Opinion
NOT TO BE PUBLISHED
Appeals from orders of the Superior Court of Orange County, Nos. DP019248, DP019249 & DP019250, Gary G. Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant D.W.
Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant L.W.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
OPINION
FYBEL, J.
Introduction
R.W, G.W, and N.W., now four, three, and two years of age, respectively (collectively, the children), were taken into protective custody after their sister, M.W., died as the result of blunt force trauma. The children’s mother, L.W. (mother), has been charged with child assault causing death, and child abuse and endangerment. The juvenile court found the children were within its jurisdiction, pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), (e), (f), and (i). (All further statutory references are to the Welfare and Institutions Code, unless otherwise specified.) Custody of the children was vested in the Orange County Social Services Agency (SSA), and mother and the children’s father, D.W. (father), were denied reunification services, pursuant to section 361.5, subdivision (b)(4) and (5). This court denied the petitions for a writ of mandate filed by mother and father, which challenged the jurisdiction and disposition orders.
After a permanency planning hearing, pursuant to section 366.26, the juvenile court terminated the parental rights of mother and father; both appeal from the court’s orders, and we affirm.
First, we conclude the juvenile court did not abuse its discretion in summarily denying father’s section 388 petition, because father failed to make a prima facie showing of changed circumstances, or that returning the children to his custody or offering him reunification services would be in the children’s best interests.
Second, we conclude substantial evidence supported the juvenile court’s finding that the children were adoptable.
Finally, we conclude substantial evidence supported the juvenile court’s finding that the parent-child benefit exception to adoption did not apply in this case.
Statement of Facts and Procedural History
I.
Facts Through Disposition
This is the second time this case has been before us. In our previous unpublished opinion, D.W. v. Superior Court (Oct. 26, 2010, G043973), we set forth the relevant facts as follows:
“Detention
“On December 17, 2009, Seal Beach police officers responded to the W. family’s home and found 23-month old M. on the floor of a bedroom, unresponsive. CPR was performed, and M. was transported to a local hospital, where she was pronounced dead. M.’s three siblings, R. (then three years old), G. (then 23 months old—M.’s twin), and N. (then six months old) were immediately taken into protective custody. G. had injuries to his head, chest, and back; an X-ray revealed he had suffered a skull fracture. The doctor examining him also suspected G. was malnourished.
“A juvenile dependency petition was filed on December 21, 2009, alleging R., G., and N. came within the jurisdiction of the juvenile court under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (e) (severe physical abuse to a child under age five), (f) (causing another child’s death through abuse or neglect), and (i) (cruelty).
“Jurisdiction/Disposition and Addendum Reports
“In the jurisdiction/disposition report, the social worker wrote that father denied ever having seen mother hit the children, though he admitted both he and mother had spanked or ‘popped’ the children. Father had on occasion returned home to observe the children with ‘reddish skin’ on their arms, legs, and hips, ‘as if they were “popped too hard.”’ Father admitted he had ‘started to have concerns with [mother] over the last month’ before M.’s death. ‘He observed her to be increasingly irritable and “everything was getting to her more.” “She was yelling a lot[.”] When asked at whom, he stated “all of us.” He denies having witnessed any hitting. He tried talking to her to no avail. He explained that when his wife is frantic and “freaked out[, ”] she needs to be left alone because she won’t say anything.’ The social worker noted ‘that the father had concerns regarding the mother’s ability to care for the four young children, based on him describing the mother as getting, “increasingly” crazy. However, the father continued to leave the children under the mother’s care, while he went to work.’
“Because of the pending criminal investigation, mother did not make any statements to the social worker. On the date of M.’s death, mother had told one of the responding police officers that M. woke up sick that day, did not want to eat anything, and had vomited clear liquid three times during the day. Mother left the children in a bedroom, unsupervised and with the door closed, for about three hours. When she checked on the children, mother found M. on the floor, unresponsive, with a bloody nose. Mother told a different officer that when she checked on the children, M. was standing, then ‘appeared to go weak and limp and fell.’ Although mother was worried, she waited about 20 minutes to call 911.
“One of the responding police officers told the social worker that when father arrived home on the day of M.’s death, he ‘was informed that his baby was transported to the emergency room in serious condition and that they had no further news. Mr. W[.] sighed, stated “what else can go wrong” and looked away. He subsequently went to his car, grabbed a bag out of the trunk and walked into the house. He didn’t acknowledge his wife or children, but walked to a room near the garage. He put on some gloves, got a box cutter and opened a box of golf clubs. For 5-10 minutes, he was involved with these golf clubs and made some sort of statement to Officer Jones that “this relaxes me[.”] He then went to his home office and began checking email on his laptop. [¶] Officer Jones states that the father did not acknowledge the mother or children or ask to go to the emergency room.’
“The social worker also reported that an examination after M.’s death revealed G. ‘had a skull fracture and multiple bruises to most of his body. There appeared to be hand prints on his body.’ G.’s liver function test indicated he had suffered abdominal trauma, not related to disease. G. also appeared to be malnourished, with his weight in the third percentile.
“R. displayed no signs of physical abuse, but suffered from a verbal speech delay.
“N. appeared in good health, but had protein malnutrition. He had a mark on his chest that might have resulted from trauma, rather than a birthmark; the mark was not noted on N.’s birth records.
“In the report, the social worker did not make any recommendation regarding jurisdiction or disposition, because the investigation was still ongoing. The social worker did recommend that the children remain in out-of-home care until the investigation was completed.
“Mother was arrested in February 2010, and charged with one count of child assault causing death (Pen. Code, § 273ab), and three counts of child abuse and endangerment (id., § 273a, subd. (a)).
“In an addendum report filed in March 2010, father was reported to have said he ‘cannot explain how he didn’t see these things.... He wonders if his problems with the mother could have distracted him from what was happening with their children. Her “irate episodes” and his avoidance of the problems by not coming home could have prevented him from seeing what was happening to them. He was also having some problems at work which made this time to be very overwhelming for him.’
“In another addendum report filed in March 2010, the social worker wrote: ‘The undersigned asked [father] about his statement that the three of them (himself, G[.] and M[.]) were targeted by the mother. He confirmed making this statement. When asked if he thought about what could have happened to the other two targets, M[.] and G[.], in his absence, he stated no. The undersigned commented that he is 6 feet 2 inches, approximately 200 pounds, and was avoiding his 5 foot 7 inch wife who weighs about 130 lbs. Did he consider that maybe the twins were more afraid of their mother than he was of his wife? Mr. W[.] admitted he didn’t think about it when he withdrew from his home and family.’ The social worker also wrote: ‘The undersigned confronted the father about his apparent disregard for his children while they were at home living with their mother. He did not think to protect them from a person he suspected was suffering from some mental illness and was behaving erratically. He did not respond.’
“An addendum report filed in May 2010 reads, in relevant part, as follows:
“‘The Court has for its consideration the safety and welfare of the children, R[.], G[.] and N[.] W[.], who were brought into protective custody on December 17, 2009, due to the suspicious death of the sibling, M[.]. The undersigned believes the petition to be true and that the children are in need of the protection of the Court.
“‘The child, M[.], died on December 17, 2009, as a result of blunt force trauma. The blunt force trauma caused an aortic tear that lead [sic] to her pericardium filling up with blood, eventually stopping her heart. The child died approximately ten minutes after being struck, while in the sole care of her mother. This child sustained injuries previously, as evidenced by the multiple bruising on her body at various stages of healing and the new and old rib fractures that became evident at the autopsy.
“‘M[.]’s twin, G[.], sustained a skull fracture of an unknown age, malnourishment and environmental deprivation. He was subsequently diagnosed with Failure to Thrive, a medically avoidable condition which would have been prevented with consistent medical supervision and intervention.
“‘When placed into custody, G[.] appeared to have autistic qualities which were attributed to environmental deprivation. Although he continues to demonstrate some delays in all areas, his improvements have been significant with minimal professional intervention, mostly from attention and guidance by the foster parents. His rebounding from his autistic like characteristics le[a]ds the undersigned to believe that Dr. Wong’s assessment of environmental deprivation is accurate.
“‘The children’s mother has been arrested for the child abuse leading to the death of M[.] and the severe abuse of the child, G[.]. The undersigned has had little meaningful contact with Ms. W[.], as instructed by her counsel, yet the undersigned is of the opinion that she suffers from a mental condition as evidenced by the mother’s erratic behavior at a visit. This, however, does not preclude her culpability in the death of her daughter, M[.], and the abuse/neglect of the other twin, G[.]....
“‘Despite the mother’s arrest, this does not deflect the responsibility of the father to have protected the children from their mother.
“‘Mr. W[.] has repeatedly admitted to suspecting that something was amiss with his wife, L[.]W[.]. He was researching mental health diagnoses and treatment on the computer for months, as evidenced by the search logs obtained by the police. He admittedly stayed away from the family residence in an effort to avoid the “erratic” and “irate” behavior of his wife.
“‘He has also made statements as to his wife not liking him and the twins. The undersigned finds it difficult to believe such insight would not have led a concerned parent to protect his children from their mother or at least warrant further inquiry and/or investigation as to whether he needed to protect the twins from his wife. Instead, he admits that he did not consider that the children were in danger, and instead pursued other goals which included his career, his aspiration to be a professional golfer and his business degree.
“‘It is curious that the military has communicated that assistance is readily available to anyone who asks for help, yet the father did not ask for any assistance. If he had made any comments to his immediate supervisor expressing concern for what was happening in his home, the services and interventions available to any and all military personnel and their families would have become available to them. Unfortunately for M[.] and G[.], the father did not think to mention his concerns or difficulties with his sergeant, or anyone else for that matter. He appears to simply have protected himself and ignored the problem as a whole.
“‘Another curious observation by the undersigned is the father’s lack of knowledge about the conditions that plagued the child, G[.]. He did not seem to notice that the child had sustained multiple bruises on his body over a period of time or that he was suffering from malnourishment. He didn’t seem to notice that his son was developmentally delayed and was acting with autistic features. He even provided developmental information to the pediatrician in July 2009, stating that G[.] was capable of doing things that he is unable to do, such as speak 10-20 words. Mr. W[.] genuinely appeared to be in shock when the undersigned presented him with the developmental delays of G[.], as provided through the Regional Center of Orange County. [¶]... [¶]
“‘In view of the foregoing, it is respectfully recommended that the Court sustain the allegations of the Petition and that the children be declared dependent children of the Juvenile Court and that the Court find that no Family Reunification services be ordered for the children’s parents pursuant to Section 361.5(b)(4), (5), and (6) of the Welfare and Institutions Code. It is further recommended that the Court find reasonable efforts were made to prevent or eliminate the need for removal of the children from their home; that for the welfare of the children, custody be vested in the Social Services Director for suitable placement, and that the matter be scheduled for a hearing pursuant to Section 366.26 of the Welfare and Institutions Code.’
“Jurisdiction Hearing
“At the jurisdiction hearing, the assigned social worker testified father had made conflicting statements, sometimes stating that mother and the children had been fine, and he had not noticed anything wrong, but at other times stating mother ‘seemed overwhelmed.’ Father had recognized G. and M. were targets for mother, but did not notice anything wrong with their physical states or their development. The social worker had confirmed with medical professionals that the bruising on G. and M. would have been evident on the day of M.’s death. G. was improving and had been eating well while in foster care.
“Dr. Daphne Wong, the medical director of the child abuse and neglect team at Children’s Hospital of Orange County, had examined G. after he was taken into protective custody. At that time, G. had multiple bruises on his face, on his eyes, and on his sides under his arms. G. had suffered a skull fracture and injuries to his liver as the result of blunt force trauma; his injuries were not consistent with those typically associated with children at play.
“Dr. Wong testified G.’s low weight, growth recovery lines, and nutritional test results indicated G. was malnourished. After being placed in foster care, G. gained weight, indicating he was able to eat and gain weight. Dr. Wong also testified there was no credible or rational explanation for G.’s previous low weight and failure to grow other than lack of adequate nutrition.
“The doctor who performed M.’s autopsy testified M. died due to nonaccidental blunt force injuries to her head and torso, and determined M. was the victim of a homicide. M. had suffered old and new fractures to her rib cage. M. had also suffered a cut and bruising on her lip. Bruising on M.’s back was unlikely to have been caused by performing CPR; rather, it was consistent with being grabbed.
“One of the police detectives who spoke with mother at the hospital on the day M. died testified mother showed little emotion after learning of M.’s death. Father did not seem surprised or shocked when informed of M.’s death, and told the detective he worked under pressure and therefore did not get worked up about what was transpiring. Father told one of the police detectives he had noticed bruising on the children, mother hit the children because they acted up, and mother treated M. and G. differently than she did R. and N.. Father told the detective he did not seek help for mother’s issues through the military because ‘[h]e didn’t want to have to go through the hoops to get it done.’
“At the conclusion of the jurisdiction hearing, the court found there was clear evidence of severe abuse to M. and G. and clear evidence that G. ‘suffered from willful prolonged failure to provide adequate food and nutrition.’ The court then found G. was subject to the jurisdiction of the juvenile court pursuant to section 300, subdivisions (a), (b), (e), (f), and (i). The court further found that R. and N. were subject to the court’s jurisdiction pursuant to section 300, subdivisions (a), (b), and (f).
“Disposition Hearing
“At the disposition hearing, the social worker testified she was recommending mother and father not be offered reunification services. The social worker did not believe denial of reunification services would be detrimental to the children, because they had not shown any ‘adverse adjustment effects’ from their placement in foster care, and showed more positive reactions to the foster parents than to father.
“A psychiatrist testifying on father’s behalf opined that reunification services would prevent the reabuse or continued neglect of the children by father. The psychiatrist admitted he had not observed father interacting with the children, and it would be important to know whether father had a bond with the children before recommending reunification services.
“Father’s parenting and child abuse program group facilitator testified father was cooperative and attentive during his sessions. Father did not discuss the circumstances leading to M.’s death, or his responsibility for her death.
“Father’s therapist testified father was cooperative and engaged during their sessions, but had made minimal progress in the therapeutic goal of accepting and processing responsibility for M.’s death.
“The juvenile court found, at the conclusion of the hearing, that it would be detrimental to the children to be placed in the custody of mother and father; that reasonable efforts had been made to prevent or eliminate the need for removal of the children from their home; and that reunification services need not be provided to mother and father, pursuant to section 361.5, subdivision (b)(4) and (5). The court then set a permanency hearing. Mother and father separately filed notices of intent to file a writ petition. This court ordered real parties in interest to show cause why a writ of mandate should not issue. The Orange County Social Services Agency filed an opposition to the petition, and the children filed a response in which they incorporated by reference the agency’s arguments and requested the petitions be denied.”
Father and mother filed separate petitions for a writ of mandate. In an unpublished opinion, we denied the petitions. (D.W. v. Superior Court, supra, G043973.)
II.
Facts Since Disposition
The permanency planning hearing report advised that the children continued to reside in the same foster home, which was not a concurrent planning home. The foster parents were not able to adopt the children, because they had three children of their own. Relatives in Florida had expressed interest in adopting the children, but “came to the conclusion that they would not be able to provide for all of the children’s needs and that the children would be better served in a traditional adoptive home... because they had concerns about their own age, health and ability to provide for the children.”
Father had regular, one-hour visits with the children, monitored by the foster parents, three times per week. Father was always appropriate at the visits. He brought appropriate toys and snacks, interacted with all three of the children, and the children were visibly happy to be with father. He also periodically telephoned the foster mother to speak with the children. Father continued to attend his individual therapy sessions and parenting classes.
Mother remained incarcerated pending her criminal trial, and had no visitation with the children.
R., then four years old, was a happy, fun-loving child, who asked a lot of questions, and was curious about the world around her. R. had a speech delay and was to receive speech therapy through the local school district. G., then almost three years old, was receiving speech, language, and occupational therapy. He needed growth in fine motor skills, adaptive daily living skills, feeding abilities, response to sensory input, lower extremity weakness, decreased postural control, play skills, and receptive and expressive language skills. G. was at least 33 percent delayed in more than two areas of development. He was described as a happy, friendly, and sweet child, who enjoyed interacting with both adults and children. N., then one and one-half years old, was described as a happy, fun-loving child. The permanency planning hearing report provided the following information regarding N.: “N[.] is receiving physical therapy.... N[.] is an adorable 15 month old boy who has made nice progress in his overall mobility skills as he is now standing and walking independently. N[.] demonstrates slight limitations in his alignment and quality of movement during gait. Factors contributing to these limitations include sensory processing difficulties, and decreased strength and balance. It is expected that N[.] will continue to develop his strength, balance and coordination with continued physical activity incorporated in his daily routine at home and in the community. With further practice walking, climbing and negotiating obstacles in his environment, N[.] should make continuous progress with his gross motor skills.”
In the permanency planning hearing report, SSA opined that the children were adoptable. An adoptive home had not been located, but SSA’s adoptions matching department had informed the assigned social worker that families were available to take placement of a sibling set. SSA recommended that father’s visitation with the children be reduced to one time per week to assist the children in transitioning to an adoptive home. In its recommendation, SSA opined that termination of parental rights would not be detrimental to the children, and that the children were difficult to place but adoption was nevertheless probable. SSA recommended that the juvenile court terminate parental rights, order SSA to locate an adoptive family, and continue the matter for 180 days for an adoptive family to be located.
On November 18, 2010, father filed a section 388 petition, requesting that the juvenile court modify its previous order vesting custody of the children with SSA and denying him reunification services. The court summarily denied father’s petition, finding father had failed to establish either changed circumstances or that the requested relief would be in the children’s best interests.
In an addendum to the permanency planning hearing report, SSA recommended that the court find the children were adoptable and termination of parental rights would not be detrimental, and that the court terminate parental rights. The children’s medical providers had not identified any health concerns. Although G. continued to have autistic-like qualities and demonstrated some delays in all areas, he had made significant improvements, and the autistic-like qualities were diminishing. SSA’s adoptions matching department had advised the social worker the “children are adoptable and that there are families available for the children to be matched with.” At the permanency planning hearing, the juvenile court admitted SSA’s reports.
At the hearing, the social worker testified the children were “adorable, sweet, fun-loving, friendly, well behaved, active [and] healthy.” She believed the children were adoptable as a sibling set. Although SSA’s adoptions matching department had families open to adopting siblings, only one home study package of a family that was a possible match had been provided to the social worker, the day before the hearing. This family was generally open to adopting siblings, and had been provided preliminary information about the children, including the services they were receiving. But the family had not yet met the children, and the social worker had not discussed the children with them. The social worker did not have “any concerns” about the children’s adoptability, even if placement with this family did not work out.
The juvenile court found the children were adoptable by clear and convincing evidence, found the parent-child benefit exception to adoption did not apply, and terminated parental rights.
Mother and father separately appealed.
Discussion
I.
Section 388 Petition
Father argues on appeal that the juvenile court erred in denying his section 388 petition. Father sought to have the children returned to his care, or to have the court provide him with reunification services.
To succeed on a section 388 petition, a parent must show changed circumstances establishing that the proposed modification would be in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) “The parent seeking modification [through a section 388 petition] must ‘make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]’ [Citations.] There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing.” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
We apply the abuse of discretion standard in our review of the juvenile court’s decision to deny the section 388 petition without a hearing. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) We may not reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 319.) We affirm the order unless it “‘“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.”’” (In re Brittany K., supra, 127 Cal.App.4th at p. 1505.) The juvenile court’s decision will not be disturbed “‘“unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.”’” (In re Stephanie M., supra, 7 Cal.4th at p. 318.) A section 388 petition that alleges only changing rather than changed circumstances does not require an evidentiary hearing. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1072.)
Father’s section 388 petition detailed what he had learned through his individual therapy and through the parenting/child abuse program in which he was continuing to participate. Because father was denied reunification services, he had arranged for those services himself. He provided information on his current employment, and the provisions he had made for child care if the children were returned to his custody. Father explained how he had learned, from the behavior the foster parents had modeled, to make himself a better parent, and described his positive interactions with the children at monitored visits.
In the declaration submitted in support of the section 388 petition, father also expressed his belief that it would be in the children’s best interests to be placed with him, or for the court to provide reunification services to him: “I have effectively mitigated the personal issues through parenting education, counseling, and reflection that may have contributed to the downfall of my family. I have worked diligently to ensure that I not only understand my role as a parent and father, but to think and act accordingly so. I have continued in the parenting and child abuse classes to not only become informed, but also to have an accurate understanding of what is legally, morally, and ethically required of me. Additionally, I understand what my responsibility is to shield and protect my children from any type of abuse. Over the past few months, I’ve been able to maintain a relationship with my children and understand their individual challenges. Having come from meager beginnings and having to raise [sic] above my own challenges gives me a unique insight to what their true needs are. My children needed me to be there over this period of time, and I did everything within my power to be on time to be there for them and be a blessing to them. I believe that I’m more than equipped to properly counsel, coach and mentor each child to rise above their individual challenges. I believe that I have taken the appropriate steps to prepare a safe home environment so that they can flourish and also pre-arrange family activities that would allow us to reconnect and move forward with me as their solid, dependable base. The bottom line is that I’ve spent most of my free time preparing and educating myself to become a better father to my children. This was accomplished through creating a more flexible work schedule and planning how to provide for the physical, emotional, educational, religious and social needs of each child. These include family counseling, speech therapy, and age appropriate scheduling.”
The juvenile court exercised its jurisdiction over the children, in part, because it found father knew or reasonably should have known that G. had suffered severe physical abuse by mother, and father caused M.’s death through his neglect, due to his failure to protect the children from harm. (§ 300, subds. (e), (f).) In our prior unpublished opinion, we affirmed the juvenile court’s findings. Father’s section 388 petition failed to establish changed circumstances regarding those findings. Assuming the truth of father’s declaration, we conclude father has learned to “understand [his] role as a father and husband, ” and has learned “the importance of taking time off to rest, reevaluate, and prioritize.” Father has also learned that “[his] children deserve the best and [he is] preparing [him]self to be the best for them.” However, father’s declaration does not acknowledge his role in M.’s death and the abuse and neglect suffered by the children.
Father also detailed in his declaration what he had learned from his parenting class. Of particular note, father stated that he had learned “[s]ome signs of child abuse are more subtle than others. The different types of neglect: a) conspicuous inattention to avoidable hazards in the home; inadequate nutrition, clothing, or hygiene; and other forms of reckless disregard of the child’s safety and welfare, such as driving with the child while intoxicated, leaving a young child unattended in a motor vehicle, and so forth. b) marked inattention to child’s needs for affection, emotional support, attention or competence. C) educational neglect.” What is noticeably absent from father’s declaration, however, is any acknowledgement that he neglected the children in these and other ways, and that he has learned how to prevent such abuse and neglect in the future.
Father points to his psychiatrist’s disposition hearing testimony that reunification services would prevent reabuse or continued neglect of the children by father. As we noted in our prior opinion, however, “[t]he psychiatrist admitted he had not observed father interacting with the children, and it would be important to know whether father had a bond with the children before recommending reunification services.” (D.W. v. Superior Court, supra, G043973.) No further evidence regarding the benefits of reunification services has been provided in connection with the section 388 petition, so we cannot conclude father has met the requirement of showing changed circumstances.
Father also argues that his therapist testified at the disposition hearing that father was “capable of empathy.” We note that the therapist testified she and father had three goals for his therapy: (1) to grieve the loss of M.; (2) to accept and process responsibility for the abuse and neglect suffered by the children; and (3) to learn appropriate parenting skills. At the time of the disposition hearing, father had only made minimal progress toward reaching the second goal, and the third goal had not been addressed. No further evidence from any therapist treating father since the disposition hearing was presented as part of the section 388 petition, and the evidence presented at the disposition hearing, at which reunification services were denied, cannot constitute changed circumstances. While father’s declaration does identify what he believes he has learned from his parenting classes, as discussed ante, father’s declaration shows only changing, not changed, circumstances. Father did not offer in evidence any declarations from his parenting class teachers or coaches, or any evidence of the topics of the classes or his participation in or completion of those classes that might show what progress he has made.
Additionally, father did not make a prima facie showing that it would be in the children’s best interests to change the previous order. In determining whether a section 388 petition addresses the best interests of the child, the following factors should be considered: “(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., supra, 56 Cal.App.4th at p. 532.) Here, the section 388 petition fails to address any of the factors identified by In re Kimberly F.
In this case, the problem leading to dependency was extremely serious—neglect leading to death and severe child abuse. Although mother was effectively out of the children’s lives and was no longer a direct threat to them, the section 388 petition does not provide any evidence that father had resolved his problem of ignoring the children and their needs to such an extent that someone else could inflict such severe abuse on them.
The section 388 petition also fails to address the strength of the relative bonds between the children and father, on the one hand, and the children and their foster parents, on the other. There is no question that father regularly visited with the children, and that he was loving, attentive, and appropriate at those visits. The children appeared to enjoy the visits, ran to greet father, and called him “[p]apa.” The social worker, who had monitored some of the visits, testified father was more than a playmate to the children. But the children were not distressed about leaving father, and easily went back to the foster mother (whom they called “mommy”).
The strength of the relative bonds between the dependent children and both parents and caretakers becomes an even more important factor when a section 388 petition is filed after reunification services have been terminated or, as in this case, when services were never ordered. In In re Stephanie M., supra, 7 Cal.4th at page 317, the California Supreme Court stated, “[a]fter the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] A court hearing a motion for change of placement 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.”
In his opening brief, father cites In re Aljamie D. (2000) 84 Cal.App.4th 424, in which the appellate court concluded the juvenile court abused its discretion by summarily denying the mother’s section 388 petition. That case, however, is factually distinguishable given the older ages of the minors involved and their expressed desire to live with their mother. The appellate court in In re Aljamie D., supra, 84 Cal.App.4th at page 432, concluded that the petition showed changed circumstances and that the best interests of the minors might be served by a change in the juvenile court’s prior order, stating, “[a]ppellant’s petition showed that the best interests of the children potentially would be advanced by the proposed 60-day visit and eventual change in the placement order. The children, ages 9 and 11, repeatedly made clear that their first choice was to live with their mother. While a child’s wishes are not determinative of her best interests, the child’s testimony that she wants to live with her mother constitutes powerful demonstrative evidence that it would be in her best interest to allow her to do so.” The appellate court in In re Angel B. (2002) 97 Cal.App.4th 454, 463, observed that the section 388 petition’s reference to the children’s wishes “is clearly important and relevant to the outcome in In re Aljamie D.”
Here, by contrast, the children were three years old or younger when they were detained, and were four years old or younger at the time the section 388 petition was filed and considered. They have not been returned to father’s custody since their detention, and they have never expressed a desire to be returned to him.
We conclude the juvenile court did not abuse its discretion in summarily denying the section 388 petition.
II.
Likelihood of Adoption
Both mother and father challenge the juvenile court’s finding that the children were adoptable. (Mother’s separate argument that SSA failed to prepare an adequate adoption assessment is subsumed by this argument.) We review a challenge to the juvenile court’s finding of adoptability for substantial evidence. (In re Brian P. (2002) 99 Cal.App.4th 616, 623-624.)
The juvenile court set forth its findings regarding adoptability on the record, as follows: “The first question the court has to answer at this stage is whether or not it’s likely that the children will be adopted and whether or not they’re adoptable and the—I think that the evidence is overwhelming that they are. They are beautiful children. I think that it is absolutely astonishing from the date that they came into the system to today the amount of growth and progress that’s been made with these children over that period of time. [¶] To the extent that you had a point in time where G[.] was thought to, possibly, be autistic and now is able to... fully engage socially and not... have many of the delays that it appeared that he had, it’s just remarkable the progress these children have made over this period of time, over this short period of time, and there’s no reason to believe that that progress won’t continue. [¶] The delays... that currently exist do not appear to be, really, even exceptional anymore.... [I]t’s not unusual for children to have some speech delays at the age of four. That’s, certainly, not unusual. It’s not unusual for children to need an I.E.P. or some sort of assistance at school, and certainly, these children are going to have some of those challenges, but certainly, absolutely nothing to suggest these children are not adoptable. [¶] The evidence in the reports are that the adoptions unit has done a full analysis of the children and have concluded that they are adoptable. There’s no evidence that’s been presented to refute that and in fact, the evidence is to the contrary. We’ve got, apparently, numerous families that are interested in a sibling set just like this and one has been identified already, and that was from the agency finding out very recently that the other family, the other relative possibility wasn’t able to adopt, which means it’s not something I like to see in these cases where the agency does one thing at a time and doesn’t continue to work, but what is striking about this is how quickly the agency was able to identify an apparently appropriate family for these children. This isn’t something where they’re having difficulty identifying parents or [a] parent for the children.”
There was substantial evidence supporting the juvenile court’s finding that the children were adoptable. A child’s young age, good physical and emotional health, intellectual growth, and ability to develop interpersonal relationships are all attributes indicating adoptability. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1651.) All three of the children were reported to be happy, healthy, fun-loving, and adorable. Although they had exhibited developmental issues when they were brought into the dependency system, the evidence clearly showed that those issues were resolving rapidly. N. no longer needed services from the regional center. R.’s speech delay was not more significant than those of other children, and was expected to be handled through therapy by the local school district. G.’s delays, which were the most significant when the dependency process was instituted, had improved dramatically after being removed from mother and father’s care. Most significantly, his autistic-like qualities had resolved. The problems faced by the children were not as significant as those present in In re Asia L. (2003) 107 Cal.App.4th 498, 512, cited by father, in which the appellate court found the juvenile court’s finding that the minors were adoptable was not supported by substantial evidence, given the need for “specialized placement” which was then unavailable.
Potential families were available to adopt the children as a sibling set. The adoptive family being considered by SSA at the time of the permanency planning hearing had been matched by the adoptions matching department, and had been given information regarding the services the children were receiving. The social worker testified that “several” families were available as potential adoptive families for a sibling set with the children’s needs, but the one being pursued was the one that the department felt was the best match for the children. The social worker also testified that the reason the children were not in an adoptive home was because relative placement had been pursued until less than three weeks before the first scheduled permanency planning hearing date.
This case stands in stark contrast to In re Amelia S. (1991) 229 Cal.App.3d 1060, relied on by father. In that case, there were 10 dependent children, all with developmental, emotional, or physical problems. The size of the sibling set and the delays from which they suffered are so different that the case in inapposite. Moreover, we note that the holding of In re Amelia S. is suspect, after In re Zeth S. (2003) 31 Cal.4th 396, 405, because the In re Amelia S. court reached its conclusion based, in part, on a report prepared after parental rights had been terminated, which for the first time described the dependent children as “‘hard to place, ’” having “‘special needs, ’” and “‘suffer[ing] from social delays’” (In re Amelia L., supra, 229 Cal.App.3d at p. 1063).
Father argues the juvenile court erred by terminating parental rights rather than identifying adoption as the permanent placement goal and ordering efforts be made to locate an adoptive family, pursuant to section 366.26, subdivision (b)(4). That subdivision, however, applies only when the juvenile court has made a finding under section 366.26, subdivision (c)(3), which in turn only applies if the juvenile court finds the child is “difficult to place for adoption.” The juvenile court here did not make such a finding, so section 366.26, subdivision (b)(4) never came into play. (The court’s findings under section 366.26, subdivision (c)(3) would be reviewed for abuse of discretion. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1351.))
We conclude substantial evidence supported the juvenile court’s finding that the children were adoptable.
III.
Parent-child Benefit Exception
Section 366.26, subdivision (c)(1)(B)(i) allows the juvenile court to decline to terminate parental rights over an adoptable child if it finds “a compelling reason for determining that termination 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.” Father had the burden of proving both prongs of the parent-child benefit exception were satisfied. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527; In re L. Y. L. (2002) 101 Cal.App.4th 942, 949.) We review the record to determine whether there is substantial evidence supporting the juvenile court’s findings of fact. “Unless the undisputed facts established the existence of a beneficial parental or sibling relationship, a substantial evidence challenge to this component of the juvenile court’s determination cannot succeed.” (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) However, the determination whether the existence of a relationship between parent and child constitutes a compelling reason for determining termination of parental rights to be detrimental is reviewed for an abuse of discretion. (Id. at p. 1315.)
At the permanency planning hearing, the juvenile court found father’s visitation had been “more regular and consistent” since the disposition hearing. The court, however, found that father did not satisfy the second prong of the exception, which required a showing the children would benefit from continuing their relationships with him. The court stated: “[U]nfortunately, I think, because of the years prior and your lack of ability to truly maintain a relationship with [the children] up until now, the nature of that relationship is almost akin to, maybe, a relative caretaker. Not quite that because a relative caretaker wouldn’t need quite as much guidance as you’re getting during the visits, but it still—I think that the children clearly know that you’re related to them. They’re happy to see you. They have a good time with you, but this isn’t a parental relationship from what I can tell and there’s no evidence that really supports that, and in order for the court to proceed pursuant to [section 366.26, subdivision (c)(1)](B)([i]), I have to be able to have evidence that supports that and I don’t. I don’t have that, and so I’m not going to be able to find that that exception applies.”
In In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576, the appellate court stated: “In the context of the dependency scheme prescribed by the Legislature, we interpret the ‘benefit from continuing the [parent/child] relationship’ exception to mean the 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. 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. [¶] Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] 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. [¶] At the time the court makes its determination, the parent and child have been in the dependency process for 12 months or longer, during which time the nature and extent of the particular relationship should be apparent. Social workers, interim caretakers and health professionals will have observed the parent and child interact and provided information to the court. The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.”
Father cites In re S.B. (2008) 164 Cal.App.4th 289, and In re Amber M. (2002) 103 Cal.App.4th 681, in support of his argument. We do not find either case persuasive. In In re S.B., supra, 164 Cal.App.4th at pages 293, 298, the father had been the child’s primary caregiver for three years. The child was visibly upset when their visits ended (id. at pp. 294, 298), and a bonding study had been prepared and presented to the court, describing the relationship between the father and the child (id. at p. 295). In In re S.B., the appellate court found the parent maintained a parental relationship during the dependency period. (Id. at p. 300.) Here, at best, father’s parental relationship with the children started after the disposition hearing.
In In re Amber M., supra, 103 Cal.App.4th at pages 689-690, a bonding study, the child’s therapist, and the court appointed special advocate all provided evidence supporting the court’s finding that there was a “beneficial parental relationship that clearly outweighs the benefit of adoption.” No similar evidence has been presented in this case.
Substantial evidence supported the juvenile court’s finding that the parent child benefit exception to adoption did not apply.
Disposition
The orders are affirmed.
WE CONCUR: MOORE, ACTING P. J., ARONSON, J.