Filed 10/19/15 In re A.R. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.R., a Person Coming Under the Juvenile Court Law. D067707 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. EJ3753) Plaintiff and Respondent,
v.
HUGO R. et al.,
Defendants and Appellants.
APPEALS from orders and judgments of the Superior Court of San Diego County,
Kimberlee A. Lagotta, Judge. Affirmed.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and
Appellant Hugo R.
Michele Anne Cella, under appointment by the Court of Appeal, for Defendant
and Appellant Rachel F. Thomas E. Montgomery, County Counsel, John E. Philips and Dana C. Shoffner,
Deputy County Counsel, for Plaintiff and Respondent.
In November 2013 A.R., who was then almost three months old and is now over
two years old, was removed from her father Hugo R. (Hugo or father) and mother Rachel
F. (mother) (together the parents) when police found A.R. unsupervised in the father's car
after he had attempted to break into a tattoo shop and then had fled the scene. The father
and mother had a history of domestic violence in their relationship and the father had a
substance abuse problem. As a result of the incident at the tattoo shop, the father was
charged with misdemeanor vandalism and cruelty to a child by endangering her health.
A.R. was placed in the home of her maternal grandparents. As of early September 2014,
when the court held the contested six-month review hearing, the mother had not
participated in the reunification services offered to her and the father had not made
significant progress with his service objectives. At the time of the March 2015 section
366.26 permanency plan selection and implementation hearing, the maternal
grandparents wanted to adopt A.R. and had taken the steps necessary to complete their
adoption home study. The court terminated the parental rights of both parents and
referred A.R. to the San Diego County Health and Human Services Agency (Agency) for
adoptive placement.
2 Contentions
The parents separately appeal the juvenile court's orders denying their petitions for
modification under Welfare and Institutions Code1 section 388, in which they sought
reinstatement of the reunification services the court terminated at the six-month review
hearing. Both parents contend the court abused its discretion when it denied their
petitions, asserting the evidence showed a substantial change of circumstances and that it
was in A.R.'s best interest to continue her relationship with them. The father also appeals
the judgment terminating his parental rights, contending the court erred because the
evidence showed A.R. had a beneficial parent-child relationship with him that
outweighed any need for adoption, and the court should have ordered a permanent plan of
legal guardianship. The mother asserts the termination of her parental rights should be
reversed if this court reverses the termination of the father's parental rights.
We conclude the court acted within its lawful discretion in denying the parents'
section 388 petitions and in terminating their parental rights. Accordingly, we affirm the
denial orders and the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
On November 13, 2013, when A.R. was about three months old, the father drove
her to a tattoo shop owned by a friend of the mother. The father left A.R. unsupervised in
his car with the windows partially open while he attempted to break into the tattoo shop.
Police were dispatched to the scene. The shop owner reported that he witnessed the
1 All further statutory references are to the Welfare and Institutions Code 3 father hitting a plate glass window at the shop with a paint can, knocking the window out.
The father fled on foot and could not be found. Police located the father's car in the
parking lot of the tattoo shop and found A.R. asleep inside the vehicle in a car seat with
no pants and a wet diaper. No adults were supervising her.
The Agency investigated after it received this information. The mother admitted
she and the father were involved in a domestic violence incident in late 2012 during
which the father punched her in the stomach when she was pregnant and threatened to
kill her and her unborn child. She also admitted the father had recently pushed her into a
couch, which resulted in a bruise on her back. The mother reported the father would
shake A.R. back and forth when he got frustrated, and he had left her unattended on one
prior occasion. She also told the social worker who prepared the detention report that the
father smoked marijuana and that she suspected he used other drugs based on his erratic
behaviors in which he would "hear people talking to him like he was schizophrenic." The
mother, who was still residing with father, had been declared a dependent of the juvenile
court in 2011.
A. Petition
On November 14, 2013, the Agency filed a petition in the juvenile court on behalf
of A.R. pursuant to section 300, subdivision (b), alleging A.R. had suffered, or there was
a substantial risk that she would suffer, serious physical harm or illness as a result of her
parent's failure or inability to adequately supervise or protect her. Specifically, the
petition alleged (1) on or about and between August 2013 to the present, A.R. was
periodically exposed to violent confrontations between the alleged father and the mother
4 involving the use of physical force; (2) on or about November 13, 2013, two-month-old
A.R. was left inadequately attended and inadequately supervised in that law enforcement
found her alone in the backseat of a vehicle without any adult supervision; and (3) the
mother admitted the father shakes A.R. from side to side when he is frustrated, and he
had a history of losing his temper, striking or pushing the mother, and dropping or
allowing A.R. to fall and injure herself.
B. Detention Hearing
At the detention hearing, the court found a prima facie showing had been
established that A.R. was a person described in section 300, subdivision (b). The court
also found that Hugo was the presumed father and ordered A.R. detained in out-of-home
care.
C. Jurisdiction and Disposition Hearing and A.R.'s Placement with Grandparents
At the December 2013 jurisdiction and disposition hearing, the parents submitted
on the reports of the Agency's social workers. The Agency reported that A.R. was
detained in a confidential licensed foster home and recommended A.R. be declared a
dependent of the court and the parents receive reunification services and have separate
supervised visitation with A.R.
The Agency also reported the father had explained to a social worker that his
relationship with the mother had been "on and off" for two years. He claimed the mother
had fabricated some of what she had reported about domestic violence in their
relationship. Regarding the incident at the tattoo shop, the father said he had gone there
to find the mother and saw her standing inside wearing lingerie. He said he went back to
5 the car to check on A.R. while he waited for the mother to come out and, when she did
not come out, he went back to look and found the window curtains closed. He admitted
he threw a paint can toward a window but claimed he could not remember anything else.
He told the social worker he regretted leaving A.R. alone in the car and said he ran from
the scene because he was scared and worried he would be arrested. He also indicated he
was worried about the mother's ability to safely care for A.R.
During her interview, the mother showed the social worker proof the father was
arrested for assaulting her in North Carolina in January 2013. She told the social worker
she had a new boyfriend and was worried the father seeing her with another man would
cause a conflict with the father.
The Agency reported that a social worker observed the father's visit with A.R. at a
library earlier that month. The mother was present because she had finished her visit
right before the father's began. The social worker reported that the parents walked to the
back of the library and, when she observed them talking quietly to each, she told the
father he was missing out on visitation time by talking to the mother.
The paternal grandmother reported the father could not be left alone and needed
supervision because he suffers from attention deficit disorder and anxiety. She stated his
mind was "a little bit extreme," and she was helping him be evaluated for disability
payments. She also felt the mother was incapable of caring for A.R.
The Agency also reported both parents completed drug tests. The father's test was
positive for marijuana metabolite, and the mother's was negative.
6 The court sustained the petition, found that A.R. was a minor described in section
300, subdivision (b), and at the mother's request set the matter for a contested disposition
hearing.
Thereafter, A.R. was placed with the maternal grandparents.
D. Disposition Hearing
At the disposition hearing in mid-January 2014, the court declared A.R. a
dependent of the juvenile court, ordered A.R.'s placement to continue in the approved
home of a relative, and ordered the Agency to provide family reunification services to the
parents.
The reunification case plan required the mother to participate in a domestic
violence victim program, psychological evaluation if recommended by her therapist,
individual counseling, and parent education. The reunification case plan required the
father to participate in a 52-week domestic violence program, psychological evaluation if
recommended by his therapist, individual counseling, parent education, and an outpatient
substance abuse program.
E. Six-Month Review
1. Initial six-month status review hearing
The six-month review hearing was held in July 2014. The Agency recommended
that the court terminate reunification services for both parents. A.R. remained placed
with the maternal grandparents.
In the status review report prepared for the hearing, the Agency reported the father
was on summary probation and he stated he was employed and taking classes to become
7 an emergency medical technician. The father reported he was in contact with the mother
via social media and she once came to his house drunk.
The Agency also reported the mother was not in contact with the social worker,
did not participate in her reunification services, and missed seven weeks of visits with
A.R. The only service she completed was her psychological evaluation, which indicated
she met criteria for a diagnosis of depressive disorder not otherwise specified and
personality disorder not otherwise specified. Therapy and psychotropic medication was
recommended.
The father also completed a psychological evaluation, which revealed diagnoses of
neglect of child, partner relational problem, and cannabis abuse. The psychologist
recommended that the father participate in a formal substance abuse treatment program
including random drug testing, as well as psychotherapy, parenting education, domestic
violence treatment; and that the father see a psychiatrist for medication. The psychologist
opined that the father had poor emotional and psychological functioning and it was
unlikely he would be able to reunify with A.R. within a six-month time frame because his
problems were chronic.
Regarding the father's reunification services, the Agency reported that he did not
consistently attend his substance abuse treatment program. The social worker learned he
was discharged from the program on April 3, 2014. The father eventually returned to the
program but appeared to be under the influence, did not perform a drug test, and did not
want to stay in the program. The father failed to provide the social worker with the name
8 of his sponsor, proof he attended meetings, or drug test results. He failed to drug test for
the Agency on June 17, 2014 and June 24, 2014.
The father completed parent training, but only minimally completed domestic
violence classes by attending only 13 sessions in a six-month period. The father
completed 17 counseling sessions with his therapist, who reported the 19-year-old father
experienced severe anxiety and used marijuana. The father did not inform his therapist
about his contact with the mother, his failure to attend drug treatment, or his failure to
perform drug tests. The therapist opined that the father did not have the maturity to
parent A.R.
The father visited A.R. twice per week at a library. The social worker reported
that A.R. did not easily go to the father and clung to the maternal grandmother. The
father did not bring a bag with food, diapers, and wipes at visits, although the social
worker instructed him to do so. The grandmother reported the father had come to some
visits with red eyes, and the social worker reported that he was hallucinating during one
of the visits. On the positive side, the father would get on A.R.'s level to play, he was
loving toward her and sang to her, he brought toys to visits, he spoke Spanish to her, and
he arrived on time to visits.
The Agency's report showed the father had failed to make progress in his
reunification services. He was not addressing his drug problem. He had only completed
13 sessions on domestic violence and he remained in contact with the mother. The social
worker concluded that he was "not showing behavioral changes and not complying with
treatment recommendations." The psychological evaluation results showed his
9 psychological functioning level was poor, and he had difficulty with anger, impulse
control, and judgment.
The parents requested, and the court set a date for, a trial on the issue of the
continuation of family reunification services.
2. Contested six-month review hearing
The contested six-month review hearing was held on September 4, 2014. The
court received in evidence the testimony of the social worker, to which the parties
stipulated, and the Agency's reports.
In an addendum report, the Agency reported the father had disclosed he used
marijuana in early July, but his drug test several days later was negative. He enrolled in
drug treatment again in mid-July, and in late August his treatment counselor reported that
the father was attending classes but was not making progress. He was not working on his
recovery steps, he fell asleep in class, he did not provide meeting verification slips, he
had no drive, and nothing had changed. The father remained in therapy and attended 26
sessions and stated he needed more time to parent A.R. effectively.
The father reported he had to enroll in a 52-week child abuse class as a required
term of his probation in the criminal case. The stipulated testimony of the social worker
showed the father had not attended his domestic violence classes since August 23 and had
missed six sessions. He had arrived 20 minutes late to his two most recent therapy
sessions.
The Agency also reported that the father continued to visit A.R. and there had
been some positive interactions but also some concerns. He played with A.R. and
10 brought toys, books, diapers and clothes. He left A.R. standing on a chair by herself
during one visit, he picked at her eyes when she had pink eye, A.R. was still slow in
warming up to him, and she constantly looked for her caregiver.
The mother had not visited A.R. since June 24 and told the social worker she was
no longer interested in participating in reunification services.
The social worker and the father's therapist were concerned about the history of
domestic violence, the parents' continued contact, and the father's inability to act
maturely and maintain appropriate boundaries. The therapist expressed concern that the
father's relationship with two women could lead to domestic violence.
After considering the evidence, the court terminated the parents' reunification
services, finding the parents had not made substantive progress with the provisions of the
case plan.
The court set a section 366.26 permanent plan hearing for December 30, 2014. On
that date the parents requested a trial and the court continued the matter to March 2015
for a contested section 366.26 hearing.
F. Parents' Section 388 Petitions for Modification
1. Father's petition
In late February 2015 the father filed a section 388 petition seeking reinstatement
of reunification services. The father alleged he had made substantial progress in his
domestic violence program, counseling, and drug treatment following the court's
termination of reunification services. He also alleged he had completed parenting
classes, tested negative for drugs, and visited with A.R. regularly. He asserted that
11 renewing his reunification services was in A.R.'s best interest because it would help
"facilitate the father[-]child bond" and it would increase the likelihood A.R. could be
placed with him.
In support of his petition, the father attached proof of his attendance at Narcotics
Anonymous meetings and of several negative drug tests, and a paycheck.
Finding that the father had made a prima facie showing on his section 388 petition,
the court set an evidentiary hearing on the petition to coincide with the contested section
366.26 hearing.
2. Mother's petition
In late February 2015 the mother also filed a section 388 petition seeking
reinstatement of reunification services. She alleged as changed circumstances that she
was enrolled in Job Corps, she was finishing high school, and she was re-entering
dependency as a "NonMinor Dependent." She asserted her requested change in the court
order terminating her reunification services was in A.R.'s best interest because it would
"facilitate the possibility [that A.R.] ma[y] reunify with her mother and enjoy the natural
relationship into which she was born." The mother also asserted the renewal of her
reunification services would not disturb A.R.'s placement with the maternal grandparents.
She attached letters and records from Job Corps to her petition.
G. Combined Contested Hearing on the Parents' Section 388 Petitions and Contested Section 366.26 Hearing
At the March 3, 2015, combined contested hearing, over the objection of A.R.'s
counsel, the court found the mother had made a prima facie showing on her section 388
12 petition and added her petition to the contested issues, in addition to the father's section
388 petition and the Agency's recommendation for termination of parental rights and
adoption. Evidence presented with respect to the section 388 petition was also
considered with respect to the section 366.26 issues.
1. Contested hearing on the section 388 petitions
The court received into evidence the attachments to the parents' section 388
petitions. It also received into evidence all of the reports the Agency submitted in this
case, as well as the curriculum vitae of social worker Stephannie Novitski, who did not
testify but was present at the hearing.
In an addendum report, the Agency assessed each parent's section 388 petition.
Regarding the father's petition, the Agency reported that the father told social worker
Novitski his drug tests were not performed randomly; he performed drug tests at his own
request. The father admitted the length of time between tests ranged from one or two
weeks to up to a month. Novitski opined there would be sufficient time for any
indication of drug use to exit the father's system, and thus she was unable to assess
whether he was benefitting from drug treatment. He was still working on completing his
domestic violence classes, so his attendance only indicated he was still in the process of
changing.
Regarding the mother's section 388 petition, the Agency reported that while she
was progressing in her educational and career goals, the services she was performing did
not address the reasons A.R. was brought into protective custody. In the report social
worker Novitski stated, "There is no indication that she completed any of those services
13 to mitigate the original protective issue or has been able to verbalize . . . how she would
mitigate future risk."
The Agency called the father as its witness. The father testified that the day prior
to the trial, his drug treatment counselor put him on a contract because he missed two
weeks at his program. He admitted he did not have any excuse for missing those
On cross-examination by his counsel, the father explained he visited with A.R.
twice per week at a library. Twice a week he played with her, read to her and sang to her
for one hour. He brought to the visits diapers, wipes, and occasionally clothes and toys.
He attempted to make up any visits he missed due to work. He enjoyed his visits and was
amenable to expanding them. The father stated he did not have a relationship with the
mother and denied contacting her after the court terminated his reunification services.
The father also testified about the services he was participating in. He stated he
completed 46 out of 52 domestic violence classes and attended once or twice a week. He
explained he drug tested once or twice per week, the tests were not random, and all tests
were negative. Through the drug treatment program, he learned he had to look at
himself, humble himself, and accept he had no power or control over drugs; he also
learned he needed to refrain from using drugs and change his friends. He planned to start
school to become a paramedic, and currently he was employed in construction. He also
attended two to five Narcotics Anonymous meetings each week and had a sponsor. He
was working on the first recovery step, and he also attended therapy once per week.
14 The mother testified on her own behalf that she could not avail herself of the
reunification services or visit A.R. because she was working and had unstable housing.
She was 20 years old and acknowledged she did not have a stable relationship with A.R.,
which she attributed to "transportation issues." When she did attend a visit, it went well
and she and A.R. were affectionate. She stated she wished the court would select a less
permanent plan for A.R., such as guardianship.
a. Rulings
The juvenile court denied both parents' section 388 petitions. As to the mother's
petition, the court found that although the mother was participating in the Job Corps
program, she was not addressing the parenting, domestic violence, and psychological
issues that she needed to address. The court found the mother's participation in Job
Corps did not constitute a change of circumstance that would warrant modification of
court's order terminating her reunification services. The court also found she had failed
to show such modification would be in A.R.'s best interest.
With respect to the father's section 388 petition, the court found he did participate
in services such as parenting education, drug treatment, domestic violence, and therapy.
However, the court also found what was lacking in the father's case was evidence he was
actually progressing in his services, developing insight, and remedying the problems that
brought him before th`e juvenile court. Stating that "circumstances appear to be
changing, but not changed," the court found the father had presented "no
evidence . . . that the issues that brought [A.R.] before the court [were] ameliorated and
that [the] father's circumstances [were] changed such that it would be in the best interest
15 of [A.R.] to reorder reunification services to the 18[-]month date, which, as [A.R.'s]
counsel points out, is shortly before us [on] May 13, 2015."
2. Contested section 366.26 hearing
For the section 366.26 portion of the hearing, the father testified he tried to remain
involved in A.R.'s life since her birth and he felt they had a special bond. She called him
"dada" and appeared to enjoy their visitation time.
Social worker Novitski prepared the Agency's section 366.26 report. On the
Agency's behalf she recommended the court terminate parental rights and order adoption
as A.R.'s permanent plan. A.R. was healthy and was developmentally on target. A.R.
was specifically adoptable because the caregivers were devoted to adopting her and
taking the necessary steps to do so. She was generally adoptable because 89 other
families in San Diego were interested in adopting a child with A.R.'s characteristics.
Novitski reviewed the parents' history of contact with A.R. Initially both parents
visited A.R. with supervision twice each per week for one hour per visit. The mother
held A.R. and played with her, but she did not bring supplies to the visits and had been
inconsistent in visiting her. On December 8, 2014, A.R.'s caregiver reported that the
mother had not visited A.R. since August 26 of that year.
Novitski observed three visits between the father and A.R. A.R. went to the father
easily, but at times sought out the caregiver. The father played with A.R. and engaged
with her. He brought snacks and supplies for her. A.R. appeared comfortable in his care.
He did not redirect her when she stood on a chair several times during a visit. When the
16 visits ended A.R. went to her caregiver, waved goodbye to the father, and did not appear
upset.
Novitski opined that neither parent had a parental relationship with A.R. The
mother had not consistently visited A.R. and had not demonstrated she could put A.R.'s
needs above her own.
The father was consistent with visitation and brought items for A.R. He engaged
with A.R. but was timid in setting boundaries with her. During some visits the caregiver
stepped to redirect A.R. for her safety. It appeared the father did not take his substance
abuse treatment seriously. He did not complete a treatment program and he had only
recently started attending Narcotics Anonymous meetings. Like the mother, he had not
demonstrated he could elevate A.R.'s needs above his own. A.R. did not appear to be
upset when her visit with the father was over. She willingly went back to the caregiver
and separated easily from the father. Novitski opined that adoption was the best plan for
A.R. so that she could have stability and security and have all her needs met.
a. Ruling
After considering the documents and testimony, the court followed the Agency's
recommendations. By clear and convincing evidence, the court found A.R. would be
adopted if parental rights were terminated, and none of the circumstances listed in section
366.26, subdivision (c)(1) that would make termination of parental rights detrimental to
A.R. existed in this case. The court determined the mother had not visited the child
regularly. The court further found that A.R. had not been parented by the mother since
17 she was three months old. The mother's relationship with A.R. was not a parental bond;
it was only a bond of familiarity.
Regarding the father, the court found by clear and convincing evidence that none
of the circumstances listed in section 366.26, subdivision (c)(1) that would make
termination of parental rights detrimental to A.R. existed in this case. The court found he
visited A.R. consistently and it was clear he loved her. However, he, like the mother, did
not have a parental relationship with A.R. His visits had remained supervised.
The court further found by clear and convincing evidence that it was in A.R.'s best
interest to be adopted. The court stated that A.R. was "just one year[] old and deserve[d]
permanency, deserve[d] to be safe and protected, and the current caregivers [were] ready
and willing to do that."
Accordingly, the court terminated parental rights and referred A.R. to the Agency
for adoption. The parents' appeals followed.
DISCUSSION
I. THE COURT PROPERLY DENIED THE PARENTS' SECTION 300 PETITIONS
In support of their contentions the court abused its discretion when it denied their
separate section 300 petitions for reinstatement of reunification services, both parents
assert the evidence showed a substantial change of circumstances and that it was in A.R.'s
best interest to continue her relationship with them. We conclude the court acted within
its lawful discretion in denying the parents' section 388 petitions.
18 A. Applicable Legal Principles
1. Section 388
"Under section 388, a parent may petition the court to change, modify, or set aside
a previous court order on the grounds of changed circumstances or new evidence." (In re
Justice P. (2004) 123 Cal.App.4th 181, 188; § 388, subd. (a).2)
At the hearing on a section 388 petition, the petitioner has the burden of showing
by a preponderance of the evidence that (1) there is a change of circumstances or new
evidence, and (2) the requested modification would be in the best interests of the child.
(In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.); In re Mickel O. (2011) 197
Cal.App.4th 586, 615 (Mickel O.).)
Whether there is a change in circumstances or new evidence that makes the
requested modification in the best interests of the child "is determined by the seriousness
of the problem leading to the dependency and the reason for its continuation; the strength
of the parent-child and child-caretaker bonds and the time the child has been in the
system; and the nature of the change of circumstance, the ease by which it could be
2 Section 388, subdivision (a) provides that "[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . ." (Italics added.) That subdivision also provides that the petition, "if made by a person other than the child . . . shall set forth in concise language any change of circumstance or new evidence that is alleged to require such change of order or termination of jurisdiction." (Italics added.) 19 achieved, and the reason it did not occur sooner." (In re Amber M. (2002) 103
Cal.App.4th 681, 685.)
"[T]he petitioner must show changed, not changing, circumstances." (Mickel O.,
supra, 197 Cal.App.4th at p. 615; In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey
D.).)
The California Supreme Court has explained that "[o]nce reunification services are
ordered terminated, the focus shifts to the needs of the child for permanency and
stability," and the juvenile court "need not continue to consider the issue" at the section
366.26 permanent plan selection and implementation hearing. (In re Marilyn H. (1993) 5
Cal.4th 295, 309 (Marilyn H.).) "The burden thereafter is on the parent to prove changed
circumstances pursuant to section 388 to revive the reunification issue." (Ibid.)
Thus, a section 388 petition filed on the eve of a section 366.26 hearing, like an
oral motion made under section 388 at the time of the section 366.26 hearing, is
disfavored. (In re Edward H. (1996) 43 Cal.App.4th 584, 594 (Edward H.) ["on the eve
of the section 366.26 permanency planning hearing─the children's interest in stability
was the court's foremost concern and outweighed any interest in reunification"]; In re
Baby Boy L. (1994) 24 Cal.App.4th 596, 609 ["the court is not required to entertain an
oral motion under section 388 at the time set for the [section] 366.26 hearing"].)
2. Standard of review
The juvenile court is vested with broad discretion in determining what will be in
the best interest of a child and, when a court has made a custody determination in a
dependency proceeding, "'"a reviewing court will not disturb that decision unless the trial
20 court has exceeded the limits of legal discretion by making an arbitrary, capricious, or
patently absurd determination [citations]."'" (Stephanie M., supra, 7 Cal.4th at p. 318.)
"'Whether a previously made order should be modified rests within the dependency
court's discretion, and its determination will not be disturbed on appeal unless an abuse of
discretion is clearly established.' [Citation.] The denial of a section 388 motion rarely
merits reversal as an abuse of discretion." (In re Amber M., supra, 103 Cal.App.4th at
pp. 685-686.)
"'The appropriate test for abuse of discretion is whether the trial court exceeded
the bounds of reason. When two or more inferences can reasonably be deduced from the
facts, the reviewing court has no authority to substitute its decision for that of the trial
court.'" (Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
B. Analysis
1. Mother's petition
The court did not abuse its broad discretion when it found the mother had failed to
meet her burden of showing either that there was a change of circumstances warranting
modification of the court's order terminating her reunification services, or that the
modification would be in A.R.'s best interest. We begin our analysis by noting the
mother's petition is disfavored under the law. A section 388 petition filed on the eve of a
section 366.26 hearing is disfavored because at this stage of the dependency proceedings,
after the termination of reunification services, the child's interest in permanency and
stability is the court's foremost concern and generally outweighs any interest in
21 reunification. (Marilyn H., supra, 5 Cal.4th at p. 309; Edward H., supra, 43 Cal.App.4th
at p. 594.)
Here, the mother's section 388 petition is disfavored because she filed it on
February 27, 2015, almost six months after the court terminated her reunification services
on September 4, 2014, and only a few days before the contested section 366.26 hearing
on March 3, 2015.
The mother contends the court erred in denying her petition because the change of
circumstances she pleaded in her petition─her enrolling in Job Corps, finishing high
school, and re-entering dependency as a non-minor dependent─was relevant to the
dependency proceedings in that "it could resolve her financial dependence on an abusive
boyfriend."
This contention is unavailing because, while the mother's pursuit of her
educational and vocational goals is laudable, the record shows she has made little effort
to address the reasons why A.R. was declared a dependent of the juvenile court and why
the mother's reunification services were terminated. A.R. became a dependant of the
court as a result of A.R.'s exposure to the domestic violence in the parents' relationship
and their demonstrated inability to adequately supervise A.R. To address those problems,
the mother's reunification case plan required her to participate in a domestic violence
victim program, a psychological evaluation, individual counseling, and parent education.
At the September 2014 contested six-month status review hearing at which the court
terminated the mother's reunification services, the court determined she had not made
substantive progress with the provisions of her case plan. The Agency's July 2014 six-
22 month status review report reported that the mother had not been meeting with the
assigned social worker to talk about her case, and the mother had failed to participate in
any of the services, with the exception of the psychological evaluation. The report also
showed the mother had not consistently visited A.R. during the preceding six months. In
its September 2014 addendum report, the Agency reported that the mother had not visited
A.R. since June 24 and she had told the social worker she was no longer interested in
participating in reunification services.
A petitioner seeking relief under section 388 must show changed, not changing,
circumstances. (Mickel O., supra, 197 Cal.App.4th at p. 615; Casey D., supra, 70
Cal.App.4th at p. 47.) Here, the foregoing substantial evidence supports the court's
finding that the mother had failed to meet her burden of showing a change of
circumstances warranting modification of the court's order terminating her reunification
services. We conclude the court acted within its legal discretion in denying the mother's
section 388 petition because the evidence shows, at best, that the mother's circumstances
were merely changing, and thus A.R.'s interest in permanency and stability outweighed
the mother's interest in last-minute reinstatement of reunification services.3
2. Father's petition
The father's section 388 petition, like the mother's, is disfavored under the law
because he filed it on the eve of the section 366.26 hearing. (See Marilyn H., supra, 5
3 In light of our conclusion, we need not, and do not, address the mother's claim the court erred in finding she had failed to show that reinstatement of reunification services would be in A.R.'s best interest. 23 Cal.4th at p. 309; Edward H., supra, 43 Cal.App.4th at p. 594.) The father filed his
petition on February 25, 2015, almost six months after the court terminated his
reunification services on September 4, 2014, and only a few days before the contested
section 366.26 hearing was held on March 3, 2015.
We conclude the court did not abuse its discretion when it found the father had
failed to meet his burden of showing that there was a change of circumstances warranting
modification of the court's order terminating his reunification services, or that the
reinstatement of those services would be in A.R.'s best interest. The father's reunification
case plan required him to participate in a 52-week domestic violence program,
psychological evaluation if recommended by his therapist, individual counseling, parent
education, and an outpatient substance abuse program. The father acknowledges that at
the time of the contested six-month review hearing (early September) at which the court
terminated his reunification services, his social worker did not see any significant
behavioral changes, his drug treatment counselor reported he was not making progress,
and he was again living with the mother although his therapist advised that the father
needed to maintain healthy boundaries with her.
In an addendum report, the Agency reported the father had told the social worker
his drug tests were not randomly performed and the length of time between tests ranged
from one or two weeks to up to a month. The social worker opined there would be
sufficient time for any indication of drug use to exit the father's system, and thus she was
unable to assess whether he was benefitting from drug treatment. She also reported the
24 father was still working on completing his domestic violence classes, so his attendance
only indicated he was still in the process of changing.
At the hearing on the parents' section 388 petitions, the Agency called the father as
a witness. The father testified he had seen his drug treatment counselor the day before
and the counselor had put him on a contract because he had missed two weeks at his
program. The father admitted he did not have any excuse for missing those sessions. On
cross-examination, the father testified he was drug testing once or twice each week and
the results had been negative, but he acknowledged the test were not random.
As already discussed, a petitioner seeking relief under section 388 must show
changed, not changing, circumstances. (Mickel O., supra, 197 Cal.App.4th at p. 615;
Casey D., supra, 70 Cal.App.4th at p. 47.) We conclude substantial evidence supports
the court's finding that the father had failed to meet his burden of showing a change of
circumstances warranting modification of the court's order terminating his reunification
services. We also conclude the court acted within its legal discretion in denying the
father's section 388 petition because the evidence shows the father's circumstances were
changing, but had not changed, and thus A.R.'s interest in permanency and stability
outweighed his interest in last-minute reinstatement of reunification services.
II. THE COURT PROPERLY TERMINATED THE FATHER'S PARENTAL RIGHTS
The father also contends the court erred in terminating his parental rights because
the evidence showed A.R. had a beneficial parent-child relationship with him that
25 outweighed any need for adoption.4 He also asserts the court should have ordered a
permanent plan of legal guardianship because it "would provide the stability [A.R.]
needed, while at the same time maintain her relationship with [him]." We conclude the
court acted within its lawful discretion in terminating the father's parental rights.
A. Applicable Legal Principles
1. Beneficial parent-child relationship exception
When reunification services are terminated, the focus of a dependency proceeding
shifts from preserving the family to promoting the best interests of the child, including
the child's interest in a stable, permanent placement that allows the caregiver to make a
full emotional commitment to the child. (In re Fernando M. (2006) 138 Cal.App.4th
529, 534.) At the section 366.26 permanent plan selection and implementation hearing,
the juvenile court has three options: (1) Terminate parental rights and order adoption as
the permanent plan, (2) appoint a legal guardian for the dependent child, or (3) order the
child placed in long-term foster care. (In re Fernando M., p. 534.)
"Adoption . . . is the permanent plan preferred by the Legislature." (In re Autumn
H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) Thus, "[i]f the child is adoptable, there
is a strong preference for adoption over alternative permanency plans." (In re Michael G.
(2012) 203 Cal.App.4th 580, 588 (Michael G.).) All that is required to show a dependent
child is adoptable is "clear and convincing evidence of the likelihood that adoption will
be realized within a reasonable time." (In re Zeth S. (2003) 31 Cal.4th 396, 406; see
4 Neither parent has challenged the court's finding by clear and convincing evidence that A.R. was adoptable and would be adopted if parental rights were terminated. 26 § 366.26, subd. (c)(1).) The issue of adoptability focuses on the child and "whether the
child's age, physical condition and emotional health make it difficult to find a person
willing to adopt that child." (Michael G., supra, at p. 589; In re Zeth S., at p. 406.)
At a section 366.26 hearing, once the juvenile court finds by clear and convincing
evidence that the child is likely to be adopted within a reasonable time, the court is
required to terminate parental rights and select adoption as the permanent plan "unless the
parent shows that termination of parental rights would be detrimental to the child under
one of the exceptions listed in section 366.26, subdivisions (c)(1)(A) and (B)." (Michael
G., supra, 203 Cal.App.4th at p. 589; In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
The beneficial parent-child relationship exception found in section
366.26(c)(1)(B)(i) provides an exception to the adoption preference if the juvenile court
finds a "compelling reason" for determining that termination of parental rights would be
"detrimental" to the child because "[t]he parents have maintained regular visitation and
contact with the child and the child would benefit from continuing the relationship."
(§ 366.26(c)(1)(B)(i), italics added.)
This court has interpreted the statutory phrase "benefit from continuing the
relationship" (§ 366.26, subd. (c)(1)(B)(i)) to mean that the parent-child relationship
"promotes the well-being of the child to such a degree as to outweigh the well-being the
child would gain in a permanent home with new, adoptive parents." (Autumn H., supra,
27 Cal.App.4th at p. 575.) We explained in Autumn H. that in determining whether the
child would benefit from continuing the parent-child relationship for purposes of the
beneficial parent-child relationship exception, the juvenile court "balances the strength
27 and quality of the natural parent/child relationship in a tenuous placement against the
security and the sense of belonging a new family would confer. If severing the natural
parent/child relationship would deprive the child of a substantial, positive emotional
attachment such that the child would be greatly harmed, the preference for adoption is
overcome and the natural parent's rights are not terminated." (Ibid., italics added; accord,
In re Jason J. (2009) 175 Cal.App.4th 922, 936.)
To meet the burden of establishing the applicability of the beneficial parent-child
relationship exception, the parent must show more than frequent and loving contact, an
emotional bond with the child, or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th
823, 827 (Derek W.).) "Interaction between natural parent and child will always confer
some incidental benefit to the child." (Autumn H., supra, 27 Cal.App.4th at p. 575.) The
beneficial parent-child relationship exception "applies only where the court finds regular
visits and contact have continued or developed a significant, positive, emotional
attachment from child to parent." (Ibid.) Thus, "[t]he parent must show he or she
occupies a parental role in the child's life." (In re C.F. (2011) 193 Cal.App.4th 549, 555;
Derek W., at p. 827.)
Furthermore, "[a] biological parent who has failed to reunify with an adoptable
child may not derail an adoption merely by showing the child would derive some benefit
from continuing a relationship maintained during periods of visitation with the parent.
[Citation.] A child who has been adjudged a dependent of the juvenile court should not
be deprived of an adoptive parent when the natural parent has maintained a relationship
that may be beneficial to some degree, but that does not meet the child's need for a
28 parent." (In re Angel B. (2002) 97 Cal.App.4th 454, 466, second italics added; accord, In
re Marcelo B. (2012) 209 Cal.App.4th 635, 643 (Marcelo B.).)
On review of the sufficiency of the evidence to support a juvenile court's order
terminating parental rights and freeing the parent's child for adoption, "we presume in
favor of the order, considering the evidence in the light most favorable to the prevailing
party, giving the prevailing party the benefit of every reasonable inference and resolving
all conflicts in support of the order." (Autumn H., supra, 27 Cal.App.4th at p. 576.) "We
must affirm the juvenile court's rejection of any exception to termination of parental
rights if the court's findings are supported by substantial evidence." (Michael G., supra,
203 Cal.App.4th at p. 589, citing Autumn H., supra, 27 Cal.App.4th at p. 576.)
"The appellate court does not reweigh the evidence, evaluate the credibility of
witnesses or indulge in inferences contrary to the findings of the trial court." (Michael
G., supra, 203 Cal.App.4th at p. 589.) "The substantial evidence standard of review is
generally considered the most difficult standard of review to meet, as it should be,
because it is not the function of the reviewing court to determine the facts." (Ibid.)
As discussed, ante, a parent seeking to avoid the termination of parental rights and
overcome the statutory preference for adoption under the beneficial parent-child
relationship exception must show (1) he or she has maintained regular visitation with the
child, and (2) the child would benefit from continuing the relationship. (§ 366.26, subd.
(c)(1)(B)(i); Marcelo B., supra, 209 Cal.App.4th at p. 643.) The parent must show more
29 than frequent and loving contact, an emotional bond with the child, or pleasant visits; the
parent must show he or she occupies a parental role in the child's life. (In re C.F., supra,
193 Cal.App.4th at p. 555; Derek W., 73 Cal.App.4th at p. 827.)
Here, County Counsel acknowledges the father met his burden of satisfying the
visitation prong of the beneficial parent-child relationship exception, but argues the court
properly found he failed to meet his burden of showing he occupied a parental role in the
A.R.'s life. We agree.
The record shows the father maintained regular visitation with A.R., he loves and
has an emotional bond with her, and his visits with her were pleasant. However,
substantial evidence supports the court's finding that the father did not occupy a parental
role in A.R.'s life. The court found, and the father does not dispute, that A.R. had been
living with her caregivers since January 10, 2014, and the father's visitation had remained
supervised and thus had never progressed to a period of unsupervised visitation "wherein
a parental bond or parental role with [her] could be determined." In the Agency's report
for the section 366.26 hearing, the social worker reported that although the father
engaged with A.R. during visitation, he was timid in setting boundaries with her and the
caregiver would step in to redirect A.R. for her safety. When visitation ended, A.R.
willingly went to the caregiver without crying or demonstrating she did not want to leave
the father. The social worker also reported that the father did not take his substance
abuse treatment seriously. The court agreed with the social worker's opinion that the
parents did not have a parental relationship with A.R., and adopted the Agency's
30 recommendation that parental rights be terminated and A.R. referred to the Agency for
adoption. The court did not err.
DISPOSITION
The orders and judgments are affirmed.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.