Filed 7/19/22 In re Eliza T. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re ELIZA T., a Person Coming 

Under the Juvenile Court Law.

B315940

(Los Angeles County

Super. Ct. 

No. 19CCJP05019A

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

TREASURE M.,

Defendant and Appellant

APPEAL from an order of the Superior Court of 

Los Angeles County, Marguerite D. Downing, Judge. Affirmed.

Anne E. Fragasso, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

Dawn R. Harrison, Acting County Counsel, Kim Nemoy, 

Assistant County Counsel, and Peter Ferrera, Principal Deputy 

County Counsel, for Plaintiff and Respondent.

____________________

Treasure T., the mother of now-three-year-old Eliza T., 

appeals the juvenile court’s order terminating her parental 

rights. Treasure contends the court erred in denying her request 

for a continuance of the selection and implementation hearing 

(Welf. & Inst. Code, § 366.26)1 and terminating parental rights 

without ruling on Treasure’s pending section 388 petition seeking 

reinstatement of family reunification services. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

1. The Sustained Section 300 Petition and Disposition

On January 9, 2020 the juvenile court sustained a 

section 300 petition finding Treasure suffered from mental and 

emotional problems including diagnosed bipolar disorder with 

other persistent mood disorder and major depressive disorder,

failed to take her prescribed psychotropic medication or 

participate in mental health services, abused marijuana and was 

under the influence of marijuana while caring for Eliza, all of 

which placed Eliza at substantial risk of serious physical harm 

(§ 300, subd. (b)(1)). At the disposition hearing immediately 

following adjudication, the court declared Eliza a dependent child 

of the court, removed her from parental custody and placed her 

under the care and supervision of the Los Angeles County 

Department of Children and Family Services for suitable 

1 Statutory references are to this code.
3

placement. The court ordered family reunification services for 

Treasure with monitored visitation. 

2. The Six-month Review Hearing and Termination of 

Treasure’s Family Reunification Services 

At the September 25, 2020 six-month review hearing 

(§ 366.21, subd. (e)), the Department reported Treasure was not 

in compliance with her case plan. Treasure had missed every

scheduled weekly drug test (22 tests) since January 2020; had not 

participated in any of her court-ordered drug treatment or 

counseling services; and had enrolled in, but failed to attend

more than two, parenting classes. Meanwhile, Eliza was thriving 

in the care of her foster parent. The Department recommended 

the court terminate family reunification services and set a 

selection and implementation hearing with the permanent plan 

of adoption by Eliza’s foster parent. Eliza’s counsel supported 

that recommendation. The court terminated Treasure’s 

reunification services and set a selection and implementation 

hearing (§ 366.26) for January 25, 2021, which was continued to 

October 25, 2021. 

3. Treasure’s In Propria Persona Section 388 Petition

On October 22, 2021 Treasure filed a section 388 petition 

seeking reinstatement of her reunification services and the 

appointment of new counsel. The section 388 petition is signed 

by Treasure, not her counsel; and no proof of service is included 

in the record. Treasure stated in the petition she had “signed up” 

for mental health services and had sent her evaluation papers to 

her social worker. In addition, in order to “finish” at SHIELDS

for Families (Treasure did not specify what type of programming 

she was referring to, but her no-show drug and alcohol tests were 
4

scheduled for SHIELDS for Families Los Angeles), Treasure 

stated she needed referrals from the Department. 

4. The Selection and Implementation Hearing and the 

Court’s Denial of Treasure’s Request for a Continuance

At the selection and implementation hearing Treasure’s 

counsel orally requested a continuance to allow Tamisha R., a 

maternal aunt who had recently moved from Las Vegas to 

Los Angeles, to be assessed for placement. Counsel 

acknowledged the court had earlier ordered an evaluation under 

the Interstate Compact on the Placement of Children (ICPC) for 

Tamisha, but the request was denied. The record indicates 

Tamisha had declined to participate in the ICPC evaluation in 

Las Vegas because she was planning to move to Los Angeles and 

told the Department she would be in contact after her move if she 

wanted the request resubmitted. The court inquired whether 

Tamisha had expressed interest in being evaluated for placement 

since her return, and Treasure’s counsel acknowledged he did not 

know. Eliza’s counsel objected to the request for continuance as

contrary to Eliza’s best interest, and the court denied it for lack of 

good cause. 

Treasure and the Department submitted on the reports and 

did not present new evidence at the selection and implementation 

hearing. The Department, supported by Eliza’s counsel, 

recommended the court terminate parental rights and free Eliza 

for adoption by her current caregiver and prospective adoptive 

parent. When the court indicated it intended to follow that 

recommendation and terminate parental rights, Treasure asked 

to speak on her own behalf. The court explained to Treasure her

parental rights were being terminated because she had failed to 

participate in any court-ordered programs and told her she 
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should speak to her attorney. Treasure responded she had

participated in services. She had sent her “paperwork” to the 

social worker, but the social worker had told her “there was 

nothing she could do about it.” The court again stated it had 

received no evidence of Treasure’s participation in services.

The court terminated parental rights. Neither Treasure 

nor her counsel advised the court a section 388 petition was still 

pending. 

On October 25, 2021 Treasure’s counsel filed a notice of 

appeal from the termination order.

On October 29, 2021 the juvenile court issued an order 

summarily denying Treasure’s October 22, 2021 section 388 

petition.

On November 1, 2021 Treasure’s counsel filed a second, 

identical notice of appeal from the October 25, 2021 termination 

of parental rights. 

DISCUSSION

1. The Court Did Not Err in Denying Treasure’s Request 

for a Continuance 

“[T]he juvenile court has authority to grant brief, necessary 

continuances that are not inconsistent with the child’s best 

interests, while giving ‘substantial weight to a minor’s need for 

prompt resolution of his or her custody status, the need to 

provide children with stable environments, and the damage to a 

minor of prolonged temporary placements.’” (In re Abbigail A. 

(2016) 1 Cal.5th 83, 95; see § 352, subd. (a)(2) [“[c]ontinuances 

shall be granted only upon a showing of good cause and only for 

that period of time shown to be necessary by the evidence 

presented at the hearing on the motion for the continuance”]; Cal. 

Rules of Court, rule 5.550(a); see also In re Elizabeth M. (2018) 
6

19 Cal.App.5th 768, 779 [“[c]ontinuances are discouraged in 

dependency cases”; they may be granted “upon a showing of good 

cause, provided the continuance is not contrary to the interest of 

the child”].) 

Treasure’s contention the court abused its discretion in 

denying her request to continue the selection and implementation 

hearing is without merit.2 The court found no good cause to 

further delay the selection and implementation hearing based 

solely on speculation that Tamisha might be interested in 

placement, particularly when the evidence was clear Treasure 

had been thriving in the care of her prospective foster parent 

since her detention nearly two years earlier. That ruling, neither 

arbitrary nor irrational, was well within the court’s discretion. 

2. Treasure Forfeited Her Challenge to the Court’s Order 

Terminating Her Parental Rights by Failing To Raise 

the Pending Section 388 Petition at the Hearing; Any 

Error Was Harmless 

Treasure contends the court erred in terminating her 

parental rights without first considering her section 388 petition 

seeking reinstatement of reunification services. She correctly 

observes that, once the court terminated her parental rights, it 

lacked the power to rule on her section 388 petition. (§ 366.26, 

subd. (i)(1) [“after making the order [terminating parental rights] 

the juvenile court shall have no power to set aside, change, or 

modify it, except as provided in paragraph (2) [relating to tribal 

customary adoption orders]”]; see In re Cody B. (2007) 

153 Cal.App.4th 1004, 1009 [juvenile court lacked jurisdiction to 

2 We review the juvenile court’s denial of a continuance for 

abuse of discretion. (In re D.Y. (2018) 26 Cal.App.5th 1044, 1056; 

In re Elizabeth M., supra, 19 Cal.App.5th at p. 779.) 
7

modify order terminating parental rights]; In re Ronald V. (1993) 

13 Cal.App.4th 1803, 1805-1806 [same].) 

At the threshold, it is not clear whether Treasure’s counsel 

(or the Department for that matter) knew of Treasure’s 

section 388 petition, which Treasure appears to have improperly

filed in propria persona, or whether, as a result, the petition was 

even properly before the court. (See generally In re Samuel A. 

(2021) 69 Cal.App.5th 67, 84 [clerk should reject for filing 

section 388 petition filed in propria persona by a mother who was 

represented by counsel].) 

Moreover, even if Treasure’s section 388 petition had been 

properly filed and served on the Department, the failure to raise 

the issue at the hearing when any oversight could have easily 

been cured presents a classic case for application of the forfeiture 

doctrine. (See In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted

[“[A] reviewing court ordinarily will not consider a challenge to a 

ruling if an objection could have been but was not made in the 

trial court. [Citation.] The purpose of this rule is to encourage 

parties to bring errors to the attention of the trial court, so they 

may be corrected. [Citation.] [¶] Dependency matters are not 

exempt from this rule”]; ibid. [although the forfeiture doctrine is 

not “automatic,” courts must take special care when excusing 

forfeiture in dependency cases, where “permanency and stability 

are of paramount importance”]; In re Aaron S. (2015) 

235 Cal.App.4th 507, 521 [same]; In re S.B. (2005) 

130 Cal.App.4th 1148, 1158 [“‘[a]s a general rule, a party is 

precluded from urging on appeal any point not raised in the trial 

court’”].) Had Treasure alerted the court to her section 388 

petition during the October 25, 2021 hearing, the court could

have ruled on it before making any determination whether 
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parental rights should be terminated. Instead, Treasure 

remained silent, and the court proceeded to the hearing on 

termination of parental rights. (See generally In re Marriage of 

Arceneaux (1990) 51 Cal.3d 1130, 1138 [“it would be unfair to 

allow counsel to lull the trial court and opposing counsel into 

believing the statement of decision was acceptable, and 

thereafter to take advantage of an error on appeal although it 

could have been corrected at trial”]; Caminetti v. Pacific Mutual 

Life Ins. Co. (1943) 22 Cal.2d 386, 392 [forfeiture rule keeps a 

party from playing “‘fast and loose with the administration of 

justice by deliberately standing by without making an objection 

of which he is aware and thereby permitting the proceedings to 

go to a conclusion which he may acquiesce in, if favorable, and 

which he may avoid, if not’”].) 

Finally, Treasure has not demonstrated any prejudice as a 

result of the court’s failure to rule on her petition. Treasure’s 

petition alleged only that she had “signed up” for mental health 

treatment and wanted the Department to issue referrals so she 

could begin drug treatment, none of which was new evidence or 

demonstrated a change of circumstance. She did not indicate she 

had participated in any mental health or drug treatment, 

resumed her prescribed medication or tested negative for drugs. 

Because Treasure’s petition failed as a matter of law to state even 

a prima facie case for relief (see In re Stephanie M. (1994) 

7 Cal.4th 295, 317 [to obtain a hearing on a section 388 petition, 

the parent must make a prima facie showing as to both a change 

of circumstance and modification of court order is in child’s best 

interests]; In re K.L. (2016) 248 Cal.App.4th 52, 61 [same]; 

see Cal. Rules of Court, rule 5.570(d)), it is not reasonably 

probable Treasure would have received a more favorable result 
9

had the court considered her section 388 petition prior to 

proceeding to the section 366.26 hearing. (See In re Celine R. 

(2003) 31 Cal.4th 45, 59-60 [state law error harmless unless 

reviewing court finds a more favorable result was reasonably 

probable but for the error]; In re Alayah J. (2017) 9 Cal.App.5th 

469, 481 [same].) 

DISPOSITION

The October 25, 2021 order terminating parental rights is 

affirmed. 

PERLUSS, P. J. 

We concur: 

SEGAL, J.

FEUER, J.