Opinion
B323054
07-21-2023
In re A.S. et al., Persons Coming Under the Juvenile Court Law. v. J.R. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant J.R. Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant R.S. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Melania Vartanian, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County. No. 19CCJP05946A-D Daniel Zeke Zeidler, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant J.R.
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant R.S.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Melania Vartanian, Deputy County Counsel, for Plaintiff and Respondent.
GRIMES, J.
Appellants are parents J.R. and R.S. J.R. (mother) is mother to minors A.S., B.S., C.S., and E.S. Of these minors, R.S. (father) is father to only A.S.
Father and mother each appeal denial of their respective Welfare and Institutions Code section 388 petitions for reunification services. Father did not have reunification services in this case because he was incarcerated for the majority of the proceedings. The juvenile court denied his petition after a full hearing. Mother had 22 months of reunification services in this case, on top of the 19 months she received in a prior case. The court summarily denied her section 388 petition. We conclude the court acted within its discretion in denying the parents' section 388 petitions.
Undesignated statutory references are to the Welfare and Institutions Code.
Parents further appeal the juvenile court's termination of their parental rights. Each argues the court misapplied the parental benefit exception under section 366.26, subdivision (c)(1)(B)(i). We find no abuse of discretion by the court in this regard, either.
Accordingly, we affirm in all respects.
BACKGROUND
Both parents have a long history of endangering their children due to their drug abuse and other issues. A.S., born in 2015, is the oldest of the children involved in this case. Mother tested positive for marijuana while she was pregnant with him and had PCP and benzodiazepines in her system at the time of his birth. Father was not present for the birth because he was in custody for robbery. The Los Angeles County Department of Children and Family Services (Department) detained A.S. from the hospital, and the juvenile court later declared him a dependent based on four sustained counts in the Department's petition. At the time, father had two other children from a prior relationship who were also dependents of the juvenile court due to his drug use. He was receiving reunification services for these children.
The juvenile court initially ordered services for both parents in April 2015. A.S. was returned to mother three months later. In October 2015, the court terminated reunification services for father, who was still in custody. In January 2016, it again ordered A.S. detained from mother after she appeared drunk and tested positive for methamphetamines at her drug program. The court terminated reunification services for mother in May 2016, but granted her another six months of services a year later upon her section 388 petition. A year after that, the court granted mother sole physical and legal custody of A.S. and supervised visits for father (again, still in custody).
The present case began in 2019. By this time, mother had had two more children, E.S. and B.S., with a different father. Both father and the father of E.S. and B.S. were incarcerated at the time. An anonymous caller to the Department reported in July 2019 that mother was "drug addicted and out of control" and putting her children at risk with her drug use, social affiliations, and squalid home. The Department's initial investigation found the children seemingly healthy and happy but living in a dirty home with significant safety concerns, including access to a knife and gun. Mother claimed to be four years sober and agreed to drug test. She missed the first two tests the Department scheduled for her in July 2019 but then tested negative three times the following month.
The Department filed a petition concerning the three children in September 2019. The petition contained three counts. The first two were under section 300, subdivision (b)(1), one based on the safety concerns in the home; the other relating to mother's "mental and emotional problems[,] including paranoia behaviors and a diagnosis of bi-polar and depression ...." The third was under subdivision (j), alleging risk to B.S. and E.S. based on A.S. previously being a dependent because of mother's mental and emotional problems. An amended petition alleged two additional counts under subdivision (b)(1), one based on the drug use, criminal history and current incarceration of the father of B.S. and E.S.; the other relating to mother's failure to obtain necessary developmental services for A.S.
On November 5, 2019, the juvenile court sustained the petition as to the original (b)(1) counts and a portion of the additional (b)(1) count relating to the father of B.S. and E.S. The other counts were dismissed. Mother was unexpectedly absent from the hearing. She had also missed a number of recent drug tests. Nonetheless, the court allowed the children to remain placed in the home of mother.
The following day, the Department made an unannounced visit to the family home. It found mother and her children in the dark because their electricity did not work and A.S. on the floor wrapped in a blanket next to a puddle of his own vomit. Mother explained that the home was infested with roaches and rats, the latter of which she thought may have caused the power outage. Neither her phone nor car were working. The Department detained the children and took them to the hospital for evaluation. There, medical personnel observed unusual bruises and bumps on E.S.'s body and severe untreated diaper rash. A.S. was seen in the emergency room for his high fever. After being discharged, he continued to vomit, and B.S. began displaying similar symptoms.
At the Department's request, the juvenile court ordered the children detained. It further ordered reunification services for the parents and twice-weekly visits for mother. At the time, father remained incarcerated and had yet to appear. In the month after her children were detained, mother had no visits with them.
In December 2019, the Department filed a subsequent petition under section 342, alleging additional grounds for jurisdiction under section 300, subdivisions (a), (b)(1), and (j) based on the marks observed on E.S.'s body. Because of the intervening COVID-19 pandemic, the juvenile court did not consider the petition until June 2020. When it finally did, it sustained each new count.
On the same day it sustained the subsequent petition, the juvenile court held a dispositional hearing, at which father appeared through counsel. The Department reports filed in advance of the hearing reflected that the children were placed together in foster care. Mother had generally been testing negative for drugs and alcohol, though she missed a few tests. She had moved into a sober living house and was undergoing mental health treatment, albeit inconsistently. The B.S. and E.S. father was living with mother at the sober living house, and mother was pregnant again. That father was uncooperative with the Department and refused services, though the Department recommended he receive them.
Father remained incarcerated and the Department recommended he receive no services. The juvenile court found by clear and convincing evidence that remaining in the home of mother and the father of B.S. and E.S. would pose substantial danger and risk of detriment to the children's physical health, safety, protection or physical or emotional well-being. In accordance with the Department's recommendations, the court ordered the Department to provide family reunification services to mother and the B.S. and E.S. father and bypassed family reunification services for the A.S. father based on his lack of relationship with A.S., the length of his incarceration, and other factors in section 361.5, subdivision (e).
Mother gave birth to C.S. in July 2020. The Department detained C.S. shortly after her birth and placed her with her siblings in foster care. Although mother listed the father of B.S. and E.S. as the father of C.S. on her birth certificate, mother later acknowledged, and the juvenile court later determined, that he was not C.S.'s father.
The Department's initial petition concerning C.S. was based on allegations similar to those previously sustained as to her half siblings. After further investigation, the Department filed an amended petition adding allegations of domestic violence and substance abuse by the father of C.S. The juvenile court sustained the amended petition and removed her from her parents. It ordered reunification services for mother and the B.S. and E.S. father but bypassed services for the C.S. father pursuant to section 361.5, subdivision (a).
Mother thereafter struggled to address the challenges that brought her children before the juvenile court.
In December 2020, in the cases for the three older children, the Department reported that, despite some effort on her part, mother was not making progress with her court-ordered services. One impediment the Department identified was mother's desire to maintain her unhealthy relationship with the B.S. and E.S. father, who was unwilling to participate in his court-ordered services. Mother also refused to acknowledge her mental health issues or accept treatment for them. Nevertheless, she was having positive and consistent visits with her children.
Meanwhile, the children were thriving together in the care of their foster parents. When they arrived in foster care, they lacked age-appropriate skills as basic as how to eat, drink water, use the toilet, and speak. Lacking basic communication skills, they frequently resorted to physical fighting. In their foster placement, they learned how to safely bite and chew their food, drink water without choking, use the bathroom, and communicate verbally. Their caregiver reported "the children no longer fight or hit each other like they used to."
In March 2021, the Department again reported mother was falling short of compliance with her court-ordered services. Mother was still living with the B.S. and E.S. father, and he continued to impede her progress. She attended drug programs inconsistently and missed numerous drug tests. She also continued to resist mental health counseling, and the Department could not verify participation in mandatory domestic violence classes.
Mother's visits with the children were consistent, and she showed enthusiasm for seeing her children, but she appeared overwhelmed at times during in-person visits. Visits changed to video only late in 2020 at the request of the Department due to the growing spread of the COVID-19 virus. The Department supported extending video-only visits for the safety of the children and their foster parents, who were at risk for severe COVID-19 symptoms and were unwilling to continue caring for the children if visits reverted to in person. The Department noted the importance of keeping the children together and that they were "doing well" in their current placement. This assessment was echoed by the caregivers, who described the children as developing well on all fronts and no longer in need of individual therapy.
Father remained incarcerated in March 2021.
In April 2021, the Department reported mother and the B.S. and E.S. father continued to fall short of completing their services, and there was evidence that both were again using illegal drugs. Mother's testing remained inconsistent, and she had a positive test for heroin that she claimed was a result of "borrow[ing] a friend's pain medication." Based on the amount of time mother and the B.S. and E.S. father had to reunify without success and on the age of the children, the Department recommended that services be terminated for the three older children and that their permanent plan be adoption. In recognition of their sibling bond, the Department recommended the children be adopted together if possible.
The juvenile court terminated reunification services for mother as to the three older children in May 2021.
In August 2021, the Department recommended termination of services and adoption as the permanent plan for C.S. as well. Its report containing that recommendation detailed how mother was still falling short in complying with her court-ordered services and was showing correspondingly little progress in addressing the issues that brought her children before the juvenile court. She was not fully engaged with her mental health treatment. She was unwilling to let the Department into her home, explaining she needed time to clean it. She missed drug tests. The Department observed marks on her face consistent with methamphetamine use. And she was arrested for drug offenses in April and July 2021. She did report that the B.S. and E.S. father was no longer living with her. According to his parole officer, that father was testing positive for heroin and methamphetamine and was arrested in June 2021. Despite her lack of progress in addressing her case issues, mother maintained consistent visitation with the children.
On the Department's recommendation, the juvenile court terminated reunification services to mother as to C.S. and to the father of B.S. and E.S. in September 2021.
In November 2021, the Department reported father had recently been released from prison and had initiated and maintained contact with the Department to begin the visitation with A.S. that the juvenile court had authorized two years earlier. Given that A.S. had no memory of father, visits began by telephone before progressing to in person. A.S. responded well to the idea of a biological father and looked forward to his telephone visits. Father expressed a desire to reunify with A.S. and to change his life for the better. He reported employment at Homeboy Industries, which also subjected father to drug testing and provided parenting classes. The Department was able to confirm father's employment and participation in parenting classes but not his drug testing.
As to the children, the Department reported they continued to thrive together in their foster placement, thanks to the "patience, structure, nurture and teaching" provided by their foster parents.
In December 2021, the Department reported mother had recently been arrested again and that her arrest earlier in the year was for attempting to smuggle heroin across the United States-Mexico border. Her visitation had also become inconsistent. In the months of September through November 2021, mother saw her children just five times, was a no-show at multiple visits, and had last-minute cancellations.
Meanwhile, the four children were in an adoptive match as a sibling set with prospective adoptive parents having the last initial B. (the B. family). The prospective parents had backgrounds as educators, including one as a special needs teacher. The Department oversaw a process of introducing the children to the home of the B. family and reported the process was highly successful. A.S. "indicated that he love[d] the family and want[ed] to live with them." He said the first day he stayed over at their home "was the best day of his life." The younger boys demonstrated similar enthusiasm for the B. family, and C.S. cried when one of the prospective adoptive parents left her side. The Department reported "pleas[ure] with the dedication of the [B. family] to [A.S., E.S., B.S. and C.S.]." The juvenile court trailed the permanency planning hearing to February 2022 for further transitioning of the children to the B. family's home.
In advance of the February 2022 hearing, the Department reported the children were moved from their long-term foster family to the home of the B. family on December 7, 2021. Though sad to say goodbye to their foster parents, the children were immediately "comfortable and happy" in their new placement, thanks to the transition efforts undertaken prior to the move and the enthusiasm of the B. family for the prospective adoption. The B. family immediately enrolled the children in school, addressed all medical and dental needs, and "ensured to provide them with structure, love, nurture and support by creating a safe and loving environment." The Department observed the children to be "thriving" two months into their new placement.
As permanency planning progressed, mother's interest in seeing her children declined. In the months of December 2021 and January 2022, mother showed "no interest in making consistent contact with her children." She exchanged a few phone calls with the Department concerning visitation during this period but never followed through.
Father also struggled to arrange visits with A.S. The Department offered him an in-person visit in mid-December 2021, but he declined. He promised to follow up, but apparently did not do so. The Department followed up a month later and father expressed interest in beginning in-person visitation, but one of the children tested positive for COVID-19 so visitation was not immediately possible and the Department arranged for him to continue telephonic visits.
In February 2022, the juvenile court trailed the permanency planning hearing to June 2022 for further transitioning of the children to the B. family's home.
In advance of the June 2022 hearing, the Department reported father contacted A.S. by telephone consistently and had begun biweekly in-person visits a few months earlier, in February 2022. The visits were for two hours each. A.S. vomited on the way to the first in-person visit. Before an April 2022 visit with father, A.S. explained to the Department that he felt scared of father and did not want to see him but, upon seeing him, it was "ok." The Department reported father was appropriate with A.S. during visits, appearing on time and prepared with snacks. At times, A.S. would seek out father's attention while playing.
In the same report, the Department disclosed that mother was incarcerated. She had been arrested in March 2022 on a warrant related to a vehicle offense and again in April 2022 for a drug trafficking offense. She agreed to biweekly telephone visits with the children from custody and maintained those consistently. Mother admitted that prior to being incarcerated, she had relapsed and planned to seek treatment for her drug use upon her release.
Meanwhile, the children continued to do well together in the care of the B. family, except when they had interactions with mother or father. A.S. had behavioral regressions after mother began her consistent phone calls from custody in April 2022. He also showed disinterest in speaking with father on the phone, tending to tell father he wanted to get off the phone before the allotted visitation time was up. E.S. showed similar behaviors on phone calls with mother. B.S. would also regress after speaking to mother, sometimes having bathroom accidents, bad days at school, and increased aggression towards his siblings after calls.
The juvenile court trailed the scheduled June 2022 permanency planning hearing to later in the month to allow the E.S. and B.S. father, who was incarcerated, to be present.
In advance of the rescheduled June 2022 permanency planning hearing, father filed a section 388 petition for reunification services with A.S. He identified as changed circumstances the fact of his release from prison and asserted the requested action would be better for A.S. for the following reasons: "[A.S.] is a 7-year-old baby boy who deserves to have a relationship with his biological Father. His Father visits consistently, maintaining and strengthening his parent-child bond with him. The Father[] interacts appropriately with the child and plays with the child. It is in [A.S.]'s best interest to be reunified with this Father to maintain important familial ties." He attached certificates of completion from November 2021 for parenting programs provided through his employer, Homeboy Industries.
He also sought "[r]eturn the minor to his father's care on a home of parent-father order" but later abandoned that request. At the time, father was living with his siblings and only wanted A.S. released to him once he had his own place.
On June 15, 2022, the date of the rescheduled June 2022 permanency planning hearing, the juvenile court trailed the permanency planning hearing to July 14, 2022, and set a full hearing on father's section 388 petition for the same day.
In early July, the Department filed a report which included a response to father's section 388 petition. The Department recommended the petition be denied. It called into question whether father was actually A.S.'s father, noted father's extensive criminal history and lack of interest in being part of A.S.'s life for more than six years, and observed that A.S. was thriving with the B. family. The Department acknowledged A.S. enjoyed visits with his father and wanted to visit his home, but he was more attached to his siblings and his prospective adoptive parents. According to the Department's filing, A.S. said, "I want to go to my birth dad's house but it means I can't see my sister or brothers or [prospective adoptive parents] and that would make me feel sad because I would miss them. I like watching [my prospective adoptive parents] work and fix the house; they . . . are awesome and I love it here."
The Department further noted the B. family had "made significant changes to have [the children] placed together, as a sibling set," and that the family's efforts had "significantly and positively impacted [A.S.]'s overall functioning and development." It described A.S. as "happy in the caregiver[s'] home and . . . well-bonded to [the] caregivers and their extended family." The caregivers were meeting "all of his needs" and had given him "a home where he can positively and safely thrive along with his siblings." Under these circumstances, the Department assessed that A.S.'s "emotional and overall wellbeing [wa]s at risk of detriment should he be uprooted from his current home," and it was "in the child's best interest to remain in his current placement where he has established security and trust with the current caregivers who have not wavered in their desire and dedication to provide permanency for [the children]."
In the same report, the Department noted mother had had just one in-person visit with the children in the preceding six months. Due to her incarceration she had been limited to telephonic visits, which she maintained consistently, but the quality of the visits was not good as the children were not interested in talking to her. In a report filed about six days later, the Department disclosed that mother was out of custody and enrolled in an inpatient program where she had access to video visits with the children. She missed about two weeks of visits by not logging in on time and had had a recent visit terminated for inappropriate behavior (questioning B.S. about his statements on the call that he did not want to speak to her).
The hearings on father's section 388 petition and permanency planning for the children proceeded on July 14, 2022. The juvenile court heard the section 388 petition first. The parties offered only argument based on documentary evidence filed with the court. At the conclusion of argument, the court denied father's petition.
The court then turned to the permanency planning hearing. Counsel for mother notified the court he was unprepared to proceed because, during a break in the proceedings, he had just filed a section 388 petition for each child requesting further reunification services and vacating their permanency planning hearings. Mother's section 388 petitions identified the changed circumstances as "[mother] was released from custody and is now in an inpatient program." As to why reinstatement of reunification services would be good for the children, mother stated only that "[she] is very bonded to her children and even while in custody she maintained regular contact with them. As such it is in their best interest to grant the [petitions]." To the petitions mother attached a letter from her residential drug and alcohol treatment program reciting that she was admitted three weeks earlier and had begun programming with a focus on "life skills, behavior changes, parenting skills, the 12 steps and relationships." Mother was expected to "work towards completing goals" in these and other areas. The juvenile court summarily denied mother's section 388 petitions and proceeded to the permanency planning hearing.
During the permanency planning hearing, both parents asserted that the parental bond exception to adoption applied. The juvenile court found the exception inapplicable to mother because she had not maintained regular and consistent contact with the children, the history showed a lack of beneficial relationship between the children and mother, and the detriment to the children of severing their relationship with mother was outweighed by the benefits of adoption.
The court found the exception inapplicable to father because, while he had maintained regular and consistent contact with A.S. in recent months, he had been absent for six years of A.S.'s life. The court acknowledged father's and A.S.'s relationship was "building and growing and ha[d] been beneficial to [A.S.]," but, given the recency of the relationship, the court found that severing the relationship between father and A.S. would not be detrimental to the child when considering the benefit afforded by adoption by the B. family.
Parents timely appealed.
DISCUSSION
1. Section 388 Petitions
Section 388, subdivision (a)(1), authorizes the parent of a dependent child to, "upon grounds of change of circumstance or new evidence," petition the juvenile court "for a hearing to change, modify, or set aside any order of court previously made." (Ibid.)
The juvenile court must hold a hearing on the petition "[i]f it appears that the best interests of the child . . . may be promoted by the proposed change of order ...." (§ 388, subd. (d).)
To show entitlement to a hearing, the parent must make a prima facie showing of "(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." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) "To support a section 388 petition, the change in circumstances must be substantial." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) It must be" 'of such significant nature that it requires a setting aside or modification of the challenged prior order.'" (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.)
While the best interest inquiry is necessarily broad, "a primary consideration in determining the child's best interests is the goal of assuring stability and continuity." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Changing, but not changed, circumstances do not promote the best interests of the child when the proposed modification would entail delaying a child's permanent placement. (In re Casey D. (1999) 70 Cal.App.4th 38, 47, 49, disapproved of on another ground by In re Caden C. (2021) 11 Cal.5th 614, 636, fn. 5 (Caden C.).)
We review the juvenile court's summary denial of a section 388 petition for abuse of discretion. (In re G.B. (2014) 227 Cal.App.4th 1147, 1158.) We also review its denial of a section 388 petition following a hearing under subdivision (d) for abuse of discretion. (See In re Jasmon O. (1994) 8 Cal.4th 398, 415.) A reviewing court will not disturb a discretionary decision unless the juvenile court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd decision. (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1456.)
a. The juvenile court did not abuse its discretion in denying mother's section 388 petitions without a hearing.
"A juvenile court may summarily deny a section 388 petition without an evidentiary hearing, but 'a petition must be liberally construed in favor of its sufficiency [citation] and a hearing may be denied only if the application fails to reveal any change of circumstance or new evidence which might require a change of order.'" (In re R.A. (2021) 61 Cal.App.5th 826, 836; see also § 388, subd. (d); Cal. Rules of Court, rule 5.570(a) ["A petition for modification must be liberally construed in favor of its sufficiency"].) Put another way, "[t]he 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." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
Moreover, conclusory allegations in a petition are insufficient to make the required prima face showing. "If a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted. In such circumstances, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality." (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)
"In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case." (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
The juvenile court here did not abuse its discretion in summarily denying mother's section 388 petitions to reinstate reunification services and vacate the permanency planning hearings. The petitions were filed during a break in court proceedings on the day of the scheduled permanency planning hearings. The petitions contain only the most conclusory claims of changed circumstances and benefit to the children.
As to changed circumstances, mother notes that she was "released from custody" and in an inpatient drug and alcohol treatment program. However, mother was not in custody at the time the juvenile court terminated her reunification services and set the section 366.26 hearings. At the time these orders were made as to the three older children, mother had just moved out of a sober living program into a new apartment. She had not had a positive drug test in nearly six months. Though she had missed a few tests since then, she took far more than she had missed and they were all negative. At the time of the relevant order for C.S., mother was similarly not in state custody. She had her own housing and was employed. She was continuing to test negative for drugs, though there were red flags suggesting mother was involved at least in drug activity, if not also using. Thus, the changed circumstances mother claims are not materially different than the circumstances she was in when the court entered the orders she seeks changed.
Further, mother's section 388 petitions do not make a prima facie case of benefit to her children of resuming reunification services and delaying permanency planning. The petitions merely assert she is bonded to her children. They say nothing of the children's bond to mother. And the record before the juvenile court when it denied mother's section 388 petitions was that the children were not bonded to her. They were not interested in talking to her, and when they did talk to her, it negatively affected their behavior.
b. The juvenile court did not abuse its discretion in denying father's section 388 petition after a hearing.
Father's section 388 petition was for an order granting reunification services that the juvenile court had bypassed two years earlier because father was serving an 11-year prison sentence that began around the time of A.S.'s birth, and father had no relationship with A.S. As to changed circumstances, father notes his release from prison, employment, parenting classes, and his developing relationship with A.S. As to A.S.'s best interests, father generically refers to the importance of the biological father-son relationship.
At argument, counsel for father noted father's commitment to self-improvement and A.S.'s interest in his father, and argued there would be little detriment in delaying permanency planning for six months as A.S. had only been placed with the B. family for approximately seven months at the time of the hearing.
The juvenile court found the change of circumstances insufficient to justify reunification services and that father failed to show providing such services would be in the best interest of A.S. We see no abuse of discretion.
A.S. was in his second dependency case. His father had been absent from his life for over six years. The only consistent family members he had in his life were his siblings. The Department had managed to find a family willing to adopt the four siblings together. The B. family offered A.S. and his siblings a safe, loving, and permanent home environment. Even though they had only been living with the B. family for seven months at the time of father's petition, the children were bonded with the B. family and thriving there.
Father had plainly made significant changes in his life and shown a genuine desire to have a relationship with A.S. But by his own admission, he was not prepared to provide A.S. with the stability and permanency the B. family provided. Father lived in a room at a house shared with extended family members and was unprepared to take custody of A.S. until he had a place of his own at some future time.
The juvenile court acted well within its discretion to conclude that A.S. would be better served by the certainty and permanency the B. family offered than by delaying adoption (and thereby putting it at risk) to see how the relationship with father further developed. As our Supreme Court has noted, once the permanency planning hearing is set, the primary interest becomes the child's need for stability and permanency. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) Father's circumstances that prevented him from reunifying with A.S. before do not change this. "Childhood does not wait for the parent to become adequate." (Ibid.)
Father seizes on the juvenile court's statement that "[t]here is no legal basis to reinstate the reunification services at this point with a [section 366].26 hearing pending" as establishing error as a matter of law. Father is correct that section 388 relief is available to parents at any time before the issue of custody is finally resolved. (See In re Marilyn H., supra, 5 Cal.4th at p. 309.) But even if we were to read the court's statement as contrary to this rule, the court alternatively found that father had failed to show entitlement to the relief requested as a factual matter, reiterating that "father [has not] shown it's in the best interest of the child to [attempt reunification] or to grant the other requests."
2. Termination of Parental Rights
At a hearing under section 366.26, the juvenile court must select and implement a permanent plan for a dependent child, with the express purpose of providing the child a "stable, permanent" home. (Id., subd. (b).) Where there is no probability of reunification with a parent, adoption is the preferred permanent plan. (Id., subd. (b)(1).) For the court to select adoption as the permanent plan, it must find, by clear and convincing evidence, that the child is likely to be adopted if parental rights are terminated. (Id., subd. (c)(1).) Then, in the absence of evidence that a relative guardianship should be considered, or that the termination of parental rights would be detrimental to the child under one of the enumerated exceptions, the court "shall terminate parental rights." (Id., subd. (c)(1)(B)(i)-(vi).) These" 'statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.'" (Caden C., supra, 11 Cal.5th at p. 631.)
Under section 366.26, subdivision (c)(1)(B)(i), the beneficial parental relationship exception applies when the juvenile court determines 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." (Ibid.) In Caden C., the California Supreme Court held that a "parent asserting the parental benefit exception must show, by a preponderance of the evidence, three things. The parent must show regular visitation and contact with the child, taking into account the extent of visitation permitted. Moreover, the parent must show that the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship. And the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new adoptive home." (Caden C., supra, 11 Cal.5th at p. 636.)
We review the juvenile court's findings as to the first two elements-whether the parent has maintained regular visitation with the child and whether the child has a beneficial relationship with the parent-for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639-640.) We review the third element- whether termination of parental rights would be detrimental to the child due to the child's relationship with the parent-for abuse of discretion. (Id. at p. 640.)
As the elements are conjunctive, we may affirm on the basis that just one element is not satisfied. We affirm here on the basis that the juvenile court did not abuse its discretion in concluding parents failed to show severing the children's relationship with them in favor of adoption would be harmful to the children. As to this element, the question before the juvenile court was "just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home." (Caden C., supra, 11 Cal.5th at p. 634.)
A.S. never lived with father. He met father for the first time just five months before the permanency planning hearing. They had started telephone visits just a few months before that. A.S. did not value the phone visits, often asking to end the calls early. Their in-person visits were monitored and totaled no more than about 20 hours over the approximately 20 weeks of biweekly two-hour visits. Even two months into their in-person visitation, A.S. expressed fear of his father and described his time with him as just "ok." As he grew more comfortable around father, A.S. said he liked the idea of spending time with father, but not at the expense of his relationship with his siblings and the B. family. As father concedes in briefing, the relationship was merely "building"-it had not formed any substantial bond.
Mother's relationship with the children was also insubstantial. At the time of the permanency placement hearing in July 2022, none of the children had lived with mother for over two years. The older children had been most recently detained from her home in November 2019. C.S. was detained at birth in August 2020 and had never lived with mother. In the months leading up to the July 2022 hearing, mother had almost no in-person contact with the children and their telephonic visits with her were not positive. The children showed little interest in speaking with her and at least two of them exhibited negative changes in their behavior after calls with her.
It is clear the parents did not have the sort of "strong, positive, and affirming relationship[s]" with their children that Caden C. recognized as having intrinsic value. (See Caden C., supra, 11 Cal.5th at p. 634.) Rather, their relationships were tenuous, largely neglected for months or years at a time, and of dubious value to the children.
Both mother and father argue that the juvenile court's beneficial parental relationship exception analysis was too cursory and failed to heed or follow Caden C. We disagree. The juvenile court expressly considered Caden C. in rendering its decision, referring to Caden C. multiple times.
DISPOSITION
The juvenile court's orders denying parents' section 388 petitions and terminating parental rights are affirmed.
WE CONCUR: STRATTON, P. J., WILEY, J.