Opinion
D076876
05-22-2020
In re D.I., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. P.I. et al., Defendants and Appellants.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant J.J. (Mother). Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant P.I. (Father). Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. NJ15192) APPEAL from a judgment of the Superior Court of San Diego County, Michael J. Imhoff, Judge. Affirmed. Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant J.J. (Mother). Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant P.I. (Father). Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
P.I. (Father) and J.J. (Mother) appeal from a judgment of the juvenile court terminating their parental rights to their minor child, D.I. They argue the juvenile court erred by denying their Welfare and Institutions Code section 388 petitions and by declining to apply the beneficial parent-child relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). We find no error in the juvenile court's determinations and affirm the judgment.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
D.I. was born in January 2015. That June, the San Diego Health and Human Services Agency (the Agency) received a report indicating that Mother and Father had separated, and Mother was having trouble finding formula for D.I. after Father left the family home, taking the formula that they had with him. The Agency was concerned about Mother's mental health and provided Mother with referrals to a psychiatric clinic and a women's shelter. The parents entered into a voluntary case plan and the case was closed in January 2016 after Mother and Father met the majority of the case plan objectives.
In April 2016, when D.I. was just over a year old, Mother and Father became intoxicated and engaged in a violent confrontation in D.I.'s presence. Mother stabbed Father with a box cutter blade during the incident, resulting in a four-inch laceration on Father's arm. She was arrested for assault with a deadly weapon and domestic battery. The Agency filed a juvenile dependency petition on D.I.'s behalf, and the juvenile court took jurisdiction over D.I. D.I. was detained with Father and all visits with Mother were supervised.
Both parents received reunification services, including domestic violence education and substance abuse treatment. Father completed an outpatient substance abuse treatment program. Mother attended a residential substance abuse treatment program and completed the program "satisfactorily" in October 2016 but did not graduate from the program. The counselor at the treatment center and the Agency recommended that Mother enter another residential program, but Mother did not follow the recommendation and did not enroll in the new program.
In April 2017, the juvenile court terminated its jurisdiction over D.I. The exit orders gave both parents legal and physical custody but indicated that D.I. was to reside primarily with Father.
Events Leading up to the Current Dependency Case
On May 26, 2018, the San Diego County Sheriff's Department responded to a report that Father was seen dragging D.I. by a leash. When the officers arrived, they noted that parents smelled of alcohol and had slurred speech. Mother had trouble maintaining her balance while walking. A witness stated that D.I. was crying and that Father pulled D.I. up into the air "in an aggressive manner" by a leash attached to a backpack while D.I. was walking.
A server at a restaurant nearby reported that she had served Mother two alcoholic beverages but had stopped serving Mother as she appeared "drunk." The server said that Father was coming in and out of the restaurant and he and Mother were arguing. The officers arrested Mother for public intoxication and placed her in the back of a vehicle, where she proceeded to lie down and fall asleep.
A records search revealed that Mother and Father each had an active domestic violence restraining order in place against the other. One of the protective orders required Father to abstain from the use of alcohol for 12 hours prior to and during any time that he was with D.I., and the officers arrested Father for violating that order.
D.I. was placed in protective custody. He had a cut and bruising above his right eye and a scar on his left elbow. D.I. did not ask for Mother or Father and did not respond when a social worker asked where his parents were a couple of days later.
Juvenile Dependency Petition and Initial Removal
The Agency filed a juvenile dependency petition on D.I.'s behalf on May 30, 2018. The petition alleged that D.I. was a child as described in section 300, subdivision (b) and that Mother and Father were unable to care for him as a result of their ongoing substance abuse. The juvenile court found the Agency made a prima facie showing on the petition, detained D.I. outside of the care of his parents, and ordered reunification services for both Mother and Father.
An Agency social worker was able to speak to Mother and Father on May 30. Mother stated they had planned to go out to dinner before checking into a hotel on May 26, but the hotel reservation was cancelled. She said Father had two beers and she had two margaritas but that the waitress probably thought Father was drunk because they did not drink anymore and were "total lightweights." She said that D.I. injured his eye by jumping on a bed and then falling and hitting his head on a coffee table. Mother said they did use a backpack with a leash because D.I. was "very danger prone" and "walks hunched over" but denied pulling on the leash.
Father also stated that D.I. injured his eye by jumping on and falling off of a bed. He said that he and Mother had reconciled and that she was currently at the courthouse trying to get the restraining orders dropped. He said that he did not drink anymore but that he had two 22-ounce beers on Memorial Day.
D.I. was placed with a licensed confidential foster family. There were some concerns regarding his speech and he displayed some violent behaviors such as hitting, kicking, biting, and throwing, but he was otherwise on track developmentally. On June 7, a social worker picked D.I. up for a visit with Mother and Father. When the social worker told D.I. they were going to see Mother and Father, he pointed to his eye and said "owie" and "Daddy, mash." Only Father arrived for the visit, and he was affectionate and appropriate with D.I.
On June 11, 2018, Mother told the social worker that she and Father had agreed not to speak to the Agency and that they would "just wait for court." A few days later, Mother agreed to complete an interview at a later date.
An Agency social worker spoke with Father on June 15, 2018. Father expressed concern about D.I.'s health as he had been coughing at their last visit and requested updates regarding his medical care. Father said that he missed D.I. a lot and that he never abused or neglected D.I. The social worker asked Father about his substance abuse history and Father indicated that he began using beer and "pot" at the age of 13. He reported that he used drugs and alcohol daily at one point, and that his preferred drug of choice was methamphetamine, but said that he had not used drugs since 2005.
Both parents agreed to participate in reunification services. They enrolled in parenting classes and substance abuse treatment and acknowledged the reasons the Agency and juvenile court intervened. They regularly participated in supervised visits with D.I., and the Agency noted "the clearly identifiable bond between the minor and his parents." In July, the superior court granted their requests to terminate the domestic violence restraining orders.
Placement with Mother and Father Under Juvenile Court Supervision
In an addendum report filed in conjunction with the combined jurisdiction and disposition hearing on July 20, 2018, the Agency recommended that D.I. be placed in the home with Mother and Father, with ongoing family maintenance services. The juvenile court found that D.I. fell under the jurisdiction of the court pursuant to section 300, subdivision (b) and adopted the Agency's recommendation that he be placed in Mother's and Father's care with ongoing support.
A court-appointed special advocate (CASA) visited the family several times. The family lived in a one-bedroom apartment in a former motel. They were hoping to get a housing voucher but had not moved up on the list due to a lack of effort at attending their Alcoholic Anonymous (AA) meetings. Mother often complained about their situation and told the CASA that she found it difficult to get around and connect with the services she was supposed to do. Father worked nights and the family often slept late into the day.
D.I. attended a Head Start program in July 2018 but stopped attending after a month because his paperwork expired. He was enrolled in another preschool in September 2018, but Mother stopped taking him in October because it was inconvenient to get him there using public transportation. The Agency recommended that the family enroll D.I. into a preschool or daycare program and that D.I. complete a comprehensive developmental evaluation due to ongoing speech issues. The CASA agreed that D.I. would benefit from regular social interaction at daycare or preschool. As of December 2018, the parents had not followed through with these recommendations.
Subsequent Removal from Mother's and Father's Care
On January 2, 2019, the Agency received a report from the apartment manager indicating that Mother had come into the office to complain that Father had hit her and was currently passed out in the apartment. The manager indicated Mother smelled of alcohol, had slurred speech, and staggered as she walked out of the office. The Agency social worker called the San Diego County Sheriff's office and requested a welfare check on the family.
Law enforcement officers arrived at the apartment around 3:00 p.m. and found the parents to be "extremely intoxicated and unable to care for their four-year-old son." The officers noted that there was alcohol within reach of the child, there was little food in the fridge and some of the food that was there had expired, and the room was in disarray. D.I. said he was cold, and the officers had trouble locating any warm clothing for him in the apartment. The officers arrested Mother and Father for child endangerment.
The Agency spoke with the parents the next day. Father denied drinking any alcohol. Mother stated that she had one glass of Jim Beam but was not drunk. However, she admitted that she was having trouble abstaining from alcohol and said that she had not been clean for any substantial length of time since the juvenile dependency case began. She said Father drank a substantial amount of alcohol and was drunk and belligerent. She further stated that Father was a full-blown alcoholic, had no interest in getting sober, and had become more and more abusive over the previous months. Mother indicated she was struggling to maintain her sobriety while living with him and was looking for a domestic violence shelter.
On January 4, 2019, the Agency filed a section 387 petition and asked the juvenile court to remove D.I. from Mother's and Father's care. The same day, the superior court issued criminal protective orders protecting D.I. from his parents.
In a Detention Report dated January 7, 2019, the Agency noted that there were reports from neighbors indicating the parents regularly consumed alcohol and yelled at one another and that D.I. had been seen wandering the complex unattended. The San Diego County Sheriff's office reported they had responded to several calls regarding the parents over the previous three to four months, and the parents had been under the influence on those occasions but had not been arrested because at least one of them was capable of caring for the child. Mother had two positive tests for alcohol, one diluted test, and one no show, and neither parent had made any significant progress with respect to the services offered by the Agency.
The juvenile court found that placement in the parents' home was contrary to D.I.'s welfare and once again removed him from Mother's and Father's care. The court ordered supervised visitation for both parents.
D.I. was placed in the care of the same confidential foster family that he had previously been placed with. The foster mother indicated D.I. recognized them immediately and began calling them mom and dad. She said D.I. kept repeating that he hated Mother and Father and when they asked him why, he said, "they keep yelling, they are in trouble, they are in the cage," and "My dad hit my mom on the cheek." In addition, she noted that D.I. expressed that he wanted to go back to school and was very excited to see food in the home.
On January 10, Father told the social worker that he had been diagnosed with cirrhosis of the liver two months earlier, and that his drinking had "slowed down quite a bit" after the diagnosis. He admitted that he and Mother sometimes fought in D.I.'s presence and said that D.I. would sometimes scream and hit Mother during their fights. Mother similarly stated that D.I. would sometimes hit her while Father was yelling.
In an addendum report dated January 17, 2019, the Agency noted that Mother had been provided with 24 months of services but had largely failed to participate. Father was making some progress and appeared engaged but had failed to adequately address the main protective issue of substance abuse.
As of February 15, 2019, Mother had not met with the substance abuse specialist, and a referral was closed for Community Services for Families after the social worker made several failed attempts to complete an intake.
On February 22, 2019, the San Diego County Sheriff's office responded to another report that Mother and Father were screaming. Mother and Father were heavily intoxicated and there were multiple bottles of alcohol throughout the apartment. Mother told the officers that Father hit her and pulled her across the floor by her hair and Father was arrested.
Father visited D.I. regularly and interacted appropriately with him during visits at first, but his visits became less consistent over time. Mother visited only sporadically. When asked what was preventing her from visiting more regularly, Mother stated that she had a lot going on but refused to provide a more specific explanation. D.I. began attending preschool again and his speech and vocabulary improved.
In April, Mother indicated she was homeless and living with friends. The Agency social worker noted that Mother was often at Father's apartment when she made unannounced visits and Father admitted that he still allowed her to come and go freely.
Father attempted to enroll in a residential treatment program on April 30, 2019, but he was not allowed to enter the program because his blood alcohol level was 1.4. The program offered Father the option of going into detox, but he became angry and left. The Agency social worker noted that Father lost his job due to the arrest in January, had not been current on his rent since March, and had serious unaddressed health issues. Mother reported that she did not enter a treatment program because Father had not done so, and she believed Father could not be left alone due to his illness.
Termination of Reunification Services
The juvenile court held a contested adjudication and disposition hearing in May. Given the lack of progress by both parents, the Agency recommended that the juvenile court discontinue services and set a section 366.26 permanency hearing for D.I. The juvenile court admitted a number of reports from the Agency and found that there was not a substantial probability that D.I. would be returned to the custody of his parents. The court terminated reunification services for Mother and Father and set a section 366.26 permanency hearing for September 2019.
D.I. remained comfortable in his foster home. He had one supervised visit per week with each parent. The CASA reported that D.I. appeared to enjoy the visits, but the foster parents indicated D.I. did not want to go to the visits and said that they would want to stop the visits if parental rights were terminated. The parents requested a phone number where they could call D.I. between visits and the foster parents provided one, but neither parent called.
An Agency social worker also observed several visits and indicated that D.I. seemed to enjoy the visits but that he left easily and was not upset when the visits ended. Sometimes D.I. said that he wanted to go home with Mother or Father at the end of visits, but he also said that he liked living with the foster parents and, at times, said that he wanted to go home with the social worker as well. The social worker believed D.I. was confused and that his conflicting statements indicated a heightened need for stability and permanence. The foster parents were committed to adopting D.I. and the Agency recommended that the juvenile court terminate Mother's and Father's parental rights in favor of adoption.
Section 388 Petitions
Prior to the section 366.26 hearing in September, Mother and Father each filed a section 388 request to change court orders. Mother alleged she had addressed her substance abuse issues, had been sober for over 90 days, and was currently residing in a sober living home. In addition, she indicated that she had started a parent education class and had permanently severed her relationship with Father, although she understood that they may have to coparent in the future. Father alleged that he had participated in services, that he had completed intake for a substance abuse recovery program, and that he had a strong and loving relationship with D.I.
At the hearing, counsel for the Agency and the minor argued that neither parent had met their burden to show changed circumstances. After hearing argument, the juvenile court noted that both Mother and Father had recently made good faith efforts but that those efforts were not sufficient to establish changed circumstances or that a change in orders would be in D.I.'s best interests. Accordingly, the court denied the motions and set a contested section 366.26 hearing for November.
Mother filed another section 388 request to change orders in October. She alleged that she had continued to address her substance abuse issues, had remained sober, and had a very close relationship with D.I. The Agency asserted Mother's motion was no different than her previous motion, except that she now had a few additional weeks of sobriety, and that three months of sobriety was insufficient to establish changed circumstances when considering her refusal to address the substance abuse for the previous four years. The Agency therefore recommended that the juvenile court deny Mother's petition and proceed with the permanency plan of adoption.
Father also filed another section 388 request to change court orders just prior to the contested section 366.26 hearing in November. Similar to Mother's petition, Father asserted that he was continuing to make progress in addressing the issues that led to D.I.'s removal.
At a combined hearing on November 7, 2019, Mother argued that she had completed a domestic violence education course, had gained employment, and continued to remain sober and in treatment. Similarly, Father argued that he had "thrown himself completely into services" and was in a sober living situation. Counsel for the Agency and the minor argued that neither parent had made a prima facie showing on the petitions. The juvenile court commended Mother and Father on their efforts but noted that this was the third removal for D.I. and both parents were still in the early stages of addressing the underlying protective issues, and therefore denied each of the petitions once again.
The court went on to admit evidence and hear argument related to permanency planning pursuant to section 366.26. Both parents argued that the court should adopt a legal guardianship based on the beneficial parent child relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i), but the court found that any benefit from a relationship between D.I. and either parent was outweighed by his need for stability. Accordingly, the court terminated Mother's and Father's parental rights and adopted a permanent plan of adoption for D.I.
Mother and Father appeal.
DISCUSSION
I. Section 388 Petitions
Mother and Father each assert that the juvenile court erred by denying their section 388 petitions without an evidentiary hearing.
A. Relevant Legal Principles
Section 388 provides an " 'escape mechanism' " that allows a juvenile court to consider new information, even after the court has discontinued reunification services and set a section 366.26 permanency hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
More specifically, the statute allows a parent, or other person having an interest in a dependent child, to petition the court to set aside any previously made order of the court based on changed circumstances or new evidence. (§ 388, subd. (a)(1).) The statute requires the juvenile court to hold a hearing on the petitions "[i]f it appears that the best interests of the child . . . may be promoted by the proposed change of order . . . ." (Id., subd. (d).) In order to obtain a hearing pursuant to section 388, the petitioner must make a prima facie showing that there has been a change in circumstances and that a change in orders would be in the child's best interests. (See In re G.B. (2014) 227 Cal.App.4th 1147, 1157 (G.B.); In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).)
The facts alleged in the section 388 petition, along with the facts established without dispute by the court's own file, determine whether the parent is entitled to a hearing. (In re Angel B. (2002) 97 Cal.App.4th 454, 461 (Angel B.).) The allegations in a section 388 petition must be construed liberally, but they also must be specific enough to establish that the child's best interests would be advanced in order to trigger the statutory requirement for an evidentiary hearing. (G.B., supra, 227 Cal.App.4th at p. 1157; Zachary G., supra, 77 Cal.App.4th at p. 806.) A petition fails to make the requisite prima facie showing "if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing." (G.B., at p. 1157; Zachary G., at p. 806.) "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 (Justice P.).)
B. Standard of Review
We review a summary denial of a hearing on a section 388 petition for abuse of discretion and resolve any constitutional issues as a matter of law. (Angel B., supra, 97 Cal.App.4th at pp. 460, 462; Zachary G., supra, 77 Cal.App.4th at p. 808; In re A.S. (2009) 180 Cal.App.4th 351, 358.)
Mother and Father rely on In re Jeremy W. (1992) 3 Cal.App.4th 1407 (Jeremy W.) to assert that our review should be de novo. In Jeremy W., the juvenile court denied the mother's section 388 petition "by checking a box on a printed form containing the statement, 'It appears to the court that the best interests of the minor(s) will not be promoted by the proposed change of order.' " (Id. at p. 1413.) The court did not make any factual findings or provide any further basis for its conclusion. (Ibid.) In reversing the juvenile court, the court of appeal noted that the juvenile court generally has "extensive discretion to determine the best interests of a minor" and that the abuse of discretion standard applies "when reviewing final determinations on the merits underlying a section 388 petition." (Id. at p. 1416.) However, the court of appeal went on to note that the issue before the court was "the right to procedural due process to permit a full and fair hearing on the merits," and concluded that the juvenile court "erred in its check mark denial" of the mother's section 388 petition. (Ibid.)
Here, by contrast, the juvenile court expressly stated that it had reviewed the evidence attached to each of the petitions, including recent addendums, allowed the parties to make arguments, and then made detailed findings on the record concerning both the lack of changed circumstances and D.I.'s best interests. The court in In re Edward H. (1996) 43 Cal.App.4th 584 addressed a similar situation and concluded that even if the abbreviated hearing did not satisfy section 388, the juvenile court still did not err in denying the parents' section 388 petitions because each failed to make a prima facie showing of changed circumstances. (Id. at p. 592.) Where a petition fails to make the required prima facia showing, summary denial of the petition does not violate the petitioner's due process rights. (See In re Jackson W. (2010) 184 Cal.App.4th 247, 260.)
In his reply brief, Father asserts the Agency incorrectly addresses the standard for granting the relief requested in the petitions, as opposed to the standard for granting an evidentiary hearing. As noted, both standards are relevant as a section 388 petition fails to make a prima facie showing "if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing." (G.B., supra, 227 Cal.App.4th at p. 1157; Zachary G., supra, 77 Cal.App.4th at p. 806.)
C. Analysis
Here, the juvenile court denied Mother's and Father's section 388 petitions after concluding that neither parent made prima facie showing of changed circumstances or that a change in orders would be in D.I.'s best interests. We agree that the petitions did not make the requisite prima facie showings and find no error in the court's denials.
Taken as true, the allegations in Father's petitions establish that Father had begun to address the issues that led to D.I.'s removal in the two months leading up to the November 2019 section 366.26 hearing. Specifically, Father alleged that he had been a resident in good standing at a shelter since August 30, 2019; had completed intake for a substance abuse treatment program on September 4, 2019; had completed five of 52 sessions in a child abuse prevention program; and had completed several parenting classes.
By contrast, Father had not previously been able to maintain sobriety despite the continued involvement of the Agency and several encounters with law enforcement and had not made any serious attempts to participate in services for nearly eight months after D.I.'s most recent removal in January 2019. Instead, there were continued reports that Mother and Father were drinking heavily and screaming at one another on a regular basis, both while D.I. was in their care and after D.I. was removed, and when Father attempted to enter treatment on April 30, 2019, his blood alcohol level was 1.4.
While the juvenile court commended Father for his efforts, it correctly concluded that those efforts were very recent, particularly when compared to Father's long history of substance abuse despite the multiple interventions by the Agency and the juvenile court. Accordingly, we agree with the juvenile court that Father's recent efforts were not sufficient to establish even a prima facie showing of changed circumstances. (See In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 (Ernesto R.) [parent's recent recovery showed changing, rather than changed circumstances]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424 (Cliffton B.) [200 days of sobriety insufficient to eliminate risk of relapse].)
Taken as true, the allegations in Mother's petitions establish that she had been sober for approximately five months, since mid-June 2019, was participating in dependency drug court, and had begun participating in a 52-week parenting class. Like Father, though, she also had not been able to maintain sobriety for any significant period in the four years since D.I. was born and had not made any serious attempts to participate in services for several months after D.I.'s most recent removal in January 2019. Mother previously attended a residential treatment program, during the first dependency case, but did not graduate, neglected to follow the recommendations of the program and the Agency that she enroll in an additional program, and was once again drinking heavily when the Agency was forced to intervene a year later. Thereafter, and despite being under the supervision of the Agency and the juvenile court, Mother continued to abuse alcohol and engage in domestic violence in D.I.'s presence.
Thus, while we acknowledge that Mother's most recent progress was further along than Father's, we also find no error in the juvenile court's conclusions that Mother was nevertheless in the early stages of recovery as well and that the allegations in the petition were not sufficient to make a prima facie showing of changed circumstances. (See Ernesto R., supra, 230 Cal.App.4th at p. 223; Cliffton B., supra, 81 Cal.App.4th at pp. 423-424.)
Further, even if we were to assume that either parents had made a prima facie showing of changes circumstances, we also agree with the juvenile court's findings that neither parent made a prima facie showing that a change in the previous orders would be in D.I.'s best interests. As the juvenile court had terminated reunification services for both parents, there was a rebuttable presumption that the stability afforded by D.I. being adopted by his long-term foster parents was in his best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) Even viewing the allegations in the petitions as true, neither parent made a prima facie showing sufficient to overcome that presumption.
In his first petition, Father asserted that he and D.I. had a strong relationship; that D.I. was excited to see Father, enjoyed visits with Father, and sometimes asked to go to Father's home during visits; and that continued services would enable Father to remain in D.I.'s life and provide full-time care for him. In his second petition, Father similarly asserted that he and D.I. had a strong relationship and that D.I. would benefit from an opportunity to maintain his biological ties to his parents. Similarly, Mother alleged that she had a close and loving relationship with D.I., that D.I. still viewed her as a mother and would ask to go home with her during visits, and that D.I. would benefit from an opportunity to maintain his biological ties to his parents.
However, these allegations must be viewed in the context of the entire case. (See Justice P., supra, 123 Cal.App.4th at p. 189.) As the juvenile court noted, D.I. had been involved in dependency cases for much of his life and had now been removed from Mother's and/or Father's care on three separate occasions. Although D.I. generally enjoyed spending time with Mother and Father, he left visits easily and, more importantly, his statements and behaviors suggested confusion and trauma resulting from his prior experiences living with and being removed from Mother's and Father's care. Not surprisingly, he had recently expressed a desire to remain in the care of his foster parents.
Given the lengthy and tumultuous history of dependency proceedings and the presumption that D.I.'s interests were best served by the stability of adoption, we find no error in the juvenile court's conclusion that neither parent made a prima facie showing that a change of orders would be in D.I.'s best interests.
Mother and Father assert this case is like In re Hashem H. (1996) 45 Cal.App.4th 1791 (Hashem H.), but it is not. In Hashem H., the appellate court concluded that the juvenile court erred by denying an evidentiary hearing after failing to adequately consider the attachments to a parent's section 388 petition based on the court's conclusion that the attachments contained unverified hearsay. (Id. at p. 1798.) By contrast here, the record indicates the juvenile court correctly understood that the parents were only required to make a prima facie showing in order to obtain a hearing on their petitions, and adequately considered the allegations in the petition and the attachments thereto.
Mother also asserts that her case is similar to Jeremy W., supra, 3 Cal.App.4th 1407. Again, we disagree. In Jeremy W., it was undisputed that the mother had complied with almost all of the court-ordered requirements but that she had not been able to establish stable housing. (Id. at pp. 1414-1415.) The declarations attached to her section 388 petition directly addressed the one remaining deficiency and, thus, the court found that the mother had made "a strong prima facie showing of a favorable change in the single negative factor on which the referee purported to base his section 366.21 order." (Id. at p. 1416.) By contrast here, Mother had not made any significant progress in addressing the majority of the identified protective issues, including most notably her long-standing substance abuse issues, until several months after the juvenile court removed D.I. from her care for the third time, and her recent progress was still in the early phases.
Moreover, although Mother and Father primarily complain that the juvenile court did not afford them a full evidentiary hearing, neither parent offers any explanation as to how they were prejudiced by the lack of an evidentiary hearing or, more specifically, how a hearing would have changed the outcome. There is no suggesting in the record that the juvenile court did not give appropriate weight to the allegations set forth in the petitions. To the contrary, the court concluded that the parents' very recent progress was not sufficient to carry their burden on a prima facie basis to show changed circumstances or that changed orders would be in D.I.'s best interests.
We note as well that section 388 petitions filed on the same day as the permanency plan selection and implementation hearing are disfavored, and that the juvenile court could have denied Father's petitions on timeliness grounds alone. (See In re Edward H. (1996) 43 Cal.App.4th 584, 594.)
Finally, Mother asserts that we must vacate the section 366.26 order terminating her parental rights based on the juvenile court's erroneous denial of her section 388 petition. (See, e.g., In re Lauren R. (2007) 148 Cal.App.4th 841, 861; In re Heather P. (1989) 209 Cal.App.3d 886; Jeremy W., supra, 3 Cal.App.4th at p. 1416.) As we have concluded the juvenile court did not err by denying any of the section 388 petitions filed by either Mother or Father, we need not, and do not, reverse the section 366.26 order on that basis.
II. Termination of Parental Rights
Mother and Father also assert that the juvenile court erred by not applying the beneficial parent child relationship exception in section 366.26, subdivision (c)(1)(B)(i) to preclude the termination of their parental rights. For many of the same reasons already discussed with respect to the section 388 petitions, we disagree.
A. Relevant Legal Principles
Once the juvenile court terminates reunification services in a dependency proceeding, the focus shifts from preserving the family to promoting the best interests of the child, including the child's best interests in a stable, permanent placement. (Stephanie M., supra, 7 Cal.4th at p. 317; In re Fernando M. (2006) 138 Cal.App.4th 529, 534 (Fernando M.); In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).)
At this point, "the juvenile court has three options: (1) to terminate parental rights and order adoption as a long-term plan; (2) to appoint a legal guardian for the dependent child; or (3) to order the child be placed in long-term foster care." (Fernando M., supra, 138 Cal.App.4th at p. 534.) Of those options, adoption is the permanent plan preferred by the Legislature, even though it requires termination of the natural parents' legal rights to the child. (Autumn H., supra, 27 Cal.App.4th at p. 573.) Accordingly, if the juvenile court finds a caregiver is willing and able to adopt the child, the court must select adoption as the permanent plan unless it finds the termination of parental rights would be detrimental to the child under one of the exceptions enumerated in the statute. (§ 366.26, subd. (c)(1)(A) & (B)(i)-(vi); Autumn H., at p. 573.)
Section 366.26, subdivision (c)(1)(B)(i) provides one such exception to the preference for adoption where "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." Courts have interpreted this exception as requiring 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." (Autumn H., supra, 27 Cal.App.4th at p. 575.) "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." (Autumn H., at p. 575.)
A parent claiming the parental relationship exception has the burden of establishing it applies and must prove the child has a significant and positive emotional attachment to the parent. (In re T.S. (2009) 175 Cal.App.4th 1031, 1039; In re C.F. (2011) 193 Cal.App.4th 549, 555 (C.F.).) Because a selection and implementation hearing occurs "after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The parent asserting the exception will not meet his or her burden by showing the existence of a "friendly and loving relationship," an emotional bond with the parent, or pleasant, even frequent, visits. (In re J.C. (2014) 226 Cal.App.4th 503, 529 (J.C.); C.F., supra, 193 Cal.App.4th at p. 555; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re L.S. (2014) 230 Cal.App.4th 1183, 1200 ["To avoid termination of parental rights, it is not enough to show that a parent-child bond exists"].) Rather, there must be a parental role in the child's life, resulting in a significant, positive emotional attachment from the child to parent that if severed would result in harm to the child. (C.F., at p. 555; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324; see also J.C., at p. 529 [observing that interaction between a natural parent and child will always confer some incidental benefit to the child and for the exception to apply, " 'a parental relationship is necessary . . . .' "].)
B. Standard of Review
We apply a hybrid standard of review on appeal. (J.C., supra, 226 Cal.App.4th at pp. 530-531.) We review the juvenile court's findings regarding the existence of a beneficial parental relationship for substantial evidence and review the juvenile court's determination as to whether there is a compelling reason for concluding the termination of parental rights would be detrimental to the child for an abuse of discretion. (Ibid.; In re Anthony B. (2015) 239 Cal.App.4th 389, 395 (Anthony B.); see also Jasmine D., supra, 78 Cal.App.4th at p. 1351 [practical difference between pure substantial evidence standard of review and hybrid standard of review is insignificant].)
C. Analysis
Here, the Agency concedes that the parents met the first prong and maintained regular visitation with D.I. However, the juvenile court found the parents failed to prove that their relationship with D.I. was so beneficial that the termination of their parental rights would be detrimental to him. We agree.
Although D.I. was only four years old at the time of the section 366.26 hearing, he had been removed from Mother's and/or Father's care three separate times. When he was in their care, he was exposed to continual substance abuse and several incidents of domestic violence, including one in which Mother stabbed Father with a box cutter blade. In addition, Mother and Father often did not provide for D.I.'s needs when he was in their care. They left alcohol out and within his reach, they did not provide adequate food or clothing, and they did not follow through with recommendations to have him evaluated for developmental delays or to enroll him in daycare or preschool.
Although it appears that D.I. enjoyed spending time with Mother and Father when they were sober during supervised visits, the record indicates that he was not firmly attached to either parent. D.I. had been in and out of the dependency system for most of his life, and Mother and Father had largely failed to address the serious protective issues that led to the dependency actions for the majority of that time. D.I. did not ask for Mother or Father and did not respond when a social worker asked him where his parents were several days after his initial removal from their care. Instead, he indicated that Mother and Father yelled and that Father hit Mother. Both parents admitted that D.I. sometimes yelled and hit in response to their own fighting, and D.I. continued to display behaviors such as hitting, kicking, biting, and throwing after being removed from their care.
On the other hand, D.I. was secure in his foster placement and referred to his foster parents as mom and dad. He began attending preschool regularly and his speech and vocabulary improved. The Agency social worker believed D.I. was confused by the multiple removals, and that his conflicting statements and behaviors indicated a heightened need for stability and permanence. The foster parents were committed to adopting D.I. and both the Agency and the minor's counsel recommended that the juvenile court terminate Mother's and Father's parental rights in favor of adoption.
Father argues this case is like In re S.B. (2008) 164 Cal.App.4th 289 (S.B.) and In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.). We disagree. In S.B., although S.B.'s father acknowledged that his health problems impeded his ability to care for S.B. full time, S.B. and her father had a consistent, positive and emotionally significant relationship. (S.B., at pp. 294-296, 298.) S.B. visited with her father regularly, displayed a strong attachment to her father, and became upset when their visits ended. (Ibid.) In addition, a bonding study indicated S.B. had a "fairly strong" bond with his father and their relationship vacillated between parental and peer-like. (Id. at pp. 294-296.) Similarly, in Amber M., the children had trouble separating from the mother and a psychologist concluded that the mother and Amber shared " 'a primary attachment' " and a " 'primary maternal relationship,' " and that severing that relationship would be determinantal. (Amber M., at p. 689.)
By contrast, here, D.I. enjoyed spending time with Mother and Father in a supervised setting but left visits easily. He sometimes said that he wanted to go home with Mother or Father, but also sometimes said that he wanted to go home with the Agency social worker, suggesting that he was confused and had not formed a significant attachment with either Mother or Father. This is not surprising given that D.I. suffered trauma as a result of Mother's and Father's substance abuse and domestic violence and Mother's and Father's failure to provide for even his most basic needs while he was in their care.
In re Brandon C. (1999) 71 Cal.App.4th 1530 is inapplicable here as well. There, the court affirmed the juvenile court's application of the beneficial parent child relationship exception after dismissing the Agency's assertion that there was insufficient evidence that the child would benefit from an ongoing relationship with his mother and stated that a parent's interactions with the child must be viewed in the context of the amount of visitation permitted. (Id. at pp. 1537-1538.) The juvenile court's decision here was not based primarily on the limited nature of the interactions between D.I. and his parents during supervised visits and instead the court noted that those visits were generally positive. --------
We therefore conclude that substantial evidence supports the juvenile court's findings that the relationships between D.I. and his parents did not rise to the level of a significant, positive emotional attachment required by the law, and find no abuse of discretion in the court's determination that any benefit conferred by those relationships was greatly outweighed by the stability of adoption. (J.C., supra, 226 Cal. App.4th at pp. 530-531; Anthony B., supra, 239 Cal.App.4th at p. 395.)
As a final matter, both Mother and Father adopt each other's arguments and assert that this court must reverse the termination of parental rights as to both parents if it reverses the termination as to either parent. As we are not persuaded by any of Mother's or Father's arguments and affirm the juvenile court's orders termination each of their parental rights as to D.I., we need not address these assertions.
DISPOSITION
The judgment of the juvenile court is affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. HALLER, J.