Filed 1/22/14 In re Damian C. CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


In re Damian C. et al., Persons Coming
Under the Juvenile Court Law.
LOS ANGELES COUNTY                                                   B249974
DEPARTMENT OF CHILDREN AND                                           (Los Angeles County
FAMILY SERVICES,                                                     Super. Ct. No. CK88432)

         Plaintiff and Respondent,

         v.

S.C. and M.D.,

         Defendants and Appellants.


         APPEAL from orders of the Superior Court of Los Angeles County, Philip
L. Soto, Judge. Affirmed.
         David A. Hamilton, under appointment by the Court of Appeal, for
Defendant and Appellant S.C.
         Roni Keller, under appointment by the Court of Appeal, for Defendant and
Appellant M.D.
         John F. Krattli, Office of the County Counsel, James M. Owens, Assistant
County Counsel and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and
Respondent.
      Appellants M.D. (Mother) and S.C. (Father) appeal the orders denying their
petitions for modification under Welfare and Institutions Code section 388 and the
order terminating their parental rights under section 366.26.1 Finding no error, we
affirm.


               FACTUAL AND PROCEDURAL BACKGROUND
      The family came to the attention of the Department of Children and Family
Services (DCFS) in June 2011 after a referral alleging physical abuse and domestic
violence. Both parents submitted to an on-demand drug test and tested positive for
amphetamines and methamphetamine. They admitted to using methamphetamine
“every other day,” and Father stated he had been using the drug “on and off” since
2003. Their three children, Damian (then 6), Nathan (then 5), and Ian (then 23
months), were detained and placed with their maternal grandparents, who lived
next door.2 The petition alleged, and the court found true at the August 2011
jurisdictional hearing, that Mother and Father had a history of engaging in physical
altercations and had unresolved substance abuse issues, including current use of
amphetamines and methamphetamine by both parents, and current use of
marijuana by Father.3


1
      Undesignated statutory references are to the Welfare and Institutions Code.
2
       Damian, the only child old enough to be interviewed, reported that Mother and
Father fought a lot, and that Father called Mother “bad names” and caused her to cry. He
further reported that Father had thrown an object and broken a window, and that Nathan
had almost stepped in the broken glass. Damian also stated that Father hit Mother and
sometimes hit him on the back of the head, hurting him and making him cry. Damian
was afraid of Father.
3
       Mother and Father pled no contest to the petition after certain allegations,
including allegations of physical abuse, were dismissed and the remaining allegations
amended.

                                            2
      The reunification period lasted until September 2012. Immediately after the
detention, Mother and Father were provided referral to substance abuse and
domestic violence programs.4 Both began to participate and made initial progress,
completing parenting classes and nearly completing the six-month drug counseling
program. Father completed half of the domestic violence program. Both parents
tested negative for drugs. In September 2011, DCFS liberalized visitation,
allowing both parents unmonitored day visits with the children. But in October
2011, Father was arrested for domestic violence and visitation reverted to
monitored. In November, drug tests for both parents indicated the samples were
diluted. In December 2011, Father tested positive for amphetamines and
methamphetamine.
      In the months prior to the September 2012, 12-month review hearing, Father
repeatedly tested positive for amphetamines and methamphetamine (in January,
February, March, July and August 2012), and regularly missed tests. Mother
tested positive in March and August 2012. She also provided diluted samples on
some occasions and missed some tests. Both parents had been temporarily
suspended from their substance abuse programs in early 2012 for missing multiple
sessions. In August 2012, Mother and Father appeared at the program apparently
under the influence and were asked to test. After both parents tested positive, they
stopped attending entirely. As of the date of the 12-month review hearing, Father
had not completed the domestic violence program and Mother had not participated
in individual counseling. At the September 19, 2012, 12-month review hearing,



4
       At disposition, the court-ordered reunification plan required participation in
parenting classes, a substance abuse program with aftercare and weekly testing for both
parents, participation in individual counseling and a domestic violence support group for
Mother, and participation in a 52-week domestic violence program for Father.

                                            3
the court terminated the parents’ reunification services and set the matter for a
hearing pursuant to section 366.26.
       Shortly after reunification services were terminated, there was another
reported domestic violence incident. Father moved out of the apartment where the
couple had been living (next door to the maternal grandparents and the children).
Mother thereafter lost the apartment as she could not afford to live there on her
own. After the move, Mother continued to visit the children regularly during the
week. Father visited on weekends, when the children went to visit their paternal
grandparents. In January 2013, the court continued the section 366.26 hearing to
March 20 so that the home study for the prospective adoptive parents (the maternal
grandparents) could be completed.5
       In February 2013, Father submitted a petition for modification under section
388, seeking additional reunification services. Father presented evidence that he
had been participating in a substance abuse program and a domestic violence
program since October 2012.6 The court set a hearing on the petition and ordered
DCFS to prepare a supplemental report addressing it.
       On March 19, 2013, one day before the scheduled section 366.26 hearing,
Mother submitted a separate petition for modification seeking additional
reunification services or for the children to be returned to her custody. Mother
presented evidence that she had re-enrolled in the substance abuse program, which
was also providing group therapy for anger management and domestic violence
issues and individual counseling. She had repeatedly tested negative for drugs and
alcohol between October 2012 and February 2013 and had not missed any tests or

5
       The study was completed prior to the scheduled hearing.
6
      After filing the petition, Father tested negative for illicit substances between
February and May 2013.

                                             4
program sessions. She stated that “the biological family deserve[d] a chance to be
together again.” The court continued the section 366.26 hearing, set a hearing on
Mother’s petition, and ordered DCFS to prepare a supplemental report addressing
the petition.
      DCFS recommended against granting Father’s petition as he had not
completed the 52-week domestic violence program in the two years that had
elapsed since the detention, and Father’s enrollment and participation in his earlier
programs had been spotty and intermittent. In addition, it appeared that the drug
treatment program in which he was enrolled was not DCFS approved, and Father
had enrolled only because he had been ordered into a substance abuse program by
a criminal court after being arrested in November 2012.7
      The supplemental report stated that Mother’s case manager reported she had
been regularly attending classes for several months. In April 2013, while awaiting
the hearing on her petition, Mother completed the substance abuse portion of the
program and enrolled in the aftercare portion. DCFS recommended against
granting Mother’s petition, noting that “it ha[d] taken her almost two years to
complete a six[-]month [substance abuse] program,” and that there was no
guarantee she would complete her aftercare program and continue to test clean if
she were granted an additional six months of services. Moreover, although Mother
had reported she was living with a maternal aunt, her relationship with Father was
unclear.




7
       Subsequent evidence indicated the arrest was for a violation of Penal Code section
273.5, subdivision (a), inflicting corporal injury to a spouse or cohabitant.

                                            5
      In its final status report, DCFS continued to recommend termination of
parental rights in order to free the children for adoption by the maternal
grandparents. Their home study had been completed and approved.8
      At the May 23, 2013 hearing on both parents’ section 388 petitions, the court
accepted stipulated testimony from Mother that she would complete the aftercare
portion of her substance abuse program in the summer of 2013 and intended to
continue individual counseling. Counsel for Mother asked that the children be
returned to her based on her progress in the substance abuse program, representing
that she had a stable home with a maternal aunt. Alternatively, counsel requested
an additional six months of reunification services for Mother. Counsel for Father
contended that his completion of the substance abuse program, consistent negative
testing, and completion of more than half of the domestic violence program
supported changed circumstances sufficient to support granting his petition for
additional services. Counsel for the children joined in Mother’s request.9 The
children’s counsel pointed out that as the parents would continue to be an active
part of the children’s lives due to their placement with the maternal grandparents, it
would be in the children’s best interest for the parents to complete services.
DCFS’s counsel advocated denial of the petitions, noting the absence of a long-
term period of sobriety outside of the substance abuse programs, the lack of recent
testing at DCFS-approved centers, and Father’s failure to complete the domestic
8
       The caseworker concluded termination of parental rights would not interfere with
any bond between Mother and the children: “[That] bond . . . will always continue as
[the maternal grandfather] is willing to have an open adoption and will continue to allow
Mother to have a relationship with the children.” The caseworker had similarly stated
with respect to Father that “Father will continue to have visits with the children
regardless of being granted more reunification services or not.”
9
       Counsel for the children did not believe Father had presented sufficient evidence
to support a finding of changed circumstances, but presumed he would receive additional
services if the court granted Mother’s petition.

                                            6
violence counseling. DCFS’s counsel pointed out that in the two years since
detention, Mother and Father had been acting more as playmates than parents, and
that the children had moved on with their lives under the care of their grandparents.
      The court denied the parents’ section 388 petitions. At the hearing, the court
acknowledged that they “ha[d] done a lot of work” and that it was “difficult for
people [who] have a lengthy and extensive drug history or domestic violence
charges against them and to turn things around overnight.” However, the court
noted that even then -- two years after the children had come under DCFS
jurisdiction -- neither the domestic violence classes nor the aftercare program had
been completed. Moreover, in light of the parents’ history, “[a]ny day for any
reason something could trigger [them] to relapse and go back into drugs again.”
Although the parents were changing, “[t]he[] kids needed to have somebody that
was changed way back when in the later part of 2011 or early 2012, not the middle
of 2013 and not the end of 2013[,] which is what minor[s’] counsel is talking about
in giving Mom and/or Mom and Dad six more months of services.”
      The court then asked the parties to address the section 366.26 issues.
Mother’s counsel introduced into evidence stipulated testimony that Mother visited
the children several times per week, that they recognized her as their mother, and
that during the visits, they participated in educational activities, such as homework.
Mother’s counsel pointed out that the two older children had lived with their
parents the majority of their lives, that Mother had occupied a parental role during
her visits, and that DCFS appeared to have acknowledged the existence of a bond
with Mother when it reported that the grandparents would continue to permit
visitation. Father’s counsel also argued that the bond between the children and
their parents was strong enough to outweigh the benefit of adoption. The
children’s counsel joined counsel for DCFS in urging the court to terminate
parental rights to free the children for adoption by the maternal grandparents.
                                          7
      The court terminated parental rights. At the hearing, the court stated:
“[T]his is the hardest part for the same reasons we already addressed . . . . You
needed to get all of these things done two years ago so we could have avoided this.
That’s why we try and give you all of the services up front and encourage you to
get these things done up front and warn you that if you don’t, you could not only
lose the services, but lose your rights to be parents of the children, because they
deserve and they need permanency. We need to move on for adoption which is
where we’re going with this. [¶] The court having read and considered the reports
and admitting them into evidence will make the following findings and orders:
we’ll find that continued jurisdiction is necessary because conditions continue to
exist which justify the court taking jurisdiction under [section] 300. The court will
find by clear and convincing evidence that the children are adoptable. I find that it
would be detrimental to the children to be returned to the parents and there is no
exception to . . . . adoption applying in this case.” Mother and Father appealed.


                                    DISCUSSION
      A. Section 388 Petitions
      Under section 388, a parent or other interested person may petition the court
to change, modify or set aside a previous order on the grounds of changed
circumstances or new evidence. (§ 388, subd. (a).) “The petitioner has the burden
to show a change of circumstances or new evidence and [that] the proposed
modification is in the child’s best interests” or that “the child’s welfare requires the
modification sought.” (In re B.D. (2008) 159 Cal.App.4th 1218, 1228; see
California Rules of Court, rule 5.570(h)(1).) Appellate courts review the grant or
denial of a petition for modification for abuse of discretion. (In re B.D., supra, at
p. 1228.) “In evaluating whether the petitioner has met his or her burden to show
changed circumstances, the trial court should consider: ‘(1) the seriousness of the
                                           8
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.’” (Id. at
p. 1229, italics omitted, quoting In re Kimberly F. (1997) 56 Cal.App.4th 519,
532.)
        The changed circumstances requirement of section 388 “must be viewed in
the context of the dependency proceedings as a whole. [Citation.]” (In re Marilyn
H. (1993) 5 Cal.4th 295, 307.) “Once reunification services are ordered
terminated, the focus shifts from reunification to the child’s need for permanency
and stability, and a section 366.26 hearing to select and implement a permanent
plan must be [held]. . . . [¶] . . . The fact that the parent ‘makes relatively last-
minute (albeit genuine) changes’ does not automatically tip the scale in the
parent’s favor.” (In re D.R. (2011) 193 Cal.App.4th 1494, 1512, quoting In re
Kimberly F., supra, 56 Cal.App.4th at p. 530.)
        The juvenile court’s finding that Mother’s and Father’s circumstances had
not changed sufficiently to warrant returning the children or re-opening the
reunification period was not outside the bounds of reason. Jurisdiction was the
result of domestic violence perpetrated by Father and the parents’ consistent abuse
of dangerous and highly addictive drugs. Father’s commitment to long-term
change was suspect, as he had previously failed to comply with the terms of a drug
treatment program and had re-enrolled in the current program to meet the
requirements of a criminal court proceeding. He had never successfully completed
the required domestic violence program. Both parents had continued abusing
drugs well after DCFS took custody of their children. Both were still participating
in substance abuse treatment programs at the time of the hearing on their petitions
and had not shown they could maintain sobriety outside the confines of such
                                            9
programs. Both had relapsed in the past after making initial progress. The
children were very young and had already spent two years outside their parents’
custody, growing accustomed to their new home. Given this evidence, the court
could reasonably have concluded that although Mother and Father were making
some progress in dealing with their substance abuse and anger management issues,
they had not sufficiently changed to support returning the case to the reunification
phase and delaying the children’s permanent placement.


      B. Termination of Parental Rights
      Section 366.26, subdivision (c)(1) requires the juvenile court to terminate
parental rights and order the dependent child placed for adoption if it finds by clear
and convincing evidence that the child is likely to be adopted, unless it finds “a
compelling reason for determining that termination would be detrimental to the
child” due to the existence of specified exceptional circumstances. (See § 366.26,
subd. (c)(1)(B).) Subdivision (c)(1)(B)(i) provides an exception to termination
where “[t]he parents have maintained regular visitation and contact with the child
and the child would benefit from continuing the relationship.”
      There is no dispute that the children were likely to be adopted by their
maternal grandparents with whom they had lived for nearly two years. Once the
likelihood of adoptability is ascertained, the burden is on the parent to demonstrate
that termination of parental rights to free the child for adoption would be
detrimental to the child. (In re T.S. (2009) 175 Cal.App.4th 1031, 1039; In re
Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) “Because adoption is more
secure and permanent than a legal guardianship or long-term foster care, adoption
is the Legislature’s first choice for a permanent plan for a dependent minor child
who has not been returned to the custody of his or her parents and who is found by
the dependency court to be adoptable.” (In re Scott B. (2010) 188 Cal.App.4th
                                          10
452, 469.) “[I]t is only in exceptional circumstances that a court will choose a
permanent plan other than adoption.” (Ibid.) We review the trial court’s section
366.26 finding to determine whether substantial evidence supports it, construing
the evidence most favorably to the prevailing party and indulging in all legitimate
and reasonable inferences to uphold the court’s ruling. (See In re S.B. (2008) 164
Cal.App.4th 289, 297-298; In re Misako R. (1991) 2 Cal.App.4th 538, 545.)10
       The evidence established that the parents maintained regular visitation
throughout the proceedings. The issue before the court was whether the
termination would be “detrimental” because the children would “‘benefit from
continuing the relationship.’” That phrase has been interpreted to refer to a parent-


10
        We are aware that appellate courts have taken different positions on the
appropriate standard of review. In In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351,
the court applied an abuse of discretion standard. More recently, in In re Bailey J. (2010)
189 Cal.App.4th 1308, the court held that both the substantial evidence and abuse of
discretion standards of review “come into play in evaluating a challenge to a juvenile
court’s determination as to whether the parental . . . relationship exception to adoption
applies in a particular case.” (Id. at p. 1314.) According to the court, the substantial
evidence standard of review is applied to review of the juvenile court’s determination as
to the existence of a beneficial parental relationship. (Ibid.) The other component -- “the
requirement that the juvenile court find that the existence of that relationship constitutes a
‘compelling reason for determining that termination would be detrimental’” -- “calls for
the juvenile court to determine 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. [Citation.]” (Id. at p. 1315, italics
omitted.) In the court’s view, that component of the juvenile court’s decision is “a
‘quintessentially’ discretionary decision,” and therefore, the abuse of discretion standard
of review applies. (Ibid.) Mother contends that application of the Bailey J. hybrid
standard of review creates a “third prong” to the two-part test of section 366.26,
subdivision (c)(1)(B)(i), requiring parents to establish not just regular visitation and a
beneficial relationship to support detriment, but also to establish a “‘compelling reason’”
for the court to conclude that termination would be detrimental. We do not agree that
application of the abuse of discretion standard of review or hybrid standard of review
would place an additional burden on the parents. Nevertheless, we apply the substantial
evidence standard.

                                             11
child relationship that “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 existence of the section 366.26,
subdivision (c)(1)(B)(i) exception must be determined “on a case-by-case basis,
taking into account the many variables which affect a parent/child bond,” such as,
“[t]he age of the child, the portion of the child’s life spent in the parent's custody,
the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the
child’s particular needs . . . .” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
      Here, the court found that it would be detrimental to the children to be
returned to the parents and that none of the statutory exceptions applied. The
finding is supported by substantial evidence. The children were very young -- 6, 4
and under 2 -- in June 2011 when they were detained, and by the time of the
section 366.26 hearing, had been cared for by their grandparents for a substantial
portion of their lives. In 2012, shortly after reunification services were terminated,
Mother and Father moved away from the apartment complex where the children
were living and ceased being a day-to-day fixture in their lives. The reports
indicated that in 2011 and 2012, Damian expressed a desire to live with his parents
because “we have fun and we play,” but that he was also content to stay with his
grandparents. No other evidence was presented that the children missed their
parents, suffered from their absence or were unhappy in their placement. Thus,


                                           12
there was no evidence that they would be “greatly harmed” by the loss of the
relationship.
        Mother contends that evidence established that she maintained a parental
role in the lives of the minors because of the uncontested evidence she helped them
with their homework. Counsel stipulated that Mother would testify to that effect.
The court was not bound to give the stipulated testimony credence, especially
where, as here, two of the children were pre-school when detained and the children
were only 8, 6 and not yet 4 when the court terminated parental rights. In any
event, there was no evidence Mother and Father cared for them in other essential
ways, such as feeding or bathing them, taking them to medical appointments, or
providing financial support. (See In re Autumn H., supra, 27 Cal.App.4th at p. 575
[“Interaction between natural parent and child will always confer some incidental
benefit to the child. The significant attachment from child to parent [to support the
exception] results from the adult’s attention to the child’s needs for physical care,
nourishment, comfort, affection and stimulation.”].)
        Mother and Father contend that evidence of a significant bond was
undisputed because in the supplemental reports addressing the petitions for
modification, the caseworker responded to the parents’ contentions that they and
the children shared a bond by observing that the parents would continue to see the
children due to the maternal grandparents’ expressed willingness to allow parental
visitation to continue. We do not view this as a concession on DCFS’s part, but an
acknowledgment that a relationship is likely to continue when the children are
adopted by close family members.11

11
       Respondent suggests the grandparents’ amenability to continued contact with the
parents supported the trial court’s decision to terminate parental rights. Where a
beneficial parent/child bond is established by the evidence, the promise of prospective
adoptive parents to continue to include the biological parents in the children’s lives can
(Fn. continued on next page.)

                                            13
      Mother and Father contend the court applied an incorrect standard, relying
on the statements made by the court prior to ruling on termination, quoted above.
Specifically, they point to the court’s statements that “[the parents] needed to get
all of these things done two years ago so we could have avoided this” and “[t]hat’s
why we try and give you all of the services up front and encourage you to get these
things done up front and warn you that if you don’t, you could not only lose the
services, but lose your rights to be parents of the children, because they deserve
and they need permanency.” The parents contend the court “relied on the criteria
for a petition for modification, not the beneficial relationship exception” in making
its ruling. We view the court’s statements as an expression of regret that the
parents did not turn their lives around in time to avoid reaching the termination
stage. Nothing in the record indicates the court was unaware of or failed to apply
the appropriate criteria.




have no bearing on the court’s determination to sever parental rights. (In re C.B. (2010)
190 Cal.App.4th 102, 128-129 [juvenile court cannot “terminate parental rights based
upon an unenforceable expectation that the prospective adoptive parents will voluntarily
permit future contact between the child and a biological parent, even if substantial
evidence supports that expectation”; court cannot “leave the protection of [a beneficial
parent/child] relationship dependent upon the hoped-for goodwill of the prospective
adoptive parents”]; accord, In re S.B., supra, 164 Cal.App.4th at p. 300.) We see nothing
in the record to indicate that the juvenile court relied on the statements in the
caseworker’s reports about the grandparents’ post-adoption intentions in making its
ruling.

                                           14
                                     DISPOSITION
       The orders denying the section 388 petitions and terminating parental rights
are affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  MANELLA, J.


We concur:




EPSTEIN, P. J.




EDMON, J.*




*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.




                                             15
