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In re L.J. CA3

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In re L.J. CA3
By
10:18:2018

Filed 6/14/18 In re L.J. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

----

In re L. J. et al., Persons Coming Under the Juvenile Court Law.

C085246

BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES,

Plaintiff and Respondent,

v.

M. J.,

Defendant and Appellant.

(Super. Ct. Nos. J35172, J37652)

Father M. J. appeals from the juvenile court’s order terminating parental rights and freeing the minors (ages six and four) for adoption. (Welf. & Inst. Code,[1] § 366.26.) He contends the juvenile court erred in denying his section 388 petition to reinstate services and to vacate the selection and implementation hearing. He also contends the court erred in failing to apply the beneficial parent-child relationship exception to prevent termination of parental rights. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At a contested 12-month review hearing on November 7, 2016, father testified that he first used methamphetamine in 1984 when he was 14, and he had been using steadily from 2001 to August of 2016. A month before the review hearing, he started Suboxone treatment to reduce cravings. A social worker testified that father had been visiting the children. He was loving and affectionate during the visits and the children were excited to see him.

The juvenile court terminated father’s services and set a selection and implementation hearing.[2] It explained father had made minimal progress and had been “virtually not available” in the first months of reunification. Returning the children would create a substantial risk of detriment to their safety, protection, and physical and emotional well-being.

The court added it had known father for years through drug court. Father has been using drugs for 15 years and his only significant period of sobriety was while incarcerated. The court added, had this been the children’s first detention -- instead of the third -- it might be more inclined to order additional services. But it has no assurances father could sustain long-term sobriety to raise the children. And it did not believe an additional three, four, or six months of services would provide the necessary assurances.

The court commented, however, that father looked good, clean, sober, and dedicated -- albeit it was only in the last couple of months this had happened. It added: “This is one of the best I’ve probably ever heard you doing, [father], and so I want you to keep that up.”

Five months later, father petitioned to reinstate his services and vacate the section 366.26 hearing. The petition stated father believes the children miss him and wish to live with him. With him, the children would be loved, safe, and well cared for. The petition also stated father ended his Suboxone treatment in March 2017, and has been clean and sober since August 2016, and law abiding since November 7, 2016. He is maintaining a 12-step program and has housing for himself and his children.

The juvenile court set a hearing on the petition.

In July 2017, the hearing on the petition came up the same day as the selection and implementation hearing. Father’s counsel told the court father had been at the court at 8:30 in the morning, she told him to come back at 1:30 p.m., but as of 2:45 p.m. he had not returned. Counsel added, “I would object to the termination of parental rights, with no further evidence or testimony.”

The court denied father’s petition.[3] Then, noting it had read and considered the section 366.26 report and was taking judicial notice of prior findings, orders and judgments, the court terminated parental rights and set adoption as the permanent plan.

The section 366.26 report stated the children “are related to their potential adoptive parents and have developed a positive, significant reciprocal relationship with them” and have “substantial emotional ties.” The stable environment greatly benefits their mental health development. And “[b]ased on current information, removal from the potential adoptive parents would be detrimental to the children’s well being.” The report also stated father has been attending monthly supervised visits since August 2016. His interactions with the children are positive, he is playful and engaging, and the children enjoy their time with him.

After the order, father’s counsel told the court she had checked her office phone and father had not called.

DISCUSSION

I

The Section 388 Petition

Father first contends the juvenile court abused its discretion in denying his section 388 petition because he was not present. He argues his participation in treatment after termination of services established new evidence and a change of circumstances. He maintains he had been clean and sober since August 2016, nearly a year before the July 2017 hearing. And reunification services were in the children’s best interest because they were bonded to their father, as evidenced by their visits, and he could provide a safe and loving home for them. We find no error.

Section 388 permits a parent to petition, based on “grounds of change of circumstance or new evidence,” to change, modify, or set aside any prior order, or terminate the court’s jurisdiction. (§ 388, subd. (a)(1).) The parent must show by a preponderance of the evidence that new evidence or changed circumstances make a change of placement in the child’s best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re L.S. (2014) 230 Cal.App.4th 1183, 1193.) Simply showing a change of circumstances is not enough. (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) The parent must show undoing of the prior order is in the child’s best interests. (Ibid.)

After reunification services have been terminated, the focus shifts to the children’s need for permanency and stability over the parents’ interest in care, custody, and companionship. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Concomitantly, a rebuttable presumption exists that continued foster care is in the child’s best interests. (Ibid.) “[A]fter reunification services have terminated, a parent’s petition for either an order returning custody or reopening reunification efforts must establish how such a change will advance the child’s need for permanency and stability.” (In re J.C. (2014) 226 Cal.App.4th 503, 527.)

A section 388 determination is committed to the juvenile court’s discretion. (In re Stephanie M., supra, 7 Cal.4th at pp. 316-318.) We will not disturb it unless the juvenile court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (Id. at p. 318.) When two or more inferences can be reasonably deduced from the facts, we may not substitute our decision for the trial court. (Id. at p. 319.)

Here, the juvenile court acted within its discretion in denying father’s section 388 petition. Principally, the denial was proper because father failed to satisfy his burden, in that he presented no evidence at the hearing in support of his motion. He failed to appear and his counsel offered only a general objection to termination and no evidence or testimony.

Moreover, father’s representation in the petition that he had been sober since August 2016 and law abiding since November 2016 could be reasonably construed as changing rather than changed circumstances. (See In re Mickel O., supra, 197 Cal.App.4th at p. 615 [“the petitioner must show changed, not changing, circumstances”].) Indeed, his recent progress must be viewed in light of his long history of drug abuse. And father’s inexplicable failure to appear could reasonably cause the court to question if circumstances had in fact changed.

Had changed circumstances been shown, the record still does not show reunification services were in the children’s best interest. The section 366.26 assessment reflected the children have “substantial emotional ties” to their potential adoptive parents and the stable environment greatly benefited their mental health development. Against that, father’s recent progress and positive experiences visiting the children are insufficient to compel the conclusion that a change would advance the children’s need for permanency and stability.” (See In re J.C., supra, 226 Cal.App.4th at p. 527.)

In sum, the juvenile court acted well within its discretion in denying the section 388 petition.

II

The Beneficial Parent-Child Relationship Exception

Father next contends the juvenile court erred in failing to apply the beneficial parent-child relationship exception. Noting the court made no finding regarding the exception to termination, he argues the court was aware he objected to termination because of his relationship with his children, as evidenced by his section 388 petition. We find no error.

If the juvenile court finds the child adoptable, it must terminate parental rights unless it would be detrimental to the child. (In re L.S., supra, 230 Cal.App.4th at p. 1199.) One circumstance for finding termination detrimental is the beneficial parent-child relationship exception, where “ ‘[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’ ” (Ibid.) The benefit must promote the child’s well-being “ ‘to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.’ ” (Ibid.) “ ‘Even frequent and loving contact is not sufficient to establish this benefit absent a significant, positive emotional attachment between parent and child.’ ” (Ibid.)

The party claiming the exception bears the burden of establishing circumstances that constitute an exception to termination. (In re L.S., supra, 230 Cal.App.4th at p. 1199.) We review the juvenile court’s ruling for substantial evidence and view the evidence in the light most favorable to the prevailing party, giving every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

Here, assuming father maintained regular visitation and contact, he has not met his burden of showing the benefit promotes the children’s well-being to such a degree as to outweigh their well-being from a permanent home with new, adoptive parents. While the record indicates the children were excited to see their father and the visits were positive, this alone was insufficient to outweigh the benefit from a permanent home with adoptive parents. (See In re Autumn H., supra, 27 Cal.App.4th at p. 575 [“Interaction between natural parent and child will always confer some incidental benefit to the child”].) Indeed, the section 366.26 report expressly concluded “removal from the potential adoptive parents would be detrimental to the children’s well being.” Nothing in the record rebuts this, and father’s failure to appear at the hearing bolsters the conclusion no exception applied.

Accordingly, substantial evidence supports the order terminating father’s parental rights.

DISPOSITION

The orders of the juvenile court are affirmed.

/s/

Robie, J.

We concur:

/s/

Raye, P. J.

/s/

Hull, J.


[1] Undesignated statutory references are to the Welfare and Institutions Code.

[2] Mother’s services were also terminated, though she is not party to this appeal.

[3] The JV-184 order after hearing form states the request is denied because “[father] failed to appear.”





Description Father M. J. appeals from the juvenile court’s order terminating parental rights and freeing the minors (ages six and four) for adoption. (Welf. & Inst. Code, § 366.26.) He contends the juvenile court erred in denying his section 388 petition to reinstate services and to vacate the selection and implementation hearing. He also contends the court erred in failing to apply the beneficial parent-child relationship exception to prevent termination of parental rights. We affirm.
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