Opinion
NOT TO BE PUBLISHED
Super. Ct. No. J511832D
MCINTYRE, J.
APPEALS from orders of the Superior Court of San Diego County, Richard Montes, Judge (retired Judge of the Los Angeles S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), and Elizabeth A. Riggs, Judge (retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Affirmed.
A.C. and James A. appeal orders terminating parental rights to their son, Ali C., under Welfare and Institutions Code section 366.26. (Further statutory references are to the Welfare and Institutions Code.) A.C. and James also appeal orders summarily denying their petitions for modification under section 388. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
This proceeding concerns Ali C., who is now four years old. His mother, A.C., has three other sons, Shane C., N.C. , and M.C. (collectively, brothers), now ages 7, 10 and 17 years, respectively. Ali's father is James A., who is the custodial parent of his son, James A., Jr., now age 10.
We take judicial notice of our unpublished opinion in a related case (In re Ali C. (Oct. 1, 2009, D054648 [nonpub. opn.].), describing the case proceedings of February 2009, primarily as they involve A.C. In this section we briefly summarize the facts and proceedings. We describe the events giving rise to the issues raised by the parents on appeal, and the evidence supporting the court's decision, in greater detail in Discussion, post.
In October 2006 the San Diego County Health and Human Services Agency (the Agency) detained Ali, then three months old, and his brothers, and filed petitions alleging the children were at risk of harm due to A.C.'s substance abuse and an incident of domestic violence between A.C. and James. (§ 300, subd. (b).) In November the court sustained the petitions and removed Ali and his brothers from parental custody. The court ordered a plan of family reunification services for A.C. and for Shane and N.C. 's father, L.B. The court denied James's motion for presumed father status and ordered him to participate in a paternity test.
In February 2007 James met with the social worker and accepted referrals for anger management classes and parenting classes. He visited Ali regularly. Ali responded positively to James's attention and appeared to enjoy his visits. A.C. complied with her case plan and visited her children regularly.
At the six-month review hearing in May 2007, the court found that James was Ali's biological father. The Agency reported that James had commitments to James, Jr., who had a serious chronic health condition.
James completed a parenting class in July 2007. He attended an intake appointment for an anger management program but did not participate in classes. James told the social worker he was not responsible for Ali's dependency and he needed to be able to work. James's visits with Ali became inconsistent.
At the November 2007 12-month review hearing, the court placed the children with A.C. under a family maintenance services plan. The court found that James made minimal progress to remedy the causes of Ali's dependency.
Beginning in January 2008, the social worker found it increasingly difficult to contact A.C. A.C.'s therapist told the social worker that A.C. had not attended therapy in more than a month. Shane began to miss school. The social worker met with A.C. and the children on March 27. The children appeared well cared for but A.C. said she was overwhelmed and stressed. The social worker set a Team Decision Meeting (TDM) to discuss increasing support services to A.C.
A.C. did not attend the TDM. The social worker was unable to locate her and the children, or James. On April 11, 2008, L.B. reported that A.C. and the children were living in Alabama with relatives. Once located, A.C. denied she had contact with James and James denied he went to Alabama with A.C.
The Agency received a referral from Alabama child protective services stating that on April 16 James, Jr., was admitted to the hospital and James was arrested for public intoxication. James and James, Jr., flew back to California on April 17. An Agency social worker retrieved Ali and his brothers on April 24. A.C. stayed in Alabama for several months.
At a contested jurisdiction and disposition hearing under section 387, the court placed Shane and N.C. with L.B. An alternative plan was selected for M.C. The court placed Ali in foster care and set a section 366.26 hearing.
A.C. married L.B. on October 3, 2008. On February 9, 2009, A.C. filed a section 388 petition (February petition) seeking Ali's return to her care or an additional period of family reunification services. The court summarily denied her petition. We affirmed. (In re Ali C., supra,D054648.)
On February 23, 2009, James filed a section 388 petition (James's petition) asking the court to place Ali in his care under a plan of family maintenance services or to order long-term foster care and provide continued services to him. The court (the Honorable Richard Montes) summarily denied James's petition.
The contested section 366.26 hearing was held on April 9, 2009. A.C. filed a section 388 petition (April petition) shortly before the hearing began. She asked the court (the Honorable Elizabeth Riggs) for a continuance to allow her time to obtain supporting documents she inadvertently left at home. The court denied her request for a continuance and determined that her section 388 petition did not state a prima facie case of changed circumstances.
The court admitted the Agency's section 366.26 report and addendums. It accepted the stipulated testimony of N.C. and Shane. They stated they enjoyed visiting Ali and objected to his adoption. The adoptions worker, Jamie Kobayashi, and James testified.
In her section 366.26 report, Kobayashi stated that Ali had experienced significant disruption and instability in his life. He had had multiple placements and inconsistent contact with his parents. Ali was adoptable. Kobayashi observed numerous visits between Ali and A.C. and James, and Ali's interactions with N.C. and Shane. James and A.C. were always appropriate and affectionate with Ali but they did not have a parent-child relationship with him. Ali enjoyed spending time with his brothers but he did not have a particularly strong or close attachment to them. Kobayashi stated Ali might suffer some detriment as a result of termination of parental rights but it was unlikely that severing the parent-child relationships would cause him great harm.
James stated Ali separated easily at visits. He had been in the state's care since he was young and was accustomed to it. James acknowledged he had not spent much time with Ali but he loved his son and they shared a strong bond.
The court found by clear and convincing evidence that adoption was in Ali's best interests and none of the exceptions to termination of parental rights applied. The court terminated parental rights.
DISCUSSION
I. The Parties' Contentions
A.C. contends the court abused its discretion when it denied her request to briefly continue the proceedings and summarily denied her April petition. A.C. argues she was denied her due process rights to a fair hearing. James contends the court erred when it summarily denied his petition. James and A.C. contend the court erred when it did not apply the beneficial parent-child relationship exception (§ 366.26, subd. (c)(1)(B)(i)) or the sibling relationship exception (§ 366.26, subd. (c)(1)(B)(v)) and terminated their parental rights to Ali.
The Agency contends the court acted within its discretion when it denied A.C.'s request for a continuance and determined the parents' petitions did not state a prima facie case. The Agency argues substantial evidence supports the court's findings under section 366.26, subdivision (c)(1)(B)(i) and (v).
Minor's counsel joins in and adopts the Agency's brief.
II. Continuances in Dependency Proceedings
A.C. contends the court abused its discretion when it denied her request for a brief continuance to obtain papers she accidentally left at home showing her continued sobriety and participation in outpatient substance abuse treatment from January 2009. A.C. argues the court's failure to grant her request for a brief continuance prevented her from exercising her right to provide evidence to support her petition.
Continuances in dependency proceedings are disfavored, particularly when they infringe on maximum time limits under the Welfare and Institutions Code. (In re David H. (2008) 165 Cal.App.4th 1626, 1636; § 352, subd. (a); see also In re Josiah Z. (2005) 36 Cal.4th 664, 674; In re Karla C. (2003) 113 Cal.App.4th 166, 179.) "No continuance shall be granted that is contrary to the interest of the minor. In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (§ 352, subd. (a).)
A.C. filed her section 388 petition the day of the section 366.26 evidentiary hearing. While A.C. stated she hoped to have the papers that day, the record does not show A.C.'s request was for any particular time period, as required by section 352, subdivision (a). Nor did A.C. establish good cause for a continuance. (Ibid.) The court set the April 9, 2009, evidentiary hearing on March 6, 2009. A.C. had ample opportunity to timely file a section 388 petition with appropriate supporting documents. The court properly determined there was no good cause to grant a continuance.
The court reasonably determined the continuance was contrary to Ali's best interests. (§ 352, subd. (a).) Ali had been involved in dependency proceedings since October 2006, when he was three months old. State law, with limited exceptions, mandate the selection of a permanency plan for a child within 22 months of the date the child was originally taken from the physical custody of his or her parent. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; § 366.21, subd. (g)(1); see § 366.22, subd. (b), eff. Jan. 1, 2009; § 366.25 [limited exception to timeline].) For a child as young as Ali, even shorter timelines are favored. (§§ 361.5, subd. (a)(1)(B) & (C), 366.21, subd. (e).)
Here the section 366.26 hearing was initially scheduled for November 5, 2008, within the 120 days specified by section 366.22, subdivision (a). (See also § 366.21, subd. (g)(2).) As of April 9, 2009, the proceedings had been ongoing for almost 30 months. During that time, Ali had multiple placements and inconsistent contact with his parents. The court did not abuse its discretion when it denied A.C.'s request for a continuance.
III. Section 388—Statement of Law and Standard of Review
Under section 388, a party may petition the court to change, modify or set aside a previous court order. The court may deny the application ex parte "if the petition fails to state a change of circumstance or new evidence that may require a change of order..., or that the requested modification would promote the best interest of the child...." (Cal. Rules of Court, rule 5.570(d).) (Further rule references are to the California Rules of Court.)
The court must liberally construe the petition in favor of its sufficiency. (In re Marilyn H., supra, 5 Cal.4th at p. 309; 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." (In re Marilyn H., supra, at p. 310; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) 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.)
We review a summary denial of a hearing on a modification petition for abuse of discretion. (In re Zachary G. (1999) 77 Cal.App.4th 799, 808.) Under this standard of review, we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)
A. A.C.'s Section 388 Petition
A.C. argues her section 388 petition stated a prima facie case because it set forth sufficient facts to show she had stabilized her situation and Ali's interests would be promoted by living with her and his brothers. Petitions filed on the eve of a court hearing are disfavored. (See In re Edward H. (1996) 43 Cal.App.4th 584, 594; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 609-610.) As the court noted, and we agree, A.C.'s petition could have been denied on timeliness grounds alone.
The record shows A.C.'s petition filed on April 9 was almost identical to the petition she filed on February 9. (The April 9 petition also stated A.C. was attending school.) We affirmed the court's summary denial of A.C.'s February 9 petition and now affirm the court's summary denial of the April 9 petition for the reasons set forth in In re Ali C., supra, D054648, at pp. 10-13.)
Even if A.C.'s second section 388 petition had included documentation supporting her assertion she had remained sober for an additional two months, in view of her history of instability (encompassing Ali's return to her custody), and Ali's needs for a safe, stable, permanent home, we would conclude A.C. did not make a sufficient showing of changed circumstances or that a modification of the prior order would promote Ali's best interests. (Rule 5.570(d); In re Justice P., supra,123 Cal.App.4th at pp. 188-189.)
We need not address A.C.'s due process claim. Because her liberally construed section 388 petition did not state a prima facie case, A.C. was not entitled to a hearing on the merits. (Rule 5.570(d); see In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
B. James's Section 388 Petition
James contends the court erred when it denied his section 388 petition seeking Ali's return to his care. He argues the petition stated a prima facie case of changed circumstances in that it showed he had completed an anger management class and developed a positive bond with Ali through consistent visitation. James states the modification of the prior order would promote Ali's best interests because Ali was bonded to James and could be raised with a brother who was thriving in James's custody. James attached a certificate of completion from an anger management course.
The record shows James was a caring, competent parent to his older son and was able to affectionately and promptly meet Ali's needs during their visits. The record also shows that despite many opportunities to do so, James did not demonstrate a full commitment to his parental responsibilities to Ali and remained a biological father throughout the dependency proceedings. (See In re Zacharia D. (1993) 6 Cal.4th 435, 448-451, 454 [only a presumed father is entitled to assume immediate custody]; see also Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 595-596.)
James did not consistently visit Ali throughout the dependency proceedings. While we understand the pressures on a single parent to support and care for a chronically ill child, at the same time James did not meet his parental responsibilities to Ali, a juvenile court dependant who also critically needed James's attention and support. (See In re Marilyn H., supra, 5 Cal.4th at p. 310.) In his petition James did not assert he demonstrated a full commitment to Ali sufficient to gain status as his presumed father, and the court reasonably determined that his petition did not state a prima facie case of changed circumstances.
In view of Ali's age, the length of time spent as a dependent, James's failure to follow court orders designed to ensure Ali's safety and his reluctance to address Ali's needs for permanency and stability in a timely manner, the court could reasonably determine that a modification of the prior order would not promote Ali's best interests.
IV. Termination of Parental Rights Under Section 366.26 and Standard of Review
At a permanency plan hearing under section 366.26, the court may order one of three alternatives: adoption, guardianship, or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If the dependent child is adoptable, 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; In re Zachary G., supra, 77 Cal.App.4th at pp. 808-809.)
Once the court determines that the child is likely to be adopted, the burden shifts to the parent to prove the applicability of an exception to termination of parental rights under section 366.26, subdivision (c)(1)(A) or subdivision (c)(1)(B). (Cf. In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) To avoid termination of parental rights under section 366.26, subdivision (c)(1)(B), the court must find a compelling reason that termination would be detrimental to the child due to one or more defined circumstances. (§ 366.26, subd. (c)(1)(B)(i)-(vi).) Two of those exceptions, the beneficial parent-child relationship exception and the sibling relationship exception, are relevant here. (§ 366.26, subd. (c)(1)(B)(i), (v).)
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)(1)(B). (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.); In re S.B. (2008) 164 Cal.App.4th 289, 298.)
A. Beneficial Parent-Child Relationship Exception
Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." "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 .)
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, "[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. 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 .)
"Neither section 366.26, subdivision (c)(1)(B)(i), nor Autumn H. requires proof that the child has a 'primary attachment' to a parent or that the noncustodial parent has maintained day-to-day contact with the child." (In re S.B., supra, 164 Cal.App.4th at p. 300, citing Autumn H., supra, 27 Cal.App.4th at p. 575 and In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
Although the record shows that A.C. visited and contacted Ali regularly throughout the proceedings, A.C. did not show that Ali would be greatly harmed by termination of parental rights. Ali was detained when he was three months old. He was in foster care for one year before he was returned to her custody. Within two months, A.C. was overwhelmed and was not able to provide a safe, stable, protective home to Ali and her other sons. Ali was detained in April 2008. A.C. returned to San Diego in August and resumed visiting Ali in September. There is no evidence to show Ali suffered any detriment from his extended separation from A.C. During visits, Ali did not show a preference for A.C. or seek comfort from her. The court could reasonably conclude that the strength and quality of Ali's relationship with A.C. did not outweigh the benefits he would receive from a permanent home with his prospective adoptive parents. (Autumn H., supra,27 Cal.App.4th at p. 575 .)
The court's determination that James did not have a parental relationship with Ali is supported by substantial evidence. Our discussion of James's status as a biological parent, ante, is relevant here. The record supports the social worker's observation that James's contact with Ali was inconsistent and on occasion, lapsed for several months at a time. James acknowledged he had not spent much time with Ali. Ali separated easily from him at visits. James stated Ali had been in the state's care since he was a baby and "that's all he's used to." While Ali enjoyed James's attention at visits, the record supports the conclusion that termination of James's parental rights would not deprive Ali of a substantial, positive emotional attachment such that Ali would be greatly harmed. (Autumn H., supra,27 Cal.App.4th at p. 575.)
B. Sibling Relationship Exception
The sibling relationship exception applies when the parent shows, by a preponderance of the evidence, that termination of parental rights would be detrimental to the child because it 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 court considers the factors set forth in section 366.26, subdivision (c)(1)(B)(v). 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); In re Valerie A. (2007) 152 Cal.App.4th 987, 1007.)
There is substantial evidence in the record to show Ali was not raised with his siblings in the same home, did not share significant common experiences with them and did not have existing close and strong bonds to them. During his dependency proceedings, Ali lived with his brothers sporadically and then only briefly. He never lived with James, Jr. When Ali did not reside with his brothers, his visits with his siblings, including James, Jr., were inconsistent. Ali enjoyed playing with his siblings but rarely talked about them and never asked to see them. Kobayashi believed Ali related to his siblings as if they were cousins, meaning they had a good time together but Ali did not have a particularly close attachment to them.
The court could reasonably determine that Ali's long-term emotional interests were better served by a permanent adoptive placement than by maintaining his relationships with his siblings. This court has previously stated that the application of sibling relationship exception will be rare, particularly when the proceedings concern a young child whose needs for a competent, caring and stable parent are paramount. (In re Valerie A., supra, 152 Cal.App.4th at p. 1014, citing In re L.Y.L. (2002) 101 Cal.App.4th 942, 950.) In view of Ali's age and needs, we conclude there is substantial evidence to support the court's finding the sibling relationship exception did not apply. (§ 366.26, subd. (c)(1)(B)(v).)
DISPOSITION
We affirm the orders.
WE CONCUR: NARES, Acting P. J., HALLER, J.