Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County. Nos. JD117297 & JD112218 Peter A. Warmerdam, Sr., Juvenile Court Referee.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.
B.C. Barmann, Sr., County Counsel, and Mark L. Nations, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Levy, A.P.J., Cornell, J., and Gomes, J.
INTRODUCTION
Appellant, A.F., appeals from the juvenile court’s order denying his petition pursuant to Welfare and Institutions Code section 388 to modify the court’s prior order denying him reunification services for his children, A.M.F. and G.F. The court terminated appellant’s parental rights to his children pursuant to section 366.26. Appellant contends he demonstrated changed circumstances, it was the mother’s drug abuse that caused the dependency, and that he had an extraordinary parental bond with his children. We reject these contentions and will affirm the juvenile court’s judgment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTS AND PROCEEDINGS
Earlier Proceedings
On October 10, 2006, the Kern County Department of Human Services (department) filed a petition on behalf of A.M.F. alleging she was at substantial risk of suffering physical harm because she was born testing positive for methamphetamine and her mother, G.G., used illegal controlled substances and suffered from a mental illness. The petition further alleged the minor, who was born in August 2006, was at substantial risk of harm because of appellant’s physical abuse of G.G. The minor was detained on October 11, 2006. At the combined jurisdiction/disposition hearing on November 15, 2006, appellant submitted the matter, executing a waiver of rights form. The court found the allegations true and ordered the removal of the minor from the physical custody of both parents. The court found the mother had made minimal progress in her attempt to reunify and appellant had made no progress in his effort to reunify.
The court ordered further services for the parents. The appellant was ordered to participate in domestic violence counseling as a perpetrator. The mother was ordered to participate in domestic violence counseling as a victim and comply with psychotropic medication and mental health treatment. Both parents were ordered to submit to random, unannounced drug tests. The parents were ordered to participate in child welfare services.
At a review hearing on May 15, 2007, the court found the parents had made minimal progress in alleviating or mitigating the causes for A.M.F.’s placement out of the home. The court continued reunification services.
At the December 7, 2007, review hearing, the court found appellant had made no progress in his case plan and had not made acceptable efforts to avail himself of reunification services. G.G. had only made minimal progress in her case plan. The court found there was clear and convincing evidence the parents had failed to participate regularly in their case plan and there was not a substantial probability the parents would make progress with further services. The court terminated reunification services.
On March 18, 2008, a new petition was filed on behalf of the parent’s new born child, G.F. The petition alleged G.F. was at risk of harm because neither parent had participated in family reunification services, including counseling for parenting, domestic violence, and substance abuse. The petition alleged appellant had failed random drug tests seven times and reunification services had been terminated for both parents for the older sibling, A.M.F. G.F. was detained on March 19, 2008.
At the jurisdiction hearing on April 24, 2008, the allegations of the petition for G.F. were found to be true. G.F. was placed with G.G. on an extended visit. On that date, a modification hearing was conducted on behalf of A.M.F. The court found G.G. had made substantial progress toward alleviating or mitigating the causes of A.M.F.’s placement out of the home. G.G. was ordered to participate in family maintenance services, participate in counseling for domestic violence, and submit to random drug testing. Appellant was granted visitation twice a week for two hours under the supervision of the department.
At the disposition hearing on May 27, 2008, G.F. was found a dependent and placed with G.G. with family maintenance services. Appellant was ordered to participate in reunification services for G.F. G.G. was ordered to participate in mental health counseling and random drug testing. Appellant was ordered to participate in counseling for substance abuse and domestic violence. He was also ordered to undergo random drug testing.
A new petition was filed on October 3, 2008, pursuant to section 387, alleging both children were at risk of harm due to acts of domestic violence by appellant on G.G. The children were detained on October 8, 2008. On November 5, 2008, the court held a jurisdiction hearing. The appellant waived his rights and submitted the matter to the court. The court found the allegations of the petition true.
On September 26, 2008, G.G. allowed appellant into her home. Appellant threw G.G. against stairs resulting in numerous bruises to G.G. A child was sleeping upstairs. Appellant had given G.G. a black eye earlier in the week. G.G. reported appellant came over and beat her twice a week.
On December 10, 2008, the court conducted a jurisdiction hearing and a continued section 366.21, subdivision (e) review hearing. The court found G.G. had received 18 months of reunification services and failed to reunify with her children. The court found both parents had made only minimal progress in reunification and terminated reunification services to both parents.
Section 366.26 Reports
The department’s social study report for the section 366.26 termination hearing was prepared in March 2009. Appellant attended 36 of approximately 74 possible court-ordered visits with his children. The majority of the visits were supervised by the relative caregiver. During a visit in April 2008, appellant was not as involved with G.F. as was her mother. Appellant spent the majority of his time with A.M.F. Appellant made up the majority of the visits he missed and visited consistently.
During a visit in June 2008, appellant ate a meal with his children and fed A.M.F. During a September 2008 visit at a family birthday party, appellant showed excellent parenting skills. Appellant had a good visit with his children in December 2008. In March 2009, A.M.F. sat with appellant. G.F. crawled around following her relative caretaker. The social worker noted that during appellant’s visits, the relative caregiver was mostly responsible for the children’s care and the children did not look to their father to meet their daily needs. The relative caregivers were willing to allow appellant to contact the children, but only if he acted appropriately with them.
An adoption assessment was conducted for both children. Both children were placed with relative caretakers. A.M.F. previously had been placed with the same relative caretakers. The social worker found that both children were happy and healthy. Their current caregivers have provided a loving, stable home and are committed to adoption. Even if the current caregivers are unable to adopt the children, it is likely another adoptive home could be found. The prospective adoptive parents are committed to the permanent plan of adoption and a strong bond has formed between them and the children. The social worker recommended adoption as the children’s permanent plan.
The social worker concluded that neither parent had more than a minimal relationship with the children. The children’s relationship is not significant enough that they will suffer severe emotional trauma if appellant’s parental rights are terminated. The social worker recommended termination of the parental rights of both parents.
Regina Vazquez, the Court Appointed Special Advocate (CASA), prepared her report in April 2009. Vazquez reported that soon after A.M.F. was born and became a dependent child, there was a domestic violence incident between appellant and G.G. Appellant was incarcerated in prison. Because A.M.F. had health problems at that time, she was not permitted to visit appellant in prison.
Appellant began to visit A.M.F. and comply with his reunification plan in March 2007 after his release from prison. Appellant missed some visits in June, July, August and September. Between May 2007 and December 2007, appellant failed to comply with court orders. He enrolled in domestic violence counseling but was discharged due to noncompliance. He was discharged from parenting classes for poor attendance and failure on most occasions to test. Appellant did not enroll in drug counseling.
The children were placed with G.G. in April 2008. The children were removed from their mother’s custody in October 2008 after an incident of domestic violence between G.G. and appellant.
During an announced home visit on April 21, 2009, Vazquez found three empty cases of beer on the back patio. Appellant was cooperative in the interview, explaining he wanted the opportunity to raise his children and that he loved them. Appellant said the beer cases were from a party held by his family the previous weekend and he did not drink.
Appellant’s parole officer said appellant was doing well on parole. Recent drug tests were negative. Appellant tested positive three times, however, in August 2008 for use of illegal drugs. The relative caregivers have provided a safe, secure and loving home for the children and are committed to continuing to do so. A.M.F. has spent 25 of her 32 months of life under the care of her relative caregivers, who have been responsible for the day-to-day care and support of A.M.F. G.F. only spent five months living with her mother and the other seven with the relative caregivers. CASA could not recommend changing the placement of the children with appellant, even though he cares deeply for his children. CASA recommended that the court deny appellant’s section 388 petition.
Hearing on Petition to Modify and Termination of Parental Rights
Appellant filed an amended petition pursuant to section 388 on May 29, 2009. Appellant finished a 52-week domestic violence program, a Proposition 36 treatment program, and had negative drug test results. Appellant stated he visited his children and had a positive relationship with them.
The department filed a social study in response to appellant’s petition on June 3, 2009. Appellant completed the domestic violence program on November 6, 2008. Appellant completed his Proposition 36 treatment program on October 24, 2008. Appellant finished an effective parenting class in February 2008. Although appellant had no positive drug test between September 19, 2008, and April 23, 2008, he had four positive drug tests between August 13, 2009, and September 10, 2008.
The department reported that although appellant’s visitations with his children were of a good quality, the majority of the visits have been supervised by the relative caregiver. The children are in a home where they are loved and the caregivers plan to adopt the children. The department recommended appellant’s petition be denied and his parental rights be terminated.
The juvenile court conducted the section 388 and section 366.26 hearings on June 3, 2009. Appellant testified he completed domestic violence counseling, substance abuse counseling, and parenting counseling. Appellant admitted he had four positive drug tests, but had tested negative since September 2008.
Appellant denied assaulting G.G. in September 2008 and said he was never arrested for assaulting her. Appellant lives with his parents, two nephews, and a niece. He would be able to provide a separate room for his daughters. Era Lane, a social worker with the department, testified that appellant’s visits with his children were appropriate and he was very affectionate to them.
The court noted that while appellant failed to complete his program for his older daughter, appellant finished the programs for his younger daughter. The court noted, however, that just prior to completing the domestic violence program, appellant assaulted G.G. The court felt there had not been enough progress by the appellant on the issue of domestic violence. The only evidence the court found of change in appellant was an extended period free of positive drug tests. The court ruled appellant did not meet his burden under section 388 and denied his petition for modification of the court’s earlier order terminating reunification services.
The court found the children’s placement was appropriate and that adoption was likely. The court terminated the parental rights of both parents.
DISCUSSION
SECTION 388 PETITION
Appellant contends the court abused its discretion by denying his section 388 petition as to his children because his circumstances had sufficiently changed. Appellant argues it was G.G.’s drug abuse that was the primary reason for department intervention, not his domestic violence.
It was appellant’s burden of proof to show there was new evidence or there were changed circumstances that called for a change of the previous order denying reunification and that reunification services would be in the children’s best interest. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310 (Marilyn H.).)
Appellant argues it was G.G.’s drug addiction, not his problem with domestic violence that was the primary reason for the dependency. Appellant argues that allegations of domestic violence from the original petition filed October 10, 2006, were exaggerated. Appellant submitted the matter by executing a waiver of rights form. Appellant submitted the matter on the basis of the social worker’s report. According to the social worker’s report, which relied on police reports from Los Angeles, while appellant and G.G. were visiting A.M.F. at a hospital, appellant punched G.G. three times in the head on September 29, 2006, and later struck her with a vehicle. The social worker also obtained a report from the Kern County Sheriff’s Department that detailed an incident on July 12, 2006, when appellant hit G.G. on the head six times while she was pregnant with A.M.F. This is substantial evidence supporting the juvenile court’s finding that A.M.F. was at substantial risk of harm due to appellant’s domestic violence.
G.G. told an investigating social worker in October 2006 that she may have exaggerated appellant’s violence because he did not hit her. The mother admitted she had bruises, but she had gotten them from working out at the gym and appellant only pushed her away. Appellant was arrested for domestic violence, but the charges were later dropped. The social worker noted that allegations against appellant were dropped because he was no longer living with G.G. and was not the custodial parent.
More importantly, appellant essentially ignores the fact that G.G. had regained custody of both children under family maintenance services until a new petition was filed on October 3, 2008, pursuant to section 387, alleging both children were at risk of harm due to new acts of domestic violence by appellant on G.G. On September 26, 2008, G.G. allowed appellant into her home. Appellant threw G.G. against stairs resulting in numerous bruises to G.G. A child was sleeping upstairs. Appellant had given G.G. a black eye earlier that week. G.G. reported appellant had been coming over and beating her twice a week.
Appellant did not actively challenge the section 387 allegations that he committed new acts of domestic violence on G.G. He submitted the matter on the social worker’s report at the November 5, 2008, jurisdiction hearing. We reject appellant’s argument that the primary reason for the dependency of his children was G.G.’s drug abuse problem. Appellant’s acts of domestic violence were found true in the original dependency action for A.M.F. and were the primary basis for the subsequent section 387 petition.
Furthermore, appellant was still taking domestic violence training classes when the section 387 petition was filed. According to G.G., in September 2008 appellant had given her a black eye, threw her against the stairs, and was hitting her twice a week. Appellant submitted these facts to the juvenile court when he did not actively contest the section 387 petition. This is evidence that appellant was the primary cause of the most recent dependency petition and it is strong evidence that appellant failed to show changed circumstances.
Appellant obtained a certificate for finishing domestic violence training. The juvenile court accurately observed that appellant’s new acts of domestic violence occurred during that training. Appellant failed to apply what he had been taught in the class.
The parent bears the burden of showing in a section 388 petition both a change of circumstance and that the proposed change is in the best interests of the child. A petition only alleging changed circumstances, which would lead to a delay in the selection of a permanent home, to see if a parent could eventually reunify with a child at some future point, does not promote stability for the child or the child’s best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
Appellant struggled with domestic violence, even in the midst of training. Although appellant had not had a recent positive drug test, he had four positive drug tests in August and September 2008. Appellant was drug free for just over eight months at the time of the hearing. At best, appellant showed only changing, not changed circumstances.
To understand the element of best interests in the context of a section 388 motion brought, as in this case, shortly before and during the section 366.26 hearing, we look to the Supreme Court’s decision in Stephanie M. At this point in the proceedings, a parent’s interest in the care, custody, and companionship of his or her child is no longer paramount. Rather, the focus shifts, once reunification efforts end, to the child’s needs for permanency and stability; there is in fact a rebuttable presumption that continued out-of-home care is in the best interests of the child. (Stephanie M., supra, 7 Cal.4th at p. 317.) A court conducting a modification hearing at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (Ibid.)
Notably, both here and in the juvenile court, appellant ignores the children’s need for permanence and stability in advocating his position. Neither the juvenile court nor this court, however, may do so. Appellant failed to make any showing at the section 388 hearing concerning how his children’s best interests would be served by giving him additional reunification services.
PARENT/CHILD RELATIONSHIP
Appellant contends the court erred when it declined to find termination would be detrimental to the children’s best interests. He claims he had an extraordinarily close father-daughter bond with his two children. On review of the record, we find no abuse of discretion.
Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. (Marilyn H., supra, 5 Cal.4th at p. 309.) If, as in this case, the child is likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.) We may not reweigh or express an independent judgment on the evidence (In re Laura F. (1983) 33 Cal.3d 826, 833), as appellant would have us do by focusing solely on his insistence on maintaining his parental rights and ignoring other evidence before the court.
Although appellant has shown that his children were affectionate with him and he made regular visitations with them, nearly all of appellant’s visits were supervised by the relative caregivers. Appellant had very little experience caring for A.M.F. and little or no experience caring for G.F. During a visit in March 2009, A.M.F. sat with appellant but G.F. crawled on the ground following the relative caregiver. The relative caregivers provided the children with a stable and loving home. Appellant’s affection for his children is not evidence, as he argues, that they “adored” (italics omitted) him or that they would suffer detriment if adopted.
Because contact between a parent and child generally confers some benefit to the child, a parent must demonstrate more than pleasant visits or frequent, loving contact. (In re L.Y.L. (2002) 101 Cal.App.4th 567, 575.) The exception applies only where a court finds regular visits have developed a significant, positive, emotional attachment between child and parent. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Appellant failed to establish his relationship with his children was so strong that they would suffer detriment from its termination. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) The loss of a child’s frequent and loving contact with a parent is insufficient to show detriment. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) We conclude the court did not abuse its discretion by rejecting appellant’s argument.
DISPOSITION
The juvenile court’s order denying appellant’s section 388 petition and terminating his parental rights is affirmed.