Filed 3/22/18 In re Reese L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 REESE L. et al., Persons Coming Under the Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES,
Plaintiff and Respondent,
v.
CHRISTOPHER L.,
Defendant and Appellant.
F076214

(Super. Ct. Nos. 09CEJ300228-4, -5)


OPINION

THE COURT*
APPEAL from orders of the Superior Court of Fresno County. Leanne L. LeMon, Temporary Judge.†
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant Christopher L. (hereafter father) contends the juvenile court erred in denying his Welfare and Institutions Code section 388 petition seeking reunification services. Alternatively, Father contends the section 366.26 order terminating parental rights should be reversed. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
A section 300 petition was filed on behalf of Reese and his sister, Hailey, on September 26, 2016. They are the children of father and Vanessa (hereafter mother). At the time, Hailey was not yet one year old and Reese was under two years old; both children resided with mother. The petition included allegations against mother and father. Father was present at the detention hearing on September 26, 2016.
The September 2016 petition was filed after mother left Reese and Hailey in her car, with the keys in the ignition and the engine running, while she entered a store to shoplift and was arrested. Both children had soiled diapers and diaper rash. Reese had lesions on both thighs where the seat belt straps from the car seat had dug into his legs.
Mother had a restraining order in place against father, due to expire on August 24, 2019. Father denied engaging in domestic violence in June 2016 and claimed mother “threw herself through a window” and pulled out her own hair, then accused father of domestic violence, although father did plead to a domestic violence charge. Father acknowledged to a social worker that he used methamphetamine and had “an issue with alcohol.” He was living in a halfway house after being released from jail.
Three older children—a sibling and two half siblings of Reese and Hailey—previously were the subjects of section 300 dependency petitions based on allegations of general neglect, physical abuse, and exposure to ongoing domestic violence. Ultimately, mother’s parental rights to these three children were terminated and a permanent plan of adoption was ordered. Father’s parental rights to P., the sibling of Reese and Hailey, was terminated after father inflicted nonaccidental serious physical harm on the child.
Father was arrested again on September 29, 2016, on new domestic violence charges. Apparently, because of his prior domestic violence conviction, father was held without bail. The department was concerned father ignored the restraining order and engaged in another incident of domestic violence in the presence of Reese and Hailey.
On October 20, 2016, the department filed an amended section 300 petition. The amended petition included the allegations from the original petition and added allegations the children were at substantial risk of suffering abuse or neglect similar to that suffered by their older siblings. The amended petition noted mother and father previously had parental rights terminated as to other children after failing to reunify.
At the December 15, 2016, jurisdiction hearing on the amended petition, father did not contest jurisdiction; mother did. The department submitted a lengthy social study for the contested jurisdiction and disposition hearing, which recommended reunification services be denied mother and father pursuant to section 361.5, subdivision (b)(11), the prior loss of parental rights to the older siblings and the failure to address the issues giving rise to the loss of parental rights.
A contested jurisdiction and disposition hearing was held on January 5, 2017. Both parents were in custody at the time. The department and counsel for the children submitted the matter on the social study. After hearing testimony from mother and argument from the parties, the juvenile court found the allegations of the amended petition true. The juvenile court noted the provisions of section 361.5, subdivision (b)(11) applied to both mother and father, and “the pattern repeats” and the reasons for removal of Reese and Hailey again included domestic violence. The juvenile court stated “[g]rounds for bypass” were set forth in the report, adopted “the report in its entirety,” denied reunification services, and ordered a section 366.26 hearing be set. The juvenile court specifically commented on the domestic violence in the home as a significant factor in its ruling and that the children “deserve permanent stability.”
On April 27, 2017, father filed a section 388 petition, seeking reunification services. Father claimed he and the children were bonded; with reunification services, the children could be returned to him. The section 388 petition was scheduled to be heard at the same time as the section 366.26 hearing.
The section 366.26 social study recommended a permanent plan of adoption and termination of mother’s and father’s parental rights. Reese and Hailey had been with the prospective adoptive parents since September 2016, and the social worker described the relationship as very positive, with the prospective adoptive parents attentive and loving toward the two children.
A hearing on the section 388 petition and a contested section 366.26 hearing was held on July 20, 2017. Father testified when he was living in the home with mother, he provided for Reese and Hailey and helped take care of the children by changing diapers, feeding them, and bathing them. When exercising visitation with his children during the dependency proceedings, father described the visits as “good” and “fun.”
As of the date of the combined section 366.26 and section 388 petition hearing, father had not enrolled in any parenting class. Father enrolled in a domestic violence prevention program in July, shortly before the hearing date, and had attended two out of the 52 sessions in the program. Father was “living in a transitional sober living house” and attending Alcoholics Anonymous meetings. Father expected to remain in transitional housing for another six months. Father claimed it was in his children’s best interests to have continued contact with him because “no one’s going to love my children like I love them” and he could “teach them” what only a father could teach.
After testimony from father and argument from the parties, the juvenile court denied the section 388 petition, finding father “has failed to prove by a preponderance of the evidence that there is a change in circumstances.” The juvenile court stated the past issues with violence, “specifically domestic violence” had not been addressed. The children had spent a significant portion of their lives with the prospective adoptive parents, father’s current living arrangements did not provide stability for the children, and there was no evidence providing reunification services to father would be in the best interests of the children.
As for the section 366.26 hearing, the juvenile court stated there was clear and convincing evidence both children were likely to be adopted if parental rights are terminated, and it articulated whether the beneficial parent-child relationship exception applied. The juvenile court noted that due to the young age of the children at removal, when Reese was one and a half years old and Hailey was seven months, there did not appear to be a strong bond between the children and father or mother. The children had formed a strong bond with their care providers over the past 10 months, who were the prospective adoptive parents. Although the juvenile court found there was some bond between Reese and Hailey and their parents, it was insufficient to outweigh the children’s need for permanency and stability. The juvenile court found adoption was in the best interests of the children.
The juvenile court terminated the parental rights of both mother and father, found the children were likely to be adopted, ordered the children placed for adoption, and found the adoption likely would be finalized by January 4, 2018.
Father appealed the order terminating his parental rights and placing the children for adoption.
DISCUSSION
Father contends the juvenile court abused its discretion in denying his section 388 petition because he had shown a change in circumstances. Father also contends the juvenile court’s order terminating parental rights should be reversed as to him because a beneficial parent-child relationship was established.
I. Father’s Section 388 Petition
Father contends the juvenile court abused its discretion in denying his request under section 388 for reunification services. In his view, the evidence established he made significant changes in his circumstances and it was in the children’s best interests to grant reunification services. We disagree.
“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. [Citation.] The parent bears the burden to show both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child.” (In re A.A. (2012) 203 Cal.App.4th 597, 611–612.)
“A petition for modification is ‘committed to the sound discretion of the juvenile court, and the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.’” (In re A.R. (2015) 235 Cal.App.4th 1102, 1116–1117.)
“Not every change in circumstance can justify modification of a prior order. [Citation.] The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate. [Citations.] In other words, the problem that initially brought the child within the dependency system must be removed or ameliorated. [Citations.] The change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order.” (In re A.A., supra, 203 Cal.App.4th at p. 612.)
Section 388 serves as an “‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) It is not enough for a parent to show an incomplete reformation or that he or she is in the process of changing the circumstances that led to the dependency. “After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability.’” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) “A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interest of the child.” (Ibid.) “‘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 … might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.’” (In re Mary G. (2007) 151 Cal.App.4th 184, 206.)
“‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. 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 trial court.”’ [Citation.]” (In re Stephanie M., supra, 7 Cal.4th at pp. 318–319.) “‘The denial of a section 388 motion rarely merits reversal as an abuse of discretion.’ [Citation.]” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
Reunification services were denied father pursuant to section 361.5, subdivision (b)(11), which authorizes the denial of reunification services where a parent’s parental rights to another child were terminated and the juvenile court finds, by clear and convincing evidence, the parent has not made a reasonable effort to treat the problem leading to termination of rights to a sibling. Reasonable efforts must be more than lackadaisical. (K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393.) The juvenile court found father had not addressed his propensity for violence, which is why the juvenile court applied section 361.5, subdivision (b)(11) to deny reunification services as to Reese and Hailey.
At the time the section 300 petition was filed on behalf of Reese and Hailey, father was out of the home and subject to a domestic violence restraining order, which he violated during the dependency proceedings by again committing an act of domestic violence against mother while the children were present. Father previously had his parental rights terminated to a sibling of Reese and Hailey because of his physical abuse of that child. Father seemed to claim his problems stemmed from alcohol abuse.
By the time of the hearing on the section 388 petition, father was in transitional housing to address his alcoholism and was attending AA meetings. Father claimed he had been sober since September 18, 2016, a period of 10 months. Father had completed only two of 52 sessions to address his propensity for domestic violence. Father failed to adequately address his propensity for violence before the hearing at which reunification services were denied, and he failed to adequately address his propensity for violence subsequent to that hearing. Waiting until shortly before the section 366.26 hearing was to be held and attending only two of 52 sessions in a program to address his domestic violence does not constitute changed circumstances.
Father failed to provide evidence his circumstances had changed as of July 20, 2017, the date of the hearing on the section 388 petition. At most, father demonstrated he had made no effort to address his violent tendencies until after a section 366.26 hearing to terminate parental rights was set.
The juvenile court found father failed to make the requisite showing his circumstances had changed as of the date of the hearing on the section 388 petition, and we concur. Given father’s extensive history of violence, having attended only two of 52 sessions to address the violence is hardly changed circumstances. Moreover, father still was subject to a restraining order because of his acts of domestic violence; the loss of his parental rights to another child because of physical violence or abuse remained unchanged. In the context of the dependency proceeding for Reese and Hailey, father’s efforts were too little too late and demonstrated changing, but not changed, circumstances.
Our conclusion the juvenile court did not err in finding father failed to establish a change in circumstances obviates the need to review his contentions with respect to the children’s best interests in the context of the section 388 petition.
We find no abuse of discretion on the part of the juvenile court in denying father’s section 388 petition and reject his contention to the contrary.
II. Beneficial Parent-child Relationship Exception
We next address, and reject, father’s claims that a beneficial parent-child relationship existed and legal guardianship, not adoption, should have been the permanent plan.
After reunification services are terminated, “‘the focus shifts to the needs of the child for permanency and stability.’” (In re Celine R. (2003) 31 Cal.4th 45, 52.) A hearing under section 366.26 is held to design and implement a permanent plan for the child. At a section 366.26 hearing, once the juvenile court finds by clear and convincing evidence the child is likely to be adopted within a reasonable time, the court is required to terminate parental rights and select adoption as the permanent plan, unless the parent shows termination of parental rights would be detrimental to the child under one of several statutory exceptions. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
“Under section 366.26, the statutory preference is to terminate parental rights and order the child placed for adoption. (§ 366.26, subd. (b)(1).)” (In re C.B. (2010) 190 Cal.App.4th 102, 121.) There are statutory exceptions that “‘permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.’ [Citation.]” (Id. at p. 122, fn. omitted.) One such statutory exception to adoption applies where “[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).) As the statutory language shows, there are two prongs to the exception: (1) regular visitation and contact, and (2) a beneficial parent-child relationship. (Ibid.)
“Satisfying the second prong requires the parent to prove 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 Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
In order for the exception to apply, the parent-child relationship must “promote[] 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 other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated. [¶] Interaction between natural parent and child will always confer some incidental benefit to the child.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575, italics added.)
Father bears the burden of showing the exception applies. (In re Noah G. (2016) 247 Cal.App.4th 1292, 1300.) “[I]t is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; see In re Celine R., supra, 31 Cal.4th at p. 53.)
The parent-child relationship exception “does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) “[A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child’s need for a parent.” (Id. at p. 1350.) Even a “loving and happy relationship” with a parent does not necessarily establish the statutory exception. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.)
In determining whether the relationship between parent and child is beneficial, we look to such factors as “(1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs.” (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.) The juvenile court’s conclusion father did not satisfy the exception “turns on a failure of proof at trial, [such that] the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
The juvenile court’s conclusion that severing the parent-child relationship in this situation would not deprive Reese or Hailey of a substantial, positive emotional relationship such that they would be greatly harmed did not exceed the bounds of reason. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Stephanie M., supra, 7 Cal.4th at pp. 318–319.) Reese was not yet two years old when the section 300 petition was filed; Hailey was about seven months old. Father was subject to a domestic violence restraining order and not living in the home at the time the section 300 petition was filed. Subsequent to the filing of the petition, father was incarcerated for violating the restraining order by committing another act of domestic violence. Once released, father had supervised visits. Father testified the children were happy and smiling when he saw them. Father claimed the children would benefit from continuing a relationship with him because no one would love the children as much as him.
Father has occupied the role of a friendly visitor, not a parent, in the lives of Reese and Hailey for the duration of the dependency proceeding, which was approximately 10 months. Prior to the dependency, he was not in contact with the children because of a restraining order. Thus, for the majority of Hailey’s lifetime and approximately half of Reese’s lifetime, father has not been serving in a parental role. It is the caregivers, the prospective adoptive parents, who have been filling the parental role. Father was absent from Reese’s and Hailey’s life due to his own actions—engaging in domestic violence and then violating a domestic violence restraining order.
There is no evidence of a substantial, positive emotional attachment between father and Reese and Hailey such that the children would be harmed by severing the parental relationship. Father has failed to demonstrate Reese or Hailey would suffer any detriment as a result of terminating his parental rights. In fact, the evidence demonstrates the children will benefit by being adopted into a loving home; the children are bonded with their caregivers. Adoption allows the children to achieve permanency and stability in a family setting free of the domestic violence in which father engaged. Accordingly, we find the juvenile court did not err in rejecting the beneficial parent-child exception to adoption.
DISPOSITION
The orders denying father’s section 388 petition, terminating parental rights, and setting a permanent plan of adoption for Reese and Hailey are affirmed.