Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SJ11781A-B Ana L. Espana, Judge.
O'ROURKE, J.
Mark K. (father) and T.Y. (mother) (together, the parents) appeal a juvenile court judgment terminating their parental rights to T.K. and A.K. (together, the children) under Welfare and Institutions Code section 366.26. The parents challenge the sufficiency of the evidence to support the court's finding that the beneficial parent-child and sibling relationship exceptions to adoption did not apply. The parents also contend the court abused its discretion by summarily denying father's section 388 petition seeking the children's return to parental custody with family maintenance services, and mother's section 388 petition seeking reinstatement of reunification services. We affirm.
All statutory references are to the Welfare and Institutions Code.
The children's appellate counsel supports the trial court's decision.
FACTUAL AND PROCEDURAL BACKGROUND
Father's parental rights to the children's five older half siblings were terminated in November 2005 due to his substance abuse and neglect. Two months later the parents were arrested for possession of methamphetamine and mother was convicted and sentenced to three years probation. The children first came to the attention of the San Diego County Health and Human Services Agency (the Agency) in 2007 when mother gave birth to A.K. while incarcerated for violating probation on her conviction for methamphetamine possession. The children were placed with father on the condition the family reside with the paternal grandparents. Services provided to the parents included counseling, parent education and substance abuse treatment. The parents completed their case plans and jurisdiction was terminated in October 2008.
A paternal relative obtained guardianship of three half siblings, and two were adopted by another paternal relative.
Less than one year after jurisdiction was terminated father was arrested for being under the influence and in possession of a controlled substance while driving an automobile in which mother and the children were passengers. Mother was arrested and the children were taken into protective custody after a search of the home revealed drug paraphernalia and drug residue easily accessible to the children. The Agency filed dependency petitions on behalf of three-year-old T.K. and two-year-old A.K. under section 300, subdivision (b), detained them in foster care and later placed them with their paternal grandparents. The parents admitted recent use of controlled substances and were offered reunification services, including individual therapy, parenting education and substance abuse treatment.
Two months after the children's detention father again tested positive for methamphetamine. Six months into the dependency proceedings mother had tested positive for a controlled substance, missed therapy sessions, disappeared for three to four weeks, and was at risk of being discharged from her substance abuse program. Father participated in therapy, but his attendance at his substance abuse program was inconsistent, he missed scheduled drug testing and faced possible termination from parenting classes due to repeated absences.
A social worker's unannounced home visit to the parent's hotel room in June 2010 revealed numerous beer containers and a strong smell of alcohol. The parents claimed they were collecting the containers for recycling, but the hotel manager had asked the parents to move out due to excessive partying and drinking in their room. The parents insisted their schedules prevented them from getting tested for controlled substances that day.
Two weeks after the social worker's home visit the parents asked to have the paternal grandparents take temporary guardianship of the children because the parents needed six months "to get their life together." Within the next few months the parents cancelled visits with the children, stopped attending therapy, mother was discharged from her drug treatment program and reincarcerated after several positive drug tests, and father was arrested for failure to appear on a charge of being under the influence of a controlled substance.
At the contested six-month review hearing the parents' reunification services were terminated and the matter set for a section 366.26 hearing. Both parents were incarcerated on drug-related offenses at the time of the hearing. The court found neither parent had made substantive progress on their case plan and there was no substantial probability the children would be returned to the parents by the 12-month date. Three months later the children were moved into the home of paternal relatives interested in adopting them.
Five months after reunification services were terminated the parents filed section 388 petitions alleging their circumstances had changed and it was in the children's best interests for the court to reconsider its order terminating services. Father's section 388 petition sought the children's return to his custody along with the provision of family maintenance services, and mother's section 388 requested reinstatement of reunification services. Father argued his circumstances had changed because he had completed an outreach program and was residing in a sober living facility. Mother claimed her circumstances had changed because she was enrolled in a residential drug treatment program. After considering the evidence and argument, the court denied both parent's section 388 petitions, and found neither parent had met their burden to establish a prima facie showing their circumstances had changed, or that it was in the children's best interests to grant the section 388 petitions.
At the contested section 366.26 hearing the Agency opined the children would benefit more from a permanent plan of adoption than they would from a continuing relationship with their parents. The parents have long histories of substance abuse and incarceration, and although at times the parents regularly visited the children, at other times they cancelled visits or disappeared for weeks. The interactions between the parents and children were positive, but the children separated easily from the parents, rarely spoke about them during their ride home and never asked for longer or more frequent visits. The prospective adoptive parents have known the children since birth and the children wanted to live with them. The court found by clear and convincing evidence the children were likely to be adopted if parental rights were terminated, and the parents had not met their burden to establish that any of the section 366.26, subdivision (c)(1), exceptions to adoption applied. The court terminated all parental rights and identified adoption as the permanent plan for the children.
DISCUSSION
I. Section 388 Petitions
The parents contend the court erred by not granting evidentiary hearings on their section 388 petitions because they had made prima facie showings their circumstances had changed, and it was in the children's best interests to grant their petitions. Section 388, subdivision (a), permits a parent to petition the court to change, modify or set aside a court order if the parent shows by a preponderance of the evidence his or her circumstances have changed and the proposed modification would be in the child's best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re B.D. (2008) 159 Cal.App.4th 1218, 1228; § 388, subd. (a).) A petition for modification should be liberally construed in favor of its sufficiency, but the court has the discretion to summarily deny a hearing on the section 388 petition where there has been no prima facie showing the parent might be entitled to the requested relief if the allegations are found to be true. (In re Justice P. (2004) 123 Cal.App.4th 181, 188; In re B.C. (2011) 192 Cal.App.4th 129, 141.) In determining whether the requisite showing has been made the court may rely on facts alleged in the petition as well as the factual and procedural history of the case. (In re Justice P., supra, at pp. 188-189.) This court will not disturb the juvenile court's exercise of discretion unless it " ' "has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination" [citation].' " (In re Stephanie M., supra, at p. 318.)
Section 388, subdivision (a), provides a parent "may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." Section 388, subdivision (d), states the court shall hold a hearing "[i]f it appears that the best interests of the child may be promoted by the proposed change of order...."
This court has identified three factors relevant to whether a section 388 petition has made a prima facie showing of changed circumstances: " '(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.' [Citation.]" (In re B.D., supra, 159 Cal.App.4th at p. 1229.)
Mother's petition asserted her two-month enrollment in a residential substance abuse treatment program and the fact she had been sober since July 2010 showed her circumstances had changed. However, mother began using illegal drugs at age 10, had been convicted of substance abuse and incarcerated five times for probation violations related to that conviction, had participated unsuccessfully in at least six substance abuse treatment programs, was involved in a prior dependency proceeding for which she received services for the same protective issues, and was incarcerated again for several months during these dependency proceedings. The trial court found this evidence showed mother's circumstances merely were changing but not changed, which "is not sufficient to require a hearing on the merits of [a] section 388 petition." (In re A.S. (2009) 180 Cal.App.4th 351, 358.) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.] " ' "[C]hildhood does not wait for the parent to become adequate." ' [Citation.]" (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The court drew the reasonable inference that mother's short period of sobriety relative to her lengthy substance abuse history did not establish a prima facie case of changed circumstances.
Mother argues that a recovering addict can never show changed circumstances because an addict is, by definition, always in recovery. However, the fact that addicts are always in recovery does not preclude a finding of changed circumstances when a parent has maintained sobriety for a lengthy period of time and complied with all other aspects of the case plan. (See In re Mary G. (2007) 151 Cal.App.4th 184, 205-206 [few months of sobriety not changed circumstances following 23 years of substance abuse]; In re Aljamie D. (2000) 84 Cal.App.4th 424, 432 [two years of sobriety sufficient to show changed circumstances]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424, disagreed with on other grounds [seven months of sobriety insufficient after years of substance abuse]; In re Casey D., supra, 70 Cal.App.4th at pp. 48-49 [father's nine months of sobriety showed change of circumstances, but mother's few months of sobriety did not].) In addition to mother's brief period of sobriety and concerns she would not have entered residential substance abuse treatment without the threat of losing her children or had it not been a condition of her probation, mother had not substantively complied with her case plan. Under these circumstances it was not unreasonable for the trial court to find a few months of sobriety was not long enough to show mother's circumstances had changed.
Father contends his section 388 petition presented a prima facie showing of changed circumstances because he had successfully completed a substance abuse treatment program and was "committed to a clean and sober lifestyle...." However, the court found the treatment program primarily offered spiritual support, but questioned whether the program had addressed father's longstanding substance abuse issues, and found no indication father was being randomly drug tested. Father had received 18 months of reunification services before he lost parental rights to his five older children, and more than 18 months of additional services in the previous dependency proceedings involving these children. Although father successfully completed services in the latter proceedings, he relapsed less than one year later. During these dependency proceedings father used controlled substances on several occasions, and as late as August 2010 he was incarcerated for failure to appear on a charge of being under the influence of a controlled substance. These facts support the court's finding that although father's circumstances may have been changing, he did not meet his burden to show changed circumstances.
Father relies on In re Aljamie D., supra, 84 Cal.App.4th at page 424, in which the appellate court reversed the trial court's summary denial of the parent's section 388 petition. The petition in In re Aljamie D. "alleged several concrete changes in the mother's situation, ... as well as consistent visitation and strong bonding with the children" who "repeatedly expressed" their desire to live with their mother. (In re Angel B. (2002) 97 Cal.App.4th 454, 462-463.) These factors are not present here. More analogous is In re Angel B., where the court concluded there had not been a prima facie showing of changed circumstance even though the parent had completed a drug treatment program, because "the time she had been sober was very brief compared to her many years of drug addiction, ... and in the past she had been unable to remain sober even when the stakes involved were the loss of her other child." (Id. at p. 463.)
The parents' section 388 petitions also failed to make prima facie showings that delay in permanency was in the children's best interests, or that either parent currently was able to provide a stable, safe home to the children. (In re A.S., supra, 180 Cal.App.4th at p. 358; In re Angel B., supra, 97 Cal.App.4th at p. 463.) By the time the court denied the parents' section 388 petitions the reunification phase had concluded; at this stage of the proceedings " 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.]" (In re Stephanie M., supra, 7 Cal.4th at p. 317.) This is particularly true "when such placement is leading to adoption by the long-term caretakers. [Citation.] To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification." (In re Angel B., supra, 97 Cal.App.4th at p. 465.) "This burden may be especially difficult to sustain for a parent who failed to continue with substance abuse treatment during the reunification period." (In re Nolan W. (2009) 45 Cal.4th 1217, 1235.)
Father's section 388 petition claimed he had "taken great steps" to provide the children a safe and stable home. However, the court questioned whether the sober living facility in which father was residing was an appropriate environment for children. On the other hand, the children were happy in the safe and stable home of their prospective adoptive parents. The record also showed the bonds between the children and parents were no longer as strong as the bond between the children and their prospective adoptive parents; although interactions between the parents and children were positive, the children separated easily from the parents, rarely spoke about them during their ride home and never asked for longer or more frequent visits. (In re B.D. supra, 159 Cal.App.4th at p. 1229.)
Father claimed his proposed order would be in the children's best interests because "maintaining the familial unit and bond is always best for a child." "The presumption favoring natural parents by itself does not satisfy the best interests prong of section 388. The cases that state a child may be better off with his or her biological parent rather than with strangers do so when the biological parent has shown a sustained commitment to the child and parenting responsibilities." (In re Justice P., supra, 123 Cal.App.4th at p. 192.) Neither parent here showed a sustained commitment. Taken as a whole, the facts summarized above support the juvenile court's finding it would not be in the children's best interests to have their permanency delayed by reinstatement of reunification services. The court properly exercised its discretion in denying hearings on the parents' section 388 petitions.
II. Beneficial Parent-Child Relationship Exception
The parents challenge the sufficiency of the evidence to support the court's finding that the beneficial parent-child relationship exception to adoption did not apply. The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals; if there is substantial evidence to support the findings of the juvenile court, we uphold those findings. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Instead, we draw all reasonable inferences in support of the findings, consider the record favorably to the juvenile court's order, and affirm the order if it is supported by substantial evidence, even if there is conflicting evidence. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing there is no substantial evidence to support the finding or order. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing, unless the parent establishes the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One such exception is if the 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).)
The parents do not contest the juvenile court's finding that the children are adoptable, but father argues the court should have chosen a permanent plan of guardianship or long-term foster care in place of adoption.
The trial court found the parents satisfied the first prong of the beneficial parent-child exception, because they frequently visited the children. However, the court found the parents had not satisfied the second prong of the beneficial parent-child relationship exception which required the parents to show they shared a relationship with the children that "promotes the well-being of the child[ren] to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
In determining whether the beneficial parent-child relationship exception applies, the court takes into consideration "[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...." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) "Interaction between natural parent and child will always confer some incidental benefit to the child[, ]" but that is insufficient to meet the standard. (In re C.F. (2011) 193 Cal.App.4th 549, 555, quoting In re Autumn H., supra, at p.575.) "[T]he 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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
There is substantial evidence to support the court's finding that the children would benefit more from the permanency of adoption than they would from maintaining a legal relationship with the parents. Although the parents were affectionate and appropriate with the children during visits, and shared a positive relationship, there was nothing to indicate the children had "a substantial, positive emotional attachment" to the parents, or that they would be greatly harmed if that relationship were severed. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Father emphasizes the length of time the children were in his custody prior to their detention and the positive relationship they shared. However, the court must consider the strength of the parent-child relationship as it exists at the time of the section 366.26 hearing not at the time of the initial detention. (In re C.F., supra, 193 Cal.App.4th at p. 557.) At the time of the section 366.26 hearing, the children were ages four and five and had not lived with father for 17 months. The children's relationship with mother was even more tenuous because they had lived with mother less than half of their lives due to mother's repeated incarcerations and stays in residential treatment. The children easily separated from the parents at the end of visits and said they wanted to live with their prospective adoptive parents "forever."
Father asks this court to ignore settled law and hold that frequent and loving contact between parent and child alone is sufficient to establish the required beneficial parent-child relationship. However, the statute expressly requires that the child "benefit from continuing the relationship, " which has been interpreted "to mean the 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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; § 366.26, subd. (c)(1)(B)(i).)
Father compares the facts of this case to those in In re S.B. (2008) 164 Cal.App.4th 289 (S.B.), in which this court concluded the juvenile court erred in declining to apply the beneficial parent-child relationship exception. (Id. at pp. 300-301.) In S.B., the child was five years old, the appellant father had been her primary caretaker for three years, she displayed a strong attachment to the father, and he had "complied with every aspect of his case plan." (Id. at pp. 293, 298, 300-301.) Here the children had developed a significant bond with their caretakers, while the parents had sporadically participated in reunification services, were incarcerated and used controlled substances during the dependency process. Section 366.21, subdivision (e), states that "[t]he failure of [a] parent... to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental." By the time of the hearing on the section 388 petitions the children were in a stable and safe home, which met all of their needs, and the adoptive parents are dedicated to including them in the family. The children deserve to have their custody status promptly resolved and their placement made permanent and secure. There is substantial evidence to support the juvenile court's finding that the beneficial relationship exception does not apply.
III. Sibling Relationship Exception
Father alleges the court erred in failing to find that termination of parental rights would substantially interfere with the children's relationships with their half siblings, an argument in which mother joins. Section 366.26, subdivision (c)(1)(B)(v), provides an exception to termination of parental rights when there is a compelling reason for determining termination would be detrimental because it would substantially interfere with a sibling relationship. 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. (2002) 104 Cal.App.4th 395, 404.) Factors for the court to consider include the nature and extent of the sibling relationship, whether the siblings were raised in the same home, whether they share a close bond and whether continued contact is in the child's best interests, as compared to the benefits of adoption. (§ 366.26, subd. (c)(1)(B)(v).)
"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.) Similar to the beneficial parent-child relationship exception, application of the sibling relationship exception requires a balancing of interests. (In re L.Y.L. (2002)101 Cal.App.4th 942, 951.) Appellant must show: (1) the sibling relationships are significant; (2) terminating parental rights would substantially interfere with those relationships; and (3) it would be detrimental to the children if their sibling relationships were terminated. (Ibid.)
The children never lived with two of their half siblings and they shared no significant relationship with them. The children had lived with the other three half siblings at their paternal grandparents' home, and the Agency believed it was in the children's best interests to continue that sibling relationship. However, the interest in continuing relationships between the children and these three half siblings was not at risk in this case. The prospective adoptive parents are members of the children's extended family and are open to facilitating contact between the children and these three half siblings, some of whom still reside with the paternal grandparents. Even if termination of parental rights substantially interfered with the children's sibling relationships, the parents did not show maintaining these relationships outweighed the benefits of adoption. (§ 366.26, subd. (c)(1)(B)(v); In re L.Y.L., supra, 101 Cal.App.4th at pp. 946-947.)
Examining the evidence in the light most favorable to the judgment, we conclude that there is substantial evidence to support the juvenile court's finding that the section 366.26, subdivision (c)(1)(B)(v), beneficial sibling relationship exception does not apply to prevent termination of parental rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., McINTYRE, J.