Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J217713 & J217714 & J217715. Wilfred J. Schneider, Jr., Judge.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant A.M.
Maryann M. Milcetic, under appointment by the Court of Appeal, for Defendant and Appellant L.M.
Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
No appearance on behalf of Minors.
OPINION
MILLER, J.
L.M. (Mother) appeals the juvenile court’s order terminating her parental rights. A.M. (Father) appeals the juvenile court’s orders (1) terminating his parental rights; (2) implementing a permanent plan of adoption for Father’s children; and (3) denying Father’s request to change a court order (Welf. & Inst. Code, § 388). Mother contends that the juvenile court violated her due process rights by terminating her parental rights due to Mother being impoverished. Father makes several contentions. First, Father asserts that the juvenile court abused its discretion by denying his request to change a court order. (§ 388.) Second, Father asserts that the juvenile court’s finding that he was an unfit parent was erroneous, and therefore caused the order terminating Father’s parental rights to also be erroneous. Third, Father asserts that the juvenile court erred by terminating his parental rights because the evidence reflects that the children would benefit from continuing a relationship with Father. We affirm the judgments.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. FAMILY MEMBERS
The children involved in this matter are A.L.M., a female born in May 2002; E.M., a male born in February 2006; and A.C.M., a female born in June 2007. Mother and Father (the Parents) were married but separated when this matter began in the juvenile court. Mother was considering divorcing Father, due to Father’s involvement in the Crips criminal street gang, and Father’s drug abuse. Parents were living together, despite their separation, until Father was booked into West Valley Detention Center on September 24, 2007, for a probation violation, and was given a nine-month sentence.
B. DETENTION
On October 16, 2007, San Bernardino County Children and Family Services (the Department) responded to a request for assistance. The request concerned Mother and two of her children, who were being evicted from their motel room in Victorville. Mother was not home when the Department arrived at her motel room; however, a neighbor informed a Department employee that Mother was “asking acquaintances for help in caring for her children until she can get back on her feet.” The Department located Mother and two of her children at the home of Mother’s pastor. The pastor informed the Department that A.L.M. was living with the pastor’s ex-wife in Barstow, because Mother was unable to provide for A.L.M., who was five years old at the time.
The record refers to the Department as the “Department of Children’s Services.” We refer to the Department by its present name, which is “San Bernardino County Children and Family Services.”
At oral argument in this court, Mother’s appellate attorney asserted that Mother contacted the Department for assistance. The Department’s detention report does not reflect who contacted the Department.
Mother informed the Department employee that she was residing with a man who would not allow her children to stay in his home. The Department offered to place the children in the voluntary family reunification program, since there were no signs of neglect, other than cleanliness issues. Mother signed the voluntary placement agreement. The three children, including A.L.M., who was in Barstow, were placed in a foster home. The Department decided to file a petition against Mother due to Mother’s history of having children removed from her care and Mother’s inability to care for the three children currently in her care. The family had multiple prior referrals for severe neglect, physical abuse and emotional abuse, which were all unfounded or inconclusive.
The petition filed against Mother alleged that two of the children were infested with lice, and all three were wearing dirty clothing; Mother had a history of substance abuse; Mother did not have the financial ability to care for the children; and Mother failed to provide adequate housing, food, and clothing for the children. As to Father, the petition alleged that he had a substance abuse problem; that he did not have the financial ability to adequately care for the children; and he failed to provide the children with adequate housing, food, and clothing.
The juvenile court found that the Department established a prima facie case for the children to be detained in foster care, but granted Mother a minimum of two visits per week with the children. The court authorized Father to have written communication with the children, since Father was incarcerated.
C. JURISDICTION/DISPOSITION
Father began using drugs at age 12; he smoked marijuana and methamphetamines. Mother met Father during the summer of 2001; they moved from a motel, to an apartment, to a tent in the desert. The Parents and A.L.M. lived in various parks in 2005. In May 2005, A.L.M. was removed from the Parents’ care, and the family was provided with reunification services. In February 2006, E.M. was born. E.M. was removed from the Parents’ care, and more reunification services were provided to the family.
During mediation in the instant case, the Parents submitted on the allegations that they failed to provide the children with adequate housing, food, and clothing, which placed the children at risk of neglect. The juvenile court found that it would be contrary to the children’s welfare to allow them to live with the Parents. The court found that returning the children to the Parents’ care would substantially endanger the children’s physical and emotional health because the Parents had no reasonable means to protect the children’s physical health.
Accordingly, the juvenile court ordered that the children continue living in their foster placement.
D. SIX-MONTH STATUS REVIEW
At the six-month review hearing it was revealed that the Parents were on probation for willful cruelty to a child/possible injury or death. It is unclear from the record if the convictions were related to the instant case or a separate case. The Parents were living together in a van, in their church parking lot. Father worked odd jobs, and Mother worked as a sales representative for a vacuum company. The Parents were dropped from their parenting classes due to non-attendance, and were in danger of being dropped from their anger management classes. Father complained that the various classes and counseling appointments were a major reason that he was unable to find employment.
The Parents visited the children weekly. Father had to be instructed not to consume alcohol prior to visiting the children. The Parents appeared unable to supervise the whereabouts and activities of A.L.M. and E.M. For example, during a supervised visit on May 15, 2008, Mother became preoccupied with socializing with other adults, and A.L.M. and E.M. began interacting with an adult they did not know, who gave them snacks.
A.L.M., who was six years old at the time of the six-month review, was diagnosed with (1) fine motor skills delay; (2) mixed expressive-receptive language disorder; (3) a speech impediment; (4) attention deficit hyperactivity disorder, predominately inattentive type; (5) adjustment disorder with disturbance of emotions and conduct; and (6) post traumatic stress disorder. A.L.M. also demonstrated “a variety of physical, behavioral and emotional developmental delays consistent with her history of neglect.” For example, A.L.M. was often disruptive in her kindergarten class.
E.M., who was two years old at the time of the six-month review, demonstrated (1) “significant developmental delays including limitations in speech, language, and fine and gross motor skills”; and (2) symptoms of reactive attachment disorder. For example, E.M. could walk but he had an odd gait and obvious balance problems.
A.C.M., who was 11 months old at the time of the six-month review, appeared to be delayed in her development. For example, A.C.M. was not crawling well, she was not pulling herself up to stand, nor was she attempting to walk.
The juvenile court found that placing the children in the Parents’ care would be detrimental to the children. Consequently, the children were continued in their foster placement.
E. TWELVE-MONTH REVIEW
The Parents sporadically attended their 52-week child abuse classes. Mother completed her parenting and anger management courses, as well as individual therapy. Father completed an outpatient substance abuse treatment program. In February 2008, Father was convicted of driving under the influence and incarcerated for 30 days in lieu of the $1,500 fine for enrolling in the DUI offenders program. The Parents continued to live in a van in their church parking lot. During weekly supervised visits with the children at a local shopping mall, the Parents had to be counseled about child safety and playgrounds, due to repeated concerns about the Parents’ inability to recognize the injury risks presented during the children’s playtime.
A.L.M., who was six years old at the 12-month review, demonstrated (1) delayed speech and language development; (2) impulsivity; (3) poor decision making skills; and (4) trouble with social and peer relationships. She was disruptive in class, and repeatedly engaged in fights with other children on the playground, in which she struck and bit the other children. A.L.M. was enrolled in first grade, but it became necessary for her to spend part of the day in kindergarten, to help her catch-up to the other students. A.L.M. was in danger of being retained in first grade.
E.M., who was two years old at the time of the 12-month review, was diagnosed with epilepsy and hearing impairment. He demonstrated significant developmental delays that were global in nature, affecting his communication and motor skills. E.M. was happy to see the Parents during visits, but sought out his foster parents for comfort and help.
A.C.M., who was one year old at the time of the 12-month review, was diagnosed with hearing impairment. She demonstrated mild to moderate developmental delays, but was receiving therapy. A.C.M. began walking and became more interactive while in her foster placement.
The children’s foster parents expressed a desire to adopt the children, if reunification failed.
The juvenile court found that it would be detrimental to the children to return them to the Parents’ custody. Accordingly, the juvenile court continued the children in their foster placement.
F. EIGHTEEN-MONTH REVIEW/PERMANENCY HEARING
The Parents continued to live in a van in their church parking lot. They visited the children on a weekly basis; however, Mother continually yelled at A.L.M. during visits, despite being educated about A.L.M.’s developmental delays. Father was more patient with A.L.M. than Mother. Father did not enroll in the criminal court’s ordered alcohol offenders program. The Parents’ attendance at their child abuse classes continued to be sporadic.
A.L.M., who was six years old at the time of the 18-month review, was diagnosed with borderline intellectual functioning-an IQ score of 77. A.L.M. functioned at the level of a four and a half year old. A.L.M. suffered a phonological disorder, and impaired communication and language comprehension. A.L.M. demonstrated a strong bond and attachment to her foster parents. She was happy to visit with the Parents, but showed no distress at the end of the visits, and did not ask about the Parents between visits.
E.M. was three years old at the time of the 18-month review. He was diagnosed as mildly mentally retarded; he was particularly handicapped in the areas of communication skills, self-care, and learning. E.M. demonstrated a strong bond with his foster parents, especially his foster father. E.M. enjoyed visiting the Parents, but was not distressed or anxious at the end of their visits.
A.C.M. was one year old at the time of the 18-month review. She demonstrated (1) developmental delays in expressive and receptive language, and (2) hearing loss in her left ear. A.C.M. showed a healthy attachment to her foster parents, and was not distressed or anxious during the end of visits with the Parents.
The Parents and the foster parents discussed continuing contact between the children and foster parents if reunification was successful.
At the contested 18-month review hearing, the juvenile court found that it would be detrimental to the children to return them to the Parents’ custody. Further, the court found that the Parents failed to complete their court ordered treatment plans. The juvenile court terminated the Parents’ reunification services.
G. REQUEST TO CHANGE A COURT ORDER
Father filed a request to change a court order. (§ 388.) Father requested that the juvenile court return the children to his custody and continue to provide him with services. Alternatively, Father requested that the juvenile court liberalize his visitations with the children and reinstate reunification services. Father alleged that he (1) completed his 52-week domestic violence class, and (2) was living in a one-bedroom apartment while working as a caretaker for the landlord. Father asserted that the changed court order would be better for the children because the children bonded with him and he could provide them with “a safe and loving environment.”
In the Department’s response to Father’s request to change a court order, the Department wrote that the Parents had begun sharing a residence with a single man, and the rent was split 50/50. The Department wrote that it was unclear if the Parents would be able to afford 100 percent of the rent, if their housemate failed to pay his 50 percent share.
The juvenile court denied Father’s request to change the court’s order.
H. TERMINATION OF PARENTAL RIGHTS
During a supervised visit with the children, towards the end of October 2009, Mother engaged in a lengthy conversation with another adult for the majority of the visitation time. During that time, Father exclusively attended to the children. Mother showed little concern for the children’s whereabouts or activities. Additionally, during the two-hour supervised visits, Mother quickly became frustrated and lost her temper with E.M.-E.M. kicks, hits, bites, and throws objects when he acts out. Father stepped in to remove E.M. from the situation with Mother. It appeared that the Parents did not communicate with one another about supervising the children. Further, it appeared to the Department that Mother lacked the ability to place her children’s needs ahead of her own. The Parents informed the Department that their plan was for Mother to be the children’s primary caregiver if reunification were successful.
Father’s request to change a court order was submitted on October 27, 2009, and in it he wrote that he “secured a one bedroom apartment while working... for the owner....” The Department found that by November 1, 2009, the Parents were living in a different residence-a four bedroom house-with a housemate. The Parents were unable to express any concerns about introducing the children to their new housemate. Neither Mother nor Father had a job that could be verified. Additionally, there was no verification that the Parents were attending AA or NA meetings.
The children had been placed in the foster home of the prospective adoptive parents since May 2008. The children resided with the prospective adoptive parents for 16 months. The Department spoke to A.L.M. about being adopted. A.L.M. was “animated and excited” when she discussed living with her foster parents. A.L.M. became “quiet and appeared to be upset” when she was asked about going to live with the Parents. A.L.M. “relaxed noticeably” when she was asked if it would be better to live with her foster parents and occasionally visit the Parents.
At a contested hearing, the juvenile court found that it was likely the children would be adopted. The court terminated the Parents’ parental rights to the children. The juvenile court made adoption the children’s permanent case plans.
DISCUSSION
A. DUE PROCESS-MOTHER
Mother contends that the juvenile court violated her rights to due process by terminating her parental rights to her children based upon Mother being impoverished. We disagree.
“Parents have a fundamental interest in the care, companionship and custody of their children. For this reason, they have certain due process protections in juvenile dependency proceedings. [Citation.] Before the state may sever a parent’s rights in [her] natural child, due process mandates [that] the state’s allegations be supported by evidence that is, at a minimum, clear and convincing. [Citation.] Once the state has shown a parent [to be] unfit, the juvenile court may then assume the child’s interests have diverged from those of his or her natural parent. [Citation.] However, ‘until the state proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.’ [Citation.]” (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1210-1211 (G.S.R.).) Poverty, even abject poverty that results in homelessness, does not, by itself, make a person an unfit parent. (Id. at p. 1212.) We review the record de novo to determine whether Mother’s due process rights were violated. (In re Conservatorship of Tian L. (2007) 149 Cal.App.4th 1022, 1028.)
In this case, during mediation, Mother submitted on the allegation that her failure to provide the children with adequate housing, food, and clothing, placed the children at risk of neglect. While the children were in foster care, it became apparent that they suffered from developmental disabilities. Mother became frustrated with E.M. during the weekly visits, and yelled at A.L.M. Mother also became preoccupied with talking to adults, and was not attentive to her children’s whereabouts or activities.
Our review of the record reveals that it was not Mother’s poverty alone that caused her parental rights to be terminated. Rather, Mother’s poverty placed the children at risk for neglect, and Mother showed little interest in protecting her children from that risk of neglect. Mother quickly became frustrated with her developmentally disabled children, yelled at them, and allowed them to wander off and interact with strangers. In other words, Mother’s inability to provide her children with material objects was not the sole basis for her parental rights being terminated; it was her overall neglect of the children’s well-being that led to the termination of Mother’s parental rights. Therefore, we conclude that Mother’s due process rights were not violated.
Mother contends that the juvenile court’s primary reasons for not returning the children to her care were Mother’s lack of (1) employment, and (2) a house. Contrary to Mother’s position, the record reflects that Mother lacked the skills to provide adequate care for her developmentally disabled children. Accordingly, we are not persuaded by Mother’s argument that the juvenile court terminated her parental rights due to Mother being impoverished.
At oral argument in this court, Mother stressed importance of In re P.C. (2008) 165 Cal.App.4th 98 (P.C.). In P.C., the appellate court concluded that the juvenile court removed the children from their mother’s care due solely to the mother’s inability to secure suitable housing. The appellate court noted that the mother had completed her case plan. The appellate court ruled that the juvenile court erred by terminating the Mother’s parental rights based solely upon the mother’s inability to find suitable housing. (Id. at pp. 100, 106.) The instant case is distinguishable from P.C., because Mother showed little interest in her developmentally disabled children’s whereabouts and activities; and during weekly visits Mother became frustrated with E.M., and yelled at A.L.M. Additionally, Mother had made some progress on her case plan, but had not completed it. Despite numerous discussions, Mother struggled to understand age appropriate activities for her children; Mother struggled with monitoring her children’s safety during visits; and Mother continually blamed others for her circumstances. In sum, we do not find P.C. persuasive because in the instant case there were multiple reasons-not involving poverty or homelessness-for not returning the children to Mother’s care.
Next, at oral argument in this court, Mother contended that inadequate housing services had been provided by the Department. Specifically, Mother complained that housing assistance was provided to her too late in the dependency proceedings. At the termination hearing, Mother testified that she was living in a four-bedroom, two-bathroom house with Father and a housemate. Mother testified that she would be allowed to live in the house “[f]or quite awhile.” During closing arguments, Mother did not contend that she was given inadequate housing services. Consequently, it appears that this is a new argument on appeal that was not developed in the juvenile court. We conclude that this argument was forfeited by failing to raise it in the juvenile court. (Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1249.)
B. REQUEST TO CHANGE A COURT ORDER
Father contends that the juvenile court erred by denying his request to change the court’s order terminating his reunification services because Father established a material change in his circumstances, and demonstrated that the change would be in the children’s best interests. (§ 388.) We disagree.
Section 388 permits a parent to petition the juvenile court to change, modify or set aside a previous order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a); In re B.D. (2008) 159 Cal.App.4th 1218, 1228.) “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. [Citation.] Generally, the petitioner must show by a preponderance of the evidence that the child’s welfare requires the modification sought. [Citation.]” (In re B.D., at p. 1228.) We review the juvenile court’s ruling on the petition for modification for an abuse of discretion. (Ibid.)
Father requested that the juvenile court return the children to his custody and continue to provide him with services. Alternatively, Father requested that the juvenile court liberalize his visitation with the children and reinstate reunification services. Father alleged that he (1) completed his 52-week domestic violence class, and (2) was living in a one-bedroom apartment while working as a caretaker for the landlord. Father asserted that the changed court order would be better for the children because the children bonded with him and he could provide them with “a safe and loving environment.”
We conclude that the juvenile court did not abuse its discretion because Father did not demonstrate that his housing was stable. For example, Father’s request was filed on October 27, 2009, shortly after he moved into his home. There was no verifiable history of Father paying rent on a regular basis, and no information about the housemate’s interactions, if any, with the children. Father’s request did not explain where the children would live in the one-bedroom residence. In short, the request showed that Father changed locations, but it did not show that the circumstances of Father’s situation, i.e., that the instability, had changed in such a manner that the children’s welfare required the modification sought.
During oral argument in this court, Father contended that he was living in a four-bedroom house, not a one-bedroom apartment. As set forth ante, in section “H” of the Facts, the record reflects that, on October 27, when Father completed his request to change a court order, he wrote that he was living in a one-bedroom apartment; however, three days later, on November 1, Father was reportedly living in a four-bedroom house. Father’s move from the apartment to the house further reflects the instability of Father’s housing situation. Additionally, the record contains little information about the housemate with whom Father was sharing the four-bedroom house. Therefore, whether Father was residing in the apartment or the house, Father’s request did not show a change in Father’s circumstances, i.e., the instability had changed in such a manner that the children’s welfare required the modification sought.
Next, Father asserted circumstances had changed because he completed his domestic violence batterer’s treatment program. Father’s completion of the domestic violence program is evidence of Father trying to improve his parenting skills but it does not show a change of circumstances. Put differently, a change of circumstances could be found if Father’s household were free from abuse for a significant period of time; however, completion of a batterer’s program does not signify that domestic violence is no longer occurring in the home, and therefore does not show a change of circumstances. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [Fourth Dist., Div. Two] [reaching a similar conclusion].)
In sum, the juvenile court did not err by denying Father’s request to change a court order, because Father did not demonstrate changed circumstances.
In Father’s opening brief, he argues that he showed changed circumstances because he (1) was sober for nearly two years; (2) secured stable housing; (3) completed his domestic violence course; (4) completed his anger management course; and (5) established a maintenance business, which was providing income.
Father’s request to change a court order mentioned that Father was “maintaining his sobriety, ” but does not reference a two-year time period. Nevertheless, we will analyze this portion of Father’s argument to determine if the court abused its discretion. Father’s request to change a court order was filed on October 27, 2009. In February 2008, Father was convicted of driving under the influence and incarcerated for 30 days in lieu of the $1,500 fine for enrolling in the DUI offenders program. The driving offense was alleged to have occurred on January 23, 2008. The Department’s status report dated June 5, 2008, reflects that Father had to be instructed not to consume alcohol prior to the visits. Accordingly, the record does not support Father’s assertion that he was sober for nearly two years, and therefore, we find Father’s argument unpersuasive.
At oral argument in this court, Father contended that he was sober for nearly 20 months, which is a significant period of time. In the Department’s March 2009 case plan update, under the section titled “9. Stay sober and show your ability to live free from alcohol, ” the Department reports that “Father continues to struggle-as evidenced by [the] smell of alcohol on [F]ather’s person.” Accordingly, even with the shortened time frame of 20 months, we do not find Father’s argument persuasive, because the record does not reflect that Father was sober for 20 months.
Next, Father’s request to change a court order did not mention Father’s maintenance business. At the hearing on Father’s request, Father’s juvenile court attorney argued that Father could not afford to pay for the DUI class, and that $600 was a “fortune” for a person “at the poverty level.” Accordingly, it does not appear that the juvenile court was presented with the argument that Father had established a business that was providing regular income. Consequently, we are not persuaded by Father’s argument that the juvenile court abused its discretion by denying Father’s request to change the court’s order.
C. SUBSTANTIAL EVIDENCE
Father contends that substantial evidence does not support the juvenile court’s findings, at the various review hearings, that it would be detrimental to the children to return them to Father’s custody. Father asserts that those erroneous findings of detriment caused the order terminating Father’s parental rights to also be erroneous. Father requests that this court reverse the juvenile court’s order terminating Father’s parental rights, and then direct the juvenile court to conduct a hearing to address whether it would be detrimental to place the children in Father’s care. We conclude that this contention needed to be raised via a writ petition.
“A finding of parental unfitness[, also referred to as detriment, ] is not part of a section 366.26 hearing.” (In re Jason J. (2009) 175 Cal.App.4th 922, 931, fn. 3.) “‘[I]n order to terminate parental rights [at the section 366.26 hearing], the court need only make two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated.’ [Citation.] Hence, the proceeding terminating reunification services and setting a section 366.26 hearing is generally a party’s last opportunity to litigate the issue of parental fitness as it relates to any subsequent termination of parental rights, or to seek the child’s return to parental custody. [Citation.]” (In re Matthew C. (1993) 6 Cal.4th 386, 392; see also In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
If Father wanted to challenge the juvenile court’s finding(s) of unfitness, then Father needed to file a writ petition. (In re Tabitha W. (2006) 143 Cal.App.4th 811, 815-816 [Fourth Dist., Div. Two].) This court has previously concluded that the goal of expediting dependency proceedings would be compromised if a parent were permitted to raise contentions about collateral orders when appealing from a juvenile court’s permanent plan order. (Id. at p. 816.) We note that Father filed a Notice of Intent to File a Writ; however, Father’s counsel for the writ found no legal or factual issues that would provide grounds for extraordinary writ relief. Therefore, this court dismissed the “non-issue writ.” (See Order filed July 17, 2009, in Case no. E048621.) In sum, we cannot address the sufficiency of the juvenile court’s finding(s) of parental unfitness, because the contention needed to be raised via a writ petition.
Father cites to G.S.R. to support his position that he can appeal the juvenile court’s collateral orders concerning detriment. In G.S.R., the appellate court held that due process requires a juvenile court to make a finding of parental unfitness prior to terminating a parent’s rights. (G.S.R., supra, 159 Cal.App.4th at p. 1210.) The reviewing court found that the juvenile court failed to make a finding of unfitness as to G.S.R.’s father (Id. at p. 1211), and therefore, G.S.R.’s father was denied a meaningful opportunity to address his fitness as a parent. (Id. at p. 1213.) The reviewing court remanded the matter to the juvenile court with directions that it determine whether it would be detrimental to the children to place them in their father’s care. (Id. at p. 1215.)
In the instant case, Father’s contention does not concern due process. Rather, Father is arguing that the substantial evidence does not support the juvenile court’s findings of detriment, and therefore those erroneous orders poisoned the order terminating Father’s parental rights. G.S.R. does not lend support to the position that we may examine collateral orders concerning Father’s parental fitness for substantial evidence. Accordingly, we find Father’s reliance on G.S.R. to be unpersuasive.
During oral argument in this court, Father explained that he intended his contention to be interpreted as a due process argument. Father asserted that his due process rights were violated because the juvenile court terminated his parental rights based upon Father’s poverty and homelessness. As set forth ante, within our discussion of Mother’s due process contention, abject poverty that results in homelessness does not, by itself, make a person an unfit parent. (G.S.R., supra, 159 Cal.App.4th at p. 1212.)
In the instant case, Father was incarcerated when the dependency proceedings were initiated. Within the six-month review period, Father had to be instructed not to consume alcohol prior to visiting the children. Within the 12-month review period, Father was convicted of driving under the influence and incarcerated for 30 days in lieu of the $1,500 fine for enrolling in the DUI offenders program. In March of 2009, approximately 18 months after the dependency proceedings were initiated, the Department wrote that Father was still struggling with alcohol abuse as evinced by the smell of alcohol on his person. Additionally, Father continued to argue with Mother; he struggled with monitoring the children’s safety during visits, and he expected actions and behaviors that were beyond the children’s abilities. Accordingly, based upon the record, it does not appear that Father’s parental rights were terminated based solely upon Father’s poverty and homelessness; rather, Father struggled with alcohol abuse and protecting the children’s physical safety.
Also during oral argument, Father instructed this court that P.C., supra, 165 Cal.App.4th at p. 98, “has to be addressed.” As set forth ante, in P.C., the appellate court concluded that the only reason the children were not returned to their mother’s care by the juvenile court, was the mother’s lack of stable, suitable housing. The appellate court ruled that the juvenile court erred by terminating the Mother’s parental rights based solely upon the mother’s inability to find suitable housing. (Id. at pp. 101, 106.) We find P.C. distinguishable from the instant case because the children were not removed from Father’s custody due solely to housing issues. As detailed ante, Father abused alcohol and struggled with maintaining the children’s physical safety. Consequently, we do not find Father’s reliance on P.C. to be persuasive.
D. CONTINUING RELATIONSHIP
Father contends that the juvenile court erred by terminating his parental rights to his children, because the children would benefit from continuing their relationship with Father. We disagree.
Once the juvenile court determines that a child is likely to be adopted, then the burden shifts to the parent to show that terminating the parent’s rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re S.B. (2008) 164 Cal.App.4th 289, 297.) “One exception to adoption applies if termination of parental rights would be detrimental to the child because the ‘parent[] ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’ (§ 366.26, subd. (c)(1)(B)(i).)” (In re Jason J., supra, 175 Cal.App.4th at p. 936.) The phrase “benefit from continuing the relationship” has been interpreted “to refer to a 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.’” (Ibid.)
Appellate courts have reasoned that “‘[i]nteraction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.’ [Citation.]” (In re Jason J., supra, 175 Cal.App.4th at p. 936.) “‘[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt.’ [Citation.]” (Id. at p. 938.)
We review the juvenile court’s ruling for substantial evidence. We view the evidence in the light most favorable to the Department, indulging all reasonable inferences to uphold the court’s ruling. If substantial evidence supports the juvenile court’s ruling, then we must affirm the court’s rejection of the beneficial relationship exception. (In re S.B., supra, 164 Cal.App.4th at pp. 297-298.)
Father was incarcerated when the children were initially removed from the Parents’ custody in October 2007. In February 2008, around the time of the 12-month review, Father was convicted of driving under the influence and incarcerated again for 30 days. Around June 2008, Father had to be instructed not to consume alcohol prior to visiting the children.
The Department spoke to A.L.M. about being adopted. A.L.M. was “animated and excited” when she discussed living with her foster parents. A.L.M. became “quiet and appeared to be upset” when she was asked about living with Mother and Father. A.L.M. “relaxed noticeably” when she was asked if it would be better to live with her foster parents and occasionally visit Mother and Father.
E.M. looked to his foster parents for love and protection, and did not appear stressed or anxious at the end of the visits with Mother and Father. During the 18-month review period, A.C.M. displayed a healthy attachment to her foster parents, and was not distressed or anxious during the end of visits with Mother and Father.
The foregoing reflects that the children enjoyed visiting Father; however, A.C.M.’s and E.M.’s lack of distress when leaving Father, and A.L.M.’s agitation at the idea of living with Father, reflect that the emotional attachment between Father and the children was not that of a parent and child. Moreover, due to Father being incarcerated twice during the dependency proceedings, it would be difficult to conclude that he regularly visited with the children. In sum, substantial evidence supports the conclusions that (1) there were not regular visits and contact, and (2) the visits that did occur did not lead to the children developing a significant, positive, emotional attachment to Father.
Father argues that his relationship with the children is beneficial because Father completed his case plan and applied his new knowledge and skills when visiting the children. We note that the record reflects that, in October 2009, Father stepped in to protect E.M. when Mother became frustrated and upset with E.M. While the record reflects Father’s progress as a parent, it also reflects substantial evidence to support the juvenile court’s decision. In other words, we cannot substitute our discretion for that of the juvenile court’s; we can only determine whether substantial evidence supports the juvenile court’s ruling. In this case, the children’s attachment to their foster parents, and A.L.M.’s discomfort with the idea of living with Father, constitute substantial evidence that Father’s visits did not lead to the children developing a significant, positive, emotional attachment to Father. Consequently, we do not find Father’s argument persuasive.
DISPOSITION
The judgments are affirmed.
We concur: RAMIREZ P. J., McKINSTER J.