Filed 8/24/16 In re R.H. CA2/6

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX

In re R.H., et al., Persons Coming Under                                    2d Juv. No. B269859
the Juvenile Court Law.                                              (Super. Ct. Nos. J069838, J069839)
                                                                              (Ventura County)

VENTURA COUNTY HUMAN
SERVICES AGENCY,

     Plaintiff and Respondent,

v.

C.H.,

     Defendant and Appellant.



                   C.H. (father) appeals the juvenile court’s orders summarily denying his
modification petition and terminating his parental rights to his minor daughters, R.H. and
N.H. (Welf. & Inst. Code, §§ 388, 366.26.)1 Father contends he made a prima facie
showing in his section 388 petition that entitled him to an evidentiary hearing. He also
claims the court erred in finding that the beneficial parental relationship exception to
adoption (§ 366.26, subd. (c)(1)(B)(i)) did not apply. We affirm.




         1   All statutory references are to the Welfare and Institutions Code.
                          FACTS AND PROCEDURAL HISTORY
                On January 28, 2014, the Ventura County Human Services Agency (HSA)
filed a dependency petition as to R.H., born in September 2012, and N.H., born in
October 2013. The petition alleged that the children had been removed from their home
after their parents were arrested for domestic violence and child endangerment.2 The
parents also have histories of substance abuse that interfered with their ability to care for
the children. R.H. and N.H. were placed together in a foster home.
                In its jurisdiction and disposition report, HSA recommended that the
children be declared dependents and that reunification services be offered to both parents.
HSA reported that the parents had three weekly one-hour supervised visits with the
children and that the visits had gone well. Father’s first drug test was positive for
marijuana and methamphetamine, but a second test was negative.
                At the conclusion of the uncontested jurisdiction and disposition hearing,
the court sustained the petition and granted the parents six months of reunification
services. The parents were ordered to comply with their case plans, submit to random
drug testing, attend Alcoholics/Narcotics Anonymous (AA/NA) meetings, and refrain
from possessing alcohol or illegal drugs. A six-month review hearing was set for August
11, 2014. In April 2014, the court placed N.H. and R.H. in a relative placement (a
paternal aunt and uncle) in accordance with section 361.3.
                In its six-month report, HSA recommended that reunification services be
terminated as to father. As to mother, HSA recommended that services be continued and
that a 90-day interim review hearing be set to assess her progress. HSA’s
recommendation considering father was based on his failure to comply with virtually
every element of his case plan. During the review period, he was directed to submit to
random drug testing on 12 separate occasions. He only tested twice, and one of those
tests was positive for methamphetamine and marijuana. Moreover, he had minimally
participated in the available substance abuse services and attended only 14 AA/NA

       2   The children’s mother is not a party to this appeal.
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meetings during the six-month period, even though he was required to attend three
meetings every week. Father had also failed to participate in parenting education or
counseling regarding his domestic violence issues and had missed three scheduled visits
with the children. HSA concluded that “[t]he father has not shown his ability to provide
for the needs, safety and well-being of his children. The father does not appear to be able
to put his children’s needs ahead of his own and has not taken accountability for the
issues that led to this dependency.”
              Father set the matter for contested hearing on September 8, 2014. At the
conclusion of that hearing, the court continued services for both parents for 90 days
pending an interim review hearing set for December 1, 2014. The 12-month review
hearing was confirmed for January 26, 2015.
              On September 13, 2014, the paternal aunt was arrested for being under the
influence of alcohol while the children were present. HSA removed the children and
filed a section 387 petition seeking a new placement for them. The court granted the
petition and the children were placed in a foster home.
              At the time of the 90-day review hearing, father had completed a parenting
education course and was scheduled to complete an anger management course with
scores of “excellent” in both. He was also participating in a drug program but his
attendance was inconsistent. He had missed five out of six random drug tests, although
the one test he took was negative. HSA recommended that services be continued for both
parents until the 12-month review hearing. HSA made the recommendation “with
reservations about the parents’ ability to make the necessary progress to allow [HSA] to
continue past that date. . . . Should the parents fail to make further progress on their case
plan by the 12-month Status Review, [HSA] will have no choice but to recommend
terminating the parents[’] services.”
              At the conclusion of the interim review hearing, the court ordered that all
prior orders remain in effect and confirmed the 12-month review hearing set for January
26, 2015. In its 12-month review report, HSA recommended that services be terminated

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as to both parents and that the matter be set for a section 366.26 hearing. Among other
things, father had missed three more random drug tests and was about to be removed
from his drug treatment program due to his sporadic and inconsistent attendance.
Moreover, both parents had yet to advance beyond supervised visitation due to their
“inconsistent progress on case plan services and failure to adequately address issues of
domestic violence in their relationship . . . .”
              The matter was set for a contested hearing on February 17, 2015. In a
supplemental report, HSA indicated that father had been terminated from his drug
treatment program due to his lack of attendance. Since the status review hearing on
January 26, 2015, he had taken one negative drug test but had missed two other
opportunities to test. He had also failed to attend a scheduled intake for a domestic
violence group therapy program. Mother had recently tested positive for
methamphetamine. HSA concluded that “[d]ue to the parents’ ongoing inconsistency
with progress on case plan services as well as their lack of benefit from services, [HSA]
does not feel that there is a substantial probability that the children would be returned to
their care in the next 6 months.”
              At the conclusion of the 12-month review hearing, the court extended
services for both parents for an additional six months. The court told father that
“[y]ou’ve been inconsistent, but you have been trying, and I think you get credit for that.”
              In its 18-month review report, HSA recommended that services be
terminated as to both parents and that the matter be set for a section 366.26 hearing.
HSA reported that “there have been areas of recent growth for both parents, but
unfortunately, this progress was slow in coming, and still does not appear to rise to the
level of addressing the core issues in themselves and in their relationship that led to
physical violence. . . . [HSA] has grappled with the decision to terminate the parents[’]
services due to this recent growth, but ultimately, due to the age of the children, their lack
of protective capacity, and the severity of the parents’ past violence in their relationship,
[HSA] cannot in good conscience, recommend the return of the children to the parents’

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care at this time. . . . Having run out of time in Court, [HSA] is left with its hands tied,
and unable to offer further Family Reunification Services.”
              At the conclusion of the 18-month review hearing, the court terminated
reunification services as to both parents and set the matter for a section 366.26 hearing.
Neither parent petitioned for relief from that order.
              A contested section 366.26 hearing was held on January 20, 2016. In
conjunction with that hearing, father filed a section 388 modification petition seeking
reinstatement of reunification services. In support of his petition, father offered that he
had been progressing in individual therapy and had recently completed the first half of a
substance abuse treatment program. He also claimed that he had maintained his sobriety
and that he and mother had not engaged in any further domestic disputes. He further
offered that he had maintained regular visits with the children and that the children were
bonded and attached to both him and mother. The court summarily denied the petition.
              At the section 366.26 hearing, father asserted that the children’s adoption
was precluded by the beneficial parental relationship exception. (§ 366.26, subd.
(c)(1)(B)(i).) The court rejected that assertion, found that the children were adoptable,
and terminated parental rights with adoption as the permanent plan.
                                       DISCUSSION
                                    Section 388 Petition
              Father contends the court erred in denying his section 388 petition without
a hearing. We disagree.
              Pursuant to section 388, any person having an interest in a dependent child
can petition the court for a hearing to change, modify, or set aside any previous order on
the grounds of change of circumstances or new evidence. The petition must be verified
and “shall set forth in concise language any change of circumstance or new evidence that
is alleged to require the change of order or termination of jurisdiction.” (§ 388, subd.
(a)(1).) “The parent seeking modification must ‘make a prima facie showing to trigger
the right to proceed by way of a full hearing. [Citation.]’ [Citations.] There are two

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parts to the prima facie showing: The parent must demonstrate (1) a genuine change of
circumstances or new evidence, and that (2) revoking the previous order would be in the
best interests of the children. [Citation.] If the liberally construed allegations of the
petition do not show changed circumstances such that the child's best interests will be
promoted by the proposed change of order, the dependency court need not order a
hearing. [Citation.] We review the juvenile court's summary denial of a section 388
petition for abuse of discretion. [Citation.]” (In re Anthony W. (2001) 87 Cal.App.4th
246, 250.)
              Father does not argue that the court should have returned R.H. and N.H. to
his custody. He claims the court should have awarded him six more months of
reunification services, in addition to the 18 months of services that had already been
offered. The statutory cut-off for reunification services, however, is the point in time 24
months after the child was originally removed from parental custody. (§ 361.5, subd.
(a)(4).) Here, the 24-month period was set to expire four days after the date of the
hearing. Under the circumstances, the court had no authority to offer an additional six
months of services. Moreover, father does not suggest that four days of additional
services would have been sufficient to rectify the issues that led to the children’s
removal, such that they could be returned to him after that short period. Although father
offers that “this is not an ordinary case,” he offers no authority that would have allowed
the court to disregard the statutory limitation set forth in subdivision (a)(4) of section
361.5.
              In any event, the court did not abuse its discretion in finding that father had
failed to offer new evidence or show that his circumstances had changed such that further
services were warranted. As HSA aptly puts it, “The petition mirrored father’s actions
during the 18-month active reunification period: he participated in some services while
ignoring others and ultimately did not complete his case plan.” This showing was
insufficient to warrant relief under section 388. (See In re Casey D. (1999)
70 Cal.App.4th 38, 49 [denial of section 388 proper where parent merely showed her

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“circumstances were changing, rather than changed”].) Father also failed to show it
would be the in children's best interest to continue services. The children should not be
made to wait indefinitely for him to become an adequate parent. (In re Marilyn H. (1993)
5 Cal.4th 295, 310.) There was no abuse of discretion in denying father's petition.
                        Beneficial Parental Relationship Exception
              Father contends the court erred in finding that the beneficial parental
relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) did not apply. We are
not persuaded.
              “Once the [juvenile] court determines a child is likely to be adopted, the
burden shifts to the parent to show that termination of parental rights would be
detrimental to the child under one of the . . . exceptions listed in section 366.26,
subdivision (c)(1).” (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) As relevant
here, the court must terminate parental rights unless it “finds a compelling reason for
determining that termination would be detrimental to the child due to” the circumstance
that “[t]he parents have maintained regular visitation and contact with the child and the
child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
              We review the court’s finding that the beneficial parental relationship
exception did not apply for substantial evidence. (In re Autumn H. (1994)
27 Cal.App.4th 567, 576.) In conducting our review, 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.” (Ibid.)
              Father contends that appellate courts have misinterpreted the beneficial
parental relationship exception in a manner that places an undue burden upon parents
seeking to invoke the exception. For example, he finds fault with the conclusion that the
exception does not apply unless it “constitutes a ‘compelling reason for determining that
termination would be detrimental.’” (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315,
quoting § 366.26, subd. (c)(1)(B)(i).) He also criticizes In re Brittany C. (1999)

                                              7
76 Cal.App.4th 847, to the extent it has been interpreted as requiring a showing that the
minor would suffer “great harm” if parental rights were terminated.
              We reject these criticisms. The statute expressly states that the reason for
declining to terminate parental rights must be a “compelling” one. Moreover, it is well
settled that the exception is not established unless the parent shows the strength and
quality of his parent-child relationship outweighs the security and sense of belonging the
child would gain in a permanent home with new, adoptive parents. (In re Autumn H.,
supra, 27 Cal.App.4th at p. 575.) The preference for adoption cannot be overcome unless
the parent demonstrates that “severing the natural parent/child relationship would deprive
the child of a substantial, positive emotional attachment such that the child would be
greatly harmed . . . .” (Ibid.) Father effectively claims that he need only demonstrate that
the children would receive any benefit if the relationship were to continue in order for the
exception to apply. This view has already been rejected. (In re Angel B. (2002)
97 Cal.App.4th 454, 466 [“A biological parent who has failed to reunify with a adoptable
child may not derail an adoption merely by showing the child would derive some benefit
from continuing a relationship maintained during . . . visitation with the parent”].) “The
Autumn H. standard reflects the legislative intent that adoption should be ordered unless
exceptional circumstances exist.” (In re Casey D., supra, 70 Cal.App.4th at p. 51.)
              Father failed to make the requisite showing here. Although he arguably
maintained regular, supervised visitation with the children during the proceedings, the
evidence fails to support the finding that the children would benefit from continuing the
relationship to the extent that parental rights could not be terminated. “The factors to be
considered when looking for whether a relationship is important and beneficial are: (1)
the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the
positive or negative effect of interaction between the parent and the child, and (4) the
child's particular needs. [Citation.]” (In re Angel B., supra, 97 Cal.App.4th at p. 467.)
None of these factors weigh in father’s favor. Both children are very young and have
spent the majority of their lives in foster care. The children enjoyed their weekly one-

                                               8
hour visits with father and reportedly called him “dad,” but exhibited no difficulty in
separating from him at the end of their visits. Even if those visits could be characterized
as “pleasant and emotionally significant,” father’s relationship with the children “bears
no resemblance to the sort of consistent, daily nurturing that marks a parental
relationship.” (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) By contrast, the
children appear to have a strong bond with their prospective adoptive family and were
reported to be “thriving” in their placement. This evidence is sufficient to support the
court’s finding that the beneficial parental relationship exception did not apply. The
cases father cites in support of his claim to the contrary are plainly inapposite.
                                       DISPOSITION
              The judgment (orders denying section 388 petition and terminating parental
rights) is affirmed.
              NOT TO BE PUBLISHED.



                                           PERREN, J.
We concur:



              GILBERT, P. J.



              YEGAN, J.




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                                  Tari L. Cody, Judge
                           Superior Court County of Ventura
                         ______________________________

             Roni Keller, under appointment by the Court of Appeal, for Defendant and
Appellant.
             Leroy Smith, County Counsel, and Joseph J. Randazzo, Assistant County
Counsel, for Plaintiff and Respondent.
