Filed 10/18/17 In re P.W. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order and judgment of the Superior Court of San Diego County, Michael J. Popkins, Judge. Affirmed.

Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.

L.W. (Father) appeals from the juvenile court's order denying his Welfare and Institutions Code[1] section 388 petition to modify a previous order and place his minor daughters, P.W. and R.W. (the twins), in his care. He also appeals from the termination of his parental rights under section 366.26, contending the court erred in determining the beneficial parent-child relationship exception did not apply.[2] The San Diego County Health and Human Services Agency (the Agency) maintains the record does not show any abuse of judicial discretion or lack of sufficient evidence. We agree, and affirm the order and judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Detention, Jurisdiction, and Disposition

The twins were born in July 2015. Mother and one of the twins tested positive for methamphetamine and amphetamine. Later that month, the twins were released from the hospital into foster care. The Agency filed petitions on their behalf under section 300, subdivision (b)(1), noting the drug test results and Mother's admitted drug use during pregnancy; the parents' history of drug use; and Father's knowledge of Mother's drug history and usage of drugs with her on or about December 2014.[3]

According to the detention report, Father denied current methamphetamine use, but admitted past use and prior drug treatment. A criminal history check reflected a conviction for possession and other drug-related incidents. The court detained the twins and ordered supervised visitation.

The Agency provided the jurisdiction and disposition report and an addendum in August 2015. Father had successfully completed two substance abuse programs, but continued to relapse. He reported the last time he used drugs was December 2014 or January 2015, whenever Mother found out she was pregnant. The Agency recommended the children remain in out-of-home care and the parents participate in reunification services.

At a settlement conference in September 2015, county counsel indicated the parties agreed to modify the petitions and case plans, and the parents waived their right to a hearing. The court amended the petitions, found the allegations true, and adopted the Agency's recommendations. The court advised the parents that they had six months to comply with the service plan, and that "it's really critical . . . that you begin your services right away."

B. Review Hearings

The Agency's six-month status review report indicated the twins had been placed with G.N., the maternal grandmother (Grandmother), since October 2015, and that Father visited consistently. He was not employed full time (but was doing jobs on his own), and needed to find stable housing. In November 2015, Father enrolled in the Union of Pan Asian Communities treatment program (UPAC), but was discharged after not appearing for a week.[4] In February 2016, he enrolled in Vista Hill Bridges Adult Intensive Outpatient Program (Bridges). He had also attended NA meetings. The Agency found that while the parents' visits were positive and they were in services, they were having difficulty following through with treatment. The Agency recommended the court terminate reunification services and set a section 366.26 hearing.

In April 2016, Father was ordered to participate in dependency drug court (Drug Court). At the six-month review hearing on May 2, 2016, county counsel indicated that because of the parents' consistent visits and treatment efforts, the Agency recommended continued services with changes to the case plan. The court adopted the new recommendations. The court also addressed the parents, explaining that at the 12-month hearing, the standard is "will they reunify"—and that, based on the progress to date, the court would not be able to find that. It emphasized that "if we're in sort of the same state with good visitation but no progress in addressing the underlying problems, that could be bad for you. . . ."

The Agency provided the 12-month status review report in September 2016. On May 2, after the six-month review hearing, Father was arrested for possession of an illegal substance and a loaded firearm. He tested positive for methamphetamine on June 15 and had a test "too dilute to assure [a] valid negative result" on July 21, but otherwise tested negative. By September, Father had remained in Bridges for six months and his attendance had improved. A report from Drug Court indicated Father was in good compliance. Father obtained a permanent part-time job, and continued visiting the twins. During visits, Grandmother let the parents take on a parental role and reported they seemed to be doing well. The social worker also observed the twins appeared to respond well to the parents. The Agency found that "although [Father] knows what needs to be done to be successful (as he has done it before) as of today he has not been able to complete his treatment." It recommended the court terminate reunification services and set a section 366.26 hearing.

Addendum reports in November and December 2016 provided more information on Father's progress. The November report attached letters from Drug Court, indicating Father's ongoing sobriety and compliance with his treatment program. The December report attached a December 7 letter from Gary Tates, lead substance abuse counselor at Bridges, stating he was expected to complete the program on December 14 and "appear[ed] to be motivated to continue living a healthy drug/alcohol [free] lifestyle." The Agency found Father "engaged in services late in his dependency process," and that while he had been encouraged to secure housing and demonstrate he was capable of full-time care, he had not demonstrated he could provide a "stable and safe home for the twins."

The juvenile court held the 12-month review hearing on December 19, 2016. The court accepted the Agency reports into evidence, and the social worker and Father testified. Relevant here, Father discussed his treatment history, current sobriety, and visitation. He previously completed treatment at the California Rehabilitation Center, a program held in a prison. He was released to an inpatient program at the House of Metamorphosis, which he finished in January 2009. He then attended outpatient aftercare at McAlister. He relapsed in December 2012, and was incarcerated in 2013 for five months due in part to a substance-related issue. He reenrolled in McAlister in January 2014, but was still using, so stopped. Father had been clean since July 2016. He completed Bridges on December 14 and would be attending alumni meetings once a week. As for housing, Father had been living with his ex-wife, believed he could live in Grandmother's granny flat, and had applied for transitional housing. He visited the twins every morning and helped get them ready, including changing diapers and feeding them.

The juvenile court found there was no substantial probability the twins could be returned by the 18-month date, terminated services, and set a section 366.26 hearing. The court acknowledged Father's progress, but found he had completed programs before and did not succeed, would now be on his own, and there was little time before the 18-month date to see how he would do on his own. The court found this was "compounded . . . by the housing situation." It did not doubt Grandmother would make the granny flat available, but "as we speak right now, dad is struggling with the housing, and . . . that is a matter of speculation, also, at this point."

C. Section 388 Petition and Section 366.26 Hearing

Social worker Daisy Gudino provided the section 366.26 report in April 2017. She noted the parents never progressed to unsupervised visits. She then described recent visits. On March 9, the parents had a visit at Grandmother's home, during which Father read to and played with the twins and admonished R.W. when she tried to take a toy from P.W. Later, Grandmother told Gudino that Father was no longer allowed in her home because he claimed the girls on his taxes when he was not supposed to. She also said Father was not responding to her text messages. An April 1 visit was scheduled with Mother's assistance. On April 1, Gudino observed Father being playful with the twins. She did not see him bring drinks or snacks for the twins, but Grandmother had them, along with books and a tablet. Gudino observed the twins looking or calling for Grandmother, "Ema," and not being upset when the parents left.

The Agency recommended parental rights be terminated and the court adopt a permanent plan of adoption. It found the twins were generally adoptable, and Grandmother had expressed commitment to adoption. It noted "there is a parent-child relationship" with the parents, "but the girls see [Grandmother] as their parental figure and not their parents." It also noted Father's situation with Grandmother, and that his recent visits had not been consistent. The Agency found that while the twins had a good time with the parents and they were attentive to their needs, they "appear[ed] to need [Grandmother's] reassurance and presence in order to feel comfortable." It also found the twins had been able to "thrive and progress" in her home and had stability and consistency there. The Agency determined "there appears to be no significant parent-child relationship that exists" and "it would not be detrimental to terminate parental rights. . . ." The Agency concluded the "parent-child relationship that does exist between the parents and the twins[] does not outweigh the benefits of adoption."

At an April status conference, Father set the matter for a contested 366.26 hearing, identifying the issue as "guardianship instead of terminating parental rights." On May 2, he graduated from Drug Court. On May 24, he petitioned pursuant to section 388 to modify the court's detention order and place the minors in his care with family maintenance services. He cited his completion of Bridges, Drug Court graduation, and consistent attendance at AA/NA meetings. Father also provided a declaration asserting a strong bond with the children. The juvenile court found Father made a prima facie showing and set an evidentiary hearing concurrent with the section 366.26 hearing.

Addendum reports described visits in April and May. They had agreed to weekly Saturday park visits. On April 8, Father did not arrive for a park visit, and Grandmother and the twins waited an hour before leaving. On April 22, the parents visited the twins at a child fair. Father brought shoes he purchased for the girls and was attentive (although more attentive to R.W.), but did not bring water, snacks, or diapers. The twins asked for Grandmother when they did not see her. Grandmother told Gudino she arranged additional weekly visits on Tuesdays at Denny's through Mother. On April 25, a Denny's visit took place. Grandmother cancelled the April 29 park visit. The May 2 visit also did not take place; Father said he was at Denny's and contacted Grandmother, but she did not respond. Grandmother told Gudino she thought Father might have blocked her on his phone. Father missed visits on May 6 and 8, and cancelled them on May 16 and May 20. He did visit on May 13. On May 30, the parents had a Denny's visit. Gudino observed Father being "more interactive and playful" and "more attentive" with R.W. The final addendum report reiterated the twins viewed Grandmother as "their parental figure," and explained that, while there was no doubt Father loved the twins, he had not taken on a parental role and it was not in the twins' best interest to be placed with him.

In June 2017, the juvenile court held a hearing on the section 388 petition and permanency planning. The court admitted the petition and Agency reports into evidence, and Father testified. Since the last court date, he had completed Drug Court, was attending AA and NA, and still had a sponsor. In mid-May, he rented a room from family friends. He put the address on his change of circumstances petition, but did not verbally tell the social worker and did not know if she had been able to evaluate it. He believed the twins were bonded to him, citing their reaction when he comes into their presence, their need for attention, and his playing with them. Until February, Father visited the twins each morning and night. Since then, he visited the twins an average of twice a week, with three or four missed visits; he testified the others were canceled or moved. He explained he and Grandmother had a disagreement because he claimed the twins on his income tax form, and that she had been abusive. He acknowledged blocking her number, but indicated they had already set visitation. He also stated this "was the lesser of two evils," in that fighting might lead him to be enraged and thus vulnerable to drugs.

The juvenile court first ruled on the section 388 petition. The court noted Father's completion of Drug Court (which it described as "not an easy task"), as well as his attendance at AA and NA, use of a sponsor, and sobriety, and stated that "prior to [Father's] testimony today, [it] considered this case a close call. . . ." However, the court was troubled by the breakdown with Grandmother and Father's decision to block her phone number, rather than trying to work it out. The court found:

"[The] change of circumstances of blocking the maternal grandmother is a negative change of circumstance. And the only positive change of circumstances is in completing the dependency drug court after services were terminated. [¶] But I think that's substantially outweighed by his giving up his opportunity to see the children on a daily basis, morning and night by his own testimony, because of a tax deduction. I just don't think those change of circumstances are here."

The court further found the evidence did not establish it was in the twins' best interest to leave their current home, where they were "doing very well," to go to Father's home. The court denied the motion.

Turning to section 366.26, the juvenile court found the children were adoptable, and none of the exceptions to terminating parental rights applied. The court noted Father "did have mostly regular visits," and they were mostly "very positive visits." But it found the second prong was not met, explaining "[Father] . . . has not exercised the parental role. He has not had any unsupervised visits. He hasn't had any overnights. And . . . again, I go back to the breakdown with the maternal grandmother. He gave up his daily visits twice a day. . . . I don't see that he is anything more than a friendly visitor with those children and not in a parental role." The court terminated parental rights and designated adoption as the permanent plan.

DISCUSSION

A. Modification Petition

Father argues the juvenile court abused its discretion when it denied his modification petition seeking placement of the twins.[5] This contention lacks merit.

"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re A.A. (2012) 203 Cal.App.4th 597, 600.) However, "[o]nce reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability." (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) Thus, a "court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus. . . ." (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.); In re J.C. (2014) 226 Cal.App.4th 503, 526 (J.C.) [accord]; see Marilyn H., at p. 309 [section 388 provides the 'escape mechanism' . . . to allow the court to consider new information"].) "Whether the juvenile court should modify a previously made order rests within its discretion, and its determination may not be disturbed unless there has been a clear abuse of discretion." (J.C., at p. 525.)

First, the juvenile court reasonably concluded Father had not established changed circumstances. The court found his recent progress was outweighed by his decision to block Grandmother and lose the opportunity to see the twins daily, and the record supports this conclusion. While Father's continued sobriety and participation in drug treatment was commendable, he had relapsed before. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [father's "seven months of sobriety . . . , while commendable, was nothing new"].) Further, he commenced treatment late in the reunification process, leaving the record with little evidence that he would be able to maintain sobriety this time. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 [mother's recent sobriety was " 'changing', not changed, circumstances"].) Father similarly obtained housing only recently and there was no evidence the social worker had reviewed it to assess suitability. And his conflict with Grandmother did lead to reduced contact with the twins.

Father contends there is no substantial evidence to support the court's conclusion that his breakdown with Grandmother outweighed his progress, noting the situation with Grandmother did not preclude consistent visitation. But Father's progress was not as significant as he contends, for the reasons discussed ante, and his visitation was reduced (even if still consistent). Further, while we will evaluate the factual basis for an exercise of discretion (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351), there is no material dispute as to the facts here—only their significance. That is a determination for the juvenile court, and the court's determination was reasonable. (Mosesian v. Bagdasarian (1968) 260 Cal.App.2d 361, 368 ["It is axiomatic that a reviewing court will not reweigh the evidence"]; Stephanie M., supra, 7 Cal.4th at p. 319 [" ' "When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the [juvenile court]." ' "].)

Second, the juvenile court was within its discretion in concluding that, even if circumstances had changed, placement with Father was not in the twins' best interest. At this stage, the focus is on permanence and stability. (Marilyn H., supra, 5 Cal.4th at p. 309; Stephanie M., supra, 7 Cal.4th at p. 317.) Father did not establish that placement with him would advance the twins' need for permanency and stability. While he had been a positive presence as a visitor in their lives and took on a parental role during visits, his visits had decreased in frequency, he never cared for the twins on his own, and he only recently obtained housing. Further, he had only achieved sobriety in July 2016 and relapse remained a real possibility. We also cannot ignore the stability enjoyed by the twins in Grandmother's care. They had been with her since infancy and were doing well, they viewed her as their parental figure, and she was committed to adoption.

Father maintains that placement with him is in the twins' best interest and that the factors set forth in In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.) support his position. We disagree. Where, as here, proceedings have advanced beyond termination of services, the guidance provided by the California Supreme Court (discussed ante) controls our analysis. (Marilyn H., supra, 5 Cal.4th at p. 309; Stephanie M., supra, 7 Cal.4th at p. 317.)

Even if we addressed the Kimberly F. factors, they would not aid Father. These factors are: "(1) The seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (Kimberly F., supra, 56 Cal.App.4th at p. 532.) With respect to the first and third factors, Father contends "the seriousness . . . was primarily mother's issues with substance abuse," and recounts his progress as of his section 388 petition. But the petition was based on both parents' substance abuse problems, and Father has a history of relapse. As for the second factor, Father argues that while the twins look to Grandmother for their daily needs, this does not diminish their bond with him. He also questions the purported absence of evidence of a parental bond with Grandmother and notes the twins call her "Ema," not mother. The reports contained ample evidence the twins were bonded to Grandmother, regardless of what they call her, such as seeking her when she was absent. The reports also made clear that, while there may have been a parent-child relationship between the twins and Father, the twins viewed Grandmother as their parental figure, not Father. Further, there was little evidence of a strong bond between Father and the twins in the first place; as discussed ante, he functioned in their lives chiefly as a friendly visitor and they were not upset when he departed.

The court did not abuse its discretion in denying Father's section 388 petition.

B. Termination of Parental Rights

Father argues the juvenile court erred in finding the beneficial parent-child exception inapplicable here. He also suggests guardianship would be more appropriate than adoption and requests, in the alternative to reversing the section 388 order, that we direct entry of a plan of guardianship. We reject these contentions.

"At a section 366.26 hearing 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." (In re Jason J. (2009) 175 Cal.App.4th 922, 935-936 (Jason J.).) The Legislature has directed a "mandatory preference for adoption over legal guardianship over long-term foster care." (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888 (San Diego County Dept. of Social Services); see § 366.26, subd. (b) [requiring court to "make findings and orders in the following order of preference," and identifying adoption first].)

If the court finds the child likely will be adopted, the court "shall terminate parental rights and order the child placed for adoption," absent certain exceptions. (§ 366.26, subd. (c).) The beneficial parent-child relationship exception applies where "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) A beneficial relationship is one that "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "[T]he parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527 (I.W.).)

The Agency concedes Father met the visitation requirement, so we focus on the beneficial relationship issue. "We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395; J.C., supra, 226 Cal.App.4th at pp. 530-531.)[6]

Viewing the record favorably to the juvenile court's decision, and drawing all reasonable inferences, we conclude there is substantial evidence to support the court's determination that Father did not have a beneficial parental relationship with the twins. Although Father had pleasant visits with them and assisted with parental tasks like feeding, the twins did not look to him to meet the type of needs a parent would satisfy and were not distressed when he left. Father also never had custody of the twins, or even cared for them on his own, and there was evidence he was more attentive to one twin. Grandmother was both twins' parental figure, and had been for most of their young lives. Based on this evidence, the juvenile court reasonably could conclude that Father did not establish he "occup[ied] a parental role in the life of the [twins]." (I.W., supra, 180 Cal.App.4th at p. 1527.)

Even if there were sufficient evidence to support a finding of a beneficial parental relationship between Father and the twins, the court still could reasonably have determined that severing the relationship would not be detrimental to the twins. Father's contact with them was limited to supervised visits where, at best, he shared parenting duties with Grandmother—and where the twins reacted to her absence, not his. And the visits became less frequent once he and Grandmother had their conflict. There is no evidence the twins had "needs only [Father] can satisfy," or "the type of emotional attachment" to him that would cause them "to be greatly harmed if parental rights were terminated." (Jason J., supra, 175 Cal.App.4th at p. 938.)

Father's arguments are unpersuasive. He contends daily contact is unnecessary and more limited contact must be considered in context. The context here does not aid him; the loss of daily visits resulted from his inability to get past his conflict with Grandmother. Even during the twice weekly visits, Grandmother remained the parental figure. Father also argues he did have a strong bond with the twins, citing evidence in this regard, and the court erroneously focused on his rift with Grandmother. Substantial evidence supports the court's finding that no beneficial parental relationship exists, as discussed ante. And the court's consideration of the conflict with Grandmother was appropriate, given it led to the loss of daily visits and the bonding opportunities such visitation would provide. Finally, unlike in the cases he cites, Father identifies little if any evidence of a strong bond or potential for harm, beyond his own opinion. (In re Amber M. (2002) 103 Cal.App.4th 681, 689-690 [psychologist, therapist, and court-appointed special advocate [CASA] testified to strong bond between minors and mother]; In re S.B. (2008) 164 Cal.App.4th 289, 295-296 [psychologist and social worker testified there would be some detriment and potential harm to minor]; In re Scott B. (2010) 188 Cal.App.4th 452, 471-472 [evidence, including input from CASA, reflected termination of parental rights would be detrimental].)

We now turn to Father's request that we direct entry of an order implementing a permanent plan of guardianship. We concluded ante that the juvenile court did not err in finding the beneficial parent-child relationship exception inapplicable. Accordingly, based on the statutorily mandated preference, the court did not err in ordering a permanent plan of adoption, rather than guardianship, and we decline to direct such action now. (§ 366.26, subd. (b); San Diego County Dept. of Social Services, supra, 13 Cal.4th at p. 888; see Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 244, 251-252 [holding court "not required to consider guardianship once it found the minors were adoptable," explaining "guardianship . . . falls short of the secure and permanent placement intended by the Legislature" and while parents "may prefer not to have their parental rights terminated and thus offer guardianship as a less drastic alternative, the Legislature has emphasized it is the child's welfare, not the parents' welfare, that is paramount"].)

The juvenile court did not err in finding the beneficial parent-child relationship exception inapplicable and adopting a permanent plan of adoption.

DISPOSITION

The order and judgment are affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.