Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Los Angeles County. Ct. No. CK04469, Marilyn Mordetzky, Juvenile Court Referee.
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant Erik V.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Andrea M.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.
GRIMES, J.
Erik V. (father) appeals from the juvenile court’s order denying his petition pursuant to Welfare and Institutions Code, section 388 , as well as the court’s order terminating his parental rights to his minor sons, Joseph V. and Jacob V. Andrea M. (mother) also appeals, arguing only that her notice of appeal is timely and joining in father’s arguments. We affirm.
All further undesignated section references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2009, mother gave birth to Jacob. Hospital personnel made an emergency referral to the Department of Children and Family Services because Jacob tested positive for methamphetamine. The Department detained Jacob and his three-year-old brother, Joseph, and removed them from mother’s care. Father was not living with them at the time; mother and father had a difficult, long-term relationship punctuated by incidents of domestic violence and abuse. Jacob was placed on a hospital hold to receive necessary treatment and Joseph was placed with a foster family. On September 4, 2009, the Department filed a petition pursuant to Welfare and Institutions Code section 300, subdivision (b) alleging that mother’s 14-year history of substance abuse prevented her from providing regular care for the children, that Jacob was born with a positive toxicology screen for methamphetamine, that father failed to protect the children from mother’s substance abuse, and that both mother and father had a prior negative history with the Department concerning their other children.
The detention report indicated that, in addition to Joseph and Jacob, father and mother had four other children together, all of whom had been detained and removed from their custody by the Department. Father and mother failed to reunify with any of Joseph and Jacob’s four older siblings. Three of those siblings were adopted by their paternal great grandmother, Mrs. D., and the other sibling was adopted by a nonrelative. Mother also had three older children from a prior relationship. These three half-siblings of Joseph and Jacob’s were also detained by the Department and mother failed to reunify with any of them. The three half-siblings reside, under a plan of legal guardianship, with their maternal grandmother. Father also has a 17-year-old son from a prior relationship, who apparently is the only child of either parent never to have been in the dependency system. Father and mother are not married.
The Department further reported that mother had a lengthy history of substance abuse, including addiction to heroin and methamphetamines and repeated relapses despite participation in numerous rehabilitation programs. Mother’s abuse history revealed criminal convictions for drug-related offenses, as well as general neglect of all of her children due to her drug use, with four of her children (including Jacob), testing positive for illicit drugs at birth.
Father requested the boys be placed with him. The Department prepared a pre-release investigative report assessing the suitability of placement with father. The Department reported that release to the home of father was not recommended. Father had an extensive criminal history, dating back to 1985, including numerous incidents of domestic violence (with mother and others), had failed to protect any of his children from mother’s long-term substance abuse, had failed to reunify with his dependent children, and did not have suitable housing.
On mother’s request, the Department also prepared a pre-release investigative report to have the boys placed with the boys’ maternal great aunt, G.M., who was fostering another relative’s son. G.M. contacted the Department and reported she did not want to be considered for placement at that time because she was concerned mother and father would not have sufficient incentive to reunify if the boys were being taken care of by family. However, she stated that, if the parents failed to reunify, she would like to take the boys so they could remain with family.
A first amended petition was filed on September 28, 2009, pursuant to section 300, subdivisions (b) and (j). In the jurisdiction and disposition report, the Department noted that Joseph and Jacob were placed together with a foster family and that mother and father were being provided monitored visitation. The Department recommended a denial of any reunification services to either father or mother, reiterating its previously reported concerns about father and mother’s lengthy history with the Department, their failure to reunify with any of their other children, and their apparent inability to remedy their respective problems that led to the detentions of their children, despite the provision of services to them. The social worker stated: “Mother and father have shown the failure to respond to previous services and there is an ongoing and past history of violent behavior. Furthermore, by their actions, it is indicative that mother and father’s behaviors are unlikely to change despite completion of programs.”
As to father, the Department highlighted its concern over his long-term anger-management issues that had not been curbed despite numerous domestic violence classes and the provision of other rehabilitative services. The Department noted that despite father’s apparently genuine expressions of regret for his behavior and an expressed desire to improve himself for the sake of his children, he continued to be unable to control his tendency to react violently to difficult situations. For instance, as recently as April 2008, father was convicted of assaulting mother (grabbing her throat and choking her), placed on probation and ordered to take a 52-week domestic violence class. Then, in May 2009, while still on probation and purportedly taking his domestic violence class, father argued with one of his roommates at the home he shared with Joseph and mother (pregnant at the time with Jacob). Father became irate and uncontrollable over a trivial disagreement regarding the cooking of a meal, and eventually went outside and broke the windshield of the roommate’s car. The police were called, father was held for a probation violation and ultimately ordered to serve 185 days in jail, being released just shortly before the initial detention in this case.
The Department submitted supplemental reports detailing father’s criminal history, including copies of several arrest reports and a probation officer’s report related to father’s 2008 conviction for assaulting mother. The court also submitted an additional report noting that father had an outburst at the Department offices during a monitored visit with the children in which he yelled and used profanity in front of them, due to his frustration with the dependency proceedings.
At the December 18, 2009 disposition hearing, the court sustained the amended petition under section 300, subdivision (b). Father and mother waived trial on the merits and consented to the sustaining of the amended petition on the stated grounds of failure to provide care and failure to protect. The court found by clear and convincing evidence there was a substantial risk of detriment to the children if returned to the custody of their parents.
The court also denied both father and mother reunification services. Father was denied reunification services pursuant to section 361.5, subdivision (b)(10) and (11) in light of his prior history with the Department and his failure to remedy the problems that led to the detention of Joseph and Jacob’s siblings and his failure to reunify with any of those children. Mother was also denied services under subdivision (b)(10) and (11) for her failure to reunify with the boys’ siblings and half-siblings, as well as under subdivision (b)(13) in light of her extensive history of substance abuse, repeated relapses and inability to maintain sobriety.
Both father and mother were allowed to maintain monitored visitation with Joseph and Jacob pending consideration and selection of a permanent plan for the boys. The court also ordered the Department to complete an assessment of G.M. as a suitable placement for the boys under a plan of legal guardianship. G.M. had advised the Department of her preference to be considered for legal guardianship, and not for adoption. Placement of the boys was transferred to G.M. from the foster family.
During the proceedings, father conceded he did not have any Indian heritage. Mother indicated possible Choctaw ancestry. Following service of the applicable notices, the court determined that the Indian Child Welfare Act did not apply.
At some point in the spring of 2010, Mrs. D., the boys’ paternal great grandmother, learned of the dependency proceedings and advised the Department she was willing to be considered as an adoptive parent under a plan of permanent adoption. The Department instituted an assessment of Mrs. D., as well as a paternal aunt (Maria D.) who lived with Mrs. D., as prospective adoptive parents. Given her expressed willingness to adopt the boys, the Department moved Joseph and Jacob to Mrs. D.’s home. In June 2010, the Department approved the adoptive home study for Mrs. D. and Maria.
Where appropriate, we refer to Mrs. D. and Maria as the D.’s.
That same month, father filed a section 388 petition challenging the court’s prior order denying him services. Father requested that he be provided reunification services and unmonitored visitation with Joseph and Jacob, with the goal of transitioning the custody of both boys to him. Father’s petition was based on the grounds he was voluntarily participating in a domestic violence class, individual counseling and a parenting class, regularly working a construction job, maintaining a suitable home and having consistent, positive visits with Joseph and Jacob. The court granted father a hearing on his petition.
Mother also filed two section 388 petitions, which were denied without a hearing.
The Department opposed father’s petition, explaining father had not shown the ability to successfully modify his long history of aggressive behavior despite the completion of several domestic violence classes. In various supplemental reports, the Department reported father’s continuing problems with threatening and angry behavior, including incidents directed at the social worker and Mrs. D. For instance, it was reported that father called a social worker, yelled at her and told her that she better “‘watch [her] back.’” Father did eventually call back and apologize but nevertheless revealed, throughout the proceedings, a continuing inability to refrain from outbursts as his first reaction to perceived problems. Father made other angry phone calls to the social workers, using profane language and leaving threatening voice mail messages. Father also made a threatening post on the D.’s Facebook account after learning they had offered to be considered as adoptive parents for the boys.
At the request of the Department, the court continued the hearing on father’s section 388 petition, as well as the section 366.26 hearing, to allow for then-ongoing efforts to work out postadoption contracts between the D.’s and father for visitation, as well as a separate contract with G.M., who also was desirous of maintaining a relationship with the boys.
The hearing on father’s section 388 petition, joined with the section 366.26 hearing, ultimately took place over several days in December 2010 and January 2011. Father testified to his weekly visits with the boys, that they played together in a park, and that Joseph, in particular, looked forward to the visits, hugging father immediately when he arrived and saying he loved him. Father also said he tried to speak with Joseph every day by telephone, but did not do so with Jacob, as he was still just a baby and not speaking yet. Mother testified on father’s behalf, stating she felt father was starting to learn how to deal with his anger better.
The Department reported that father did visit consistently and acted appropriately with the children during the monitored visits, but also noted that since the filing of his petition, father did not have a stable place to live and was having “heated arguments” with mother during the visitation time and still had chronic aggression issues. Father admitted his grandmother, Mrs. D., was providing excellent care for Joseph and Jacob and that she is a certified teacher and formerly ran a day care center. Father conceded Joseph had not complained to him about living there.
On January 19, 2011, the juvenile court issued its order denying father’s section 388 petition and its order terminating the parental rights of both father and mother to Joseph and Jacob. On January 28, 2011, father filed a timely notice of appeal of both orders. The clerk of the superior court served the required notice of the filing of father’s appeal, but did not include mother on the service list, only her counsel of record. On April 5, 2011, mother filed her notice of appeal of the juvenile court’s January 19, 2011 order terminating her parental rights.
DISCUSSION
Father raises three arguments. He contends the juvenile court abused its discretion in denying his section 388 petition, erroneously concluding he had failed to establish a genuine change in circumstances and that reunification was in Joseph and Jacob’s best interests. Father further contends the court erred in terminating his parental rights in failing to acknowledge the evidence showing the existence of a beneficial parental-child relationship with his two minor sons. Father also argues his due process rights were violated by the court’s termination of rights and selection of adoption as the permanent plan, instead of legal guardianship which would have allowed him to maintain his parental rights.
Mother’s appeal raises limited issues with no substantive arguments stated on her own behalf. She argues only that her appeal should be deemed timely because the court never provided her the required notice of the filing of father’s notice of appeal. Mother also joins in father’s arguments, arguing that if this court reverses the orders denying father’s section 388 petition and terminating his parental rights, the termination of mother’s rights cannot stand and the children may not be freed for adoption. We address each argument in turn.
1. Denial of Father’s Section 388 Petition
Some six months after the dispositional hearing at which father was denied reunification services, father filed a section 388 petition challenging that order. Father requested that reunification services be granted, as well as unmonitored visitation with his two sons, with the goal of transitioning custody of both children to father. Joseph and Jacob were, at that time, residing with their paternal great grandmother and paternal great aunt, who had been approved as prospective adoptive parents in the event father and mother’s parental rights were terminated.
Section 388, subdivision (a) provides in relevant part: “Any parent... having an interest in a child who is a dependent child of the juvenile court... may, upon grounds of change of circumstance or new evidence, petition the court... for a hearing to change, modify, or set aside any order of court previously made....”
“The juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstances or new evidence and that the modification would promote the best interests of the child.” (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446.) The resolution of a section 388 petition is “committed to the sound discretion of the juvenile court, and the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.” (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) “‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.[]’ [Citation.]” (Id. at pp. 318-319.)
Father contended there was a material change in circumstances on the grounds he was voluntarily completing various rehabilitative programs, seeking an associate’s degree in information technology, working a construction job, living in a four-bedroom home with room for the boys (mother’s house), and consistently visiting with Joseph and Jacob. The petition stated father had completed 53 weeks of a voluntary domestic violence program and was currently enrolled in a parenting class and individual anger management counseling. The petition urged there was substantial evidence showing a modification of the court’s order was in the best interests of the boys because reunification with father was desirable. Father was having regular, positive visits with the boys and could provide them with a loving and nurturing home if custody was granted to him.
At the time the petition was heard, father conceded that several of the factors identified in his petition were no longer accurate. He was not living in the four-bedroom home with mother (the record is somewhat unclear, but mother apparently obtained a restraining order and father was ordered to leave). Father was staying at the home of a girlfriend in Burbank. Father described his relationship with the woman as casual, and admitted that if she asked him to leave, he would have to make alternative living arrangements. Father also stated he was no longer taking courses to obtain his associate’s degree. He said he was not working construction with the maternal grandfather any longer, but did have part-time work as a truck driver for a studio and was looking for additional work.
As to his behavior issues, father acknowledged that at a recent visit with the boys (just a few weeks before the hearing), he had a loud argument with mother, yelling at her to get off of her cell phone and calling her a “bitch.” He said however that he was nonetheless learning to address his anger, but stated that people just “mistake the way I talk.” Father acknowledged he had completed three domestic violence courses before but claimed that this time it would be different. He said he had made the decision to go on his own in order to improve himself, which gave him a different attitude about it. He said the class, along with individual counseling which he had not tried before, was helping him learn how to give himself a “timeout” when he was angry and address his emotions better.
“For a parent ‘to revive the reunification issue, ’ the parent must prove that circumstances have changed such that reunification is in the child’s best interest.” (In re D.R. (2011) 193 Cal.App.4th 1494, 1512.) Once reunification services to a parent have been terminated, as here, “a parent’s interest in the care, custody and companionship of the child is no longer paramount.” (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) Instead, the court’s focus, given the stage of the proceedings, is on the dependent child’s need for stability and permanency. (Ibid.; see also In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
In assessing the sufficiency of a section 388 petition, the court looks to a number of factors, including “the seriousness of the reason for the dependency and the reason the problem was not overcome; the relative strength of the parent-child and child-caretaker bonds and the length of time the child has been in the system; and the nature of the change in circumstances, the ease by which the change could be achieved, and the reason the change was not made sooner.” (In re Aaliyah R., supra, 136 Cal.App.4th at pp. 446-447.)
The juvenile court found father had failed to establish any change in circumstances. The court noted that father’s chronic, unresolved history of domestic violence and assaultive behavior, one of the factors on which the detention of the boys was based, remained a problem for father, despite repeated classes and counseling. The court noted that father had engaged in improper and abusive incidents as recently as November 2010 when father yelled and argued with mother in front of the boys during a scheduled visit. The court found therefore that father had not established a change in circumstances within the meaning of the statute. The court also explained that father had not shown that his requested goal of obtaining custody of the boys was in their best interests as he had not even established he had sought or obtained suitable housing.
The record shows no abuse of discretion in the denial of father’s section 388 petition. There is ample evidence supporting the court’s determination there was no change of circumstances. “It is only common sense that in considering whether a juvenile court abuses its discretion in denying a section 388 motion, the gravity of the problem leading to the dependency, and the reason that problem was not overcome by the final review, must be taken into account.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531.) Father’s history of violent, abusive and threatening behavior remained a constant. While he testified he believed his participation in a fourth domestic violence program was going to be different because he had gone to it voluntarily instead of under compulsion by the court, the juvenile court was justified in finding this sole fact inadequate to show changed circumstances. This is particularly so in light of the evidence of his recent, negative conduct and also in light of father’s testimony which appeared to minimize his violent tendencies as people simply not understanding him. Moreover, there was no explanation for why father had failed to make these personal changes sooner, even though he had already lost three other children to the system due in part to his inability to control his temper.
Given the stage of the proceedings, the need to give “special weight” to the interest of the children for stability, and the evidence before it, we find the juvenile court was well within its discretion in determining father had failed to carry his burden on his section 388 petition. (In re Stephanie M., supra, 7 Cal.4th at p. 319.)
2. Termination of Father’s Parental Rights
Father contends the juvenile court erred in concluding he had failed to establish a beneficial parent-child relationship sufficient to prevent termination of his parental rights. We disagree.
Once reunification services to the natural parents have been terminated and the dependency proceedings reach the section 366.26 hearing, adoption is the preferred permanent plan decreed by the Legislature. (§ 366.26, subd. (b); see also In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.) The statute mandates that parental rights be terminated, unless the parent can establish one of the enumerated exceptions. (§ 366.26, subd. (c)(1).) “An exception to the adoption preference applies if termination of parental rights would be detrimental to the child because the ‘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).)” (In re C.F. (2011) 193 Cal.App.4th 549, 553.) If the exception is successfully established, the court then considers alternative long-term plans such as guardianship. “[T]he party claiming an exception to adoption has the burden of proof of establishing by a preponderance of evidence that the exception applies.” (In re Aaliyah R., supra, 136 Cal.App.4th at p. 449.)
We review the juvenile court’s decision regarding the applicability of the parental relationship exception for an abuse of discretion. (In re C.B. (2010) 190 Cal.App.4th 102, 123; accord, In re Aaliyah R., supra, 136 Cal.App.4th at p. 449, and In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) “When applying the deferential abuse of discretion standard, ‘the trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.’ [Citations.]” (In re C.B., supra, 190 Cal.App.4th at p. 123.)
At the contested section 366.26 hearing, father had the burden to establish both prongs of the parental relationship exception. First, he had to show he had maintained regular contact with Joseph and Jacob, and also that they would benefit from a continued parental relationship with him. (§ 366.26, subd. (c)(1)(B)(i).) There must be solid, credible evidence in support of both prongs of the exception. “The Legislature emphasized the exceptional nature of all the circumstances identified in section 366.26, subdivision (c)(1) by revising the statute in 1998 to require the court to find not only that one of the listed circumstances exists, but also that it provide ‘a compelling reason for determining that termination would be detrimental to the child.’ [Citation.] This amendment... makes it plain that a parent may not claim entitlement to the exception provided by subdivision (c)(1)(A) 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 Jasmin D., supra, 78 Cal.App.4th at p. 1349, italics added.)
Father showed sufficient, regular visitation to satisfy the first prong of the exception. Father was allowed weekly, monitored visitation with the boys and it was documented by the Department that he consistently participated in those visits, duly seeking make-up time with the boys if a scheduled date was canceled for any reason. Father also testified to speaking with Joseph on the telephone, almost on a daily basis.
However, as to the second prong of the exception, the record contains ample evidence supporting the court’s determination that father failed to make the requisite showing. A beneficial parental relationship within the meaning of the statute “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. (1994) 27 Cal.App.4th 567, 575, italics added.)
Father had pleasant, happy visits with Joseph and Jacob. He stated he spent most of the time with Joseph, as Jacob was still a baby and primarily spent the visitation time being held by mother. The Department concurred, stating that the visits generally went well (at least as between father and the children) and that Joseph appeared to be excited to play with his father. However, “[a] parent must show more than frequent and loving contact or pleasant visits.” (In re Mary G. (2007) 151 Cal.App.4th 184, 207; accord, In re Derek W. (1999) 73 Cal.App.4th 823, 827.) “To overcome the preference for adoption and avoid termination of the natural parent’s rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (In re Angel B., supra, 97 Cal.App.4th at p. 466.)
Some of the factors the court assesses in making a finding as to the existence of a substantial, beneficial relationship are: “‘(1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs.’ [Citation.] ‘[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt.’ [Citation.]” (In re Jason J. (2009) 175 Cal.App.4th 922, 937-938, italics added.)
Jacob never lived in father’s or mother’s custody and there was no evidence showing a substantial and beneficial parental relationship between father and Jacob. As for Joseph, there was certainly some evidence of a positive relationship from which both father and Joseph derived enjoyment. And, father had lived for some period of time with Joseph and mother before the boys were removed by the Department. Nevertheless, the record contains ample evidence supporting the court’s determination that the relationship between father and Joseph did not rise to the level of a beneficial parental relationship that outweighed the benefits Joseph would obtain by having a stable, adoptive home. Given the substantial evidence in the record supporting the court’s determination, no abuse of discretion has been shown.
3. Father’s Due Process Argument
Father also argues he was denied due process. He contends the Department violated his fundamental rights to maintain a relationship with his children by transferring the placement of the two boys to the D.’s for permanent adoption, instead of allowing them to remain with G.M. and considering legal guardianship as the permanent plan. He argues the court’s order “sanctioning” the preference for adoption, and the corresponding termination of his parental rights, operated to deny him due process because it allowed the Department to place Joseph and Jacob in an “unsafe” home simply because Mrs. D. was willing to adopt, instead of allowing the boys to remain in the “safe and loving” care of G.M., who desired to proceed with legal guardianship, which would have allowed him to maintain his parental rights.
We note for the record that after Mrs. D. stated her willingness to adopt, G.M. apparently changed her mind and offered to be considered as an adoptive parent as well. The Department completed an adoptive home study for G.M. as well as the D.’s.
Father’s argument is flawed and unpersuasive. Father conceded Mrs. D. was providing excellent care to Joseph and Jacob. More importantly, the focus of the court’s inquiry at the section 366.26 hearing was on father’s ability to show that he had a beneficial, parental relationship with Joseph and Jacob, the severance of which would cause them detriment. The focus was not on the quality of care provided by either of the relatives, Mrs. D. or G.M., who had provided care for the boys at different stages during the proceedings.
Moreover, father has failed to identify to this court any legal authority that the section 388 petition process or the contested section 366.26 hearing procedure was somehow inadequate or unfair such as to effectuate a denial of his due process rights. (See In re Marilyn H., supra, 5 Cal.4th at pp. 306-310 [finding the “‘escape mechanism’” afforded by the section 388 petition process and the procedural protections of the dependency scheme as a whole satisfy due process].) Indeed, father testified extensively at the joint hearing, which lasted several days, and there is nothing in the record indicating father was in any way denied a fair opportunity to present any and all evidence supporting his position.
Father’s argument appears to be dissatisfaction with the statutory preference for adoption in the dependency system generally. Father asserts the boys should have been allowed to remain with G.M. under a plan of legal guardianship so that he could maintain his parental rights. However, “[t]he 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. In decreeing adoption to be the preferred permanent plan, the Legislature recognized that, ‘Although guardianship may be a more stable solution than foster care, it is not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.’ [Citation.]” (In re Beatrice M., supra, 29 Cal.App.4th at p. 1419.)
As already explained above, father failed to make the requisite showing that the parental relationship exception warranted a refusal to terminate parental rights or was a proper basis for a modification of the court’s earlier orders pursuant to section 388. As such, in light of the legislatively declared preference for adoption in those cases where reunification is not possible and the court’s finding by clear and convincing evidence that Joseph and Jacob were adoptable, the court properly terminated parental rights and selected adoption as the permanent plan for Joseph and Jacob. Had father adequately established a statutory exception to avoid termination of his parental rights, the court would then have been required to consider a permanent plan other than adoption, such as legal guardianship. Father failed to do so.
“Although a parent’s interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect. [Citations.]... This interest is a compelling one. [Citation.] The state’s interest requires the court to concentrate its efforts, once reunification services have been terminated, on the child’s placement and well-being, rather than on a parent’s challenge to a custody order.” (In re Marilyn H., supra, 5 Cal.4th at p. 307, italics added.) Father has not shown the juvenile court’s order selecting adoption with the boys’ paternal relatives as the permanent plan, instead of legal guardianship through their maternal relative, in any way violated his rights.
4. Mother’s Appeal
Mother purports to join in father’s appeal. Her notice of appeal was filed April 5, 2011, more than three months after the challenged orders and the filing of father’s notice of appeal. Mother contends her joinder is timely, even though it was not filed within 60 days of the challenged orders because the court clerk did not serve her with notice of the filing of father’s appeal. (See Cal. Rules of Court, rules 8.405, subd. (b), and 8.406, subd. (b).) We need not, and do not, decide whether mother’s appeal is timely. Mother did not raise any substantive arguments independent of father’s contentions. Our rejection of all of father’s challenges to the juvenile court’s orders therefore renders mother’s appeal moot.
DISPOSITION
The juvenile court’s January 19, 2011 orders denying father’s section 388 petition and terminating father’s and mother’s parental rights to Joseph and Jacob are affirmed.
We concur: RUBIN, Acting P. J. FLIER, J.