Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. J515931A, B, Elva Soper, Judge.
BENKE, Acting P. J.
Erick C. and Julia C. appeal a juvenile court judgment terminating their parental rights to their minor children Isaiah C. and M.C. (together the minors) under Welfare and Institutions Code section 366.26. Erick contends the court erred by summarily denying his section 388 petition for modification seeking to have the minors returned to his custody. He also challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating his parental rights. Julia joins in these arguments. We affirm the judgment.
Statutory references are to the Welfare and Institutions Code.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, §52.) The beneficial parent-child relationship exception, formerly section 366.26, subdivision (c)(1)(A), is now section 366.26, subdivision (c)(1)(B)(i). Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2005 two-year-old Isaiah became a dependent of the juvenile court under section 300, subdivision (b) and was removed from parental custody based on findings his parents exposed him to domestic violence. M.C. was born in January 2006 and became a dependent under section 300, subdivision (b) after the court found Julia used methamphetamine while pregnant and M.C. was at risk due to her parents' domestic violence. The court placed the minors with a maternal aunt and ordered Erick and Julia to participate in reunification services. Erick had no history of substance abuse but he needed services to address his serious problems with domestic violence and anger management.
The minors were later removed from this placement and eventually placed with another maternal aunt.
During the next six months, Erick and Julia were arrested and jailed for an incident of domestic violence. Erick enrolled in a domestic violence treatment program but was dismissed from it for poor attendance and nonpayment. He claimed to have completed an anger management class, but never produced proof of completion. Erick participated in therapy but was late for every appointment. According to his therapist, Erick seemed to have good intentions with respect to the minors, but he had a pattern of being irresponsible. He consistently visited the minors and was loving and appropriate with them.
At a six-month review hearing the court found Erick and Julia had not made substantive progress with their case plans. The court terminated services and set a section 366.26 selection and implementation hearing.
Erick filed a section 388 petition for modification seeking to have the minors placed with him, or alternatively, to have the court reinstate reunification services and vacate the selection and implementation hearing. As changed circumstances, Erick alleged he continued to pursue reunification on his own by attending therapy and a domestic violence treatment program, he consistently visited the minors, a bonding study showed Isaiah had a bond with him, and he was able to support the minors through his full time employment. As to best interests, Erick alleged the minors were bonded to him and the problems that brought the minors into the dependency system had been alleviated.
The minors were assessed as generally adoptable and their maternal aunt wanted to adopt them. She was meeting the minors' daily needs and was responsible for Isaiah's improved behavior. The minors were very attached to the aunt who would likely be approved to adopt them. Isaiah enjoyed visiting and interacting with Erick but M.C. had no parent-child relationship with Erick and preferred to be with her aunt. The aunt was willing to facilitate visits between Erick and the minors if she adopted them.
The court summarily denied Erick's section 388 petition finding there was no showing of changed circumstances or that the proposed modification was in the minors' best interests. At the selection and implementation hearing, the social worker testified she observed 11 visits between Erick and the minors. Isaiah was happy to see Erick and loved Erick's attention. However, Erick did not change diapers or feed the minors during visits. The minors went to the aunt when they needed their needs met. They did not react negatively at the end of visits.
After considering the evidence and hearing argument of counsel, the court found the minors were adoptable and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court referred the minors for adoptive placement.
DISCUSSION
I
Erick contends the court erred by summarily denying his section 388 petition. He asserts he showed changed circumstances and that the proposed modification was in the minors' best interests. Julia joins in this argument.
A
Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]" (In re Marilyn H., supra, 5 Cal.4th at p. 310.) If the petition presents any evidence that a hearing would promote the child's best interests, the court will order the hearing. (In re Jasmon O., supra, 8 Cal.4th at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) "However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] 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.)
B
Erick's petition alleged his circumstances had changed because he continued to pursue reunification on his own by attending therapy and a domestic violence treatment program, he consistently visited the minors, a bonding study showed Isaiah had a bond with him and he was able to support the minors through his full-time employment. However, Erick made no prima facie showing he had successfully addressed his problem with domestic violence — the protective issue that brought the minors into the dependency system. During the five-year relationship between Erick and Julia there were more than 50 documented incidents of domestic violence. Even after the minors were removed from parental custody and the parents were offered services, Erick and Julia engaged in another incident of domestic violence resulting in their incarceration. Thus, Erick's recent enrollment in therapy and a domestic violence treatment program showed, at most, his circumstances were "changing." A petition that alleges changing circumstances does not promote stability for the child or the child's best interests because it would mean delaying the selection of a permanent home to see whether a parent who has failed to reunify with the child might be able to reunify at some future point. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H., supra, 5 Cal.4th at p. 310.)
Further, Erick's continued visits with the minors, his employment status and the "moderate" bond Isaiah had with Erick were not changed circumstances or "compelling consideration[s] at this point in the process." (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348.) The court reasonably could have found that any change in Erick's circumstances was "not legally sufficient to require a hearing on [his] section 388 petition." (In re Angel B. (2002) 97 Cal.App.4th 454, 465.)
Even had Erick made a prima facie showing of changed circumstances, his petition did not show that placing the minors with him or offering him further reunification services was in the minors' best interests. Erick did not participate in or benefit from the services offered to him during the reunification period. The minors were receiving excellent care from the maternal aunt who wanted to adopt them. After reunification services are terminated, a parent's " 'interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 317) The proper focus of this case was on the minors' need for stability, continuity and permanency, regardless of Erick's interest in reunification. (Id. at pp. 317-318; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1507.) Because the facts alleged in the petition would not have sustained a favorable decision on the section 388 petition, Erick was not entitled to an evidentiary hearing. (In re Zachary G., supra, 77 Cal.App.4th at p. 808.)
II
Erick challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating his parental rights. He asserts he regularly visited the minors, who would benefit from continuing the parent-child relationship. Julia joins in this argument.
A
We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order, and affirm the order even if there is substantial evidence supporting a contrary finding. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of six specified exceptions. (§ 366. 26, subd. (c)(1)(A)-(F); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(A) provides an exception to the adoption preference if termination of parental rights 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." We have 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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord, In re Zachary G., supra, 77 Cal.App.4th at p. 811.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent "must show that he or she occupies a 'parental role' in the child's life," resulting in a "significant, positive, emotional attachment" from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B
Although Erick regularly visited the minors, he did not meet his burden of showing there was a beneficial parent-child relationship such that terminating parental rights would be detrimental to the minors. Erick did not occupy a parental role in the minors' lives. The minors were bonded to their maternal aunt and looked to her to meet their needs. Although Erick was appropriate during visits and the minors enjoyed seeing him, the minors had no problem separating from Erick when visits ended. There was no evidence of a "significant, positive, emotional attachment" from the minors to Erick such that terminating the parent-child relationship would result in great detriment to them. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Rather, the evidence showed the minors' need for permanence and stability through adoption outweighed any interest in preserving parental ties.
Where, as here, the biological parent does not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) The minors, whose needs Erick could not meet, deserve to have their custody status promptly resolved and their placement made permanent and secure. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating Erick's parental rights. Consequently, Julia is not entitled to a reversal of the judgment terminating her parental rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., AARON, J.