Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. NJ14019A-C, Michael Imhoff, Commissioner.
HUFFMAN, Acting P. J.
Presumed father Juan G. and mother R.G. appeal following the Welfare and Institutions Code section 366.26 hearing in the juvenile dependency case of children E.S., A.S. and L.S. (together, the children). At that hearing, the juvenile court denied R.G.'s section 388 petition which sought the children's return with family maintenance services, or, alternatively, six months of reunification services. The court ordered another planned permanent living arrangement as E.S.'s permanent plan and terminated parental rights to A.S. The court identified adoption as L.S.'s permanent plan, found he was adoptable but difficult to place, deferred termination of parental rights and continued the section 366.26 hearing.
All further statutory references are to the Welfare and Institutions Code.
R.G.'s contentions relate to all three children but Juan's contentions relate only to L.S. During the pendency of this appeal, the juvenile court reinstated R.G.'s reunification services in L.S.'s case and vacated the section 366.26 hearing, rendering moot Juan's entire appeal and R.G.'s contentions concerning L.S. The remaining contentions are R.G.'s arguments the court abused its discretion by denying her section 388 petition as to A.S. and E.S. and erred by not applying the beneficial and sibling relationship exceptions (§ 366.26, subd. (c)(1)(B)(i) & (v)) to termination of parental rights over A.S. We affirm.
Although R.G.'s notice of appeal refers only to A.S., the contentions in her briefs concerning the denial of her section 388 petition refer to "the children" generally. We liberally construe the notice of appeal to refer to all of the children. (Cal. Rules of Court, rule 8.100(a)(2); In re Isaac J. (1992) 4 Cal.App.4th 525, 535; In re Robert A. (1992) 4 Cal.App.4th 174, 181, fn. 4.)
We granted R.G.'s request for judicial notice of a February 25, 2011, minute order in L.S.'s case. The minute order shows that the juvenile court denied R.G.'s section 388 request for L.S. 's return to her custody, but reinstated her reunification services and vacated the section 366.26 hearing.
Juan and R.G. contested the findings related to L.S. 's adoptability. R.G. contended the court erred by not applying the beneficial and sibling relationship exceptions in L.S.'s case and her section 388 argument referred to L.S.
Appellate counsel for A.S. filed a letter brief arguing for reversal of the termination of parental rights. Counsel took the same position at oral argument. The court has been informed that trial counsel, A.S.'s guardian ad litem (GAL) pursuant to the Child Abuse Prevention and Treatment Act (42 U.S.C. § 5101 et seq.), disagrees with appellate counsel and contends we should affirm the trial court's decision. Our Supreme Court has held that the GAL appointed in the trial court continues in that position during the appeal. (In re Josiah Z. (2005) 36 Cal.4th 664.) In light of Josiah Z., we doubt that appellate counsel can take a position contrary to the position taken by the GAL. However, in light of our disposition on the merits regarding A.S., we decline to delay this case in order to separately address the conflict between the GAL and the minor's appellate counsel.
BACKGROUND
In October 2008 the San Diego County Health and Human Services Agency (the Agency) filed a petition for then seven-year-old A.S. The petition alleged Juan had inserted his fingers into A.S.'s vagina and a medical exam was consistent with A.S.'s disclosure of sexual abuse. A.S. was detained in a foster home. After a few days she was moved to another foster home, where she remained at the time of the section 366.26 hearing.
In May 2009 the court entered a true finding on the petition and ordered A.S. placed in foster care. At the March 2010 12-month review hearing, the court terminated R.G.'s reunification services and set a section 366.26 hearing. In August R.G. filed her section 388 petition. In September the court denied the petition and terminated parental rights.
R.G.'S SECTION 388 PETITION
Section 388 allows the juvenile court to modify an order if a parent proves, by a preponderance of the evidence, that changed circumstances exist and the proposed modification would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) We review the denial of a section 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
R.G.'s section 388 petition asked the court to vacate the March 2010 termination of reunification services and setting of the section 366.26 hearing. The petition alleged the following changed circumstances justifying the children's return with family maintenance services, or, alternatively, six months of reunification services. First, R.G. had participated in a second psychological evaluation that concluded she had the capacity to benefit from services. Second, R.G. continued to participate and progress in individual therapy. Third, R.G. had moved out of Juan's home and obtained her own home and employment. The petition alleged the proposed changes were in the children's best interests because the children and R.G. loved each other and had a bond, and having obtained her own housing and employment, R.G. was "in a better position to be protective."
The court considered "the totality of the therapeutic information" about R.G., that is, her two psychological evaluations and counseling with three separate therapists. The court credited R.G. for filing for divorce, maintaining a separate residence and progressing on her issues of grief so she could resume counseling concerning protective issues. The court found, however, that R.G. was hampered by cognitive limitations, denial and her own dependency needs. As a result, she had demonstrated only changing circumstances with regard to recognizing protective issues and accepting responsibility for A.S.'s injury. R.G. minimized the extent of the injury and had difficulty accepting the fact that Juan had molested A.S.
The court found that R.G. had not met her burden of showing that either of her proposed modifications was in the children's best interests. With respect to R.G.'s request for the children's return, the therapeutic data showed that R.G. needed "a considerably longer period of time for therapeutic interventions to make a significant impact." Moreover, the psychologist who conducted the second evaluation questioned "whether additional such interventions would ultimately result in [R.G.] being able to become more autonomous and better able to protect her children." In light of these factors, and given the children's ages and current stability, the court determined it would not be in their best interests to extend the reunification period as R.G. alternatively requested. The court did not abuse its discretion by denying R.G.'s section 388 petition.
At the outset of this case in October 2008, R.G. refused to believe that Juan had molested A.S. During R.G.'s first psychological evaluation in September 2009, she repeatedly said she could not "blame [Juan] for something" she had not seen. The evaluator cited R.G.'s extreme immaturity and dependence on Juan and concluded that R.G.'s "tendency to use the psychological defenses of denial and repression may make it very difficult for her to keep her daughter safe, because she refuses to see the possibility of harm." R.G.'s previous therapist had been unable to work through the denial and, after seven months, recommended a new therapist. The evaluator recommended that R.G. start therapy with the new therapist but believed that R.G. would be unable to overcome her denial.
R.G. saw two new therapists and attended group therapy before her second psychological evaluation in June 2010. At that evaluation, R.G. said it was possible that Juan had touched A.S., but repeated she "never saw anything inappropriate." R.G. characterized A.S.'s injury as a "scratch" on her hymen, although a doctor had found the hymen nearly gone, consistent with something being pushed into A.S.'s vagina. That evaluator noted R.G.'s motivation for change appeared to be high, but she was submissive and dependent, her potential for insight was poor and her cognitive skills were in the borderline range. The evaluator questioned whether R.G. could become independent and protective of the children, even with additional psychotherapy.
Around the time of the second psychological evaluation, R.G. moved from the family home into a one-bedroom apartment. If the children were returned to her, she planned to sleep in the living room and have the children sleep in bunk beds in the bedroom. R.G. planned to move into a two-bedroom apartment later; the children would continue to share one bedroom and R.G. would have the other. R.G. did not view this sleeping arrangement as inappropriate, even though A.S. was a victim of sexual molestation and L.S. had a history of acting out sexually. At the time of the September 2010 section 388 hearing, R.G. was attending psychotherapy but still was not convinced that Juan had molested A.S. R.G. had made no progress in showing she could protect the children and showed little promise of future progress. R.G. received almost two years of services while the children were in foster care. This case was well past the reunification phase. The focus was on the children's need for permanency and stability and there was a rebuttable presumption that continued foster care was in their best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) R.G. did not overcome the presumption. The court did not abuse its discretion by denying her section 388 petition.
This period included services in the dependency case of R.G.'s fourth and youngest child, who was born in May 2009.
THE BENEFICIAL RELATIONSHIP EXCEPTION
If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One exception exists if "[t]he [parent has] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) A beneficial relationship is one that "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The existence of this relationship is determined by considering "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs...." (Id. at p. 576.) Examining the evidence in the light most favorable to the judgment, we conclude that substantial evidence supports the court's finding that A.G. maintained regular visitation and contact, but any resulting benefit to A.S. was greatly outweighed by her need for stability. (Id. at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
R.G. does not contest the juvenile court's finding that A.S. was adoptable.
At the time of the section 366.26 hearing, A.S. was nine years old. She lived with R.G. for the first seven years of her life and had been out of R.G.'s care for nearly two years. A.S. knew R.G. as her mother, and their supervised visits were generally appropriate, affectionate and enjoyable. Even so, A.S. did not display distress at the end of visits.
A.S. had been in the same foster home for nearly two years. She was thriving in that home and attached to the foster parent and the extended foster family. The foster parent wished to adopt A.S. Although A.S. said she would be sad if she could no longer see R.G., A.S. wanted the foster parent to adopt her.
R.G. cites In re S.B. (2008) 164 Cal.App.4th 289, in which this court concluded that the juvenile court erred by declining to apply the beneficial relationship exception. (Id. at p. 301.) In that case, the child continued to display a strong attachment to the appellant father after her removal (id. at pp. 298-301), they "had 'an emotionally significant relationship' " (id. at p. 298) and the father visited consistently (id. at pp. 293-294, 298, 300). Unlike R.G., the father "complied with 'every aspect' of his case plan" (id. at p. 298), empathized with his child, recognized her needs (id. at p. 294) and placed her needs above his own (id. at p. 298). In re S.B. is inapposite.
There is substantial evidence that A.S. did not have "a substantial, positive emotional attachment" to R.G. that would outweigh the well-being A.S. would gain in an adoptive home, and such that A.S. would be greatly harmed by the severance of her relationship with R.G. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The court properly found the beneficial relationship exception did not apply.
THE SIBLING RELATIONSHIP EXCEPTION
Section 366.26 provides an exception to termination of parental rights when termination would substantially interfere with the child's sibling relationship and the severance of the relationship would be so detrimental to the child as to outweigh the benefits of adoption. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-953; § 366.26, subd. (c)(1)(B)(v).) The juvenile court must "balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardian-ship or foster home placement, against the sense of security and belonging adoption and a new home would confer." (In re L.Y.L., supra, at p. 951, citing In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Factors to be considered in determining whether this relationship exception applies include whether the siblings were raised in the same home; whether they shared significant common experiences or have existing close and strong bonds and; whether ongoing contact is in the child's best interests, including his or her long-term emotional interests, as compared to the benefit of adoption. (§ 366.26, subd. (c)(1)(B)(v).) "[T]he application of this exception will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.) Examining the evidence in the light most favorable to the judgment, we conclude that substantial evidence supports the finding that R.G. did not meet her burden of proving the exception as to A.S.'s relationships with E.S. and L.S. (In re L.Y.L., supra, at pp. 947, 952.)
E.S. was one year older than A.S. L.S. was about one and one-half years younger than A.S. The children lived together until the inception of this case. A.S. was not placed with E.S. or L.S. E.S. said A.S. lied about being molested and blamed her for the children's removal from their parents. L.S. had a history of acting out sexually, including with E.S. A.S. and L.S. had a competitive and at times antagonistic relationship. A.S. was often dismissive with her brothers and played with them for only a couple of minutes during visits. She talked about them, but did not ask to see them outside of visits and had to be reminded to say goodbye to them when visits ended.
A.S. never lived with her youngest sibling. (Fn. 6, ante.)
Substantial evidence supports the conclusion that A.S. did not share a close or strong bond with E.S. and L.S. and the benefit she might derive from ongoing contact was greatly outweighed by the benefits of adoption.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J., O'ROURKE, J.