Opinion
A147329 A148019 A148172
01-05-2017
In re Elijah J. et al., Persons Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. K.M., Defendant and Appellant. In re Royce B. et al., Persons Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. L.B., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. J1400972, J1400973, J1400974, J1500425) (Contra Costa County Super. Ct. Nos. J1400973, J1400974, J1500425)
K.M., mother of Elijah J., Royce B., O.B. and Maurice B., has filed two appeals from the juvenile court's denials of two separate rounds of petitions she filed under Welfare and Institutions Code section 388. Each time, mother sought modifications of the court's orders terminating her reunification services regarding Elijah, Royce and O.B. and bypassing reunification services regarding Maurice B., asking that the court instead order more reunification services. Larry B., father of Royce B., O.B. and Maurice B., appeals from the court's termination of his parental rights on multiple grounds. The Contra Costa County Children & Family Services Bureau (Bureau) responds to each appeal and argues we should affirm the juvenile court's rulings.
All statutory references in this opinion are to the Welfare and Institutions Code.
Elijah's biological father resided in Texas and did not appear in the proceedings below.
We have consolidated these three appeals. We conclude the juvenile court did not err in denying mother's section 388 petitions because substantial evidence supports its conclusions that circumstances had not changed sufficiently and the children's best interests would best be served by denying the petitions. We conclude that, contrary to the Bureau's assertion, father has standing to argue that the Bureau and juvenile court did not give paternal relatives preferential placement consideration pursuant to section 361.3, but conclude father does not establish the merits of this claim. We also conclude the juvenile court did not err in rejecting father's argument that it should make a beneficial relationship exception to the termination of his parental rights. Accordingly, we affirm all the rulings appealed from.
PREVIOUS CASE BACKGROUND
We first draw from our summary of background facts in our unpublished opinion in K.M. v. Superior Court (Oct. 28, 2015, A145872) 2015 Cal. App. Unpub. LEXIS 7703 in which we outlined the events leading up to the Bureau's filing of a dependency petition and removal of the children from their parents' custody here, and summarized the jurisdiction and disposition proceedings:
In this previous case, we denied mother's and father's petitions for extraordinary writs challenging the juvenile court's termination of reunification services regarding Elijah, Royce and O.B., bypassing of reunification services regarding Maurice, and scheduling of a permanency planning hearing pursuant to section 366.26 for each child.
The Bureau incorporated our statement of facts in its brief, which mother and father did not challenge. We construe the Bureau's action as a request for judicial notice and grant it pursuant to Evidence Code section 452, subdivision (d).
In September 2014, Elijah, then six years old; mother, who was pregnant at the time; and father were living together with Royce and O.B., who were two years and one year old respectively, the sons of mother and father and the half-brothers of Elijah. The Bureau filed dependency petitions regarding Elijah, Royce and O.B. pursuant to section 300 after father reportedly punched Elijah in the face and mother and father had been involved in multiple incidents during the previous year and a half. In April 2015, after mother gave birth to Maurice, the Bureau filed a dependency petition regarding Maurice based on allegations like those it made in its first three petitions.
I.
Events Prior to September 2014
In the year and a half before September 2014, the Bureau and the police investigated multiple incidents. In March 2013, Elijah told a social worker that he had a mark on his neck from his father whipping him with a belt, that his mother did nothing about it, and that both father and mother whipped him. Father denied hitting Elijah and said Elijah had fallen. Father and mother were referred to "Path Two services."
In June 2013, mother tested positive for methamphetamine after giving birth to O.B. The Bureau offered mother and father voluntary family maintenance services, including for domestic violence and substance abuse. Mother participated briefly in an outpatient substance abuse treatment program, but missed several classes and was dropped from the program. Father said he was receiving Veteran Services Administration services, but refused to verify this. Neither parent agreed to drug testing. The Bureau closed the case in early 2014.
In July 2013, police, responding to 911 calls from mother and father, reported the two had a "heated . . . argument" with children present. Mother told police that father had threatened to hit her over the head with a small speaker. The police smelled alcohol on father, whose speech was slurred. A breathalyzer test indicated he had a 0.09 percent blood alcohol concentration. Mother admitted that she had smoked methamphetamine a week earlier.
In March 2014, father called the police because mother allegedly was verbally abusing him after drinking a bottle of liquor. The police reported mother "was under influence." Father said she had been discharged from a hospital a couple of days earlier after being diagnosed with paranoia and schizophrenia. The Bureau again referred the two to substance abuse services and treatment, and to an early intervention outreach specialist to help them find an inpatient facility.
In May 2014, the police responded to two calls from father, who said mother had struck him and, he believed, was using drugs. A court issued an emergency protective order that barred mother from contact with father and the children, and gave father temporary custody of the children. Mother violated that order in June 2014 by entering the family residence. The police were called and, when mother refused to leave the residence, they arrested her.
As of September 2014, father and mother each had a history of trouble with the law. Father had a series of criminal convictions between 1981 to 2014, including two for infliction of corporal injury on a spouse/cohabitant, one occurring in June 2014. Mother had a history of arrests from 2010 to 2014, including for battery of a spouse, assault with a deadly weapon and violation of a court order to prevent domestic violence.
II.
The Dependency Proceedings Regarding Elijah , Royce and O.B.
In its petitions regarding Elijah, Royce and O.B., the Bureau alleged under section 300, subdivision (b) that mother and father engaged in a violent relationship in the presence of their children, had substance abuse problems, and/or that mother failed to protect Elijah from father. For Royce and O.B., the Bureau alleged under section 300, subdivision (j) that their half-sibling, Elijah, had sustained injuries when father hit him.
A. Detention and Jurisdiction
In its September 2014 detention/jurisdiction report, the Bureau reported that on August 29, 2014, mother, father, Elijah, Royce and O.B. were watching television in the living room when mother went upstairs. Mother heard Elijah scream, ran to him and saw he had a swollen eye. Elijah said father " 'punched me.' " He was examined and was found to have facial bruising, a left orbital skull fracture and a chipped tooth. He said father hit him because he wanted to go upstairs to mother. He also said he had seen father " 'whoop' " Royce with a belt, slap mother when she tried to stop him, and drink " ' "lots of beers." ' "
Mother said she and father had been in a violent relationship for four years, but he previously had not abused the children. Her affect was withdrawn. She said she was diagnosed with depression and anxiety more than 10 years before, took depression medication and had not taken illegal substances for about a year. She was living with friends and was " 'done with [father] period.' "
Father was arrested for assaulting Elijah. He denied hitting anyone. He said Elijah " ' "fell on the floor" ' " and mother said, " ' "we gotcha now," ' " and called the police. The accusations were " 'a conspiracy' " to send him to jail so mother could smoke methamphetamine and drive his cars. His speech was slurred. He said he was a disabled veteran and had chronic pain for which he took oxycodone, methadone and morphine. He said mother had " 'a diagnosis of "paranoia, schizophrenia and long term meth use." ' " Mother obtained a protective order requiring him to stay away from her and the children.
Father denied the petition allegations against him. On September 24, 2014, the court sustained the allegations against father, finding that he placed his children in risk of serious harm by continuing to engage in a domestic violence relationship with mother, had a substance abuse problem that interfered with his ability to properly supervise and care for the children, and punched Elijah on August 29, 2014, thereby causing Elijah facial bruising, a left orbital skull fracture and a left chipped tooth.
On November 6, 2014, mother pled no contest to the petition allegations against her as amended. The court sustained allegations that she had placed Elijah, O.B. and Royce at risk of serious harm because she had continued to engage in a domestic violence relationship with father and, regarding Elijah, that this risk included because he sustained a facial injury during an altercation on August 29, 2014. The court dismissed the allegations about mother's substance abuse upon the condition that she agree to random drug testing for 90 days and enter treatment if she tested positive.
The court ordered asserted jurisdiction over the three children. Mother and father were referred for alcohol and drug testing, substance abuse treatment, parenting education and domestic violence counseling pending further proceedings.
B. The Bureau's Disposition Report
In January 2015, the Bureau reported the children were in a foster home in Stanislaus County. Father was in county jail for violating probation, child abuse and inflicting injury on a child.
The Bureau further reported that mother said she began using methamphetamine when she was about 18 years old, stopped, and started using again during her relationship with father. She said she had " 'a problem' " with alcohol, father became violent when drinking, and she sometimes was the aggressor in altercations with him, which sometimes occurred in the children's presence. Mother was visiting regularly with the children, said she desired to change her behaviors and had joined a domestic violence support group.
The Bureau was "very concerned" about the physical abuse Elijah had endured and the domestic violence between mother and father. Also, Elijah said that after the children were detained father " ' came to the residence and slapped the child in the face when the child asked him to leave.' " Father then " 'went to his truck, and returned with a canister of gasoline, poured gasoline on the porch and lit it on fire.' " The Bureau thought father " 'pose[d] as a severe safety risk to the children and mother,' " and that all precautions should be taken to protect the children from him in the future.
The Bureau had provided referrals for mother to services that addressed domestic violence and substance abuse. Although its social worker stressed that mother should enter a residential substance abuse treatment program as soon as possible, she did not do so. She said she had her own plan and was participating in a domestic violence support group.
The Bureau recommended that mother and father be offered reunification services and be allowed visitations with the children. It proposed that their case plans require completion of a domestic violence counseling program, individual mental health counseling, a parenting education class and an inpatient substance abuse treatment program, and that each participate in random drug/alcohol testing and a 12-step program.
C. The Disposition Hearing
By February 2015, father was out of custody. At a disposition hearing, he objected to the Bureau's proposed case plan requirement that he participate in an inpatient substance abuse treatment program as not justified by the evidence. The court ordered that he participate in an outpatient program and be required to enter an inpatient program if he tested positive or missed a required test, and that he have supervised weekly visitation with Royce and O.B. The court otherwise adopted the Bureau's recommendations.
II.
The Dependency Petition in Maurice's Case
In April 2015, the Bureau filed a section 300 petition regarding the newly born Maurice, alleging pursuant to section 300, subdivision (j) that father had physically abused Elijah and that mother and father had engaged in domestic violence in the presence of Maurice's siblings.
A. The Bureau's Detention/Jurisdiction Report
In its April 2015 detention/jurisdiction report, the Bureau reported that it had repeatedly given mother referrals for various inpatient substance abuse programs and for a substance abuse liaison who could assist her in getting into treatment more quickly, given her drug testing instructions and reviewed her case plan with her. The social worker emphasized to mother the importance of following her case plan and frequently had to explain the reason for Maurice's referral because mother did not appear to comprehend " 'her contribution towards the present outcome.' "
Mother reported that she was calling inpatient substance abuse treatment programs and that two were full; in April 2015, she said she was waitlisted for two programs. She was told that a program had a bed for her and that she could have had outpatient treatment until she entered an inpatient program.
Father told the Bureau that he had started domestic violence and parenting classes and was seeing a mental health provider. He said he was prescribed Valium and Hydrocodone for back pain and did not engage in any substance abuse.
Between December 2014 and March 2015, mother missed twelve drug tests, purportedly because of her phone and lack of transportation; she took seven with negative results. Father missed three tests and took six, testing positive twice for benzodiazepines.
The Bureau also reported that in March 2015, mother told the social worker in a phone call that she and father were in the process of having the restraining order reversed. The social worker heard father in the background and expressed concern that they were violating the order. They denied living together, but father said they had had the restraining order reversed so he could support her during the last month of her pregnancy.
B. Detention and Jurisdiction Hearings
At the detention hearing, the court ordered Maurice's detention and placement outside the home.
Mother entered an inpatient program on April 20, 2015. She was terminated from it on May 5, 2015, due to a positive test for methamphetamine. Father's counsel submitted proof that father had completed a parenting class, was enrolled in a domestic violence class and had begun individual counseling.
The court amended the petition to also allege under section 300, subdivision (b) that mother had a substance abuse problem that placed Maurice at substantial risk of harm. It found both parents had missed court-ordered drug tests, which, therefore, were presumed to have positive results, and " 'applaud[ed]' " father for participating in a domestic violence program, but found this was insufficient to address father's " 'very serious acts of violence.' " It sustained all the petition allegations.
III.
The Court's Denial of Reunification Services
A. The Bureau's June 2015 Disposition Report for Maurice
In its June 2015 disposition report, the Bureau reported that father missed a meeting at the Bureau to discuss his case plan goals and progress. Mother came for hers the next day accompanied by father, but he was not allowed to sit in on the meeting. Mother had a flat affect and gave one- or two-word answers to most questions. She said she was unemployed and looking for work.
The Bureau reported mother had not sought regular prenatal care until her last month of pregnancy with Maurice. Also, between November 29, 2014, and April 27, 2015, mother missed ten drug tests and nine had negative results. Father took four tests that were negative, tested positive for benzodiazepines and marijuana on multiple occasions and missed seven tests.
The Bureau asked the court to bypass reunification services for the parents and set a section 366.26 hearing because offering reunification services would not be in Maurice's best interest. The Bureau opined, " 'Both parents have a significant and chronic substance abuse problem. Despite many efforts to assist this family and to engage them in services, neither parent has demonstrated that they are willing and able to seek appropriate treatment and care to remedy their substance abuse problems.' "
In June 2015, the court continued the disposition hearing for a contested hearing. In a hearing held under seal, it found by a preponderance of the evidence that a guardian ad litem should be appointed for mother and did so at a subsequent hearing.
B. The Bureau's Six-Month Status Review Report for Elijah, Royce and O.B.
In its six-month status review report for Elijah, Royce and O.B., the Bureau reported that father was awaiting sentencing on the charges regarding his assault of Elijah, and that mother was still seeing him despite the protective order against him. Elijah told his foster parent that he had seen his mother " 'doing drugs, and she would get drunk and was really scary. She would hit people and, "she tried to cut [father], but [father] cut her." ' " Elijah said he had seen his mother on one occasion " 'hitting his Godmother over and over again' " and his father breaking lights and windows out of the family car when he became angry.
The Bureau reported that in May 2015, mother said, " 'I haven't done anything,' " when asked about her participation in services. Mother also had missed four required drug tests that month. She tested positive for marijuana when she entered the inpatient program in April 2015 and was discharged from it after testing positive for methamphetamine. She re-entered the program on June 12, 2015, and was doing well.
The Bureau stated that father had successfully completed a parenting class and was enrolled in a 52-week domestic violence class, but had missed four or five of nine classes. He had not submitted verification of his attendance at a 12-step meeting or his participation in any counseling, nor had he completed a substance abuse program. He had missed two drug tests in May and tested negative at two others that month.
The Bureau recommended that reunification services be terminated because the parents had not made significant progress on the issues that placed Elijah, Royce and O.B. at risk. Also, the Bureau wrote, " 'the children have extensive needs and have endured a significant amount of trauma as the result of the choices that the parents have made. The children need permanency, stability, and safety.' "
C. Declarations Filed for Mother and Father
On June 25, 2015, separate declarations were filed with the court in the names of mother and father, purportedly filed by mother's counsel. Mother's declaration stated that she " 'may have been a little premature' " in reporting to police in August 2014 that father had engaged in child abuse and complained of her treatment and the proceedings. Father declared, among other things, that the Bureau had made false allegations, there was no substantial evidence that the children were at risk, his case plan was unnecessary and his case was one " 'of false allegations and a babbling 6 year old who craves attention.' "
D. The Denial of Services and Scheduling of a Section 366.26 Hearing
In July 2015, the court held a combined six-month review hearing for Elijah, Royce, and O.B. and a disposition hearing for Maurice. Mother's counsel said she and mother had not previously seen the filed declarations and father's counsel said the same. Father said that he prepared and signed his, mother signed hers, and he filed them. After hearing more from father, the court found that mother's counsel did not prepare the declarations and that father signed mother's declaration.
Bureau social worker Catherine Gates, who worked on Elijah's, Royce's and O.B.'s cases, testified that she encouraged mother to enroll in a residential substance abuse program, gave her referrals and contact information for a substance abuse liaison who could help her get admitted into one and referred mother for general mental health counseling. Mother was no longer in the treatment program because she had broken rules. She had missed six to eight visits with the children since October 2014. She was sometimes appropriate during visits, but sometimes discussed the case and did not adhere to visit rules. She was no longer allowed to have phone calls with the children because she had discussed the case with them and tried to learn the location of the foster home.
Gates testified that she reviewed his case plan with father after his release from jail, provided him with referrals for parenting classes, individual mental health counseling, domestic violence education and support, anger management, random drug testing, transportation and substance abuse treatment. She spoke to him by phone periodically and, when he missed his May 2015 meeting and came to the office with mother the next day, she tried to also meet with him, but could not find him.
Father testified that since April 2015 he was seeing a therapist once or twice a month through the Department of Veterans Affairs and submitted evidence of doing so. He said they discussed anger management, domestic violence and self-control, but these were not problems for him.
Social worker Nadine Hendricks testified that Maurice's doctor reported that Maurice showed signs of fetal alcohol syndrome. She had not noticed a problem with mother's cognitive ability.
The court denied the parents' requests for more services because neither had meaningfully participated in the case plan. It stated: " '[T]he best evidence of [father's] complete and utter failure to address the issues that brought this family before the Court are his own words, both in his declaration and the one that he forged . . . . [¶] I'm not sure what father has been doing with his time, but it certainly hasn't been engaging in any services in a meaningful way to acknowledge that it is his violence which is one of the primary issues that brought this matter before the Court. [¶] He has four prior criminal convictions all relating to his acts of violence, and in this particular case, he punched a little child in the face so hard that he fractured a bone in that child's face. . . . [¶] . . . He hasn't done anything meaningful whatsoever to address these issues, and apparently he believes he has no issues.' "
As for mother, the court said, " 'it quite frankly is rather tragic that Mom has delayed for so long getting into services. It's been clear from the beginning that she suffers from a rather significant substance abuse issue, and when you look into the underlying history . . . this family has been offered Path Two services, voluntary family maintenance services, and now full-on family reunification services. [¶] And unfortunately, neither parent, including Mom, who I believe loves her children but I also believe she's in a state of paralysis as it relates to dealing with her substance abuse issues and mental health concerns, neither has done anything.' "
The court terminated reunification services for Elijah, Royce and O.B., denied reunification services for Maurice and set a section 366.26 hearing for November 9, 2015, in all four cases. Mother and father subsequently filed their writ petitions, which we denied in October 2015.
PRESENT CASE BACKGROUND
In January 2015, Elijah, Royce and O.B. were placed in a foster home in Contra Costa County. Shortly after his birth, Maurice was placed in this same home as well. As we will detail further in the discussion section below, now and again the Bureau reported to the court that unnamed relatives expressed an interest in having some or all of the children placed with them.
I.
The Bureau's November 2015 Section 366 .26 Report
In preparation for the section 366.26 hearing, the Bureau reported that all four children remained placed in the Contra Costa County foster home. Elijah, then seven years old, was healthy and developmentally on target, but had problems with lying and aggressive behaviors at school, and had displayed "sexualized" behaviors in the past. Royce, then three years old, suffered from eczema, displayed speech problems, was aggressive and had night terrors and tantrums. O.B., then two years old, suffered from asthma and allergies, had developmental delays was aggressive and had tantrums. Maurice, then five months old, also suffered from asthma but appeared to be developmentally on target. They all appeared to be attached to the caregiver and identified her as their mother. Elijah stated that he wanted to continue living with her if he could not be with his mother. Their caregiver expressed an interest in adopting them all.
Mother and father visited the children on a reduced schedule after the court terminated services. Mother's visits were enjoyable for the children, but she missed several visits and improperly gave Elijah her contact information. Father missed two visits in June 2015. He generally arrived on time, but did not adequately supervise Royce and O.B., whether because he was lazy or overwhelmed with caring for an infant and two toddlers.
The children's foster caregiver reported the children exhibited out of control behavior when they returned from visits with their parents and Elijah appeared depressed after visits with his mother. Elijah did not want to go home to her if father remained in her life. The children referred to their caregiver as "Mama."
The Bureau stated that "[t]he children identify the caregiver as their mother and appear to be thriving in her care," and that the caregiver "could be a wonderful adoptive match for the children." However, it recommended a 180-day continuance of the section 366.26 hearing so the children could continue to receive the most extensive therapeutic support services possible and the Bureau could "assess new family applicants."
II.
Mother's October 2015 Section 388 Petitions
On October 28, 2015, mother petitioned under section 388 for modification of the court's orders to reinstate her reunification services for Elijah, Royce and O.B. and provide her reunification services for Maurice, all based on her recent participation in various programs. The Bureau filed a memorandum with the court in which it opposed mother's petitions.
III.
The Juvenile Court's December 2015 Hearing and Rulings
In December 2015, the court heard evidence and argument regarding the section 388 and section 366.26 issues. It denied mother's section 388 petitions because she had "demonstrated a complete lack of capacity to protect the children or quite frankly to protect herself in her presentation here in court and through the history of these proceedings." It found there were at best "changing" but not "chang[ed]" circumstances and that regardless, it would not promote the best interest of these children to offer further services to mother. Mother filed a timely notice of appeal regarding these denials.
The court also denied father's own section 388 petitions regarding Royce, O.B. and Maurice filed in July 2015 and in March 2016. Father does not challenge these rulings and so we do not discuss their merits further.
Regarding the section 366.26 issues, the Bureau requested a 180-day continuance, to which counsel for the children objected. Counsel for mother supported it. Counsel for father objected to the termination of father's parental rights and the recommendation that the long-term plan be adoption. She also stated that father "continues to request that the [Bureau] consider the relative applications that have been submitted from his family's behalf," and stated that the Bureau had indicated that the reason it "would not consider placing the children is because they don't want to separate the sibling group." The court ordered a continuance until March 24, 2016.
IV.
Mother's March 2016 Section 388 Petitions
In March 2016, mother again petitioned under section 388 for modification of the court's orders to reinstate her reunification services for Elijah, Royce and O.B. and provide her reunification services for Maurice, based on her months of sobriety and ongoing participation in various programs. The Bureau opposed these petitions. The court again scheduled a hearing to consider both the section 388 and section 366.26 issues at the same time.
V.
The Bureau's March 2016 Section 366 .26 Addendum Report
In a March 2016 addendum to its section 366.26 report, the Bureau reported that Elijah was on ADHD medication and was developmentally and academically on target; O.B. and Maurice were being treated for moderate to severe asthma; Royce had speech delays; O.B. was being assessed for autism; and Maurice was developmentally on target. Elijah, Royce and O.B. were receiving therapeutic behavior services. Royce, O.B. and Maurice were all reported to be "very attached" to their foster caregiver.
As allowed, mother was visiting once a month for the most part, and the children enjoyed her visits. Father also was visiting once a month, but "did not do a good job of setting limits with the boys," had to be reminded to change diapers, and did not have the children clean up the mess in the room before leaving.
The Bureau reported that the foster caregiver continued to have a strong interest in adopting the children and was working to complete her adoptive home study. The Bureau continued to recommend termination of parental rights and the setting of a permanent plan of adoption.
At the combined hearing in March 2016, mother testified that, with the help of her aunt, who also testified, she was participating in programs and had maintained her sobriety for months. After hearing the evidence and argument, the court, while it acknowledged that mother had made some progress, denied her petitions because, it concluded, mother did not yet recognize the role of domestic violence and her substance abuse on her children and, therefore, "really has not demonstrated that she understands why her children are here." The court also concluded the children were in a "safe, peaceful, loving, supportive home" and that it was not in their best interests to grant mother more services.
As for the section 366.26 issues, the court found that neither parent qualified for a "beneficial relationship" exception to termination of their parental rights and the setting of adoption as a permanent plan. The exception did not apply to Maurice, who had spent most of his life outside of his parents' care. It did not apply to Royce and O.B. because the benefits of the parental relationships with them did not outweigh the benefit either would receive from adoption. As for Elijah, the court found that he had "suffered the most in terms of trauma" and had made it known that he was "terrified of his step father." Although Elijah had spent the majority of his life in his mother's custody, the court concluded that, given his particular needs and the trauma he had been through, mother did not qualify for the exception, particularly because Elijah "is getting all the support and love he finally needs and deserves in this adoption home" and expressed a preference to live there.
The court terminated mother's and father's parental rights and selected adoption as the children's permanent plan. Mother and father filed timely notices of appeal from the court's orders terminating their parental rights.
Mother urges that we construe her notice of appeal liberally so as to construe it as also appealing from the juvenile court's denials of her March 2016 section 388 petitions, issued at the same time as the court's termination orders. We agree that it is appropriate in this case to do so. (See, e.g., In re Madison W. (2006) 141 Cal.App.4th 1447, 1451 [liberally construing a parent's notice of appeal from an order terminating parental rights to encompass the denial of the parent's section 388 petition]; In re Daniel Z. (1992) 10 Cal.App.4th 1009, 1017 [liberally construing a notice of appeal referring to a jurisdictional finding only to also encompass the dispositional order issued on the same date].)
DISCUSSION
I.
Father Has Not Established Any Section 361 .3 Relative Placement Error.
Father, citing section 361.3, first argues that the Bureau did not comply with its statutory obligation to conduct home studies regarding multiple paternal relatives who sought placement of the children and, as a result, the juvenile court never properly applied the statutory relative placement preference. He contends the court at a minimum should have held hearings to determine relative placement issues rather than delegate them to the Bureau entirely. This error, he contends, requires reversal of the court's termination of his parental rights because proper placement of his children with a relative could have materially impacted the court's section 366.26 rulings. The Bureau responds that father does not have the standing to raise this claim and, regardless, the claim is meritless and should be summarily denied.
We conclude father has standing. However, he does not meet his burden as appellant of affirmatively establishing error based on a record before us. Therefore, we reject his relative placement claim.
A. Preferential Consideration of Relative Placements Under Section 361.3
Section 361.3 provides in relevant part, "In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative . . . ." (§ 361.3, subd. (a).) " 'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (Id., subd. (c)(1).) " 'Relative' means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words 'great,' 'great-great,' or 'grand,' or the spouse of any of these persons even if the marriage was terminated by death or dissolution." (Id., subd. (c)(2).) However, only "an adult who is a grandparent, aunt, uncle, or sibling" is entitled to preferential consideration. (Ibid.)
Section 361.3 calls for the juvenile court to order the parent to identify any maternal or paternal relatives of the child and the county social worker to "initially contact the relatives given preferential consideration for placement to determine if they desire the child to be placed with them," assess those desiring placement according to certain non-exclusive factors, and document these efforts in the social study prepared for the court. (§ 361.3, subd. (a)(8)(B).) If the court does not place the child with a relative who has been considered for placement, it must state for the record the reasons placement was denied. (Id., subd. (e).)
The social worker and the court are required to consider the child's best interests, including: special needs; the wishes of the parent and the child; certain statutory criteria regarding relative placement; placement of siblings and half-siblings in the same home; the character of the relative and others living in the relative's home; the nature and duration of the relative's relationship with the child and the relative's desire to care for and provide legal permanency for the child if reunification is unsuccessful; and the ability of the relative to provide a safe environment, care for and protect the child, facilitate reunification efforts and implementation of the case plan, and provide legal permanence for the child if reunification fails. (§ 361.3, subds. (a)(1)-(8).)
The social worker's "investigation shall not be construed as good cause for continuance of the dispositional hearing." (§ 361.3, subd. (a)(8)(B).) Further, after the hearing, whenever a new placement of the child "must be made," those relatives not found to be unsuitable and who will fulfill the child's reunification or permanent plan requirements are to be considered again for relative placement. (Id., subd. (d).)
As is apparent from section 361.3's terms, not all relatives qualify for preferential placement consideration. A cousin, for example, does not qualify. (In re Luke L. (1996) 44 Cal.App.4th 670, 680.) Further, section 361.3 requires only that qualifying relatives be considered at the dispositional stage and, thereafter, when a new placement of the child must be made. (§ 361.3, subds. (a), (d).)
B. Analysis
1. Standing
The Bureau argues that we need not address the merits of father's relative placement argument because he does not have standing to raise the issue on appeal. The Bureau contends father, because he is not an aggrieved party relative, does not have a legally cognizable interest that is injuriously affected by the juvenile court's decision. We disagree.
The Bureau correctly points out that a party must be aggrieved in order to maintain an appeal of a court ruling. (See In re Carissa G. (1999) 76 Cal.App.4th 731, 734 ["as in any appeal the parent must also establish he or she is a 'party aggrieved' to obtain a review of a ruling on its merits"].) The Bureau is also correct that an "aggrieved person" "is one whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision." (In re K.C. (2011) 52 Cal.4th 231, 236 (K.C.).)
However, the Bureau is wrong that father does not, at least theoretically, have such an interest. The Bureau relies primarily on K.C., supra, 52 Cal.4th 231. There, a father on appeal challenged the juvenile court's denial of a section 388 petition, brought by the paternal grandparents to have the father's child, K.C., placed with them after the social service agency denied their placement request. (K.C., at p. 235.) The juvenile court denied the grandparents' petition at the same time that it terminated the father's parental rights. (Ibid.) The father had not contested the court's termination of his parental rights nor raised any issues about it on appeal. (Ibid.) Nonetheless, he argued that reversal of the juvenile court's denial of the grandparents' petition required reversal of the court's termination of his parental rights too in order to restore the parties to their prior positions. (Ibid.)
The K.C. court, after reviewing relevant case law, concluded a parent only had standing in an appeal from a judgment terminating parental rights to challenge an order concerning the dependent child's placement "if the placement order's reversal advances the parent's argument against terminating parental rights." (K.C., supra, 52 Cal.4th at p. 238.) It held that this rule did not support the father's standing claim because he did not contest the termination of his parental rights below. By acquiescing in this termination, he relinquished the only interest in K.C. that could render him aggrieved by the juvenile court's order declining to place the child with grandparents. (Ibid.)
The Bureau's reliance on K.C. is unpersuasive because father's circumstances here differ materially from those discussed in K.C. Father did argue against the termination of his parental rights; as we have mentioned, his counsel specifically objected at the December 2015 hearing regarding section 366.26 issues to the termination of father's parental rights and to the Bureau's recommendation of adoption as the long-term plan. At the resumed section 366.26 hearing in March 2016, she continued to oppose termination of father's parental rights.
As indicated by the discussion in In re H.G. (2006) 146 Cal.App.4th 1 (H.G.), a case cited by father and discussed in K.C., supra, 52 Cal.4th at pp. 237-238, a reversal of the juvenile court's disposition order placing father's children in the foster home in Contra Costa County would advance his argument against the termination of his parental rights. The parents of H.G. appealed from a juvenile court order applying section 361.3's criteria and removing H.G. from the home of her paternal grandparents (who were allowing the father to have access to H.G.) as petitioned for by the social service agency under section 387. (H.G., at p. 4.) The parents had contested the termination of their parental rights in juvenile court and both appealed from the juvenile court's decision to terminate them. (Id. at pp. 4, 8 [referring to a "contested hearing under section 366.26"].)
The H.G. court rejected the social service agency's argument that the parents did not have standing to challenge the juvenile court's removal of H.G. from the grandparents' care. The court noted that it must "liberally construe the issue of standing and resolve doubts in favor of the right to appeal," that at the time of the court's ruling the parent's parental rights had not yet been terminated and that, "[a]lthough parent-child reunification was no longer a goal of the dependency proceedings, the parents retained a fundamental interest in H.G.'s companionship, custody, management and care." (H.G., supra, 146 Cal.App.4th at p. 9.) Further, the juvenile court's placement decision had "the potential to alter the court's determination of the child's best interests and appropriate permanency plan for that child, and thus may affect the parent's interest in his or her legal status with respect to the child." (Id. at p. 10.) Among other things, the court cited section 366.26, subdivision (c)(1)(D). (H.G., at p. 11.) At the time, this subdivision provided that a court should decline to terminate parental rights if termination would be particularly detrimental to a child living with a relative who was unable or unwilling to adopt the child because of exceptional circumstances, but who was willing and capable of taking care of the child, and removal would be detrimental to the child's emotional well-being. (Stats. 2005, ch. 626 § 1.)
H.G.'s analysis applies with equal force here. Father contested termination of his parental rights below. If his children were placed with a relative under section 361.3, it could have advanced his argument against this termination, such as under section 366.26, subdivision (c)(1)(A), a successor to former section 366.26, subdivision (c)(1)(D).
Section 366.26, subdivision (c)(1)(A) provides that a court is not required to terminate parental rights if "[t]he child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child."
Liberally construing the rules on standing, we conclude father has standing to make his relative placement argument to this court.
Even with standing, father has arguably forfeited his section 361.3 relative placement claim by his failure to first raise the issue below at the disposition stage or challenge the juvenile court's disposition order, an appealable order. (See, e.g., In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150 [an unappealed disposition order "is final and binding and may not be attacked on an appeal from a later appealable order"]; In re Casey D. (1999) 70 Cal.App.4th 38, 53-54 [relative placement is an "intensely factual issue" that may not be raised for the first time on appeal].) Because the Bureau does not raise forfeiture, we do not address it further.
2. Father Does Not Meet His Burden of Affirmatively Showing Error.
Although father has standing, we are not persuaded by the merits of father's relative placement argument. He does not establish that the Bureau or the juvenile court failed to perform their statutory duties under section 361.3.
The Bureau first reported in its September 2014 detention and jurisdiction report regarding Elijah, O.B. and Royce that father was asked if there were any paternal family members the children could be placed with and he said there were not. In its December 2014 disposition report regarding the three children, the Bureau stated it had completed certain "relative assessments" and stated in relevant part, "Additionally, Mr. Brown's family has come forward requesting placement of the children and the Bureau is currently assessing these relatives." Next, in its June 2015 disposition report regarding Maurice, the Bureau stated, "Another relative has recently come to the attention of the Bureau and the Bureau will be exploring them as a potential option for placement of this child and/or the child's siblings."
These references to "family" and "relative" tell nothing about these relatives or the nature of their relationship to the children. It is possible, for example, that they were cousins, who do not qualify for preferential consideration under section 361.3. (In re Luke L., supra, 44 Cal.App.4th at p. 680.) Therefore, any claim by father that the Bureau or court erred in the consideration of these relatives is unpersuasive. (See In re D.W. (2011) 193 Cal.App.4th 413, 417 [noting that "[a]s the appellant, father has the duty to present error affirmatively by an adequate record; error is never presumed"]; In re S.C. (2006) 138 Cal.App.4th 396, 408 ["The juvenile court's judgment is presumed to be correct, and it is appellant's burden to affirmatively show error" supported by "meaningful legal analysis" and "citations to facts in the record that support the claim of error"].)
Next, at the July 2015 combined six-month review hearing for Elijah, Royce, and O.B. and disposition hearing for Maurice, father's counsel was examining a Bureau social worker when the following exchange occurred:
"Q. Did any of Mr. Brown's family submit a request to be considered for placement?
"A. Yes.
"Q. Which family members?
"A. So there's a relative in Kansas.
"Q. Is there anyone else?
"A. I believe there's a sister also.
"THE COURT: What's the relevance of that to today's hearing?
"[FATHER'S COUNSEL]: Goes to services provided to the father and the children of considering relative placements.
"THE COURT: I don't believe that's part of reasonable services. So without some authority to the contrary, the Court is going to sustain its objection." Counsel then moved on to another subject in questioning the social worker.
The social worker's brief references to father's relatives are insufficient to establish any section 361.3 error. Father's "relative" in Kansas was not necessarily a relative qualified for preferential treatment under section 361.3, and the social worker's "belief" that a sister was interested is too uncertain to merit further consideration. Moreover, the record does not establish that these relatives expressed an interest in having Elijah, Royce and O.B. placed with them prior to the court's disposition ruling regarding them. As we have indicated, section 361.3 would not apply to a post-disposition request for children who were not otherwise required to be moved.
Father also argues that the juvenile court's sustaining of its own objection to this line of question interfered with his pursuit of the relative placement issue. We do not agree for several reasons. First, father does not establish the juvenile court's sustaining of its objection was incorrect as a response to counsel's assertion that the information was relevant to a "reasonable services" issue. Relative placement consideration is not a part of "services" provided to parents or children, but a separate and independent inquiry by the social service agency and the court.
Second, regardless of the merits of the court's ruling, it was limited to the relevance of a particular line of questioning with the social worker only. It did not prevent father or any qualified paternal relative from pursuing a relative placement issue at the hearing or elsewhere. Father, for example, could have presented his own or a relative's testimony, and his counsel could have argued that disposition should not be determined before consideration of qualified relative placement requests was completed. Qualified relatives could have thereafter petitioned the court for placement consideration. (See In re R.T. (2015) 232 Cal.App.4th 1284 [relatives filed a section 388 petition].) None of this occurred.
Father points out that a qualified relative's petition is not essential to maintain a claim of section 361.3 error. Indeed, the court in In re Isabella G. (2016) 246 Cal.App.4th 708 recently rejected the argument that grandparents had tardily filed a section 388 petition after termination of services because "when a relative requests placement of the child prior to the dispositional hearing, and the Agency does not timely complete a relative home assessment as required by law, the relative . . . is entitled to a hearing under section 361.3 without having to file a section 388 petition." (Isabella G., at p. 712.) However, there is no indication in the record that the Bureau did not timely complete a relative home assessment—as father concedes, whether the Bureau did so pursuant to various relative requests "is unknown." Father's contention that the court should have at least held a section 361.3 hearing fails in the absence of such proof in the record. Again, on appeal, the burden is on father to establish error. (See In re D.W., supra, 193 Cal.App.4th at p. 417; In re S.C., supra, 138 Cal.App.4th at p. 408.)
This is particularly significant when at least some of father's relatives lived "out of state." Any placement of the children with an out-of-state relative required the cooperation and approval of the other state. (Fam. Code, § 7900 et seq. [regarding California's adoption of the Interstate Compact on Placement of Children].)
Third, father's counsel's reference to "services" indicates counsel was not pursuing a relative placement issue pursuant to section 361.3, which is confirmed by father's failure to identify any effort by his counsel to otherwise raise the issue at the hearing. Therefore, assuming the juvenile court's limited evidentiary ruling was error, it was harmless to father's relative placement claim. (See, e.g., People v. Thornton (2007) 41 Cal.4th 391, 454-454 [finding any error in sustaining an objection to a single question was harmless].)
Next, father argues error because "[w]e know that paternal relatives persisted in seeking placement of the boys." Father points out that in its section 366.26 report dated November 9, 2015, the Bureau reported that "[r]ecently, after the Court terminated the parent's services . . . , the Bureau received two relative assessment applications from what the Bureau understands to be [father's] relatives from out of state." It requested a 180-day continuance of the section 366.26 hearing in part so the Bureau could "assess new family applicants." Furthermore, the Bureau reported in its November 2015 memorandum regarding mother's petition for the reinstatement of reunification services, "Recently, paternal relatives have come forward from out of state requesting placement of all four children. On or about October 7, 2015, the [Interstate Compact on the Placement of Children] requests were submitted to Tennessee and Missouri." This too is unpersuasive. The relationship of these relatives to the children again is not identified and in any event, as we have discussed, the Bureau is not obligated under section 361.3 to investigate relatives who express a post-disposition interest in children already placed if these children do not need to be moved. Therefore, these Bureau references do not establish section 361.3 error either.
II.
The Juvenile Court Properly Denied Mother's Section 388 Petitions.
Mother first argues that the juvenile court abused its discretion when it denied her March 2016 section 388 petitions for further reunification services because she showed a change in circumstances sufficient to require the granting of these petitions. We disagree.
Mother focuses her argument on the court's denial of her March 2016 petitions, which is the subject of her appeal in case number A147329. Although she also appealed from the court's denial of her October 2015 petitions in case number A148029, she does not try to show that ruling was in error. To the extent her arguments might be intended to extend to those petitions as well, we reject them for the same reasons that we reject her arguments about her March 2016 petitions.
Section 388 states in relevant part that a parent may upon a "change of circumstances or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made." (§ 388, subd. (a).) "The juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstances or new evidence and that the modification would promote the best interests of the child." (In re Aaliyah (2006) 136 Cal.App.4th 437, 446.)
"Whether an order should be modified rests within the sound discretion of the juvenile court, and its decision will not be disturbed on appeal absent a clear abuse of discretion." (In re Aaliyah, supra, 136 Cal.App.4th at p. 447.) A court abuses its discretion when its ruling " ' "exceed[s] the bounds of reason" ' "; in other words, when it is " ' "arbitrary, capricious, or patently absurd." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Thus, to prevail on appeal, mother must show that the juvenile court abused its discretion both in finding circumstances had not changed sufficiently and that a modification of its orders was not in the children's best interests. At the combined hearing in March 2016, mother testified that, with the help of her aunt (who also testified), she was participating in parenting, domestic violence and substance abuse treatment programs, had maintained her sobriety for over seven months and had been employed at the same job for the past six months. She said she had engaged in domestic violence with father and was not living with him; however, when asked if she wanted to "get back together" with him, she said she had not thought about it, and later indicated she was not sure if she would.
Mother also testified that she did not yet have a sponsor to help her with her sobriety. She still did not have an individual therapist, contending that she was waiting for an appointment with a doctor who "[f]or some unseen reason . . . hasn't been in the office," and she was not "really sure" when she would be able to see him. She also had no proof that she was attending Alcoholics Anonymous/Narcotics Anonymous meetings daily for 90 days, as had been previously recommended to her by a counsellor.
Mother thought her children were affected by violence in the home "[p]robably because when I was shut down and not talk about things with them like I should." She also believed her home with father was a safe environment for the children and that they were "well taken care of." She did not think her children had witnessed violence in the home beyond "a couple of arguments." Asked about Elijah's existing behavioral problems, she said she thought they were because "he wants to come home."
The court acknowledged that mother was "work[ing] really hard on trying to find sobriety," expressed compassion for her and what she had been through, and found mother had established changing circumstances and even some changed circumstances. However, it concluded that mother "really has not demonstrated that she understands why her children are here." "[W]hen it comes to recognizing the domestic violence that existed, the impact of that on her children, her use of substances and how that related to the domestic violence and the impact on the children, it's really tragic. Mom doesn't seem to get it." Also, the children were "in a very safe, peaceful, loving, supportive home where they're getting the services that they truly, truly need." The court concluded that extending the proceedings and granting mother more services was not in the children's best interests and denied mother's petitions.
A. Changed Circumstances
Mother extensively relitigates the evidence to argue that the juvenile court should have granted her March 2016 section 388 petitions. Regarding changed circumstances, she points out that at the March 2016 hearing, she presented evidence that she had completed substance abuse treatment, parenting and domestic violence programs, been clean and sober for months, was attending Narcotics Anonymous/Alcoholics Anonymous meetings and was planning to begin individual therapy. Therefore, she asserts, she was "essentially in compliance with her case plan." She emphasizes that she testified that she recognized she was a drug addict and had obtained the resources and support to maintain her sobriety, learned a lot from the parenting program, found the domestic violence program helpful, and had ended her relationship with father and had no intention of resuming it. She was enrolled in a school to become a phlebotomist and had obtained a residence. "Therefore," she contends, "the juvenile court abused its discretion when it found Mother had failed to establish changed circumstances."
Mother's argument is not persuasive because it ignores the substantial evidence that supported the court's conclusion that not all of the relevant circumstances had changed. Although mother had participated in domestic violence counseling and substance abuse treatment, she was reluctant to acknowledge that the domestic violence between her and father affected her children, and indicated she was open to becoming involved again with father, despite his domestic violence and repeated denials that he hit Elijah. Further, mother had not engaged in all of the services that had been recommended to her. She had no proof that she had attended substance abuse treatment meetings daily as recommended, nor had she yet seen an individual therapist. The court was within its discretion to conclude that mother had not sufficiently established changed circumstances.
B. Best Interests of the Children
Whether the granting of a petition is in a child's best interest "is determined by the seriousness of the reason for the dependency and the reason the problem was not overcome; the relative strength of the parent-child and child-caretaker bonds and the length of time the child has been in the system; and the nature of the change in circumstances, the ease by which the change could be achieved, and the reason the change was not made sooner." (In re Aaliyah, supra, 136 Cal.App.4th at pp. 446-447.)
Further, "[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 re Stephanie M., supra, 7 Cal.4th at p. 317.)
Mother argues it was in the children's best interests to grant her petitions because she has acknowledged and taken steps to solve the serious reasons for the dependency; she had a sufficiently strong bond with Elijah, O.B. and Royce and was able to provide them with stability so as to override the benefits of their admittedly positive bonds with their foster caregiver; and it was in the children's interest to keep their existing family intact.
These arguments ignore the substantial evidence upon which the juvenile court could have reasonably relied to conclude otherwise. Mother's attitude about domestic violence and her continued reluctance to engage in programming as recommended remained problematic. The court could reasonably conclude that her failure to acknowledge the full impact of domestic violence on her children, to enter into the daily substance abuse treatment recommended to her and to arrange individual therapy showed the chances she would successfully grapple with the serious problems that led to the dependency was uncertain. On the other hand, the children were together and strongly attached to, and well provided for by, their foster caregiver (and Maurice had no equivalent bond with mother, having been removed from her custody shortly after his birth), who had an interest in ultimately adopting them. All reports were that she was well-qualified to provide them with the stability and permanence that they badly needed in light of the behavioral problems and other issues that were emerging among them. The court did not abuse its discretion in concluding that granting mother's section 388 petitions was not in the children's best interests.
III.
Father's Beneficial-Relationship Exception Claim Lacks Merit.
Father also contends the juvenile court erred in not applying the "beneficial relationship" exception to the termination of his parental rights regarding Royce, O.B. and Maurice. We disagree.
The juvenile court also rejected that the beneficial relationship exception applied to mother, who does not challenge this ruling on appeal. --------
A. The Law Regarding the Beneficial Relationship Exception
After the juvenile court terminates reunification services, the focus of that court shifts to the needs of dependent children for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Under section 366.26, the court, in order to meet these needs, may order the child be placed for adoption, in guardianship or in long-term foster care. (§ 366.26, subd. (b); In re Autumn H. (1994) 27 Cal.App.4th 567, 573.)
"If the child is adoptable, there is a strong preference for adoption over the other alternatives." (In re J.C. (2014) 226 Cal.App.4th 503, 528.) Once the court determines the child is adoptable, it must order termination of parental rights unless a parent seeking a less restrictive plan shows termination would be detrimental under one of the exceptions listed in section 366.26, subdivision (c)(1)(B). (§ 366.26, subd. (c)(1)(B); In re J.C., at p. 528.)
These exceptions include the beneficial relationship exception. That is, the court makes an exception 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." (§ 366.26, subd. (c)(1)(B)(i).) However, "[i]t is not enough to show that the parent and child have a friendly and loving relationship," since a child will always receive some incidental benefit from interaction with a natural parent. (In re J.C., supra, 226 Cal.App.4th at p. 529.) In order to establish the requisite benefit, a parent must show that " ' "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." ' " (In re Anthony B. (2015) 239 Cal.App.4th 389, 396-397.) The court should examine factors which affect the parent-child bond, such as the age of the child, the amount of time the child spent in the parent's custody, the quality of interaction between the two, and the child's particular needs. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
Appellate courts have differed slightly in their articulation of the standard of review we are to apply to an order regarding section 366.26, subdivision (c)(1), such as regarding a beneficial-relationship exception claim. Some courts have stated it as a review for substantial evidence (see, e.g., In re G.B. (2014) 227 Cal.App.4th 1147, 1166), others as a hybrid substantial evidence/abuse of discretion review (see, e.g., In re Bailey (2010) 189 Cal.App.4th 1308, 1314-1315), and others, such as Division Three of this court as an abuse of discretion review (see In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351). We need not sort through these minor differences because our conclusion is the same under each standard: the juvenile court did not err in rejecting father's beneficial relationship exception claim.
B. The Relevant Proceedings Below
At the March 2016 combined section 388 and section 366.26 hearing, father testified. He said he completed a parenting program in April 2015, received individual counselling once a month for a time through the Veteran's Administration, completed 90 hours of drug treatment in late November 2015 through the Veteran's Administration, completed a domestic violence class and regularly visited with his children. He objected to Bureau reports criticizing his and the children's conduct during his visits, contending the criticisms were based on inaccurate accounts and testifying that he had loving interactions with his children. He also testified about photographs of him with his children that he had submitted to the court to show he had good relationships with the children. He said he was living in a home where his children could live and that they would be safe in his care, that he had never presented himself in "an ugly manner" to the children, and that he would be able to care for all of their needs.
Father denied Elijah's allegation that he once took gasoline out of his truck and poured it on the residence porch. He denied striking Elijah in September 2014 in the incident that led to the Bureau's section 300 petitions regarding all of the children. Asked specifically if he hit Elijah in the face causing injury, father responded, "I'm too strong for that. If I hit Elijah in his face, I would have broke his cheek bone, busted his lip or knocked his eye out. . . . I'm way too strong for his little face to hit him without breaking his whole face." He contended that Elijah sustained his injuries in a fall, that at the time he inspected Elijah and saw no facial injuries, that "every time [Elijah] went to the park he came home with a chipped tooth," and that he, father, only left the home to run an errand after Elijah's fall. He also denied ever hitting Elijah.
Asked about domestic violence with mother, father admitted only to "[v]erbal domestic violence" and denied the children witnessed this verbal violence. He said there was "[n]ot really" any physical violence between him and mother, and that "the domestic violence started when the voluntary family maintenance plan came in" and he tried to make it clear to mother that she needed to stop what she was doing or the children would be taken away.
The juvenile court found that father had maintained regular visitation and contact with his children. It then turned to the "beneficial interest" prong of the beneficial relationship exception. The court saw no benefit regarding father's relationship with Maurice because the child was not even one year old and was never really in his parents' custody. That, along with "where these parents are today and their testimony before the Court," including what we have summarized above, led the court to conclude that father did not establish the exception applied to his relationship with Maurice.
The court further concluded regarding O.B. and Royce that both were "quite young" when they were removed from their parents' care—a little more than one and two years old respectively—and had been out of the care of their parents for a long period of time. Taking into account the factors of age, the relationship with father, and the children's special needs, the court concluded father did not have a sufficiently special relationship with them.
C. Analysis
Father's argument for why the juvenile court erred is based entirely on his testimony at the March 2016 hearing and the Bureau's previous positive comments about his visits with the children. This is unpersuasive because father ignores the court's reasons for ruling the exception did not apply—which were that his own testimony at the hearing and the lack of time his very young children had spent in his custody indicated the relationship was not so beneficial as to call for application of the exception.
The court ruled in part based on its view of father's testimony at the hearing, which it summarized a few minutes earlier in denying father's section 388 petition. At that time, the court said that father "has been steadfast . . . in his positions from the beginning of these cases and has moved very little in either direction. He has not demonstrated at all at any point, including here today, any insight whatsoever as to why these children are before the Court. It seems to be his position that this has all been the Government's fault. The Government intervened and broke apart a loving, wonderful family." The court continued, "[t]here is such a significant history of substance abuse and domestic violence in this household. It is alarming. It's a very serious case." It found that this domestic violence and substance abuse included father, who, the court stated, "oftentimes was incoherent when speaking with law enforcement or social workers because of his consumption of alcohol. He really did not in any way establish even changing circumstances through his motion today."
Father does not challenge any of the court's characterizations of the facts and we have no reason to disagree with them. Further, the court could reasonably rely on the Bureau's report that he was either lazy or overwhelmed in caring for the children during his visits with them, regardless of his disagreement with this characterization. And it is indisputable that his children had spent much, if not most, of their young lives being treated very well in the care of their foster caregiver, who now sought to adopt them, tipping the balance decidedly in favor of continuing on the present course to adoption as the permanent plan. Father's beneficial-relationship argument is without merit, whether evaluated under a substantial evidence, hybrid substantial evidence/abuse of discretion, or abuse of discretion standard.
DISPOSITION
The court's rulings appealed from are affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.