends but continued to receive mail at
their address of record. He said mother was participating in
counseling and a parenting program and was pregnant and
receiving prenatal care.
       At a January 5, 2015 contested status review hearing, the
juvenile court found mother and Curley Sr. in partial compliance
with their case plans and terminated reunification services.
Birth of Christopher, and detention and section 300
petition on his behalf
       Mother gave birth to Christopher on December 14, 2014,
after suffering a grand mal seizure. Christopher weighed only
1 lb. 4 oz. and was in the NICU. Mother had tested positive for
marijuana on the date of Christopher’s birth, but Christopher’s
toxicology screen had been negative.
       Christopher was discharged from the hospital in March
2015, and the Department obtained a removal order and placed
him with Ms. B.
       On March 19, 2015, the Department filed a section 300
petition on Christopher’s behalf alleging domestic violence
between mother and Curley Sr., a history of substance abuse and
current use of marijuana by both parents, and Curley Sr.’s




                                5
mental and emotional problems as the basis for juvenile court
jurisdiction over Christopher.
       At the March 19, 2015 detention hearing, the juvenile court
ordered Christopher detained. On March 20, 2015, the court
ordered weekly on demand drug and alcohol testing for both
parents.
       At the May 4, 2015 contested jurisdictional hearing as to
Christopher, the juvenile court sustained the allegations of the
section 300 petition and declared Christopher to be a dependent
of the court.
Review proceedings
       In April 2015, Ms. B. told the social worker that she wanted
to adopt Curley B.
       Mother had a monitored visit with the children on April 15,
2015, and the visit went well. Mother told the social worker she
was unsure whether she could continue the twice weekly visits
because she was busy with her programs but said she would visit
at least once a week. Mother tested positive for marijuana on
April 23 and 27, 2015, and failed to appear for testing on April
17.
       In a June 2015 interview, mother told the social worker
that she had begun a new program that she expected to complete
by the end of August or mid-September. She had not visited the
children since April. She had also failed to appear for drug
testing in May and June.
Disposition hearing as to Christopher
       At the July 6, 2015 contested disposition hearing as to
Christopher, the juvenile court received into evidence
documentation from mother’s programs and her stipulated
testimony presented at the jurisdictional hearing. The court
declared Christopher a dependent child, removed him from
parental custody, and ordered him placed with Ms. B. The




                                6
juvenile court ordered no reunification services for mother and
Curley Sr., after finding by clear and convincing evidence that
the parents’ reunification services had been terminated with
respect to Christopher’s siblings, and that neither parent had
made a reasonable effort to treat the problems that had led to the
siblings’ removal.
       The juvenile court accorded both parents monitored visits
twice a week for one hour and ordered that they not visit
together. The court further ordered both mother and Curley Sr.
to continue to drug test through the Department and set a section
366.26 hearing.
Section 366.26 proceedings
       Mother and Curley Sr. were arrested in July 2015 for
assaulting Ms. B. and vandalizing her home. Both parents were
subsequently incarcerated. Mother was unable to visit with the
children during her incarceration, but the Department arranged
for five telephone calls between mother and the children from
October to December 2015. Upon her release from custody in
December 2015, mother had negative drug tests on December 16,
and 21, 2015, January 6, and 20, 2016. Mother’s incarceration
prevented her from completing a parenting class she had been
attending, but she told the social worker that she intended to
complete her court ordered programs.
       In its February 2016 section 366.26 report, the Department
reported that Ms. B. was willing to adopt Alayah J., Curley B.,
and Christopher together as a sibling set. All three children were
happy, well-cared for, and comfortable in Ms. B.’s home, although
Alayah J. said she missed her mother and father. Alayah J. had
been approved for services through the Regional Center. Curley
B. was being assessed for services because he was at times
defiant and subject to extreme tantrums. He was receiving
counseling and weekly therapy. Christopher had been referred to




                                7
several doctors for gastrointestinal problems, poor vision, and a
possible seizure disorder.
       Mother visited with Curley B. and Christopher on January
5, 2016. She was unable to visit with Alayah J. because a
criminal restraining order prohibited her from having contact
with the child. Mother was appropriate during the visit, and
Curley B. appeared comfortable and confident in mother’s
presence. Christopher, however, cried when removed from his
caretaker, who had to be called in to calm him an hour into the
visit. Mother visited again with Curley B. and Christopher on
January 20, 2016. She was appropriate until Curley B. hit her in
the mouth while they were playing, and mother spanked him.
The social worker reminded mother that the juvenile court’s
order prohibited corporal punishment. During the visit mother
provided the social worker with a criminal court order allowing
her to have contact with Alayah J. solely for purposes of court
ordered visitation. Mother continued to deny that she had any
problems before the Department’s intervention and claimed the
children had been separated from their parents because of false
reports by spiteful relatives.
       The juvenile court set a section 366.26 hearing for all three
children for April 19, 2016.
Mother’s section 388 petition
       On April 18, 2016, mother filed a section 388 petition on a
California Judicial Council form JV-180 requesting unmonitored
visits and an assessment of her home for overnight visits and
placement via a home of parent order. On a form JV-183 court
order, the juvenile court ordered a hearing on mother’s petition
by checking option 4 on the pre-printed form, which states: “The
court orders a hearing on the form JV-180 request because the
best interest of the child may be promoted by the request.” The
court set the hearing on mother’s petition for the same date and




                                 8
time as the section 366.26 hearing. The juvenile court indicated,
however, that the hearing on mother’s section 388 petition would
occur after the section 366.26 hearing, and only if mother’s
parental rights were not terminated, by a handwritten
interlineation on the form order, adding the phrase “(if parental
rights are not terminated)” between the words “form JV-180”
and “request.”
Section 366.26 hearing
       In last minute information reports for the court filed on
April 19, 2016, the Department notified the juvenile court that
Ms. B.’s adoption home study had been approved and that mother
had tested positive for marijuana on April 12, 2016.
       At the outset of the April 19, 2016, combined section 366.26
and section 388 hearing, the juvenile court stated that mother
had filed a section 388 petition seeking unmonitored visits and an
assessment of her home for overnight visits and a home of parent
order, and that the court had previously indicated that it would
address mother’s requested orders if her parental rights were not
terminated. The court then granted a request by Alayah J.’s
counsel to continue the hearing to the following day.
       On April 20, 2016, the juvenile court again stated that it
would address mother’s section 388 petition if her parental rights
were not terminated. The court then proceeded with the section
366.26 hearing.
       Mother testified that she was incarcerated from July 29 to
December 9, 2016, and that although she did not visit with the
children during that time, she spoke with them by telephone two
to three times a week for 15 to 20 minutes. She said that she had
otherwise visited regularly with the children, but acknowledged
that a restraining order had prohibited her from having contact
with Alayah J. for a period of time. Mother testified that she and
the children share “the biggest bond ever.”




                                9
       Mother’s counsel argued that the children share a
significant bond with mother and that terminating parental
rights would be detrimental to them. The juvenile court found
the children were likely to be adopted and terminated parental
rights. The juvenile court did not consider mother’s section 388
petition. This appeal followed.
                          DISCUSSION
I. Applicable law and standard of review
       Section 3884 accords a parent the right to petition the
juvenile court for modification of any of its orders based upon
changed circumstances or new evidence. (§ 388; In re Marilyn H.
(1993) 5 Cal.4th 295, 308-309 (Marilyn H.).) To obtain the
requested modification, the parent must demonstrate both a
change of circumstance or new evidence, and that the proposed
change is in the best interests of the child. (Cal. Rules of Court,
rule 5.570(d) (rule 5.570); In re Casey D. (1999) 70 Cal.App.4th
38, 47.)
       Section 388 provides an “‘escape mechanism’” for parents
facing termination of their parental rights by allowing the
juvenile court to consider a legitimate change in the parent’s
circumstances after reunification services have been terminated.
(Marilyn H., supra, 5 Cal.4th at p. 309.) This procedural
mechanism, viewed in the context of the dependency scheme as a
whole, provides the parent due process while accommodating the
child’s right to stability and permanency. (Id. at p. 307.) After
reunification services have been terminated, it is presumed that
continued out-of-home care is in the child’s best interests. (Id. at


4     Section 388 provides in relevant part: “Any parent . . . [of]
a child who is a dependent child of the juvenile court . . . may,
upon grounds of change of circumstance or new evidence, petition
the court . . . for a hearing to change, modify, or set aside any
order of court previously made.” (§ 388, subd. (a)(1).)




                                 10
p. 310.) Section 388 allows a parent to rebut that presumption by
demonstrating changed circumstances that would warrant
modification of a prior court order. (Ibid.)
       To obtain an evidentiary hearing on a section 388 petition,
a parent must make a prima facie showing that circumstances
have changed since the prior court order, and that the proposed
change will be in the best interests of the child. (Rule 5.570(a),
(e); In re G.B. (2014) 227 Cal.App.4th 1147, 1157 (G.B.).) To
make a prima facie showing under section 388, the allegations of
the petition must be specific regarding the evidence to be
presented and must not be conclusory. (In re Anthony W. (2001)
87 Cal.App.4th 246, 250.) A section 388 petition must be liberally
construed in favor of granting a hearing to consider the parent’s
request. (Rule 5.570(a).)
       We normally review the grant or denial of a section 388
petition for an abuse of discretion. (In re Shirley K. (2006) 140
Cal.App.4th 65, 71.) While the abuse of discretion standard gives
the court substantial latitude, “[t]he scope of discretion always
resides in the particular law being applied, i.e., in the ‘legal
principles governing the subject of [the] action . . . .’ Action that
transgresses the confines of the applicable principles of law is
outside the scope of discretion and we call such action an ‘abuse’
of discretion. [Citation.]” (City of Sacramento v. Drew (1989) 207
Cal.App.3d 1287, 1297.) When the issue on appeal involves the
interpretation and proper application of the dependency statutes,
de novo review applies. (In re Anthony Q. (2016) 5 Cal.App.5th
336, 344 (Anthony Q.).)
II. Forfeiture
       The Department argues that mother forfeited any
challenge to the juvenile court’s order because she did not object,
at the outset of the combined section 388 and section 366.26
hearing, when the juvenile court stated that it would first




                                 11
proceed with the section 366.26 hearing and then consider
mother’s petition only if parental rights were not terminated.
Although the failure to object to a juvenile dependency order on a
specific ground generally forfeits a parent’s right to challenge
that order on appeal, when the appeal involves an important and
purely legal issue, an appellate court has discretion to consider
the issue notwithstanding the parent’s failure to object. (Anthony
Q., supra, 5 Cal.App.4th at p. 345.) We exercise our discretion to
do so here.
III. The juvenile court erred by conditioning the hearing
on mother’s section 388 petition upon non-termination of
her parental rights
       Section 388 permits a parent to petition the juvenile court
“for a hearing” to change, modify, or set aside any prior court
order. (§ 388, subd. (a).) Subdivision (d) of section 388 requires
the juvenile court to order a hearing on a petition for a change of
court order when the court finds that the best interests of a child
may be promoted by a change in the previous order. (§ 388, subd.
(d); G.B., supra, 227 Cal.App.4th at p. 1158.)
       Rule 5.570 of the California Rules of Court governs the
grant or denial of a hearing on a section 388 petition. Rule
5.570(d) allows a juvenile court to summarily deny a petition on
certain specified grounds, including that the petition “fails to
state a change of circumstance or new evidence that may require
a change of order or . . . [¶] . . . fails to demonstrate that the
requested modification would promote the best interest of the
dependent child.” (Rule 5.570(d)(1), (2).) Rule 5.570(f) allows the
juvenile court to grant, without a hearing, a section 388 petition
for modification of an order if all parties stipulate to the
requested modification. Absent such stipulation or summary
denial of the petition, rule 5.570(f) requires the juvenile court to
either order a hearing on merits of the section 388 petition, or




                                12
order a hearing for the parties to argue whether an evidentiary
hearing on the petition should be granted or denied. Rule
5.570(f) states:
             “If all parties stipulate to the requested
      modification, the court may order modification
      without a hearing. If there is no stipulation and the
      petition has not been denied ex parte under section
      (d), the court must either:

            “(1) order that a hearing on the petition be held
      within 30 calendar days after the petition is filed; or

             “(2) order a hearing for the parties to argue
      whether an evidentiary hearing on the petition
      should be granted or denied. If the court then grants
      an evidentiary hearing on the petition, that hearing
      must be held within 30 calendar days after the
      petition is filed.”

      Consistent with these statutory requirements, the form
JV-183 court order gives the juvenile court four options when
presented with a section 388 request to change a prior court
order: (1) grant the request because all parties and attorneys
agree to the request; (2) summarily deny the request on various
grounds, including that the request does not state new evidence
or a change of circumstances, or that the proposed change of
order does not promote the best interests of the child; (3) grant a
hearing on whether the court should grant or deny an evidentiary
hearing on the request; and (4) order a hearing because the best
interests of the child may be promoted by the request.
      The juvenile court in the instant case did not summarily
deny mother’s section 388 petition, nor did it grant a hearing on
whether or not an evidentiary hearing should be held on mother’s
request. Rather, the court selected option 4 on the form JV-183
court order, thereby indicating that it had found that the best




                                13
interests of the children may be promoted by mother’s request.
After making that finding, the juvenile court was then compelled
to order a hearing on mother’s section 388 petition. (§ 388, subd.
(d); rule 5.570(f); G.B., supra, 227 Cal.App.4th at p. 1158.)
       The juvenile court did order a hearing on mother’s section
388 petition, but it did so on the condition that mother’s parental
rights were not terminated at the section 366.26 hearing the
court conducted before considering mother’s petition.
Conditioning the grant of hearing on a parent’s section 388
petition upon non-termination of parental rights is not an
available option under section 388 or rule 5.570. The statutory
requirements make clear that if a court does not summarily grant
or deny a section 388 petition, only two options are available.
The court must either (1) hold an evidentiary hearing on the
petition, or (2) hold a hearing for the parties to argue whether an
evidentiary hearing on the petition should be granted. (Rule
5.570(f).) The juvenile court in the instant case did neither. Its
conditioning the grant of a hearing on mother’s section 388
petition was outside the scope of its statutory authority.5


5     The instant case is distinguishable from G.B., a case in
which the juvenile court used a previous version of the Judicial
Council form JV-183 court order to rule on a parent’s request for
a hearing on a section 388 petition. The court in G.B. checked
the box on the form order indicating that a hearing would be held
“‘because the best interest of the child may be promoted by the
request.’” (G.B., supra, 227 Cal.App.4th at p. 1158.) By selecting
that box on the form order, the court in G.B. did not set an
evidentiary hearing on the petition, but scheduled the matter for
the parties to argue whether or not an evidentiary hearing should
be held -- an option not included on the form order then in use
but that is included on the current form JV-183 used by the
juvenile court in this case. (Ibid.) The court in G.B. also
expressly clarified that it had considered the parent’s petition “‘in




                                 14
      By deferring consideration of mother’s petition until after
the section 366.26 hearing, the juvenile court circumvented the
“‘escape mechanism’” accorded to mother by section 388 and
foreclosed any opportunity for her to demonstrate a legitimate
change of circumstances before her parental rights were
terminated. (See Marilyn H., supra, 5 Cal.4th at p. 309.) The
section 366.26 hearing was not an adequate substitute for a
hearing on mother’s petition. Mother sought to prove changed
circumstances before a permanent plan was implemented. At the
section 366.26 hearing, the juvenile court no longer considers
reunification with mother as an option, but focuses on providing a
permanent home for the child. (§ 366.26; In re Hashem H. (1996)
45 Cal.App.4th 1791, 1801.) There is nothing in the record to
indicate that the juvenile court allowed mother to present
evidence of changed circumstances or that mother presented such
evidence.
      The juvenile court accordingly erred by denying mother an
evidentiary hearing on her section 388 petition.
IV. The error does not require reversal
      Our determination that the juvenile court erred does not
necessarily mandate reversal of the order terminating mother’s
parental rights. “The California Constitution prohibits a court
from setting aside a judgment unless the error has resulted in a
‘miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (In re Celine
R. (2003) 31 Cal.4th 45, 59-60.) Our Supreme Court has
interpreted that language to permit reversal “only if the
reviewing court finds it reasonably probable that the result would
have been more favorable to the appealing party but for the
error” and has applied that same test in juvenile dependency


order to have an opportunity for the parties to argue for a
hearing’” and in fact allowed the parties to do so. (Ibid.)




                                 15
matters. (Ibid.) Under the circumstances presented here, no
miscarriage of justice occurred.
       The evidence in the record shows that mother was only in
partial compliance with her court ordered case plan. She tested
positive for marijuana six days before filing her section 388
petition. There was no evidence that mother participated in any
drug rehabilitation program or in individual counseling to
address substance abuse and mental health issues. She had
never progressed to unmonitored visits with the children.
Because the evidence showed, at best, changing rather than
changed circumstances, we do not find it reasonably probable
that mother’s parental rights would not have been terminated
had the juvenile court not denied her a hearing on her section
388 petition. The error accordingly was harmless.
                          DISPOSITION
       The order terminating parental rights is affirmed.
       CERTIFIED FOR PUBLICATION


                             ____________________________, J.
                             CHAVEZ
We concur:


__________________________, Acting P. J.
ASHMANN-GERST


__________________________, J.*
GOODMAN

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




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