Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County No. JD117535, Robert J. Anspach, Judge.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A. Goldner, County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Dawson, Acting P.J., Kane, J., and Poochigian, J.
INTRODUCTION
Appellant, L.H.L. (L.), appeals from the juvenile court’s order denying his petition pursuant to Welfare and Institutions Code section 388 to modify the court’s prior order terminating reunification services for his child, M.H. (M.). The court denied appellant’s petition on June 18, 2010, and terminated appellant’s parental rights. Appellant contends he demonstrated changed circumstances and the juvenile court abused its discretion in denying his petition. Appellant further contends the juvenile court erred in failing to find the beneficial parent-child relationship exception applied to this case. We reject these contentions and will affirm the juvenile court’s judgment.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEEDINGS
Earlier Proceedings
On April 16, 2008, M., who was one month old, was placed into protective custody because of her mother’s drug use and failure to reunify with an older sibling and L.’s alcohol abuse. M. was detained on April 21, 2008. The parents were permitted supervised visitations twice weekly. L. is M.’s presumed father and the father of M.’s sibling. During dependency proceedings for M.’s sibling, L.’s whereabouts were unknown. L. used marijuana on a daily basis from age ten until 2007.
The petition filed on behalf of M. pursuant to section 300 made these three allegations. The mother lost custody of three other siblings due to her drug use.
L. was arrested on May 24, 2008, for an incident of domestic violence against the mother. At the jurisdiction hearing on June 6, 2008, the allegations in the petition were all found to be true. At the disposition hearing on August 26, 2008, the juvenile court granted the parents reunification services. Both parents were ordered to submit to random drug testing. L. was ordered to abstain from use of alcohol and to submit to random alcohol testing. The parents were also both granted supervised visitation with M. twice weekly.
At the review hearing on December 16, 2008, the court found the mother had tested positive for use of methamphetamine, was arrested and charged with first degree burglary in August 2008, and had made only minimal progress. The court terminated the mother’s reunification services.
The court found L. had made acceptable progress to further avail himself of reunification services. L. was ordered to continue to refrain from drinking alcohol and to submit to random testing for alcohol use.
L. successfully completed counseling for parenting and consistently attended a class for domestic violence. Between November 2008 and late April 2009, L. tested negative for drugs and alcohol. L. visited M. twice a week with his visitation characterized as being “of excellent consistency.” L.’s visits were increased from supervised visits for two hours to unsupervised visits of four hours. On June 5, 2009, the juvenile court placed M. with L. on family maintenance services.
On November 6, 2009, M. was again placed into protective custody because L. failed to abstain from drinking alcohol. A supplemental petition was filed on November 10, 2009. L. tested positive for alcohol on September 30, 2009, and was arrested for driving under the influence of alcohol on October 9, 2009. L. tested positive for alcohol consumption once more on October 20, 2009. L. pled guilty to driving under the influence of alcohol on November 3, 2009. M. was detained again on November 12, 2009.
M.’s mother was deported in early December 2009.
L. was arrested for a second time for driving under the influence of alcohol on November 29, 2009. The father was taken into custody on December 5, 2009, for his failure to report to his work release program. On January 25, 2010, the court conducted a joint jurisdiction/disposition hearing. The parties submitted the matter on the social worker’s report. The court found the allegations in the petition to be true.
During the disposition phase of the hearing, L.’s counsel requested that L. be placed again on family maintenance services and noted L. had resumed his progress in dealing with his alcohol problem. Counsel noted there was a strong bond between L. and M. The court found M. to be a dependent child of the court by clear and convincing evidence and that L. made minimal progress toward mitigating the causes for out-of-home care. The court terminated family maintenance and reunification services. The matter was set for a hearing on the termination of parental rights.
Section 388 Petition and Hearing
L. filed a section 388 petition on May 18, 2010. The petition set forth that L. completed substance abuse counseling, tested negative for drugs and alcohol on a weekly basis, and attended every scheduled visit with M. L. stated he maintained a close relationship with M. and had appropriate housing for her. L. requested an extension of family reunification services and stated he had “a strong and loving relationship” with M.
In April 2010, M. was placed with the foster family that adopted her older sibling. This family indicated they also wanted to adopt M. Between April 2008 to June 2009, L. attended 47 visits out of a possible 112 visits. From November 2009 to April 2010, L. attended 13 visits out of a possible 25 visits. The social worker noted that although there was a relationship between L. and M., M. did not look to L. to meet her daily needs. M. goes up to her father at the beginning of visits but shows no distress when he leaves. The social worker concluded that M.’s long-term emotional well-being would not be compromised if L.’s parental rights were terminated.
Although M. was cautious toward her potential adoptive family members, she was opening up to them. Even if M. was not adopted by her current caregivers, she would still be adoptable by another family. The social worker recommended the parental rights of both parents be terminated.
A social study report was filed on June 18, 2010, the date of the hearing on the section 388 petition and the hearing on the termination of parental rights. The report indicated appellant was arrested in January 2010 for a third driving under the influence of alcohol offense. Although L. had a crib, there were nails protruding from walls in the hallway, safety hazards in the bathroom, and uncovered electrical outlets. L. had no clothes, bedding, food, or daycare for M.
The social worker noted that although appellant was making progress in completing his family reunification plan, he did not have a suitable residence for M. and was not prepared for the child’s return to his care. Also, L. failed to abstain from drinking alcohol and had three arrests for driving under the influence. The social worker recommended a denial of the section 388 petition and a permanent plan of adoption for M.
At the hearing, the court noted L. had a third arrest for driving under the influence and that L. had substantial quality visits with M. L.’s counsel argued L. had worked hard to control his alcohol abuse and was actively participating in family counseling. Counsel requested the court grant the section 388 petition and set aside the section 366.26 hearing. County counsel noted appellant had eight additional substance abuse counseling sessions to attend and two additional group counseling sessions on domestic violence. If appellant did not appear, he would be dropped from these programs.
The court found there was not a sufficient showing of changed circumstances and it would not be in the minor’s best interests to grant the section 388 petition. The court found by clear and convincing evidence that M. is likely to be adopted and out-of-home placement was appropriate and necessary. The court terminated the parental rights of both parents.
DISCUSSION
Appellant argues the court abused its discretion by denying his section 388 petition and for failing to find that the parental benefit exception applied to this case. We disagree.
Section 388 Petition
It was appellant’s burden of proof to show there was new evidence or there were changed circumstances that made a change of the child’s placement in her best interest. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) If the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing. (In re Jasmon O. (1994) 8 Cal.4th 398, 415 (Jasmon O.).) The petition must be liberally construed in favor of its sufficiency. (Ibid.)
“The references in In re Marilyn H., supra, 5 Cal.4th at page 310, to a ‘prima facie’ showing is not an invitation to section 388 petitioners to play ‘hide the ball’ in pleading changed circumstances or new evidence. A ‘prima facie’ showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719, fn. 6.) If a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted. In such circumstances, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality.” (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)
The mandate for liberal construction of a section 388 petition does not entitle a petitioner to avoid describing the changed circumstances or new evidence. Section 388 and the pertinent rule of court (Cal. Rules of Court, rule 5.570) require the petition to allege changed circumstances or new evidence that requires changing a prior order. (Jasmon O., supra, 8 Cal.4th at p. 415.) As the moving party, it was appellant’s burden of proof by a preponderance of the evidence to show there was new evidence or there were changed circumstances that called for a change of the previous order denying reunification and that reunification services would be in the child’s best interest. (§ 388; Stephanie M., supra, 7 Cal.4th at p. 317.)
L., however, had three arrests for drunk driving at that time and just after M. was detained. Appellant failed to demonstrate a sustained period of sober stability. L.’s relapse into alcohol abuse was severe. L.’s home was not adequate for M.’s needs. L. had not finished, and was about to be dropped from, counseling sessions for substance abuse and domestic violence.
The parent bears the burden of showing in a section 388 petition both a change of circumstance exists and that the proposed change is in the best interests of the child. A petition only alleging changed circumstances, which would lead to a delay in the selection of a permanent home, to see if a parent could eventually reunify with a child at some future point, does not promote stability for the child or the child’s best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
To understand the element of best interests in the context of a section 388 petition, we look to the Supreme Court’s decision in Stephanie M. After the termination of reunification services, a parent’s interest in the care, custody, and companionship of his or her child is no longer paramount. Rather, the focus shifts, once reunification efforts end, to the child’s needs for permanency and stability; there is in fact a rebuttable presumption that continued out-of-home care is in the best interests of the child. (Stephanie M., supra, 7 Cal.4th at p. 317.) A court conducting a modification hearing at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (Ibid.) Notably, both here and in the juvenile court, L. ignores M.’s need for permanence and stability in advocating his position. Neither the juvenile court nor this court, however, may do so.
Parent Benefit Exception
Finally, L. contends the juvenile court erred because of his close relationship with M. L. argues the parental benefit exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)) should have been applied in this case because terminating his parental rights would be detrimental to M.
Appellate courts 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 an extent as to outweigh the benefits the child would gain in a permanent home with adoptive parents. Courts balance the strength and quality of the natural parent-child relationship against the security and sense of belonging the new family would provide. If severing the natural parent-child relationship would deprive the child of substantial, positive emotional attachment so that the child would be greatly harmed, only then is the preference for adoption overcome and the parents’ rights are not terminated. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953 (L.Y.L.); In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
To meet the burden of proof for this exception, the parent must show more than frequent and loving contact or pleasant visits. (L.Y.L., supra, 101 Cal.App.4th at pp. 953-954.) The relationship arises from day-to-day interaction, companionship, and shared experiences. The parent must show he or she occupies a parental role in the child’s life that results in a significant, positive, emotional attachment from child to parent. (Id. at p. 954.)
While we agree L. had frequent and loving visits with M., he failed to demonstrate a true parental role with her. Although L. had consistent visits with M., and even regained custody of her for a time, L.’s scheduled visitations with M. did not total the maximum possible number of visits. Between April 2008 to June 2009, L. attended 47 visits out of a possible 112 visits. From November 2009 to April 2010, L. attended 13 visits out of a possible 25 visits.
More importantly, however, the social worker noted that although M. enjoyed her visits with L., she did not view L. as her parent and did not display any distress when L. left at the conclusion of his visits. L. did not demonstrate more than frequent and loving visits. L. did not show he occupied a parental role in M.’s life that resulted in a significant, positive, emotional attachment from M. to him. The juvenile court did not err in failing to employ the parent benefit exception in this case.
L. further argues that the adoption assessment did not contain a detailed account of the relationship between M. and her caregivers. We find no infirmity in the social worker’s account of the bond between M. and her caregivers and further note that L. did not object to the social worker’s report on this ground.
DISPOSITION
The juvenile court’s orders denying appellant’s section 388 petition and terminating his parental rights are affirmed.