Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWJ003140, Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant J.F.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant J.R.
Pamela J. Walls, Acting County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minor.
OPINION
RICHLI, Acting P.J.
J.F. (the father) and J.R. (the mother) appeal from an order terminating their parental rights to their then four-year-old son, G.F. In addition, the father appeals from an order denying his “changed circumstances” petition pursuant to Welfare and Institutions Code section 388 (section 388). We find no error. Hence, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
In March 2004, when G.F. was eight months old, police went to the family home in response to a report that the father was selling methamphetamine. In a consent search, they found less than half an ounce of marijuana, along with a scale and almost 60 small baggies. The home was “extremely dirty,” with “trash scattered throughout” and “rotten old food in the sink.”
The father was arrested for possession of marijuana for sale (Health & Saf. Code, § 11360, subd. (a)) and child endangerment (Pen. Code, § 273a, subd. (b)).
In April 2004, a social worker visiting the home found similarly filthy conditions. The mother admitted using marijuana regularly. The father admitted using marijuana two or three times a month.
As a result, G.F. was detained and the Riverside County Department of Public Social Services (the Department) filed a dependency petition as to him. At the detention hearing, the juvenile court found a prima facie showing of jurisdiction. It returned G.F. to the mother’s custody (but not to the father’s).
In May 2004, at the jurisdictional/dispositional hearing, the juvenile court found that it had jurisdiction based on failure to protect (Welf. & Inst. Code, § 300, subd. (b)) and failure to support (solely as to the father) (id., subd. (g)). It formally removed G.F. from the custody of the father. However, it continued G.F. in the mother’s custody under a plan of family maintenance services.
The mother was persistently “non-compliant with the case plan.” In March 2006, she moved from her last known address and did not notify the Department of her whereabouts. As a result, the juvenile court issued a protective custody warrant for G.F. In May 2006, the mother and G.F. were located (apparently when she came in to pick up welfare benefits). Accordingly, G.F. was detained and the Department filed a supplemental petition concerning him. He was placed in foster care. At the time, he was almost three years old.
In July 2006, at a jurisdictional hearing on the supplemental petition, the juvenile court found that the previous dispositional order had not been effective. It formally removed G.F. from the mother’s custody and ordered that she be provided with reunification services. However, she continued to be noncompliant with her case plan.
Meanwhile, in or before July 2004, the father had been released from custody. Around November 2005, however, he had been reincarcerated. He was released again in July 2006. After his release, he repeatedly failed to take random drug tests, as his reunification services plan required. In February 2007, he tested positive for methamphetamine in a hair follicle test.
In March 2007, at a six-month review hearing on the supplemental petition, the juvenile court terminated reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26).
In June 2008, at the section 366.26 hearing, the juvenile court found that G.F. was adoptable and that none of the exceptions to termination of parental rights applied. Accordingly, it terminated parental rights.
II
THE FATHER’S SECTION 388 PETITION
The father contends that the juvenile court erred by denying his second section 388 petition.
A. Additional Factual and Procedural Background.
In September 2007, the father filed a section 388 petition. In it, he asked the juvenile court either to return G.F. to his custody or to reinstate reunification services. As changed circumstances, he alleged that he “ha[d] completed the non-residential Omega Program, Parenting Skills, Anger Management, and Domestic Violence classes” and that he was “clean and sober.” He also attached a list (apparently prepared by the mother) of the parents’ visits with G.F. between March and August 2007.
In December 2007, after a hearing, the juvenile court (per Commissioner Kenneth Fernandez) denied the petition.
In June 2008, on the day set for the section 366.26 hearing, the father filed a second section 388 petition. It was essentially identical to the previous petition, except that it included the following additional attachments:
1. Evidence that, in June 2008, the father had tested negative in a hair follicle test.
2. A statement by the father that he had been clean and sober for nine months and was attending Narcotics Anonymous meetings.
3. A further list of visits (again, apparently prepared by the mother) in April 2008.
The juvenile court held a hearing on the petition. The Department introduced four specified reports into evidence. After hearing further argument, the juvenile court (per Commissioner Bradley O. Snell) denied the petition. It explained: “[T]he father . . . has the harder burden because he has previously raised this motion with the judge in this court, and that motion was denied . . . [A]s I look at that and I examine the record, I do find that the father has passed, provided a clean hair follicle test in June.
The mother had also filed a section 388 petition.
“There has been continued visitation . . . . I don’t give [that] a lot of weight because . . . visitations were ongoing once the father was out of prison, have pretty much been ongoing always whether the father was doing drugs or wasn’t doing drugs. . . .
“As I evaluate whether there has been a change in circumstance that would warrant this Court to change the prior order, I’m left with the fact that the father has finally, after many years, provided a clean drug test. I do not find that that is a sufficient basis for me to warrant changing that prior judge’s order.”
B. Analysis.
“A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. [Citation.] The parent bears the burden to show both ‘“a legitimate change of circumstances”’ and that undoing the prior order would be in the best interest of the child. [Citation.] The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion. [Citation.]” (In re S.J. (2008) 167 Cal.App.4th 953, 959-960 [Fourth Dist., Div. Two].)
“‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ [Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
The father argues that the juvenile court erred by “view[ing] [his] clean hair follicle test in isolation.” We disagree. The juvenile court simply recognized that this negative test was the only even arguable changed circumstance since the father’s September 2007 petition.
The denial of that previous petition was a separately appealable order. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Aaron R. (2005) 130 Cal.App.4th 697, 702-703.) “If an order is appealable . . . and no timely appeal is taken therefrom, the issues determined by the order are res judicata. [Citation.]” (In re Matthew C. (1993) 6 Cal.4th 386, 393.) Moreover, while the June 2008 petition purportedly sought to change the prior court orders removing G.F. from the father’s custody and terminating reunification services, it necessarily also sought to change the prior order denying the September 2007 petition. For both of these reasons, the father had to show that there had been a relevant change of circumstances since the denial of the previous petition.
The juvenile court could reasonably find that there was not. In September 2007, the father had already been claiming to be “clean and sober”; the negative hair follicle test added little to that allegation. The father argues, “[I]t is ironic that the juvenile court decided to deny [his] section 388 petition on the basis of a test . . . that [he] passed.” However, it did not deny the petition “on the basis of” the test; rather, it ruled that the test alone was not sufficient grounds for granting the motion. This was not error.
III
THE BENEFICIAL RELATIONSHIP EXCEPTION
Both parents contend that the juvenile court erred by finding that the “beneficial parental relationship exception” to termination of parental rights (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)) did not apply.
A. Additional Factual and Procedural Background.
The evidence before the juvenile court at the section 366.26 hearing consisted of four specified social worker’s reports, the father and mother’s section 388 petitions, and a written statement by the mother. We confine our review to this evidence, which showed the following:
According to the reporter’s transcript, the Department also submitted a “caretakers’ statement.” The juvenile court indicated that this statement contradicted the parents’ evidence regarding visitation in some respects. The statement is not in the clerk’s transcript, however, and the Department has not taken any steps to augment the record with it. Hence, we will assume that it is not material to the issues raised in this appeal. (See Cal. Rules of Court, rule 8.163.)
In May 2006, G.F. had been removed from the mother’s custody and placed in foster care. He began “us[ing] foul language . . ., screaming loudly, throwing temper tantrums,” “and in general . . . express[ing] much anger.” As a result, he had to be removed from either one or two foster homes.
In September 2006, he was placed in yet another foster home. He had a good relationship with that foster mother, who wanted to adopt him. The foster father, however, had doubts about adoption, which he attributed to G.F.’s behavior (though he also complained that G.F. had “failed to develop emotional ties with him”). As of September 2007, G.F. was in therapy to address his aggressive behavior. He was “making commendable progress,” and his behavior had improved. Nevertheless, by October 2007, the foster father decided not to adopt.
In January 2008, after “full disclosure,” a new prospective adoptive family said that they wanted to adopt G.F. On February 7, 2008, they began visiting him. At the end of the second visit, G.F. said “he wanted to stay with them ‘forever.’” He began “lobbying to move in with [them].” In the opinion of his therapist, he had “already bonded with [them].” On February 29, 2008, he was placed with them.
As of the section 366.26 hearing, in June 2008, G.F. was doing well with these prospective adoptive parents. He seemed to enjoy living with them. He called them “Mom” and “Dad,” and he told them daily that he loved them. “After [they] attended several conjoint sessions with [G.F.], [his] therapist closed his case.” A social worker reported that G.F. had “adjusted well,” “appear[ed] to respect the Prospective Adoptive Parents,” and was “doing well in his preschool class.” There were no further reports of aggressive behavior.
At the beginning of the relevant period, the parents had supervised visitation for one hour a week. In December 2007, however, their visitation was reduced to twice a month. They both visited regularly, with only one missed visit reported. Visits went well. The parents acted appropriately. They brought G.F. presents, ate with him, and played with him. He generally appeared happy to see them. In July and August 2007, he appeared sad when visits ended. By November 2007, however, a social worker was reporting that G.F. “sometimes becomes disengaged from his parents during the course of these visits.” In February 2008, a social worker similarly reported that G.F. “frequently loses interest after the parents have given him the gift that they usually bring him.”
The parents offered their own account of visitation, in the form of a “visitation log[]” (i.e., a list of visits) attached to both parents’ section 388 petitions. It appeared to have been written by the mother.
Although the list was unsworn and unauthenticated, the Department waived any objections to it by failing to raise them at the hearing. Nevertheless, the juvenile court could take these defects into account in determining how credible it was.
A typewritten portion of the list covered visits from March through August 2007. It indicated that, at certain visits during this period, G.F. was happy to see the parents arrive and/or sad to see them leave. Once, he said that he missed them. At the end of another visit, he said, “I want to go with you guys.”
A handwritten portion of the list covered April through May 2008. Once again, it stated that, at several of these visits, G.F. “was excited to see” the parents and sad to see them leave. He told them that he loved them and asked several times if he could go with them.
At the section 366.26 hearing, both parents asked the juvenile court to find that the beneficial parental relationship exception applied. The juvenile court, however, found that it did not apply. It explained:
“In reading the language that the parents have maintained regular visitation and contact with the child, that one clearly exists. The parents have done that. The Court is well aware of the fact that they have had extended visitations during the course of the last few years. Those contacts have been regular.
“The bigger question then becomes whether the child would benefit from the continuing relationship as weighted against the permanency and stability that adoption would present in his life.
“Were this Court to find that the relationship with the mom and dad was such that it was vital for that relationship to continue so that there would be a legal guardianship, I can’t see that logic happening. It would be either I’m going to reunify with the parents or go towards adoption. I don’t see with a child of this age, four years old, under these circumstances, that legal guardianship would be in his best interest.
“[I]t’s obvious that . . . he loved the individuals that were in his life before, the former care givers who were the prospective adoptive parents who fell through. He has been now . . . [¶] . . . [¶] . . . three to four months with the current caretakers. There, again, appears to be a connection and a bond with them . . . .
“There are mentions of his sadness when the visitations between mom and dad end. . . . [T]he accounts vary from what the caretakers believe he is expressing in his sadness versus what the parents . . . believe that he expresses and the reason for his tears. I don’t know.
“I see a kid . . . who has been through quite a bit of turmoil in a young four-year-old life. . . . He does need permanency. He does need stability in his life. . . .
“ . . . I do believe that, not withstanding the relationship that mom and dad have with [G.F.], he needs the stability that I see . . . coming to him through his current caretakers and through adoption.”
B. Analysis.
In general, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. (Welf. & Inst. Code, § 366.26, subds. (b)(1) & (c)(1).) This rule, however, is subject to a number of statutory exceptions (Welf. & Inst. Code, § 366.26, subds. (c)(1)(A) & (c)(1)(B)(i)-(c)(1)(B)(vi)), including the beneficial parental relationship exception, which applies when “termination would be detrimental to the child” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)
“[C]ourt[s] ha[ve] interpreted the phrase ‘benefit from continuing the relationship’ to refer to a ‘parent-child’ relationship that ‘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.’ [Citation.]” (In re Mary G. (2007) 151 Cal.App.4th 184, 207.)
The exception does not require “proof that the child has a ‘primary attachment’ to a parent or that the noncustodial parent has maintained day-to-day contact with the child. [Citations.]” (In re S.B. (2008) 164 Cal.App.4th 289, 300.) However, “[a] parent must show more than frequent and loving contact or pleasant visits. [Citation.] ‘Interaction between natural parent and child will always confer some incidental benefit to the child . . . . The relationship arises from the day-to-day interaction, companionship and shared experiences.’ [Citation.] The parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.]” (In re Mary G., supra, 151 Cal.App.4th at p. 207, fn. omitted.) “In other words, for the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 468.)
“We must affirm a trial court’s rejection of these exceptions if the ruling is supported by substantial evidence. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) “We . . . review[] the evidence most favorably to the prevailing party and indulg[e] in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.]” (In re B.D. (2008) 159 Cal.App.4th 1218, 1235.) Because the parents had the burden of proof, we must affirm unless there was “indisputable evidence [in their favor] -- evidence no reasonable trier of fact could have rejected . . . .” (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
We note that the mother had been G.F.’s primary caregiver from birth until he was about two and a half. By contrast, the father had not had G.F. in his custody or care since G.F. was nine months old. Otherwise, however, both parents were similarly situated for purposes of our analysis.
The Department argues that the father did not visit G.F. regularly. It relies, however, on earlier reports that were not before the juvenile court at the section 366.26 hearing. As far as the relevant record shows, both the father and the mother had maintained regular visitation and contact. Moreover, the trial court expressly found that the parents’ “contacts have been regular.”
There was also evidence, however, that G.F. was gradually becoming less and less attached to the parents. The aggressive behavior that he had displayed after first being removed from the mother’s custody had disappeared. In July and August 2007, he seemed sad when visits came to a close; by contrast, by November 2007, the social worker was reporting that he “bec[ame] disengaged” and “los[t] interest” during visits. The parents’ “visitation log” did not cover this later period; hence, it could not and it did not contradict the social worker’s account. Admittedly, once the visitation log resumed, in April and May 2008, the mother reported that, once again, G.F. was sad to see the parents leave. The juvenile court, however, discounted this evidence, as it was entitled to do, stating that it was not convinced that this was “the reason for his tears.”
Meanwhile, G.F. had become attached to the prospective foster parents almost immediately. His therapist believed that he had bonded with them before he was even placed with them. His relationship with them was evidently that of parent and child; he called them “Mom” and “Dad,” and he told them every day that he loved them. He declared that he wanted to stay with them forever.
The juvenile court basically reasoned that, even though G.F. evidently had an affectionate relationship with his natural parents, he had nevertheless been able to bond with his previous foster parents, and after he was taken from them, with the prospective adoptive parents. It was fairly inferable he would not be harmed in any way -- much less “greatly harmed” (In re Mary G., supra, 151 Cal.App.4th at p. 207) -- by the termination of parental rights. Rather, he would benefit from the stability and permanence of adoption by the prospective adoptive parents.
The mother argues that, because G.F. had been in her care for nearly three years and in the care of the prospective adoptive parents for only four months, “it is likely” that he had a “primary attachment” to her. While this is one permissible inference, it is not the only one. As already noted, under the applicable standard of review, we must draw “all legitimate and reasonable inferences” in favor of the trial court’s ruling. (In re B.D., supra, 159 Cal.App.4th at p. 1235.)
Similarly, the father argues that “[t]he prospective adoptive parents and [G.F.] were still in their honeymoon period.” He notes that previous placements had fallen apart due to G.F.’s bad behavior. Once again, this turns the standard of review on its head, asking us to draw the worst possible inference from the evidence. It was equally inferable -- if not more so -- that G.F.’s bad behavior had disappeared for good, partly due to therapy and partly due to his new placement.
The mother relies on In re S.B., supra, 164 Cal.App.4th 289. There, the court reversed the trial court’s finding that the beneficial parental relationship exception did not apply. (Id. at pp. 298-301.) It recognized, however, that the exception required evidence that the child would be “‘greatly harmed’” by severance of the natural parent/child relationship. (Id. at p. 297.) In the case before the court, the father had “complied with ‘every aspect’ of his case plan.” (Id. at p. 298.) When visits ended, the child tried to leave with the father. (Ibid.) Once, she “spontaneously” said she wished she lived with him. (Ibid.) A bonding study had indicated that “because the bond between [the father] and [the child] was fairly strong, there was a potential for harm to [the child] were she to lose the parent-child relationship.” (Id. at p. 296.) The social worker even admitted that there would be “some detriment” to the child if parental rights were terminated. (Id. at p. 295.) Finally, the juvenile court found that the father and the child had “‘an emotionally significant relationship’ . . . .” (Id. at p. 298.) There is simply no analogous evidence in this case.
In sum, there was substantial evidence that the well-being that G.F. would gain from a permanent home with the prospective adoptive parents outweighed any well-being he would gain from a continued relationship with his natural parents. Accordingly, the juvenile court did not err by finding that the beneficial parental relationship exception did not apply.
IV
DISPOSITION
The orders appealed from are affirmed.
We concur: GAUT J., KING J.