Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos JD4416, JD4417
HULL , J.
Father, Bryan P., Sr., appeals the denial of his petition for modification. (Welf. & Inst. Code, § 388; all unspecified statutory references are to the Welfare and Institutions Code.) He contends the court erred in denying his petition, because he demonstrated both changed circumstances and that returning the children to him would be in their best interests. We affirm the order.
FACTS AND PROCEEDINGS
Appellant is the father of Bryan P. and Ephriam P.
On December 21, 2005, the children’s mother was arrested on a felony warrant for failure to appear to answer charges of burglary, robbery and grand theft. At the time of her arrest she was in an automobile with the children. Bryan said that they had been sleeping in the car for a while and that he could not remember the last time he had eaten. Mother admitted she was addicted to methamphetamine.
At the time of the mother’s arrest, appellant was in custody in southern California after having been convicted of a violation of Health and Safety Code section 11366.5, subdivision (a), which makes it unlawful to knowingly rent, lease or make available for use a building, room or other space for the purpose of unlawful manufacture, storage, or distribution of a controlled substance. At the time of the mother’s arrest, the children were placed in protective custody.
On December 23, 2005, Calaveras Works and Human Services Agency (CalWorks) filed an original petition pursuant to section 300, on behalf of three-year-old Bryan and nine-month-old Ephriam. The petition alleged the parents had a history of referrals to CPS, beginning in May 2001. The referrals were for severe neglect of the children, maintaining a filthy home, allowing dangerous conditions in the home, drug use in the home and domestic violence. The petition was sustained on December 27, 2005. The children were placed with their paternal grandfather on February 27, 2006.
Following a contested jurisdictional hearing on March 2, 2006, the court found the children were minors described in section 300, subdivisions (b) and (g) and their placement with their paternal grandfather was continued.
Appellant was released from custody on March 27, 2006. On April 4, 2006, the dispositional hearing was held. Mother was not provided reunification services. Appellant was provided a reunification case plan which required that he maintain a relationship with the children through at least monthly visitation, obtain and maintain a stable and suitable residence for himself and the children for a minimum of 90 days, complete parenting classes, complete a substance abuse assessment and a substance abuse treatment program, comply with random drug testing, and obtain and maintain employment. Appellant was expressly advised it was important for him to complete his case plan and that if he failed to reunify with the children on or before July 18, 2006, his parental rights might be terminated.
Appellant did not complete his plan by July 18, 2006. Appellant left Calaveras County a few days after the dispositional hearing. He moved back to Calaveras County on June 4, 2006, but not into a home suitable for his children to live in with him. Appellant attended four out of eight required parenting classes, two on June 24, 2006 and two on June 27, 2006. He had a single visit with his children on March 29, but had no further visits with his children until June 19, 2006. Appellant appeared for a substance abuse intake assessment on June 26, 2006. The social worker had not yet received that report at the time of the six-month review hearing.
On July 25, 2006, at the six-month review hearing, appellant presented additional information regarding his substance abuse treatment. The social worker requested the matter be continued for two weeks so she could verify that appellant had received treatment. She also requested appellant give her contact information for his probation officer. The social worker indicated if she received this additional information from appellant, CalWorks would recommend an additional six months of services. Appellant did not provide the requested information to the social worker.
On August 8, 2006, the court found appellant’s progress in completing the reunification plan had been minimal and reunification services were terminated. The Department of Social Services Adoptions Unit was ordered to prepare an adoption assessment.
The children’s paternal grandfather and his wife ultimately decided that due to their ages, they could not provide the boys the life they deserved. Accordingly, on September 15, 2006, the children were placed in a foster home with prospective adoptive parents.
On December 27, 2006, the day set for the permanency planning hearing (§ 366.26), appellant filed a petition for modification. (§ 388.) The petition sought to change the April 4, 2006 order, declaring the minors dependents of the court, and to have his children returned to him with family maintenance services provided. Appellant claimed he had completed his reunification plan in that he had suitable housing, had completed his parent education classes, had completed substance abuse classes and testing, was employed, and regularly visited with the children. Appellant claimed returning the children to him would be in the children’s best interests as they would “have a stable environment with a natural and loving parent with whom they have bonded.”
The permanency planning hearing was continued to January 17, 2007, when the hearings on permanency planning and the petition for modification were both held.
Appellant completed his parenting classes as of July 15, 2006. He had procured a suitable home to live in with his children, and had been living there since November 1, 2006, approximately two weeks shy of the required 90 days. Appellant had been employed since June 2006 and his employer wrote a letter to the court and testified on his behalf. Appellant completed a substance abuse assessment as of July 12, 2006. The assessment indicated appellant had completed a two-month treatment program in February 2006 and was participating in a 12-Step program. Appellant testified he had been attending AA or NA meetings, as required by his probation. His AA sponsor could not come to court to testify, but sent a letter to the court, indicating appellant had been regularly attending meetings. Appellant also provided some forms from the County of San Bernadino Probation Department which purported to be a “Verification of Program Attendance.” There are some initials and dates on these forms, but they are not signed or attested to by a probation officer.
Beginning on August 16, 2006, appellant visited his children approximately every two weeks. He testified that during a supervised visit, Bryan asked why he could not go home with appellant.
Notes of the visits indicate appellant had five scheduled visits between August 16, 2006 and October 11, 2006. At the August 16 visit, he received a warning because he was allowing Bryan to play with his cigarette lighter and letting Ephriam walk around with a plastic wrench in his mouth. At the September 13, 2006 visit, appellant was warned because Bryan was inappropriately throwing balls around the room. It was also noted that Bryan was “pretty much out of control” and very hyperactive during the visit. Appellant did not show up for the visit scheduled on September 27, 2006.
Appellant explained he did not start working on his reunification plan for the first few months after he got out of jail, because he “was doing what I had to do to get back on my feet.”
The children’s paternal grandfather, Ted, noted when the children were first placed with him, Bryan was aggressive and mean to Ephriam. Bryan “would step on his hands when he was trying to crawl” and push him down. He also “acted out” at school, including throwing things at the teacher. At home he was destructive, intentionally urinating on the bed and spreading Desitin on the comforter.
Ted reported that in the six and a half months the children lived with him, Bryan only mentioned appellant once. On that occasion it was to tell Ted that Bryan was sad because appellant “threw a tire and hit . . . mommy and made her bleed.”
Ted testified appellant visited with the children about five or six times when he had custody of the children. After visits with appellant, Bryan would be more aggressive and hurtful to others and would act out more. Appellant did not call the children for the first six weeks after he was released from prison. The foster mother also noted Bryan’s behavior was worse after visits with appellant. He would act out, be aggressive at school, cry a lot and be fussy.
Ted maintained his relationship with the boys after they went to the foster home and developed a relationship with the foster parents. He noted on his first visit with the children, after they had been at the foster home for a couple of months, Bryan was anxious that he was going to have to leave his new home and return to his grandfather’s. Bryan appeared much calmer and less aggressive after living with the foster parents. Bryan referred to the foster parents as mom and dad and Ephriam called them “mama and da da.”
When Bryan first came to live with his foster family, he was aggressive towards his brother, insecure and clingy. He would not let his foster parents leave the room without him, and he would cry and scream when dropped off at school. He was getting approximately two to three “time-outs” a day for being aggressive towards Ephriam. After living with the foster parents for four months, Bryan was calm when he was dropped off at school, his aggression towards his brother was gone and “[h]e is a very loving little boy.” Where he used to hit and push Ephriam, he now hugs and kisses him. Bryan now gets time-outs maybe once a week, for such behaviors as pulling the cat’s tail. Ephriam was well behaved when he first arrived at the foster home, but did not respond much to being held. He now likes to be held and cuddled.
Ted did not believe it was in the children’s best interest to return to live with appellant. He felt appellant had not changed and had chosen to ignore the court’s requirements for reunification. He acknowledged he had not had much contact with appellant over the previous six months.
Adoption specialist Andrea Javist also conducted visits with the children at both Ted’s house and the foster parent’s home. She noticed Ephriam was loving, affectionate and comfortable with both foster parents and opined he showed appropriate stranger anxiety. She described this as the developmental stage at which children who come into contact with an adult they do not know, will want to stay with their primary caregiver. Javist noted Bryan’s behavior had improved since being placed with the foster parents. When she first met him, he was aggressive, anxious, and distractible. Now, he is calmer and not aggressive. He is also more affectionate than he was before moving in with the foster parents.
Similarly, the relationship between the boys had improved since moving to their foster home. When she first met the boys, there was a lot of conflict between them, with Bryan being aggressive towards Ephriam. Since their time at the foster home, she has not observed any further aggressive behavior and sees the children as having a close relationship with each other.
Javist asked Bryan where he wanted to live and he said he wanted to stay with “mommy and daddy”, the foster parents, where he lives every day. She asked if he wanted to live with appellant and Bryan answered, “No I visit him.”
Javist concluded the foster parents are committed to adopting Bryan and Ephriam. They are experienced parents with a good understanding of adoption-related issues and are willing to maintain contact with the birth family.
The court denied appellant’s petition for modification, finding it was not in the children’s best interests “to remove them from the stability of their pre-adoptive placement and place them in the uncertain setting of [appellant’s] home.”
Discussion
Under section 388, the juvenile court may modify an order if the proponent of modification shows changed circumstances or new evidence and that the modification would be in the child’s best interests. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.)
When a petition for modification is brought after the termination of reunification services, the best interests of the child are the paramount consideration. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this stage of the proceedings, the juvenile court’s focus is the child's needs for permanence and stability. (Ibid.) Some of the factors a court may consider in making this determination include, the seriousness of the reason for dependency in the first place and the reason for its continuation, the strength of the existing bond between parent and child, the strength of a child’s bond to his present caretakers, and the degree to which the problem may be easily removed or actually has been. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.)
The party petitioning for modification has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.) A modification petition "is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
The court’s determination here was well within its discretion. In reaching its conclusion, the court noted the reason for the dependency is the “parents’ track record demonstrating an inability to care for the children in their custody.” A history, the court noted, which spanned “four and one half years and three California Counties.” This track record included seven prior referrals to CPS with repeated instances of severe neglect of the children, dangerous conditions in the home, and drug use.
There was little evidence of a bond between appellant and the children. Bryan was 2 years and 7 months old when appellant was incarcerated, and Ephraim had not yet been born. Thus, Ephriam had only briefly, if ever, lived with appellant and had only visited with him on a few occasions. Bryan had lived without appellant for almost as long as he had lived with him. Bryan’s primary impression of appellant appeared to be of an incident of violence by appellant against his mother. Appellant did not visit his children between March 29, 2006 and June 19, 2006. Of the five visits scheduled between August 13, 2006 and October 11, 2006, appellant had to be warned on issues relating to the children’s safety on two occasions, and on one occasion, he did not show up at all for the scheduled visit.
Appellant delayed any meaningful case plan progress for approximately three months following his release from custody. This delay occurred despite the fact that he was expressly warned the consequence of such a delay might well be the termination of his parental rights. Appellant explained that the time was spent getting himself back on his feet, but offered no details of what those efforts entailed or why it entirely precluded him from working towards completing his reunification plan. Appellant has never satisfactorily explained his unwillingness to provide verification information about his substance abuse classes to the social worker. Nor has he satisfactorily explained his refusal to provide the contact information for his probation officer.
Bryan and Ephriam had a strong bond building with their foster parents. They referred to their foster parents as mom and dad. Bryan was anxious at the prospect of leaving them. The minors sought comfort from their foster parents when distressed, and were loving and affectionate with them. Bryan’s behavior had improved since moving in with his foster parents, showing less aggression and anxiety, and his relationship with his brother had improved.
On this record, appellant did not meet his burden of proof in establishing that it was in the children’s best interests to be removed from their foster home and returned to him. Appellant argues there is a significant benefit to the children to being placed with their natural parent, rather than adopted.
“The presumption favoring natural parents by itself does not satisfy the best interests prong of section 388. The cases that state a child may be better off with his or her biological parent rather than with strangers do so when the biological parent has shown a sustained commitment to the child and parenting responsibilities.” (In re Justice P. (2004) 123 Cal.App.4th 181, 192.) Appellant’s actions have not demonstrated a sustained commitment to parenting his children. The trial court did not abuse its discretion in denying appellant’s petition for modification.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: SIMS , Acting P.J., BUTZ , J.