In re D.D.

Filed 6/25/08 In re D.D. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from an order of the Superior Court of Orange County, Carolyn Kirkwood, Judge. Affirmed.

Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.

* * *

David M. (father) appeals from an order of the juvenile court terminating his parental rights over his son, Z., who is now four and one-half years old. (See Welf. & Inst. Code,  366.26 [providing for termination]; all further undesignated section references are to this code.) Father contends the juvenile court erred in denying, after a full evidentiary hearing, his modification petition seeking supervised custody of Z. and his half sister, D. D. or, in the alternative, increased visitation. ( 388.) Father also argues the juvenile court erred in failing to apply the benefit exception ( 366.26, subd. (c)(1)(B)(i) [former  366.26, subd. (c)(1)(A)]) to avoid terminating his parental rights. Finding no basis to overturn the trial courts conclusions, we affirm the order denying fathers modification petition and terminating his parental rights.

I

FACTUAL AND PROCEDURAL BACKGROUND

Anaheim police officers placed then one-year-old Z. and three-year-old D. D. into protective custody on December 14, 2004, after Angela D. (mother) attempted suicide by jumping off a third-floor balcony. Mother was placed on a psychiatric hold at a local hospital, and the officers transported the children to Orangewood Childrens Home. Social workers for Orange County Social Service Agency (SSA) uncovered mothers troubled mental health history, including recurrent bouts of suicidal ideation intertwined with illicit drug use and bipolar, schizophrenic, depression, and adjustment disorders. SSAs investigation also revealed 16 child welfare referrals pertaining to mother, in whose care father left Z. Father left Z. with mother after Long Beach police officers arrested him for child endangerment when he passed out on a sidewalk, leaving one-month-old Z. face down on the ground 200 feet away.

When they were together, father battered mother in repeated incidents of domestic violence, including an episode during mothers pregnancy with Z. in which father choked mother and pushed her out of her vehicle. Fathers criminal history included convictions for willful cruelty to a child before Z. was born, spousal battery, cohabitant abuse, terroristic threats, malicious vandalism, resisting a public officer, driving under the influence, assault on a peace officer, possession of narcotics for sale, possession of a stolen motor vehicle, aggravated battery, assault upon a corrections employee, and attempted escape. He was also convicted of willful cruelty to a child based on the Long Beach incident with Z.

Father failed to contact SSA until nearly three months after Z. entered protective custody. Father denied he had ever been arrested and claimed he never used drugs or alcohol. According to father, he knew nothing of mothers drug or mental health history. Father sought to have Z. placed with him in South Carolina, but dependency authorities there recommended against the request based on fathers criminal history. According to a maternal aunt, [t]he only thing that [father] wants is [mother], and he thinks that if he gets Z[.] that [mother] will want to be with him. The juvenile court sustained jurisdiction over Z. and D. D. in May 2005, and placed them with a great aunt and uncle.

Fathers case plan included domestic violence and parenting education programs, plus substance abuse testing. Through November 2005, father maintained only sporadic contact with SSA and failed to attend the classes coordinated with South Carolina resource providers. South Carolina authorities recommended against placing Z. with a paternal aunt there because her home could not accommodate any more foster children. By January 2006, a social worker noted father had been terminated from his programs based on non-participation, frequent absences without excuse, argumentative behavior, lack of drug testing, and not accepting responsibility for his actions. Father also failed to attend most of his alcohol counseling meetings. Father missed three drug tests in May 2006 and an early June test came back positive for cocaine. Father attributed the positive test to pain medication.

Meanwhile, father had periodic monitored visitation with Z. and D. D. when he traveled to California. The childrens caretakers reported his presence sometimes confused the children, who frequently did not recognize him. The children acted out after some of fathers visits. Father also called the caretakers home many times a week to speak to the children, subjecting the caretakers more than once to angry, hostile messages on their answering machine. After 18 months of dependency, the juvenile court terminated reunification services in June 2006, citing fathers unpersuasive explanation for his positive drug test, his troubling criminal background and substance abuse issues, and his continued belligerence. The court, however, agreed to maintain funding for fathers services, contingent on his participation and compliance.

Father took up residence in California again, only to be promptly arrested for a probation violation in August 2006. The juvenile court postponed the October permanent plan selection and implementation hearing (.26 hearing) so SSA could locate a prospective adoptive family for Z. and D. D. A social worker reported fathers visits were largely positive. The juvenile court placed Z. and D. D. with Jose and Irene G. (the G.s) in December 2006.

The court denied fathers February 2007 modification petition seeking increased visitation. Monitors reported fathers visits were generally enjoyable for the children, but observed father discussing the case with the children against the juvenile courts orders, asking them, for example, to pray that Daddy can get them back soon at a March 2007 visit. Father had to correct Z. when the child called him by his first name instead of Daddy. Father struggled to maintain discipline between the children, and a late April visit saw Z. refuse to greet father and then repeatedly hit him while in the reception area. The G.s confirmed the earlier caretakers observation that the children never asked about father between visits and did not display any outward signs of missing him.

The G.s bonded quickly with the children, who reciprocated joyfully, expressing their desire to live with Jose and Irene as their forever home. The G.s fully committed to adopting both Z. and D. D., who were very attached to each other, D. D. being especially protective of her younger brother.

Father consistently tested negative for drugs May through August, but the lab noted that father provided diluted samples. Z. resisted some visits with father. A social worker became concerned when father initially refused her repeated requests to relinquish Z., and she believed father coached Z. to say he did not want to end the visit. Father berated the worker after she inquired about his substance abuse program on another visit. Father continued to struggle to control Z.s behavior on some visits.

Father filed a modification petition in May 2007 seeking supervised custody of the children, and he refiled the petition with amendments in August after obtaining new counsel. Fathers new petition sought increased visitation if the court did not grant him custody. The court scheduled the hearing to coincide with the .26 hearing in October 2007. In the interim, fathers visits followed an emerging pattern: pleasant overall, but with father sometimes demonstrating difficulty controlling Z.s behavior and disciplining the children, and Z. stating on occasion he did not want to attend a pending visit. When a worker interviewed the children in late August, neither mentioned father except that Z. reported it made him sad to have to go to visits. A visitation monitor confirmed another pattern: when redirected, father would defy, ignore and become agitated with the monitor.

At the October 2007 hearing, father denied he became angry when Z. and D. D. referred to their caretaker as mommy, testified to his love for the children and his desire to make a home for them, pointed to school projects to explain his dramatic[] dropoff in substance abuse counseling, introduced favorable testimony from several visitation monitors, and presented character witnesses, including his therapist, pastor, and great-grandmother. The juvenile court denied fathers modification petition, terminated parental rights, and father now appeals.

II
DISCUSSION

A. The Trial Court Did Not Err in Denying Fathers Modification Petition

Father contends the trial court erred by denying his custody modification petition. Section 388, subdivision (c), provides that [i]f it appears that the best interests of the child may be promoted by the proposed change of order . . . , the court shall order that a hearing be held . . . . A change of order presupposes a change of circumstances affecting the childs best interests. A juvenile court order may thus be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) The burden rests on the parent to establish both prongs. (See In re Alexis W. (1999) 71 Cal.App.4th 28, 36 [party seeking change has the burden of showing not only that circumstances have changed, but that return would be in the childs best interests]; see In re Anthony W. (2001) 87 Cal.App.4th 246, 251 [noting parents petition d[id] not demonstrate how a change in the order would be in the best interest of these children].)

On appeal from denial of a modification petition, the reviewing court will not disturb th[e] decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]. (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).)

Factors circumscribing the juvenile courts discretion in evaluating a modification petition, and informing our review, are: (1) [T]he seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, original italics (Kimberly F.).) Also, as our Supreme Court has explained, [A] primary consideration in determining the childs best interests is the goal of assuring stability and continuity. [Citation.] When custody continues over a significant period, the childs need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. [Citations.] (Stephanie M., supra, 7 Cal.4th at p. 317.)

Father focuses on his earnest efforts and sincere commitment to Z., emphasizing that he moved from another state . . . to be with his son. Fathers devotion, albeit belated, is commendable, but he misapprehends the nature of the juvenile courts inquiry and our standard of review. Once the court terminates reunification services, as it did here in July 2006, the childs interest in stability is the courts foremost concern, outweighing the parents interest in reunification. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348; see also In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419 (Beatrice M.) [dependent children entitled to permanency to get on with the task of growing up]; accord, In re Marilyn H. (1993) 5 Cal.4th 295, 310 (Marilyn H.) [Childhood does not wait for the parent to become adequate].) [D]elaying 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 childs best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.).)

Father disputes some of the criticism [he] received for his parenting skills and complains the record does not indicate a total lack of discipline by [f]ather. (Italics added.) Rearguing the merits of the juvenile courts decision, father recites the evidence most favorable to his commitment to a sober and drug-free lifestyle and his ability to parent the children. He recasts his belligerence as in his therapists words an assertive but not demanding temperament.

The standard of review, however, requires that we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) The juvenile courts ruling demonstrates it found neither father nor his therapist entirely credible, and we may not second-guess that determination. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) To the contrary, [i]f the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.] (People v. Kraft (2000) 23 Cal.4th 978, 1054.) Indeed, father fails to grasp that where, as here, he shouldered the burden of proof, the question for the reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; Caron v. Andrew (1955) 133 Cal.App.2d 402, 409.) Father does not establish he was entitled to a favorable modification ruling as a matter of law.

Simply put, the juvenile court could reasonably conclude father failed to show he had progressed beyond monitored visitation and was ready to assume custody of the two children. (Casey D., supra, 70 Cal.App.4th at p. 51.) The juvenile court also properly rejected fathers request at the hearing to treat his alternative motion for increased visitation as a petition to reopen the reunification period. The court could reasonably conclude granting the request would undermine Z.s best interests by delaying selection of a permanent plan. (See Marilyn H., supra, 5 Cal.4th at p. 304 [noting .26 hearing may be delayed for months after reunification period closes]; see also 361.5, subd. (a)(3) [setting 18-month limit for reunification].)

Father contends the controlling issue was only whether he ultimately complied with his case plan, which he claims he did by completing a 52-week domestic violence program while also nearing completion of a substance abuse program. But the factors that prompted Z.s dependency involved more than these two serious concerns. In addition to fathers cohabitant abuse and long-standing drug and alcohol problems, other bases for the juvenile courts dependency finding included his extensive criminal history and, in particular, his convictions for willful cruelty to a child.

The record reveals one conviction, in August 2003, predated Z.s birth. Father never explained this conviction or what child it involved. As for the conviction arising from the Long Beach incident in which he abandoned Z. while he passed out from alcohol intoxication, father refused to accept responsibility, claiming, This is a lie. I could have fought this but I didnt. Even absent the witnesses who offered to step forward to corroborate the underlying facts, the juvenile court was entitled to credit the truth of the conviction and conclude fathers denial illustrated his recent post-reunification progress did not outweigh the risk of placing the children with him. (Cf. In re Angel B. (2002) 97 Cal.App.4th 454, 463 [denial of parents petition not erroneous where the time she had been sober was very brief compared to her many years of drug addiction]; see also Casey D., supra, 70 Cal.App.4th at pp. 47-49 [a few months of sobriety did not show requisite change under section 388]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 (Cliffton B.) [denial of modification petition upheld where, set against years of addiction and intermittent recovery, parents seven months of sobriety since his relapse . . . , while commendable, was nothing new].)

The juvenile court also could reasonably conclude the childrens bond with the G.s, with whom they had lived far longer than they ever did with father, required denial of fathers petition. (Stephanie M., supra, 7 Cal.4th at p. 317; Kimberly F., supra, 56 Cal.App.4th at p. 532.) Invoking Kimberly F., at p. 531, and In re Jasmon O. (1994) 8 Cal.4th 398, 408-409, father argues the bond with the caretaker cannot be dispositive lest it create its own self-fulfilling prophecy. As we have explained, however, in addition to the childrens bond with their prospective adoptive parents, fathers failure to carry his burden of proof regarding his own rehabilitation and relationship with Z. requires affirmance. He failed to show, for instance, that severing his relationship with Z. would greatly harm his relationship with Z., who displayed ambivalence about fathers visits. (Compare In re Amber M. (2002) 103 Cal.App.4th 681, 690-691; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206-1208.) For all the foregoing reasons, the juvenile court reasonably denied fathers modification petition.

Instead, the benefit exception applies only if the relationship 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. (Autumn H., supra,27 Cal.App.4th at p. 575.) 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. (Ibid.) Thus, the juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family. (Cliffton B., supra,81 Cal.App.4th at pp. 424-425.)

Factors bearing on the parent-child bond include [t]he age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs . . . . (Autumn H., supra, 27 Cal.App.4th at p. 576.) Even if these factors reveal a strong bond, the parent faces a heavy burden to overcome the Legislatures preferred permanent plan of adoption. (See 366.26, subd. (b)(1) [identifying adoption as preferred plan]; see Jasmine D., supra, 78 Cal.App.4th at p. 1348) [Adoption is the Legislatures first choice because it gives the child the best chance at [a full emotional] commitment from a responsible caretaker].) Thus, the statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption. (In re Celine R. (2003) 31 Cal.4th 45, 53.) We review the juvenile courts conclusion concerning whether the benefit exception applies for substantial evidence. (Autumn H., at p. 576.)

Substantial evidence supports the juvenile courts conclusion termination of parental rights would not be detrimental to Z., and that termination and adoption served his best interests. Father bore the burden of establishing termination of his parental rights would greatly harm the child (Autumn H., supra, 27 Cal.App.4th at p. 575; Jasmine D., supra, 78 Cal.App.4th at p. 1350), but he presented no evidence to meet that burden. Father observes he attempted to fulfill his parental role to the best of his ability, but that is not the standard, which focuses on the childs well-being. (Autumn H., at p. 575.)

Father also argues Z. would continue to derive a benefit from continuing the relationship with him, but that is not the standard either. Father makes no effort to address the dispositive question, i.e., whether maintaining his parental status outweighed the benefits of adoption. (Autumn H., supra, 27 Cal.App.4th at p. 575.) On that score, ample evidence supports the judgment. Simply put, Z. looked forward to his forever home with Irene and Jose, who provided a stable, nurturing, and permanent environment for both Z. and D.D.

Father counters with evidence suggesting Z. derived pleasure from fathers visits, which were usually positive. (But see In re Brian R. (1991) 2 Cal.App.4th 904, 924 [though excellent interaction may yield emotional attachment, [positive] visits are, by themselves, insufficient to mandate a permanent plan other than adoption].) Father also notes that his relationship with Z. blossomed for awhile during visits, and father attempts to explain or refute evidence showing Z.s interest in the visits later waned or were marked by unruly discipline problems. But, at most, father merely establishes a conflict in the evidence, which does not aid him because the standard of review requires that we affirm where, as here, there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)

In sum, the juvenile court could reasonably conclude the stability of a loving, permanent home for Z. with his adoptive parents and stepsister outweighed any benefits in maintaining a legal, parental relationship with father, who never progressed to unmonitored visitation in the three years Z. lingered in dependency. (See Casey D., supra, 70 Cal.App.4th at p. 51 [parents showing of requisite benefit difficult to make where he or she fails to qualify for unsupervised visitation].) Observing Z. had spent three-quarters of his young life under court supervision outside fathers care, the juvenile court could reasonably conclude the permanency of adoption served his best interests over the vicissitudes of long-term foster care or guardianship. (See Beatrice M., supra, 29 Cal.App.4th at p. 1419 [The Legislature has decreed . . . that guardianship is not in the best interests of children who cannot be returned to their parents. . . . Although guardianship may be a more stable solution than foster care, it is not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature].) Accordingly, the juvenile court did not err in declining to apply the continuing benefit exception.

III
DISPOSITION

The juvenile courts order denying fathers modification petition and terminating parental rights is affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

IKOLA, J.

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