Filed 6/23/15 In re Genesis R. CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


In re GENESIS R., a Person Coming Under                              B260675
the Juvenile Court Law.                                              (Los Angeles County
                                                                     Super. Ct. No. CK96986)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

A. G.,

         Defendant and Appellant.

         APPEAL from orders of the Superior Court of Los Angeles County. Philip L.
Soto, Judge. Affirmed.

         Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Jessica Paulson-Duffy, Deputy County Counsel, for Plaintiff and Respondent.


                                        _________________________
       Appellant A. G. (father) appeals from the juvenile court’s order denying his
petition, pursuant to Welfare and Institutions Code section 388,1 seeking reinstatement of
reunification services or placement of his daughter Genesis R. (Genesis) (born Mar.
2012). He also appeals from the court’s order terminating his parental rights. We find no
error and affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
The Petition
       On December 17, 2012, the Los Angeles County Department of Children and
Family Services (DCFS) filed a petition under section 300, subdivision (b) on behalf of
then eight-month-old Genesis. As amended, the petition alleged in paragraph b-2 that
father, who was 19 years old, had a history of substance abuse and was a current user of
amphetamine, methamphetamine, and marijuana; tested positive for amphetamine and
methamphetamine on December 3, 2012; was under the influence of illicit drugs at other
times while Genesis was in his care; and his substance abuse placed Genesis at risk of
harm. The petition contained nearly identical allegations in paragraph b-1 as to Genesis’s
mother, Marina R. (mother), who was 18 years old.2 In paragraph b-3, the petition
alleged that father and mother had a history of engaging in physical alterations in
Genesis’s presence; on December 1, 2012, father picked up mother, sat her on a curb, and
grabbed and pulled her by the hair; and such physical conduct by father placed Genesis at
risk of harm.
The Detention Hearing
       Father and mother appeared at the detention hearing. The juvenile court found
father to be Genesis’s presumed father. The court ordered that Genesis remain placed in
foster care until a suitable relative could be found. The court also granted monitored



1
      All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
2
       Mother is not a party to this appeal.

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visits three times a week for two hours, and ordered DCFS to provide referrals for drug
services, including drug testing.
The Jurisdiction and Disposition Report and Hearing
       DCFS reported that Genesis had been placed with a maternal aunt and appeared
happy and comfortable. Father reported additional incidents of physical altercations with
mother in September and October 2012, while Genesis was present. Father stated that he
had a medical marijuana card for back pain and used marijuana every three to four days.
Father tested positive for cannabinoids on January 9, 2013.
       Father and mother appeared at the jurisdiction and disposition hearing on
January 31, 2013. The juvenile court declared Genesis a dependent of the court and
sustained the petition as amended. Genesis was to remain placed with the maternal aunt
and DCFS was ordered to provide reunification services. The parents were allowed
separate monitored visits at least three times a week for three hours at a time, and DCFS
was granted the right to liberalize the visits to unmonitored and overnight. Father was
ordered to participate in counseling to address issues pertaining to parenting, domestic
abuse and drug use, and to undergo random drug testing once a week.
Supplemental Report of the Multi-Disciplinary Assessment Team
       On March 29, 2013, DCFS reported that after one month in the care of the
maternal aunt, Genesis was acclimating to routine and a consistent caretaker, she
appeared happy and was showing less hyper-vigilance, and her social and fine motor
skills were improving. “Since placement with her current caretakers Genesis has shown
great improvements in her overall developmental functioning.” It was reported that
father and mother would benefit from parent coaching.
Six-Month Status Review Report and Hearing
       On August 1, 2013, DCFS reported that Genesis was being well taken care of and
that her needs were being met by her caregiver. Father was in compliance with court
orders. He had completed parenting education and had enrolled in an outpatient drug
treatment program. Father, however, had three positive drug tests for amphetamine and
methamphetamine on May 13, June 13, and June 18, 2013.

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Father was regularly visiting Genesis, and no problems were reported with the visits.
       Father appeared at the hearing on August 1, 2013. The juvenile court found father
to be in partial compliance with the case plan and ordered that Genesis remain placed
with the maternal aunt.
12-Month Status Review Report
       On January 30, 2014, DCFS reported that father’s current circumstances were
unknown because he had failed to return the social worker’s calls. Father was a “no
show” for 10 consecutive drug tests from August 29, 2013, through January 14, 2014.
Father had had only sporadic visits with Genesis, and often missed scheduled visits
without calling to cancel. The caregiver reported that following one visit, she saw father
run down the street carrying Genesis. When the caregiver met father, he was sweating,
bleeding from his lip, and his cheek was bruised, as though he had been in a fight since
picking up Genesis for the visit. Genesis was happy with her caregiver and developing
appropriately. DCFS assessed the risk level as “[h]igh” for abuse if Genesis were
returned to her parents and recommended that family reunification services be
terminated.
Interim Report and Hearing
       On March 3, 2014, DCFS reported that father had not visited Genesis at all in
February 2014, and failed to appear for a drug test. Father told the social worker he was
homeless.
       Father appeared at the hearing on March 3, 2014. The juvenile court found that
neither parent was in compliance with the case plan, terminated family reunification
services, and set the matter for a section 366.26 hearing.
Section 366.26 Reports
       On June 26, 2014, DCFS reported that Genesis was thriving in the care of the
maternal aunt and her partner, who were committed to adopting her and who “love[d]”
her. She called them “Mama” and “Nina” and was visibly attached to them. Father
visited Genesis an average of three times a month. While his visits had been liberalized
to six hours, father usually stayed only three to four hours. He would often get frustrated

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during visits because he expected a more mature response than a two-year-old was
capable of providing. The aunt reported that Genesis did not like to be next to father and
would run away.
       In a supplemental report, the caregiver stated that father had limited interaction
with Genesis during visits, and that she had to encourage father to interact in more
positive ways, such as giving father books to read to Genesis.
       DCFS submitted another supplemental report stating that the home study of the
prospective adoptive parents had been approved.
Section 388 Petition
       On October 22, 2014, the date set for the continued section 366.26 hearing, father
filed a petition pursuant to section 388, seeking reinstatement of reunification services
“and/or grant . . . unmonitored visits and/or return [of] Genesis” to his care. Father’s
petition stated that he was fully employed, had stable housing and family support, was
participating in “Parents in Partnership,” and visited Genesis once a week for six hours.
Father also stated in his petition that a “father-daughter relationship” existed and that “it
is in [Genesis’s] best interest to reunify” with him. The petition attached a letter from his
employer and a certification of having “attended the parent orientation” (capitalization
omitted) of the “Parents in Partnership” program on July 25, 2014.
Court’s Rulings
       The juvenile court held a combined hearing on father’s section 388 petition and
the section 366.26 permanency planning on October 22, 2014. The court denied the
section 388 petition, finding no changed circumstances and that father’s requests were
not in Genesis’s best interest. The court then proceeded to the issue of permanency
planning. The court found by clear and convincing evidence that Genesis was adoptable,
and that no exception to termination of parental rights existed. The court thus terminated
father’s and mother’s parental rights to Genesis.




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                                       DISCUSSION
I. Section 388 Petition
       Section 388 permits a parent to petition the juvenile court to change, modify or set
aside a previous court order. The parent has the burden of showing, by a preponderance
of the evidence, there is a change of circumstances or new evidence and the proposed
modification is in the child’s best interest. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398,
415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.) “The petition is addressed to the
sound discretion of the juvenile court and its decision will not be disturbed on appeal in
the absence of a clear abuse of discretion.” (In re Jasmon O., supra, at p. 415; In re
Stephanie M. (1994) 7 Cal.4th 295, 318.) “‘The appropriate test for abuse of discretion is
whether the trial court exceeded the bounds of reason. When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no authority to substitute
its decision for that of the trial court.’” (In re Stephanie M., supra, at pp. 318–319.)
“The denial of a section 388 motion rarely merits reversal as an abuse of discretion.” (In
re Amber M., supra, at pp. 685–686; In re Daniel C. (2006) 141 Cal.App.4th 1438,
1445.) Indeed, father correctly concedes that the abuse of discretion standard is a “high
hurdle” for any appealing party.
       The juvenile court did not abuse its discretion in denying father’s section 388
petition.
       First, father did not demonstrate changed circumstances. The petition indicated
that father was employed, had stable housing and a support system, and had attended a
parenting program orientation back in July 2014. While these are commendable steps
showing that father was trying to improve his life, they do not address the issues that
brought Genesis under the juvenile court’s jurisdiction. The court did not assume
jurisdiction because father lacked housing or a job, but because father engaged in
domestic violence and had a substance abuse problem. Nothing in his petition or the
record showed that father was making any substantive progress in any rehabilitation
programs to address his violent behavior and substance abuse, or that he had maintained



                                              6
sobriety. To the contrary, father was still not in compliance with the programs the court
had ordered him to participate in at disposition 18 months prior.
       Second, father failed to demonstrate that granting his petition would be in
Genesis’s best interest. In addressing the best interest prong, courts generally consider
“(1) the 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.) The circumstances leading to dependency
here were serious—substance abuse and domestic violence—and there was no showing
that these issues had been ameliorated or would be soon. Additionally, the record
showed that Genesis was strongly bonded to her prospective adoptive parents, with
whom she had spent the majority of her young life, while her bond with father was not
nearly as strong.
       “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.)
II. Section 366.26 Findings
       Appellant contends the juvenile court erred by failing to apply an exception to
termination of parental rights.
       Under section 366.26, subdivision (c)(1), if the court finds by clear and convincing
evidence that it is likely the dependent child will be adopted, “the court shall terminate
parental rights and order the child placed for adoption.” An exception exists when “[t]he
court finds a compelling reason for determining that termination would be detrimental to
the child” because “[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).)

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       It is well established that a parent bears the burden of proving that termination
would be detrimental to the child under section 366.26, subdivision (c)(1)(B)(i).
(Cal. Rules of Court, rule 5.725(d)(4); In re Jasmine D. (2000) 78 Cal.App.4th 1339,
1350; In re Derek W. (1999) 73 Cal.App.4th 823, 826–827; In re Lorenzo C. (1997) 54
Cal.App.4th 1330, 1343–1344.) This is not an easy burden to meet. “Because a
section 366.26 hearing occurs only after the court has repeatedly found the parent unable
to meet the child’s needs, it is only in an extraordinary case that preservation of the
parent’s rights will prevail over the Legislature’s preference for adoptive placement.”
(In re Jasmine D., supra, at p. 1350.)
       Reviewing courts have recently begun applying a mixed standard of review to an
appellate challenge to a juvenile court ruling rejecting a claim that an adoption exception
applies. In In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315 (Bailey J.), the appellate
court applied the substantial evidence test to the factual determination of the existence of
a beneficial relationship, and applied the abuse of discretion standard to the
“‘quintessentially’” discretionary decision of “the importance of the relationship in terms
of the detrimental impact that its severance can be expected to have on the child and to
weigh that against the benefit to the child of adoption.” (See also In re K.P. (2012) 203
Cal.App.4th 614, 622 [“We find the Bailey J. approach persuasive and apply its
composite standard of review here”].)
       Father cannot meet the first prong of the exception—showing that he maintained
regular visitation and contact with Genesis. Throughout most of the case, as father
concedes, his visits were inconsistent and there were periods when he failed to visit at all.
In the period just before the section 366.26 hearing, father claims that he was visiting
weekly for six hours. But the record does not bear this out. DCFS reported that father
visited about three times a month, for three to four hours, despite being allowed to visit
more frequently and for six hours at time.
       Nor can father meet the second prong of the exception—showing that continuing
the parental relationship would be beneficial to Genesis. The “benefit from continuing
the [parent/child] relationship” exception in section 366.26, subdivision (c)(1)(B)(i) has

                                              8
been defined to mean that “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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 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.)
       “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.” (In re Angel B. (2002) 97 Cal.App.4th
454, 467, fn. omitted; In re Helen W. (2007) 150 Cal.App.4th 71, 81.)
       Here, Genesis was only eight months old when removed from father’s custody and
two and one-half years old at the time of the section 366.26 hearing. She had spent the
majority of her young life with her prospective adoptive parents, who were providing her
with a stable, loving and nurturing home and with whom she was thriving. By contrast,
father often became frustrated with Genesis during visits, had unrealistic expectations for
a child of her age, had limited interaction with her during visits, and had to be encouraged
to interact in more positive ways. It was reported that Genesis did not like to be near
father and would run away from him.
       “A biological parent who has failed to reunify with an adoptable child may not
derail an adoption merely by showing the child would derive some benefit from
continuing a relationship maintained during periods of visitation with the parent.
[Citation.] 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.” (In re Angel B., supra, 97 Cal.App.4th at p. 466.)

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       Based on the record here, we conclude that this is not the extraordinary case where
the Legislature’s preference for adoption should have been overcome by the exception to
termination of parental rights provided in section 366.26, subdivision (c)(1)(B)(i).
                                     DISPOSITION
       The juvenile court’s orders denying father’s section 388 petition and terminating
parental rights are affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                          __________________________, J.
                                                ASHMANN-GERST


We concur:



_____________________________, P. J.
           BOREN



____________________________, J.
           HOFFSTADT




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