Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. NJ11739B, Michael Imhoff, Commissioner.
BENKE, Acting P. J.
Cindy appeals a judgment of the juvenile court terminating her parental rights to her minor son, Rolando N., under Welfare and Institutions Code section 366.26. Cindy contends the court erred by denying her section 388 petition for modification seeking either return of Rolando to her care with family maintenance services, or alternatively, for additional services. She also contends the court lacked sufficient evidence to support its finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) and sibling relationship exception of section 366.26, subdivision (c)(1)(E) do not apply to preclude terminating her parental rights. We affirm the judgment.
Statutory references are to the Welfare and Institutions Code.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52) Because teh proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
FACTUAL AND PROCEDURAL BACKGROUND
Rolando was born in March 2003. In January 2005 the San Diego County Health and Human Services Agency (Agency) filed a petition on behalf of one-year-old Rolando under section 300, subdivision (b). The petition alleged Cindy abused drugs while pregnant with Rolando's sibling Arthur. Arthur was born prematurely and tested positive for methamphetamine and amphetamine at birth. Cindy's drug use rendered her unable to provide Rolando with adequate protection and supervision.
The Agency's detention and jurisdiction/disposition report provided a detailed history of Cindy's involvement with child welfare services. Rolando had previously been a dependent of the court. One month after his birth, he was removed from Cindy's care. After 12 months of reunification services, Cindy successfully reunified with Rolando. In addition to Rolando, Cindy had four other children. None of them were in her custody.
At the onset of the present case, the Agency initially recommended Rolando remain in Cindy's care while receiving services. The court agreed and ordered Cindy to undergo a psychological evaluation, participate in counseling, drug testing, and complete a Substance Abuse Recovery Management System (SARMS) program. About two months later, the Agency requested the court to issue an order removing Rolando from Cindy's care. Cindy tested positive for drug use on several occasions and was in poor compliance with the requirements of the SARMS program. Cindy's compliance with drug treatment remained poor in the months following Rolando's removal. She did not stay in contact with her case manager and did not appear for her drug court review hearing.
Cindy's psychological evaluation showed she suffered from a nine-year history of drug abuse. Dr. Owen believed that her ability to maintain sobriety was very poor. She remained at extremely high risk of relapse. Dr. Owen recommended that Rolando remain out of Cindy's care. He further believed if Cindy could remain sober for one year, secure and maintain employment, find a home and live independently, she could be reevaluated to determine whether reunification with Rolando was reasonable. Dr. Owen suggested Cindy should receive individual counseling, attend parenting training, and drug test weekly for one year.
At the six-month review hearing, the court found Cindy had made progress with her case plan and granted her an additional six months of services. She maintained sobriety, had a part time job, and regularly visited Rolando.
During the next six-month reunification period, Cindy gave birth to a son, Angel. She maintained sobriety and secured independent housing. The Agency recommended that the court place Rolando in Cindy's care and provide her with six months of family maintenance services. At the 12-month review hearing, the court followed the Agency's recommendation.
About one month later, however, the Agency filed a petition under section 387 alleging the placement was no longer effective. Cindy and her boyfriend, Arthur R., had engaged in domestic violence. Arthur physically abused Cindy while she held Rolando in her arms. Cindy also admitted to drinking alcohol. Following the domestic violence incident, the Agency social worker recommended that the court not offer additional services. The social worker believed Cindy did not understand the impact domestic violence had on Rolando or Angel and continued to be involved in violent relationships. The court held a hearing on the section 387 petition and terminated Cindy's reunification services. The court ordered Rolando be placed with his paternal relatives and scheduled a selection and implementation hearing under section 366.26.
Social worker Valerie Pofahl filed an assessment report in preparation for the section 366.26 hearing. Pofahl assessed Rolando as being adoptable. Rolando was healthy, developmentally on target, and had a friendly personality. Pofahl reported Cindy did not maintain a consistent visitation schedule with Rolando. Between late November 2006 and February 2007, she visited Rolando five times and Rolando's caregiver reported Cindy did not telephone Rolando on a regular basis. Pofahl believed Rolando knew his mother but she did not occupy a parental role in his life. Rolando instead was bonded to his caregivers and their children, called his caregivers mom and dad, and looked to them for his emotional and physical needs. In the event the caregivers could not adopt Rolando, 27 families in San Diego County were interested in a child with Rolando's characteristics.
The assessment report also discussed Rolando's relationships with his other half-siblings. Rolando lived with his youngest half sibling, Angel, for about two months almost one year before. Pofahl did not believe that terminating Cindy's parental rights would be detrimental to Rolando because his relationship with Angel did not outweigh the benefits of adoption.
In April 2007 Cindy filed a section 388 modification petition seeking to have Rolando returned to her care with family maintenance services. Alternatively, she requested the court reinstate reunification services. As changed circumstances, Cindy alleged she had completed a 14-week domestic violence class and had been participating in therapy with Arthur. As to Rolando's best interests, Cindy alleged she shared a strong bond with Rolando and Rolando had a relationship with his half-brother Angel. Placing Rolando in her care would allow the sibling relationship to continue.
At the May 2007 hearing on the section 388 petition, the court received in evidence various reports from social worker Pofahl, including an addendum report to the previously filed assessment report. The court also heard testimony from Cindy's therapists and Pofahl. In the addendum report, Rolando's caregivers indicated Rolando continued to have ongoing visitation with Angel. However, Rolando did not ask about Angel or talk about missing him when the two were not together. The report stated Cindy had a baby girl in March 2007 and the Agency initiated family and voluntary services for Cindy following the baby's birth.
Concerning Cindy's section 388 petition, Pofahl did not believe Cindy's circumstances had significantly changed. Cindy did visit Rolando somewhat consistently but although she had the option of seeing Rolando more often, she chose not to. Pofahl reported the visits generally went well and were positive. After visits ended, Rolando's caregivers reported he did not ask about Cindy, show signs of sadness when not with her, or ask when he would see her again. Pofahl believed the two shared a bond but their relationship was not a significant parent-child relationship. Rolando did not look to Cindy for his needs and instead saw Cindy to be a visiting relative or family friend. Pofahl further believed the stability Rolando received from his caregivers outweighed any benefit he would receive by living with Cindy.
The court also heard testimony from Cindy's therapists, Lisa Ciccarelli and Susan McAllister. Ciccarelli stated Cindy had made progress in therapy dealing with domestic violence and the role drug abuse played in her life. Ciccarelli did not believe there was a risk of further domestic violence but did recommend that Cindy continue therapy sessions for four to six months.
Susan McAllister testified Cindy was capable of having Rolando returned to her care. However, Cindy needed to continue with therapy for an additional four to six months to address stability issues. McAllister knew Cindy breached her sobriety by drinking alcohol in July 2006 but noted Cindy had been sober from other drugs for about 18 months.
The court heard testimony from Cindy concerning her progress with services. She remained in both individual therapy and conjoint therapy with Arthur, and was participating in domestic violence classes and Narcotics Anonymous meetings. She was on step two of a 12-step recovery program. Cindy represented that she completed an inpatient program and aftercare in June 2006.
Pofahl testified Cindy still needed to make progress with services. She had not gone beyond step two of the 12-step recovery program. Both Ciccarelli and McAllister believed Cindy needed four to six months of therapy. Pofahl had strong concerns regarding Cindy's alcohol use and believed someone in recovery should not place themselves in situations where they might be tempted to drink alcohol or abuse drugs.
Pofahl also believed it was not in Rolando's best interests to be placed with Cindy. He had a significantly strong attachment to his caregivers and the caregivers' children and considered them his family. It would also be detrimental to Rolando to be removed from his current placement.
After considering evidence and hearing argument of counsel, the court denied the section 388 petition. The court proceeded with the section 366.26 hearing and incorporated evidence presented at the hearing on the section 388 petition. The court found by clear and convincing evidence that Rolando was likely to be adopted and further found that the exceptions under section 366.26 (c)(1)(A) and (c)(1)(E) did not apply to preclude terminating parental rights. The court terminated parental rights and referred Rolando for adoptive placement.
DISCUSSION
I
Cindy contends the court erred by denying her section 388 petition for modification seeking either return of Rolando to her care with family maintenance services, or alternatively, for additional services. She asserts her circumstances had changed and granting the petition was in the Rolando's best interests.
A
Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, there is a change in circumstances or new evidence, and the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we may not substitute our decision for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Casey D., supra, 70 Cal.App.4th at p. 47.)
When the court evaluates the appropriate placement for a child after reunification services have been terminated, its sole task is to determine the child's best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 320.) In this context, the goal is to assure the child "stability and continuity." (Id. at p. 317.) The need for stability and continuity " 'will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citation.]" (Ibid.) Thus, after the court terminates reunification services, "there is a rebuttable presumption that continued foster care is in the best interest of the child." (Ibid.)
B
In support of her petition, Cindy alleged she completed 14 weeks of a domestic violence program and participated in conjoint counseling sessions with her significant other. She further alleged she had continued to participate in all aspects of her case plan. Admittedly, Cindy is participating in counseling and domestic violence classes. She has also maintained sobriety since July 2005. However, Cindy's therapists believed she needed to continue with counseling to address issues surrounding her long history of drug abuse and domestic violence issues. Her therapists also believed Cindy would need an additional four to six months of therapy to address remaining concerns. Although we acknowledge her sobriety, Cindy has a nine-year history of drug use. She has yet to complete her 12-step recovery program. The social worker testified that considering Cindy's need for ongoing therapy, Cindy still had protective issues that needed to be addressed before Rolando could be returned to her care. Cindy's circumstances may have been "changing" but they had not changed sufficiently to warrant returning Rolando to her custody. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Casey D., supra, 70 Cal.App.4th at p. 48.) A petition that alleges merely changing circumstances does not promote stability for the child or the child's best interests because it would mean delaying the selection of a permanent home to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point. (Id at p. 47.) "Childhood does not wait for the parent to become adequate." (In re Baby Boy L., at p. 610.)
Even had Cindy shown changed circumstances, she did not show returning Rolando to her custody or providing further reunifications services were in Rolando's best interests. After termination of reunification services, the focus of dependency proceedings is to provide the child with permanency and stability. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254-256; In re Marilyn H. (1993) 5 Cal.4th 295, 310.) At the time of the hearing on the section 388 petition, Rolando had been in and out of Cindy's custody since birth. He was removed from her custody at the age of one month. Cindy reunified with him about one year later only to have him removed again six months later. More than 18 months went by before Cindy regained custody. Then one month later, the Agency removed Rolando for the third time. During these times of removal, Cindy did visit Rolando but the visits fluctuated between being supervised and unsupervised. The visits were generally appropriate and positive but the social worker observed that Cindy did not occupy a parental role in Rolando's life. Their relationship did not outweigh Rolando's need for stability and security. Rolando instead was significantly attached to his current caregivers and benefiting from the stability in that home. It was not in Rolando's best interests to postpone adoption and allow the pattern of reunification and removal to continue. The court acted within its discretion by denying Cindy's section 388 petition.
II
Cindy challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. She asserts she regularly visited Rolando who shared a close bond with her and would benefit from continuing the relationship.
A
We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary conclusion. (Ibid.; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of six specified exceptions. (§ 366. 26, subd. (c)(1)(A)-(F); In re Erik P. (2002) 104 Cal.App.4th 395, 401; In re Derek W. (1999) 73 Cal.App.4th 823, 826.)
Section 366.26, subdivision (c)(1)(A) is an exception to the adoption preference if termination of parental rights would be detrimental to the child because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We have interpreted the phrase " 'benefit from continuing the relationship' " to refer to a "parent[-]child" relationship that "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent[-]child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent[-]child relationship would deprive the child of a substantial, positive, emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) "In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B
The court found Cindy had maintained regular and consistent contact with Rolando throughout the dependency proceedings. Cindy did not, however, meet her burden of showing her relationship with Rolando was sufficiently beneficial to outweigh the benefits of adoption. Cindy was affectionate toward Rolando and their visits were appropriate and pleasant, but Rolando did not have difficulty separating from her when visits ended. In the social worker's opinion, Rolando did not view Cindy as a parental figure and instead saw her more like a visiting relative or family friend. There was no evidence of a "substantial, positive, emotional attachment" from Rolando to Cindy such that terminating the parent-child relationship would result in great detriment to Rolando. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Rolando instead had formed a strong attachment to his caregivers who met all his physical and emotional needs.
Where, as here, the biological parent does not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) Rolando, whose needs Cindy could not meet, deserves to have his custody status promptly resolved and his placement made permanent and secure. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating parental rights.
III
Cindy contends the sibling relationship exception set forth in section 366.26, subdivision (c)(1)(E) applied to compel a permanent plan other than adoption. She asserts Rolando and his half siblings Raul, A., Bianca, and Angel (together siblings), had a close and significant relationship with Rolando and that ongoing contact with the siblings was in Rolando's best interests.
A
Section 366.26, subdivision (c)(1)(E) provides an exception to terminating parental rights when the juvenile court finds there is a compelling reason for determining that termination would be detrimental to the child due to substantial interference with a child's sibling relationship. Factors to be considered include the nature and extent of the relationship, whether the child was raised with a sibling in the same home, and whether the child has strong bonds with a sibling. The court must also consider 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)(E); see also In re L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.) The purpose of this exception is to preserve long-standing sibling relationships that serve as "anchors for dependent children" whose lives are in turmoil. (In re Erik P., supra, 104 Cal.App.4th at p. 404.)
The sibling relationship exception contains "strong language creating a heavy burden for the party opposing adoption." (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) The exception focuses exclusively on the benefits and burdens to the child being considered for adoption, not the other siblings. (Ibid.) Similar to the beneficial parent-child relationship exception, application of the sibling relationship exception requires a balancing of interests. (In re L.Y.L., supra, 101 Cal.App.4th at p. 951.) However, the parents have the burden to show: (1) the existence of a significant sibling relationship; (2) termination of parental rights would substantially interfere with that relationship; and (3) it would be detrimental to the child if the relationship ended. (Id. at p. 952.) Once the parent establishes that a sibling relationship is so strong that its severance would be detrimental to the adoptive child, the court then decides whether the benefit to the child of continuing the sibling relationship outweighs the benefit of adoption. (Id. at pp. 952-953.)
B
Here, there was evidence showing Rolando lived with Angel for about five months and with Raul for about two months. Rolando did not live with Bianca and there was no evidence he knew A. After Rolando was placed with his paternal relatives, he continued to have visits with Angel. Rolando also had the opportunity to have some visits with Raul. However, beyond the fact that Rolando visited Angel and Raul and lived with them for a short time, there was little evidence that Rolando and any of his siblings "share significant common experiences or [have] existing close and strong bonds." (§366.26, subd. (c)(1)(E).) There is no evidence Rolando had difficulty separating from Angel or the other siblings. The social worker believed Rolando did not have a significant relationship with his siblings. The record instead shows Rolando asked very little, if at all, about his siblings in between visits. Rolando's caregivers told the social worker they plan to allow Rolando to visit and interact with his siblings once the adoption is finalized. In the event this did not occur, there was no showing in the record it would be detrimental to Rolando to sever the relationships with his siblings. Thus, the benefit of preserving the sibling relationships would not outweigh the benefit to Rolando of being adopted and having the security and stability of a permanent home after more than four years of being in and out of the dependency system. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(E) did not apply to preclude terminating Cindy's parental rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J., IRION, J.