In re Jacob P.

Filed 9/27/07 In re Jacob P. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Carolyn Kirkwood, Judge. Affirmed.

Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.

No appearances for the Minor.

* * *

Introduction

Jacob P. and his younger brothers Preston P. and Jayden P. were taken into protective custody on November 16, 2005 when the police found Jacob, then seven years old, unattended at a store two blocks from his familys apartment. Jacob had a blue bruise under one eye. He told the police his father, Eric P. (Father), had given him the bruise. The police went to the apartment, where they found Preston and Jayden naked and their mother, Nicole P. (Mother), sleepy and disheveled in the middle of the day. The police asked Mother how Jacob received the bruise. When Mother blamed the family dog, Jacob interjected, no Mommy[,] Daddy did it.

On January 9, 2007, the juvenile court terminated parental rights as to Jacob under Welfare and Institutions Code section 366.26 following a permanency hearing. (All further statutory references are to the Welfare and Institutions Code.) Just before commencing the permanency hearing, the juvenile court had denied Fathers section 388 petition without a hearing.

Father appeals from the order terminating his parental rights as to Jacob. He contends: (1) the juvenile court abused its discretion by summarily denying his section 388 petition; and (2) the juvenile court erred by terminating his parental rights because he satisfied the regular visitation and contact exception under section 366.26, subdivision (c)(1)(A). Mother did not appear at the permanency hearing and has not appealed.

We conclude the juvenile court did not abuse its discretion by denying Fathers section 388 petition without a hearing and substantial evidence supported the courts conclusion that the regular visitation and contact exception did not apply. Accordingly, we affirm the order terminating parental Fathers rights as to Jacob.

Facts and Procedural History

I.

Events Leading to Jacobs Detention

Jacob was born to Mother and Father in October 1998. Preston was born to Mother and Father in November 2001, and Jayden was born to Mother and Father in February 2003. Mother and Father have never been married to each other. As of November 2005, Father had not worked for five years, and Mother financially supported the family by working two jobs.

On November 16, 2005, Costa Mesa police officers found Jacob unattended at a hardware store two blocks from his familys apartment. The officers recognized Jacob because the month before, in responding to a report, they found him playing outdoors without supervision. The officers noticed that Jacob had a circular, blue bruise under one eye. Jacob told the officers his father had given him the bruise. The officers asked Jacob about Mothers whereabouts. He said Mother was at home sleeping, and he was not supposed to return home until after 6:00 p.m.

The officers took Jacob to his apartment, where they found Preston and Jayden naked and unsupervised. Mother was sleepy and disheveled. When the officers told her they had found Jacob unsupervised, she blamed Jacob for constantly leaving the apartment without permission. When asked about Jacobs bruise, Mother claimed Jacob had hurt himself while playing with the family doga pit bull. Jacob interjected, [n]o, Daddy hit me. Mother told Jacob, [n]o, remember you hurt yourself playing with the dog. Jacob again stated that Father had hit him.

In the apartment, the officers found a large supply of alcoholic beverages, but not much food. The officers did not see an adequate supply of clothing for the children.

Mother argued with the officers, contending she was a good mother. She claimed that Father no longer lived at that address but visited often.

The Orange County Social Services Agency (SSA) had investigated the family in October 2005 after Jacob had been seen by neighbors crossing Harbor Boulevard alone and playing unattended in the apartment complex. The reporting party alleged Mother and Father engaged in acts of domestic violence in the childrens presence, Father abused substances, Jacob roamed the apartment complex until 10:00 at night and swam unsupervised in the apartment complex pool, and Jacob was not enrolled in school. After the October report was made, a social worker visited the apartment and found Mother in a disheveled condition with bloodshot eyes in the middle of the day. Mother claimed that Jacob was getting out of control and told the social worker that when Jacob played outside, a maintenance worker watched him and reported to Mother every 15 minutes. Jacob told the social worker the maintenance worker reported to Mother but once every hour. Mother enrolled Jacob in school after the social workers visit.

On November 16, 2005, Jacob, Preston, and Jayden were placed in protective custody. Jacob told a social worker he received the bruise under his eye at his friend Saras house. He said that Saras dog had been jumping around and Father had gotten into the middle of them. When the social worker asked Jacob what he had done that morning, Jacob said he sneaked out of the apartment while Mother was sleeping, walked to a supermarket to buy some candy, then walked to the hardware store to buy more candy. The social worker asked Jacob what he had eaten for breakfast that morning. Jacob answered, I didnt eat until I came back. The social worker asked Jacob what Father did when he got into trouble, and Jacob answered, he hits me in the eye and he does a lot of stuff. Jacob said that in the past Father had punched him in the stomach and slapped his leg. According to Jacob, Mother had kicked Father out of the house.

In telephone interviews with the social worker, Mother claimed the family dog caused the bruise on Jacobs face and accused Jacob of lying when he said Father hit him. Mother said she had taken Jacob twice to see a counselor and the counselor had told Mother that Jacob has a serious problem with lying. She denied any domestic violence. She expressed frustration over being a parent and working, stating, I dont know what to do, I cant create a balance. She claimed she did not know where Father was living and did not know how to contact him.

The paternal grandfather, Michael P. (Paternal Grandfather), told the social worker he had been concerned for years about his grandchildrens care. He expressed willingness to care for his grandchildren. The maternal grandmother, Jacqueline A. (Maternal Grandmother), told the social worker she had no concerns about Mother neglecting her grandchildren but believed Mother had three very active children. Maternal Grandmother expressed a willingness to care for the children.

II.

Dependency Proceedings

A. SSAs Petition

On November 18, 2005, SSA filed a petition under section 300, subdivisions (a) (serious physical harm) and (b) (failure to protect). In support of the claim of serious physical harm, the petition alleged that Father had struck Jacob in the face, causing a bruise, and in the past had struck Jacob in the stomach and slapped his leg. In support of the claim of failure to protect, the petition alleged that Mother left Jacob unsupervised on many occasions, Mother and Father engaged in acts of domestic violence in Jacobs presence, Father struck Jacob in the face, Mother told Jacob to lie about the cause of his bruise, Mother failed to keep enough food in the apartment, Mother failed to enroll Jacob in school, and Father failed to provide food or financial support for Jacob.

Mother and Maternal Grandmother appeared at the detention hearing on November 22, 2005. Father did not appear although Mother claimed she had informed him of the hearing. Based on Mothers denial of American Indian heritage, the juvenile court concluded the Indian Child Welfare Act did not apply. The court ordered Jacob, Preston, and Jayden detained, ordered reunification services, ordered monitored visits for Mother and Father, denied Mothers request to release the children to her custody, and authorized funds for drug testing.

B. Jurisdictional Hearings and Dispositional Hearing

Father first appeared at the jurisdictional hearing on January 9, 2006. He confirmed he was Jacobs father and confirmed he never had been married to Mother. He denied the allegations of the petition and denied having American Indian heritage. The court granted Father liberal/monitored visitation.

SSA prepared three reports (respectively dated January 6, 23, and 26, 2006) for the jurisdictional hearing. According to the reports, Jacob and his brothers had been placed together in foster care and were doing well. Both Mother and Father had criminal histories. Mother told the social worker the allegations of the petition were ridiculous and claimed Father did not hit Jacob. Mother refused to participate in drug and alcohol testing. Neither parent had met with the social worker, despite the social workers requests.

Paternal Grandfather spoke with the social worker several times and expressed concern about his grandchildrens welfare. Paternal Grandfather had traveled from his home in Washington State to visit the children in California, and they seemed to like him a lot. Paternal Grandfather was interested in having the children placed with him. An Interstate Compact on the Placement of Children (ICPC) home evaluation of Paternal Grandfather was pending.

Mother asked that her maternal uncle, Thomas P., and his wife, Patricia P. (the P.s), be evaluated for placement. The P.s lived in San Diego County, were officers in the Salvation Army, and had two adult sons living with them. On December 13, 2005, the P.s contacted the social worker and said they were interested in having the children placed with them. A home evaluation of the P.s was pending.

The January 26, 2006 report stated: The childrens parents have not been cooperative with the [SSA]. The mother has made and failed to keep three separate appointments to be interviewed by the [social worker], and the childrens father has not contacted the [social worker] at all to schedule an appointment. The mother states that she does not feel she should have to participate in substance abuse testing. The [social worker] has mailed service referrals to the parents at the three different addresses that they have provided, but the [social worker] has not received the referrals back, with the parents signatures. Therefore, the parents are not enrolled in any services. The parents did visit the children on January 24, 2006. This was the first visit since the children were placed in foster care. [] Three separate home evaluations are pending. The parents initially proposed the paternal grandfather as a caretaker, but later changed their minds. They have not provided a credible explanation with why they changed their mind about him, although they acknowledge that they had planned to send the children to live with the paternal grandfather before the children were detained.

On January 26, 2006, the juvenile court received the three SSA reports in evidence and sustained the allegations of the petition. The court noted from the SSA reports that the parents have missed their interviews with the social worker and have not been consistently testing. Neither Father nor Mother appeared at the jurisdictional hearing on January 26.

An SSA report filed March 1, 2006 reported the children had been placed with the P.s. The report stated: The [P.]s are both pastors and officers in the Salvation Army. Through their work, they are familiar with numerous social problems, especially substance abuse problems. They have several adult children and are experienced parents. The Salvation Army provides them with housing and they have sufficient income to provide food, clothing and other amenities for the children. One of the P.s sons had moved out of the house and had experienced substance abuse problems. The children were not allowed unmonitored visits with that son.

On February 21, 2006, Patricia P. drove the children to Orange County for a visit with Father and the paternal grandmother (Paternal Grandmother). Paternal Grandfather (who was not married to Paternal Grandmother at the time) had visited the children on January 16, 18, 21, and 22, 2006.

The March 1 report further stated: The childrens parents have been completely uncooperative with the [SSA]. They have declined to meet with the [social worker] despite several requests and they have failed to enroll in the services to which they were referred. It is likely that they both have an active and current substance abuse problem. They do not seem concerned that their parent[al] rights could be affected by their lack of cooperation. They seem more concerned with getting the children placed with the relatives that they prefer. Because of their lack of cooperation, the likelihood of successful Family Reunification appears to be poor.

At the dispositional hearing on March 2, 2006, the juvenile court declared Jacob and his brothers to be dependent children under section 360, subdivision (d). The court found by clear and convincing evidence that section 361, subdivision (c)(1) applied and continued placement was necessary. The court approved the service plan and visitation plan. Neither Father nor Mother appeared at the dispositional hearing.

C. SSAs Six‑month Review Reports

SSA submitted a six‑month review report on June 19, 2006, and addendum reports on July 31, and August 21 and 30, 2006.

According to the June 19 report, Mother and Father were arrested on May 4, 2006 for possession of dangerous drugs for sale. Mother and Father were released from custody, and Mother claimed no charges were filed. Father was living with Paternal Grandmother in Santa Ana, unemployed, and looking for work in telecommunications.

Father had not fully participated in his case plan. He told the social worker on May 9 he was depressed and trying to get his life together. He did not tell the social worker about his arrest on May 4. Father had been referred to a parenting education class, but had not started it and had not begun counseling services. He tested for drugs on May 15, 18, and 22, 2006, and then stopped testing with no explanation. As to visitation, the June 19 report stated: The father did not see the children from March 3, 2006 to May 7, 2006. The father has had approximately four visits with his children, about twenty-five percent compliance with visits. On his first visit with the children, he called the childrens mother on his cell phone and allowed the boys to talk with her since it was Mothers Day. The boys havent heard from their mother in months and became upset. [Father] has not been compliant with his scheduled visits and has been threatening towards the caretakers. He told the caretakers he was going to have the children removed from their care when they confronted him on being inconsistent with his visit. According to the caretakers, the childrens father has also made false statement[s] about what the [social worker] has said. Mother had not visited the children since the dispositional hearing and her participation in her case plan was unsatisfactory. The June 19 report nevertheless recommended that reunification services be continued.

The children continued to live with the P.s, who wished to adopt the children if reunification failed. The children had made adequate adjustment to living with the P.s. Patricia P. has shown she is aware of how to manage the childrens behaviors and give appropriate consequences. Jacob was developing normally and did well in school.

Paternal Grandfather also wanted to adopt the children if reunification failed. He and his second wife (not Paternal Grandmother) took steps toward becoming eligible for adopting, including completion of a home study program.

At the review hearing on June 28, 2006, minors counsel opposed SSAs recommendation of continued reunification services. SSA then changed its recommendation and recommended termination of reunification services and scheduling a section 366.26 hearing. Counsel were notified on June 28 that SSAs recommendation at the next hearing would be termination of reunification services.

SSAs next report, filed July 31, 2006, stated: The recommendation for continuing Family Reunification services has changed because of the fathers lack of participation in services and visitation with his children. The father has not visited the children since June 18, 2006. The father has not drug tested since the [social worker] has received this case. The father has not completed parenting classes as of this writing. The father has not participated in individual counseling. The childrens father . . . contacted the [social worker] on July 21, 2006. The father was supposed to meet with the [social worker] on July 24, 2006 and did not show up to the appointment. During this period of supervision, the father has not visited the children and has not made any attempt to see the children since June 18, 2006. The father denies having a drug problem and stated to the [social worker] in the telephonic contact on July 21, 2006 that he has been sober since February, 2006. Because the father has not contacted the [social worker] as of this writing, the [social worker] feels the recommendation should change from continuing Family Reunification services to Terminate reunification services.

During the month of August, Mother contacted the social worker six times to set or reschedule appointments to discuss her case plan. Mother failed to show up for every appointment. In late August, Mother gave birth to a boy, who was immediately taken into protective custody. As of August 30, Father had not visited or spoken with the children since June 18, 2006. The social worker left telephone messages for Father and in July sent him a certified letter asking him to contact the social worker about his case plan. As of August 30, Father had made no attempt to complete his case plan and had not contacted the social worker since July 21.

The children remained with the P.s. They were happy and thriving, reaching developmental milestones, and adjusting well to living with the P.s. The children stayed with Paternal Grandfather in Spokane, Washington from July 31 to August 13. The P.s reported that the children enjoyed the trip and, while away, missed the P.s.

SSAs August 30 report stated: Because the father has not contacted the [social worker] as of this writing and the mother has not met with the [social worker] or made any progress on her case plan, the [social worker] respectfully asks the Court to continue with the recommendation to terminate reunification services.

D. Termination of Reunification Services

On August 31, 2006, counsel for Father and counsel for Mother stipulated there had not been substantial compliance with the case plan and to termination of reunification services. Mother and Father were present at the six-month review hearing on August 31. The juvenile court found by clear and convincing evidence there had not been substantial progress toward alleviating or mitigating the causes necessitating the childrens placement and that there had not been substantial compliance with the case plan. The court terminated reunification services and set a permanency hearing under section 366.26 for January 8, 2007.

III.

The Section 366.26 Hearing and Termination of Parental Rights

A. SSAs Report for the Section 366.26 Hearing

On December 29, 2006, SSA submitted a report for the section 366.26 hearing. The report recommended termination of parental rights and adoption of the children by the P.s.

The report noted the social worker had sent Father monthly appointment letters in September, October, November, and December 2006, but Fathers only contacts with the social worker were telephone calls on November 30 and December 14, 2006. Father told the social worker he was living in Spokane, Washington with Paternal Grandfather and was participating in parenting classes. The social worker never received written notification from Father of his move to Washington, but on December 23, 2006 received letters from Paternal Grandfather and other paternal relations regarding Father. On December 27, the social worker received letters from a drug testing company in Spokane, Washington stating that Father had not appeared for drug testing on December 18 and 20, 2006. That was the first correspondence the social worker had received regarding Fathers drug testing.

The December 29 report provided a summary of Fathers visits with the children. Father did not visit the children between March 5 and May 14, 2006. He visited the children on May 14, 20 and 24, and June 7 and 14. From June 15 to October 12, 2006, Father did not visit or call the children. On October 11, Father telephoned the P.s late at night and demanded to see Jacob the next day. The P.s arranged a meeting at Sea World for October 12. Father, Paternal Grandmother, and an acquaintance of Paternal Grandmother met with Jacob and the P.s in front of Sea World and gave Jacob some gifts. The visit lasted 20 minutes. Father told the children, he would be getting them back soon and he was working his case plan. The report stated, [t]he father also was inappropriate with interactions during this visit causing the three children to become upset after the visit.

According to the SSAs December 29 report, Jacob was highly intelligent, and, though starting third grade, read at a sixth grade level. Jacob still had problems with honesty issues.

The December 29 report stated: The child, Jacob, has disclosed to the [social worker] that he wants to stay and live with the caretakers and would like to be adopted. The child also has stopped much of the lying behavior that he had before he came to live in the caretakers home. The child, Jacob, has also disclosed to the [social worker] that his father did indeed hit him in the eye and punched him in the stomach repeatedly, reporting to the [social worker], He punched me and hit me whenever he was really, really, mad at me. The child also has stated to the [social worker] that the father and mother told him to lie about the incidents repeatedly and that the family dog did not cause the black eye that got him removed from the home. The child continually has anxiety about having to go back to the living situation he was in before stating to the [social worker] that he never wants to go back to being the adult for his brothers again.

The P.s loved Jacob and his brothers as their own children, were committed to caring for them, and wanted to adopt them. The P.s had demonstrated their ability to care for the children, and the children were comfortable and confident in the P.s home.

B. Fathers Section 388 Petition

On January 8, 2007, the day set for the section 366.26 hearing, Father filed a petition under section 388 requesting the juvenile court to (1) return the children to his custody with a family maintenance plan, (2) reinstate reunification services, or (3) complete an ICPC as to Paternal Grandfather. The petition alleged, Father has made positive changes and the child[]ren would have stability and support that would be in the best interest of the child.

In his declaration attached to the section 388 petition, Father stated he was living in Paternal Grandfathers six‑bedroom home in Spokane, Washington with Fathers stepmother, stepbrother, and stepsister. Father stated he had completed parenting classes and claimed the classes had taught him how to be a better father by being in control of my emotions during interactions with the children, how to listen to my children so that we may solve the current problem, and that too harsh of a punishment can cause unnecessary stress on my children. Father also stated he was actively involved in counseling with a church pastor. Father claimed he had never taken drugs and had never tested positive for any substances.

Father was employed by KP Auto and never missed a day of work. He stated he could add the children to his medical, dental, and vision insurance plan offered by his employer.

According to Fathers declaration, Father spoke by telephone weekly with the children and: During the conversations my children refer to me as dad and always tell me they love me. They constantly tell me they miss me and ask me when they are going to be able to come home. My children all express their wishes to return home with me at every visit. At every visit my children rush me and shower me with hugs and kisses and I happily return the affection. Fathers last visit was on October 12, 2006 at Sea World. Before October 12, Father had not visited since June 2006.

In concluding, Father stated he had learned valuable lessons from my counseling and parenting classes and what I have done in the past will never happen again. Father did not describe what he had done in the past.

Attached to Fathers declaration were (1) a certificate of completion of a course in parenting at Saint Joseph Family Center in Spokane, Washington; (2) a letter from the Reverend Daniel Bonney, pastor of the Opportunity Christian Fellowship; (3) a drug testing summary report; (4) a letter from Fathers uncle, Kent P., confirming Fathers employment at KP Auto; and (5) letters from Paternal Grandfather, from his wife Donna P., from Fathers uncle Rick E. and aunt Kristine E., from Fathers grandmother Bonnie P., and from Fathers uncle Lee P.

The letter from Bonney confirmed Father had been meeting with him to discuss some issues from [Fathers] past that he is overcoming. The drug testing report showed seven negative tests in November and December 2006, and five no‑shows between December 18, 2006 and January 2, 2007. The letter from Kent P. stated Father had not missed a day of work at KP Auto and always was punctual. Father had been hired to do manual labor, but was learning to help out more in the auto repair area.

On January 8, 2007, after hearing argument, the juvenile court summarily denied Fathers section 388 petition. The court found that Father failed to meet his burden of showing changed circumstances, describing Fathers circumstances as changing but not changed. The court also found that Father failed to meet his burden of showing a modification of prior orders was in the childrens best interest. The court proceeded with the section 366.26 hearing.

C. The Section 366.26 Hearing

The juvenile court received in evidence SSAs December 29, 2006 report. Social Worker Jessica Chilton, Jacob, Patricia P., and Father testified.

1. The Social Workers Testimony

Chilton testified all three children were adoptable. She testified that the P.s were excellent caregivers, had displayed a strong connection with the children, and have done everything possible to help the children, . . . provide services for the children, and . . . make sure the children are well taken care of.

Since receiving the case on June 28, 2006, Chilton sent monthly contact letters to Father, but received no contact from Father until November 30, 2006 when she learned he had moved to Spokane. Father did not contact the children at all from June 14 to October 14, 2006, and, thereafter, Fathers telephone contacts with the children were sporadic.

Chilton testified that when the children saw Father on October 12, Preston and Jayden were not responsive. Jacob, however, was glad to see Father. While Jacob calls Father dad, Preston and Jayden do not.

2. Jacobs Testimony

Jacob testified in chambers, outside of Fathers presence. Jacob testified he was glad to see Father at Sea World on October 12, 2006. Jacob liked to tell Father things he had done while Father was gone. Jacob had asked Father if he could live with Father again. When asked whether he liked where he lived now, Jacob replied, [k]ind of. Although Jacob did not call the P.s mom and dad, he said they were nice people and took good care of him. Jacob testified it was hard to say whether he would rather live with the P.s or with Father [b]ecause they both do things that I like. If he had to make a choice, Jacob testified he would rather live with Mother and Father.

3. Patricia P.s Testimony

Patricia P. testified that since the children were placed in her home on February 14, 2006, Father had visited six times and had telephoned six or seven times. According to Patricia P., Father visited the children once in February, did not visit again until May, and did not visit at all from June 15 to October 12, and from October 13 to the date of the section 366.26 hearing. Father was late for several visits, and always left early. Although authorized two hours per visit, Fathers longest visit was one hour and 15 minutes. The P.s provided Father a full two‑hour visit even when he arrived late.

Patricia P. testified Father and Paternal Grandmother visited the children at the P.s church on May 14, 2006. The children were affectionate with Father and Paternal Grandmother. Father interrupted the visit to make a call on his cell phone. A few minutes later, Father asked Patricia P. in front of Jacob whether the children could speak with Mother on the cell phone.

When Father visited at the P.s home, the children would run to the door to greet him. However, Patricia P. testified, [t]hey run in that direction anytime anybody comes into our house. The P.s encourage the children to have loving relationships with their parents, and the children have shown Father and Mother love and affection.

Preston and Jayden call Patricia P. mom. Jacob usually calls Patricia P. aunty and occasionally calls her mom. Preston calls Thomas P. dad, while Jayden calls him Uncle Tommy or dad. Jacob calls Thomas P. dad more often than Uncle Tommy. None of the children ever asked to telephone Father or Mother, and Preston and Jayden have never expressed a desire to be returned to Fathers care.

Jacob has told Patricia P. he wanted to live with Father. Jacob also expressed desires to be adopted by the P.s, for all of us to live together, and to visit Paternal Grandfather. According to Patricia P., Jacob has expressed many different things.

Patricia P. testified that she and her husband were committed to adopting the children.

4. Fathers Testimony

Father testified he and the children expressed mutual affection when he visited. Father claimed to cut short his visits so he could visit twice in one week. He denied interrupting visits to smoke and denied asking Patricia P. in front of Jacob if he could speak with Mother.

Father testified that after moving to Spokane, Washington, he tried to call the children once or twice a week, but often was told by the P.s to call back later. Father managed to speak to the children five or six times since moving. At the beginning and end of each conversation, he would tell the children he loved them.

Father did not visit the children between June 14 and October 12, 2006 because he was dealing with many problems, including the loss of the children. Father moved to Spokane to better my life, change my life around, and get on a better path to reunite with my children and provide a home and raise them. He did not visit the children after moving because he could not afford to fly to Southern California and because he had been busy working and trying to rebuild my life, counseling, drug testing, attending church twice a week.

Father testified the children would be better off in his care because [t]he longer they stay [with the P.s], the more distant they grow from me. Father believed the P.s had grown attached to the children and were trying to prevent Father from reuniting with them.

Father requested that Paternal Grandmother be permitted to testify. As an offer of proof, Father represented that Paternal Grandmother would testify that Father visited the children, that he interacted with the children during the visits, that he did not interrupt the visits to smoke, and that he stayed at the visits as long as he could. The juvenile court denied the request and considered all of those things as if the Paternal Grandmother testified to those things.

5. The Juvenile Courts Order Terminating Parental Rights

At the end of the section 366.26 hearing on January 9, 2007, the juvenile court concluded the section 366.26, subdivision (c)(1)(A) exception did not apply to Father, finding that his visitation was neither regular nor consistent and that he did not occupy a parental role. The court found the children to be adoptable, [a]nd the fact that they have been able to bond with [the P.s] is evidence, as well, as to the evidence of adoptability. The court found termination of parental rights was in the childrens best interest. The court terminated parental rights and placed Jacob, Preston, and Jayden for adoption.

Father timely appealed.

Discussion

I.

The Juvenile Court Did Not Abuse Its Discretion by Summarily Denying Fathers Section 388 Petition.

Father asserts the juvenile court abused its discretion by summarily denying his section 388 petition and should have conducted an evidentiary hearing on the petition. We conclude the juvenile court did not abuse its discretion because Father did not meet his burden of making a prima facie showing of changed circumstances and that the requested modifications to previous orders were in Jacobs best interests.

Section 388 allows a parent or interested person to petition the juvenile court to change, modify, or set aside a previous order. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1071.) The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence; and (2) the proposed change in the courts previous order is in the childs best interests. (Ibid.) The juvenile court must liberally construe the petition in favor of granting a hearing. (Ibid.) [I]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] 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. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)

We review the juvenile courts summary denial of a section 388 petition under the abuse of discretion standard. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.) In reviewing an order under section 388, we consider factors such as the seriousness of the cause for dependency, the strength of the existing bond between parent and child and between child and caretakers, and the nature of the changed circumstances. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532-534.)

Here, the facts alleged in Fathers section 388 petition, liberally construed and deemed supported by evidence, would not have sustained a favorable decision. Fathers petition at best showed he has started to do those things he should have done months before. It is laudable that Father was working full‑time, had taken a parenting course, had surrounded himself with supportive family members, and was working to get his life in order. Those are positive steps, but they are but first steps in the long process toward achieving the goal of resolving the problems that led to dependency. As the juvenile court remarked, those steps certainly could have been achieved by father much earlier.

The petition did not establish that Father was participating in all of the requirements of his case plan. Fathers case plan had required Father to participate in individual, conjoint, family, and/or group therapy with a therapist approved by [SSA] to address marital problems, anger management and understanding your financial/emotional responsibilities to your family. Although Father had been meeting the Reverend Bonney, the petition did not reveal whether those meetings constituted counseling as required by the case plan, or whether Bonney had the qualifications to provide such counseling. (See In re Edward H. (1996) 43 Cal.App.4th 584, 594 [court affirms summary denial of a section 388 petition, noting fathers completion of general mental health counseling did not satisfy case plans counseling requirement].) Neither the petition nor supporting exhibits explained whether Bonney knew or understood the nature of the problemssevere neglect and physical abusethat led to the dependency proceedings.[1]

While Fathers declaration showed there was a bond between Father and Jacob, the strength of that bond must be considered in light of the fact that when Father filed the petition he had not visited Jacob for nearly three months. Father did not visit Jacob at all between June 14 and October 12, 2006. A bond also had been formed between Jacob and the P.s. Father had completed a parenting course and was living in a large home in Spokane. But, unlike In re Jeremy W. (1992) 3 Cal.App.4th 1407 and In re Hashem H. (1996) 45 Cal.App.4th 1791, Father did not submit with his petition any declaration or letter from a medical doctor, stating he was able to provide suitable care and supervision for Jacob.

Further, the causes of dependency, severe neglect and physical abuse, were quite serious. Among the grounds for the initial detention was the fact that when Jacob was detained, he had a bruise under an eye caused by Father striking him. Jacob later disclosed to the social worker that Father struck him whenever Father was angry. Fathers section 388 petition showed that Father had not yet acknowledged his violent behavior. In his supporting declaration, Father stated he learned in parenting classes to be a better father by being in control of my emotions with my interaction with my children, and too harsh of a punishment can cause unnecessary stress on my children. Bonney stated in his letter his meetings with Father provide[d] a time when I can keep [Father] accountable with some issues from his past that he is overcoming. Nowhere in the petition or supporting evidence is there any recognition of the violence Father inflicted on Jacob that was a basis for the dependency proceedings.

In support of his claim of changed circumstances, Father relies on In re Hashem H., supra, 45 Cal.App.4th 1791, in which the appellate court reversed an order summarily denying a section 388 petition. In In re Hashem H., the mother had participated in psychotherapy for over a year, visited the child at least once every two weeks, and submitted a letter from her therapist stating the mother was ready and able to care for the child on a full-time basis. (Id. at p. 1796.) The Court of Appeal concluded, [the mother] made an adequate showing that she could demonstrate at a hearing that she had overcome her problems through conscientious and successful individual and conjoint counseling over a lengthy period of time; that she maintained a consistent relationship with her son, including weekly visitation; and that she filed written section 388 petitions before the date set for the section 366.26 hearing setting out these changed circumstances. (Id. at p. 1800.) Here, in stark contrast, Father had been meeting with a church pastor for just a few months, had not consistently visited or maintained a relationship with Jacob, had not acknowledged the serious problems leading to the dependency proceedings, and filed his section 388 petition on the day of the section 366.26 hearing.

We therefore conclude that Fathers petition, liberally construed, showed that Father had taken some first steps toward ameliorating the problems that had led to the dependency proceedings. Those steps, though encouraging, were too late and incomplete. At best, the petition showed the circumstances were changing for the better, but were not changed as section 388 requires for modifying previous juvenile court orders. (In re Casey D. (1999) 70 Cal.App.4th 38, 49; see In re Carl R., supra, 128 Cal.App.4th at p. 1072 [changing circumstances insufficient to warrant a hearing under section 388].)

In addition, Fathers petition failed to make a prima facie showing the proposed changes to the juvenile courts orders would have promoted Jacobs best interests. At the point of these proceedingson the eve of the section 366.26 permanency planning hearingthe childrens interest in stability was the courts foremost concern and outweighed any interest in reunification. (In re Edward H., supra, 43 Cal.App.4th at p. 594.) Jacobs need for stability indeed had become paramount. (In re Stephanie M. (1994) 7 Cal.4th 295, 324.)

Reinstating reunification services or granting Father custody, months after services had been terminated, on the eve of the section 366.26 hearing, due to Fathers belated start in participating in part of his case plan, would not have served Jacobs interests in stability and continuity. The P.s were providing Jacob such needed stability. He was bonding with the P.s and thriving in their home. In contrast, Fathers petition presented no independent evidence showing that he or Paternal Grandfather was able to care for Jacob, and the petition failed to acknowledge Fathers violent behavior toward Jacob that formed a basis for the dependency proceedings. Father failed to make a prima facie showing that it was in Jacobs best interests to be taken from a home where he was making substantial progress and from caretakers with whom he was bonding, and thereby deprive [him] of the stability and permanence of [his] existing home. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1507.)

II.

Substantial Evidence Supported the Juvenile Courts Determination the Regular Visitation and Contact Exception Did Not Apply to Father.

Father argues the juvenile court should have applied the regular visitation and contact exception of section 366.26, subdivision (c)(1)(A) to avoid termination of parental rights. We conclude substantial evidence supported the juvenile courts determination the exception did not apply.

Adoption, if possible, is the Legislatures preferred permanent plan. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573). Under section 366.26, [i]f the court finds that a child may not be returned to his or her parent and is likely to be adopted, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the child under one of four specified exceptions. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The exception under section 366.26, subdivision (c)(1)(A) applies when [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

The parent has the burden to overcome the preference for adoption and to show the statutory exception applies. (In re Derek W., supra, 73 Cal.App.4th at p. 826.) To do so, the parent must show the childs relationship with the parent 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. (Id. at pp. 826‑827.) [T]he 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. [Citation.] (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)

The parent must do more than demonstrate frequent and loving contacts with the child, an emotional bond with the child, or that the visits between parent and child were friendly and pleasant. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) Rather, the parent must show he or she occupies a parental role. (Ibid.) It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

The factors to be considered in determining whether the relationship between parent and child was important and beneficial include: (1) the childs age, (2) the portion of the childs life spent in the parents custody, (3) the positive or negative effect of interaction between parent and child, and (4) the childs particular needs. (In re Angel B., supra, 97 Cal.App.4th at p. 467.) The court then balances the strength and quality of the natural parent‑child relationship in a tenuous placement against the security and sense of belonging a new family would confer. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

We review under the substantial evidence standard the juvenile courts determination the regular visitation and contact exception did not apply to Father. (In re Cliffton B., supra, 81 Cal.App.4th at p. 425; In re Derek W., supra, 73 Cal.App.4th at p. 827; In re Autumn H, supra, 27 Cal.App.4th at p. 576; but see In re Jasmine D., supra, 78 Cal.App.4th at pp. 1351‑1352 [using abuse of discretion standard].)

The record supports a finding that Father never maintained regular visitation and contact with Jacob or his brothers. As the juvenile court noted, Father did not come close to taking advantage of all the visits that [he] could have. Between the time Jacob was detained and the time he was placed with the P.s, Father visited him only three times. Father did not visit Jacob at all from early March to May 14, 2006. Father periodically visited Jacob between May 14 and June 14, but after June 14 did not visit Jacob until October 12, 2006, nearly four months later. Father did not visit Jacob again until January, 2007. Fathers telephone contacts were sporadic at best. Although Father testified the P.s made excuses to prevent him from speaking with Jacob, the juvenile court could disregard that testimony.

Jacob displayed affection for Father and enjoyed the rare visits, but their interaction was not particularly positive, and often was negative. From May 14 to June 14, 2006, when Father did visit Jacob, Father arrived late, did not spend the full two hours of authorized visitation, and took smoking breaks. Father upset the children at the October 12 visit by telling them they would be returned to his custody.

Jacob was eight years old at the time of the section 366.26 hearing and had spent the greater part of his life in Fathers custody. The record shows that Jacob loved Father and there was an emotional bond between them. However, the record amply supports the conclusions that Father did not maintain regular visitation and contact with Jacob and that Father did not occupy a parental role. Jacob needed parents; he needed the stability, nurture, and discipline parents would provide. Whatever benefit Jacob might receive through his relationship with Father does not outweigh the well-being he would gain in a permanent home with adoptive parents.

Father argues his case is similar to In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207, in which the Court of Appeal reversed an order terminating parental rights,because in that case, the child was nearly nine years old at the time of the section 366.26 hearing, had lived with his mother for the first six and one‑half of those years, and had expressed a wish to live with her. But in In re Jerome D., unlike this case, the mother regularly visited the child, who had been having unsupervised overnight visits in her home. (Ibid.) The child was talkative, outgoing, and all smiles during the mothers visits. (Id. at p. 1206.) A psychologist had watched the mother and the child together and testified they had a strong, well-developed parent-child relationship. (Id. at p. 1207.)

Fathers reliance on In re Amber M. (2002) 103 Cal.App.4th 681 is also unavailing. The Court of Appeal in that case concluded the mother had maintained regular visitation and contact with the minor children, and that the mother had met her burden of showing a beneficial relationship sufficient to overcome the preference for adoption. (Id. at p. 689.) A psychologist conducted a bonding study of the mother and one of the children and testified they shared a primary attachment and a primary maternal relationship. (Ibid.) The psychologist testified severing that relationship would be detrimental to the minor. (Ibid.) The mother visited the children as often as she was allowed and acted in a loving, parental role with the children when permitted visitation. (Id. at p. 690.)

Here, Father rarely visited Jacob and did not maintain regular contact with him. There was no independent testimony that Father and Jacob shared a parent-child relationship or that Father acted in a parental role during visits.

Disposition

The order terminating Fathers parental rights as to Jacob is affirmed.

FYBEL, J.

WE CONCUR:

SILLS, P. J.

MOORE, J.

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[1] In addition, Fathers case plan required him to submit twice weekly to random drug testing, all tests to be negative for alcohol and drugs, and a missed test to be considered a positive test. The summary report submitted with Fathers section 388 petition showed he missed five tests in December 2006 and January 2007. Fathers explanation for the missed tests was that he was on vacation during that period of time. The juvenile court liberally construed the section 388 petition and assumed Father was drug free.