Opinion
NOT TO BE PUBLISHED
Sup. Ct. No. J30515
MORRISON, J.
Appellant, father of the minor, appeals from the juvenile court’s orders denying his request for modification and terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395.) Appellant contends the juvenile court erred by denying the modification petition and terminating his parental rights. We shall affirm.
Further undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
On July 10, 2003, the minor, then six months of age, was removed from her mother’s custody after her mother was taken by ambulance to an emergency room due to a methamphetamine overdose. Appellant, the minor’s father, was in custody at the time on a burglary conviction. The minor’s half sister, who is one year older than the minor and was already a dependent child of the court, had already been detained. The juvenile court assumed jurisdiction over the minor and placed the minor in the paternal grandfather’s home. Reunification services were provided to both appellant and the minor’s mother. The minor was returned to her mother’s custody and jurisdiction was terminated after approximately six months of services.
Approximately two months later, on November 3, 2004, the mother relapsed and was arrested for child endangerment and being under the influence of a controlled substance. A section 300, subdivision (b), petition was filed, alleging the minor’s mother has an extensive history of substance abuse and appellant is a narcotics addict pursuant to section 3051. The court found the allegations true at the November 22, 2004, jurisdictional hearing.
The minor and her half sister were detained and initially placed together in foster care but, on December 6, 2004, were moved to the maternal grandmother’s home. The maternal grandmother also had custody of the minors’ two other half siblings. The minor had a difficult time emotionally adjusting to the removal from her mother’s care and was initially depressed and irritable. Progressively, however, the minor settled into placement with her grandmother. The minor was healthy, developmentally on target, and thriving in preschool.
The maternal grandmother adopted the minors’ half brother in 2001 and has had legal guardianship over another older half sister since 1996.
From the time the minor was detained, appellant was given the opportunity to have liberal weekly and weekend visitation with the minor. In the first week of December 2004, however, appellant requested his weekly visitation be terminated as it interfered with his employment. Overnight weekend visitation between appellant and the minor were scheduled at the paternal grandparents’ home. Appellant attended the first two visits but did not attend any of the next seven scheduled weekends thereafter. Appellant told the social worker he missed the earlier visits because he had to work. He told his parents he missed the February 5 and 6, 2005 visits because he had Superbowl weekend plans. Appellant did appear on February 6, 2005, but the paternal grandfather would not permit him to visit the minor because appellant appeared to be under the influence of a controlled substance. Appellant was arrested later that day, and ultimately convicted and incarcerated, for resisting arrest and suspicion of being under the influence of a controlled substance.
A contested disposition hearing took place on February 9, 2005. Appellant was provided reunification services but services were denied to the mother pursuant to section 361.5, subdivisions (b)(10) and (11).
Appellant was released from custody on April 8, 2005. He told the social worker his priorities had changed and he wanted to reunify with the minor. At the June 9, 2005, six-month review hearing, the juvenile court terminated appellant’s reunification services. Appellant had not been in contact with his attorney or the social worker for one month, had not shown up for visits, and had not drug tested. The juvenile court found appellant had failed to participate regularly or make sufficient progress and set a permanency plan hearing.
A permanency plan hearing was held on September 29, 2005. Although an adoption assessment indicated the minor was adoptable, the juvenile court placed the minor in a plan of guardianship. Both appellant and the minor’s mother were making efforts to address their substance abuse issues. Visitation was provided once every three months.
In November 2005, however, both appellant and the minor’s mother were arrested on felony drug possession charges. Appellant was also arrested on October 12, 2006, for driving with a suspended license while under the influence of a controlled substance and for felony possession of a controlled substance.
Meanwhile, the minor was thriving in her placement with the maternal grandmother, with whom the minor and her half sister had been placed since December 2004. The minor was bonded to the maternal grandmother and relied upon her for nurturing and stability. The minor also had a very close relationship with her half sister and an excellent relationship with her two other half siblings. The maternal grandmother requested she be permitted to adopt the children. The Butte County Department of Social Services recommended the permanent plan be changed to one of adoption and a hearing was set.
The social worker’s report, prepared on November 30, 2006, emphasized how well the minor was doing in her placement with the maternal grandmother. The report also noted that appellant had only been present for one visit over the previous year. The minor was visited weekly, unsupervised, by her paternal grandparents. The maternal grandmother arranged the visits with the paternal grandparents, which occurred “as frequently as the grandparents choose.” The maternal grandmother agreed to enter into a postadoption visitation agreement for contact between the minor and her biological family. Appellant, however, cancelled his appointment and, accordingly, the postadoption visitation agreement had not yet been reached.
Prior to the second permanency plan hearing, the minor’s mother relinquished her parental rights. Appellant filed a section 388 petition, alleging changed circumstances in that he had progressed in his substance abuse recovery. He provided documentation that he attended AA/NA meetings and had applied for the Esplanade House (an inpatient recovery program). He requested reunification services be reinstated or, in the alternative, that the plan of legal guardianship remain in place. He alleged the modification request was in the minor’s best interest because the minor is part African-American and, therefore, he believed she should be raised by himself and the paternal grandparents so she will know her cultural heritage.
A combined permanency plan and modification hearing was held on March 7, 2007. At the hearing, appellant testified that (despite his November 2005 and October 2006 arrests) he had been “clean and sober” since September or October 2005. He was attending alcohol and drug services and participating in Bible studies. Although the minor had never lived with him and his visits had been sporadic, he stated he and the minor shared a good relationship and the minor hugged his leg and said she loves him. The paternal grandfather testified that the minor was half African-American and there were “cultural reasons” why the minor should remain connected with the paternal family. He had not understood that the maternal grandmother was agreeing to sign a postadoption visitation agreement.
The juvenile court commended appellant and the minor’s mother for making efforts to change their lives and noted that appellant had made excellent progress. The court then stated: “I think there has been a change since the guardianship was ordered and that is the fact that [the minor’s half sister] is going into a plan of adoption. . . . The fact that we have one sister being adopted and the other one being so-called “‘left out,’” . . . how are these little girls going to deal with that if the Court doesn’t approve the adoption plan? Is [the minor] going to feel that somehow she’s been cheated out of having a permanency that the law and morality required? Is she going to grow up and think she’s been treated differently because of some reason? I hope not. I don’t want that to happen. I think that it’s important for [the minor and her half sister] to have that sibling relationship and, therefore, the Court is going to deny the petition for a change order. I do not believe it would be beneficial to [the minor] to rekindle the possibility and the hope to have [appellant’s] drug addiction permanently overcome. I think it’s more important for [the minor] to have the permanency of a guardianship or adoption. So that change order is denied. [¶] With respect to whether it should be a guardianship or adoption, I believe that adoption is the right way to go.” The court then placed the minor in a plan of adoption and terminated appellant’s parental rights.
DISCUSSION
Appellant contends the juvenile court erred by denying his request to modify its previous order and reinstated reunification services and by selecting adoption, rather than continued guardianship, as the permanent plan. We disagree.
Respondent, Butte County Department of Employment and Social Services, failed to file a timely respondent’s brief. Seven weeks after the respondent’s brief was initially due, respondent’s counsel contacted this court for the first time by filing a motion requesting an additional month to file a late respondent’s brief. The motion was denied.
Section 388, subdivision (a) provides, in part: “Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.”
Section 388 permits a modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.).) The petitioning party has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48 (Casey D.).)
One of the functions of section 388 is to 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.” (Kimberly F., supra, 56 Cal.App.4th at p. 528, citing In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) “‘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.” (Ibid.; italics omitted.)
The best interests of the child are of paramount consideration when a modification petition is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this juncture, the juvenile court looks not to the parent’s interests in reunification but to the needs of the child for permanence and stability. (Marilyn H., supra, 5 Cal.4th at p. 309.) “A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” (Casey D., supra, 70 Cal.App.4th at p. 47.)
“[W]hen a child has been placed in foster care because of parental neglect or incapacity, after an extended period of foster care, it is within the court’s discretion to decide that a child’s interest in stability has come to outweigh the natural parent’s interest in the care, custody and companionship of the child.” (In re Jasmon O. (1994) 8 Cal.4th 398, 419 (Jasmon O.).)
A modification petition “is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (Jasmon O., supra, 8 Cal.4th at p. 415.) “It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . .” (Kimberly F., supra, 56 Cal.App.4th at p. 522.)
Applying these principles to the circumstances before us, we conclude the juvenile court did not abuse its discretion when it denied appellant’s request to modify its previous order. Although appellant had made progress in addressing his substance abuse issues, he was not ready, nor did he request, to have the minor placed in his custody. Indeed, he was planning on entering an inpatient treatment program.
The only alternative open to the court was to reinstate reunification services, which would have resulted in a further period of uncertainty for the minor, who was indisputably adoptable. But the “‘escape mechanism’” provided by section 388 after reunification efforts have ceased is only available when a parent has completed a reformation before parental rights have been terminated. (Kimberly F., supra, 56 Cal.App.4th at p. 528.) In most cases, if a parent’s circumstances have not changed sufficiently to permit placement with that parent of an otherwise adoptable child, reopening reunification “does not promote stability for the child or the child’s best interests.” (Casey D., supra, 70 Cal.App.4th at p. 47.) Under the minor’s circumstances, a modification that would entail anything short of placement with appellant would have run counter to “the [minor]’s need for prompt resolution of [her] custody status.” (Marilyn H., supra, 5 Cal.4th at p. 309.)
Appellant asserts that the juvenile court found changed circumstances in support of his petition to modify. But while the court acknowledged that appellant had made progress in addressing his substance abuse, the changed circumstance it emphasized was that the minor’s half sister was being adopted while appellant remained unable to assume the care and custody of the minor. Out of concern for the minor’s needs, the court found the best interests of the minor would be promoted by proceeding to the selection of a permanent plan. This determination by the juvenile court was well within its discretion. The requested modification would have prolonged the unnecessary element of uncertainty in the minor’s life when what the minor needs is stability.
Appellant also argues the evidence established that the minor’s best interests would be served by leaving the minor in a permanent plan of guardianship so the minor could have a relationship with him and his family. The juvenile court was not bound to accept this as fact, particularly since the minor had lived with the maternal grandmother for most of her young life, she had a strong relationship with the maternal grandmother and her half siblings, and appellant’s contact with the minor had been infrequent and inconsistent. Nor was the juvenile court bound to conclude that the minor’s contact with her paternal biological family, because they are African-American, was more important than the minor’s interest in stability. Moreover, as the juvenile court noted, the maternal grandmother agreed to a postadoption visitation contract with the paternal biological family. Thus, there was no reason to believe the minor would not continue to have a relationship with appellant and his biological family.
For all of these reasons, we conclude the juvenile court acted within its discretion when it denied appellant’s request for a modification of the juvenile court’s previous order.
DISPOSITION
The juvenile court’s orders are affirmed.
We concur: BLEASE, Acting P.J., ROBIE, J.