Filed 5/15/18 In re Johnny R. CA5






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


In re JOHNNY R. et al., Persons Coming Under the Juvenile Court Law.

STANISLAUS COUNTY COMMUNITY SERVICES AGENCY,
Plaintiff and Respondent,
v.
JOHN R.,
Defendant and Appellant.
F075963

(Super. Ct. Nos. 517590 & 517591)


OPINION

APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.
Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On June 1, 2017, the juvenile court terminated the parental rights of John R. (father) and O.R. (mother) to their children Jordan R. (three years old) and Johnny R. (20 months old) at the conclusion of a hearing pursuant to Welfare and Institutions Code section 366.26. On appeal, father contends the juvenile court erred in summarily denying his petition pursuant to section 388 to reinstitute reunification services. Father further contends the trial court erred in failing to apply the beneficial parent-child relationship exception in determining whether to terminate his parental rights. We find no error and affirm the orders of the juvenile court.
FACTS AND PROCEEDINGS
Early Proceedings
The Stanislaus Community Services Agency (agency) initiated dependency proceedings pursuant to section 300 in May 2016. Father and mother had failed to resolve domestic violence issues through family maintenance services the previous two months. Mother had earlier told a social worker she and father had a long history of domestic violence involving incidents of choking, head stomping, and sexual assault. Father hit mother in front of their children. Mother also admitted to the social worker that both parents used methamphetamine. Father denied mother’s allegations of domestic violence. The children were detained on May 16, 2016.
At the combined jurisdiction/disposition hearing on June 23, 2016, father admitted the allegations in the petition and submitted the issue of jurisdiction on the agency’s report. The juvenile court ordered reunification services for both parents, and the social worker gave the parents referrals for anger management, domestic violence counseling, individual counseling, and a substance use disorder assessment (drug disorder assessment).
Father completed parenting classes by September 2016. Father completed assessments for domestic violence and anger management in October and was referred to a 26-week domestic violence program. Father regularly visited the children, but despite several opportunities, he failed to complete the drug disorder assessment. Father tested positive for methamphetamine on October 17, 2016. For the six-month review hearing, the agency recommended termination of reunification services for father. The agency filed an addendum report in early January 2017 recommending termination of reunification services for mother because she left a sober living facility and tested positive for methamphetamine.
After learning of the agency’s recommendation that his reunification services be terminated, father completed the drug disorder assessment in mid-December 2016. At the six-month review hearing on January 24, 2017, county counsel represented that if called to testify, the social worker would state father was scheduled to begin substance abuse treatment on January 20, 2017, but failed to show up and was rescheduled for a week later. Mother did return to a recovery center for detoxification.
The juvenile court found the parents had made poor progress on their case plans, terminated their reunification services, and set the matter for a hearing pursuant to section 366.26. The court found both parents failed to address significant substance abuse and domestic violence issues causing the children’s dependency. The court specifically noted although father engaged in a number of services, he failed to address the most pressing services, including anger management, domestic violence, and substance abuse. Father filed a petition for extraordinary writ review with this court seeking to reverse the juvenile court’s order terminating his reunification services. We denied father’s petition. (John R. v. Superior Court (Stanislaus Co. Community Services Agency) (May 17, 2017, F075098.)
Section 388 Petitions
On March 20, 2017, father filed a petition for the juvenile court to modify its prior visitation order to increase his visitation with the children from monthly visits to weekly visits. Father alleged he had a strong bond with his children, but he failed to state any changed circumstances. The court conducted a hearing on father’s petition on April 10, 2017. Father’s counsel represented if father was called as a witness, he would testify he is involved in the drug and alcohol treatment program and continues to receive individual counseling. Counsel further represented visitations with the children went well.
The court explained it had heard nothing concerning how granting the petition would be in the children’s best interests. The agency argued it had received a progress report indicating father twice tested positive for methamphetamine after his reunification services were terminated. The court ruled father had not made a prima facie showing for an evidentiary hearing and denied father’s petition.
On May 19, 2017, father filed new petitions for each child pursuant to section 388 seeking placement of the children in his home or, alternatively, reinstatement of reunification services. Father alleged he had completed an intensive outpatient alcohol and drug treatment program, had a relapse prevention plan in place, completed additional counseling, and had more parenting labs after his reunification services were terminated. Father stated the children were very bonded to him and it was in their best interests to be placed with him.
Father stated he had a good job where he was a valued employee and stated his drug tests came back negative. Father explained he visited the children as often as he was allowed except for one occasion when the foster parents failed to bring the children to an appointment. Father enrolled on his own in a 52-week domestic violence program and had completed six weeks of the program.
Father included attachments to his petition from the Center for Human Services showing he had positive tests on February 6, 2017, for cannabis and methamphetamine, and a positive test on February 23, 2017, which father said was for doctor-prescribed opiates. Father had three negative drug tests in March and three more negative drug tests in April. He also had a certificate for completing a substance abuse treatment program. Father included a relapse plan and a history of his attendance in parenting classes. He attached a letter from his employer confirming father’s employment and stating father was a helpful employee whose random drug tests all came back negative.
On May 19, 2017, the juvenile court summarily denied the petition without a hearing. The court noted the petition did not set forth a change of circumstances and failed to promote the best interests of the children. Although there was no reason to disbelieve father’s assertions in support of his request, the court found there was no prima facie showing father’s request was in the children’s best interests. The court noted Jordan was only two years old at the time of his removal from the parents’ home and Johnny was seven months old. Neither child had resided with father since their removal and had lived with their current caregivers for nearly a year.
In denying father’s petition, the court found it had to focus on the needs of the children for permanence and stability rather than the parent’s interest in reunification after services had been terminated. The court found there was no evidence father had completed his reformation. Based on earlier reports, father had a significant history of domestic violence, and although he was enrolled in a 52-week domestic violence program, he had attended only six classes. Father’s history of domestic violence required more than attendance at six classes. The court further found father’s significant delay in obtaining treatment for his substance abuse disorder equally concerning. Father had tested positive for methamphetamine in October 2016, and had tested positive for both methamphetamine and cannabis in February 2017. The court found there was no evidence father was able to remain free from methamphetamine for the previous four months. The court found the children needed permanency and stability now and father had failed to even provide prima facie evidence of changing circumstances.
Section 366.26 Report and Hearing
The agency filed a report recommending termination of parental rights for both parents and a permanent plan of adoption for the children. The social worker noted father attended all scheduled visits with the children and came to the visits with a good attitude toward the staff and the children. One visit was rescheduled because the caregiver forgot about it. Father’s visitations with the children were good.
The social worker reported the caregivers had dedicated their time and love to the children, and both boys had built strong bonds of love and affection for the caregivers. The caregivers had cared for both children since their placement in June 2016 and wanted to adopt both. The social worker recommended parental rights be terminated for both parents and adoption with their caregivers be the permanent plan.
At the hearing on June 1, 2017, father’s counsel requested a continuance because the court had denied father’s section 388 petition. He argued the court had incorrectly found no substantial bond between father and the children. The juvenile court disagreed with counsel’s argument, pointing out its decision denying the section 388 petition did not find there was no bond between father and the children. The court further observed there were no changed circumstances and questioned whether father’s circumstances were even changing. The court denied father’s request for a continuance.
Father testified he last visited the children on May 1, 2017. Father explained his interactions with the children went well and they “just basically go wild.” Father talks to the children, tells them he loves and misses them, and the oldest child always says he wants to come home. Father believed it would be detrimental to the children for his parental rights to be terminated because Jordan misses his “dada.” The foster mother lets father talk to Jordan on the phone. When the children were babies, father did everything with them, including changing their diapers, bathing them, and cooking for them.
Father’s counsel argued there was a bond between father and the children, it would be detrimental to the children to disrupt that bond, and it would be in the children’s best interests for them to maintain a relationship with father.
The juvenile court found father regularly and consistently visited the children. The court noted children benefit from being able to have a relationship with their parents and there is a detriment they suffer by being removed from their parents’ custody. The court explained it had to perform a balancing act and must consider the benefit to the children from being in a stable home versus the detriment in terminating parental rights. The court found by clear and convincing evidence it was likely both children would be adopted. The court ordered the termination of the parental rights of mother and father and approved the case plan for an adoptions review hearing.
DISCUSSION
I. Section 388 Petition
Father contends the juvenile court abused its discretion in failing to conduct a hearing on his section 388 petition because he made a prima facie showing entitling him to a hearing. Father further argues the juvenile court erred in denying his petition. We disagree.
A petition to modify a juvenile court order under section 388 must allege facts showing new evidence or changed circumstances exist, and changing the order will serve the child’s best interests. (§ 388, subd. (a); In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) The petitioner has the burden of proof by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) Courts liberally construe a section 388 petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Even so, section 388 requires a petitioner to make a prima facie showing of both elements to trigger an evidentiary hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) If, for instance, the parent makes a prima facie showing of changed circumstances, the juvenile court can still deny the petition without an evidentiary hearing if the parent fails to make a prima facie showing the relief sought would promote the child’s best interests. (In re Justice P. (2004) 123 Cal.App.4th 181, 188–189.)
In assessing the petition, the court may consider the entire history of the case. (In re Justice P., supra, 123 Cal.App.4th at p. 189.) We review the denial of a section 388 petition after an evidentiary hearing for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Father argues section 388 petitioners are entitled to de novo review on appeal if a juvenile court denies the petition without conducting a hearing for a petitioner’s failure to make a prima facie case. Where the juvenile court has denied a section 388 petition without a hearing, on appeal we review the juvenile court’s ruling for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 462-464; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.) Where there is conflicting evidence, we reverse only if the evidence compels a finding for the appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527–1529.)
The best interests of the child or children are of paramount consideration when, as here, a section 388 petition is brought after reunification services have been terminated. (See In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child at this juncture, the juvenile court’s focus is on the needs of the child for permanence and stability rather than the parent’s interests in reunification. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) “A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
The “escape mechanism” provided by section 388 after reunification efforts have ceased is only available when a parent has completed a reformation before parental rights have been terminated. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) This is because, if a parent’s circumstances have not changed sufficiently to permit placement of the child with that parent, reopening reunification “does not promote stability for the child or the child’s best interests” when the child is otherwise adoptable. (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
The juvenile court did not find father’s circumstances were changed or that he demonstrated how continuing reunification services would be in the children’s best interests. Even a showing of changing circumstances is insufficient to mandate an evidentiary hearing on a section 388 petition. Father delayed seeking help with his drug addiction until after his services had been terminated. Although he finally enrolled into a program to address domestic violence, father had only attended six classes of a 52-week course at the time he filed his petition. Even if we disagreed with the juvenile court and found father’s circumstances were beginning to change, his circumstances had not changed. Father’s track record of sobriety was less than four months at the time he filed his petition. Father did regularly visit the children, but his visits with the children were supervised and of limited duration.
Without dismissing or diminishing father’s accomplishments, his ability to maintain sobriety within the confines of a structured setting was nonetheless inadequate to demonstrate he had made sufficient inroads into his persistent substance abuse problem so that returning the children or resuming reunification services would be appropriate. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [parents with extensive drug use history did not show changed circumstances where rehabilitation efforts were only three months old at time of § 366.26 hearing]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [seven months’ sobriety does not constitute changed circumstance where parent has history of periods of sobriety and relapse]; In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9 [“It is the nature of addiction that one must be ‘clean’ for a much longer period than 120 days to show real reform”].)
Assuming arguendo the allegations in father’s petition sufficiently showed his circumstances were changing, this showing was insufficient to require the court to change its earlier orders. (In re Casey D., supra, 70 Cal.App.4th at p. 49.) The juvenile court did not abuse its discretion in finding father’s petition, when considered in light of all of the other evidence before it, failed to show father could present convincing evidence of a genuine change in circumstances meriting a consideration of resuming reunification services or placing the children with him.
II. Parent-child Benefit Exception
Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability. At this stage, the burden is on the parent to prove changed circumstances to revive the reunification issue. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) If the children are likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Although section 366.26, subdivision (c)(1)(B) acknowledges termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347.) It is the parent’s burden to show termination would be detrimental under one of the exceptions. There is a strong preference for adoption. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.)
The standard of appellate review has been described as the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) To the extent we may draw inferences from the record, we may do so only as to those legitimate inferences that uphold the decision of the trial court. (In re Laura F. (1983) 33 Cal.3d 826, 833; In re Angelia P. (1981) 28 Cal.3d 908, 924.) We view the evidence in the light most favorable to the trial court’s judgment, contradicted or uncontradicted, in assessing the evidence; appellate courts do not reweigh it. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) Where there is a conflict in the evidence, we indulge all reasonable inferences in support of the trial court’s finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.) Other courts have applied the abuse of discretion test. When a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence, but whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Under either the substantial evidence test or the abuse of discretion test, our analysis here would be the same. The practical differences between the two tests are insignificant as they both give deference to the juvenile court’s judgment. (See ibid.)
Similarly, a substantial evidence challenge to the juvenile court’s failure to find a beneficial parental relationship or a sibling relationship cannot succeed unless the undisputed facts establish the existence of those relationships, since such a challenge amounts to a contention the “undisputed facts lead to only one conclusion.” (In re I.W., supra, 180 Cal.App.4th at p. 1529; see In re Bailey J., supra, 189 Cal.App.4th at p. 1314.)
For the section 366.26, subdivision (c)(1)(B)(i) exception to apply, the relationship between parent and child must promote the well-being of the child to such a degree that it outweighs the well-being of the child in a permanent home with adoptive parents. The juvenile court 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. If severing the natural parent-child relationship would deprive the child of a substantial and positive emotional attachment so that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Interactions between the natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, comfort, affection, and stimulation. The relationship arises from day-to-day interaction, companionship, and shared experiences. The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
The factors to consider when testing whether a parental relationship is important and beneficial include the age of the child, the portion of the child’s life in the parent’s custody, the positive or negative effect of interaction between the parent and child, and the child’s particular needs. The relationship must be such that the child would suffer detriment from its termination. (In re Angel B., supra, 97 Cal.App.4th at p. 467.) Father failed to show how the children would suffer detriment on the termination of his parental rights.
It was uncontested that father loved his children and had positive visits with them. These positive qualities, however, are not enough to establish the statutory exception to adoption. The parent bears the burden of showing more than loving contact and pleasant visits. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953–954.) The parent has the burden of proving the statutory exception applies. (In re Breanna S. (2017) 8 Cal.App.5th 636, 646.) Although day-to-day contact is not necessarily required, it is typical. A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing the parent-child relationship during periods of visitation. (In re Jason J. (2009) 175 Cal.App.4th 922, 937.) Father needed to demonstrate he occupied a parental role in his children’s lives resulting in a significant, positive, emotional attachment from child to parent. (In re Breanna S., supra, at p. 648.)
Here, the evidence father occupied this crucial role in his children’s lives was inadequate. (In re L.Y.L., supra, 101 Cal.App.4th at p. 954.) Father still had supervised visits with the children and was nowhere near the stage where he was prepared to become their full-time caretaker. Father has failed to show detriment or harm if the parent-child relationship ended. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) We agree with the agency: there was insufficient evidence presented by father demonstrating the benefits of maintaining the parent-child relationship would outweigh the benefits of adoption to the children.
DISPOSITION
The orders of the juvenile court are affirmed.


PEÑA, Acting P.J.
WE CONCUR:



SMITH, J.



ELLISON,* J.