Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court No. CK41682 of Los Angeles County. Marilyn H. Mackel, Referee.
Andre F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant.
Robert Kalunian, Acting County Counsel, Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Senior Deputy County Counsel, for Plaintiff and Respondent.
BIGELOW, P. J.
INTRODUCTION
E.M. (father) appeals from a juvenile court order denying his Welfare and Institutions Code section 388 petition for modification, and the court’s order terminating his parental rights under section 366.26. We affirm the juvenile court orders.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2007, then two-year-old E.M. was living with her mother, S.D. In mid-November, mother was found unconscious in her apartment. Mother was rushed to the hospital. The Department of Children and Family Services (DCFS) detained E.M. Mother died of a cerebral aneurism less than two weeks after she was hospitalized.
DCFS filed a petition alleging jurisdiction over E.M. was necessary due to mother and father’s history of violent altercations, mother’s seven-year history of substance abuse, mother’s severe medical problems, father’s long history of illicit drug abuse, and mother’s failure to provide E.M. with the basic necessities of life and proper supervision.
Prior to mother’s death, father and mother did not have a formal visitation arrangement, but father usually took E.M. each weekend. Father told DCFS he was aware of mother’s history of drug use, but he did not believe she was using drugs at the time of the hospitalization. Father said he would not have allowed mother to take E.M. had he known she was using drugs. In the past, father primarily cared for E.M. and he only returned her to mother two or three months earlier because she appeared to be sober and doing well. While E.M. was in father’s custody, his adult daughter took care of her some of the time at her own home, including while father was incarcerated for violating his parole.
Father told DCFS he had been sober for the past eight years and that most of his criminal history concerned incidents before 1999. In 2005, father was convicted of one misdemeanor charge of battery arising out of an altercation with mother. According to father, in 2007 he was incarcerated after violating a restraining order requiring him to stay away from mother.
DCFS placed E.M. with her maternal cousin. At a November 2007 detention hearing just before mother died, the juvenile court ordered DCFS to provide reunification services to father including “domestic violence counseling, parenting, drug rehab with random testing and individual counseling.” Father was allowed monitored visits.
Prior to a scheduled January 2008 jurisdiction hearing, father did not show up for random drug testing. Father informed DCFS that he had been prescribed marijuana to treat depression and insomnia, and he had not submitted to a drug test because he knew the marijuana was still in his system. Father indicated that in the future he would rely on psychiatric treatment and psychotropic medications instead of medical marijuana, and that he was willing to do anything to have E.M. returned to him.
In its January 2008 jurisdiction report, DCFS reported that father cared deeply for E.M. and he made efforts to ensure her safety and care prior to the detention. However, DCFS noted father had at least two domestic violence incidents with mother, and father failed to provide proof of his past or present participation in a domestic violence program. Father acknowledged he had an extensive history of drug use and criminal activities, but he was adamant that he had not used drugs in almost nine years. Father said he completed two substance abuse programs, but he did not provide DCFS with proof that he participated in or completed the programs. DCFS recommended that father participate in random drug testing to confirm his sobriety. DCFS took the position that E.M.’s health and safety would be jeopardized if she were released to father.
Father participated in mediation with DCFS. He agreed to submit on a petition with amended allegations that: (1) he knew of mother’s drug abuse and failure to make adequate plans for E.M.’s care and he failed to protect E.M.; and (2) on at least one occasion E.M. was exposed to a physical altercation between mother and father and such domestic violence in her presence placed her at risk of harm. At a February 2008 jurisdiction hearing, the juvenile court asserted jurisdiction over E.M. under section 300, subdivisions (b) and (g), based on the allegations the parties had agreed to at mediation. The court ordered father to provide eight clean consecutive random drug tests. If he missed a test or submitted a dirty test, he was to participate in a substance abuse program with random testing. Father was to follow the terms of his probation, including domestic violence counseling. The court additionally “recommended” that father enroll in a fatherhood group.
In April 2008, the parties appeared for a progress report. According to DCFS, father was not in full compliance with the case plan. Father had completed 33 of 52 domestic violence classes, and was visiting E.M. regularly. He had moved to a two bedroom apartment that was neat and well-kept. However, he missed several random drug tests and had one positive test for cannabinoids. He did not have eight consecutive clean random drug tests. Father had not enrolled in parenting education classes or individual counseling. The court continued E.M.’s placement until father completed the court-ordered programs. The court ordered father to enroll in a full drug treatment program and advised that DCFS had discretion to liberalize his visits with E.M. so long as he was submitting clean drug tests. The court again “strongly recommend[ed]” that father enroll in a fatherhood class.
By the next status review in July 2008, father had enrolled in a 30-day inpatient substance abuse treatment program. Although he had regular contact with E.M. by telephone, his visits were not consistent. DCFS did not liberalize to unmonitored visits because father had “not submitted to any drug testing.” Father did not visit with E.M. for approximately five weeks; according to DCFS, father indicated he had not visited because he was “busy with ‘things.’” Father enrolled in parenting classes but had not yet attended any. In the meantime, E.M. and her maternal cousin caregiver had developed a positive bond. The cousin expressed an interest in adopting E.M. The court found father was in compliance with the case plan, gave DCFS discretion to liberalize visits, and ordered father to enroll in a fatherhood group as his parenting class. The court set a hearing pursuant to section 366.21, subdivision (f) for January 2009.
In its report for the 366.21, subdivision (f) hearing, DCFS reported that father was not submitting to random drug testing because he did not understand the court to have ordered him to do so at the previous hearing. Father was also inconsistent in his visits with E.M. between July and November 2008. According to the maternal cousin caretaker, father did not take the initiative to schedule visits or provide his own transportation to visits. However, father reported that between November 2008 and mid-January 2009, he visited E.M. every weekend-excepting two weekends-and the cousin provided transportation for E.M. to facilitate the visits. Father told the DCFS social worker he had enrolled in a fatherhood group but he could provide only the address of the facility where the group was held but not the name of the agency sponsoring the group or the name of the group facilitator. The social worker was subsequently unable to locate the facility in person. At the hearing, the court questioned why father had not enrolled in the fatherhood class until November 2008, when the court had ordered that he go in July. The court found father was not in substantial compliance with the case plan, and set a contested hearing under section 366.21, subdivision (f) for March 2009.
At the contested March 2009 hearing, father testified. He described the inpatient substance abuse program he had completed and his participation in the fatherhood group. Since learning that he was supposed to continue with random drug tests, father testified he called every day to determine whether he was to submit to a test, and had only been called in once. Father also described his visits with E.M. which, since November, had taken place fairly regularly every weekend. According to father, E.M. called him “daddy, ” and was happy to see him. At visits, they talked, read stories to each other, and E.M. recited the alphabet and numbers. The two ate, went shopping, and went to amusement parks. E.M. occasionally visited father at his home and he prepared meals for her. Father had a full-time job, and lived in a two bedroom apartment with one room reserved for E.M. that held a bed, toys, and clothes for her.
Father testified he wanted E.M. returned to his care and explained that he had always been involved in her life. He admitted he may have been “a little slow with the process, ” and that he “should have been more assertive in the past, ” but he proclaimed he was now “up on it.” On cross-examination, father admitted that prior to November 2008, his visits were sporadic. When asked to explain why, he responded he did not know; he did not think it was a big problem.
DCFS recommended that additional reunification services be provided to father. E.M.’s counsel requested that reunification services be terminated. The court noted that it appeared father had only begun to substantially comply with the case plan in the few months preceding the contested hearing, and further the court was troubled by father’s testimony which displayed to the court a “lackadaisical” attitude about seeing E.M. regularly and the case plan. The court found father had not done what he needed to parent E.M., he did not appear serious about being a parent to E.M., and father was not in substantial compliance with the case plan. Although father had submitted a prescription for medical marijuana, the court was “not impressed” since the prescription was issued as of January 2009, and father had never submitted any earlier prescriptions. The court terminated reunification services, but recommended that father continue reunification efforts on his own. The court set a hearing under section 366.26 for the end of June 2009.
On June 24, 2009, father filed a petition under section 388 requesting modification of the juvenile court’s orders terminating reunification services and setting the section 366.26 hearing. On June 30, 2009, DCFS filed a section 366.26 report. DCFS reported E.M.’s maternal cousin was committed to adopting E.M. E.M. was very comfortable with the maternal cousin and referred to her as “mommy.” DCFS also reported that E.M. had “minimal contact” with father.
DCFS’s August 2009 status review report indicated father submitted random drug tests in March, and May through August, several of which were positive for marijuana. According to the maternal cousin, father had not maintained regular in-person or telephone contact with E.M. In addition, the cousin reported she had to transport E.M. to visits with father as he indicated he did not have transportation to visit at the cousin’s home. Father also did not show up on at least one occasion for a visit but did not first call to cancel. Father did not respond to the cousin or E.M.’s telephone messages regarding the missed visit. That night, E.M. told the maternal cousin, “maybe Daddy got stuck in traffic.”
Father’s section 388 petition was heard in October 2009. Father again testified. Father had attended Alcoholics Anonymous or Narcotics Anonymous for around one year. He had participated in a fatherhood program since November 2008. He also saw a therapist at least once every three months. Father also regularly took medication, and used marijuana pursuant to a prescription. Father had submitted to random drug testing, but stated he did not know a test that was positive for marijuana would be considered a dirty test. However, father said he had stopped using marijuana over a month earlier. Father testified he had a very close relationship with E.M. E.M. asked if he missed her when he called, and she told him she wanted to “come home” and spend the night at his house. Father tried to call E.M. at least three times each week and the two discussed E.M.’s day, what she was learning, and her activities. On several occasions, father took E.M. to a park near the maternal cousin’s house, unmonitored. Father visited E.M. at least once a week, but he said that on several weekends E.M. was busy with the maternal cousin so he was unable to have a visit. He had not mentioned this problem to the DCFS social worker.
Father admitted he was “getting burned out” visiting E.M. at the maternal cousin’s home. He said his visits were to see his daughter, not to visit with the family: “I just want to see my daughter, to be honest it keeps me from going over there sometimes. I am really frustrated. I am tired of this whole situation.” Father testified he had learned in his fatherhood group that he should have visited E.M. regardless of the frustration, and he had talked to his psychologist about his problems. Father stated he loved E.M. and knew she loved him, and they told each other all the time. Father admitted he missed E.M.’s first day of school, explaining that the maternal cousin told him what time they would leave the house for school; although father arrived within that time period, the maternal cousin and E.M. had already left and the cousin did not answer her cell phone.
The maternal cousin-and prospective adoptive parent-also testified. According to the cousin, father’s visits with E.M. were usually on a Saturday or Sunday after the cousin and E.M. returned from church. She indicated she cancelled visits a couple of times “when we wanted to do something on a Saturday or we had something planned with church, ” or they had not been able to get home in time for a visit. She testified that E.M. knew father, father was “compassionate, ” and the two communicated well during visits. However, the cousin reported it had been two and a half or three weeks since father’s most recent visit, in part because father missed the first day of school. According to the cousin, she told father to be at her house at a certain time to leave for the school. The cousin and E.M. left the house at a few minutes past the scheduled time and father had not yet arrived. Father left a message on the cousin’s phone but she had left the phone in her car.
When asked about her concerns regarding father, the cousin cited father’s marijuana use and his lack of consistency. She explained:
“I am not going to say it’s all financial, just with the communication of the visits, being committed wholeheartedly, 100 percent. She is a young child. It’s not just a visit one day here one day a week. I expected a little bit more. You know if the car broke down, catch the bus, everyday or if you have to or come. I expected a little bit more. It’s not a playful thing. It’s a lot of work to raise a child. I have much more active involvement with what she is doing, where she is going, some summer activities, you know. She is not the type of girl who could sit in the house. She is a very busy girl.... [¶] Her church, we have invited him to church. He came one time to church. She is at church every Saturday and Sunday, just to be around her more and being a little bit more proactive with her development and her growth.”
The court denied the section 388 petition and stated it shared the maternal cousin’s concern that “when parents are ready to have their children in their care, or even ready to reunify at this hour of the hearing so-to-speak they are stepping up, taking advantage of every opportunity without excuses.... [T]he bottom line here is that the father really hasn’t shown throughout the pendency of this case that he is ready to take care of a child 24 hours a day, seven days a week, or that he’s ready to have services rendered to him that would result in the return of the child or that it’s even appropriate for the court [to] consider that which he’s requesting under the 388.... He simply hasn’t shown changed circumstances such that it would be in the best interest of the child to grant the 388.”
The court further concluded E.M. was adoptable and adoption was the appropriate plan for her. The court rejected father’s argument that the exception to termination of parental rights under section 366.26, subdivision (c)(1)(B)(i) applied. The court determined father’s visits were inconsistent. It further concluded father’s relationship with E.M. was more of a friend rather than parent relationship and “there is no bond between the two of them that where the child would suffer greatly for the court to terminate parental rights.”
This appeal followed.
DISCUSSION
I. The Juvenile Court Did Not Abuse its Discretion in Denying the Section 388 Petition
“Section 388 states in pertinent part that a parent may ‘upon grounds of change of circumstances or new evidence, petition the court... for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.’ (§ 388, subd. (a).) The juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstances or new evidence and that the modification would promote the best interests of the child. [Citation.] This is determined by the seriousness of the reason for the dependency and the reason the problem was not overcome; the relative strength of the parent-child and child-caretaker bonds and the length of time the child has been in the system; and the nature of the change in circumstances, the ease by which the change could be achieved, and the reason the change was not made sooner. [Citations.] Whether an order should be modified rests within the sound discretion of the juvenile court, and its decision will not be disturbed on appeal absent a clear abuse of discretion. [Citations.]” (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447 (Aaliyah R.); In re S.R. (2009) 173 Cal.App.4th 864, 870.)
We find the trial court did not abuse its discretion in denying father’s section 388 petition. The only changed circumstances father identified were his increased compliance with the case plan. However, in the seven months between the court’s order terminating reunification services and the hearing on the section 388 petition, father still failed to develop a consistent visitation schedule with E.M., and it appears he never tried to visit more than once per week. Father admitted he sometimes allowed his frustration with the dependency process and monitored visits to prevent him from visiting E.M. The juvenile court could reasonably conclude based on this admission and father’s inconsistent visits that father was still not ready to be a full-time parent, despite his increased compliance with the case plan.
In addition, while father made significant efforts to more fully comply with the case plan, by the time of the section 388 hearing, E.M.-only four years old-had already been a dependent child for well over a year and a half. During that time period, father failed to reunify with E.M., and until the last few months of that period, he was concededly slow and inconsistent about following the juvenile court’s orders and recommendations. Although father was at times uncertain about what was required of him and was frustrated with the process, for much of the time he did not consult the DCFS social worker to discuss these issues, or seek other information or resolution elsewhere. This was consistent with what the trial court had previously deemed a “lackadaisical” attitude about seeing E.M. regularly and the case plan. In short, we cannot conclude the juvenile court’s denial of father’s section 388 petition “ ‘transgress[ed] the confines of the applicable principles of law....’ ” (In re B.D. (2008) 159 Cal.App.4th 1218, 1228 (B.D.).)
Father contends the juvenile court erred by applying a “simple best interests test” and by failing to consider the relevant factors identified in such cases as Aaliyah R., and mentioned above. However, we have no reason to believe the juvenile court did not consider these factors, and we are mindful of the fundamental principle that on appeal we presume the juvenile court has followed the law. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563.) Moreover, the court’s explanation of its ruling can fairly be interpreted as touching on the relevant factors. The dependency was initiated in part because of father’s failure to protect E.M. from mother’s neglect. His less than consistent involvement in E.M.’s life after she was declared a dependent child was a continuation of that problem. Thus, we disagree that the juvenile court denied father’s section 388 petition without considering the relevant factors.
II. Substantial Evidence Supported the Court’s Finding that the Beneficial Relationship Exception Did Not Apply
Under section 366.26, subdivision (c)(1), the juvenile court must terminate parental rights if it finds by clear and convincing evidence that it is likely the child will be adopted if parental rights are terminated, unless the court determines termination of parental rights would be detrimental to the child based on one of several statutory exceptions. (§ 366.26, subd. (c)(1)(B).) The party challenging termination of parental rights bears the burden of proving that one or more of the statutory exceptions applies. (In re S.B. (2008) 164 Cal.App.4th 289, 297 (S.B.).) We review the juvenile court’s findings under section 366.26, subdivision (c)(1)(B) for substantial evidence. (B.D., supra, 159 Cal.App.4th at p. 1235; In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333-1334.)
Reviewing courts traditionally have adopted a substantial evidence standard of review when considering a juvenile court’s finding under section 366.26, subdivision (c)(1)(B). (See B.D., supra, 159 Cal.App.4th at p. 1235.) Although the court in In re Jasmine D. (2000) 78 Cal.App.4th 1339, applied an abuse of discretion standard of review, the court noted that the practical differences between the two standards are not significant in that both require deference to the juvenile court’s findings. (In re Jasmine D., at p. 1351.) We apply the substantial evidence test in this case. However, under either standard of review we would affirm the juvenile court order.
Father contends the “beneficial relationship exception” under section 366.26, subdivision (c)(1)(B)(i) applied to this case. To establish the exception, father had to prove that termination of parental rights would be detrimental to E.M. because (1) he maintained regular visitation and contact with her, and (2) E.M. would benefit from continuing her relationship with father. (§ 366.26, subd. (c)(1)(B)(i).) The second prong of this test requires that the parent prove “the relationship [with the parent] 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 (Autumn H.).) The court considers factors such 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 the interaction between the parent and the child, and (4) the child’s particular needs.’” (In re Helen W. (2007) 150 Cal.App.4th 71, 81, citing In re Angel B. (2002) 97 Cal.App.4th 454, 467.) “The parent must do more than demonstrate ‘frequent and loving contact [, ]’ [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a ‘parental role’ in the child’s life. [Citations.]” (In re Derek W. (1999) 73 Cal.App.4th 823, 827; see also B.D., supra, 159 Cal.App.4th at p. 1234.)
Section 366.26, subdivision (c)(1)(B)(i) provides that once the court has determined a dependent child is likely to be adopted, the court shall terminate parental rights unless “[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.”
Substantial evidence supported the juvenile court’s conclusion that the beneficial relationship exception did not apply. There was evidence that father’s visits were inconsistent in that sometimes several weeks passed in which he did not see E.M. There was also evidence that father did not see E.M. as often as allowed, instead contenting himself with visits once per weekend. In addition, while father’s relationship with E.M. was undisputedly loving, substantial evidence supported a determination that father did not occupy a parental role in E.M.’s life. While father called E.M. frequently on the telephone, he let his frustration with the dependency process interfere with a regular visitation schedule. Father never progressed beyond monitored visits. He often had to rely on the maternal cousin to provide transportation for the visits. Father did not take the initiative to be involved in E.M.’s life in the way a full-time parent would. For example, he asked no one about E.M.’s development and thus did not know that early on in the dependency she had some physical delays. Similarly, although father attempted to be present at E.M.’s first day of school, he did not know where the school was located and therefore missed the entire event when the maternal cousin did not answer her cell phone.
Moreover, it took father several months and more than one juvenile court hearing to understand what the case plan required of him. He delayed in providing documentation to DCFS that showed his participation in past substance abuse programs, and his prescription for marijuana. Father’s delays demonstrated he had not adopted a parental role in that he only belatedly took the steps necessary to have E.M. returned to his care and repeatedly failed to take the initiative to determine what was required of him.
S.B., supra, 164 Cal.App.4th 289, upon which father relies, illustrates the kind of parental behavior and relationship for which the exception applies. In S.B., when the child was removed from the father’s care he “immediately recognized that his drug use was untenable, started services, maintained his sobriety, sought medical and psychological services, and maintained consistent and regular visitation with S.B. He complied with ‘every aspect’ of his case plan.” (Id. at p. 298.) The same may not be said of father in this case. Only after many months and several court appearances did father substantially comply with the case plan. In S.B., the child was unhappy when visits with the father ended, she tried to leave with the father, she initiated physical contact with the father, and spontaneously said she wished she lived with the father. (Ibid.) Here, there was evidence that E.M. enjoyed visits with father, was affectionate with him, and asked to call him. But the evidence did not indicate E.M. would suffer harm or detriment if the relationship with father was severed. (Aaliyah R., supra, 136 Cal.App.4th at p. 450.) Further, there was evidence that E.M. had developed a strong bond with the maternal cousin caretaker, who for almost two years had acted as E.M.’s parent while E.M. was between the ages of two and four. Based on the evidence before it, the juvenile court could reasonably conclude father did not establish that his positive relationship with E.M. promoted her well-being to such a degree as to outweigh the well-being she would gain in a permanent home with new, adoptive parents. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
“ ‘A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need for a parent.’ [Citation.]” (In re Jason J. (2009) 175 Cal.App.4th 922, 937.) The trial court did not err in finding the beneficial relationship exception did not apply.
DISPOSITION
The juvenile court’s orders are affirmed.
We concur: FLIER, J., GRIMES, J.