California Cases May 31, 2022: Yolo Cnty. Health & Human Servs. Agency v. S.K. (In re J.K.)

Case Description

NOT TO BE PUBLISHED

(Super. Ct. No. JV20191683).

MAURO, Acting P. J.

S.K., mother of the minor (mother), appeals from the juvenile court's order denying her petition to modify a previous order. (Welf. & Inst. Code, §§ 388, 395.) Mother also contends her attorney rendered prejudicial ineffective assistance in failing to

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object to the permanent plan ordered by the juvenile court. We will affirm the juvenile court's orders.

BACKGROUND

Mother, the then eight-year-old minor J.K., and the minor's two older siblings E.W. and M.S., came to the attention of the Yolo County Health and Human Services Agency (Agency) after mother was arrested for grand theft, possession of methamphetamine for sale, possession of drug paraphernalia, and being addicted to methamphetamine while driving. The minor reportedly had autism and was nonverbal and needed constant monitoring due to his behaviors, which included erratic and spontaneous movements and throwing things. Mother initially reported using methamphetamine three to five times per day and admitted her intent was to sell the drugs in her possession. However, she subsequently reported using only three to four times per week and denied any intention to sell the methamphetamine. She also denied using drugs in the presence of her children and denied having an addiction to methamphetamine or needing to enter a treatment program.

Mother informed the social worker that she had arranged to leave the minor and his siblings in the care of her boyfriend, who did not use methamphetamine. However, the social worker interviewed mother's boyfriend, who admitted using methamphetamine with mother weekly and admitted using it earlier that day when he was supposed to be watching the minor and his siblings.

The minor and his siblings were taken into protective custody on May 22, 2019, and placed in separate foster placements. The Agency filed a dependency petition on their behalf pursuant to section 300, subdivision (b), alleging failure to protect due to mother's history of substance abuse, criminal activity, instability, and homelessness. The

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juvenile court ordered the minor and his siblings detained on May 28, 2019, and ordered three-hour supervised visits each week for mother.

The June 2019 jurisdiction report stated the minor's foster family gave a 14-day notice due to the minor's behaviors and extensive special needs. He was placed in an intensive treatment foster care program in Yuba County. Mother was interviewed on June 11, 2019. When asked what services she had obtained for the minor regarding his diagnosis of autism, she stated, "He is not disabled, there's nothing wrong with him, and he's just fine." She was also not receptive to having the minor evaluated for possible medication. She reported the minor's older brother, M.S., was the minor's primary caregiver. Mother was directed to drug test that day and tested positive for methamphetamine. She denied having used the drug within the previous 10 days. The Agency recommended the juvenile court sustain the allegations in the petition and authorize the sibling's brother, M.S., to be placed with M.S.'s nonoffending father in Georgia. The minor's nonoffending father lived in Idaho, had never met the minor, and was not able to care for the minor.

The July 2019 jurisdiction and disposition report stated the minor remained in the intensive treatment foster care placement due to his special needs. The Agency recommended he be placed in a home with specially trained caregivers and be provided with supportive services to meet his needs and to accommodate the need for constant immediate supervision. The Agency reported that communication with mother was difficult. Mother had difficulty regulating her emotions, as evidenced by her verbal outburst during a court hearing, after which she left the courtroom and then proceeded to send angry and profanity-filled text messages to the social worker. Mother refused to drug test when asked to do so. She lacked insight and shifted blame to others as to why the minor and his siblings were removed. During a child and family team meeting, mother became agitated and emotional and struggled to understand the need for substance abuse treatment. She agreed to allow the minor to be assessed by Alta Regional Center

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(ARC) to determine his specific needs, but she denied he had any behavioral issues or any need for services outside of the school setting. She declined to meet with the social worker to complete her assessment and left the child and family team meeting early.

The Agency remained extremely concerned about the well-being of the minor and his siblings given that mother continued to display unstable behavior and her substance abuse treatment needs had not yet been met. The Agency noted: "Based on the amount of drugs [mother] was abusing and her failure to engage with the Agency to start addressing the problems, the prognosis for reunification is poor." It was further noted that mother would benefit from intensive substance abuse treatment, a mental health assessment, and individual counseling, as well as full engagement in services for the minor to support the development of her parenting skills and to obtain information about resources specific to the minor's needs.

At the initial jurisdiction/disposition hearing, mother requested, and the juvenile court ordered, assistance from the Agency with transportation for visitation.

At the contested jurisdiction/disposition hearing on August 1, 2019, mother testified she was unable to attend visits with the minor or his siblings because the Agency had not provided her with gas cards. When asked whether she felt counseling would be helpful to her, mother responded, "No, I don't. . . . [¶] For my drug use, no." However, she stated she would be open to trying it. She stated she would also agree to a mental health assessment. Mother testified she was participating in a substance abuse program. She stated she tested positive for methamphetamine on June 11, 2019, and that she had been using methamphetamine since December 2018. She denied using drugs five times a week, stating she only used "every two, three days." Mother testified she was also participating in parenting classes and anger management classes.

The juvenile court sustained the allegations in the petition and exercised dependency jurisdiction over the minor and his siblings. The juvenile court ordered reunification services and supervised visits for mother and ordered mother to drug test.

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The juvenile court also granted custody of M.S. to his father and terminated dependency jurisdiction over M.S.

In January 2020, the Agency recommended the juvenile court terminate mother's reunification services and set the matter for a section 366.26 hearing. Mother had not visited the minor or his sibling E.W. despite efforts by placement staff to set up visits. She had been arrested twice during the reporting period for possession of methamphetamine, possession of methamphetamine with intent to sell, grand theft, and driving while addicted, the same charges that led to removal of the minor and his siblings just eight months prior. She failed to drug test. The Agency's many efforts to meet with mother in person to set up visits, go over her case plan, and discuss the case with her were unsuccessful.

The minor qualified for ARC services and had been moved into an ARC placement home on January 2, 2020, where he was adjusting well and was happy and content. Due to the minor's special needs, he could not be placed with his sibling, E.W. The minor's support provider, Gladys Mitchell, reported that she met with the minor weekly and, each time she met with him, she contacted mother by telephone in an attempt to maintain contact between mother and the minor. However, mother rarely answered the phone and had only spoken with the minor three to four times since July 2019. Mitchell reported that when the minor did have telephone/Skype contact with mother, he was disinterested and acted as if mother was a stranger.

At the contested six-month review hearing on February 13, 2020, mother testified she had not visited with the minor or his siblings since October 31, 2019. Mother denied she was still using methamphetamine. She admitted she used methamphetamine on January 21, 2020, that she tested positive for methamphetamine on January 23, 2020, and that she had been using methamphetamine two to three times per month. She identified her clean date as January 21, 2020. She admitted she was an addict but she denied having a substance abuse problem related to methamphetamine, claiming it had been a

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problem because of the people she was around, but it was no longer a problem because she was no longer around those people. She admitted, however, that the cause of the minor's removal had something to do with methamphetamine. Mother testified she had not had sufficient time to address her drug abuse issues due to the fact that she was homeless. Although she denied that the Agency provided her with housing resources, she acknowledged having received a referral sheet that included four different housing resources. She testified she participated in drug and alcohol classes through the Day Reporting Center, anger management classes, and parenting classes, but she did not receive certifications of completion for the latter two and was discharged from the Day Reporting Center for excessive absences.

Mother testified she had stable housing for the past six weeks because she was staying with her boyfriend in his trailer. The stable housing enabled her to do everything she was required to do, including drug testing and drug assessments. She testified that, before she obtained stable housing, her phone was stolen three times and it took three to four weeks to get a new one each time. She stated her phone was the main method of communication with the social worker, but she was able to receive communication through e-mail. Mother admitted the social worker attempted to contact her by phone 16 times between August 2019 and January 2020 and e-mailed her three or four times. She also admitted the case plan had been e-mailed to her, but she had not gone over it with anyone and did not know what was in it.

Social worker Julie Andrews testified she spoke with mother several times and attempted multiple times to meet with her to discuss her situation, connect her to referrals, and go over her case plan. Mother never followed through. Andrews finally met with mother the week prior to the hearing when mother went to drug test. Andrews gave mother some bus passes and tried to go over some things with her, but mother left after only 10 minutes. Before mother left, Andrews encouraged her to go across the street and apply for social security, Medi-Cal, and other general assistance programs.

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Andrews testified that mother was referred by her public defender to Steps to Success, a program that could connect mother with housing, mental health treatment, and substance abuse treatment. Mother was referred twice, once in November 2019 and once in January 2020, but failed to follow through on either referral.

The juvenile court found the Agency provided mother with reasonable services, but mother failed to take advantage of the services offered, lacked significant insight, and had taken very little responsibility for her actions, blaming others for her failures. The juvenile court found there was a substantial danger to the minor and his sibling if they were to be returned to mother, terminated mother's reunification services pursuant to section 361.5, subdivision (a)(2)(B), and set the matter for a section 366.26 hearing.

On April 1, 2020, the Agency filed a section 388 petition requesting that the juvenile court change its prior visitation order and find visitation between mother and the minor and his siblings would be detrimental and possibly traumatizing given that mother had not visited the minors since July 2019, and had not engaged in reunification services, which the juvenile court terminated on February 13, 2020. The Agency argued the requested change was in the best interests of the minor and his siblings because the case was no longer moving toward reunification. On April 29, 2020, the Agency filed what appears to be an identical section 388 petition. The juvenile court ordered a hearing on the Agency's petition after finding the best interests of the minor and his siblings might be promoted by the requested change.

The Agency recommended that the juvenile court terminate parental rights and free sibling E.W. for adoption. As for the minor, the Agency recommended, and the California Department of Social Services (CDSS) agreed, that the matter be continued for 180 days to allow the minor's current caregivers more time to consider whether to provide permanence. The minor was thriving in his ARC placement, where he had resided since January 2, 2020. Due to the short length of time the minor had been in the

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home, the minor's caregivers were still considering, but had not decided, whether they could provide the minor with permanence.

The minor reportedly had no contact with mother since July 2019 despite efforts by the Agency and service providers. The Agency requested the juvenile court find that any further contact with mother would be detrimental to the minor.

After an assessment of the minor, the Agency found that termination of parental rights would not be detrimental to the minor; however, the minor's current caregivers were not committed to adoption and a specific adoptive family had not been identified for the minor. The minor required a significant amount of supervision, so much so that ARC had approved funding for increased staffing to provide one-on-one supervision to the minor in the caregivers' home.

On June 10, 2020, mother filed a section 388 petition requesting that the juvenile court reinstate her reunification services. Mother argued that, since the last hearing, she had engaged in CommuniCare's intensive outpatient drug treatment program for women, and she had requested visitation after the last hearing, which the Agency failed to accommodate. Mother argued the requested change was in the best interests of the minor and his siblings because the children were old enough to know who their mother was. Mother wanted to preserve the family relationship and, since mother had engaged in drug treatment and was on the path to staying sober and healthy, she wanted the opportunity to reunify with the minor and his siblings. Attached to mother's petition was a letter from mother's counselor at CommuniCare, who stated mother completed 14 out of 20 treatment days with "strong" participation, despite the shelter-in-place restrictions due to the COVID-19 pandemic. It was noted that CommuniCare had not been drug testing due to the pandemic but would be starting to test on a limited basis.

On June 11, 2020, mother's attorney informed the juvenile court of mother's recently filed section 388 petition. The juvenile court set a hearing for June 18, 2020, to determine whether to set an evidentiary hearing on mother's petition.

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On June 18, 2020, mother's counsel informed the juvenile court that mother produced a clean drug test on June 10, 2020, and requested an evidentiary hearing on the petition. The juvenile court invited comments from other parties after noting as follows: "Because my thought on reading this was that this would just be summarily denied because there's no new evidence, there's no change of circumstances, and I don't think this is in any way in the best interest of either of these children. So I was just going to summarily deny it." Minor's counsel agreed with the juvenile court, arguing mother's circumstances were, at best, changing and mother had not met the best interests prong due to the fact that she had not had any visitation. The Agency joined in the minors' arguments. Mother argued she had been asking for visits since the February 14, 2020 hearing, but the social worker was not setting up visits due to the fact that the Agency filed its section 388 petition seeking to reduce visitation. She argued she was in a more stable place and wanted to have visitation, but it was never arranged for her.

Social worker Andrews stated that the visitation order was originally issued on August 1, 2019, and mother's services were terminated in February 2020 due in part to her lack of visitation with the minor and his siblings. Andrews noted the status review report detailed all of the efforts made by the Agency and various parties to set up visitation between mother and the children, but mother had not seen them since July

2019. Andrews further noted that the Agency's section 388 petition regarding visitation had not been addressed due to the COVID-19 pandemic and reiterated her opinion that visitation would be detrimental to the minor and his siblings. Finally, Andrews noted that mother had not attempted to communicate with her regarding visitation since March 11, 2020. Minors' counsel agreed with the social worker, adding that mother also could have reached out to her attorney to place the issue on the juvenile court's calendar but apparently did not.

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The juvenile court denied mother's section 388 petition for failure to demonstrate a change of circumstances or that the requested change was in the best interests of the minor and his siblings.

Following the hearing on mother's section 388 petition, the juvenile court conducted the section 366.26 hearing. As to E.W., the juvenile court terminated parental rights, freeing E.W. for adoption. As for the minor, counsel informed the juvenile court that the minor was doing "really, really well" in his placement and, despite his young age, would be a good candidate for long-term foster care, particularly in light of the fact that his caregivers were willing to keep him into adulthood. The Agency and the social worker agreed. The juvenile court responded, "Well, I like that idea, too. That's not adoption." The juvenile court continued the matter for two weeks to discuss the potential of long-term foster care. The juvenile court terminated visitation between mother and the minor, finding it would be detrimental to the minor's physical or emotional well-being. Mother's counsel did not object.

In its December 2020 addendum report, the Agency and the CDSS recommended a permanent plan of another permanent planned living arrangement (APPLA) for the minor with a postpermanency review in 180 days. The minor was reportedly thriving in the ARC placement where he had been since January 2, 2020, and his caretakers were committed to providing permanency for the minor through an APPLA plan. The caretakers planned to provide a home for the minor until he became an adult, at which time he would transfer to an adult ARC-licensed home that the caretakers planned to open within the next year or two. The home was located in the same neighborhood as the minor's current home. The plan would allow for the services the minor would require and would create a plan for him when he became a legal adult. The caregivers treated the minor as their own child, referred to themselves as mom and dad when speaking with him, and cared for him in a nurturing and loving way.

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The report noted that, if the minor were to be adopted, he would lose the much needed services provided by ARC. While the minor had made great strides in his behaviors while in the caretakers' home, he still required constant supervision. After consultation between the social worker, CDSS, the ARC service coordinator, the caregivers, county counsel, and minor's counsel regarding the best permanency plan for the minor, it was determined that it was in the minor's best interests to remain in his current placement with caregivers who would provide him with a stable home throughout his childhood and into adulthood. Given his strong attachment to his caretakers, it was determined it would be detrimental to remove him from their care.

The minor had no contact with mother since July 2019. The caregivers were supportive of maintaining contact between the minor and his siblings and extended family members, although the minor was mostly disinterested in such contact. The Agency recommended the juvenile court order no future visitation between the minor and mother, stating it would be detrimental to the minor's well-being.

The second section 366.26 hearing commenced on December 29, 2020. Mother submitted on the Agency's report. The Agency and minor's counsel noted that, while a permanent plan of APPLA was "a little bit of an odd recommendation given the age of the [minor]," it was in the minor's best interests and was appropriate given that the minor's caretakers were committed to the minor. The juvenile court found termination of parental rights would not be detrimental to the minor, but no adoptive home had been identified and the minor was difficult to place due to his diagnosed medical, physical, and mental disabilities. The juvenile court adopted the Agency's recommendations in full, including the recommendation for a permanent plan of APPLA, and set the matter for a six-month postpermanency review hearing. The juvenile court also terminated visitation between mother and the minor, finding it would be detrimental to the minor.

On January 28, 2021, mother filed a second section 388 petition requesting modification of the juvenile court's February 20, 2020 order by reinstating reunification

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services and starting visitation between mother and the minor. Mother argued that, after her services were terminated, she enrolled in and completed the Perinatal Day Treatment program on November 6, 2020, completed 19 drug tests without missing any tests and testing negative each and every time, completed the parenting course, attended trauma-focused groups and individual therapy, and participated regularly in 12-step meetings. She argued her assigned counselor, Sontine Kalba, described her as fully engaged, "demonstrating motivation and proactive action regarding participation and progress." According to Kalba, mother had gained insight, admitting the negative impact her substance abuse had on her life and the lives of her children and loved ones, and demonstrating self-awareness. Mother argued she fully participated in Steps in Success, a voluntary diversion program, and was set to be successfully discharged and to have her criminal case dismissed. Mother went from living in a motel to securing transitional housing and was now living in stable permanent housing with the support of Steps to Success and CalWorks. She gave birth to a healthy baby boy in August 2020 and received consistent prenatal care, and there had been no child welfare interventions since the child's birth. She was receiving ongoing parenting support through First 5 Yolo and was participating in an in-home parenting program through CommuniCare. She was receiving cash aid from various programs and was also engaged in the Welfare to Work program. She was working with CalWorks to enroll in online schooling to support her long-term goal of attending college.

Mother argued the requested change was in the minor's best interests because, given the minor's lengthy period before adulthood, his high level of needs, and the uncertainty of his permanency and stability, offering mother services would not delay his permanency. Additionally, the services mother could develop over the reunification period would ensure the minor had support into his adulthood and for the rest of his life. She argued that if she were successful with reunification services, the minor's permanency and stability could be established with her, thus meeting the goal of

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dependency to preserve the family relationship while creating a safe and stable environment for the minor. Attached to mother's petition were documents reflecting mother's participation in CommuniCare, Steps to Success, and other programs referenced in mother's petition.

On February 25, 2021, the juvenile court heard argument on mother's second section 388 petition. Minor's counsel opposed the petition and argued mother failed to make a prima facie showing. The Agency also opposed the petition, arguing it was not in the minor's best interests given his special needs and his unique situation, having been in his current placement for over a year with caretakers who were invested in the minor. The Agency argued that reintroducing mother would disrupt the minor's placement and would not be in the minor's best interests. Mother's counsel asked the juvenile court to grant an evidentiary hearing on the petition, arguing section 388 only required mother to demonstrate "it appears that the best interest of the child may be promoted by the proposed change in order." Counsel argued mother was invested in and committed to the minor and wanted to visit him, and her participation in reunification services would not disrupt the minor's placement.

The juvenile court concluded as follows: "Not only is this not in the minor's best interest, it would be extremely detrimental to him and his current placement. The mother has not met the threshold to even get the [evidentiary] hearing and I'm going to deny your request."

DISCUSSION

I

Mother contends the juvenile court committed statutory and constitutional error when it denied her an evidentiary hearing on her section 388 petition. She claims her petition made a prima facie showing sufficient to trigger an evidentiary hearing and failure to provide her a hearing violated her constitutional right to due process.

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"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent's request. [Citation.]" ( In re Zachary G. (1999) 77 Cal.App.4th 799, 806 ( Zachary G. ); see In re Daijah T. (2000) 83 Cal.App.4th 666, 672.)

The change of circumstances or new evidence "must be of such significant nature that it requires a setting aside or modification of the challenged prior order." ( Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485; see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.) When reunification services have been terminated and a section 366.26 hearing has already been set, a court assessing the child's best interests must recognize the focus of the case has shifted from the parents' interest in the care, custody, and companionship of the child to the needs of the child for permanency and stability. ( In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The child's best interests "are not to further delay permanency and stability in favor of rewarding" the parent for his or her "hard work and efforts to reunify." ( In re J.C. (2014) 226 Cal.App.4th 503, 527.) "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.) The petitioner has the burden of proof by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) In assessing the petition, the juvenile court may consider the entire history of the case. ( In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.) We review the denial of a section 388 petition for abuse of discretion. ( In re S.R. (2009) 173 Cal.App.4th 864, 870; In re J.T. (2014) 228 Cal.App.4th 953, 965.)

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Mother claims her petition demonstrated changed circumstances in that she had completed a drug treatment program, maintained her sobriety for almost one year, had stable housing, and was engaged in vocational and employment training. That is, she argues, the issues resulting in the minor's removal had been alleviated. She further claims the court ordered permanent plan of APPLA violated statutory requirements and therefore any requested change that would potentially lead to legal permanence would meet the required showing of best interests.

But even if mother's petition made a prima facie showing of changed circumstances, she failed to make the requisite showing that the requested change would be in the minor's best interests. Section 388 "contemplates that a petitioner make a prima facie showing of both elements to trigger an evidentiary hearing on the petition." ( Zachary G., supra , 77 Cal.App.4th at p. 806.) Mother does not demonstrate how reinstatement of services would be in the minor's best interests. The minor had been in foster care for nearly two years and in his current placement for one year, and he already had support from his caregivers and ARC into his adulthood. Indeed, as the Agency aptly notes, the level of services he required would be unavailable to him if he were adopted or placed in a legal guardianship. The minor had not had contact with mother since July 2019, in large part due to the fact that mother failed to engage in services provided to her and failed to participate in visitation with the minor.

Mother suggests the requested change was in the minor's best interests because the permanent plan of APPLA violated statutory requirements due to the minor's age and thus inappropriately prevented permanency for the minor. We decline to consider the argument. At the December 29, 2020 section 366.26 hearing, mother submitted on the Agency's report, which included the recommendation for a permanent plan of APPLA. The juvenile court adopted the Agency's recommendations in full and implemented a permanent plan of APPLA. Mother did not appeal from that order. Her notice of appeal filed March 4, 2021, designated only the February 25, 2021 orders regarding the section

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388 motion at issue, and was also outside the 60-day time limit for appealing from the orders entered pursuant to the section 366.26 hearing.

There is also no merit in mother's assertion that the failure to provide her an evidentiary hearing on her section 388 petition violated her constitutional right to procedural due process. ( Mathews v. Eldridge (1976) 424 U.S. 319 [47 L.Ed.2d 18] [respondent not denied procedural due process when he was not granted an evidentiary hearing prior to termination of his Social Security disability benefit payments].) The procedures in place in these dependency proceedings were sufficient to satisfy mother's right to due process. Section 388 required that, before being afforded an evidentiary hearing on her petition, mother bore the burden of establishing the existence of new evidence or changed circumstances and that the requested change would promote the best interests of the minor. ( Zachary G., supra , 77 Cal.App.4th at p. 806.) Mother did not meet that burden.

Finally, mother claims she was prejudiced by the juvenile court's error in denying her a hearing on her petition. As we have already concluded, there was no error.

The juvenile court found mother's requested change was not in the minor's best interests and "would be extremely detrimental to him and his current placement." There was no abuse of the juvenile court's discretion in denying mother's section 388 petition without an evidentiary hearing.

II

Mother further contends she suffered prejudicial ineffective assistance of counsel because there was no possible justification for her attorney's failure to object to the juvenile court's implementation of APPLA, a permanent plan that was statutorily prohibited due to the minor's age. This is a challenge to the juvenile court's December 29, 2020 order implementing a permanent plan of APPLA. But as discussed above, mother did not file an appeal from that appealable order, the time within which to do so has long since passed, and had already passed when the notice of appeal in the

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instant case was filed. (Cal. Rules of Court, rule 8.406(a)(1); In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151.) Nor did mother petition this court for extraordinary writ review of the order setting the section 366.26 hearing following the contested six-month review hearing on February 13, 2020, thus precluding review of the issue by appeal. (§ 366.26, subd. ( l ).) We do not consider her challenge.

DISPOSITION

The juvenile court's orders are affirmed.

We concur: DUARTE, J., HOCH, J.

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