Filed 5/10/22 In re E.M. CA4/2

(See concurring opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Susanne S. Cho, Judge. Affirmed.

Janelle B. Price, under appointment by the Court of Appeal, for Defendant and Appellant.

Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.

The juvenile court denied defendant and appellant, H.M. (father’s), Welfare and Institutions Code section 388[1] petition and terminated his parental rights. On appeal, father contends the court erred in denying his section 388 petition and in declining to apply the beneficial parental relationship exception to the termination of his parental rights. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 17, 2019, personnel from plaintiff and respondent, Riverside County Department of Public Social Services (the department), received allegations of general neglect as to J.C. (born Apr. 2013) and E.M. (born Oct. 2018) (collectively the children). The maternal aunt had been the legal guardian of J.C.; the guardianship had been terminated on December 11, 2019, and J.C. was returned to mother’s custody.[2] Mother refused to drug test and admitted having suicidal ideation. Mother had a history of abusing methamphetamine. The reporting party stated that mother was diagnosed with anxiety and depression for which she took medication but was not receiving therapy. J.C. needed dental work and had been chronically tardy to school. It was reported that mother had lost a lot of weight, relapsed on drugs, and was leaving the children in the care of maternal relatives without telling them when she would return to pick them up. The reporting party also believed father was using methamphetamine.

On December 26, 2019, after the social worker had made unsuccessful attempts to contact the family at mother’s home, someone reported that mother was hiding from the department at father’s home. The social worker went to father’s home; it appeared as if people were home but no one answered. On January 6, 2020, the reporting party stated that father had taken E.M. to Washington. Father returned home after mother threatened to kill herself. The social worker contacted mother, father, and the children at father’s home. Mother said she was moving in with father.

Mother admitted relapsing on methamphetamine. Mother failed to show for drug tests scheduled for January 7 and 13, 2020.

Father admitted a long history of methamphetamine use. He said he had been clean since October 2018. Father said he would test for the department if needed. The social worker asked him to test; father said a test was not needed because he was clean. Father had a criminal history, which included possession of controlled substances for sales.

On January 31, 2020, after concerns had been raised that there was insufficient food in the home, the social worker took the children into protective custody On February 3, department personnel filed a juvenile dependency petition alleging mother had a history of substance abuse (b-1), mother had mental health issues (b-2), father had a history of substance abuse (b-3), J.C.’s father had failed to provide for her (b-4), and that J.C.’s father was incarcerated (g-1).[3] The court detained the children and placed them with the maternal aunt.

In the March 5, 2020, jurisdiction and disposition report, the social worker recommended the court find the allegations in the amended petition true and provide reunification services to the parents.[4] In an interview on February 21, father said he had been using methamphetamine since he was 15 years old but had been sober for seven days. An adult sibling of the children reported that father used methamphetamine and was a “‘functioning addict.’” The maternal aunt said she obtained legal guardianship of J.C. in 2016 because mother had been using methamphetamine and had been arrested, convicted, and sentenced to prison. On February 19, 2020, the social worker asked father to submit to a hair follicle drug test; he refused.

The parents visited with the children for two hours on February 4, 13, 19, 21, 26, 28, and March 4, 2020. The social worker reported, “The visits have been appropriate as both parents engage with the children by reading with them and playing with toys in the office.”

At a hearing on March 10, 2020, the court told father, “I highly encourage you to take a big step and go into an in-patient treatment program and get things squared away. [¶] You’ve had a very long history with substance abuse. I mean, if [E.M.] can’t do it for you, I’m not sure what can change your direction.”

In an April 9, 2020, addendum to the jurisdiction and disposition report, the social worker noted that father had “completed an assessment at the Riverside County Substance Abuse Program. [Father] was assessed for inpatient treatment and is waiting for a bed to become available. I confirmed that [father] completed his assessment and is waiting for the CARES line to call him as soon as a bed becomes available.” In-person visitation had been suspended due to COVID-19; however, father called consistently. No concerns had been expressed about father’s visitation.

In another addendum filed May 26, 2020, the social worker noted father was being discharged from individual therapy due to cancellations and missed appointments. Father reported he had been at an inpatient drug treatment facility since April 28, and his expected completion date was July 26. Father stated he then planned to enter a sober living home; he did not plan to return home, as he believed it would jeopardize his sobriety. Father stated he hoped to eventually move back to Washington, where he had support from relatives. On May 29, the court found the allegations in the amended petition true, removed the children, and ordered reunification services for the parents.

In the six-month status review report filed November 19, 2020, the social worker recommended terminating the parents’ reunification services and setting a section 366.26 hearing. Father had completed his inpatient treatment program on July 7. He tested negative for drugs during his residential program. He then resided at a sober living facility. Father was in Washington for the majority of August and September and returned at the end of September 2020. “After his return to California, [father] reported his counselor . . . indicated he would need to re-enroll in the outpatient program.”

On September 28, 2020, father tested negative. On October 8, the social worker requested father complete a hair follicle test; father said he wanted to speak with his attorney first; on October 22, the drug test liaison reported father had not completed the test. Father was referred for an on-demand drug test on November 4, 2020, for which he failed to show.

“On October 22, 2020, a new core services referral was submitted on behalf of [father] and he was referred to Riverside University Health System Substance Abuse and Treatment Program.” Father reported he had an intake appointment scheduled for November 12; however, a staff member reported that father failed to show.

Father had supervised visitation on July 12, 13, and 17, 2020, for approximately eight hours. He had his first unsupervised visit on July 19, when he took E.M. for the day. On July 24, father requested E.M. be picked up approximately 45 minutes into a visit. Father cancelled visits on July 25 and August 1 and 2. On July 25, he cited possible COVID exposure as the reason for the cancellation. July 24, was father’s last in-person visit prior to father leaving for Washington. “During his time in Washington, [father’s] participation in video visits was sporadic and inconsistent. . . . [¶] After he returned to California, it was determined visitation should be supervised, due to the gap in time of having consistent visits and consistent participating in services.”

The maternal aunt “supervised a visit between [father] and [E.M.] after [father’s] return on September 27, 2020, and indicated the visit went well and denied concerns.” The social worker began supervising visitation on October 8; father engaged in consistent visitation with E.M. since that time, “two hours, two times per week.” Father and E.M. “engage and play well together, and the bond [E.M.] has to [father] is very apparent. [E.M.] will ask [father] to play saying ‘come play daddy,’ and when he becomes tired, he will want to be held and comforted by” father.

Mother was reportedly homeless. She had been arrested on at least four occasions for controlled substance related offenses. Mother had not participated in services. She had not visited the children.

On November 3, 2020, the social worker asked if father had the necessary provisions for E.M. to be returned to father’s care. Father stated the home would need to be cleaned up because mother had “‘trashed it’” when she was staying there. Mother had been staying at his home on and off since father’s return from Washington. Father reported he would not allow mother to stay with him if she is “‘not going to get it right.’” Father later indicated he was no longer allowing mother to stay at his home.

Nonetheless, the social worker concluded: “[W]hile [father] participated in and completed services earlier in this reporting period, he has not shown that he is continuing to build on the progress he made. He indicated he has maintained his sobriety, but has declined to show the Department proof of that and recently was a “no show” for both a drug test as well as a substance use outpatient intake appointment. Additionally, although he is aware of the mother’s lack of progress, he has continued to allow her to stay in his home on and off, and even stated she ‘trashed it’ when she was there. The Department feels there is continued risk to [E.M.’s] overall safety and well-being should he be returned to the care of the father.”

At a hearing on December 1, 2020, it was noted that father had enrolled in an after-care program and had submitted to a hair follicle test. The court observed that father had engaged in consistent visitation with E.M. and that E.M. was very bonded to father.

In an addendum report filed January 20, 2021, the social worker reported that father had submitted to a hair follicle test on December 10, 2020; it tested positive for methamphetamine and amphetamine. Father disputed the results saying it went back more than three months. On January 7, 2021, father completed an intake session for a substance abuse program and tested negative. He failed to show for an on-demand test on January 12, 2021.

The social worker reported that since the last hearing, father had visited consistently with E.M. The social worker opined that while father completed an intake session to begin outpatient services on January 7, 2021, he had missed another intake appointment scheduled in November 2020. The social worker was concerned about father’s substance use as he had “not been forthright about his use, as evidenced by his positive hair follicle drug test and missed on-demand drug test on January 12, 2021. . . . The minimal or inconsistent information the father has provided regarding his substance use and contact with the mother [is] a concern for the Department. The Department feels there is continued risk to [E.M.’s] s overall safety and well-being should he be returned to the care of the father.”

A February 11, 2021, addendum report reflected father had a receipt for showing up to the on-demand drug test dated January 12, for which the social worker had previously reported father had failed to show. The social worker contacted the collection site, which reported father had tested negative. The social worker reported that “a progress report was received from the father’s counselor at the substance use program that [reflected] he was attending groups, completing assignments, participating in groups, identifying triggers, learning coping skills, working toward treatment plan goals, and providing random UA drug tests and breathalyzer tests. The report further stated the father had reported 44 days clean/sober time . . . .”

The social worker noted: “In regards to the children, they are thriving in their current placement. The caregiver ensures all of their physical, emotional, developmental, and educational needs are met, and makes them available for visitation with the parents and social workers. Additionally, she is willing and able to provide permanency through adoption, should reunification with the parents be unsuccessful.”

At the contested hearing on February 11, 2021, the court noted that father “has bonded with his child, he loves his child.” Nonetheless, the court found father had been struggling with substance abuse issues for more than 15 years and had been using drugs off and on during the pendency of the juvenile proceedings. Father “is still dealing with his substance abuse issues, which places a child of this age at risk, just because of the age of the child.” The court terminated the parents’ reunification services and set a section 366.26 hearing.

On May 4, 2021, father’s counsel filed a section 388 petition requesting reinstatement of reunification services. As changed circumstances, father’s counsel noted father “has diligently continued his sobriety, continuing to test negative and continued in outpatient drug treatment and AA. Father will even test negative in a current hair follicle test.” As to E.M.’s best interest, counsel asserted: “Father and child are closely bonded. Father is able to provide a safe, clean, and wonderful home environment. Father will also facilitate frequent contact with child’s paternal extended family, which current placement has not done. The emotional trauma to the child who is as bonded to father as this child could [be] [could] cause permanent damage if their relationship is cut off.” The juvenile court ordered a hearing on the petition “because the best interest of the child may be promoted by the request.”

In a combined sections 366.26 & 366.3 status review report filed May 28, 2021, the social worker recommended the court find adoption as the appropriate permanent plan and terminate the parents’ parental rights. The maternal aunt reported that father had visited E.M. twice weekly at her home; she “denied concerns regarding the visits and expressed that she intend[ed] to allow visits to continue as long as they are in [E.M.’s] best interest and [father] is safe and appropriate.” Father had not maintained contact with the department since the last hearing; thus, it was unknown whether he continued to progress with respect to his substance abuse issues.

The children had been placed together with the maternal aunt on January 31, 2020. They were “bonded to her and her adult children, and she ha[d] ensured all of their needs are met. Additionally, the children [had] strong connections to extended maternal family members . . . .” The maternal aunt was “willing, able, and prepared to provide permanency through adoption and provide a long term loving and stable home for the children.” The maternal aunt’s “motivation for seeking adoption of [the children was] because they are related to her and she realize[d] that it is the only way to provide permanency for the children.”

The maternal aunt was “willing to allow supervised contact between the children and their birth parents if they request visits. She is open to receiving pictures, cards or gifts from the birth parents or sharing pictures with their birth parents. She will support the children’s search for their birth parents if they are not in their lives when they are adults. There is no post adoption contract on file at this time.”

J.C. “stated that she is happy in her current placement and would like to be adopted.” E.M. was too young to make a statement but “appears to be happy in his current placement and seeks the prospective adoptive mother in getting his needs met.”

On June 10, 2021, the department filed a response to father’s section 388 petition. The social worker had met with father on March 24 requesting he complete a hair follicle drug test. The social worker had no further contact with father until May 25. On June 7, the social worker spoke with father’s current therapist who informed her that father was enrolled in an outpatient program in which he had been participating since January 2021. Father was to have completed a hair follicle test by June 8, 2021; however, at the time of the report, no test results had been received.

On June 15, 2021, father’s counsel submitted letters in support of the section 388 petition. A letter dated June 11 from a clinical therapist reflected that father had entered a substance abuse program on January 7; he commenced psychotherapy on March 9. He appeared to be making positive behavioral and lifestyle changes “as evidenced by his progress in individual therapy and his self-reporting over [six] months of continuous clean/sober time. It should be noted that he is in an early remission from the previous diagnosis . . . .” Father had participated in 24 group sessions, 10 individual sessions, and 45 self-help meetings. He had 13 “no shows” and six excused absences. He had tested negative nine times and refused one test.[5]

At the combined sections 388 and 366.26 hearing on June 15, 2021, father’s counsel argued that father had tested negative in all his urine tests for his most recent program and had a very strong bond with his son. Father’s counsel argued that if the maternal aunt was asked, she would “talk about the bond that the father and the son have together.” He noted that the social worker was not “present for a lot of the interactions . . . to see how bonded these two are together.”

The court noted: “That’s why I asked you if you’re having a contested hearing to establish evidence of parent/child relationship exception or not, because that seems to be the basis for your case. And other than your argument saying so, I don’t really have evidence.” Father’s counsel responded: “Then I would like to have testimony, Your Honor, if that’s—since that seems to be appropriate at the moment.”

The court then asked for the children’s counsel’s input. The children’s counsel responded: “So my concern is, when [father] gets a referral in March to go get the hair follicle, why do we wait until last week to actually do that? We all know how we can get around those urine tests. It would have . . . alleviated all of our concerns if father could demonstrate that he could maintain sobriety for a certain amount of time, but we have no proof of that.”

The court opined that, even assuming father could show a recent negative hair follicle test, “I’m not sure how much that changes the scenario here, given the history of this case.” The court noted that the reports submitted by father’s counsel reflected that father had tested negative nine times but did not show the dates for those tests. The court also observed those same reports showed that father had once refused to test.

The court then observed: “In order for the Court to grant a JV-180 regarding changed circumstances and best interest, those are two prongs: Changed circumstances and best interest of the child. [¶] Changed circumstances is very difficult in your case, especially because your history of substance abuse is so deep and long and your recent sobriety is so short and limited, that the balance in case law is pretty clear that even—even if it’s true that you’ve been clean and sober for six months, the law’s pretty clear that that is not sufficient for changed circumstances. [¶] But let’s assume for argument’s sake there is sufficient changed circumstances. Then the next issue is what’s in the best interest of the child. [¶] We have a child that’s two years old, and when I evaluate the best interest of the child at that—at this stage, I could examine not just you, but I could also examine how the child’s been doing, whether or not the child’s with a sibling, things like that. [¶] I think it would be really difficult for anyone to find it’s in the best interest of the child for me to reunify you with the child. [¶] If I were to even grant the JV-180 the problem is you’ve also run out of time, because the case is one where the child has to be ready to go today in your care if I were to grant it.”

The court then asked father to come to the podium and explain how circumstances had changed and why it would be in E.M.’s best interest to change the order terminating father’s reunification services. Father stated that he had been an addict for a long time, he had been sober for eight months, he would continue to participate in a strong program, and his son could come home with him that day and be safe.

The court heard from the maternal aunt, who stated of father and E.M., “They’re close. They love each other. They do have—they do have a bond. [¶] . . . [¶] . . . I mean, [E.M.] loves his dad, there’s no doubt [E.M.] loves him, that’s why he comes—that’s why they still have the relationship that they do, is because he comes around . . . . [¶] . . . [¶] They were all at my house last night eating dinner, and [father] laid down with him, put him to sleep. [¶] . . . [Father’s]—he’s—he’s always been present, whether he was on drugs or not. He’s always shown up to the visits and they have been supervised. [¶] And I am sure the social worker would have said the same thing I’m saying. They love each other. That’s—they do love each other . . . .”

Father’s counsel argued: “I—in listening to the testimony—the statements today from everybody, including the [maternal aunt] and the father, I think it would—it would benefit this whole—the whole family if we didn’t march just to terminate the parental rights of my client and go directly to adoption.” Counsel argued for a legal guardianship.

The court observed that father had maintained regular visits, and there was a relationship between he and E.M. but questioned whether that relationship was sufficient to apply the beneficial parental relationship exception to termination of father’s parental rights: “I don’t see any evidence there being compelling reasons for finding it to be detrimental to the child. [¶] . . . [¶] Other than [E.M.] loves his father, I mean, honestly what is the compelling reason in this case to prevent this two-year-old child from having permanency and stability that the law requires me to do? I think that’s a problem. [¶] . . . [¶] . . . I think the overwhelming evidence is I don’t have a compelling reason here, legally speaking.”

The court denied the section 388 petition “because there [are] no changed circumstances.” The court found E.M. adoptable and terminated father’s parental rights.[6]

II. DISCUSSION

A. Section 388 Petition

Father contends the court erred in denying him a hearing on his section 388 petition.[7] The department responds that the court did hold a hearing on father’s petition.

Father replies that the court failed to hold an evidentiary hearing.[8] The department argues that, regardless, the court acted within its discretion in denying the petition. We agree with the department.

“To prevail on a section 388 petition, the moving party must establish that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child.” (In re J.T. (2014) 228 Cal.App.4th 953, 965.) “Under section 388, a party ‘need only make a prima facie showing to trigger the right to proceed by way of a full hearing.’ [Citation.] The prima facie showing is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. [Citation.] In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.] The petition must be liberally construed in favor of its sufficiency.” (In re J.P. (2014) 229 Cal.App.4th 108, 127.) “Section 388 thus gives the court two choices: (1) summarily deny the petition or (2) hold a hearing.” (In re Lesly G. (2008) 162 Cal.App.4th 904, 912; contra, In re G.B. (2014) 227 Cal.App.4th 1147, 1158, fn. 5 [allowing argument on whether the mother had made a prima facie case in a § 388 petition “benefitted her by giving her the opportunity to establish a record supporting her request for an evidentiary hearing.”].)

“The juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstance or new evidence and that modification would promote the child’s best interests. [Citations.] This is determined by the seriousness of the problem leading to the dependency and the reason for its continuation; the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and the nature of the change of circumstance, the ease by which it could be achieved, and the reason it did not occur sooner. [Citation.] After termination of services, the focus shifts from the parent’s custodial interest to the child’s need for permanency and stability. [Citation.] ‘Whether a previously made order should be modified rests within the dependency court’s discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established.’ [Citation.] The denial of a section 388 motion rarely merits reversal as an abuse of discretion.” (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)

“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, overruled on other grounds in Caden C., supra, 11 Cal.5th at p. 636.) Chronic substance abuse is generally considered a serious problem and, therefore, is less likely to be satisfactorily ameliorated in the brief time between termination of services and the section 366.26 hearing. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528, 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.”]; In re Amber M., supra, 103 Cal.App.4th at p. 686 [no abuse of discretion in denying § 388 petition where mother established only a 372-day period of abstinence]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [“[S]even months of sobriety since [the father’s] last relapse, while commendable, was not a new circumstance.”]; In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 [“To support a section 388 petition, the change in circumstances must be substantial. [Citation.] [The father’s] recent sobriety reflects ‘changing,’ not changed, circumstances.”].)

Even if the juvenile court errs in failing to hold an evidentiary hearing on a section 388 petition, that error will be held harmless unless there is a reasonable probability that in the absence of the error a result more favorable to the petitioner would have been reached. (In re J.P., supra, 229 Cal.App.4th at pp. 128-129 [harmless where juvenile court erroneously failed to hold a hearing on a § 388 petition]; In re G.B., supra, 227 Cal.App.4th at p. 1162 [erroneous denial of hearing on second § 388 petition harmless where hearing was granted on first petition and where petitioner failed to identify additional evidence she would present at hearing]; In re Victoria C. (2002) 100 Cal.App.4th 536, 544 [erroneous denial of hearing on § 388 petition harmless where juvenile court had considered evidence attached to petition in periodic review hearing].)

First, we disagree with father that the juvenile court denied him a hearing on his section 388 petition. The court heard, albeit not sworn testimony, statements from both father and the maternal aunt on the issues. The court and counsel discussed the merits of father’s petition before the court denied it. Thus, the juvenile court permitted father a de facto, if not a de jure, hearing on the merits of his section 388 petition.

Second, if father wanted an evidentiary hearing on the section 388 petition, he should have objected to the court’s ruling on the petition without one. We acknowledge that father’s counsel did request testimony: “Then I would like to have testimony, Your Honor, if that’s—since that seems to be appropriate at the moment.” However, father’s counsel had ample opportunity at the hearing to request that father and the maternal aunt be sworn and subject to examination or that father be permitted to produce additional evidence. His failure to do so forfeited any error. (In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962 [A “reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court.”].)

Third, father failed to demonstrate changed circumstances. Here, father failed to demonstrate that he had made any substantive progress with his substance abuse problem, which was the primary issue in the dependency proceedings with respect to him.

At the very beginning of the proceedings, the reporting party indicated a belief that father was using methamphetamine. Father admitted to a long history of methamphetamine use. He refused to test when the social worker first asked. Father had a criminal history, which included possession of controlled substances for sales.

Father later said he had been using methamphetamine since he was 15 years old but had been sober for seven days. An adult sibling of the children reported that father used methamphetamine and was a “‘functioning addict.’” The social worker asked father to submit to a hair follicle drug test; he refused. The juvenile court sustained two allegations (b-2 & b-5), which related to father’s substance abuse.

Although father had completed an inpatient drug program, he failed to complete a hair follicle drug test thereafter requested by the social worker, and he failed to show for a subsequent on-demand test. Father failed to show for an intake appointment when he was referred to an additional substance abuse program. When father finally submitted to a hair follicle test, he tested positive for methamphetamine and amphetamine. Thus, even after having completed an inpatient program, father relapsed.

Father thereafter failed to show for another on-demand test. A subsequent report that father had been clean for 44 days was based on father’s self-reporting.

At the disposition hearing, the court found that father had been struggling with substance abuse issues for more than 15 years and had been using off and on during the pendency of the juvenile proceedings. Father “is still dealing with his substance abuse issues, which places a child of this age at risk, just because of the age of the child.”

Father subsequently failed to maintain contact with the department in the interim between the disposition hearing and the section 388 hearing; thus, it was unknown whether he continued to make any progress with his substance abuse issues. The social worker had met with father on March 24, 2021, requesting he complete a hair follicle drug test. However, father had no further contact with the social worker until May 25. Father was then to have completed a hair follicle test by June 8; however, by the time of the hearing on his section 388 petition, no test results had been received.

The documents submitted by father’s counsel in support of his section 388 petition reflected father self-reported over six months of sobriety. Yet, even that report noted that he was “in an early remission from the previous diagnosis . . . .” He was reported to have tested negative nine times, with no dates given, but had refused one test.

Father ultimately failed to show any substantive evidence that he had been sober for any definitive period since the disposition hearing. Moreover, father had maintained some degree of contact with mother, even living with her, when mother had her own substance abuse issues; father had previously reported that such contact jeopardized his own sobriety. Thus, father failed to show changed circumstances, and the court acted within its discretion in denying father’s petition.

Fourth, father failed to show reinstatement of reunification services would have been in E.M.’s best interest. E.M. and his sister had been placed together with the maternal aunt on January 31, 2020. By the time of the section 388 hearing on June 15, 2021, E.M., then two-and-a-half years old, had been living with the maternal aunt for nearly 18 months, over half his life. Delaying the selection of a permanent home for E.M. to see if father, who had failed to reunify with E.M., might be able to reunify at some future point, did not promote stability for E.M. and was not in E.M.’s best interests. Fifth, even if the court erred in failing to hold an evidentiary hearing on father’s section 388 petition, any error was harmless because father “wholly fails to identify additional evidence [father] would have presented at an evidentiary hearing that would have established a right to reunification services.” (In re G.B., supra, 227 Cal.App.4th at p. 1164.)

B. Beneficial Parental Relationship Exception

Father contends the court erred in declining to apply the beneficial parental relationship exception to the termination of parental rights. He maintains the court relied on outdated authority in rendering its decision, and this court should review the ruling de novo. We disagree.

“[T]he goal at the section 366.26 hearing is ‘specifically . . . to select and implement a permanent plan for the child.’ [Citations.] To guide the court in selecting the most suitable permanent arrangement, the statute lists plans in order of preference and provides a detailed procedure for choosing among them. [Citation.] According to that procedure, the court must first determine by clear and convincing evidence whether the child is likely to be adopted. [Citation.] If so, and if the court finds that there has been a previous determination that reunification services be terminated, then the court shall terminate parental rights to allow for adoption. [Citation.] But if the parent shows that termination would be detrimental to the child for at least one specifically enumerated reason, the court should decline to terminate parental rights and select another permanent plan. [Citation.] As we have previously explained, ‘[t]he statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.’” (Caden C., supra, 11 Cal.5th at pp. 630-631.)

“The exception at issue in this case is limited in scope. It applies where ‘[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’ [Citation.] From the statute, we readily discern three elements the parent must prove to establish the exception: (1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child.” (Caden C., supra, 11 Cal.5th at p. 631.)

Here, the court found that father had met the first two prongs of the beneficial parental relationship exception; thus, we address only the third prong, detriment. “n assessing whether termination would be [i]detrimental, the trial court must decide whether the harm from severing the child’s relationship with the parent outweighs the benefit to the child of placement in a new adoptive home. [Citation.] By making this decision, the trial court determines whether terminating parental rights serves the child’s best interests.” (Caden C., supra, 11 Cal.5th at p. 632.) “Because terminating parental rights eliminates any legal basis for the parent or child to maintain the relationship, courts must assume that terminating parental rights terminates the relationship. [Citations.] What courts need to determine, therefore, is how the child would be affected by losing the parental relationship—in effect, what life would be like for the child in an adoptive home without the parent in the child’s life.” (Id. at p. 633.) “[T]he question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home.” (Id. at p. 634.)

“[W]hether termination of parental rights would be detrimental to the child due to the child’s relationship with his parent—is discretionary and properly reviewed for abuse of discretion.” (Caden C., supra, 11 Cal.5th at p. 640.) “A court abuses its discretion only when ‘“‘the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.’”’ [Citation.] But ‘“‘[w]hen 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.’”’” (Id. at p. 641.)

The court acted within its discretion in declining to apply the beneficial parental relationship exception to the termination of father’s parental rights. Although the evidence showed that father and E.M. were strongly bonded, father failed his burden of proving that termination of his parental rights would be detrimental to E.M.

E.M. and his sister had been placed together with the maternal aunt on January 31, 2020. By the time of the section 366.26 hearing on June 15, 2021, E.M., then two-and-a-half years old, had been living with the maternal aunt for nearly 18 months, over half his life.

The social worker noted E.M. was “thriving” in the maternal aunt’s care. The maternal aunt “ensure[d] all of [his] physical, emotional, developmental, and educational needs [were] met . . .” The maternal aunt was “ willing and able to provide permanency through adoption . . . .”

E.M. was “bonded to [the maternal aunt] and her adult children, and she ha[d] ensured all [E.M.’s] needs [were] met. Additionally, [E.M.] [had] strong connections to extended maternal family members . . . .” The maternal aunt’s “motivation for seeking adoption of [the children] [was] because they are related to her and she realize[d] that it is the only way to provide permanency for the children.” E.M. was too young to make a statement but “appears to be happy in his current placement and seeks the prospective adoptive mother in getting his needs met.” Father failed to show that E.M.’s relationship with him outweighed the benefit to E.M. of placement in a permanent and stable adoptive home with his maternal aunt and sister. The court acted within its discretion in declining to apply the beneficial parental relationship exception and terminating father’s parental rights.

Father’s contention that the court erred in applying outdated law fails because the court applied the correct law. The court made findings on each prong as outlined in, and predating, Caden C. The court found that father had maintained regular visitation and had a relationship with E.M., which benefited E.M. Nonetheless, the court found that there was no compelling reason to find that termination of father’s parental rights would be detrimental to E.M. Father’s complaint that the “compelling reason” language used by the court added an additional element to the law likewise fails. Caden C. expressly noted that the beneficial parental relationship exception “applies where ‘[t]he court finds a compelling reason for determining that termination would be detrimental to the child . . . .” (Caden C., supra, 11 Cal.5th at p. 631, italics added.) Father complains that the court improperly focused on his substance abuse when declining to apply the exception; however, our review of the record reveals the court only addressed father’s substance abuse when dealing with the section 388 issues, a proper area of focus. The juvenile court acted within its discretion in declining to apply the beneficial parental relationship exception and in terminating father’s parental rights.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

I concur:

FIELDS

J.

[In re E.M, E077588]

Slough, J., Concurring.

I agree with the majority’s decision to affirm the juvenile judge’s order terminating father’s parental rights over his two-and-a-half-year-old son, E.M. I disagree, however, with their refusal to address the judge’s own statement that she considered an improper factor in her analysis and misapplied the guidance articulated in In re Caden C. (2021) 11 Cal.5th 614, 630-631 (Caden C.).

Two months after the permanency planning hearing at which she terminated father’s parental rights, the judge held another hearing to inform the parties she believed she’d made a legal mistake. She explained that when she made the decision to terminate parental rights she had not yet read the California Supreme Court’s latest guidance on the parental bond exception, Caden C., which held, among other things, that “[a] parent’s continued struggles with the issues leading to dependency” cannot serve as a “categorical bar” to applying the parental bond exception. (Caden C., supra, 11 Cal.5th at p. 637.) She told the parties that after reading the opinion, she realized she’d been “focused on [father’s] substantial compliance with his case plan or sobriety issues as a factor,” and she asked the parties for an opportunity to reconsider whether the exception applied.

Unsurprisingly, the transcript of this hearing forms the basis of father’s challenge to the termination of his parental rights on appeal. Also unsurprisingly, both parties quote and discuss the transcript at length in their briefs. What I am surprised by, though, is the majority’s response. Buried in a footnote that chides father for bringing the transcript to our attention, they refuse to consider the judge’s statements on the ground the statements constitute “postjudgment evidence” under In re Zeth S. (2003) 31 Cal.4th 396, 413. (Maj. Opn. ante, at p. 16, fn.6.)

First of all, even if the judge’s statements qualified as “evidence”—which they clearly don’t—Zeth S. tells us to consider any postjudgment evidence that “stands to completely undermine the legal underpinnings of the juvenile court’s judgment under review, and all parties recognize as much.” (In re Zeth S., supra, 31 Cal.4th at p. 413, fn. 11.) Obviously, a judge’s statement that they misapplied the relevant law in reaching their ruling undermines the legal underpinnings of that ruling. So even under the majority’s rubric, we should consider the transcript.

More fundamentally, though, a transcript containing a trial judge’s statement that a previous ruling was erroneous is not evidence. It’s an official court record subject to permissive judicial notice under Evidence Code section 452, subdivision (d). And here, because father provided us with a copy of the transcript and both parties reference the statements in their briefs, Evidence Code section 453 requires us to take judicial notice of the transcript. But even if judicial notice weren’t compulsory under these circumstances, I believe it would still be incumbent on us to address the judge’s concern that she committed legal error. I therefore write separately to address her concern, and explain why I conclude her mistake was harmless and her analysis of the parental bond exception complied with Caden C.

To begin with, nothing in the transcript of the permanency planning hearing suggests the judge considered—let alone focused on—father’s struggles to remain sober in analyzing whether the parental bond exception applied. The judge did consider father’s methamphetamine addiction and recent relapse during a different part of the hearing, though, and perhaps that portion of the transcript was the catalyst for her concern. It is clear, however, from both context and the judge’s explicit statements, that her discussion of father’s sobriety pertained to his Welfare and Institutions Code section 388 petition only. This leaves the possibility the judge was silently focused on father’s issues with substance abuse when deciding whether the parental bond exception applied. Even under that scenario, I see no error in her analysis.

Caden C. clarified that while a parent’s struggles with the issues that led to the dependency can never be the sole basis for determining whether the parental bond exception applies, they can be a factor in the analysis, “to the extent they inform the specific questions before the court: would the child benefit from continuing the relationship and be harmed, on balance, by losing it?” (Caden C., supra, 11 Cal.5th at p. 638.) In this case, father’s long-standing methamphetamine addiction is the reason E.M. could not safely live with him when he was detained at the age of one. And although we don’t know how much of that first year E.M. spent in father’s care, even if it was the full year, the child still spent much longer than that in foster care.

Father’s struggle to stay sober is also what kept him from visiting E.M. in foster care on multiple occasions, and sometimes for months at a time. When a child is as young as E.M., prolonged absences and missed visits can have a significant effect on the parent-child bond. Here, the only evidence before the judge regarding the strength and nature of that bond was the maternal aunt’s statement that she could tell father and E.M. “do love each other” during the visits she supervised.

Given the brief time father and E.M. have spent together (both before and during the dependency), the judge’s conclusion that father had failed to show his son would be harmed by being freed for adoption was reasonable and amply supported by the record. Despite the judge’s concern, I find the record clear on this point: she did not contravene Caden C. by treating father’s methamphetamine addiction as the basis for terminating his parental rights. I am also satisfied that to whatever degree she did consider father’s substance abuse issues, she did so to assess the ultimate question of whether E.M. would be harmed by losing the relationship, and not as a way of “assigning blame [or] making moral judgments” about his fitness as a parent. (Caden C., supra, 11 Cal.5th at p. 638.) At many points in the hearing, she commended father for making progress on his addiction after reunification services had been terminated and acknowledged he was a loving parent.

Thus, for all of these reasons, I find the judge’s concern ultimately unwarranted. But I also find it commendable. It’s never easy to admit you made a mistake, but it takes reflection and courage to do so when stakes and emotions are high, as they are after the termination of parental rights. While the mistake the judge admitted to here was harmless, that won’t always be so, which is why I believe we should acknowledge and address legal concerns trial judges raise about their decisions. The majority’s approach of treating such concerns as “postjudgment evidence,” in contrast, would only discourage judicial candor.

SLOUGH

J.

[1] All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

[2] Neither J.C. nor mother are parties to the appeal.

[3] J.C.s father had been convicted of murder and was ineligible for parole until 2040. The court denied J.C.’s father reunification services pursuant to section 361.5, subdivisions (b)(12) and (e)(1). J.C.’s father is not a party to the appeal.

[4] The amended juvenile dependency petition made minor changes to the allegations and added an allegation the mother neglected the health of the children by leaving them in father’s care while knowing he was abusing methamphetamine (b-5).

[5] Father’s counsel provided no actual test results or the dates of the tests.

[6] On August 11, 2021, the department filed points and authorities in objection to the court’s apparent intent to vacate its order terminating father’s parental rights. The court held a hearing, that same day, at which it indicated it had e-mailed the parties of its intent to vacate the order terminating father’s parental rights because it had not considered the, then, new case of In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) The department cited section 366.26, subdivision (i)(l), contending that the court had no power to vacate the order. The court agreed. On October 13, father filed a motion in this court, pursuant to Code of Civil Procedure section 909, requesting we take judicial notice of the transcript of the August 11 hearing. We deny the motion. (In re Zeth S. (2003) 31 Cal.4th 396, 413 [Consideration of postjudgment evidence in juvenile dependency appeals is violative of generally applicable rules of appellate procedure.].)

[7] Father also contends that the discussion of the sections 388 and 366.26 issues at the June 15, 2021, hearing was so conflated that, “t is difficult to determine upon what the court was relying given the intermingling of the discussion of the elements that needed to be proven at each of the two separate hearings.” Father maintains that sections “388 and 366.26 hearings are distinctly different, they cannot be ‘combined’ much like jurisdiction and disposition are separate hearings which may have shared relevant evidence but require different findings by different standards of proof.” We note that juvenile courts frequently hold combined sections 388 and 366.26 hearings during which the court hears evidence for both purposes at one time and then renders separate rulings. (See e.g. [i]Kemper v. County of San Diego (2015) 242 Cal.App.4th 1075, 1082, 1092; In re A.L. (2010) 190 Cal.App.4th 75, 78.) We agree that the juvenile court moved back and forth between the two issues rather than taking them one at a time. We disagree that it is unclear which issue the court was addressing; ultimately, however, as we shall discuss post, any error on the section 388 issue was harmless.

[8] Father argues that nothing was formally admitted into evidence at the hearing on the section 388 petition; therefore, there was no evidence upon which the court could have relied in its ruling. We note the department filed a response to the JV-180 petition on June 10, 2021, and formally submitted on that report at the June 15 hearing. The court subsequently stated, “Okay.” We regard this as sufficient to be deemed an admission of the report into evidence. Moreover, the court also later noted it was relying on the “reports.” The court also expressly relied on the reports submitted by father’s counsel, which father’s counsel never formally attempted to move into evidence.

We acknowledge that this court recently held that the “ritual” offer of reports into evidence and the juvenile court’s subsequent admission of them “is no mere formality.” (In re L.A.-O. (2021) 73 Cal.App.5th 197, 208.) Therefore, “at the beginning of a dependency hearing, counsel for the social services agency typically offers specified reports into evidence and the juvenile court typically admits them. The juvenile court then asks the parties if they have any other evidence, and if so, it admits that, too. The repetition of this ritual may numb the participants to its significance, but it is no mere formality. It allows everyone concerned—including this court—to focus on a shared body of facts.” (Id. at pp. 207-208.) Nonetheless, here, there is no concern about what “shared body of facts” upon which the parties and the court were relying at the hearing. (Ibid.) Furthermore, father only raises this issue in his reply brief. “‘“t is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party.”’” ([i]People v. Silveria and Travis (2020) 10 Cal.5th 195, 255.)