Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge, Super. Ct. No. NJ13078 A/B/C
HUFFMAN, Acting P. J.
Anthony appeals a judgment of the juvenile court terminating his parental rights to his minor children, Christopher D., R.W., and Trenton W., (together minors) under Welfare and Institutions Code section 366.26. Anthony contends the court erred by denying his section 388 petition for modification seeking either return of the minors to his care, or alternatively, for additional services. He also challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating his parental rights. We affirm the judgment.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2005 the San Diego County Health and Human Services Agency (Agency) filed petitions on behalf of then four-year-old Christopher, three-year-old R., and two-year-old Trenton, under section 300, subdivision (b). The petitions alleged the minors were at risk of suffering serious physical harm because Anthony suffered from an alcohol problem and was unable to provide regular care for the minors. Anthony was arrested for driving under the influence of alcohol. All three children were in the car and not properly secured in car seats. In addition, the police discovered open containers of alcohol and Anthony's blood alcohol level was almost twice the legal limit. Anthony admitted he drank to relieve himself from the stress of caring for the children. The court declared the minors dependents of the juvenile court and removed them from Anthony's custody. The court placed the minors in out-of-home care and ordered Anthony to participate in a case plan that included a psychological evaluation and compliance with the Substance Abuse Recovery Management Systems program (SARMS).
During the next six months, Anthony regularly visited the minors but did not make substantive progress with his case plan. Anthony did not comply with the SARMS program and was committed to jail for five days for his violations. The social worker reported the minors were doing well in their current placement. Problems with the minors' behaviors had improved since their removal from Anthony's custody. At the six-month review hearing, the court continued services for an additional six months.
The minors had been placed in the home of a non-relative extended family member and were doing well in their placement. They no longer exhibited problematic behaviors and their caregivers worked closely to reinforce positive behaviors. Anthony made progress by securing employment and renting an apartment. He continued to visit the minors and complied with his case plan. The court held a 12-month review hearing and ordered an additional six months of services.
After the 12-month review hearing, Anthony's whereabouts became unknown. The social worker reported Anthony had lost his job, was evicted from his apartment and was living out of his car. Anthony stated he would let the current caregivers or another family adopt the minors as long as he could have contact with the children. He did not believe he could provide for the minors and the social worker believed Anthony was overwhelmed with the responsibilities of caring for three children. The court continued the minors' placement with the current caregivers, terminated Anthony's services, and scheduled a section 366.26 selection and implementation hearing.
The social worker assessed all three minors as adoptable based on their young ages, good physical health, their ability to bond to others, and lack of significant parental relationships. The minors' initial caregivers were unable to adopt all three minors. In February 2007 however, the siblings were placed in a new home with a family committed to providing them with a permanent home. The children missed their initial caregivers but were adjusting well to their new placement and were doing well in school. The minors had not had contact with Anthony for about two months.
Anthony filed a section 388 petition for modification, seeking to have the minors returned to him along with additional reunification services. In support of his petition, he alleged he had moved to Northern California, had secured employment, and could arrange for childcare. Anthony asserted it would be in the minors' best interests to be placed with him because he shared a strong bond with the children.
In March 2007 the court held a section 388 evidentiary hearing to address Anthony's petition. Anthony testified he was living in Northern California with his grandmother and was in the process of moving to a two bedroom apartment. He was not employed but was collecting unemployment benefits and had plans to go back to school. Anthony stated his mother and his grandparents would provide for childcare if the court placed the minors in his care.
After considering evidence and hearing arguments, the court found Anthony had not met his burden of showing the requested modification was in the minors' best interests. The court denied the section 388 petition.
As to the issues for the selection and implementation hearing, the social worker reported Anthony's last visit with the minors was in August 2006. The Agency provided the father with telephonic visits in November 2006. His last reported telephonic contact was in December 2006. The social worker believed the minors were adoptable. The minors referred to their current caregivers as "mommy Kim" and "daddy Jason." R. and Trenton expressed their desire to stay in the home of their current caregivers.
The court found the minors were likely to be adopted and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court terminated parental rights and referred the minors for adoptive placement.
DISCUSSION
I
Anthony contends the court erred by denying his section 388 petition for modification seeking either return of the minors to his care, or alternatively, for additional services. He asserts his circumstances had changed and granting the petition was in the minors' best interests.
A
Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, there is a change in circumstances or new evidence, and the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we may not substitute our decision for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Casey D., supra, 70 Cal.App.4th at p. 47.)
When the court evaluates the appropriate placement for a child after reunification services have been terminated, its sole task is to determine the child's best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 320.) In this context, the goal is to assure the child "stability and continuity." (Id. at p. 317.) The need for stability and continuity " 'will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citation.]" (Ibid.) Thus, after the court terminates reunification services, "there is a rebuttable presumption that continued foster care is in the best interest of the child." (Ibid.)
B
The court found Anthony's circumstances had changed. Thus, we examine only whether the court abused its discretion by denying his section 388 petition because it would not be in the minors' best interests to be either returned to Anthony or for him to receive additional services. After termination of reunification services, the focus of dependency proceedings is to provide the child with permanency and stability. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254-256; In re Marilyn H. (1993) 5 Cal.4th 295, 310.) At the time of the hearing on the section 388 petition, the minors had been dependents for about two years. The problems that led to the dependency were serious. Anthony admitted to regularly drinking alcohol and he placed the minors at risk by driving in a car with them while intoxicated. It is unclear whether Anthony has properly addressed the drinking problems that led to this dependency or whether he has learned to cope with the stress of raising three young children. Anthony admittedly has made some progress by considering going back to school and securing an apartment. He has yet, however, to show that he can create a stable home for the minors by living with them on his own. Although Anthony had appropriate visits with the minors early in the proceeding and shared a relationship with them, he has made little contact with the minors since August 2006. Their relationship does not outweigh the stable relationship and home the siblings currently have with their new caregivers. It was not in the minors' best interests to postpone implementing a permanent plan of adoption. The court acted within its discretion by denying Anthony's section 388 modification petition.
II
Anthony challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating his parental rights. He asserts he regularly visited the minors who shared a close bond with him and would benefit from continuing the relationship.
A
We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary conclusion. (Ibid.; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of six specified exceptions. (§ 366. 26, subd. (c)(1)(A)-(F); In re Erik P. (2002) 104 Cal.App.4th 395, 401; In re Derek W. (1999) 73 Cal.App.4th 823, 826.)
Section 366.26, subdivision (c)(1)(A) is an exception to the adoption preference if 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." We have interpreted the phrase "'benefit from continuing the relationship'" to refer to a "parent[-]child" relationship that "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. In other words, the court balances the strength 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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) "In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B
During the two years of this dependency proceeding, Anthony initially had some regular visitation with the minors. After August 2006 he did not schedule in-person visits and made minimal contacts by telephone. Even if Anthony's visitation is considered to be regular, Anthony did not meet his burden of showing his relationship with the minors was sufficiently beneficial to outweigh the benefits of adoption. Although Anthony had appropriate visits with the minors early on in the proceeding and had some degree of a relationship with them, Anthony did not occupy a parental role in the minors' lives. The current caregivers instead are dedicated to the minors and want to provide them with a permanent home. There was no evidence of a "significant, positive, emotional attachment" from the minors to Anthony such that terminating the parent-child relationship would result in great detriment to them. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Rather, the evidence shows the minors' need for permanence and stability through adoption outweighed any interest in preserving parental ties.
Where, as here, the biological parent does not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) The minors, whose needs Anthony could not meet, deserve to have their custody status promptly resolved and their placement made permanent and secure. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating parental rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J., O'ROURKE, J.