Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County Super. Ct. No. J516291A-D, Cynthia Bashant, Judge.
McINTYRE, J.
Sammy U. and R.K. appeal orders terminating their parental rights to their four children, and Sammy appeals an order denying his Welfare and Institutions Code section 388 petition. (All statutory references are to the Welfare and Institutions Code unless otherwise specified.) Sammy contends the court erred by denying his section 388 petition in which he requested reunification services. He also asserts substantial evidence does not support the juvenile court's finding the children were adoptable or the finding that the sibling exception to adoption of section 366.26, subdivision (c)(1)(E) did not apply. Sammy and R.K. contend substantial evidence does not support the finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply. (Effective Jan. 1, 2008, the Legislature amended and renumbered section 366.26, subd. (c)(1). (Stats. 2006, ch. 838, § 52).) We refer to the earlier version of the statute.) We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On June 20, 2006, the San Diego County Health and Human Services Agency (the Agency) petitioned under section 300, subdivision (b) on behalf of five-year-old Brandon U., three-year-old Sammy U., Jr., one-year-old Breanna K., and infant Jonathan K. based on R.K.'s methamphetamine use. R.K. had earlier participated in voluntary services but stopped and the case was closed. Sammy did not participate in services at that time. The court ordered the children detained. Sammy did not attend the hearing.
The social worker reported R.K. named another man as Breanna's father and was unsure of the identity of Jonathan's father. On July 12, 2006, the court found the allegations of the petitions true, ordered R.K. to comply with her service plan and ordered the children placed in foster care.
The social worker reported R.K. was participating in services. Sammy entered the CRASH program on October 25, 2006, but left it on December 17.
Sammy appeared in court for the first time on January 10, 2007. Counsel was appointed to represent him and he requested paternity testing. At the six-month review hearing on February 26 the court denied requests for a continuance pending paternity test results. R.K. had not been successful with services, and the court terminated services and set a section 366.26 hearing.
On March 27, 2007, the court found Sammy is the biological father of all four children. It stated the record was unclear whether it had ordered services for Sammy, but apparently the Agency had made them available to him. On April 11 Sammy petitioned under section 388, requesting the court vacate the order setting the section 366.26 hearing, declare him the presumed father and order services. He alleged the Agency had delayed his paternity test, and he was denied counsel until January 2007 and not given a chance to participate.
The social worker said the children are adoptable. Sammy visited them for the first time in April 2007. Visits were pleasant, but the children separated easily from the parents when visits ended. Breanna's caregivers were interested in adopting her and Jonathan, approved adoptive families in San Diego were interested in a sibling group like Brandon and Sammy, and other families were also available for Breanna and Jonathan. Ten out-of-state families were interested in a group of four siblings like these children.
At the section 388 and section 366.26 hearings on July 5, 2007, the court denied Sammy's request that he be named the children's presumed father. The parties stipulated that were Sammy to testify, he would state he loves the children, did not want his parental rights terminated, and wanted to participate in services and have the paternal grandfather considered for placement. The court noted Sammy had not come forward or maintained contact with the social worker although the social worker had offered him services, and it was not in the children's best interests to delay their permanency. It found Sammy had established a change of circumstances, but had not shown it was in the children's best interests to order services.
For the section 366.26 hearing the social worker testified the children were adoptable and there were families available to adopt them.
The court found the children were adoptable and there were numerous placement options. It questioned whether the parents had maintained regular contact with the children and found the beneficial parent-child relationship exception and the sibling relationship exceptions to adoption did not apply. It terminated parental rights and referred the children for adoption.
DISCUSSION
I. Sammy's Section 388 Petition:
Sammy contends the court abused its discretion by denying his section 388 petition in which he requested reunification services and it erred by denying his request for presumed father status. He argues he lived with and supported the children and publically declared paternity of them, and the evidence showed he shared a bond with the children and particularly with Brandon and Sammy, Jr.
Assuming Sammy has preserved this issue for appeal, we hold the court did not abuse its discretion.
Section 388 provides in part:
"(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . 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 . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court . . . . [¶] . . . [¶]
"(c) If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . ."
In order to gain the relief sought in a section 388 petition, the petitioner must show both a change of circumstances or new evidence and that the change sought is in the child's best interests. (§ 388; Cal. Rules of Court, rule 1432(c); In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) "It is not enough for the parent to show just a genuine change of circumstances under the statute[,] the parent must [also] show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) A petition is liberally construed in favor of its sufficiency. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) The petitioner bears the burden of proof, however, to make both showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
Presumed fathers, alleged fathers and biological fathers are recognized in dependency law. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) An alleged father is a man who has not established paternity or presumed father status. (Ibid.) A biological father is a man who has established paternity, but has not established that he qualifies as the child's presumed father. (Ibid.) A presumed father is a man who meets the criteria of Family Code section 7611, which contains rebuttable presumptions of paternity. Section 7611, subdivision (d) sets forth a rebuttable presumption of paternity when a man receives a child into his home and openly acknowledges the child as his natural child. A father has the burden of showing he is entitled to presumed father status by a preponderance of the evidence. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653.) A presumed father is entitled to reunification services under section 361.5. (In re Zacharia D., supra, 6 Cal.App.4th at p. 451.) Although a biological father is not entitled to services, the court may order them if it determines services would benefit the child. (§ 361.5, subd. (a).)
Sammy has not shown the court erred in determining that he did not qualify as the children's presumed father. The record indicates he lived with Brandon for three years and with Sammy, Jr., for one, but never with Breanna or Jonathan. There is no evidence beyond the parents' assertions that he ever supported the children. Sammy did not attend any court hearings regarding the dependencies until more than six months after the children were detained. He told the social worker that R.K. had told him about the hearings, but he did not attend because he "did not have his head on straight." He did not readily acknowledge paternity, instead asking for paternity testing the first time he appeared in court. After he began visits, he had only sporadic contact with the children.
Sammy also has not shown the court abused its discretion by denying his request to vacate the section 366.26 hearing and provide him with services. Although, as the court found, Sammy showed a change of circumstances by the fact that he is the children's biological father, he did not show that it would be in the children's best interests to delay their permanent plans.
In In re Kimberly F., supra, 56 Cal.App.4th 519, 530-532, the appellate court listed three factors a court might consider when determining if a child's best interests would be served by granting a section 388 petition: (1) the seriousness of the problem that led to the dependency and the reasons for any continuation of the problem; (2) the strength of the bond between the child and the caretaker; and (3) the degree to which the problem may be removed and the degree to which it has been removed.
The problems that led to the dependencies were serious. Both parents had problems with drug abuse. Although Sammy entered a treatment program, he soon abandoned it. The evidence did not indicate there was a strong bond between Sammy and the children. Brandon and Sammy, Jr., knew him and enjoyed their visits, but they separated from him easily and did well in foster care without him. He had had no contact with Breanna for almost one year and had never lived with Jonathan. As to the degree the problems have been ameliorated, Sammy left drug treatment soon after he started, and although he knew the children were in foster care and the social worker offered him services, he waited for months before becoming involved in the case. Sammy has not shown the court abused its discretion by finding it would not be in the children's best interests to delay their permanency by offering him services.
II. Adoptability:
Sammy contends the finding the children were adoptable is not supported by substantial evidence. He argues the Agency did not indicate there were approved families for all four children, the children might be separated from each other, Brandon and Sammy have strong bonds with their parents, and Brandon expressed grief at the thought of perhaps not seeing them again.
Before a court frees a child for adoption it must determine by clear and convincing evidence the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) "In resolving this issue, the court focuses on the child -- whether his age [or her age], physical condition, and emotional state make it difficult to find a person willing to adopt him [or her]." (In re David H. (1995) 33 Cal.App.4th 368, 378.) Whether there is a prospective adoptive family is a factor for the court to consider, but is not determinative by itself. (Ibid.)
The social worker opined the children were likely to be adopted. They were in good health, showed good development, and had adapted well to their foster homes. The social worker had located adoptive homes that were interested in children like these siblings. Breanna's foster parents were willing to adopt her and Jonathan. If all four children could not be placed together, the social worker planned to locate a home that would keep Brandon and Sammy, Jr., together and would foster contact with Breanna and Jonathan. The court did not err by finding the children were adoptable.
III. The Beneficial Parent-Child Relationship Exception to Adoption:
Both parents assert the court erred by finding the beneficial parent-child relationship exception to adoption did not apply in this case. They argue they maintained regular visitation and contact, and the children would benefit from continuing their relationships.
Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parents' burden to show termination of parental rights would be detrimental because one of the specified exceptions of section 366.26, subdivision (c)(1)(A) exists. (In re Autumn H., supra, 27 Cal.App.4th at p. 574.) Under the exception in section 366.26, subdivision (c)(1)(A), the parent must show termination would be detrimental in that "[t]he parents have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the exception of section 366.26, subdivision (c)(1)(A)]."
In In re Autumn H., supra, 27 Cal.App.4th, at pages 575-577, this court found substantial evidence to support an order terminating parental rights. This court stated:
"In the context of the dependency scheme prescribed by the Legislature, we interpret the 'benefit from continuing the [parent/child] relationship' exception 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." (Id. at p. 575.)
In reviewing whether sufficient evidence supports the trial court's finding, the appellate court reviews the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th, at p. 576.)
The court questioned whether the parents had maintained regular visitation and contact. R.K. visited regularly from when the children were detained in June until August 2006. The foster parents for Breanna and Jonathan said that R.K. often cancelled visits or wanted to change them at the last minute. Sammy did not visit Breanna and Jonathan until April 2007. Breanna's foster parents said during a 10-month period R.K. attended 11 visits and cancelled or did not appear for 10. Sammy called Breanna only once during that time. The foster mother said she contacted Sammy to be sure that he knew how to reach her, but he did not ask for more visits. Sammy and R.K. visited Brandon and Sammy, Jr., more than they visited Breanna and Jonathan. From April until June 2007, they had five visits and cancelled four. The visits were pleasant and Brandon and Sammy, Jr., appeared especially to enjoy them, but they separated easily at the end of visits. The social worker acknowledged the older children could suffer some grief if they did not continue to have contact with their parents, but the children appeared to be resilient and had done very well in their foster homes. Brandon said he thought he would be sad if he did not see his parents again, but the social worker was working with the caregiver to help the children prepare for adoption. The parents did not show the beneficial parent-child relationship exception to adoption applied in this case.
IV. The Sibling Relationship Exception to Adoption:
Sammy contends the court erred by finding the sibling relationship did not apply.
The exception to adoption of section 366.26, subdivision (c)(1)(E) relates to the relationship among siblings. It requires that adoption must be ordered if the court finds the child will be adopted within a reasonable time:
" 'unless the court finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child' because '[t]here would be substantial interference with a child's sibling relationship . . . .' (§ 366.26, subd. (c)(1)(E).)" (In re Daniel H. (2002) 99 Cal.App.4th 804, 811.)
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.) The sibling relationship exception contains "strong language creating a heavy burden for the party opposing adoption." (In re Daniel H., supra, 99 Cal.App.4th at p. 813.) 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)(E).) The court considers the best interests of the adoptive child, not the best interests of other siblings. (In re Daniel H., supra, 99 Cal.App.4th at p. 813.)
At the time of the hearing, the Agency was attempting to find a home for all four children together. If this were not possible, it planned to place Brandon and Sammy, Jr., together and Breanna and Jonathan together. Breanna's foster parents were willing to adopt both Breanna and Jonathan and to facilitate contact with Brandon and Sammy, Jr. Brandon and Sammy, Jr., were also adoptable as a sibling group and there were five approved adoptive families interested in adopting two children like them. The evidence showed the relationship between the two groups of siblings was not very strong. Brandon and Sammy, Jr., had a strong sibling bond with each other, but they were not particularly close to the other two children. Jonathan had never lived with his siblings and Breanna had lived with Brandon and Sammy, Jr., for only the first year of her life. The court did not err by finding the sibling relationship exception to adoption did not apply.
DISPOSITION
The orders are affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.