Opinion
B190391
12-8-2006
In re McKENZI Z., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. GAIL T., et al., Defendants and Appellants.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant Gail T. Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant, Robert Z. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.
Appellants Gail T. (mother) and Robert Z. (father), the mother and presumed father of Mckenzi (age five) and Savannah (age three) appeal the termination of their parental rights under Welfare and Institutions Code section 366.26. Father also appeals the denial of his section 388 petition, seeking an order placing Mckenzi and Savannah with him, or in the alternative, for unmonitored overnight or day visits in his home. We affirm the orders of the juvenile court denying fathers section 388 petition and terminating mothers and fathers parental rights.
All further statutory references are to the Welfare and Institutions Code.
CONTENTIONS
Father contends the juvenile court erred by issuing a "bifurcated" ruling on his section 388 petition — ruling, at the section 388 hearing, only on fathers request to place the children with him, and improperly deferring its ruling on fathers request for unmonitored visitation until the section 366.26 selection and implementation hearing. Father maintains that by doing so, the juvenile court denied him his due process right to have the court consider more liberalized visitation as part of a transition plan for returning the children to fathers care and custody. Father further contends that he demonstrated a change of circumstances warranting the implementation of such a transition plan, and that the juvenile court abused its discretion by denying his section 388 petition. Both father and mother contend that the juvenile court erred in terminating their parental rights because the parental relationship exception set forth in section 366.26, subdivision (c)(1)(A) applies.
BACKGROUND
On June 9, 2005, the Los Angeles County Department of Children and Family Services (the Department) responded to a referral alleging general neglect by mother. Mother had a history of drug abuse that had resulted in juvenile court jurisdiction over Mckenzi in a previous case. Mother admitted to the investigating social worker that she had relapsed into drug use during the last month by using methamphetamines and marijuana. Mother also admitted that she had recently been admitted involuntarily to the Los Angeles County Psychiatric Hospital because she could not handle the stress of managing her financial problems and caring for the children. A search of the juvenile court records revealed that Mckenzi had been a prior dependent of the juvenile court, but subsequently had been returned to mothers care. Besides Mckenzi, mother had four other children, Tiffany T., Justin T., Thomas T., and Candis T., who had been removed from her care. Tiffany, Justin and Thomas T. were placed with their father, Timothy T., from whom mother was divorced. Mother failed to reunify with Candis T., and her parental rights had been terminated as to that child.
On June 17, 2005, the Department filed a petition pursuant to section 300 alleging that mother had a history of substance abuse, that she had resumed illegal drug use after completing a court ordered substance abuse program, that Mckenzi and her siblings Tiffany T., Justin T., Thomas T. and Candis T., had been prior dependents of the juvenile court, and that mothers parental rights had been terminated with respect to Candis. The petition further alleged that father had a history of substance abuse that rendered him incapable of caring for the children, including a drug related criminal history and a conviction for being under the influence of a controlled substance, and that both parents history of substance abuse endangered the childrens physical and emotional safety, created a detrimental home environment, and placed the children at risk.
At the detention hearing held on June 17, 2005, the juvenile court found that father was the presumed father of Mckenzi and Savannah and ordered that Mckenzi and Savannah be detained. The court noted that fathers reunification services for Mckenzi had been terminated in a previous case, that mother had children in other cases proceed to permanency planning, and that under these circumstances neither parent appeared to be entitled to reunification services for Mckenzi and Savannah. The juvenile court ordered the Department to provide the parents with referrals for drug testing programs, to arrange for monitored visits, and to provide permanency planning services for the children. The court further ordered that Mckenzi and Savannah be placed only with people who were willing to adopt them.
The juvenile court also ordered the Department to investigate a claim of Native American heritage and to give notice to any applicable tribe, the Bureau of Indian Affairs, and the Department of the Interior, as required by the Indian Child Welfare Act (ICWA). The juvenile court subsequently found that the notices given pursuant to the ICWA were proper, that the children were not Indian children as defined by the ICWA, and that the ICWA did not apply. Neither parent has appealed that finding.
On July 6, 2005, the juvenile court reviewed assessment reports on the childrens paternal aunt, Pamela C., and non-related family friends, Glen and Karen F., as placement possibilities for the children. The report on Glen and Karen F. was positive, noting that they were Mckenzis godparents and had cared for Mckenzi during her previous juvenile court dependency. The report on Pamela C. had not been completed. The juvenile court placed the children with Glen and Karen F., and ordered the Department to complete its assessment of Pamela C.
In a jurisdiction/disposition report dated July 13, 2005, the Department noted that this was mothers third juvenile dependency case, and that Mckenzi had been a juvenile court dependent in a previous case. In light of mothers history with the juvenile dependency court, including termination of her parental rights for Candis T., the Department recommended against providing reunification services for mother in this case. Mother admitted to a Department social worker that she had relapsed into drug use, but said that she was enrolled in a drug treatment program. Mother also told the social worker that she recently had been diagnosed as being bipolar, and was taking medication for that condition. The Department reported that father had been incarcerated for six months for a theft conviction, was released on or about June 12, 2005, and was currently employed as a salesperson.
At a jurisdictional hearing held on July 19, 2005, the juvenile court took judicial notice of the sustained petition, minute orders, and case disposition plans for Mckenzi and mothers other children in the previous juvenile court cases and admitted into evidence the Departments July 13, 2005 report. Mother testified that she had completed a drug rehabilitation program in June 2004, but admitted to using marijuana within the past month and a half. Mother also admitted that she had been involuntarily hospitalized for five days after her recent marijuana use. While mother was hospitalized, her adult daughter, Tiffany T., cared for Mckenzi and Savannah.
Father testified that he had used marijuana continually since 1992, but that he had not done so for at least two years. He also admitted to methamphetamine use approximately 10 years ago and to serving a prison term for possession of methamphetamines. Father said that he was recently incarcerated for violating the terms of his probation for a theft conviction by failing to pay a court ordered fine. He said that he had participated in a court ordered drug program in the previous juvenile court case involving Mckenzi but did not complete the program. Father admitted that his reunification services with Mckenzi had been terminated in the previous case because he had failed to complete the court ordered drug program.
At the conclusion of the July 19, 2005 hearing, the juvenile court amended the allegations in the section 300 petition to state that mother had recently relapsed to using methamphetamine and marijuana, that father continued to minimize his history of substance abuse, that fathers family reunification services had been terminated in the previous case involving Mckenzi, and that mothers parental rights for Candis T. had been terminated in another case. The juvenile court found the amended allegations to be true, and sustained the petition. Mother requested that the children be detained with their paternal aunt, Pamela C., whose home had since been approved by the Department as a suitable placement option. None of the other parties objected to the proposed placement, and the juvenile court ordered the children detained with the paternal aunt and her husband.
At a contested dispositional hearing held on August 17, 2005, father testified that he was enrolled in a drug program, had not missed any program sessions, and saw the children every day. Mother said she was also enrolled in a drug program, that she was taking medication for her bipolar condition, that she no longer had a desire to use drugs, and that she wanted the opportunity to regain custody of the children through reunification services. After hearing argument from the parties, the juvenile court found that it was not in the best interests of the children to grant reunification services to the parents, denied reunification services to mother pursuant to section 361.5, subdivisions (b)(10) and (b)(11), and denied reunification services to father pursuant to section 361.5, subdivision (b)(10). The court ordered the Department to provide monitored visits for both parents and to prepare an adoption homestudy for the current caregivers.
Section 361.5, subdivision (b) states that reunification services need not be provided to a parent when the court finds, by clear and convincing evidence, that the court terminated reunification services for any siblings or half-siblings of the child because the parent failed to reunify with the sibling or half-sibling (§ 361.5, subd. (b)(10)), or that the parental rights of the parent over any sibling or half-sibling of the child had been permanently severed. (§ 361.5, subd. (b)(11).)
On October 5, 2005, father filed a petition pursuant to section 388 seeking to modify the juvenile courts visitation order to permit unmonitored overnight or day visits with both children. The juvenile court granted a hearing on fathers petition and ordered the Department to prepare a response. In a report dated November 21, 2005, the Department stated that father had tested positive for amphetamines, methamphetamine, and barbiturates on October 12, 2005. Father admitted using drugs a few days before the positive drug test, and withdrew his section 388 petition.
In November 2005, the children were re-placed in the home of Karen and Glen F., after the paternal aunt, Pamela C., stated that she was no longer interested in adopting the children but was willing to become a legal guardian. The transition went smoothly, as Pamela C. had taken the children to Glen and Karen F.s from time to time. Father and mother visited regularly every week; however, Savannah experienced behavioral problems after the visits, crying, having tantrums, and hitting her sister.
On January 20, 2006, mother filed a petition pursuant to section 388 seeking to place the children with her, or in the alternative, for unmonitored overnight and weekend visits. Mother alleged that she had a strong bond with the children and that she had completed parenting classes, was undergoing individual counseling, and was visiting the children regularly. A hearing on mothers petition was set for February 28, 2006.
Father filed a second section 388 petition on February 21, 2006, requesting that the children be placed with him, or in the alternative, for unmonitored overnight or day visits. Father alleged that he had completed a parenting program and was participating in a drug rehabilitation program and ongoing drug testing. He stated that his drug test results were mostly negative, with the exception of one positive test and two instances in which he had failed to appear for testing. Father further alleged that the children had developed an extremely close and loving bond with him. The juvenile court granted a hearing on fathers petition, scheduled for April 10, 2006.
In the interim, mothers adult daughter, Tiffany T., sent the juvenile court a letter dated February 24, 2006, in which she stated that she had lived with mother for the past year and had observed erratic behavior and ongoing drug abuse by mother during this period. She said that mothers physical and mental condition was the same, if not worse, than it had been when Mckenzi and Savannah were first detained. Tiffany stated her opinion that mother was not mentally or physically stable enough to regain custody of the children.
In a report dated February 28, 2006, the Department noted that mother had tested positive for amphetamines and methamphetamine on November 18, 2005, and had failed to appear for drug testing on January 13, 2006. Although mother appeared for a January 23, 2006 drug test, the results of that test were inconclusive because the sample submitted had been tainted and diluted. When the childrens social worker confronted mother about her failure to drug test regularly as required by her case plan, mother replied that she was employed and could not leave her job to attend drug testing. The Department also noted in its report that mothers ex-husband had telephoned the childrens social worker on February 1, 2006 to express his concern about mothers apparent drug relapse and to advise the Department that he recently had filed a restraining order against mother.
The childrens caregivers reported inappropriate behavior by both parents during recent visits. During a December 21, 2005 visit at a MacDonalds restaurant, father had removed the children from the restaurant without the caregivers knowledge and had taken them to another restaurant. During a January 4, 2006 visit, mother held Savannah and cried for most of the visit, then suddenly ran outside without saying a word and waved through the window at the children as if she were leaving. Mother arrived at a February 22, 2006 visit at a MacDonalds restaurant with plants and watering buckets, saying that she wanted to plant roses outside of the restaurant, and had to be persuaded to go inside. Both children were agitated by mothers behavior and exhibited behavioral problems after parental visits that required referrals for therapeutic treatment.
After hearing argument from the parties, the juvenile court denied mothers section 388 petition, finding that the best interests of the children would not be promoted by the proposed change of order. The court further ordered that future visits be monitored by a Department representative.
On April 10, 2006, the Department filed a response to fathers section 388 petition. The Department reported on visitation between the children and parents and noted that on March 15, 2006, both parents had stayed for only 45 minutes of the scheduled two-hour visit because father said he had to go to the airport that day. Father arrived 30 minutes late for a March 22, 2006 visit. The Department also noted that father had not been consistently drug testing as required by his case plan.
At the April 10, 2006 hearing on fathers section 388 petition, father admitted that he had missed two drug tests before testing positive for methamphetamines in October 2005, and that he had recently missed a drug test scheduled for March 24, 2006. Father stated that he was continuing to participate in a relapse prevention program, that he was committed to changing, and that he had been clean and sober for the past six months. Father stated that he had consistently visited the children, but that he had missed a few visits because of work. He denied removing the children from a MacDonalds restaurant without the knowledge of the childrens caregivers during a December 2005 visit and claimed that Karen F. had given him permission to take the children across the street to a Sizzler restaurant. Father denied living with mother and said that he occasionally spends the night at mothers house and does his laundry there. He said that he and mother arrive together at, and leave together from, scheduled visits with the children because they carpool to the visits.
Mother testified that she had been sober for the past 10 months, that father did not live with her, and that her daughter Tiffany was lying when she said that mother had resumed using drugs. Glen F. testified that fathers visitation and telephone contact with the children had been sporadic. He described the December 21, 2005 visit during which father had removed the children from a MacDonalds restaurant without the caregivers knowledge. During that visit, Glen had expressly told father not to take the children out of the MacDonalds restaurant. Glen left father alone with the children for a moment while he ordered some food, and when Glen returned, father and the children were gone. Glen later found the children with their parents at a nearby Sizzler restaurant in a booth at the back of the restaurant. Glen believed that father and mother were living together. He said that although mothers and fathers telephone calls with the children were scheduled for separate days, Glens caller identification system showed that both parents phone calls to the girls were made from fathers cellular phone.
While hearing argument from the parties, the juvenile court stated its intention to rule only on fathers request to place the children with him, and to defer ruling on fathers request for unmonitored day or overnight visits until the section 366.26 selection and implementation hearing: "[R]ight now Im only going to deal with the part of the 388 asking for home of father order, because unmonitored or day or overnights could be moot if I end up sustaining the 26. So, it does not make sense to spend the time arguing about unmonitored visits, if it could end up moot after the 26. So, the one thing that needs to be decided before the 26 is return to him." At the conclusion of the hearing, the juvenile court denied fathers request to place the children with him, expressing concern about fathers relationship with mother and the fact that "the two of them are so intertwined," that father "appeared to have picked the mother over the children in some regards," and that mothers progress and behavior were questionable.
The section 366.26 selection and implementation hearing was held the following day, on April 11, 2006. At the outset of the hearing, the juvenile court stated that it would be considering the entire contents of the juvenile court file, as well as the testimony that had been presented at the section 388 hearing the previous day. A section 366.26 report filed by the Department on April 10, 2006, stated that Mckenzi and Savannah were adjusting well to their re-placement with Glen and Karen F., that Glen and Karen were willing and able to adopt both children, and that Mckenzi had expressed her desire to be adopted. Savannah had nodded in agreement when asked if she would like to be adopted. The report further stated that weekly monitored visits between the children and parents had occurred without any major concerns, but that the caregivers had been experiencing behavioral problems with Savannah after the parental visits. Telephonic contact between parents and children had been sporadic because the parents did not call the children on the agreed upon days and times. Attached to the section 366.26 report was a notice of pending discharge dated March 24, 2006, from mothers outpatient drug treatment program stating that mother had not attended the program since March 16, 2006, and advising mother that she could be discharged from the program if she did not appear for treatment by March 31, 2006.
At the April 11, 2006 hearing, father testified that he had visited the children daily during their five-month placement with his sister Pamela C., that he had acted as a parent in caring for the children during that time, and that he had developed a close bond with the children. He said that since the childrens placement with Glen and Karen F. in November 2005, he saw the children regularly at weekly one-hour visits, although he missed two or three scheduled visits. Father said that Mckenzi had lived with him during the first two years of her life until she was first detained, that she was returned to his custody but subsequently detained again, and that Savannah had never lived with him.
Glen F. testified that fathers testimony concerning his cell phone use during visits with the children was not accurate, and that father spent time on his cell phone at least once during every visit. Glen further testified that neither mother nor father disciplined or corrected the children during visits, and that the children looked to Karen F. for direction or assistance during the parental visits. Glen stated that the children had a strong bond with mother, but that the bond with father was not as strong.
After hearing argument from the parties, the juvenile court found that both parents had maintained regular and consistent visitation and contact, but that the benefits of adoption outweighed the benefit of maintaining a relationship with parents who continued to relapse into drug abuse and a mother who continued to be unstable. The court also found that the behavioral problems exhibited by the children after parental visits weighed against maintaining the parental relationship. The juvenile court terminated the parental rights of both mother and father, rendering moot fathers request for unmonitored visitation.
Mother and father filed this appeal.
DISCUSSION
A. Section 388 Petition
1. Alleged Due Process Violation
Father contends the juvenile court erred by ruling on only part of fathers section 388 petition — his request to place the children with him — and by deferring its ruling on fathers request for unmonitored overnight or day visits until the section 366.26 selection and implementation hearing. Father argues that the juvenile courts failure to conduct a hearing on fathers section 388 petition in its entirety before terminating his parental rights was a violation of his due process rights. He maintains that the error was prejudicial, because it foreclosed the possible implementation of a transition plan for more liberalized visitation and eventual reunification with the children.
a. Forfeiture
Father could have objected, but did not object to the juvenile courts stated intent to bifurcate its ruling on his section 388 petition. "[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.]" (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) Although application of this forfeiture rule is not automatic, and an appellate court has discretion to consider forfeited claims, "the appellate courts discretion to excuse such forfeiture should be exercised rarely and only in cases presenting an important legal issue. [Citations.]" (Ibid.) An appellate court should be especially circumspect about exercising such discretion in dependency proceedings. "Because these proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance. [Citation.]" (Ibid.)
Fathers appeal of the juvenile courts ruling presents no important legal issue that overrides the paramount considerations of permanency and stability for the children. (In re S.B., supra, 32 Cal.4th at p. 1293.) By failing to object to the juvenile courts ruling in the proceedings below, father forfeited the right to challenge that ruling on appeal.
b. No Due Process Violation
Even absent any forfeiture by father, the record discloses no violation of fathers due process right to a full and fair hearing on his section 388 petition. At the April 10, 2006 hearing on fathers section 388 petition, the juvenile court imposed no restrictions on fathers ability to present testimony or other evidence in support of the petition. The juvenile court did not state its intention to defer ruling on fathers request for unmonitored visits until after admitting into evidence the documents submitted by the parties, hearing the testimony of all witnesses, and hearing argument from both mothers and fathers counsel.
Nor was father precluded from presenting evidence to support his request for unmonitored visits at the combined section 388 and section 366.26 hearing that took place the following day, on April 11, 2006. At the outset of that hearing, the juvenile court stated that it would be considering the entire contents of the court file, as well as "yesterdays testimony on the 388 petition, since much of that had to do with visitation and relationships." Father then testified about the quality and frequency of his visits with the children during their placement with his sister, Pamela C., the closeness of his bond with the children, and his efforts to maintain that bond when his contact with the children was reduced to weekly one-hour visits and weekly telephone calls during the childrens placement with Glen and Karen F.
In re Jeremy W. (1992) 3 Cal.App.4th 1407, on which father relies in support of his position, is inapposite. In that case, the juvenile court summarily denied without a hearing a mothers section 388 petition to set aside an order terminating reunification services, despite a strong prima facie showing of a favorable change in circumstances, and three days later at the scheduled 366.26 hearing, terminated the mothers parental rights. (Id. at pp. 1415-1416.) Our Supreme Court concluded that the summary denial of the mothers section 388 petition without affording her a fair hearing on that petition before proceeding to a section 366.26 hearing and disposition was a denial of her right to due process. (Id. at p. 1416.) Here, in contrast, father was accorded his due process right to a full and fair hearing on his section 388 petition — on April 10, 2006, and at the April 11, 2006 combined section 388 and section 366.26 hearing. The Supreme Court has recognized that such combined sections 388/366.26 hearings are appropriate in certain circumstances: "We see no reason why, under circumstances such as these, such matters could not be consolidated in time so long as the section 388 petition is decided first." (Id. at p. 1416, fn. 14.) Although the juvenile courts ruling on fathers section 388 petition in this case was procedurally irregular because it was issued after the court terminated parental rights under section 366.26, that procedural irregularity did not deprive father of his due process right to a full and fair hearing, nor, as we discuss, did it result in prejudice to father.
c. No Prejudice
Father has demonstrated no prejudice as a result of the juvenile courts ruling on fathers request for more liberalized visitation after the court terminated parental rights at the combined section 388 and section 366.26 hearing. As discussed, father was accorded the opportunity to present documentary evidence and testimony in support of his request for unmonitored visits at both the April 10 and April 11, 2006 hearings.
The record does not support fathers contention that the juvenile court was considering unmonitored visitation as part of a transition plan to reunify the children with him. Fathers reunification services with Mckenzi had already been terminated in a previous case, and father had been denied reunification services with both children in this case. Fathers section 388 petition did not request reinstatement of reunification services, nor did father request unmonitored visits as part of a "transition plan" toward reunification with the children, or that the section 366.26 hearing be continued to permit the implementation of such a plan. The juvenile courts comments at the conclusion of the April 10, 2006 hearing on fathers section 388 petition reflect skepticism about the alleged change in fathers circumstances and his interest in the children, rather than any plan for future reunification: " . . . I have concerns about how much insight the father really does have at this point to go directly from monitored visits to a home of father order without some sort of transmition [sic], especially because the father has a period to be so manipulative in his behavior and in his testimony. Hes appeared to have picked the mother over the children in some regards. That seems to me that if were ever going to go to a home of parent order, its going to be best to start with some unmonitored visits with the settings that are planned in advance, where DCFS can be showing up unannounced, confirm that the mother is not there. I have concern about their relationship. Although I dont know if theyre living together, I find it very interesting that all of the phone calls to the kids are when theyre together, using his cell phone. It really seems like the parents are just hoping that which ever one is able to do it, can have a successful 388 to get the kids back and so theyre each filing them in hopes one of them gets them. Theyre very intertwined the two of them, have very deep concerns about going to a home of father order when the two of them are so intertwined and the mothers progress is so questionable and behavior, so we are — so the 388 is denied as to the home of father order."
Father suffered no violation of his due process right to a fair hearing on his section 388 petition, nor was he prejudiced by the juvenile courts ruling on his request for unmonitored visits at the section 366.26 selection and implementation hearing.
2. Alleged Abuse of Discretion
Father contends the juvenile court abused its discretion by denying his section 388 petition. Under section 388, a parent whose child is a dependent of the juvenile court may petition the court for a hearing to change, modify, or set aside a previous order of the juvenile court. (§ 388, subd. (a).) To obtain the requested modification, the parent must demonstrate both a change of circumstances or new evidence, and that the proposed change is in the best interests of the child. (§ 388; Cal. Rules of Court, rule 1432(c), (f); In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The parent bears the burden of proving the requested modification should be granted. (Cal. Rules of Court, rule 1432(f); In re Stephanie M. (1994) 7 Cal.4th 295, 317.) A juvenile courts determination on a petition brought under section 388 will not be disturbed on appeal absent a clear abuse of discretion. (Id. at p. 318.) Abuse of discretion is established if the determination is not supported by substantial evidence. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 796.) The party requesting the change of order has the burden of proof. (Cal. Rules of Court, rule 1432(f); In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.)
The juvenile court in this case concluded that granting fathers petition to place the children in his home, or alternatively, for unmonitored overnight or day visits, was not in the childrens best interest. Factors to be considered in determining what is in the best interests of a child under section 388 include "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
Here, fathers drug use was one of the problems that led to Mckenzis initial removal from his care. Father admitted to using marijuana since 1992, and to using methamphetamines as well. Fathers failure to complete a court ordered drug program during Mckenzis initial detention resulted in the termination of his reunification services with her. Father tested positive for methamphetamines on October 12, 2005, which caused him to withdraw his first section 388 petition filed on October 5, 2005. Father also missed a drug test on March 24, 2006, a few weeks before the hearing on his second section 388 petition. Fathers drug addiction problem is not one that is easily overcome, as evidenced by his failure to appear for drug testing or complete a drug program. Although at the time of his petition, father claimed to have completed a six-month period of sobriety, that time period is short in comparison to his long history of substance abuse. Throughout the childrens most recent placement, fathers contact with them was sporadic, giving him little opportunity to maintain any bond with them. Father admitted that his younger daughter, Savannah, has never lived with him. The childrens bond with the current caregivers, Glen and Karen F., is strong. Mckenzi was placed with them when she was previously a dependent of the juvenile court, and both children had been cared for by Glen and Karen in the past. There is ample support for the juvenile courts conclusion that granting fathers petition was not in the childrens best interest because it would undermine their need for stability and permanence. (See In re Marilyn H. (1993) 5 Cal.4th 295, 309 ["Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability"]; In re Anthony W. (2001) 87 Cal.App.4th 246, 251-252 [parent with long history of drug addiction failed to sustain burden of showing it was in childrens best interest to continue reunification and to remove children from comfortable and secure placement].) The denial of fathers petition was not an abuse of discretion.
Because substantial evidence supports the juvenile courts finding that placing the children with him or granting him unmonitored visits was not in the childrens best interests, we need not determine whether fathers efforts toward resolving his substance abuse problem constituted sufficient "changed circumstances" under section 388.
B. Termination of Parental Rights
Both parents contend that the juvenile court erred by concluding that the parental relationship exception to terminating parental rights set forth in section 366.26, subdivision (c)(1)(A) did not apply. Section 366.26, subdivision (c)(1)(A) provides an exception to terminating parental rights when "[t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." The parent bears the burden of proving the applicability of the exception. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-955.) We review the juvenile courts order pursuant to section 366.26 for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576-577.) Under this standard, an appellate court must affirm the juvenile courts order if there is evidence that is reasonable, credible, and of solid value to support the order, viewing 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. [Citation.]" (Id. at p. 576.)
"When contesting termination of parental rights under the statutory exception that the parent has maintained regular visitation with the child and the child will benefit from continuing the relationship, the parent has the burden of showing either that (1) continuation of the parent-child relationship will promote 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 [citation] or (2) termination of the parental relationship would be detrimental to the child. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) "The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) "[T]he exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) A parent must establish more than merely some benefit to the child by continuing the parent/child relationship. That relationship must be a substantial, positive emotional attachment such that the child would be greatly harmed if the relationship were severed. (Ibid.) To overcome the benefits associated with a stable, adoptive family, the parent seeking to continue a relationship with the child must prove that severing the relationship will cause not merely some harm, but great harm to the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) Factors that the juvenile court should consider when making this determination include "[t]he age of the child, the portion of the childs life spent in the parents custody, the `positive or `negative effect of interaction between parent and child, and the childs particular needs." (In re Autumn H., supra, at p. 576.)
The juvenile court in this case weighed the childrens bond with father and mother against the benefits of being in a stable adoptive family and concluded that the childrens need for permanency outweighed the benefits of continuing the parent/child relationship. Substantial evidence supports this conclusion.
Mckenzi was nine months old when she was first removed from her parents care. During the year and a half that Mckenzi was a dependent of the juvenile court, father failed to complete his court ordered drug program and his reunification services were terminated. In March 2002, Mckenzi was returned to mother, who had since given birth to Savannah. Three years later, both children were declared dependents of the juvenile court. While the children were dependents in this case, mother and father both suffered drug relapses, both parents missed appointments for court ordered drug testing shortly before the section 366.26 hearing, and mother received a notice of pending discharge from her court ordered drug treatment program because of her nonattendance. Mothers behavior has been erratic and unstable at times, and this has negatively impacted the children, causing emotional trauma and behavioral problems that have required therapeutic treatment for the children after parental visits.
The current caregivers are the childrens godparents, who have known the children since birth, and cared for Mckenzi when she was a prior dependent of the juvenile court. The caregivers are willing to adopt Mckenzi and Savannah, and both children have expressed a desire to be adopted by them. Although the children appear to be bonded with their parents, especially mother, once reunification services have been terminated, "`[f]amily preservation ceases to be of overriding concern . . . the focus shifts from the parents interest in reunification to the childs interest in permanency and stability. [Citation.] [Citation.]" (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195.) The cost to the children of maintaining the parent/child relationship has been high. It has exacted an emotional toll on them, manifested by behavioral problems following parental visits that have required therapeutic intervention. Neither mother nor father has met their burden of demonstrating that maintaining their relationship with the children "promotes the well-being of the [children] to such a degree as to outweigh the well-being the [children] would gain in a permanent home with new, adoptive parents." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Substantial evidence supports the juvenile courts determination that the exception to terminating parental rights accorded by section 366.26, subdivision (c)(1) does not apply.
DISPOSITION
The orders of the juvenile court denying fathers section 388 petition and terminating fathers and mothers parental rights are affirmed.
We Concur:
BOREN, P. J.
DOI TODD, J.