Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. SJ508809C Garry G. Haehnle, Judge.
HALLER, J.
Sandra H. appeals orders terminating parental rights to her daughter, Casandra L., under Welfare and Institutions Code section 366.26. She also appeals an order summarily denying her petition for modification under section 388. We affirm the orders.
Further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Sandra H. is the mother of six children, including Casandra L., who was born in January 1996. At the time this dependency proceeding was initiated, Sandra had two other minor children, N.V. and Richard L., and three adult children, Mary S., Jason S. and Melissa S. Casandra, Richard and Melissa are developmentally disabled. Between 1988 and 2004, there were 29 referrals to Child Welfare Services involving Sandra and her children, resulting in seven dependency cases for six children, including this proceeding. Four of Sandra's children were placed in guardianships with relatives. Sandra's eldest child, Mary, was emancipated from the dependency system in 1995.
Casandra's father is deceased.
Casandra became a dependent of the juvenile court in 2004 after Sandra left her, N.V. and Richard in the care of a grandmother (Grandmother) with early onset Alzheimer's disease. There were approximately 12 extended family members and family friends living in the home. Grandmother refused to let anyone use water to bathe. Casandra's and Richard's school attendance was sporadic. When they were sent to school, they arrived hungry and unwashed. Sandra did not seek services for Casandra and her other disabled children from the San Diego Regional Center, despite their significant delays.
Sandra stated she went to Grandmother's home every morning and evening to care for her children, and Mary went to the home to help Casandra and her brother Richard get ready for school and to help care for Grandmother. Mary told the social worker she would like to care for Casandra and her other siblings.
Casandra displayed global developmental delays. Her full scale IQ tested at 50, which was in the "extremely low range." When removed from parental custody, eight-year-old Casandra could not attend to her basic hygiene needs. Her self-help skills were in the severely deficient range and were lower than might be expected based on her level of general cognitive functioning. These deficits were likely related to her history of instability and neglect in her home life. Casandra did not know how to dress herself or bathe without assistance, and needed step-by-step instruction to complete many daily living tasks. She responded to structure, support and encouragement. Casandra was friendly, cooperative, cheerful and sweet. A social worker described her as "a little darling."
Sandra was diagnosed with major depressive disorder and schizoid personality disorder. The psychologist stated Sandra had "little to no insight" into the needs of her children and displayed "significantly poor judgment" when she left the children with an aging and cognitively compromised caregiver.
Sandra and Mary asked the San Diego County Health and Human Services Agency (the Agency) to place Casandra and her brother Richard in Mary's care. The Agency worked with Mary to alleviate risks in her home, which she accomplished over several years. However, because Mary was caring for her own two children, her ailing grandmother (at one time), her disabled sister Melissa and later, her special-needs brother Richard and her third baby, the Agency did not believe it was in Casandra's best interests to place Casandra in Mary's care.
Mary became Richard's guardian in 2008.
The court authorized supervised visitation between Sandra and Casandra once a week. Sandra saw Casandra on several occasions. The Agency facilitated liberal, unsupervised visitation between Casandra and her siblings. Casandra visited Mary, Melissa and Richard (together, siblings) and other family members every other weekend during the reunification period. Sandra rarely had contact with her family in 2005. She did not complete her case plan or stay in contact with the social worker. In August 2005 the Agency placed Casandra with her current caregivers.
In January 2006 the court terminated reunification services and selected an alternative plan of long-term foster care for Casandra. The social worker stated Casandra continued to visit her siblings at least one weekend every two to three months and during the holidays. From September 2008 to October 2009, Mary documented 17 weekend visits and two extended visits during the winter holidays and summer.
In early 2008, after caring for Casandra for three and a half years, her caregivers expressed an interest in adopting her. In June 2009, after the caregivers' adoption home study was approved, the Agency asked the court to set a section 366.26 hearing.
Sandra, Mary, Melissa and Richard filed section 388 petitions asking the court to place Casandra in Mary's care. The siblings also asked the court to allow them to participate in the section 366.26 hearing. At a special hearing in November 2009 the court determined the section 388 petitions did not state a prima facie case showing that a modification of the previous placement order was in Casandra's best interests, and summarily denied the petitions. The court allowed the siblings to participate in the section 366.26 hearing.
The section 366.26 hearing was held on December 9, 2009. The court took judicial notice of the findings and orders in Casandra's dependency file, and admitted the Agency's court report and Mary's visitation log in evidence. The social worker, Sandra and the caregiver testified, and the court accepted the siblings' statements.
The social worker reported that Casandra was a cheerful and talkative 13-year-old who liked playing outside and singing, and took pride in cleaning her room. In a March 2008 school evaluation, Casandra's global IQ tested at 57. Her writing skills were at approximately a second grade level and she was reading at a third grade level. Casandra was able to independently perform self-help care but occasionally had difficulty with proper hygiene. She had difficulty communicating; however, her social interactions were largely age appropriate. With stability, consistent care and support, Casandra had been able to develop more skills and improve her academic functioning during the last four years. She showed great improvement in her reading abilities during the past year. Casandra had a strong attachment to her caregivers, whom she called "Mom" and "Dad."
The social worker reported Sandra's visits with Casandra were sporadic and inconsistent. The caregivers had made all the decisions about Casandra's educational needs and medical treatment since August 2005. Sandra did not participate in those decisions.
The social worker reported Casandra visited her siblings regularly. The caregivers intended to maintain regular sibling visitation as long as it was safe and appropriate. Casandra was likely to have continued contact with Sandra at Mary's home. The social worker stated there was an established sibling bond between Casandra and at least three of her siblings. The social worker believed Casandra needed to have continued contact with her siblings; however, adoption would not substantially interfere with Casandra's sibling relationships because the caregivers were committed to maintaining those relationships. The social worker believed it would be difficult for Casandra if the caregiver did not follow through with her commitment to maintain sibling visitation.
Sandra testified she visited Casandra at Mary's home at least once a month. They watched television together, played games, laughed and had fun.
The caregiver testified she was committed to facilitating sibling visitation. She and Mary had made plans to have Casandra stay with Mary from Christmas Eve to January 3, 2010.
The court found that Casandra was adoptable and the beneficial parent-child relationship exception and sibling relationship exception did not apply. The court terminated parental rights and designated the caregiver as the prospective adoptive parent.
DISCUSSION
A. Section 388
Sandra contends the court erred when it summarily denied her section 388 petition asking the court to place Casandra in Mary's care. Sandra argues the petition met the threshold requirements to merit a hearing, and the court's summary denial unfairly abridged her rights to preserve Casandra's natural family, contravening section 202, subdivision (a), and In re Marilyn H. (1993) 5 Cal.4th 295, 306 (Marilyn H.).
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 of circumstances or new evidence, and the proposed modification is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.)
The court must liberally construe the petition in favor of its sufficiency. (Marilyn H., supra, 5 Cal.4th at p. 309; Cal. Rules of Court, rule 5.570(a).) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (Marilyn H., at p. 310; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) "The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).) When determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
We review a summary denial of a hearing on a modification petition for abuse of discretion. (Zachary G., supra, 77 Cal.App.4th at p. 808.)
Sandra argues the court erred when it denied her request for a hearing on the merits of her section 388 petition. She contends the petition stated a prime facie case of changed circumstances and best interests because the evidence presented at a hearing would show that Richard, despite his special needs, had successfully transitioned to Mary's care in 2008, and she was now his guardian. He was excelling in Mary's care. She provided him with structure, love and comfort. Mary would provide Casandra with the same level of care and support, and Casandra would benefit by placement with her natural family.
The trial court focused on the best interests requirement for a hearing under section 388, and thus impliedly found the petition stated a prima facie case of changed circumstances. We conclude the court did not abuse its discretion when it determined the petition did not state a prima facie case to show that a modification of the prior placement order would be in Casandra's best interests. While in the caregivers' home, Casandra made significant improvements in her ability to learn and apply self-help skills. The caregivers wanted to make Casandra a permanent part of their family through adoption. Stability was an integral and basic component of Casandra's ability to overcome her global developmental delays and to improve her ability to function in all areas of her life.
Further, while Mary was working to stabilize her home and have Richard in her care, Casandra was becoming more attached to her caregivers. At the time of the court's decision, Casandra had been living with her caregivers for more than four years. She called them "mom" and "dad." The petition did not state why it would be in Casandra's best interests to leave the home where she was doing exceptionally well. Also, it did not state that Mary, who had assumed tremendous family responsibilities, would be able to maintain at least an equivalent standard of care for, and attention to, Casandra as she was receiving in the caregivers' home.
The trial court could reasonably conclude that Sandra's section 388 petition did not state a prima facie case that removal from the caregivers' home on the eve of a permanency selection and implementation hearing would be in Casandra's best interests. We conclude the court did not abuse its discretion when it denied Sandra a hearing on the merits of her section 388 petition.
B. Termination of Parental Rights
Sandra contends the court erred when it terminated her parental rights to Casandra. She argues termination of parental rights would be detrimental to Casandra under the beneficial parent-child relationship and the sibling relationship exceptions to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i) & (v).)
At a section 366.26 hearing, the court may select one of three permanency plans: adoption, guardianship, or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) There is a strong preference for adoption over alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; Zachary G., supra, 77 Cal.App.4th at pp. 808-809.) If the court determines the child is likely to be adopted, the burden shifts to the parent to show termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; but see § 366.26, subd. (c)(1)(A).)
We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If there is substantial evidence supporting the court's ruling, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c). (In re Autumn H. (1994)27 Cal.App.4th 567, 576 (Autumn H.); In re S.B (2008) 164 Cal.App.4th 289, 298.)
1. The Sibling Relationship Exception
The sibling relationship exception applies when the parent shows, by a preponderance of the evidence, that termination of parental rights would substantially interfere with a child's sibling relationship, taking into consideration the nature and extent of the relationship. (§ 366.26, subd. (c)(1)(B)(v).) "To determine the nature and extent of the sibling relationship, the Legislature directs the juvenile court to consider the factors set forth in section 366.26, subdivision (c)(1)(E)." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1007, citing In re Celine R. (2003) 31 Cal.4th 45, 54, & In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952.) These factors include, but are not limited to, "whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).)
The record shows Casandra had a well-established relationship with Mary, Melissa and Richard. Mary was an especially devoted sister to Casandra. Throughout the five-year dependency proceedings, Casandra spent many weekends and holidays with her siblings. The social worker believed that ongoing contact with her siblings was in Casandra's best interests, and it would be difficult for Casandra if sibling visitation ceased.
In determining whether termination of parental rights would substantially interfere with Casandra's sibling relationships, the trial court properly considered the extent and constancy of Casandra's visitation with her siblings during the four years she had lived with the caregivers, the caregivers' intent to maintain Casandra's sibling relationships, and the fact the caregivers had already arranged for Casandra to spend Christmas through January 3 with her siblings. The record shows the caregivers consistently facilitated sibling visits and had made plans for future visits. Further, the court reasonably considered Casandra's developmental status, the length of time she had spent as part of the caregivers' family, their relationship to Casandra as "mom" and "dad, " and Casandra's need for a permanent, stable home with competent and attentive parents. The caregivers integrated Casandra into their family and maintained her healthy relationships with her siblings. Additionally, the record shows the caregivers not only nurtured Casandra and met her special needs but also provided the structure, support and encouragement Casandra required to improve her independent self-help skills and achieve basic educational goals.
The record of sibling visitation and planned visitation provides solid support for the court's finding termination of parental rights would not substantially interfere with Casandra's sibling relationships. (§ 366.26, subd. (c)(1)(B)(v).) Further, in view of Casandra's deficiencies when she was first removed from parental custody, and the global improvements she made while in the caregivers' home, the record supports the finding Casandra's needs for a competent, caring and stable parent are paramount, and legal permanence through adoption is in Casandra's best interests. (In re Valerie A., supra, 152 Cal.App.4th at p. 1014.)
2. The Beneficial Parent-Child Relationship Exception
An exception to termination of parental rights exists when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "Benefit from continuing the relationship" means "the [parent-child] relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Autumn H., supra, 27 Cal.App.4th at p. 575.) The exception does not require proof the child has a "primary attachment" to the parent or the parent maintained day-to-day contact with the child. (In re S.B., supra, 164 Cal.App.4th at p. 200; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534-1538; In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
Where the parent has continued to regularly visit and contact the child, and the child has maintained or developed a significant, positive, emotional attachment to the parent, "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." (Autumn H., supra, 27 Cal.App.4th at p. 575 .)
The Agency argues Sandra did not maintain regular visitation and contact with Casandra. There is substantial evidence in the record to support the Agency's contention. In the first six months of the dependency proceedings, Sandra rarely visited Casandra, telling the social worker it was "too hard." Sandra visited Casandra at Mary's home; however, the record supports a reasonable inference these visits were sporadic and unscheduled. In 2008 Sandra contacted the social worker to set up regular visitation. Sandra was placed at the top of the waiting list; however, she never returned telephone calls from the visitation center and the visits were not set up.
Even were we to accept Sandra's argument she regularly visited Casandra at Mary's home, Sandra cannot show she maintained or developed a beneficial parent-child relationship with Casandra. At the beginning of Casandra's dependency proceedings, Casandra asked for Mary, who had helped raise her, not for Sandra. Sandra's psychologist concluded, "[Sandra's] schizoid personality disorder interferes with her ability to provide for the well-being of her children, in that she appears to neither desire or enjoy the close relationships that form the foundations of a family. She also appears to be incapable or unwilling to anticipate or recognize her children's needs especially in regards to Richard and Cassandra [sic].... [Sandra] seeks a peripheral role in social and family relationships, relying on others to care for or supervise her children. She has abdicated many of her parental responsibilities in the past, and in all likelihood, will continue to do so in the future."
Sandra insisted the Agency return Casandra to her care. She refused to acknowledge any deficiencies in her parenting skills. Despite Casandra's significant delays, Sandra stated she had not sought, and did not intend to seek, services for Casandra from the San Diego Regional Center, further reflecting her poor judgment and lack of commitment to provide for Casandra's needs. Sandra testified that during her visits with Casandra at Mary's home, they watched television together, played games, laughed and had fun. The record supports the reasonable inferences Sandra acted more as a friendly relative than as a parent to Casandra and continued to abdicate her parental responsibilities to others. (In re Angel B. (2002) 97 Cal.App.4th 454, 467.)
The trial court could reasonably determine Casandra's permanent placement with skilled, attentive caregivers who could meet her needs outweighed any benefit Casandra may have received from her relationship with Sandra. (Autumn H., supra, 27 Cal.App.4th at p. 575; see In re Dakota H. (2005) 132 Cal.App.4th 212, 229-231.) We conclude the court's finding the beneficial parent-child relationship exception did not apply is fully supported by the record.
DISPOSITION
The orders are affirmed.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.