Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. J214997, A. Rex Victor, Judge.
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant P.C.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant U.H.
Ruth E. Stringer, County Counsel, and Dawn Stafford and Sandra D. Baxter, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minor.
OPINION
King J.
This case presents the not infrequent, but nevertheless difficult, question of whether the parents’ dramatic, yet short term, correction of the long-term problems leading to a minor’s removal from custody is sufficient to justify granting them reunification services, pursuant to Welfare and Institutions Code section 388 petitions, which, due to the parents’ previous failure to reunify with other children, were never initially provided. We hold that, under the facts of this case, it was not an abuse of discretion to deny the parents’ section 388 petitions when the parents’ long-term drug abuse and failure to reunify with previous children is weighed against their short-term efforts to remain clean and provide minor with suitable housing. We further find that substantial evidence supported the court’s finding that the “beneficial parental relationship” exception was inapplicable and, therefore, affirm its order terminating parents’ parental rights.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
On May 18, 2007, a social worker responded to parents’ residence on an immediate response referral. Sheriff’s deputies were executing a search warrant on a parcel of property which contained parents’ single-wide trailer and knocked on the parents’ door. Deputies detected a strong odor coming from the trailer. Mother answered the door and admitted to using methamphetamine in front of minor within 45 minutes of the deputies’ arrival. The trailer had no running water and obtained electricity via an illegal hook-up. The only food in the trailer was a jar of mayonnaise, a bottle of mustard, and an old bag of French fries. The trailer was cluttered with junk and used dishes were stacked high in the sink.
Mother reported a six-year substance abuse history. Father reported a 10-year substance abuse problem and admitted using methamphetamine within the past two days. Parents were arrested for felony child endangerment and minor was detained.
The Department of Children’s Services (the department) filed a section 300 petition alleging that parents had substance abuse problems negatively impacting their ability to parent minor, had exposed minor to methamphetamine, failed to provide minor with safe living conditions, and had had parental rights terminated as to previous children.
The jurisdictional and dispositional report dated June 13, 2007, indicated that parents had previously had parental rights terminated as to other children due to their use of drugs. As to one of father’s previous children, T., father had informed the department that he did not want services. Mother reported using methamphetamine on a daily basis since she was 16. She “was in prior drug treatment as a term of prior involvement with [the department] regarding her daughter [N.].” Father, 42 years old at the time, reported initiating his use of methamphetamine at the age of 16. He reported that he stopped using methamphetamine at some point, but began using again after an ATV accident and his mother’s death in 1997. Father and mother reported using the same amount of methamphetamine at the same frequency since 2000. The social worker noted that “[b]oth parents have used methamphetamine from the time that they were adolescents. Notably, as [father] is at the age of [42] years [old], it would seem that this behavior is substantially ingrained as part of his personality characteristics, and it would be very difficult for [father] to change this conditioned pattern of behavior.” The social worker further indicated that “[e]ven with [previous] services offered, the parents have continued to abuse substances, notably methamphetamine, knowing the health and safety risks that their behavior presented to the child . . . . It is of great concern that these parents were willing to participate in this behavior of abusing the very substance for which their [previous] child . . . was removed. The parents . . . do not appear to comprehend the risk factor that abusing methamphetamine poses for a child, especially using/smoking the drug in the same living environment as the child, and smoking it with the child in their presence.”
At the time of minor’s detention, deputies removed a crack pipe from mother’s waistband. They also found an additional three glass crack pipes, a metal pipe, a bong, and methamphetamine in the bedroom. Mother admitted the paraphernalia found in the bedroom was hers. “[Mother] said she has a problem with drugs and needs help. [Mother] said when ever [sic] she uses drugs, such as methamphetamine or marijuana, she uses at home and most of the time in her child’s . . . presence.” Father said he had been using methamphetamine for 10 years and had gone through a four-month Proposition 36 program in 2001. Father informed an officer the pipes were his.
The report noted that father had remained employed with the same employer for the last seven years. Parents received supervised one-hour weekly visits with minor: “Upon observation of visitation with the child . . ., the visit suggests that both parents and [minor] are very bonded and show an appropriate relationship with one another. The parents interact with [minor] very well as evidenced by participating in child games and reading to [minor.]” Nevertheless, the social worker recommended against the provision of reunification services.
An addendum report reflected that blood draws from father, mother, and minor showed positive results for amphetamines. Both parents tested positive for marijuana, but negative for methamphetamine on May 31, 2007. Mother tested positive for methamphetamine and marijuana on June 21, 2007. Father tested negative for all drugs on the same date.
At the contested jurisdictional hearing, the court found all remaining allegations true and found jurisdiction over minor. Documentation provided by the parents at the contested dispositional hearing on July 19, 2007, reflected that mother and father had started the Home Again Program on July 9, 2007. Mother tested negative for drugs on June 18 and July 5, 2007. Mother’s substance abuse progress report noted that she “maintains a positive attitude towards treatment. [Mother] demonstrates a strong desire to change old behaviors replacing them with the tools she is learning in recovery.” Father tested negative for drugs on June 18 and July 6, 2007. Father’s substance abuse progress report reflected that he “has attended [four] groups, has a good attitude[,] and is compliant and interacts well with his peers. [Father] is currently attending 12 step [program].”
Father testified that he started drug abuse treatment immediately upon referral three weeks earlier and had attended all six sessions. He testified that he has been going to Narcotics Anonymous (NA) three nights a week for a total of nine times. He started parenting and counseling classes the day prior to the hearing. He testified that he is drug free, has tested negative every week for the past five weeks, and that this is the longest he has been drug free. The last time he used drugs was May 15, 2007. He indicated that he never really tried to get clean before. He had moved out of the trailer and into a two bedroom house. Father denied failing to complete services for his son T. Father admitted that both he and mother used methamphetamine continuously in front of minor. He admitted that his and mother’s child, N., had been removed from their custody previously due to their drug abuse.
Mother testified that she participated in the same programs at the same dates and times as father. She began the programs immediately after receiving referrals; however, mother failed to attend one of the services the social worker had requested she go to. She admitted that the department had intervened with regard to her daughter N. due to mother’s use of drugs and that she had failed to reunify with N. due to her failure to complete her reunification plan. Mother testified that her clean date is June 22, 2007, and that this is the longest period of sobriety she has had since initiating drug use at the age of 16. Mother was 24 years old at the date of hearing. Mother denied using drugs while pregnant with minor and testified that she was not sure whether minor was born drug positive. Mother admitted to testing positive once since minor’s detention. While aware that minor tested positive for drugs, mother denied using drugs in front of him. Rather, she indicated that he must have tested positive from being in the same trailer in which she used drugs. She admitted that since her parental rights were terminated as to N., she has continuously used drugs and did not attend any drug counseling until the current matter was initiated. Mother testified that she is more motivated in the current program because it is more structured than the previous program in which she had participated. The parties stipulated that both parents had tested negative for drugs once since July 11, 2007.
After the hearing, the court stated that, “I think that it stretches credulity that given [the parents’ history of drug use] that [their] new found resolve is blossomed and solidified that one could have even [a] very optimistic hope that [they] could in fact stay drug free and then address the additional issues that led to [detention] . . . .” It further noted that “if we can draw from the experience that we see in people that participate in drug court with a serious addiction—I don’t think either parent can deny that they have a serious addiction—that resolve [to quit] is, more often than not, fleeting[] and certainly temporary. [¶] . . . I don’t think, particularly in view of the danger the child was placed in, and he’s drug positive, that the resolve from the short period the parents have finally sought some responsibility in trying to get away from their addiction that the risks [to] the child is to[o] great. [¶] The prediction of success is too remote, under the circumstances of this case, with prior removal and prior termination of parental rights and absolutely nothing done since that time before this removal to attempt to eliminate or alleviate the problem that led to removal.” Thus, the court ordered minor removed from the custody of the parents, denied parents reunification services, and set the section 366.26 hearing.
Minor was moved to the custody of the prospective adoptive parents on October 5, 2007. The prospective adoptive parents first had contact with minor on August 28, 2007, and had two weeks of visits with him prior to his placement, including daily eight-hour unsupervised visits with him for the week preceding October 4, 2007. The prospective adoptive parents were the adoptive parents of minor’s older sibling, N. An interim review report and adoptability assessment determined the minor was likely to be adopted: The “prospective adoptive parents[] have expressed a strong desire to adopt him and provide for him.”
A section 366.26 report issued November 6, 2007, noted that father had previously waived his rights to reunification services as to T. and had never responded to any written or telephonic notices by the social worker regarding visitation. The report noted that minor had weekly visits with his parents at the department’s office and that the “majority of the visitations between [minor] and his parents appear to be appropriate although not without concerns.” Such concerns, as later developed by the social worker, included that parents failed to bring appropriate games or activities for minor to the visits, father played too roughly with the toys in the office, father played with minor on the floor, father failed to redirect minor from inappropriate behavior, and father refused to grant permission to have minor’s hair cut. These circumstances led the social worker to conclude that father lacked maturity, displayed a certain level of defiance towards authority, and was unable to put minor’s needs above his own. However, the social worker noted that “the most recent visit on October 31, 2007, seemed to find [minor] happier to see his parents. Although they did not bring any activities for [minor], they did spend time reading, laughing[,] and braiding [father’s] long hair.” Mother’s health and education passport, attached to the report, notes that mother stated she did not receive any prenatal care and smoked cigarettes and methamphetamine during her pregnancy with minor.
On December 10, 2007, mother filed a section 388 petition on the Request to Change Court Order (JV-180) form in which she alleged she had attended 40 sessions of a drug treatment program with 100 percent attendance at her own expense. She attached a certificate of completion. Mother alleged attendance at NA on a regular basis through October 14, 2007, and attached an attendance sheet. An attached client progress report reflects negative drug tests on June 18, July 5, August 29, September 18, and October 2, 2007. That report notes that “[mother] successfully completed [o]utpatient treatment [p]rogram. [Mother] attended from 6-18-07 to 10-4-07. [Mother] completed parenting 11-12-07, but still owes money. [Mother] attended 16 parenting classes.” Another attached progress report notes “[mother] displayed an amazing willingness to learn new recovery based tools and give up old attitudes and behaviors. [Mother] showed a strong desire to change people, places and things, even if that meant family members. [Mother] is active in the NA community and has a sponsor for stepwork. It is my pleasure to graduate [mother].” The petition alleged mother visited minor regularly and would bring updated information regarding mother’s continued participation in programs at the time of the hearing.
Father apparently filed a section 388 petition on the JV-180 form on the same date. Father alleged he had completed 45 sessions of a drug treatment program with 100 percent attendance at his own expense. He attached a certificate of completion. Father also alleged regular attendance at NA meetings through November 14, 2007, and attached attendance sheets. He alleged regular visitation with minor and indicated he would bring updated documentation regarding his continued program participation to the hearing on the matter. Both parents requested six months of reunification services.
After father requested augmentation of the record on appeal to include a copy of his JV-180 form/section 388 petition, the juvenile court clerk filed an affidavit indicating that “the original documents were never filed with Juvenile Court and are not part of the minor’s file.” Therefore, it submitted a clerk’s transcript containing a copy of the JV-180 form provided at that time by father’s counsel below. In response to an additional request for augmentation of the record on appeal to include the exhibits attached to the JV-180 form alleged to have been filed by father below, the juvenile court clerk again filed an affidavit noting that the exhibits are not part of the court file and were never filed with the juvenile court. Instead, it again compiled an augmented clerk’s transcript containing exhibits alleged to have been attached to the JV-180 form alleged to have been previously filed. A review of the record on appeal makes it readily apparent that the documents were in fact submitted to the juvenile court. Thus, we deem the documents contained in the augmented clerk’s transcripts to be duplicates of those considered by the juvenile court judge.
On the court order included as part of mother’s JV-180 form, the juvenile court checked box 13b, reading that “[t]he judge will not hold a hearing. The judge will make a decision based on your request and any other papers filed by those listed in item 8. You and anyone listed in item 8 may ask for a hearing, which the judge will hold if there is good cause.” While not checking the box under item 13a, the juvenile court indicated that a hearing would be set on the matter on January 22, 2008, at 1:30 p.m. The court did not check the box under item 13, reading that “[t]he best interest of the child may be promoted by the requested new order, and . . . the request states a change of circumstances or new evidence . . . . A hearing shall be held on the request as follows[.]”
Because we do not have a copy of the JV-180 form father submitted to the juvenile court, we do not know what boxes the court may have checked or information it may have filled in on father’s court order. Nevertheless, subsequent events demonstrate that it is logical to infer the juvenile court’s designations on father’s JV-180 court order were identical to those made on mother’s.
At a preliminary settlement conference regarding the section 388 petitions, the juvenile court tentatively indicated that it would not hold an evidentiary hearing on the matter, but would allow the social worker to file a response to the petitions. Nevertheless, it indicated that it would have a hearing on the section 388 pleadings and permit a full-fledged evidentiary hearing on the matter if good cause were shown.
An addendum report dated January 10, 2008, noted that minor “has been placed in the [prospective adoptive parents’] home for three months and appears to be thriving in the environment. [Minor] is able to clearly articulate his needs to his prospective adoptive parents. He calls them ‘Mom’ and ‘Dad’ and considers them parental figures. [Minor] has not fully assimilated to his prospective adoptive family’s household routine. . . . Although [minor] appears to enjoy communal mealtimes, his sleeping pattern continues to be erratic, and his prospective adoptive parents describe him as ‘hyper.’” Minor and his foster brother were observed to have occasional conflicts. Minor’s biological sister also resided in the home, but minor was not aware of his relationship to her. “[Minor’s] motor skills have improved and the undersigned attributes the improvement to the outdoor activities and play equipment he has access to in his concurrent planning home.”
The social worker filed a response to the section 388 petitions on January 16, 2008. She noted that parents had resided in a two bedroom home since July 1, 2008, which was clean and adequately furnished. The bedroom which had been designated as minor’s contained a twin bed and a dresser. “There was a sense of pride when [father] stated . . . that this home was the first stable residence that he and [mother] have had since the start of their relationship in 2000 and that the majority of their time had been spent living in motels or at the homes of friends or family.” The refrigerator and pantry appeared to be adequately stocked with food and necessary supplies. Father continued his employment with the same employer. “Both [father] and [mother] appear to have successfully completed a qualified substance abuse treatment program with Yucaipa Guidance Center which they accomplished on their own and with their own funds as evidenced by their Certificates of Completion dated October 4, 2007. It would also appear that they have completed parenting education as noted on the progress report dated October 4, 2007[,] but have not been issued certificates as they have been unable to pay the $70.00. [Father] has tested negative for drugs on August 30, 2007, September 11, 2007, September 25, 2007, and October 4, 2007. [Mother] has tested negative for drugs on June 18, 2007, July 5, 2007, August 29, 2007, September 18, 2007, and October 2, 2007. Both [father] and [mother] have attended NA meetings which they have recorded on the attached sheets and indicate they continue to attend although they do not record their attendance. The Department congratulates and commends [father] and [mother] on their progress towards their continued sobriety.” Furthermore, the social worker observed that “[parents] appear to be committed to their lifestyle change and have been consistent in visiting with [minor]. In fact, both parents were recently involved in a serious automobile accident on January 6, 2008[,] in which their automobile was totaled . . . [they] were injured . . . [yet they still] did not miss their scheduled visitation with [minor].”
Nevertheless, the social worker continued to criticize parents relations with minor: “While interactions between [minor] and [father] have improved somewhat since the last court report, there are still some concerns about the level of understanding the parents exhibit towards the developmental level of [minor]. For example, the parents still do not consistently bring age appropriate activities for [minor] during the visitation and frequently rely on playing with the broken and obsolete toys in the visitation rooms.” “[Parents] do not perform the role of parental figure[s] in [minor’s] life during [their] one hour per week visitation. Their interaction with [minor] is frequently inappropriate in the boundaries they display. For example, during the visitation on January 9, 2008, [father] and [mother] had to be cautioned several times not to share with [minor] the details of their automobile accident. [Father] insisted on showing [minor] a photograph on his cell phone of his totaled truck which is very disturbing to a three year old child. [Mother] had to be reminded not to explain in detail to [minor] about the accident and why she had stitches in her head unless he actually asked. In the parents[’] defense, it is not that they mean to intentionally harm [minor], but they appear to lack the judgment necessary to parent [minor] in an appropriate manner.”
The social worker reiterated that parents continued to use drugs after their parental rights to N. were terminated. “Unfortunately, while the parents appear to have made some improvements in their living conditions and appear to be clean and sober at the current time, it is unknown how long they will continue to do so. It would appear that [father] only recently began testing clean and sober on August 30, 2007 [sic], while [mother] began testing clean on June 18, 2007. For individuals who were so deeply addicted, this certainly is not a significant amount of time as it pertains to providing and caring for a child. Both [father] and [mother] admit to a long history of methamphetamine use and admit that this is the first time they have had a stable residence in the history of their relationship. The fact that they have had suitable housing for six or seven months is not a changed circumstance when this is the first time in their relationship of approximately seven years that they have not been living a transient lifestyle and using drugs.”
At the section 388 hearing on January 31, 2008, the juvenile court indicated that its tentative decision was to deny the petitions without an evidentiary hearing: “I find that the circumstances of the respective parents are changing. I don’t think they have changed. They have made some commendable effort[s] to start on their own, some reunification efforts towards achieving sobriety, finding stable home/employment[,] and learning the skills which would give rise to their ability to raise this child. [¶] But, I think, given the respective parties’ history—mother, for about nine years, father for about 27 years—of drug abuse, given the history of the mother and father on other children, where they did not receive reunification services, given father’s history of, I think it’s a total of five children that he’s been really outstanding and fathering, but really poor in parenting, that’s he’s, essentially, had no relationship with the children that have been in the dependency system. [¶] So, I think, tentatively, that even though the parents are achieving some efforts now, that, given the history, the child shouldn’t be asked to wait to see [if] the parents have changed their life and demonstrated [an] ability to parent, and to show it’s the best interest of the child. [¶] So, tentatively, my thought, based upon the pleadings, is circumstances are changing, not changed. And it’s not [in the] best interest of the child to grant the [section] 388 petition[s].” The court then permitted argument on whether it should grant an evidentiary hearing on the matter. After argument, the court noted that, “My tentative stands.” “Putting aside the other issues, compared to their history of long, consistent, persistent abusive, drug use, that the short period of time they have reportedly been clean is not any real assurance, given the long term problem that they can remain [and] keep their sobriety, in this matter. [¶] I think, and also as to the issue of the quality of the visitation, I think both within the report and comments of counsel about the quality of those visits, I don’t think there’s any great issue in that. Perhaps a matter of perception more than of the respective parties.” Hence, the court determined that there was not good cause to hold an evidentiary hearing; that circumstances were changing, not changed; that granting the section 388 petitions was not in the best interest of minor; and denied the petitions.
The court then moved to the section 366.26 hearing and permitted parents’ testimony. Father testified that minor has lived with he and mother since his birth. Father testified that he has visited with minor weekly since minor was detained and minor runs towards him and hugs him at the beginning of each visit. Father brings coloring books, alphabet flash cards, and number flash cards to visits, which they use together. Father redirects minor when he is behaving inappropriately. After initial visits, minor did not want the parents to leave. Minor refers to father as “daddy.” Mother testified that minor refers to her as “mom.” She testified that she has visited with him regularly, even after she was involved in a car accident. Mother testified that she has been helping minor learn to read. Mother admitted that minor was detained because both she and father were using methamphetamine in front of minor. The department conceded that parents have had regular visitation with minor.
The juvenile court found that parents have had regular visitation with minor, but that minor would not benefit from a continued relationship with them. It found that whatever parental bond existed between the parents and minor was “far outweighed by [minor’s] security [in the prospective] adoptive home” with his biological sister. Thus, the court terminated parents’ parental rights and ordered adoption as minor’s permanent plan.
II. DISCUSSION
A. The Juvenile Court Did Not Err in Failing to Provide Father With an Evidentiary Hearing
Father contends he was denied due process of law because he was not permitted to present evidence or cross-examine the social worker at the hearing on his section 388 petition. Rather, father was solely permitted to argue the evidence already included in the record. Hence, father maintains either that he was erroneously denied a hearing after making a prima facie showing in his petition or that, to the extent he was provided with a hearing, it was constitutionally infirm. We disagree.
Whether to conduct a hearing on a section 388 petition alleging changed circumstances or new evidence is within the juvenile court’s discretion. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) When the juvenile court summarily denies a section 388 petition, this court reviews that decision under an abuse of discretion standard. (In re Aaron R. (2005) 130 Cal.App.4th 697, 705.) A hearing must be held if the petition states a prima facie case, which has been analogized to a showing of probable cause. (In re Aljamie D., supra, at p. 432.) “‘There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. . . .’ [Citation.]” (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079 (C.J.W.).) “The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806; In re Daijah T. (2000) 83 Cal.App.4th 666, 673.) The petition should be liberally construed. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414.) If the petition fails to state sufficient change of circumstances or new evidence or facts showing it would be in the best interests of the child to modify the order, the petition may be denied without a hearing. (Cal. Rules of Court, rule 5.570(d); In re Zachary G., supra, at p. 808.) The juvenile court may rely on its own knowledge of the facts of the case to summarily deny a section 388 petition. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.)
Here, while the court certainly could have summarily denied parents’ petitions based on their moving papers alone, we see nothing wrong with the court requesting a response from the social worker and allowing the parties to argue the matter prior to determining whether a prima facie case for permitting a full-blown evidentiary hearing had been made. The fact that it did so did not convert the court’s decision into a grant of an evidentiary hearing; rather, the court simply wanted to have all the facts before it prior to making that decision. Thus, it essentially permitted parents an additional opportunity to argue that a prima facie case had been made. Contrary to father’s contention, the social worker’s response did not contest “virtually all of the issues that Father raised in [his section] 388 petition . . . .” Rather, the social worker’s response confirmed virtually everything alleged in father’s petition, including the programs he had participated in, the time he had remained drug free, the regularity of his visitation with minor, and the suitability of parents’ current living conditions. Nothing in the social worker’s response appears to conflict factually with anything alleged in either parent’s petition. Rather, the response simply notes problems with some of the parents’ visits and recapitulates parents’ long history with drug abuse and their prior experience in the dependency system. Thus, an evidentiary hearing was not required to resolve issues of credibility between parents and the social worker. Father does not suggest what areas he would explore in any cross-examination of the social worker. Moreover, he never requested to examine the social worker below. Notably, neither parents’ petition alleged a modification would be in minor’s best interest; thus, the petitions failed to present a prima facie case for relief.
In effect, the court summarily denied parents’ section 388 petitions. It initially, tentatively indicated it would deny parents’ petitions without an evidentiary hearing. On the court order attached to mother’s JV-180 form, it intentionally did not check box 13 indicating that the best interests of the child might be promoted by the requested order and, therefore, ordering an evidentiary hearing. Instead, it checked the box specifically noting that the court would not hold a hearing and that it would make a decision based on the 388 petitions and “any other papers filed by those listed in item 8.” (Italics added.) The social worker is listed under item 8; thus, the social worker’s response was properly considered by the court in determining that a prima facie case had not been made and that, therefore, no evidentiary hearing would be required. After argument, the court noted that its “tentative stands[,]” specifically finding that there was no good cause for an evidentiary hearing.
Father cites C.J.W., supra, 157 Cal.App.4th 1075 and In re Lesly G. (2008) 162 Cal.App.4th 904 (Lesly G.) for the proposition that once the court permits any hearing on a section 388 petition, it must provide the parties with a complete evidentiary hearing, replete with the presentation of evidence and cross-examination of the social worker. Those cases are factually dissimilar to the present case and therefore unavailing.
Both those cases observed the internal inconsistency of section 13 on form JV-180. (C.J.W., supra, 157 Cal.App.4th at p. 1080; Lesly G., supra, 162 Cal.App.4th at p. 914.) This is because the form appears to require the court to check a box ordering an evidentiary hearing even while simultaneously determining that a prima facie case had not been made and, hence, no evidentiary hearing will be required. (C.J.W., supra, at p. 1080; Lesly G., supra, at p. 914.) Lesly G. noted that the form was “not only internally inconsistent but legally infirm.” (Lesly G., supra, at p. 914.) Indeed, in C.J.W. we recommended that “form JV-180 be reformed to avoid the kind of problems created here.” (C.J.W., supra, at p. 1082.) However, in both those cases the juvenile courts checked both conflicting boxes on the form. (Lesly G., supra, at p. 909; C.J.W., supra, at p. 1080.) As noted above, the juvenile court here avoided the problems at issue in C.J.W. and Lesly G. by checking only box 13b. Hence, no evidentiary hearing was ordered.
Moreover, even to the extent that the court could be viewed to have ordered an evidentiary hearing, C.J.W. concluded that where the court receives written evidence and hears substantial argument from counsel for the parties, such a hearing may comply with due process in certain circumstances. (C.J.W., supra, 157 Cal.App.4th at pp. 1080-1081.) There, the attorneys for the parents concurred with the manner of the proceeding and did not object. (Id. at p. 1081.) Here, on the contrary, parents’ counsel argued that an evidentiary hearing would permit parents to argue the value of the programs they have attended and the benefits minor has garnered from a continued relationship with his parents. However, the court had already heard such evidence when parents testified at the dispositional hearing. Likewise, Lesly G. found due process error where the court failed to even afford counsel the opportunity to argue the merits of the petition. (Lesly G., supra, 162 Cal.App.4th at p. 914.) Here, the juvenile court permitted parents’ counsel ample opportunity to argue the merits of the petitions. Thus, the court did not err in failing to provide father with an evidentiary hearing. Like C.J.W., we conclude that “there was no showing whatsoever of how the best interests of [minor] would be served by depriving [him] of a permanent, stable home in exchange for an uncertain future. [Citations.] It is not reasonably likely additional testimony would have persuaded the court to grant the section 388 petitions and offer reunification services to parents. [Citation.]” (C.J.W., supra, at p. 1081.)
B. The Court Did Not Err in Denying Parents’ Section 388 Petitions
Parents contend their program participation, negative drug testing, regular visitation with minor, and obtainment of suitable living conditions constituted a sufficient change of circumstances such that a modification of the court’s order denying them reunification services would be in the best interests of minor. Hence, parents allege the juvenile court abused its discretion in denying their petitions.
“The juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstance or new evidence and that modification would promote the child’s best interests. [Citations.] This is determined by the seriousness of the problem leading to the dependency and the reason for its continuation; the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and the nature of the change of circumstance, the ease by which it could be achieved, and the reason it did not occur sooner. [Citation.] After termination of services, the focus shifts from the parent’s custodial interest to the child’s need for permanency and stability. [Citation.] ‘Whether a previously made order should be modified rests within the dependency court’s discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established.’ [Citation.] The denial of a section 388 motion rarely merits reversal as an abuse of discretion. [Citation.]” (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
Section 388 can provide “an ‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) “Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the child’s need for prompt resolution of his custody status.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) However, the best interests of the child are of paramount consideration when a petition for modification is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Substance abuse is generally considered a more serious problem and, therefore, is less likely to be satisfactorily ameliorated in the brief time between termination of services and the section 366.26 hearing. (In re Kimberly F., supra, at p. 531, fn. 9.)
In In re Amber M., supra, 103 Cal.App.4th 681, one of the factors leading the appellate court to conclude that the juvenile court had not abused its discretion in denying mother’s section 388 petition was that mother had a 17-year history of drug abuse, had relapsed twice previously, and had been clean for only 372 days. (Id. at p. 686.) Likewise, C.J.W. concluded that three months of sobriety was insufficient to show changed circumstances when evaluated with the parents’ extensive history of drug abuse and failure to reunify with other children. (C.J.W., supra, 157 Cal.App.4th at p. 1081.)
Here, while the social worker and the court noted that parents had made commendable efforts in remaining drug free, participating in appropriate programs, and obtaining a suitable residence for minor, these efforts were all too short in duration when weighed against parents’ history to warrant risking minor’s need for the permanency and stability he had obtained in his prospective adoptive placement. Contrary to father’s contention, the department did not report “that he had an untreated substance abuse issue history, not a history of relapses.” Father described his drug abuse history as having variously occurred over a 10- to 26-year period. Father indicated he had stopped using sometime prior to or in the year 1997, but began using again that year when he was involved in an ATV accident and his mother died. Father later reported that he had participated unsuccessfully in a four-month Proposition 36 program in 2001. Thus, father had participated in at least one former drug program and had previously relapsed at least twice. Moreover, father had been offered services on at least two other occasions when the department initiated dependency proceedings regarding his other children, T. and N.; however, father had either refused to participate or failed to complete those services and continued to use drugs after his parental rights were terminated.
Father admitted using methamphetamine continuously in front of minor and acknowledged that minor had tested positive for methamphetamine. Father tested positive for marijuana once after the current dependency proceedings were initiated. Curiously, father’s petition dated December 10, 2007, contained attached records of attendance for NA meetings only through November 14, 2007. While father stated in the petition that he would bring updated documentation to the hearing on the petition, the record is devoid of any such material being provided. A subsequent social worker’s report indicated that parents continued to attend NA meetings, but no longer recorded their attendance. There is no explanation in the record as to why they no longer felt such attendance records would be useful to the court. Father’s last reported negative drug test was on October 4, 2007. Even assuming that father continued to remain drug free since June 21, 2007, his approximately 220 days of sobriety is just not substantial enough to constitute changed circumstances when weighed against his 27-year history of drug abuse and repeated failures to get clean. Furthermore, father admitted he and mother had essentially lived an itinerate lifestyle since before minor’s birth and had only been living in the clean and adequately furnished home since July 1, 2007. Thus, the court acted well within its discretion in determining that father’s short-term correction of the behaviors leading to the dependency action constituted “changing” rather than “changed” circumstances.
Father’s contention that the juvenile court was predisposed to deny any section 388 petition because it stated, at the dispositional hearing held on July 19, 2007, that “it stretches credulity that given [the parents’ history of drug use] that [their] new found resolve is blossomed and solidified that one could have even [a] very optimistic hope that [they] could in fact stay drug free and then address the additional issues that led to [detention] . . . .” is unavailing. When the juvenile court made that statement it was conducting a dispositional hearing regarding removal of minor from the parents’ custody; a vastly different proceeding than a section 388 petition after reunification services have already been terminated. Also, at that time, father had only been drug free for slightly over 30 days while mother had been clean for less than a month; thus, the factual context of the court’s statement was vastly different than that present when the court entertained the section 388 petition. At that point, parents had been drug free for much longer. Moreover, at the latter hearing, the court recognized that parents had made commendable efforts towards remedying the issues leading to the dependency, it simply determined that those efforts were not of sufficient duration when weighed against the parents’ personal histories. Thus, the court demonstrated that it adequately and neutrally evaluated the circumstances of parents’ specific circumstances before issuing its decision.
While mother did not have an equally interminable drug abuse history, hers, nevertheless, was lengthy. Mother admitted variously to a six- to eight-year substance abuse history in which she used on a daily basis in front of minor since his birth. Mother had been in a prior drug treatment program within the purview of dependency proceedings regarding her daughter N.; nevertheless, she failed to complete that program and continued to use drugs after her parental rights were terminated. Mother tested positive for marijuana twice and for methamphetamine once since the initiation of dependency proceedings in the current matter. Thus, mother also had a history of relapsing. Mother’s clean date was June 22, 2007, and she testified that this was the longest she had remained drug free since initiating drug use. Paradoxically, mother testified that she did not use drugs during her presumable nine-month pregnancy with minor. Nevertheless, she testified that she was not sure whether minor was born drug positive. However, at another time, mother reported that she had used both methamphetamine and cigarettes while pregnant with minor. Thus, mother’s credibility with regard to her assertion that this time she was more motivated to succeed in her attempt to remain clean was somewhat impugned.
Mother’s petition dated December 10, 2007, contained attached records of attendance for NA meetings only through October 14, 2007. Though she also stated she would provide updated documentation of her program attendance, no such materials were forthcoming. As noted above, a later social worker’s report noted that parents alleged continued attendance at NA meetings, but no longer recorded that attendance. Mother’s recorded attendance reflects a month less than father’s. Furthermore, mother’s last reported negative drug test was on October 2, 2007. Hence, there was no evidence that mother remained clean. Again, even to the extent that the court determined that mother had remained sober, the court acted well within its discretion in determining that mother’s short-term correction of the behaviors leading to the dependency action constituted “changing” rather than “changed” circumstances. This is particularly so where mother had relapsed in prior treatment and tested positive for drugs after the initiation of the current proceedings.
Finally, we note that this case goes beyond merely the use of drugs, which interferes with parents’ ability to provide for minor. Both parents admitted to using methamphetamine on a daily basis in front of minor. This behavior occurred after parents’ rights to their prior child had been terminated for precisely the same reasons. Minor’s exposure to his parents’ use was so extreme that he tested positive for amphetamines. Such an occurrence is more consistent with being characterized as active abuse rather than passive nonprovision. Surely this situation would require a stronger showing of a more lengthy commitment to clean living than one in which parents used drugs, but did so outside of a minor’s perceptions.
C. Substantial Evidence Supports the Juvenile Court’s Finding That Termination of Parental Rights Would Not Be Detrimental to Minor and That the Beneficial Parent Relationship Exception Was Not Applicable
Once reunification services have been terminated and the minors have been found adoptable, “adoption should be ordered unless exceptional circumstances exist . . . .” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Pursuant to section 366.26, subdivision (c)(1)(B)(i), the court may find a compelling reason for determining that termination would be detrimental to the child if the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. The parent has the burden of proving that termination would be detrimental to the child under one of the enumerated exceptions. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207.) “[I]t is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D., supra, at p. 1350; see also In re Casey D., supra, at p. 51.) “A finding no exceptional circumstance exists is customarily challenged on the sufficiency of the evidence.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; see also In re Jerome D., supra, at p. 1207; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (In re Autumn H., supra, at p. 576.)
The “beneficial parental relationship” exception applies where “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 Autumn H., supra, 27 Cal.App.4th at p. 575.) “Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.]” (Ibid.) “The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.” (Id. at pp. 575-576.)
We agree with parents’ contention that the social worker’s comments at times appear hypercritical of some aspects of the parents’ behavior during visitation with minor. Nevertheless, substantial evidence supports the juvenile court’s finding that termination of parental rights would not be detrimental to minor and that the “beneficial parent relationship” was not applicable. The department conceded, and the juvenile court specifically found, that parents had regular visitation with minor; thus, that prong is not at issue here.
However, parents failed to prove that minor would continue to benefit from interaction with them such that it would be detrimental to minor to terminate their parental rights. Admittedly, the social worker noted early on in the jurisdictional/dispositional report dated June 13, 2007, that “both parents and [minor] are very bonded and show an appropriate relationship with one another.” The social worker additionally observed that “parents interact with [minor] very well as evidenced by participating in child games and reading . . . .” Another report noted that father held minor until he fell asleep in a loving and appropriate manner. Both father and mother testified that minor was nearly three years old when he was detained and had lived with them his entire life. They testified that minor still calls them “daddy” and “mom.” Father testified that minor usually runs towards him and hugs him at the beginning of each visit. Parents testified that during visitation they brought coloring books, toys, and flash cards, which they used to play with minor and help him learn to read. Father testified that he redirects minor when minor is doing something dangerous or inappropriate.
Nevertheless, subsequent reports were not as sterling and inconsistencies in parents’ statements impugned any credibility their testimony might have had. The social worker in the section 366.26 report dated November 6, 2007, noted that the “majority of visitations between [minor] and his parents appear to be appropriate . . . .” However, one of her concerns was that parents never brought games or activities to engage minor. Although a subsequent visit saw parents bring such activities, in the social worker’s response to the parents’ section 388 petitions dated January 16, 2008, she reiterated that “parents still do not consistently bring age appropriate activities for [minor] during the visitation and frequently rely on playing with the broken and obsolete toys in the visitation rooms.” The rational inference of the conflict between the social worker’s reports and father’s testimony is that parents only infrequently brought activities with which to interact with minor. Moreover, father admitted that it was only at the social worker’s prompting that he did so in the first place. Certainly, the regular provision and utilization of educational materials and toys to visits with minor might reflect the type of interaction necessary to establish parents’ “attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) However, here, that type of interaction appears haphazard at best. The social worker’s report also directly conflicted with father’s testimony that he redirected minor when minor misbehaved. On the contrary, the social worker indicated that she had to step in to compel father to redirect minor.
The social worker noted during one visit that “[minor] appeared to exhibit signs of fear toward his father when they were playing ‘hide and go seek’ and [minor] clearly appeared to be disengaging from the visit.” On another occasion, minor ran and hid from his parents at the beginning of the visit and it took nearly 20 minutes of coaxing to get minor to interact with them. Father admitted that on at least one occasion minor expressed anxiety and fear towards him, but implied this was because of minor’s recent placement. Father testified that only initially did minor appear upset at the end of visitations.
On the other hand, minor appeared to be greatly improving in his placement. One report noted that “[minor] has been placed in [the prospective adoptive parents’] home for three months and appears to be thriving in the environment. [Minor] is able to clearly articulate his needs to his prospective adoptive parents. He calls them ‘Mom’ and ‘Dad’ and considers them parental figures.” That placement had minor residing, although unbeknownst to him, with his biological sister. The report further noted that “[minor’s] motor skills have improved and the undersigned attributes the improvement to the outdoor activities and play equipment he has access to in his concurrent planning home.” Nevertheless, some concerns remained: Minor continued to have erratic sleep patterns and had occasional conflicts with his foster brother.
It is important to note that parents bore the burden of proving detriment to minor should their parental rights be terminated. While parents had exclusive custody of minor for the nearly three years prior to his detainment, the only evidence of their relationship with him during those years consisted of the reports and testimonies that parents smoked cigarettes and methamphetamine in front of minor, left drugs and narcotics paraphernalia around the trailer, and kept the home in a filthy condition. Several subsequent one-hour visits in which parents colored with minor, held him lovingly, and braided father’s hair simply does not amount to a demonstration of the establishment of a “substantial, positive emotional attachment” such that the child would be greatly harmed if parental rights were terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) At best, parents proved only an incidental benefit to minor from continued interaction. Moreover, to the extent the juvenile court found parents’ testimonies regarding the intimacy of their bond with minor lacking, it properly acted within its province in making creditability determinations. Thus, while the issue may be close, substantial evidence supports the court’s decisions that terminating parents’ parental rights would not be detrimental to minor.
III. DISPOSITION
The judgment is affirmed.
We concur: McKinster Acting P.J. Richli J.