NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Julia Kelety, Judge, Super. Ct. No. J515658A, C
IRION, J.
Juana P. appeals a judgment of the juvenile court terminating her parental rights to her minor daughters Paulina P. and E.P. (together the minors) under Welfare and Institutions Code section 366.26. Juana contends the court erred by denying her section 388 petition for modification seeking either return of the minors to her care or additional reunification services. She also challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. The minors' alleged father, Paulino A., joins in Juana's arguments and also contends: (1) the court violated his due process rights by not giving him adequate notice of the dependency proceedings and an opportunity to establish his paternity; and (2) the court abused its discretion by denying his request for a continuance of the selection and implementation hearing pending results of genetic testing. Raul C., another alleged father of Paulina, also appeals, asking this court to exercise its discretion to review the record for error under In re Sade C. (1996) 13 Cal.4th 952. We affirm the judgment as to Juana and Paulino and dismiss the appeal as to Raul.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2005, one-month-old Paulina became a dependent of the juvenile court under section 300, subdivision (b) and was removed from parental custody based on findings Juana abused drugs. The court ordered Juana to participate in reunification services, including the Substance Abuse Recovery Management System (SARMS) program.
Juana identified Paulino as Paulina's father. Although Juana reportedly knew Paulino's whereabouts, efforts by the San Diego County Health and Human Services Agency (Agency) to locate Paulino were unsuccessful. Paulino did not respond to Agency's letter, sent to Juana's address, offering him reunification services. Agency also notified Raul of the dependency proceedings after he claimed to be Paulina's father.
During the next 12 months, Juana resisted services and took no responsibility for placing Paulina at risk. According to a psychological evaluation, Juana's prognosis with respect to her parenting skills was guarded. She visited Paulina sporadically. She made little progress in therapy, was in poor compliance with SARMS and was convicted of transporting and selling drugs. Paulino was also convicted of selling and possessing drugs and was sentenced to prison for five years. The court appointed counsel for Paulino as Paulina's alleged father.
While attending a substance abuse treatment program, Juana tested positive for amphetamine and methamphetamine. A month later, Juana gave birth to E.P. Agency filed a petition in the juvenile court on behalf of E.P. under section 300, subdivision (b) alleging Juana admittedly used drugs during her pregnancy. Juana identified Paulino as E.P.'s father and the court appointed counsel for him. Paulino told Juana he would not attend any of the hearings and would refuse paternity testing because he knew he was Paulina's father.
At a contested 12-month review hearing for Paulina, the court found reasonable services had been offered or provided to Juana, she had not made substantive progress with her case plan, and returning Paulina to Juana's custody would be detrimental to Paulina. The court terminated reunification services and set a section 366.26 selection and implementation hearing for Paulina.
At a contested jurisdiction and disposition hearing for E.P., the court declared E.P. a dependent, removed her from Juana's custody and placed her in foster care. The court ordered no reunification services for Juana and set a section 366.26 selection and implementation hearing for E.P.
Paulino appeared with counsel at a special hearing in September 2006. The court authorized paternity testing for Paulino and ordered him to return for the selection and implementation hearings.
Juana filed a section 388 petition for modification seeking to have the minors placed with her, or alternatively, additional reunification services. As changed circumstances, Juana alleged she had been: (1) participating in drug court; (2) clean and sober for more than 100 days; (3) participating in substance abuse treatment for three months; (4) attending therapy for two months; and (5) having regular visits with the minors. As to best interests, Juana alleged the minors were not in an adoptive home, she worked hard to reunify with them and they deserved the opportunity to be raised by their mother.
At a hearing on Juana's modification petition, Paulino, who was in local custody, was present with counsel and told the court he had not been tested for paternity. The court ordered Agency to follow up with the laboratory to ensure the testing occurred. At a continued hearing 10 days later, the court denied Paulino's request for a continuance to take a paternity test.
Juana presented evidence she had consistently attended drug treatment twice a week and support group meetings once a week from June 16 through September 30, 2006. Juana had no positive drug tests and she graduated from the program. She also presented evidence she was making significant progress in therapy and her prognosis was very good if she continued therapy.
According to an assessment report, Juana's visits with the minors were generally appropriate, although she sometimes ignored Paulina. The minors were not excited to see Juana and had no difficulty separating from her when visits ended.
The minors were assessed as adoptable based on their ages, good health and engaging personalities. Their caregiver was willing to adopt them if no adoptive families were available. The social worker reported there were numerous families willing to adopt the minors individually or as sibling set. In the social worker's opinion, the minors did not have a beneficial relationship with either Juana or Paulino, and adoption was in their best interests.
Juana testified she was participating in drug court, had been clean and sober for 180 days and recently graduated from a drug treatment program. She was attending individual therapy and visiting the minors once a week for two hours. Juana said Paulina recognized her as her mother and was affectionate during visits. Juana no longer wanted to use drugs, she had learned about relapse prevention and she believed she could remain clean and sober if the minors were returned to her. Although she was attending Narcotics Anonymous (NA) meetings two or three times a week, she was unfamiliar with the 12-step program and had no sponsor.
Social worker Marisa Gonzalez testified she had arranged a paternity test for Paulino, and when the test did not occur, she arranged another one. Gonzalez acknowledged Juana had made some progress since reunification services were terminated, such as completing a drug treatment program and attending therapy, but Gonzalez believed it was not in the minors' best interests to be returned to Juana based on their young ages and Juana's history of drug abuse, failure to be truthful with her former therapist and lack of stable housing and employment. Further, Juana's psychological evaluation showed her prognosis remained guarded in that Juana was impulsive and there were concerns about her ability to provide the minors with a safe environment.
After considering the evidence and hearing argument of counsel, the court denied Juana's section 388 petition, finding her circumstances were changing, but had not changed, and it would not be in the minors' best interests to grant the petition.
Paulino renewed his request for a continuance of the selection and implementation hearing until his paternity test had been completed. The court denied the request, noting a special hearing would be set regarding paternity. The court found it was likely the minors would be adopted and none of the circumstances of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court terminated the parental rights of Juana, Paulino and Raul, and referred the minors for adoptive placement.
DISCUSSION
I
Juana contends the court erred by denying her section 388 modification petition. She asserts her circumstances had changed sufficiently to warrant further reunification services that would enable her to eventually regain custody of the minors. She further asserts granting the petition was in the minors' best interests because it would allow them to maintain the relationship and bond they already had with her.
Paulino joins in this argument.
A
Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, there is a change in circumstances or new evidence, and the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we may not substitute our decision for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Casey D., supra, 70 Cal.App.4th at p. 47.)
B
The evidence showed Juana had not used drugs for 180 days, had completed a three-month drug treatment program, was making progress in therapy and regularly visiting the minors. Her efforts to change her life were commendable. However, Juana's relatively brief period of sobriety following years of substance abuse, a drug-related arrest and failed rehabilitation showed she was just beginning to make progress in addressing the problems that led to the minors' dependency. Although Juana claimed she was regularly attending NA meetings and was on step 3 of the 12-step program, she could not recall or explain any of the steps and she did not have a sponsor. Her progress in therapy was recent, she attended only nine sessions and she remained limited in her understanding of herself and her issues. In this regard, Juana's circumstances were "changing," but had not "changed." (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 [addiction requires much more than 120 days of sobriety to show real reform]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [father's seven months of sobriety insufficient to show changed circumstances in light of his substance abuse history].)
Juana argues the "better approach" was an order for six more months of services. However, a petition like Juana's that alleges changing circumstances does not promote stability for the child or the child's best interests because it would mean delaying the selection of a permanent home to see if a parent, who has failed to reunify with the child, might be able to reunify at some future point. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) "[C]hildhood does not wait for the parent to become adequate." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)
C
Even had Juana shown sufficient changed circumstances, she did not show modifying the court's previous order was in the minors' best interests. At the time of the hearing on Juana's modification petition, the focus of the proceedings had shifted from family preservation to providing the minors with a safe, stable and permanent home. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Juana was provided with 12 months of reunification services, but had not been sober long enough to show she had overcome her drug problem. According to her psychological evaluation, Juana's prognosis for providing a safe and nurturing environment for her children was guarded. She did not have appropriate housing or a stable job, and had never progressed to unsupervised visits with the minors. Whether Juana could eventually regain custody of the minors with more reunification services was not relevant to the court's inquiry or findings at the section 388 hearing. Rather, the court properly evaluated the evidence in light of the minors' need for stability and security, and found their best interests would not be served by returning them to Juana's custody or by ordering further reunification services. The court acted well within its discretion by denying Juana's modification petition.
II
Juana challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. She asserts she regularly visited the minors, who shared a close bond with her and would benefit from continuing the relationship.
Paulino joins in this argument.
A
We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary conclusion. (In re Baby Boy L., (1994) 24 Cal.App.4th at p. 610; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of six specified exceptions. (§ 366.26, subd. (c)(1)(A)-(F); In re Erik P. (2002) 104 Cal.App.4th 395, 401; In re Derek W. (1999) 73 Cal.App.4th 823, 826.)
Section 366.26, subdivision (c)(1)(A) is an exception to the adoption preference if termination of parental rights 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." We have interpreted the phrase "'benefit from continuing the relationship'" to refer to a "parent[-]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 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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) "In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B
Although Juana regularly visited the minors, she did not meet her burden of showing her relationship with them was sufficiently beneficial to outweigh the benefits of adoption. The minors were removed from Juana's custody at birth and had never lived with her. Supervised visits between Juana and the minors went well, but the minors did not have difficulty separating from her when visits ended. In the social worker's opinion, the minors did not view Juana as a parental figure and had no beneficial parent-child relationship with her. Rather, their physical and psychological needs were met by their caregiver. There was no evidence of a "significant, positive, emotional attachment" from the minors to Juana such that terminating the parent-child relationship would result in great detriment to them. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Although other evidence showed Juana held, fed and played with the minors during visits, the court was entitled to give greater weight to the social worker's version of the interaction between Juana and the minors. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)
Where, as here, the biological parent does not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) The minors, whose needs Juana could not meet, deserve to have their custody status promptly resolved and their placement made permanent and secure. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating parental rights.
III
Paulino contends the court violated his due process rights when it failed to give him adequate notice of the minors' dependency proceedings and an opportunity to establish his paternity. He asserts: (1) he was not served with Judicial Council form JV-505 or informed about his options for establishing paternity; (2) the court did not question him about paternity as required by California Rules of Court, rule 5.635; and (3) the court belatedly ordered paternity testing in Paulina's case after it set the selection and implementation hearing.
All rule references are to the California Rules of Court.
A
There are three types of fathers in juvenile dependency law: presumed, biological and alleged. (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120.) Paternity status is important because it determines a father's rights in a dependency case and the extent to which he may participate in the proceedings. (Ibid.) A presumed father, as defined by Family Code section 7611, is entitled to appointed counsel, custody (if there is no finding of detriment) and reunification services. (Ibid.) A biological father is an individual whose paternity has been established but who has not shown he qualifies as the child's presumed father under Family Code section 7611. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) The juvenile court may provide reunification services to a biological father if it finds services will benefit the child. (§ 361.5, subd. (a).)
An alleged father is a man who might be the father of a child, but whose biological paternity has not been established. (In re Joseph G. (2000) 83 Cal.App.4th 712, 715.) Because his paternity has not yet been established, an alleged father does not have a current interest in a child. (In re O.S. (2002) 102 Cal.App.4th 1402, 1406.) Thus, alleged fathers have significantly fewer rights than biological fathers and presumed fathers. An alleged father is not entitled to appointed counsel or to reunification services. (In re Kobe A., supra, 146 Cal.App.4th at p. 1120.) The due process rights of an alleged father are satisfied by giving him notice and an opportunity to appear, assert a position and attempt to change his paternity status. (Ibid.)
Section 316.2 sets forth the statutory procedure that protects an alleged father's limited due process rights. Subdivision (b) of that section directs the clerk of the juvenile court to provide notice to an alleged father "at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child." (§ 316.2, subd. (b).) The statute also requires Judicial Council form JV-505 (entitled Statement Regarding Parentage) be included with the notice. (Ibid.) Form JV-505 allows an alleged father to indicate his position with regard to paternity and representation by counsel, and advises him of his rights and options. (In re Kobe A., supra, 146 Cal.App.4th at p. 1121.)
Rule 5.635(g), which implements section 316.2, similarly provides for notice to an alleged father.
Rule 5.635(a) requires the juvenile court to "inquire about, and if not otherwise determined, to attempt to determine the parentage" of a child who is the subject of a dependency proceeding. At all hearings until or unless parentage has been established, the court must inquire about the identity and address of any presumed or alleged parents of the child. (Rule 5.635(b).) The court must advise any alleged parent of his or her financial responsibilities with respect to support of the child. (Rule 5.635(e)(3).)
B
Here, the record shows Paulino was identified as Paulina's alleged father in the dependency petition. Because a parent search had been unsuccessful and Paulino's whereabouts were unknown, Agency sent him notice of the dependency proceedings at Juana's address. After learning Paulino was incarcerated, Agency and the clerk of the juvenile court sent him notice at his prison address. However, nothing in the record indicates the notices sent to Paulino included form JV-505. Although Paulino should have been served with form JV-505 as required by section 316.2, subdivision (b) and rule 5.635(g), the error was harmless beyond a reasonable doubt. (In re Angela C. (2002) 99 Cal.App.4th 389, 393-395 [errors in notice do not automatically require reversal, but are reviewed to determine whether they are harmless beyond a reasonable doubt]; In re Daniel S. (2004) 115 Cal.App.4th 903, 912-913 [same].)
The record shows Paulino had actual notice of the dependency proceedings. Paulino knew Juana was pregnant with his child, and after Paulina was taken into protective custody at birth, Paulino maintained his relationship with Juana. He was photographed holding five-week-old Paulina, who had been detained in out-of-home care. Despite knowing about the dependency proceedings, Paulino did not respond to Agency's offer of reunification services. He told Juana he would not attend any of the hearings and would refuse paternity testing because he knew he was Paulina's father. Although the court appointed counsel for Paulino, he waived his appearance at most of the hearings. In September 2006, Paulino appeared with counsel and the court ordered paternity testing. Thus, regardless of how Paulino learned of his rights, he had notice of the hearings, knew he could request a paternity test, and had the benefit of counsel when he eventually requested paternity testing. This is not a case where an alleged father was unaware he potentially had paternal rights. (Cf. In re Paul H. (2003) 111 Cal.App.4th 753, 762). Under these circumstances, we cannot say Paulino would have obtained a more favorable result had form JV-505 been sent to him. (In re Kobe A., supra, 146 Cal.App.4th at p. 1123; In re Angela C., supra, 99 Cal.App.4th at pp. 393-394.)
Paulino admits he did not immediately come to court after Paulina had been detained.
Paulino's reliance on In re Paul H., supra, 111 Cal.App.4th 753, is misplaced. In that case, the court agreed with an alleged father's claim he was denied access to a procedure by which he could have compelled court-ordered paternity testing when he was not served with form JV-505 and did not receive assistance from the social services agency to arrange for testing. (Id. at pp. 761-762.) Here, in contrast, Paulino had the assistance of counsel and successfully requested paternity testing.
Further, the court's failure to directly question Paulino when he appeared in court as required by rule 5.635 was not error. The petitions filed on behalf of the minors listed Paulino as an alleged father. The court determined Paulino was an alleged father and appointed counsel for him. Because Paulino's identity as an alleged father had been established and paternity testing had been ordered, there was no need for the court to further inquire about the minors' parentage. (Rule 5.635(a) & (b).)
C
Even had Paulino received form JV-505 or otherwise been informed about elevating his paternity status, he would not have been able to meet the statutory elements to be declared a presumed father under Family Code section 7611. Indeed, Paulino does not claim he was prejudiced in his ability to obtain presumed father status by which he would have been entitled to custody and reunification services. (See In re T.R. (2005) 132 Cal.App.4th 1202, 1209 [biological fatherhood alone is not sufficient to establish presumed father status].) Rather, he argues the court ordered paternity testing too late to be of any benefit to him in his effort to reunify with the minors as their biological father.
Although a paternity test could have been completed sooner, this does not amount to a wholesale denial of process due an alleged father in Paulino's circumstances. (Cf. In re Paul H., supra, 111 Cal.App.4th at pp. 758-759.) As we previously discussed, Paulino had notice, a court order for a paternity test and the assistance of counsel to ensure his paternity was timely established. Moreover, had the results of a paternity test earlier confirmed Paulino was the minors' biological father, he was not entitled to reunification services. Rather, the court had discretion to offer him, as a mere biological father, reunification services only if doing so would benefit the minors. (§ 361.5, subd. (a); In re Zacharia D., supra, 6 Cal.4th at p. 451.)
Although Paulino knew of Paulina's existence and believed she was his child, he did not promptly show he was committed to his parental responsibilities. At the time of E.P.'s birth, Paulino was serving a five-year prison sentence. Because Paulino had no relationship with the minors and no ability to reunify with them, it is not reasonably likely the court would have found reunification services were in the minors' best interests. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597 [legislature has determined it is generally in best interests of child to be reunited with presumed father but not necessarily with mere biological father]; In re Elijah V. (2005) 127 Cal.App.4th 576, 589 [court properly denied reunification services to biological father].)
IV
Paulino contends the court abused its discretion by denying his request for a continuance of the selection and implementation hearing until it received the results of his paternity test.
A
Under section 352, the juvenile court may grant a continuance of any hearing only on a showing of good cause and only if the continuance is not contrary to a minor's best interests. In considering the minor's interests, "the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (§ 352, subd. (a); In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.) Continuances in juvenile cases are discouraged. (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242.) We reverse an order denying a continuance only on a showing of an abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)
B
Paulino sought a continuance of the selection and implementation hearing in an attempt to show he was the minors' biological father. However, as we previously discussed, a finding of paternity would not have entitled Paulino to reunification services, and the court was not likely to order services as being in the minors' best interests. A continuance of the selection and implementation hearing, regardless of how brief, would have impacted the minors' need to have their custody status promptly resolved and their placement made permanent and secure. The court acted well within its discretion by denying Paulino's continuance request.
Paulino claims the court, by terminating parental rights without waiting for paternity test results, foreclosed his relatives from seeking placement of the minors. However, terminating Paulino's parental rights did not prejudice the ability of his relatives to seek placement should test results show Paulino is the biological father. His relatives remain relatives until the minors are adopted. In any event, there was no indication any of Paulino's relatives expressed an interest in the minors throughout the dependency proceedings.
V
Raul, who is another alleged father of Paulina, asks us to exercise our discretion to review the record for error under In re Sade C., supra, 13 Cal.4th 952. In that case, the Supreme Court held review under People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting his custody of a child or his status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny Raul's requests to review the record for error and to address his Anders issues. (Anders v. California (1967) 386 U.S. 738.)
Raul's counsel also requests leave for him to file a supplemental brief in propria persona. The request is denied.
DISPOSITION
The judgment as to Juana and Paulino is affirmed. Raul's appeal is dismissed.
WE CONCUR: McCONNELL, P. J., AARON, J.
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