Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County, Douglas Hatchimonji, Judge, Super. Ct. Nos. DP016086, DP016087.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen, Debbie Torrez and Kristen Lecong, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
OPINION
RYLAARSDAM, ACTING P. J.
Defendant M.C. (mother) appeals from orders denying a hearing on her Welfare and Institutions Code section 388 (all further statutory references are to this code) petition and terminating her parental rights to now six-year-old E.C. and four-year-old A.C. She claims she made out a prima facie case under section 388 to have the children returned to her custody or, in the alternative, to have services reinstated. She also maintains the finding of adoptability was erroneous because the children were bonded to a sister and part of a “sibling set” and that sibling relationship was an exception to a finding of adoptability. Finding none of these arguments meritorious, we affirm.
FACTS
In October 2007 mother and nine-month-old A.C. were living in the Santa Ana riverbed in an area frequented by drug users and littered with drug paraphernalia, rats, and animal feces. To reach her shelter mother and A.C. had to crawl near a fifty-foot cliff. Mother was arrested for being under the influence of methamphetamine and child endangerment. A.C. and two-year-old E.C., who was found living with family friends without support from mother, were taken into custody by Orange County Social Services Agency (SSA). SSA placed both children with E.C.’s caretakers.
Two and a half years earlier mother had lost her parental rights to an older child due to drug abuse problems. In addition, mother had had several contacts with SSA because of her substance abuse and abuse inflicted by A.C.’s father who had a history of domestic violence arrests and convictions. Mother also had at least one conviction for a drug-related offense and one for possessing stolen property. E.C.’s father, who was ultimately found to be living in El Salvador, had a history of drug-related crimes and domestic violence convictions.
When the court declared the children dependents, it denied services to E.C.’s father and to mother for both children based on her substance abuse and termination of parental rights to another child. It set a permanency hearing under section 366.26 as to E.C. It provided services to A.C.’s father and set a six-month review hearing.
The reports for the two hearings showed mother visited twice a week without many absences. E.C. sometimes displayed aggressive behavior toward A.C. and mother and would not listen to mother, who had to be directed how to discipline him. The children were happy in their foster home and the caretakers wanted to adopt them. Mother enrolled in a perinatal drug treatment program and engaged in drug testing. She filed a section 388 petition (not the subject of this appeal) seeking services, which the court denied. The court set a 12-month review hearing for A.C. and continued the permanency hearing for E.C.
By the time of the next hearings mother was pregnant by the father of A.C. and was living with him despite the existence of a restraining order. Mother remained in the drug program. Her visits with the children continued and generally went well, although E.C. was still aggressive toward her and mother remained unclear as to how to cope with that. The court ordered services be provided to mother after granting her section 388 petition and vacated the permanency hearing for E.C.
Mother finished the perinatal program and a personal empowerment course. After she gave birth to A.D. the two of them moved into the caretakers’ home for a 60-day trial visit with the children. At the eighteen-month review hearing the court returned custody of the children to mother pursuant to a family maintenance program and scheduled a six-month review hearing.
Three months later mother’s boyfriend, Ofelio P., tried to drown E.C. in a swimming pool and attempted to push mother, who was holding A.D., into the pool as well. There had been at least one other domestic violence incident involving mother and Ofelio. Mother, who denied that Ofelio was violent, originally explained “he was just ‘playing’ with” E.C. after E.C. had called him a name and that she had slipped and fallen.
SSA took custody of the children and placed them with the same caretakers and the court sustained the allegations of a supplemental petition. It set a six-month review hearing for A.D. but denied services to mother as to E.C. and A.C., scheduling a permanency hearing. Mother continued monitored visitation, originally at the caretakers’ home. After a couple of visits, however, the caretakers asked that they be moved. Mother spent time chatting with neighbors and on the phone with Ofelio, despite a restraining order prohibiting it.
On the date set for the permanency hearing, mother filed section 388 petitions, the ones at issue in this appeal, seeking additional services or the return of custody of A.C. and E.C. The court denied a hearing and the petitions.
SSA reports for the permanency hearing noted mother still had monitored visits, which were uneven. Mother had missed several and she still had trouble supervising and disciplining the children. Often E.C. did not want to attend and displayed physical aggression toward mother. After he was referred to a therapist he admitted he was angry with mother for failing to protect him when Ofelio had tried to drown him. The children were secure and happy residing with the caretakers, calling them “‘Mama’” and “‘Papa.’” The caretakers wanted to adopt the children.
Testimony of the visitation monitor and the social worker was consistent with the information in the reports. In addition, the social worker stated the children were generally adoptable even if not by these caretakers.
The court found the children were generally and specifically adoptable and there was no evidence to the contrary. Mother did not prove the benefit or sibling relationship exceptions to adoption. Because the children had “normal sibling relationships with” A.D., they would “suffer some detriment by severing the[ir] relationship” but not substantial enough to obstruct termination of parental rights.
DISCUSSION
1. Section 388 Petition
In support of her section 388 petition mother stated in her declaration that she now understood the warning signs of “battering behavior, ” including those displayed by Ofelio. She had completed half of her domestic violence classes and most of a parenting course. She said she would protect her children. She acknowledged she was an addict but stated she had “not used drugs or alcohol in years.”
In denying the section 388 petition without a hearing, the court found that at best mother’s circumstances were changing but not changed. It cited the history of substantial domestic violence long before the incident with Ofelio. In addition, noting the length of time the children had “been in the system, ” almost three years, the court found it was not in their best interests to deny them the stability afforded by a permanent home.
Mother contends the court abused its discretion by denying the petition without a hearing. We disagree.
Section 388 authorizes a parent or interested person, “upon grounds of change of circumstance or new evidence, ” to petition the court “for a hearing to change, modify, or set aside any order of court previously made....” (§ 388, subd. (a).) To trigger a full hearing, mother was required to make a prima facie showing of “(1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.]” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) If it appears that the child’s best interests “may be promoted by the proposed change of order, ... the court shall order that a hearing be held....” (§ 388, subd. (d).)
The record reflects mother did not show a “genuine change of circumstances.” Granted, she was taking a domestic violence prevention class, but she was barely halfway through it. Given the years of domestic violence in which mother had been involved the court could reasonably determine 25 classes were not significant enough to demonstrate her understanding of the problem or that her lifestyle had changed. (In re Justice P. (2004) 123 Cal.App.4th 181, 189 [“In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case”].) The fact mother had been drug free for a period of time, while positive and commendable, does not vitiate the longstanding domestic violence issue. Moreover, she missed two tests in the few months before the hearing.
Moreover, mother did not meet her burden to show it was in the children’s best interests for her to regain custody or have services extended. She stresses her consistent visitation, claiming that because visits were not harmful, by definition they had to be beneficial. This argument is flawed for a couple of reasons.
The visits were not always positive. In fact, E.C. was distressed by the visits, often refusing to go. Sometimes he had to be coaxed or bribed into going and when he was forced, he cried or was angry and aggressive toward mother. He told mother he was not her child. Despite E.C.’s conduct, mother tended to favor him to the neglect of A.C. Mother also had problems dealing with the three children together and the monitor noted that the visits were inconsistent, some going well and others not.
Mother’s claim that the cause of E.C.’s aggressive behavior was “not always tied to” her and that the reason E.C. did not want to visit was not clearly related to his problems with her. But reports from E.C.’s therapist specifically linked his reluctance to see mother and his aggressiveness at school to his anger at mother for her failure to protect him from Ofelio. Moreover, at best, mother’s claim is merely a different inference to be drawn from the evidence. We do not “‘“substitute [our] decision for that of the trial court.” [Citations.]’ [Citations.]” (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
Finally, even assuming the children derived some benefit from the visits, that does not equate to a finding it was in their best interests to be returned to mother’s custody. Nor, after being in foster care for three years, most of their lives, was it best for them to have the uncertainty and insecurity of their status prolonged.
2. Sibling Relationship
Mother makes two arguments based on the children’s sibling relationship with A.D.: that its existence bars a finding of specific adoptability and, alternatively, that it was an exception to termination of parental rights. Neither contention persuades.
As to the first claim, mother asserts that because, at the time of the permanency hearing, A.C. and E.C. were bonded to A.D., who was not adoptable because still part of the reunification process, the children themselves were not adoptable either. Not so.
A similar argument was made and rejected in In re I.I. (2008) 168 Cal.App.4th 857, where the court stated: “The child’s membership in a sibling set is a relevant consideration in determining whether an exception to termination of parental rights exists (§ 366.26, subd. (c)(1)(B)(v))... or in determining whether the child is difficult to place for adoption (§ 366.26, subd. (b)(3)). However, the statutory scheme and case law require a determination of the adoptability of a child as an individual: ‘“The issue of adoptability... focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.]”’ [Citation.]” (Id. at p. 872, fn. omitted.)
Here the record shows the children are generally adoptable because, at ages six and four, they “are engaging, energetic, happy, and sweet natured.” They are healthy and their development is within the normal range. They are also specifically adoptable because the caretakers want to adopt them. Thus the court’s finding the children were adoptable was correct.
For her second argument mother relies on the sibling relationship as an exception to adoption under section 366.26, subdivision (c)(1)(B)(v). It provides that parental rights should not be terminated if it would harm the children because of a “substantial interference with [the]... sibling relationship....” Factors considered in making this determination are “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.” (Ibid.) “The parent bears the burden of showing that a sibling relationship exists and that its severance would be detrimental to the child. [Citation.]” (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017, disapproved on another ground in In re S.B. (2009) 46 Cal.4th 529, 537, fn. 5.) This exception is to be applied only in “exceptional circumstances” for a “compelling reason” (In re Celine R. (2003) 31 Cal.4th 45, 53, italics omitted), and the party advocating it bears a “‘heavy burden’” (id. at p. 61).
The evidence does not support mother’s claim of a strong bond between the children and A.D. Mother points only to the social worker’s testimony that the children had “typical” relationships with A.D., E.C. being protective of her and on one occasion he was sad to leave a visit without her. She also notes that they lived together since A.D.’s birth, which was approximately 18 months. But her assertion the three children “had significant common experiences and connected emotional interests” is merely a conclusion paralleling the statutory language and without support in the record. And any experiences the children had together were as an infant and toddlers. (See In re Valerie A. (2007) 152 Cal.App.4th 987, 1013 [affirmed finding no sibling relationship exception to adoption despite loving relationships among young children].)
The record shows the children would benefit from adoption: a permanent, loving, stable home with a couple who wants to adopt them. This heavily outweighs the detriment they might experience by a loss of the relationship. The prospective adoptive parents did not foreclose continuing visits between the children and A.D. But the social worker testified that adoption was in the best interest of the children even if the relationship with A.D. was severed. There is no evidence of a significant sibling relationship but even if there were, “the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. [Citation.]” (In re Celine R., supra, 31 Cal.4th at p. 61.) Here, adoption takes precedence.
DISPOSITION
The orders are affirmed.
WE CONCUR: FYBEL, J. IKOLA, J.