Opinion
E069791
07-20-2018
In re S.N. et al, Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.N., Defendant and Appellant.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J265322, J265323, J265324 & J265325) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
Appellant J.N. (father) appeals from a juvenile court's order terminating parental rights as to his children, H.N., A.N., F.N., and S.N. (the children). He claims that the court erred in summarily denying his Welfare and Institutions Code section 388 petition, and in not applying the beneficial parental relationship exception. (§ 366.26, subd. (c)(1)(B)(i).) We affirm.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted. --------
FACTUAL AND PROCEDURAL BACKGROUND
On June 17, 2015, the Riverside County Department of Social Services (DPSS) filed a section 300 petition on behalf of the children. At that time, H.N. was five years old, A.N. was four years old, F.N. was two years old, and S.N. was four months old. The petition alleged that the children came within the provisions of section 300, subdivision (b) (failure to protect), (g) (no provisions for support), and (j) (abuse of sibling). Specifically, the petition alleged that father endangered the safety of the children in that he knew or reasonably should have known his live-in girlfriend, B.F., had an extensive history of abusing drugs and was actively using controlled substances while caring for his children. Despite this knowledge, he allowed B.F. to be the primary caregiver of the children. The petition further alleged that, after B.F. gave birth to their child C.N. (the children's half sibling) and tested positive for controlled substances, father fled the hospital and had not made himself or the children available for assessment of their safety. The petition also alleged that the children's mother (mother) had a prior child welfare history, in that she tested positive for controlled substances at the time of S.N.'s birth but, in lieu of dependency, the matter was closed with the court granting father sole physical and legal custody of the children. Mother's whereabouts were currently unknown. In addition, the petition alleged that the children's half sibling had been abused and/or neglected, and the children were at risk for similar harm.
A protective custody warrant was issued for the children, and they were detained in foster care on June 17, 2015. DPSS filed an amended section 300 petition on June 19, 2015, which reflected that the children were detained in foster care on June 17, 2015. The amended petition contained the same allegations as the original petition.
The social worker also filed a detention report on June 19, 2015, and reported that, upon his girlfriend and new baby testing positive for methamphetamine, father fled to Arizona with the children to avoid child protective services intervention. The social worker spoke with him on the telephone. He insisted that he did not know anything about his girlfriend's drug abuse and that he was not using illegal drugs.
The court held a contested detention hearing on the amended section 300 petition on June 24, 2015. Father and mother both appeared, represented by counsel. Counsel for father informed the court that, in the prior dependency with mother, the court assessed father and gave him full custody of the children. Father had been unemployed for the last seven months, but did work odd jobs; thus, the only time his girlfriend actively cared for the children was when he was working. Moreover, he was very angry when he found out his girlfriend was using drugs, and he said he was not going to get back together with her until she changed her life and participated in a rehabilitation program. Father's counsel stated that father's girlfriend was going to be living in Orange County, and father had a separate home for himself and the children. Father told the court he had family that could help watch the children when he was away on odd jobs. Thus, there was no reason to detain the children. Father denied that he was trying to hide the children from DPSS when he took them to Arizona; rather, he took them there to visit his parents for H.N.'s birthday
The court decided to return the children to father's custody, on the condition that father's girlfriend was no longer in the house. Thus, the court detained the children as to mother, but not as to father.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on July 9, 2015, recommending that the court sustain the amended petition, adjudge the children dependents of the court, remove the children from mother's custody, grant mother reunification services, and grant father family maintenance services. The social worker interviewed father, who said his girlfriend did not have an extensive history of abusing drugs, and he did not know she was using drugs while pregnant. He said he knew she had a heroin addiction four to five years prior, but denied seeing her use heroin during their relationship.
On August 20, 2015, the social worker filed an addendum report and stated that she made an announced visit to father's home on July 22, 2015. She provided him with applications for day care and discussed the importance of the children's wellness checkups. When father changed S.N.'s diaper, the social worker noticed a diaper rash, which appeared to be chronic. He said he was changing her diaper 10-12 times a day. Father also reported that he had cancelled the mental health assessment appointments for H.N. and A.N., but he was unclear as to why.
The social worker reported that father had been uncooperative with DPSS's repeated efforts in meeting the medical needs of the children and the mental health needs of the two older children. DPSS made repeated efforts to assist him with transportation for the appointments. Father had countless missed appointments with Safe Care, the organization that was attempting to help him with a home visit program. The social worker opined that father appeared to have little understanding as to how his behavior and actions placed his children in an unsafe environment. She was concerned with his ability to follow through with meeting the children's needs.
On August 20, 2015, the social worker filed a second amended section 300 petition, with the added allegation under subdivision (b) that father had neglected the medical and psychological needs of the children, as evidenced by him missing four scheduled mental health appointments and routine medical care appointments for the children.
On September 3, 2015, the court ordered the children removed from father's custody and set a detention hearing.
The social worker filed a detention report on September 8, 2015, reporting that he received a phone call from a Safe Care specialist on August 26, 2015, requesting approval to transfer father's services to his new place of residence in Los Angeles. The social worker spoke to father and reminded him that there was a court order restricting him from leaving the county's jurisdiction with the children. He said he understood the order, but was vague about why he had not notified DPSS about his decision to move. He said he was scheduled to move and start work on August 31, 2015. He agreed to send the social worker validation of his new employment so DPSS could assess the information to determine what was in the best interests of the children. Father failed to send the information as agreed; however, the social worker received a letter from Mrs. F.-G., stating that she was assisting in moving him and the children to Burbank. She indicated that they would be living at the Economy Inn. She paid for their room for August 29 to September 6, 2015.
On September 3, 2015, DPSS found the children at the motel, in the care of father's girlfriend, B.F., who had a current dependency case due to her long history of illegal substance use. Father tried to mislead DPSS by saying the children were with an extended family member shopping. However, his girlfriend identified herself as the one caring for the children and hiding in the room to evade DPSS. Thus, F.N. and S.N. were placed with a maternal aunt, and H.N. and A.N. were placed in a foster home.
On September 8, 2015, the social worker filed a third amended section 300 petition, adding the allegation that father knowingly violated a court order prohibiting him from leaving the county's jurisdiction with the children, and he was found to be residing in a motel with minimal food. Additionally, he continued to place his children's safety at risk, as he allowed his girlfriend, who had known substance abuse issues and an open dependency case, to care for his children.
The court held a detention hearing on September 9, 2015, and detained the children. The court ordered visitation for father to be a minimum of once a week, unsupervised.
The court then held a hearing on September 23, 2015, and found the allegations in the amended petition to be true. It ordered reunification services for father and mother. Father's case plan required him to participate in counseling, a parenting education program, and substance abuse services. The court also ordered supervised visitation for father to be once a week, for two hours. However, it ordered visits twice a week for the two younger children (S.N. and F.N.) and authorized DPSS to increase visits and move this case into family maintenance if father showed significant progress in his case plan.
Six-month Status Review
The social worker filed a six-month status review report on March 2, 2016, stating that father was currently residing with the paternal grandparents, and he was employed selling solar panels. He was in a relationship with his same girlfriend, B.F., and planned on moving in with her when the children were returned to his care.
The social worker further reported that H.N. and A.N. were placed with the other children, F.N. and S.N., in the home of the maternal aunt on November 25, 2015. However, she was having difficulty with A.N. and F.N., as they refused to listen to her and threw severe tantrums. On January 13, 2016, the maternal aunt told the social worker she wanted A.N. and F.N. removed from her care, but she would keep H.N. and S.N., since they did not cause problems. On January 14, 2016, a team decision meeting was held and it was decided that A.N. should be placed in father's care, since he had made progress in his case plan.
The social worker also reported that father had been having supervised visits with the children. He "demonstrated a parental role" by redirecting the children when necessary, nurturing them, and engaging them both verbally and nonverbally. He responded well to their physical and emotional needs. Thus, DPSS authorized him to have a visit with all four children at the paternal parents' home for Christmas and New Year's. The visit went well, so DPSS authorized him to have weekend visits, beginning in January 2016. Those visits reportedly went well. The caregiver stated that the children looked forward to the visits and got upset when they had to leave father. H.N. said he wanted to return to father's care.
The social worker filed an addendum report on March 18, 2016, and stated that on March 3, 2016, DPSS received the results of father's hair follicle drug test. The results were positive for methamphetamine and amphetamine. Father admitted to using methamphetamine once in January 2016, two days after completing his drug program. He insisted that he was sober for over one year prior to this relapse, and that he only used one time. The social worker explained that the levels on the drug test indicated more than just a one-time use. Father failed to disclose this relapse until DPSS received his drug test results, and he failed to contact his sponsor, his support network, or DPSS prior to or after relapsing. Father said he was willing to participate in a substance abuse program and was provided with three referrals.
The children were reportedly doing well in their current placements. H.N. had thrived since being placed with the maternal aunt, and F.N. was no longer having behavioral issues. A.N. was also doing well in father's care. Thus, the social worker recommended that reunification services be continued for father as to H.N., F.N., and S.N., and that family maintenance services be ordered for father as to A.N. The social worker also recommended that reunification services for mother be terminated due to her lack of participation.
On April 27, 2016, the court held a six-month review hearing and hearing on a motion to transfer the case to San Bernardino County. County counsel informed the court that the relative assessment unit (RAU) just approved the paternal grandparents' home. With the RAU approval, DPSS recommended that the court place all four children as a group with the paternal grandparents. It also moved to transfer the case to San Bernardino County, which is where the paternal grandparents lived.
The court adopted DPSS's recommendations, including continuing family maintenance services for father as to A.N., continuing reunification services for father as to the other three children, and terminating mother's services. The court also transferred the case to San Bernardino County for continued services and jurisdiction. The court indicated that the children would all be placed with the paternal grandparents within the next few days. The court in San Bernardino accepted the transfer on May 10, 2016.
On May 25, 2016, the social worker filed a memorandum of additional information to the court. The social worker met with father, who was now living with the paternal grandparents, after having completed several programs in Riverside. The social worker was recommending that the court move S.N., F.N., and H.N. from family reunification status to family maintenance status. The court held a hearing and followed the recommendation, finding that father had made substantial progress in his case plan and placing the three children with him.
Semiannual Status Review
The social worker filed a semiannual status review report on September 2, 2016, recommending that the children remain on family maintenance, and that father be provided with services for six more months.
The court held a hearing on September 7, 2016, and maintained the children in father's custody at the paternal grandparents' home. The court continued father on family maintenance.
Section 387 Supplemental Petition
The social worker filed a section 387 supplemental petition on February 28, 2017, alleging that the previous disposition had not been effective. The petition specially alleged that father continued to have substance abuse issues, was noncompliant with his case plan, and was recently placed on probation due to drug-related convictions.
In a detention report, the social worker stated that, in reviewing the status of the family on February 23, 2017, it was discovered that father drug tested inconsistently from September 15, 2016 to December 19, 2016. Father told the social worker he was not testing because he was being tested in drug court. However, when asked for documentation from drug court, he said he was kicked out of the program. The social worker then discovered that father had charges filed on September 8, 2016, for driving without a license, possession of controlled substances, and possession of drug paraphernalia. He pled guilty to all three charges on September 28, 2016, and was ordered to attend 12-step meetings for 10 weeks. A probation review hearing was held on December 16, 2016, and father failed to appear. A probation revocation hearing was set for February 6, 2017. Father was present at that hearing, and the court ordered him to participate in Narcotics Anonymous.
The social worker reported that father had not been forthcoming and had been evasive. He said he was busy working in Los Angeles and did not let the San Bernardino County Children and Family Services (CFS) know about his criminal charges because the police advised him that a report would be generated to social services.
On February 24, 2017, father agreed to sign a declaration and move out of the paternal grandparents' home. The paternal grandparents were submitted to the resource family approval (RFA), but were denied due to their unexemptable criminal history.
The court held a detention hearing on March 1, 2017, detained the children in foster care, and ordered supervised visitation once a week.
Section 387 Jurisdiction/Disposition Report
The social worker filed a section 387 jurisdiction/disposition report on March 29, 2017, recommending that father's reunification services be terminated and a section 366.26 hearing be set, with adoption as the permanent plan. CFS was concerned that father would fail to protect the children from his unsafe and unstable lifestyle. He reportedly started drinking at the age of 16. He started using methamphetamine at 13 and snorting cocaine at 17. He was in both inpatient and outpatient substance abuse programs, but resisted treatment. Father readily admitted his current use of methamphetamine, but continued to deny or minimize the effect it had on his parenting. He also chose partners who had substance abuse problems. His attitude was that he had done nothing wrong, and he showed no remorse or insight into how his actions impacted the children. He consistently lied to and manipulated those around him, including CFS, the court, service agencies, his family, and friends.
The court held a contested jurisdiction/disposition hearing on June 1, 2017. It sustained the section 387 petition, declared the children dependents of the court, and removed them from father's custody. The court denied reunification services pursuant to section 361.5, subdivision (b)(13). It also ordered supervised visitation once a week. Father requested his girlfriend's parents be considered as a concurrent planning home for the children, and the court granted the request.
On August 25, 2017, the court held a nonappearance review. The social worker was concerned about the children's placement because father's girlfriend's parents allowed the girlfriend and father to care for the children alone, after a CFS practitioner explained that they were not allowed to have unsupervised contact. In addition, father's girlfriend had relapsed into alcohol abuse. The court removed the children and placed them in foster care. Since there was no home that could take all four children, they were placed in two different foster homes, with S.N. and F.N. together, and A.N. and H.N. together.
Sections 388 and 366.26
On September 15, 2017, father filed a section 388 petition, asking the court to return custody of the children to him on family maintenance. In the alternative, he asked the court to place them with the paternal grandparents. As to changed circumstances, he alleged that he completed an outpatient drug program on June 26, 2017, he was sober and testing clean, and his other child, S.N. (another half sibling of the children), was placed in his custody at a detention hearing on August 21, 2017. As to best interests of the children, father alleged that he had taken the necessary steps to complete his services, and the children would be in a safe, loving, and nurturing environment with him.
The social worker filed a response to father's section 388 petition, recommending that the court deny it. The social worker reported that, on August 15, 2017, CFS received a referral when H.N., who was eight years old, was found wandering outside of father's apartment complex. When a passerby located father's residence and took H.N. there, she found the front door open and father's girlfriend, B.F., extremely intoxicated. The passerby called the police, who arrived and interviewed B.F. She admitted she drank so much alcohol that she was not able to care for H.N. She reportedly drank a few shots of vodka and then picked up H.N. from school. B.F. was arrested and charged with willful cruelty to a child. Father denied being aware of his girlfriend's drinking. The social worker further reported that father's first child with his girlfriend was previously removed from his care and was still in placement. It was also reported that father and his girlfriend had another child, S.N., who was four months old, and was detained on August 21, 2017, when his girlfriend relapsed on alcohol. The social worker stated that father had been provided services in the counties of Riverside, San Bernardino, and Los Angeles, beginning on February 11, 2015; however, he had demonstrated a pattern of behavior that had not changed in spite of the services.
On September 28, 2017, the social worker filed a section 366.26 report, recommending that the court continue the section 366.26 hearing scheduled for September 29, 2017, for 90 days. The children were placed in their concurrent planning home on September 7, 2017, which was described as a very loving, stable, home environment, and she was requesting the 90-day extension to allow for the permanent plan of adoption to be implemented.
The social worker opined that father's visitation was detrimental to the emotional well-being of the children. He had brought other individuals to the visits without prior permission from CFS, and he reportedly smelled like marijuana during one visit. CFS recommended that father's visitation be limited to once a month for one hour, supervised by CFS.
The court held a hearing on September 29, 2017, and continued the matter to January 1, 2018, for a contested section 366.26 hearing and hearing on the section 388 petition.
On January 2, 2018, the social worker filed an addendum to the section 366.26 hearing, recommending that parental rights be terminated and the permanent plan of adoption be implemented. The social worker reported that S.N. appeared to be a happy and resilient little girl, who was growing in her attachment to her prospective adoptive mother; she appeared to enjoy being near her and snuggling with her. She was clearly comfortable and happy in her prospective adoptive home. F.N. also appeared to be growing in his attachment to the prospective adoptive parents. He previously lived with them for four and one-half months before the children were moved to the home of father's girlfriend's parents. F.N. said he liked living there. The social worker further reported that A.N. was adjusting well to the prospective adoptive home and said he would be happy to stay there, although he was sad because father was not there. Similarly, H.N. appeared to be adjusting well to the prospective adoptive home and was content there. He said he would rather stay there than move again. However, he also said he wanted to continue seeing father, if possible.
The social worker reported that the prospective adoptive home was the seventh placement for F.N. and A.N., since coming into the care of San Bernardino County, and the eighth placement for S.N. and H.N. Despite so many moves, the children were fairly well-behaved and adjusted well to the current home. There was a mutual attachment between the children and the prospective adoptive parents, and the children recognized them as their parental figures. The prospective adoptive parents wanted to adopt them, and their adoption would allow the children to remain together. The prospective adoptive parents fully understood the responsibilities of adoption and desired to give the children a safe and happy life.
On January 8, 2018, the court held a combined sections 388/366.26 hearing. Father's counsel asked the court to grant father's section 388 petition, asserting that father had completed a drug treatment program and had been testing clean, and two of his other children were in transition to come home. Counsel for the children asked the court to deny the section 388 petition because the children had been placed and removed from father approximately three times, and the circumstances had not changed. She further stated that father was "new in his sobriety," and she wanted to see a longer demonstrated period of sobriety before the children were returned to him. Moreover, the children were currently placed in a home that was willing to provide stability and permanency.
County counsel joined in the children's counsel's arguments. Furthermore, she reminded the court that the children were removed from father's girlfriend's parents' home in August partly because father was violating court orders and having unsupervised contact with the children; moreover, father's girlfriend was driving the children around while under the influence. County counsel asserted there was no evidence there would be ongoing drug testing for father, and there would need to be a longer period of sobriety to show changed circumstances.
After hearing argument from counsel, the court denied an evidentiary hearing, finding there was insufficient proof to warrant one. The court did not doubt father's love for the children, but noted he had a lengthy drug addiction that continued to put their lives in chaos. The court noted that father had been involved in three dependencies in three separate counties. He had shown that he could complete services and maintain sobriety for a period of time; however, he had multiple relapses, and he consistently allowed himself to be in relationships that brought chaos to the children. The court asserted that father showed changing circumstances, but it did not believe there had been a sufficient time of stability and sobriety to show actual changed circumstances. The court furthermore did not find that the section 388 petition established the best interests of the children. The court noted the older children clearly recognized father and loved him, but they had had eight and nine placements. The court stated that they needed stability and consistency, and the dependency system was not set up to deny them permanency in the hopes that father "has it together this time or that his sobriety stays this time." Thus, the court denied the section 388 petition.
The court then proceeded with the section 366.26 hearing and found the children adoptable. It then addressed the beneficial parental relationship exception to the termination of parental rights and concluded that father had not stood in the parental role for quite some time. The court also noted the number of placements the children had been in and that father had put forth his best effort to overcome his drug addiction. Nonetheless, he had relapsed several times, which resulted in the children changing placements. The court stressed the stability that adoption would offer and concluded that the parental bond did not outweigh the benefit of adoption. Thus, the court terminated parental rights and noted that mother was now deceased.
ANALYSIS
I. The Court Properly Denied Father's Section 388 Petition
Father contends that the court abused its discretion in denying his section 388 petition without a hearing. We disagree.
A. Standard of Review
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent's request. [Citation.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).) "The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. [Citation.]" (Ibid.) More than general conclusory allegations are required to make this showing, even when the petition is liberally construed. (In re Edward H. (1996) 43 Cal.App.4th 584, 593 (Edward H.).) A hearing is only required to be held "if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition. [Citation.]" (Zachary G., at p. 807, fn. omitted.) In other words, "if the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing." (In re Heather P. (1989) 209 Cal.App.3d 886, 891.)
B. The Court Did Not Abuse Its Discretion
The court here declined to order a hearing on father's petition because it concluded there was no evidence that the circumstances had changed or that it was in the children's best interests to return them to his custody. We find no abuse of discretion. Although father presented evidence that he completed an outpatient drug program on June 26, 2017, and that he had tested clean from March 27 to August 15, 2017, we note that the majority of the testing was apparently done while he was still participating in the drug program.
Moreover, as the court observed, father had a longstanding history of substance abuse and multiple relapses. The record shows that father first used cocaine when he was 17 years old and smoked methamphetamine shortly after that. His substance abuse problem persisted through three different removals of the children in three different counties, over the past few years. He was given referrals to and/or completed at least three other inpatient and outpatient programs, prior to the most recent one, including a 90-day Pathway Program at the Coachella Valley Rescue Mission, a 45-day treatment program at MFI Recovery in Woodcrest, which included early recovery and relapse prevention, and an outpatient substance abuse program at High Desert Behavioral Health. Nonetheless, father repeatedly relapsed after completing his programs. For example, he admitted to using methamphetamine in January 2016, just two days after completing his program at Coachella Valley Rescue Mission. He insisted that he only used one time, but he was drug tested, and the results indicated more than just a one-time use. He subsequently entered the MFI Woodcrest program on March 29, 2016, and completed it on May 9, 2016. However, he relapsed again, just two months later in July 2016. This time, father was arrested for possession of a controlled substance, possession of drug paraphernalia, and driving without a license. At the time of his arrest, defendant admitted that he had injected methamphetamine the night before. He pled guilty to all three charges and was apparently put on probation. Father again tested positive for methamphetamine on January 17 and 18, and February 1, 2017.
Thus, the record supports the court's observation that father had shown that he could complete services and maintain sobriety for a period of time, but that he tended to relapse. Moreover, although he alleged that he had completed an outpatient program, the evidence showed it was completed only about six months prior to the filing of the petition. Father also alleged that his circumstances had changed because he was now sober; however, given his history of relapsing, we agree with the court that he had shown that his circumstances were changing, but not that they had changed.
Father additionally alleged in his section 388 petition that the recent placement of another one of his children, S.N., by the Los Angeles County Superior Court constituted a change of circumstances. Although he attached a court minute order to support his allegation, no other details of that case were provided. On appeal, father argues that S.N.'s return to his care proves his home was safe and stable. He appears to characterize the placement as permanent. However, the minute order shows that it was conditional, as S.N. was released to him under the conditions that he continue to drug/alcohol test with no missed or dirty results, enroll in Alcoholics Anonymous and individual counseling, and cooperate with the department's visits. The Los Angeles County court was clearly concerned about his sobriety. Thus, contrary to father's claim, the court's order did not prove his home was stable or safe.
Furthermore, father's section 388 petition did not show that it was in the children's best interests to be removed from the home of the prospective adoptive parents, where they were happy and stable. The petition merely alleged that he had taken the steps to "ensure completion of his services to be able to be a safe and protective parent," and that if they were placed with him, they "would be in a safe, loving and nurturing environment." It also alleged father's belief that if they could not be placed with him, "it would be in their best interest to be placed with a relative where they would also be safe and protected." These statements are nothing more than general conclusory allegations, which are insufficient to make the prima facie showing. (Edward H., supra, 43 Cal.App.4th at p. 593.) Moreover, father at most only showed he was making efforts to effect life changes. However, he provided no evidence that it was in the children's best interests to be deprived of the stability of a permanent home with their prospective adoptive parents, in order to possibly be returned to a parent who had a long history of substance abuse, a history of relapsing, and a criminal record.
We conclude that the court did not abuse its discretion in denying father a hearing on his section 388 petition. Even if evidence at the hearing supported the facts alleged by his petition, those facts would not have supported the conclusion that the children's best interests would be served by the orders requested by him. In making this determination, we accordingly reject his argument that the court erred in terminating parental rights following the denial of the section 388 hearing.
II. The Beneficial Parental Relationship Exception Did Not Apply
Father also contends that the court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i). We disagree.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1)(B). One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). (See In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when 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).) The phrase " 'benefit from continuing the . . . relationship' " refers to a parent/child relationship that "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) It is the parent's burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
"There is some dispute about the precise standard of review that applies to an appellate challenge to a juvenile court ruling rejecting a claim that one of the adoption exceptions applies." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) However, "[s]ince the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental or sibling relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court's determination." (Id. at p. 1314.) "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (Autumn H., supra, 27 Cal.App.4th at p. 576.)
In support of his position, father asserts that he consistently visited the children, they lived with him through 2015 and then again from 2015 to 2017, and they expressed their desires to maintain significant contact with him. He also states that the children would cry at the end of his visits, the contact between him and the children was noted to be affectionate, he provided food and games for them and engaged each one individually, he tried to teach them right from wrong, and he loved them so much that he "was taking all the steps he could to reunify with [them.]" Father's claims and interactions with the children do not even begin to demonstrate that his relationship with them promoted their well-being "to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents." (Autumn H., supra, 27 Cal.App.4th at p. 575.) He has proffered no evidence to support a finding that the children had a "substantial, positive emotional attachment [with him] such that [they] would be greatly harmed" if the relationship was severed. (Ibid.)
We also note father's claim that the children lived with him from 2015 to 2017 is belied by the record. The record shows that, on September 3, 2015, the court ordered the children removed from his custody. The social worker reported that father placed the children's safety at risk, as he allowed his girlfriend, who had known substance abuse issues, to care for them. He also failed to complete Safe Care program services and failed to register for a parenting class. The court detained the children on September 9, 2015. H.N. was eventually moved to father's care on family maintenance, but it was not until May 2016 that the social worker recommended the return of the three other children to his custody on family maintenance. Then, in March 2017, the court detained the children again, after the social worker reported that father was drug testing inconsistently and discovered that he pled guilty to charges of driving without a license, possession of controlled substances, and possession of drug paraphernalia in September 2016. Thus, to the extent father is claiming he is bonded to the children because they lived with him from 2015 to 2017, such claim is unsubstantiated.
In his reply brief, father asserts that the court relied on his not having served as the children's "day to day caretaker" to support its ruling that the beneficial parental relationship did not apply. While the court did point out that he did not care for the children day to day and had not stood in the parental role for quite some time, it also noted that father had "relapse after relapse," which resulted in them being removed from him and changing placements numerous times. The court emphasized the permanency that adoption would provide and concluded that the parental bond did not outweigh the benefit of adoption. We agree.
Finally, we note the record shows the children were happy and comfortable in the home of the prospective adoptive parents. There was a mutual attachment between the children and the prospective adoptive parents, and the children recognized them as their parental figures. The prospective adoptive parents wanted to adopt them, and their adoption would allow the four children to remain together. The prospective adoptive parents fully understood the responsibilities of adoption and desired to give the children a safe and happy life.
We conclude that father failed to meet his burden of showing the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i), applied.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.