Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD224230
DAVIS, J.
Appellant, father of the minor, appeals from the juvenile court’s orders denying his request for modification and terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395.) Appellant contends the juvenile court erred by denying his modification request and by failing to find an exception to adoption. We shall affirm.
Hereafter, undesignated section references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
In April 2006, the Sacramento County Department of Health and Human Services (the Department) filed a juvenile dependency petition concerning the newborn minor, alleging that the mother and the minor tested positive for cocaine at the minor’s birth, the minor was exhibiting withdrawal symptoms, and appellant had a substance abuse problem and had last used crack cocaine earlier that month following his conviction the previous month for possession of a controlled substance. The mother’s two other children, ages 12 and 14, resided with appellant and her in the home of the maternal grandmother and were not subjects of these proceedings.
According to the jurisdiction/disposition report, the minor was born at 31 weeks gestation weighing three pounds five ounces, and was believed to have fetal alcohol syndrome. The minor was placed in intensive care after his birth, where he ate and breathed with the assistance of tubes. After five weeks, he was released to a foster home.
The mother admitted she was an alcoholic and a crack cocaine user. Appellant, who lived with the mother, reported that he was participating in a drug “diversion program” in connection with his “last drug conviction.”
In June 2006, the juvenile court sustained the allegations in the petition and ordered reunification services. In addition, appellant and the minor’s mother agreed to participate in dependency drug court.
At the six-month review hearing, it was reported that the mother had relapsed. Appellant was complying with his case plan, but he failed to report the mother’s relapse to the Department and allowed her to be present during unsupervised visits with the minor. The social worker felt that appellant needed to address issues of codependency and the risks to the minor of remaining in a relationship with the mother.
At the review hearing in December 2006, the juvenile court ordered continued services for both parents and set a hearing, in part, to address “return to [appellant]” and the “status of [appellant’s] housing.”
Appellant continued to reside with the mother despite receiving referrals from the Department to assist him in obtaining separate housing, and both the social worker and appellant’s therapist expressed concern that appellant was resistant to addressing his codependency issues. At the subsequent hearing in February 2007, the juvenile court did not order the minor returned to appellant.
Appellant completed substance abuse treatment and dependency drug court in December 2006 but, in February 2007, he tested positive for cocaine metabolites three times after failing to submit to testing on numerous occasions in January and February. The minor’s mother also stopped testing in January 2007 and had not consistently participated in substance abuse treatment. Appellant was described as “struggl[ing] to meet his needs by charming others and if this does not work, he gets more and more aggressive by manipulating others and telling untruths if need be.” And despite numerous referrals, appellant still had not obtained separate housing. In addition, the minor had ongoing severe medical issues, which included delays in growth and development, failure to thrive and a ventricular septal defect that might require surgery. The social worker recommended that reunification services be terminated.
According to an addendum report in May 2007, the parents’ current therapist expressed concern about their ability to care for the minor in light of the minor’s severe medical problems and the challenges of dealing with the two other children in their home. In addition, the mother was pregnant and admitted feeling overwhelmed and unable to care for the minor as well as her other children. The therapist did not recommend reunification with appellant, reporting that appellant did “not appear to be clear what [the minor’s] specific medical problems are, how they are to be dealt with and what it will realistically take to raise him.”
The minor’s sibling was born in late June 2007 with no health concerns. However, in an addendum report in July 2007, it was reported that appellant had continued to miss drug tests since April as well as numerous counseling sessions, offering the excuse that he was working three jobs. Appellant had not met any of his treatment goals in counseling, instead spending sessions arguing with the therapist, and his treatment had been terminated. In addition, appellant and the mother visited the minor only sporadically beginning in May 2007.
Following a contested review hearing, the juvenile court terminated reunification services and set the matter for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minor. With regard to appellant, the court based its ruling on the fact that he had not obtained housing separate from the mother, had not drug tested as required and had relapsed after completing a substance abuse program, after which he stopped regularly attending counseling and visits. The court observed: “If parents wish to stay together so be it, but they need to understand that if one parent is not an appropriate parent for the child and it causes risk to the child, the child won’t be going to that home and so that’s why at times it’s appropriate for a parent to move out on their own to be able to parent for this child. It’s a matter of priority. It’s a matter of commitment . . . .”
According to the report prepared for the section 366.26 hearing, the minor’s heart defect, which was related to his premature birth and prenatal drug and alcohol exposure, continued to be a concern. He also had asthma and a rare urinary tract infection. The minor was scheduled for a “genetic appointment” to confirm his diagnosis of fetal alcohol syndrome and to assess any brain damage that may have been caused by his prenatal exposure to alcohol. In addition, he was receiving occupational and physical therapy for his developmental delays, which included language delays. He did not sleep through the night, was unable to “self-soothe” and had no coping skills. The prospective adoptive parents were the minor’s foster parents, who had cared for him since his discharge from the hospital after his birth. The minor was “clearly bonded” to the foster parents, “seek[ing] them out for comfort and affection.”
Meanwhile, the parents’ visitation was reportedly “very sporadic,” and when they did attend visits, they often arrived late and left early. The parents’ “no-show[s]” were difficult for the minor, who had to be transported nearly two hours roundtrip for visits. In addition, the social worker reported that appellant did not interact appropriately with the minor and did not listen to advice in this regard that was offered by the supervising social worker. Although earlier reports from the social worker indicated that appellant and the mother had “positively bonded” with the minor, by the time of the section 366.26 report, the minor did not evince any stress at the end of visits and went readily with the foster parent, whom he would reach out for while being held by appellant. The social worker concluded that there was not a strong bond between the minor and his parents.
While the section 366.26 hearing was pending, appellant filed a request to change the juvenile court’s order terminating reunification services. As changed circumstances, appellant alleged that he had entered dependency drug court in August 2007, had consistently tested negative for controlled substances, and was engaged in individual counseling and parenting classes. He asserted that the minor’s younger sibling was being safely maintained in his care and that he could provide the minor a safe and stable home. Appellant requested that the minor be returned to his care or that additional services be provided.
The juvenile court set appellant’s modification request for a hearing on the same date as the section 366.26 hearing.
At the hearing, appellant testified that, since services were terminated, he had completed an outpatient drug program involving once a week participation and had just enrolled in another treatment program that would also assist him with obtaining separate housing from the minor’s mother, which he had not yet done. According to appellant, since August 2007, he also had completed an outpatient program that met two times a week, was participating in dependency drug court, which he would complete in five months, was attending three to four 12-step meetings a week, was participating in the S.T.A.R.S. treatment program, had completed 18 counseling sessions with one therapist and was engaged in therapy with another therapist, had continued to drug test and had attended four parenting class sessions. Appellant acknowledged he was receiving these services with regard to his other child’s dependency matter.
Appellant admitted he had been terminated from dependency drug court in December 2007 for noncompliance and had appeared in court to reenroll in the program only two days before the hearing. He explained that part of the reason for his noncompliance was the illness of the minor’s mother, who had cirrhosis of the liver. Appellant admitted he had not attended 12-step meetings in September and November and that he was dropped from his parenting class for excessive absences but he intended to start them again.
According to appellant, he was attending weekly visits with the minor, who would “light[] up like a Roman candle” when appellant arrived. Appellant testified that the minor and he “showed [each other] a lot of love,” and the minor “seemed to be a little . . . sad” at the end of visits.
The juvenile court found that appellant’s circumstances were changing but had not changed, as he still had not completed services, had failed to comply with dependency drug court, had not completed parenting classes and did not attend all visits with the minor. In addition, the court concluded it was not in the minor’s best interests to disrupt his stability and permanence. Consequently, the court denied appellant’s request for modification.
Appellant did not present any further evidence with regard to the permanent plan for the minor, but “enter[ed] an objection to the termination of parental rights and to the plan of adoption.” The juvenile court terminated parental rights and ordered adoption as the permanent plan.
DISCUSSION
I
Appellant contends the juvenile court erred by denying his request to modify its previous order terminating reunification services. We disagree.
Section 388, subdivision (a), provides in pertinent 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 . . . .”
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.).)
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.” (Marilyn H., supra, at p. 309.)
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.) “[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 here, we conclude the juvenile court did not abuse its discretion by denying appellant’s request for modification. Appellant’s substance abuse, along with that of the minor’s mother, was the basis for dependency jurisdiction. The court terminated appellant’s services, in part, because he had relapsed after completing substance abuse treatment, had been noncompliant with testing, and had not found separate housing. By the time of the hearing on appellant’s modification request, he had been terminated from dependency drug court for noncompliance less than a month earlier, and had reenrolled just two days prior to the hearing in connection with his other child’s dependency matter. As appellant’s noncompliance with testing during reunification preceded his positive test for cocaine metabolites, his recent period of noncompliance was cause for particular concern.
Furthermore, although appellant testified he was making efforts to find alternate housing, he continued to reside with the minor’s mother. Appellant’s assertion on appeal--that he should not have been forced to abandon his sick wife in order to reunify with the minor--is unconvincing. As pointed out by the juvenile court, appellant’s willingness to establish separate living arrangements was “a matter of priority” and “commitment” to reunifying with the minor. In addition, appellant never objected to obtaining separate housing prior to this appeal.
Appellant requests we take judicial notice of a death certificate for the minor’s mother showing a date of death after the section 366.26 hearing. As appellant has failed to explain the relevance of this document, and we can discern none, we decline to take judicial notice of it. (People v. Rowland (1992) 4 Cal.4th 238, 268, fn. 6.)
Appellant suggests that, as the minor’s younger sibling remained in the home, there would be no risk to the minor if returned to appellant’s care. But unlike the younger sibling, the minor had an array of medical and developmental problems, requiring a particularly high level of skillful and diligent parenting. Appellant had not exhibited the requisite abilities in this regard despite the array of services he had been provided.
Accordingly, the juvenile court acted well within its discretion in concluding that appellant’s circumstances were, at most, changing, and did not warrant a return of the minor to his care.
Appellant alternatively requested to be provided additional reunification services. But as mentioned previously, our Supreme Court has held that a child’s needs for stability and permanence are the focus when a request for modification is brought after the termination of reunification services. (Marilyn H., supra, 5 Cal.4th at p. 309.) 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.)
Here, the minor, who had serious medical problems and other special needs, was in a stable placement where he was comfortable and bonded with foster parents who were willing to make a permanent commitment to him. Additionally, there was evidence before the juvenile court that appellant had a minimal understanding of the minor’s various conditions and what would be entailed in caring for him. In addition, based on the social worker’s observations, she concluded the minor did not have a strong bond with appellant. The juvenile court’s determination that it would not serve the minor’s best interests to forestall permanency under these circumstances was a judicious exercise of its discretion.
Appellant suggests the foster parents’ commitment to the minor “may not be unwavering” based on the fact that, earlier in the proceedings, they had not been interested in pursuing adoption of the minor. Appellant did not attempt to elicit any evidence concerning the foster parents’ commitment to adoption at the hearing on his request for modification, and we discern no basis in the record to question their commitment. The juvenile court reasonably could have concluded that their reluctance to adopt a child with the myriad problems of the minor dissolved as their bond with the minor developed.
Appellant argues that, by denying his modification request, “the juvenile court infringed on and violated the constitutional rights of this natural family.” Appellant did not assert this claim before the juvenile court and arguably has forfeited the issue for purposes of appeal. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) In any event, “[b]y the time termination [of parental rights] is possible under our dependency statutes . . . the parens patriarch interest of the state favoring preservation rather than severance of natural familial bonds has been extinguished.” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256.) Appellant was provided extensive reunification services and, thus, ample opportunity to preserve his relationship with the minor. The focus of the proceedings had shifted from family preservation to stability and permanence for the minor at the point at which appellant filed his request for modification.
We note that appellant erroneously relies on section 202, subdivision (a), for the proposition that, when a minor is removed from parental custody, reunification with the “family shall be a primary objective.” That provision falls within a section of the Welfare and Institutions Code pertaining to delinquents and wards of the juvenile court. Section 300.2, dealing with dependent children, provides: “The focus shall be on the preservation of the family as well as the safety, protection, and physical and emotional well-being of the child.” (Italics added.)
Accordingly, it was not an abuse of discretion for the juvenile court to conclude that reinstituting services at this juncture would not be in the minor’s best interests.
II
Appellant also contends the juvenile court erred by failing to find an exception to adoption based on the beneficial relationship he had with the minor. This claim, too, is without merit.
Appellant did not make this argument at the section 366.26 hearing, which normally would preclude him from raising it on appeal, as the juvenile court does not have a sua sponte duty to consider statutory exceptions to adoption. (In re Daisy D. (2006) 144 Cal.App.4th 287, 292; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252).) However, in appellant’s pretrial statement, he suggested that the exception to adoption would be at issue at the section 366.26 hearing. As the Department does not assert that appellant has forfeited the issue, we address the merits of his claim.
At a hearing under section 366.26, if the court finds by clear and convincing evidence that a minor is likely to be adopted, the court must terminate parental rights and order the minor placed for adoption unless “[t]he court finds a compelling reason for determining that termination would be detrimental” due to one of the statutorily enumerated exceptions. (§ 366.26, subd. (c)(1)(B).) One such exception is when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The parent has the burden of establishing an exception to termination of parental rights. (Cal. Rules of Court, rule 5.725(e)(3); In re Zachary G. (1999) 77 Cal.App.4th 799, 809 (Zachary G.); see In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
“[A] parent may not claim entitlement to the exception provided by [section 366.26,] [former] subdivision (c)(1)(A) [now subdivision (c)(1)(B)(i)] simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (In re Jasmine D. (2000) 78 Cal.App.4th at 1339, 1349.) The benefit to the child must promote “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. (1994) 27 Cal.App.4th 567, 575.)
“[F]requent and loving” contact is not sufficient to establish a sufficient benefit to overcome the preference for adoption absent a significant, positive, emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) And even a strong positive bond with a parent has been held insufficient to defeat adoption when a child looks to a prospective adoptive parent to meet his needs. (Zachary G., supra, 77 Cal.App.4th at p. 811.)
“Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
In the present matter, even assuming appellant’s visitation (which had become sporadic in the months preceding the section 366.26 hearing) was sufficient to satisfy the statutory requirement, the detriment posed to the minor from terminating parental rights had to be compelling to warrant a permanent plan other than adoption. (§ 366.26, subd. (c)(1)(B).) While there was evidence that the minor’s relationship with appellant was positive, there was no evidence he would suffer any serious detriment if contact with appellant was severed. Furthermore, the significance of the relationship to the minor had to be weighed against the benefits he would gain in a permanent adoptive home. Unquestionably, the minor’s array of medical and developmental problems supports a determination that his need for stability and permanence outweighed the benefits he would gain from maintaining his relationship with appellant.
Appellant argues that a permanent plan of guardianship would have satisfied the minor’s need for stability and permanence while allowing him to maintain a relationship with his biological parents. We do not agree. “‘The Legislature has decreed . . . that guardianship is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them.’ Citation. A guardianship is ‘not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.’” (In re Teneka W. (1995) 37 Cal.App.4th 721, 728.) On the record before it, the juvenile court, here, was entitled to conclude that only adoption, as the preferred disposition (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368), would promote the best interests of the minor.
Appellant’s reliance on In re Brandon C. (1999) 71 Cal.App.4th 1530 is misplaced. In that case, the juvenile court found the exception to adoption for a beneficial parental relationship applied, and ordered a permanent plan of guardianship with the paternal grandmother. (Brandon C., supra, 71 Cal.App.4th at p. 1533.) The appellate court concluded that substantial evidence supported the juvenile court’s order, noting that the mother had consistently visited the minors to the extent permitted by the court and that the juvenile court “obviously credited the testimony from both mother and grandmother that there was a close bond between mother and the boys, and that a continuation of contact would be beneficial to the children.” (Id. at p. 1537.) The court noted, further, that no evidence to the contrary was presented. (Ibid.)
In the present matter, the juvenile court was entitled to conclude that the minor’s bond with appellant was not so strong that he would suffer significant detriment if the relationship was severed. The record amply supports the conclusion that the benefits to the minor of adoption outweighed the benefits he would get from maintaining his relationship with appellant.
Similarly misplaced is appellant’s reliance on In re S.B. (2008) 164 Cal.App.4th 289, 296, in which the juvenile court found that the six-year-old child had an emotionally significant relationship with her father, who had been her primary caregiver for three years of her life, but that the evidence did not establish the relationship was “parental” or that it would be greatly detrimental to her if parental rights were terminated. (S.B., supra, 164 Cal.App.4th at pp. 293, 296, 298.) In that case, the child exhibited a strong attachment to the father after she was removed from his care and demonstrated behavior indicating she wanted their relationship to continue. (Id. at p. 298.) The appellate court concluded that the juvenile court had erred in declining to find an exception to adoption based on the father’s relationship with the child, as “the only reasonable inference is that [the child] would be greatly harmed by the loss of her significant, positive relationship with [the father.” (Id. at p. 301.)
Here, on the other hand, the juvenile court did not make any equivalent findings concerning appellant’s relationship with the minor, and substantial evidence supports a contrary finding--that the relationship between appellant and the minor was not sufficient to merit derailing adoption.
Accordingly, the juvenile court did not err in terminating appellant’s parental rights.
DISPOSITION
The juvenile court’s orders are affirmed.
We concur: SCOTLAND, P.J., BLEASE, J.