Filed 10/15/13 In re Drake B. CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

In re DRAKE B., a Person Coming Under the Juvenile Court Law.

KERN COUNTY DEPA RTMENT OF HUMAN SERVICES, Plaintiff and Respondent,

v. SHANE B., Defendant and Appellant. F066867 (Super. Ct. No. JD126612-00)



### OPINION

THE COURT *
APPEAL from orders of th e Superior Court of Kern County. William D. Palmer, Judge. Linda J. Conrad, under ap pointment by the Court of Appeal, for Defendant and Appellant. Theresa A. Goldner, Coun ty Counsel, and Thomas G. Morgan, Deputy County Counsel, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Kane, J. and Poochigian, J.2 Shane B. appeals from the juvenile court’ s orders denying his petition to modify a prior order (Welf. & Inst. Code, § 388) 1 and terminating his parental rights as to his sixyear-old son, Drake. (§ 366.26.) We affirm. PROCEDURAL AND FACTUAL SUMMARY In June 2011, the Kern C ounty Department of Human Services (department) took then three-year-old Dr ake into protective custody after hi s mother Sara struck a parking lot pillar at approximately 50 miles per hour while driv ing under the influence of prescription medication and with Drake as a pa ssenger in the car. Sara was arrested for driving under the influence (DUI) and child endangerment. She wa s also arrested in 2009 and 2010 for DUI and wa s involved in six vehicular accidents between November 2008 and June 2011. She admitted using at least 40 prescribed Norco and 20 prescribed Soma on a daily basis. Sara told the investigating social worker that she and Drake’s father, Shane, lived together for approximately five years but separated sometime around April 2010, after which she and Shane shared legal custody of Dr ake. She also stated that she and Shane had another son, Ryder, who died in May 2010, while in Shane’s care. She explained that Shane was sleeping with R yder in the bed and rolled over onto him. Shane awoke to find Ryder dead. The coroner listed the caus e of then six-month-old Ryder’s death as “sudden unexpected death associ ated with bedsharing and aspirated gastric contents.” At the time of Ryder’s death, Shane tested positive for benzodiaze pines, cocaine and marijuana. Shane told the social worker that he was aware of Sara’s use of prescription medication and her DUI. He said that he normally smoked mariju ana nightly before going to bed but had not smoked it in approximately two months. He declined to identify

1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.3 any other drugs he used and referred the social worker to the police report taken at the time of Ryder’s death. The department filed a de pendency petition under sec tion 300, subdivision (b) (subdivision (b)), alleging that Sara and Sh ane’s drug use and inad equate protection and supervision placed Drake at a substantial risk of harm. The department subsequently amended the petition to include a subdivisi on (b) allegation that Shane was aware of Sara’s history of using pres cription pain medication and driving under the influence, provided Sara prescription narcotics (Norco and Soma) approximately two to three times a week since approximately 2004, and a llowed Drake to remain in her custody unsupervised. In August 2011, at an uncontested ju risdictional hearing, the juvenile court sustained the amended dependen cy petition and found the alle gations true. The following month, at an uncontested dispositional he aring, the juvenile court exercised its dependency jurisdiction, ordered Drake rem oved from Shane and Sara’s custody, and ordered each a plan of reunifi cation that required them to participate in counseling for child neglect, grief, parenting and substance abuse, and submit to random drug testing. The juvenile court also ordered weekly superv ised visitation and set the six-month review hearing for March 2012. Drake was placed with Windi K., Sara’s first cousin. Over the ensuing six months, neither Shane nor Sara complied with their services plan. Shane attended an initial appointment at Haven Counseling Ce nter for parenting and neglect classes but did not return. He also refused to sign up for substance abuse counseling and submit to drug te sting despite repeated request s and urging by the social worker. He told his social wo rker that he was unable to par ticipate in services because he worked out of town. He declin ed her offer to arrange for drug testing in the county where he was working and refused on-the-spot drug te sting. During a visit in February 2012, Shane stated that he expected to regain custody of Drake atthe hearing in March. The social worker advised him that the depart ment would probably recommend termination of4 services given his lack of pr ogress and refusal to drug test . According to the social worker, Shane appeared shocked and stated that the juvenile court should return Drake to his custody because he had had a difficult time since Ryder’s de ath. He stated, “‘Since I haven’t pissed dirty for you guy s, you don’t have anything on me and there isn’t any reason not to give me my son back.’” In its report for the six-month review hearing, the department informed the juvenile court that Shane regularly visite d Drake and was engagi ng of him and patient with him. Sara, on the other hand, had not vi sited Drake since December 2011, or kept in contact with the social worker. In March 2012, the juvenile court cond ucted the six-month review hearing and continued reunification services for Shane and Sa ra. Sara was not present at the hearing. However, Shane was present and the juvenile court advised him that the only reason it continued services was because Drake was th ree years old at the time he was initially removed and the statute required it. The juvenile court also warned him that if he did not progress by the 12-month review hearing in June 2012, that it would go “a different direction.” In its report for the 12-month review hearing, the department informed the juvenile court that Sara had not visited Drake or contacted the department since December 2011, and her whereabouts were unkno wn. As to Shane, it reported that his visits with Drake continued to go well but that Shane had not enrolled in any of his services or drug tested. Meanwhile, Drake had adjusted well to living with Windi and her husband and they wanted to adopt him. In light of the circumstances, the department recommended that the juvenile court terminat e reunification services and set a section 366.26 hearing to implement a permanent plan. The 12-month review hearing, originally calendared for June 2012, was continued and conducted in August 2012. In the interi m, Shane told his soci al worker that he enrolled in Haven Counseling Center in Ap ril 2012 and attended 12 weeks of the 52-5 week parenting and neglect progra m. In addition, he submitted to a drug test in mid-June 2012, and stated that th e test results would be positive for marijuana. In August 2012, Sh ane appeared at the 12-month review hearing. His attorney informed the juvenile court that Shane a ttended over 20 parenting classes, attended substance abuse classes and was drug testing. After hearing argument, the juvenile c ourt terminated reunification services and set a section 366.26 hearing. Shane challe nged the juvenile c ourt’s setting hearing by writ petition (F065619), which we denied. In February 2013, after a month in jail, Shane filed a secti on 388 petition asking the juvenile court to return Dr ake to his custody. He att ached a certificate showing he completed substance abuse treatment from West Care in January 2012, and monthly drug test results for Augu st through December 2012, showin g negative results in August and positive results for opiates in September th rough December 2012. The results were annotated to reflect that he was taking va rious prescription medications, including Soma, Norco and hydrocodone. Social worker Roxanne Vasquez met w ith Shane to discu ss his section 388 petition. He said he was not requesting fami ly reunification services as he had already completed them. Instead, he wanted Drake returned to him under family maintenance. He said he did not want anyo ne else raising his child and stated that Drake was never taken from him; he was removed because of Sara’s actions. Vasquez contacted the staff at Haven Co unseling Center and was told the center would be closed at the end of February 2013, and Shane would be referred to another agency to complete hi s program. According to the Febr uary 2013, progre ss report, Shane completed 35 weeks of counseli ng, recognized his problem, participated openly and was cooperative. Vasquez also verified thatShane completed outp atient treatment at WestCare in January 2013, rath er than in 2012, as reflect ed on his certificate.6 The department reported to the juvenile court that Shane consistently visited Drake and they shared a strong bond. In addi tion, Drake stated he did not want to be adopted and wanted to return to Shane’s custody. The depa rtment, however, opined that Drake did not fully understand the meaning of adoption. The department also opined that Drake was adoptable and his re lationship with Shane was not significant enough to cause Drake severe emotional trauma if Shane’ s parental rights were terminated. The department recommended the juvenile c ourt deny Shane’s s ection 388 petition and terminate his parental rights. In March 2013, the juvenile court cond ucted a combined and contested hearing under sections 388 an d 366.26. Sara did not personally appear. Shane testified he completed 18 or more hours of parenting and neglect classes while incarcerated and he submitted his certificate of completion to the c ourt. He worked as a plumber and lived with his mother, where he planned to st ay until he acquired his own home. Shane further testified that Drake lived with him from birth to his detention and they were very close. Drake knew him as his father and asked about coming home “all the time.” Shane believed it would be in Drake’ s best interest to re turn to his custody because of the closeness of their relationshi p and believed terminati ng his parental rights would harm Drake because Shane raised him as his son. He denied ever providing Sara hydrocodone or any other drugs. Social worker Vasquez testified the on ly certificate of completion she received from Shane was for substance abuse counseling from WestCare. She said Shane had not contacted her since his release from jail. Ms. Vasquez further testified Shane’s vi sits with Drake were of “good quality” and the visits usually ended with hugs. She believed there was still a bond between Shane and Drake. Windi, Drake’s caretaker, testified she su pervised visits betw een Shane and Drake since June of 2012. Drake was excited to se e Shane and ran to him when he saw him.7 He did not ask to talk to Sh ane between visits but was exc ited to talk to Shane when Shane called him. She said she saw Shane, Sara and Drak e during the ho lidays before Drake was detained and described Shane and Drake as being “close.” She could not say if their relationship had diminished but said there was “very much affection” when they saw each other. She did not know if Drake w ould be emotionally harmed if he was not able to see Shane anymore but knew he would miss Shane. Following argument, the juvenile court denied Shane’s secti on 388 petition. In doing so, the court expressed its concern that Shane denied his responsibility for providing Sara drugs even though the juvenile court previously found otherwise. In addition, the court found no evidence that returning Drake to Shane’s custody was in Drake’s best interest. The juvenile court proceeded to hear argument on the department’s recommendation to terminate Shane’s parental rights. Shane’s attorney asked the juvenile court to find that the parent-child benefit exception to adoption applied. He argued that Shane regularly visited Drake an d there was a strong bond between them. He further argued it would be detrimental to te rminate Shane’s parental rights. Minor’s counsel joined in his argument. At the conclusion of the hearing, the j uvenile court found Drake adoptable. The court also found that Shane ma intained regular visitation and contact with Drake but did not find that continuing their relationship would benefit Drake. The court terminated Shane and Sara’s parental right s. This appeal ensued. DISCUSSION I. Denial of Shane’s section 388 petition Shane contends the juvenile court abused its discretion in denying his section 388 petition because he substantia lly complied with his reunifi cation services and because Drake was closely bonded to him and wanted to live with him.8 Any party may petition the ju venile court to modify or set aside a prior dependency order pursuant to section 388 on grounds of changed circumstance or new evidence. (§ 388, subd. (a).) The party bringing the secti on 388 petition must also show the proposed change is in the be st interests of the child. ( In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Section 388 provides a means for the court to address a legitimate change of circumstances even at the perm anency planning stage while protecting a child’s need for prompt resolution of his or her custody status. ( In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Wh ether the juvenile court should modify a previously made order rests within its discretion and its determinatio n will not be disturbed absent a clear abuse of discretion. ( In re Stephanie M., supra, at p. 318.) The issue in this case was not whether Shane met his burden of proving changed circumstances but whether he proved returni ng Drake to his custody would serve Drake’s best interest. Three principle factors bearon the juvenile court’s evaluation of best interests in the context of a section 388 petitio n: (1) the seriousness of the problem that necessitated dependency and the reason the problem continued; (2) the strength of relative bonds between the depe ndent child to the parent and caretakers; and (3) the degree to which the problem may be easily re moved and the degree to which it actually has been. ( In re Kimberly F . (1997) 56 Cal.Ap p.4th 519, 532.) Here, the juvenile court stated it had no evidence returni ng Drake to Shane’s custody would be in Drake’s best interest. What the court did have was great concern about Shane’s refusal to take responsibility for contributi ng to Sara’s drug abuse and ultimately to Drake’s removal. The court wa s very emphatic on that point. It stated: “[Shane] has, to this date a nd to the time of his testimony this morning, continued to main tain that he had no res ponsibility for [the initial incident], even though the Court has found otherwise and even though the facts suggest otherwise. That to me is very, very, not only telling, but very concerning.” Indeed, 21 months had passed from the time of Drake’s removal and Shane still did not acknowledge his part in it despite a year of counseling.9 Shane contends the juvenile court had co mpelling evidence th at Drake’s return would serve his best interests; namely, Drake’ s statements he did no t want to be adopted and wanted to live with Shane, as well as Dr ake’s loving behavior toward Shane. Such evidence is “powerful demonstr ative evidence” of best inte rests, Shane argues, citing In re Aljamie D . (2000) 84 Cal.App.4th 424, 432 ( Aljamie D .).
In Aljamie D ., a mother filed a section 388 pe tition seeking to modify the order placing her nine and 11-year-old daughters in long-term foster care. She alleged she fully complied with her case plan, vi sited the children consistently and the children wanted to return to her. The juvenile cour t denied her petition ex parte. ( Aljamie D ., supra , 84 Cal.App.4th at p. 428.) During a contes ted section 366.26 h earing, the daughters testified they wanted to live with their mother. ( Aljamie D., supra, at p. 430.) Nevertheless, the juvenile court ordered the daughters into legal guardianship with their maternal aunt and their mother appealed. ( Id . at p. 431.) The issue on appeal was whether the mother in Aljamie D . was entitled to an evidentiary hearing on her se ction 388 petition. The appella te court concluded that she was and reversed. ( Aljamie D ., supra , 84 Cal.App.4th at pp. 432-434.) The court concluded that the mother’s pe tition made a prima facie showing that the best interests of her daughters would potentially be advanced by her request for a change in the placement order. The court cited the fact that the girl s repeatedly “made clear their first choice was to live with their mother.” ( Id . at p. 432.) The court clarif ied, “While a child’s wishes are not determinative of her best interests, the child’s testimony th at she wants to live with her mother constitutes powerful demonstra tive evidence that it would be in her best interest to allow her to do so.” ( Ibid. ) In our view, Aljamie D . is distinguishable procedurally and factually. First, the appellate court’s treatment of the daughters’ wishes was in the context of prima facie evidence to necessitate a heari ng not a determination of best interest to support granting a section 388 petition. Indeed, the court stated the children’s wishes were probative not10 determinative. Further, unlik e Drake, the daughters in Aljamie D . were older and more fully cognizant of their desires and they testified. There is no doubt Drake remained bonded to Shane throughout these proceedings. However their bond did not mean Drake’s best interest would be serv ed by returning him to Shane when Shane did not take responsib ility for his conduct and when Drake was doing well in his adoptive home. We find no abuse of discre tion in the juvenile court’s evaluation of best interest and in its order denying Shane’s section 388 petition. Because we affirm the juvenile court’s order denying Shane’s section 388 pe tition, we need not address his contention that the juvenile court could have continue d reunification services beyond the statutory limitation. II. Failure to apply the bene ficial relationship exception Shane also contends the juvenile court erred by failing to apply the beneficial relationship exception to termination of his pa rental rights to Drake. He contends he maintained a parent/child rela tionship with Drake through vis itation and that the juvenile court could infer from the strength of their bond that Drake would be harmed if their relationship was severed. Once a dependency case reaches the perman ency planning stage, the statutory presumption is that termination is in an adopta ble child’s best interests and, therefore, not detrimental. (§ 366.26, subd. (b); In re Lorenzo C . (1997) 54 Cal.App.4th 1330, 1343- 1344 ( Lorenzo C. ).) It is the parent’s burden to show that termin ation would be detrimental under one of the statutory exceptions. ( In re Zachary G . (1999) 77 Cal.App.4th 799, 809.) The beneficial relationship exception in section 366.26, subdivision (c)(1)(B)(i), involves a two-part test; did the parent maintain regular visitation and contact with the child, and would the child benefit from continuing the relationship. For the beneficial relations hip exception to apply:11 “[T]he parent-child relationship [must] promote the well-being of the child to such a degree that it ou tweighs 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 ....) A juvenile court must therefore: ‘balance ... the strength and quality of the natural parent/child relationship in a tenuous placement against the secu rity and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantia l, 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.’ ( Id . at p. 575.)” ( Lorenzo C ., supra , 54 Cal.App.4th at p. 1342.) When a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile cour t abused its discretion in so doing. ( In re
Jasmine D . (2000) 78 Cal.Ap p.4th 1339, 1351 ( Jasmine D. ).) The decision is not reviewed, as Shane argues, for substantial evidence th at termination would be detrimental. To conclude there was an abuse of discretion, the proof offered must be uncontradicted and unimpeached so that discretion could only be exercised in one way, compelling a finding in favor of the appellant as a matter of law. ( Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W . (2009) 180 Cal.App.4th 1517, 1528.) Based on our review of the record, we conclude the juvenile court properly exercised its discretion in rejecting Shane’s argument. There is no dispute Shane maintained regu lar contact with Drake and thus satisfied the first part of the two-part test. Shane faile d to establish, however, the second part, that Drake would benefit from continuing his relati onship with him. While Shane presented evidence Drake recognized him as his father and they had pleasant visits and loving contact, Shane did not establish he fulfilled a parental role. Nor did he establish it would be detrimental to Drake to sever their relationship. Shane argues the parent/child bond he shared with Drak e during the two years he parented him and Drake’s positive reaction to him evidence the kind of relationship envisioned by the beneficial relationship excepti on. Shane likens himself to the father in12 In re S.B. (2008) 164 Cal.App.4th 289 ( S.B .), who “continued the significant parent-child relationship despite the lack of day-to-day contact” with Drake after he was removed from Shane’s custody. ( Id . at p. 299.) The S.B . court found the bene ficial relationship exception applied and reversed the judgm ent terminating parental rights. ( Id. at pp. 301, 303.) S.B ., however, is factually distinguishable. The father in that case fully complied with his case plan and demonstrated a “constant” devotion to his daughter. ( S.B. , supra , 164 Cal.App.4th at p. 300.) His daughter lo ved her father, wanted their relationship to continue and derived bene fit from their visits. ( Id . at pp. 300-301.) In addition, an expert witness testified there was a potential for harmto the child if her relationship with her father was severed. ( Id . at p. 296.) In this case, Shane presented no such evidence. He rece ived reunification services for an extended period of time, but did no t comply. Further, he did not present any evidence that Drake would be harmed by severance of their relationship. At most, according to Windi, Drake wo uld miss his father. “The juvenile court may reject the parent ’s claim [termination of parental rights would be detrimental] simply by finding that the relationship maintained during visitation does not benefit the child signi ficantly enough to outweigh the strong preference for adoption.” ( Jasmine D ., supra , 78 Cal.App.4th at p. 1350.) The benefit of a stable, permanent adoptive home for Dr ake outweighed the benefit of a continued relationship with Shane, who despite his continued c ontact and visitation fa iled to overcome the problem leading to Drake’s dependency on th e juvenile court. We find no abuse of discretion. DISPOSITION The orders denying the section 388 petitio n and terminating parental rights are affirmed.