Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. CK40213 Valerie Skeba, Referee (pursuant to Cal. Const., art. VI, § 21).
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant T.A.
Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant Eleazar G.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kirstin Andreasen, Assistant County Counsel for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
T.A. (mother) and Eleazar G. (father), parents of six-year-old E.G., appeal from the juvenile court’s order terminating their parental rights to E.G. under Welfare and Institutions Code section 366.26. Mother and father contend the juvenile court erred in denying mother’s petition under section 388 without holding an evidential hearing and erred in failing to find the parental visitation exception under section 366.26, subdivision (c)(1)(A) (section 366.26(c)(1)(A)) and the sibling relationship exception under section 366.26, subdivision (c)(1)(E) (section 366.26(c)(1)(E)). We affirm. Under the applicable standards of review, we hold that the juvenile court did not err.
All statutory citations are to the Welfare and Institutions Code unless otherwise noted.
The sibling relationship exception has also been referred to as the “sibling bond exception.” (See In re Jacob S. (2002) 104 Cal.App.4th 1011, 1016.) We adopt the reference used by the California Supreme Court. (See In re Celine R. (2003) 31 Cal.4th 45, 52.)
Each parent joined the opening brief of the other parent.
BACKGROUND
On March 10, 2005, the juvenile court sustained a petition under section 300 as to nearly four year old E.G. and his stepsisters, Ariel T. and Cheyenne T. The sustained petition alleged, among other things, that father physically abused Ariel and Cheyenne and called them derogatory and demeaning names. With respect to the physical abuse of Cheyenne, mother instructed Cheyenne not to disclose the abuse to the Department of Children and Family Services (Department). Mother knew about the physical abuse and did nothing to protect Ariel and Cheyenne. The petition also alleged that father had a history of engaging in violent altercations with mother in the children’s presence. In those altercations, father pushed mother and called her derogatory and demeaning names. The petition also alleged that Christopher T., Ariel’s and Cheyenne’s brother, sexually abused Ariel on a number of occasions. Ariel’s father, M.T., and mother knew of the sexual abuse and failed to take action to protect Ariel. Father also was alleged to have sexually abused Ariel by fondling her breast on one occasion. Mother knew of the sexual abuse and failed to take action to protect Ariel. Mother was alleged to have created a detrimental home environment for the children by allowing father to reside in the home and to have unlimited access to the children in violation of the juvenile court’s orders.
The juvenile court had previously sustained a petition with respect to E.G.—on July 26, 2001, shortly after E.G.’s birth. The petition alleged that E.G. was medically fragile and had special needs and that the parents were limited in their ability to meet his needs.
At the disposition hearing held on March 28, 2005, the juvenile court removed E.G. from his parents’ custody and ordered family reunification services for the parents. Mother was ordered to complete a parenting education program, a domestic violence outreach group, random drug testing, and individual counseling to address co-dependency issues and sexual abuse issues for non-offenders. Father was ordered to complete a parenting education program, either a domestic violence with anger management program or an anger management program, and individual counseling to address “boundary” issues and co-dependency. Mother and father were granted monitored visits with their children. On October 11, 2006, after subsequent proceedings not relevant here, the juvenile court terminated family reunification services for mother and father. The juvenile court granted mother a minimum of six hours per week of visitation with E.G. A February 7, 2007, Status Review Report notes that E.G. had lived the majority of his life in foster care, although he had lived for brief periods with mother and father. E.G. was then living with his prospective adoptive parent, with whom he had been placed on November 1, 2006. E.G. was reported to have adjusted “very well” to that placement. E.G.’s prospective adoptive parent had a “strong ability to acknowledge and address issues regarding [E.G.’s] needs.” She had provided E.G. with a safe, nurturing home where he felt safe and secure.
The Status Review Report states that from October 1, 2006, to the preparation of the report, mother had been called for random drug testing five times. Three times mother failed to appear – although she contended that she appeared for one of the drug tests, but the laboratory was closed for Thanksgiving. On the two occasions that mother appeared for testing, one test was negative and was one positive for opiates and Hydrocodone. Mother attributed the positive test to prescribed medication.
The Status Review Report states that mother and father had visited E.G. with decreasing frequency during the prior 26 months and sets forth a schedule of those visits. Mother visited E.G. nine times from October to December 2004, 46 times in 2005, and 26 times in 2006. Father had visited E.G. fewer times than mother. According to the report, the social worker had been available for mother and father to contact to assist in arranging visits with E.G. The parents had visited E.G. only once since his most recent placement on November 1, 2006. Mother had contacted the social worker on a few occasions regarding visitation, but had not arranged a visit since December 8, 2006. The social worker asked mother on several occasions when she planned to visit E.G. Mother stated that she planned to do so, but never followed through by scheduling a visit. Since E.G.’s placement on November 1, 2006, father contacted the social worker once about visitation.
The Status Review Report describes the quality of the visits between E.G. and his parents as ranging from fair to problematic. The parents failed to set limits for E.G. or to discipline him consistently. Neither parent supported the other in disciplining E.G. E.G. appeared to “tolerate” the visits for about an hour before “acting out.” E.G. often was defiant with his parents and would not follow their directions. E.G.’s play with father would become more aggressive – he would jump on father, mess up his hair, and hit him.
The Status Review Report states that E.G.’s “‘acting out’ behaviors, defiance, and tantruming” had steadily increased with each of his placements. E.G.’s “behaviors” showed a “marked increase in hyperactivity” after visits or telephone conversations with his parents. Mother and father reportedly “often ignored and/or contradicted their son’s attempts to communicate a desire not to speak on the phone, or that he has positive feeling for foster parents, which have resulted in E.G.’s confusion and lack of response to appropriate discipline by parents. The FFA Social Worker has observed, as [E.G.] has become older and more verbal, he tends to keep himself at a distance from his parents. For instance, when asked by his parents why he would not sit near them or be near them, he said, ‘because I don’t want to.’”
The Status Review Report states that E.G. had visited with Ariel and Cheyenne five times since his November 1, 2006, placement. E.G.’s foster mother reported that “‘[E.G.] was very excited to see his sisters and had a good time. He was very good about leaving’ once the visit was over.” E.G. was reported to continue to have “positive and meaningful contacts” with his stepsisters.
E.G. and his prospective adoptive parent were described as having a “warm and affectionate relationship.” The Status Review Report states that E.G.’s prospective adoptive parent had done an “excellent” job taking care of him with respect to his emotional and physical well being. She served as a good role model – she had a successful teaching career, maintained strong ties with her family and community, and had maintained a positive, cooperative attitude. The report recommended termination of parental rights.
The February 7, 2007, section 366.26 report repeats the February 7, 2007, Status Review Report’s discussion of visitation between E.G. and his parents and E.G. and his stepsisters. The section 366.26 hearing was continued to May 1, 2007.
A May 1, 2007, Interim Review Report for the continued section 366.26 hearing states that mother had visited with E.G. with “decreasing frequency.” The report notes that “CSW Chan, FFA Social Worker, and caregiver have been readily available for scheduling visits.” Following the previous court date on February 7, 2007, mother had visited E.G. once, on March 7, 2007. Mother had called E.G. frequently, but the conversations were short and unproductive with E.G. hanging up. The report states that “[E.G.] continues to directly express unmotivated desires not to speak with his mother, by either hanging up immediately, acting uncooperatively, or stating simply that he did not want to talk.”
As for the March 7, 2007, visit which took place at a McDonald’s, E.G. waved to mother from a distance when he arrived. When E.G. approached mother, he did not greet her or acknowledge her directly. E.G. stood at a distance, played with a pencil, and avoided eye contact. Mother told E.G. to give her a hug. E.G. looked at mother without reacting to or approaching her. Mother then approached E.G. and hugged him. During the visit, E.G. did not appear to be very affectionate toward mother, playing with the presents mother brought him.
Attached to the Interim Review Report are the prospective adoptive parent’s notes concerning contacts between E.G. and his mother, father, and stepsisters. These notes reflect that telephone conversations with mother were brief, lasting only a few minutes, and that E.G. frequently requested to hang up the telephone. Several of the conversations apparently addressed toys mother or father had given E.G.
The Interim Review Report refers to a March 10, 2007, telephone conversation between mother and E.G. E.G. is described as having been “rude and short” with mother during the conversation. E.G. refused to speak with mother or answer her questions. He eventually hung up on mother. After E.G.’s prospective adoptive parent spoke with him to encourage him to have better manners, E.G. asked her if they could go to court so he could tell the judge that he did not want to live with mother ever. The report also refers to a March 13, 2007, telephone conversation between mother and E.G. in which E.G. wanted to hang up the telephone immediately. E.G. quickly became angry with, and yelled at, mother. E.G. told mother that he did not want to visit her and said, “la, la, la, la, la” several time in response to mother so that he would not have to listen to her. According to mother, E.G. told her he did not want to see or talk to her.
According to the Interim Review Report, a social worker met with E.G. on March 21, 2007, to discuss with him his behavior toward his mother. During that meeting, E.G. stated that he loved his caregiver and wanted to stay with her forever. E.G. told the social worker that he did not want to have a visit with either parent; that when visits took place, he “actually only really likes the presents”; and that he would not enjoy his visits with parents if they did not bring presents. On April 17, 2007, E.G. asked the social worker, “What do you call that when you don’t have to move around anymore?” The social worker responded, “Adopted.” E.G. said, “Yes, adopted. I want to be adopted with Amy [his prospective adoptive parent].”
The Interim Review Report concludes that E.G. would not benefit from direct or indirect contact with mother or father if their parental rights were terminated. The report notes that family reunification services had not caused the parents to have consistent and continuous contact.
On May 1, 2007, mother filed a petition under section 388. The petition does not state the specific order mother wanted the juvenile court to modify, but states that she wanted the juvenile court to issue the following order, “HOP – Mother; alternatively re-instate Family Reunification Services, unmonitored visits progressing to weekend overnights, progressing to HOP-Mother.” Mother’s asserted changed circumstances included, among other things, her completion of parenting classes, domestic violence classes, a drug program, and individual counseling. Mother asserted that her proposed order would benefit E.G. because “Minor greatly desires to be reunified with his mother. Mother has demonstrated her seriousness in complying with her case plan anticipating reunification. She has visited consistently. She is case compliant and her individual counselor has witnessed Mother seriousness in reunifying with her and believe such a change is in the best interest of the child. It is within minor’s best interests that he return home to live with his Mother.” The juvenile court denied mother’s section 388 petition without a hearing. It then held the section 366.26 hearing.
At the section 366.26 hearing, father testified that E.G. had lived with him when E.G. was first born and then for a little more than two years. During those two years, father took care of E.G. by changing his diapers, helping to bathe him, and taking him to the park to play. E.G. was about two and a half years old when he was most recently taken from father’s custody.
Father testified that after E.G. was removed from his custody, he visited E.G. any time he could – once a week. Father also testified that during the first year that E.G. was in foster care he visited E.G. any time he could – twice a week. During the second year that E.G. was in foster care, father visited E.G. as often as he could – once a week. Father testified that during a period when E.G. lived with father’s sister, he visited E.G. twice a week. Father also testified that he went to his sister’s home every day to wake E.G. up during that time.
When father visited E.G., father would take him food and play with him. Father believed that E.G. was happy to see him when he arrived for visits, seemed to enjoy the visits, and was sad or mad when the visits ended. Father testified that the last time he saw E.G. was March 7, and that he had had only two visits since October 2006. Father claimed that the Department had interfered with his ability to visit E.G. by placing E.G. in a foster home far from father’s residence even though a closer placement was available. This caused father to have to take the Metro link to visit E.G. Father believed he had spoken to E.G. on the telephone four or five times in the preceding three months. He testified that he called a number of times and left messages on the answering machine, but did not receive return calls.
Father believed that Ariel and Cheyenne visited E.G. every other week or weekend. E.G. told father that he had fun when his stepsisters visited.
Mother testified that while she was receiving family reunification services, she had a bus pass and visited E.G. once a week. After reunification services were terminated, mother’s “availability” to visit E.G. changed. She moved from Lancaster to Los Angeles to see a psychiatrist who would take Medi-Cal. The Department did not provide transportation assistance. According to mother, she visited E.G. every day from July 19 to October 9 when he lived with his paternal aunt. Later, mother testified that she lived at the paternal aunt’s house when E.G. lived there.
Mother testified that she moved into the Victory Outreach Women’s Home on October 6. Mother visited E.G. twice in October, including a six hour visit on October 21. Mother testified both that she did not visit E.G. at all in November due to a lack of funds, and that she visited him twice that month. Mother visited E.G. once in December when she brought him Christmas presents and food. During that visit, E.G. ran around. Mother believed that she visited E.G. two or three times after Christmas. Visits with E.G. were difficult after he was placed in his new foster home because of its distance from mother’s residence. Mother asked a Department social worker for transportation assistance, but, apparently, was told that no such funds were available because family reunification services had been terminated.
Mother did not visit E.G. in February 2007 because she had a fixed income and did not have the funds. Mother visited E.G. once in March 2007. Mother was unable to visit E.G. in April 2007 because she was in the hospital receiving a blood transfusion. Mother estimated that she had seen E.G. five times since October 2006. Since the February 7, 2007, section 366.26 hearing at which she had been told that her parental rights were going to be terminated, mother had visited E.G. face-to-face one time. Mother explained that she had not visited E.G. more often because she was totally disabled, lived on an income of $900 a month, and had no transportation money.
Mother testified that she telephoned E.G. “all the time” during the period from October through February and in April (mother was not asked about telephone contact in March). The telephone conversations lasted up to 20 minutes and generally were positive. Mother acknowledged that there were times when she spoke to E.G. on the telephone that E.G. would ask if he could hang up, but explained that that was only a recent development. Since October, mother had not been to any of E.G.’s medical appointments and had not participated in his education. Mother had asked E.G.’s caregiver about his education and she told mother about his academic performance.
According to mother, when she was visiting E.G. weekly, E.G. appeared to be very sad at the ends of the visits. When E.G. saw mother at court on the day of the section 366.26 hearing, he ran to her, gave her a hug and kiss, and told her he loved her. At the end of a visit that day, E.G. gave mother a hug and kiss and thanked her for a bag of toys and books.
Mother was no longer living at Victory Outreach Women’s Home because she was no longer a drug addict. Mother’s last drug test was on January 9. She attempted to take a test in February, but was told she was no longer on the list. Mother admitted that she missed drug tests on October 6 and 20, 2006, and that she had a positive drug test in December 2006. Mother explained that the positive test was the result of taking Vicodin, a medication for which she had a prescription. Mother testified that she had been seeing a psychiatrist once a week since January, 2007. Mother had completed 28 weeks of a domestic violence course.
Mother had seen E.G. and her “other children” together twice in the six months preceding the section 366.26 hearing. Mother described E.G.’s relationship with his siblings as “very, very close. . . . they love each other very much. They play. They talk. They hide. They share. They share a lot, especially Cheyanne [sic] and [E.G.]” Mother believed that E.G.’s relationship with his siblings would be changed if parental rights were terminated. Although mother was sure that E.G.’s foster mother would arrange for E.G. to see his stepsisters, she believed that his stepsisters would be very sad.
Mother did not know what effect the termination of her parental rights would have on E.G. She believed that when E.G. was growing up he would wonder what had happened to her and, when he was grown, he would want to find her. She believed that if her parental rights were terminated and she was not permitted to visit E.G., that would hurt E.G. “a lot.”
At the conclusion of the section 366.26 hearing, the juvenile court terminated mother’s and father’s parental rights. Mother and father appealed.
DISCUSSION
I. The Juvenile Court Properly Denied Mother’s Section 388 Petition Without
Holding an Evidentiary Hearing
Mother contends that that the juvenile court erred in denying her section 388 petition without holding an evidentiary hearing. We hold that the juvenile court did not err.
A. Standard of Review
As we discuss, if the section 388 petition and court file do not contain facts establishing a prima facie case, a hearing may be denied. A court has stated that it reviews the summary denial of a section 388 petition without an evidentiary hearing for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460.) Under an abuse of discretion standard of review, we will not disturb the juvenile court’s decision unless the juvenile court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
B. Applicable Principles
Section 388 is an “‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) Section 388 provides in relevant part: “Any parent . . . [of] a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made. [¶] . . . [¶] 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 . . . .” To obtain a requested modification, the parent must demonstrate both a change of circumstances, and that the proposed change is in the best interests of the child. (§ 388; Cal. Rules of Court, rule 5.570(d), (f); In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
The petitioning parent bears the burden of proving the requested modification should be granted. (Cal. Rules of Court, rule 5.570(h); In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The allegations in the petition may not be general or conclusory. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) Under section 388, “the change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order.” (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.)
Section 388 petitions “are to be liberally construed in favor of granting a hearing to consider the parent’s request. [Citations.] The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]” (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) The prima facie showing may be based on the facts in the petition and in the court file. (In re Angel B., supra, 97 Cal.App.4th at p. 463.) “The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) “[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.” (In re Heather P. (1989) 209 Cal.App.3d 886, 891.) “If the petition fails to state a change of circumstance or new evidence that may require a change of order or termination of jurisdiction, or that the requested modification would promote the best interest of the child, the court may deny the application ex parte.” (Cal. Rules of Court, rule 5.570(d).)
In denying mother’s section 388 petition without a hearing, the juvenile court initially stated its disinclination to set the matter for a hearing because “most of the information in the 388 is stuff that was done like a number of years ago . . . .” The juvenile court added that even if it found there were changed circumstances, it was not “in a position to find it’s in the best interest of the child to have the 388 granted.” After eliciting E.G.’s attorney’s submission to its tentative ruling, the juvenile court found that it was “not in the best interest of the child to have a 388 set for a hearing.” The juvenile court did not err in denying mother’s section 388 petition without a hearing. (See In re Angel B., supra, 97 Cal.App.4th at p. 460 [abuse of discretion standard of review].)
In support of her alleged changed circumstances, mother attached to her section 388 petition certificates of completion from an alcoholism and drug dependency program dated April 15, 2004; a parenting course dated August 17, 2005; and a domestic violence course dated March 18, 2007. She also attached a letter dated February 5, 2007, from her clinical psychologist that states that mother had kept her scheduled appointments and complied with her “behavioral prescriptions.” The psychologist states that he had “growing” confidence in mother’s ability to “more completely” assume the role of mother to E.G., and that mother’s “strong motivations” and recent efforts to rehabilitate and educate herself provided “reason to be confident” that mother was not a danger to herself or others. Finally, mother attached a letter dated March 18, 2007, from a director of the Victory Outreach Women’s Home reporting an October 21, 2006, conversation with E.G.’s then social worker who told the director that mother had a “great” chance of having E.G. returned to her. The juvenile court reasoned that these attachments did not provide evidence of sufficient changed circumstances because many were completed in the too distant past.
The juvenile court provided mother with family reunification services on March 28, 2005. The juvenile court ordered mother to complete a parenting education program, a domestic violence outreach group, random drug testing, and individual counseling to address co-dependency issues and sexual abuse issues for non-offenders as her reunification services. The juvenile court terminated family reunification services for mother on October 22, 2006. Mother completed her alcoholism and drug dependency program and her parenting course in April 2004 and August 2005, respectively, prior to the order terminating her family reunification services. Implicit in the language of section 388 is that the alleged change of circumstances must have occurred after issuance of the order the petitioner seeks to modify—here, the order terminating family reunification services.
The trial court also found that the proposed modification was not in E.G.’s best interest. Mother’s asserted reasons for granting the petition were E.G.’s alleged desire to reunify with mother; mother’s alleged seriousness in complying with her case plan; mother’s alleged consistent visitation; mother’s case compliance and seriousness about reunifying with E.G.; and mother’s counselor’s belief that “such a change is in the best interest” of E.G. Mother’s petition does not explain how E.G.’s desire to reunify with mother demonstrates that the proposed modification actually is in his best interest as opposed to simply being his alleged desire. Those of mother’s attachments to her section 388 petition that she tried to pass off as her recent compliance with the juvenile court’s ordered family reunification services—i.e., those she completed prior to the termination of family reunification services—demonstrate that she was not case compliant or serious about complying with her case plan or doing what was necessary to reunify with E.G.
We believe that the juvenile court’s justifications for denying the hearing were correct. Moreover, the juvenile court did not abuse the discretion it had. Thus, the juvenile court did not err in denying mother’s section 388 petition without an evidentiary hearing.
II. The Juvenile Court Properly Terminated Parental Rights
The parents contend that the juvenile court erred in failing to find the section 366.26(c)(1)(A) parental visitation exception and the section 366.26(c)(1)(E) sibling relationship exception to the termination of parental rights. We hold there was no error.
A. Standard of Review
Generally, challenges to a juvenile court’s determination under section 366.26(c)(1)(A) are governed by a substantial evidence standard of review. (See, e.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) Regarding the sibling relationship exception, appellate courts apply the substantial evidence standard of review. (See, e.g., In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017; In re Megan S. (2002) 104 Cal.App.4th 247, 250-251.) Under a substantial evidence standard of review “‘“the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.’ [Citation.]” (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on other grounds as stated in Eller Media Co. v. City of Los Angeles (2001) 87 Cal.App.4th 1217, 1219-1220, fn. 3.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)
Other courts have applied an abuse of discretion standard of review. (See, e.g., In re Jasmine D., supra, 78 Cal.App.4th at p. 1351; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) As noted above, under an abuse of discretion standard of review, we will not disturb the juvenile court’s decision unless the juvenile court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) In this case, we need not decide whether a juvenile court’s ruling on the section 366.26(c)(1)(A) exception is reviewed for abuse of discretion or substantial evidence, because, under either standard we affirm the juvenile court’s decision.
B. The Parental Visitation Exception
Once a juvenile court finds that a child is likely to be adopted after removing the child from parental custody and has terminated reunification services, parental rights may be terminated unless the court finds a compelling reason for determining that doing so would be detrimental to the child under one of the five exceptions set forth in section 366.26, section (c)(1). (In re Celine R. (2003) 31 Cal.4th 45, 52-54.) “The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (Id. at p. 53.)
The parental visitation exception in section 366.26(c)(1)(A) provides that parental rights will not be terminated and a child freed for adoption if the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” The relationship must promote “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.)
The visitation exception does not apply when a parent fails to occupy a parental role in his or her child’s life. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Casey D., supra, 70 Cal.App.4th at p. 51 [parents who have essentially never had custody of children or advanced beyond supervised visitation will have a difficult time establishing the section 366.26(c)(1)(A) exception].) “[T]o establish the exception in section 366.26, subdivision (c)(1)(A), the parents must do more than demonstrate ‘frequent and loving contact’ [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.]” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) A relationship sufficient to support the visitation exception “aris[es] from day-to-day interaction, companionship and shared experiences.” (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Whether the exception applies is determined “on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The 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 are some of the variables which logically affect a parent/child bond.” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Parents bear the burden of establishing that the visitation exception to termination of parental rights applies. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.) A parent must show she has maintained regular visitation and contact with the child and a benefit to the child from continuing the relationship would result. (In re Amanda D. (1997) 55 Cal.App.4th 813, 821.)
In this case, when the juvenile court terminated parental rights, it found that the parental visitation exception under section 366.26(c)(1)(A) did not apply. The juvenile court found that the parents’ telephone calls were sufficient to satisfy the “regular visitation and contact” prong of section 366.26(c)(1)(A). The juvenile court also found, however, that the bond between E.G. and his parents was not so positive that it outweighed the benefits that would be gained from the stability of an adoptive home. The juvenile court stated that it was “almost impossible” to find that the parents had acted in a parental role during the last year. The juvenile court concluded that the parents “really don’t have a parental-child relationship anymore. I really didn’t hear any description of parental conduct by the parents to the child.” The juvenile court stated that E.G. needs stability “desperately,” that he appeared to have stability in his current foster home, and that he appeared to be doing very well and thriving in his foster home. The juvenile court’s ruling is supported by the record.
There is substantial evidence in the record supporting the juvenile court’s determination that there is not the type of parent/child relationship that would justify depriving E.G. of the security and sense of belonging a new family would bring. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) There is evidence that although mother and father telephoned E.G. frequently, those telephone calls were often short and unproductive – frequently, E.G. did not want to talk to his parents on the telephone and asked to hang up; mother and father visited and spent time with E.G. only infrequently; and that such visitation and contact, even if sufficient to meet the first prong of the parental visitation exception under section 366.26(c)(1)(A), were not conducive to establishing a strong parent/child relationship.
Other evidence supporting the juvenile court’s ruling is an October 18, 2005, progress report from E.G.’s therapist, Dr. Claire Winstone. In the report, Dr. Winstone opines, “I believe that a child raised by E.G.’s biological parents would have, literally, no hope of an emotionally healthy adult life comprising normal social interactions and relationships without first requiring years of therapy. Continued visitation with these parents, whose emotional and social development seems, from their observed and documented behaviors in visits and phone calls, to be arrested in pre-adolescence, will probably have almost as detrimental an effect on E.G., if not more so.” Other evidence shows that after a March 10, 2007, telephone call with mother, E.G. asked his foster parent if they could go to court before mother so he could tell the judge that he did not want to live with mother ever. In a March 13, 2007, telephone conversation between mother and E.G., E.G. told mother that did not want to see or talk to her. E.G. told a social worker on March 21, 2007, that he loved his caregiver and wanted to stay with her forever. E.G. told the social worker that he did not want to visit either parent and that he only enjoyed visits with his parents if they brought presents. Such evidence does not describe a parent/child relationship the severance of which “would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed . . . .” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Mother did not articulate the type of benefit to E.G. that would merit application of the section 366.26(c)(1)(A) exception. When asked to describe how she believed the termination of her parental rights would affect E.G., mother responded that she did not really know. She then stated that she believed that when E.G. was growing up he would wonder what had happened to her and, when he was grown, he would want to find her. If mother’s parental rights were terminated and she was not permitted to visit E.G., she believed that would hurt E.G. “a lot.”
There is substantial evidence supporting the juvenile court’s finding that the parents failed to occupy a parental role in E.G.’s life. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The October 1, 2006, Status Review Report reports that the parents failed to set limits for E.G. or to discipline him consistently during visits and that neither parent supported the other in disciplining E.G. E.G. often was defiant with his parents and would not follow their directions. Mother acknowledged that since October 2006, she had not been to any of E.G.’s medical appointments and had not participated in his education. There is no evidence in the record that father, through his interaction with E.G. in either the telephone calls or in the visits, played any type of parental role in E.G.’s life. A parent/child relationship sufficient to support the parental visitation exception “aris[es] from day-to-day interaction, companionship and shared experiences.” (In re Casey D., supra, 70 Cal.App.4th at p. 51.)
C. The Sibling Relationship Exception
In connection with their claim that the sibling relationship exception precluded termination of their parental rights, mother and father argue that Ariel and Cheyenne should have been served with notice of the section 366.26 hearing under section 294 so that they could have filed section 388 petitions. Because Ariel’s and Cheyenne’s cases had been terminated, they were not entitled to notice under section 294. (§ 294, subd. (a).) Equally unavailing is parents’ claim that the juvenile court abused its discretion by “not considering” a “post-adoption sibling contract.” Neither parent explicitly requested such a contract. Even if either parent had, such an agreement would be considered for inclusion in the final adoptive order, not in the order terminating parental rights. (§ 366.29, subd. (a) [“the court may include in the final adoption order provisions for the adoptive parent or parents to facilitate post adoptive sibling contact” (italics added)].)
The sibling relationship exception insection 366.26(c)(1)(E) provides that parental rights will not be terminated and a child freed for adoption if “[t]here would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but 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.” “The parent bears the burden of showing that a sibling relationship exists and that its severance would be detrimental to the child. [Citation.] The existence of a relationship alone is not enough, but it must be ‘sufficiently significant’ to cause detriment on termination. [Citation.] If the court finds that there is a substantial detriment, it must ‘weigh the child’s best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption.’ [Citation.]” (In re Jacob S., supra, 104 Cal.App.4th at pp. 1016-1017.)
“Reflecting the Legislature’s preference for adoption when possible, the ‘sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a “compelling reason” for concluding that the termination of parental rights would be “detrimental” to the child due to “substantial interference” with a sibling relationship.’ [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, 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.) “To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. [Footnote.]” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.)
The parents failed to meet their heavy burden of showing a compelling reason from which the juvenile court could have concluded that the termination of their parental rights would be detrimental to E.G. because it would substantially interfere with his sibling relationships. (In re Celine R., supra, 31 Cal.4th at p. 61.) Substantial evidence supports the juvenile court’s determination that the sibling relationship exception under section 366.26(c)(1)(E) did not apply.
In finding that the sibling relationship exception in section 366.26(c)(1)(E) did not apply, the juvenile court referred to a June 22, 2006, report concerning the placement of E.G., in which Dr. Clive Kennedy, after observing Ariel, Cheyenne, and E.G. together, stated “it is clear they have a close sibling bond that becomes a significant factor in permanency planning.” The juvenile court concluded that it did not have the power to order visitation as Ariel’s and Cheyenne’s case had been terminated, but stated its satisfaction that E.G.’s foster parent was sensitive to E.G.’s relationship with his stepsisters and would continue the relationship. Substantial evidence supports the juvenile court’s ruling.
The record shows that E.G. had a beneficial relationship with his stepsisters, Ariel and Cheyenne. The February 7, 2007, Status Review Report reports five visits between E.G. and his stepsisters after November 1, 2006. E.G. was reported to continue to have “positive and meaningful contacts” with his stepsisters. Of one of the visits, E.G.’s foster mother reported that “‘E.G. was very excited to see his sisters and had a good time.” At the section 366.26 hearing, father testified that he believed that Ariel and Cheyenne visited E.G. regularly and that E.G. told him that he had fun when his stepsisters visited. Mother had only seen E.G. together with his stepsisters twice in the six months before the section 366.26 hearing, but described their relationship as very close and loving. Mother believed that E.G.’s relationship with his siblings would be changed if parental rights were terminated and that the stepsisters would be sad. Mother testified that she was “sure” that E.G.’s foster mother would arrange for E.G. to see his stepsisters if parental rights were terminated.
The application of the sibling relationship exception in section 366.26(c)(1)(E) is implicated when the termination of parental rights would cause “substantial interference with a child’s sibling relationship.” Mother and father failed to show that the termination of their parental rights would substantially interfere with E.G.’s relationship with his stepsisters in any way. As noted, mother was sure that E.G.’s foster mother would arrange for E.G. to see this stepsisters if parental rights were terminated. Father was unsure if E.G.’s foster mother would arrange visits between the siblings. Accordingly, because mother and father did not present any evidence that the termination of their parental rights would substantially interfere with E.G.’s relationship with Ariel and Cheyenne, they failed to satisfy their burden of demonstrating the application of the section 366.26(c)(1)(E) exception. (In re Jacob S., supra, 104 Cal.App.4th at pp. 1016-1017.)
DISPOSITION
The order is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.