Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Diego County, Garry G. Haehnle, Judge.
McDONALD, J.
E.G. appeals juvenile court judgments terminating her parental rights to her minor children, Elizabeth G. and Keyla G. (together, the minors) under Welfare and Institutions Code section 366.26. E.G. challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception did not apply to preclude terminating parental rights. She further contends: (1) there was insufficient evidence of the minors' wishes concerning adoption; (2) the minors' beneficial sibling bond precludes termination of parental rights to Keyla if parental rights to Elizabeth are not terminated; (3) the court erred by summarily denying E.G.'s section 388 modification petition; and (4) the cumulative effect of the errors requires reversal. We affirm the judgments.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2003 22-month-old Elizabeth and one-month-old Keyla came to the attention of the San Diego County Health and Human Services Agency (Agency) when doctors discovered Keyla had nonaccidental bruising on her back and abdomen, and nonaccidental leg fractures. The minors' parents, E.G. and L.G., had no plausible explanation for Keyla's injuries. In December 2003 the court declared the minors dependents and removed them from parental custody based on findings the parents inflicted serious physical harm on Keyla, and Elizabeth was at substantial risk of harm as a result of her sibling's physical abuse. (§ 300, subds. (a), (e) & (j).)
While the parents were participating in reunification services, E.G. admitted to a Naval Criminal Investigator that she caused Keyla's injuries. She also admitted she caused the death of Elizabeth's twin brother Juan in 2002 when he was 11 months old. Juan died from what was initially believed to be Sudden Infant Death Syndrome (SIDS), but E.G. admitted she put her hand over Juan's mouth to stop him from crying, and found him dead the next morning. E.G. was arrested and incarcerated by military police. The coroner's report and autopsy report were later amended to reflect Juan's death was a homicide from smothering.
E.G. was on active duty in the United States Navy.
The court returned custody of the minors to father, L.G., awarded L.G. sole physical and legal custody of them, ordered supervised visits for E.G. and terminated jurisdiction. L.G. moved to Texas without the minors and arranged for them to live with maternal grandparents in San Diego until he was settled in his new home.
In June 2006 a military court acquitted E.G. of charges related to Juan's death and Keyla's injuries. After 14 months of incarceration, E.G. began living with the minors in violation of the court's order for supervised contact. Agency filed petitions in the juvenile court under section 300, subdivisions (b) and (f), alleging L.G. had not protected the minors, and reiterating E.G. had admitted causing Keyla's injuries and Juan's death. At a contested jurisdiction and disposition hearing, the court sustained the allegations of the petitions, declared the minors dependents and placed them in foster care. The court ordered the parents to participate in reunification services. The parents appealed, and in an unpublished opinion, this court affirmed the jurisdictional and dispositional orders and directed the juvenile court to amend the petitions to conform to its oral findings. (In re Elizabeth G. (Oct. 24, 2007, D050242) [nonpub. opn.].)
The court amended the petitions by striking the allegation under section 300, subdivision (b) that E.G. "confessed to the murder of the child's sibling," and replaced it with the words "admitted that she caused the death of another child, Juan [G.], through abuse or neglect...."
During the next six months, E.G. completed a parenting class, had a psychological evaluation and began participating in anger management therapy. E.G. was in individual therapy with Antonio Santos, Ph.D., and denied any wrongdoing as to her children or knowledge of how they were injured. As part of her psychological evaluation, E.G. claimed she did not cause Juan's death. She said her confession was coerced and motivated by her belief that she would be discharged from the military. At a six-month review hearing, the court continued E.G.'s services and appointed a Court Appointed Special Advocate (CASA) for the minors.
Three months later, E.G. was arrested by civil authorities on charges related to Juan's death and Keyla's injuries. She was housed in a section of the jail that prevented her from participating in reunification services and was prohibited from having contact with the minors. E.G. now stated she suspected L.G. had hurt the children, but she took the blame for their injuries because she did not want to ruin L.G.'s military career.
Dr. Santos reported E.G.'s progress in therapy as "adequate." E.G. acknowledged her children had been hurt and considered the possibility she did not protect them. She completed two parenting classes and two anger management classes, and was visiting the minors regularly. E.G. was loving and appropriate during visits, and the minors were happy to see her.
The CASA reported the minors had adjusted well to their foster care placement and considered it their home. The CASA recommended the minors remain in this placement because they were attached to the foster parents and neither E.G. nor L.G. had made sufficient efforts to reunify with the minors. The CASA also believed E.G. remained a danger to the minors.
At the 12-month hearing, E.G., who was still incarcerated, asked the court to place the minors with relatives, but the court found they were in an appropriate placement and a change was not needed. The court found E.G. had made only moderate progress and there was no substantial probability the minors would be returned to either parent by the 18-month date. The court terminated services and set a section 366.26 selection and implementation hearing.
E.G. was released from custody in May 2008. She told the social worker she was released because she could not be charged for the same crimes for which she was acquitted by the military court, but provided no documentation regarding her arrest, the charges filed against her or the reason for her release. E.G. resumed weekly supervised visits with the minors.
E.G. filed a section 388 petition for modification, seeking placement of the minors with her or provision for additional services under section 366.3. As changed circumstances, E.G. alleged she complied with the requirements of her reunification plan, and she was released from custody after the superior court dismissed the charges against her because Penal Code section 656 barred her prosecution after she was acquitted by the military court. As to best interests, E.G. alleged she had a strong bond with the minors and they wanted to live with her.
Agency and minors' counsel opposed E.G.'s modification petition, arguing the minors would not be safe with E.G., and E.G. would not benefit from further services to become a safe parent. They further argued the proposed modification was not in the minors' best interests.
According to social worker Jose Santana, this was a high risk case because there had never been an explanation for Juan's death and Keyla's injuries. Santana believed E.G. was either responsible for the abuse or she failed to protect the children. In Santana's opinion, E.G. did not have a parental relationship with Keyla or a primary relationship with Elizabeth. The CASA's report recommended adoption for the minors. She said the minors were attached to their caregivers, who wanted to adopt them. The minors needed permanence and stability in their lives. E.G. was unable to successfully reunify with them even though she made some progress with services. The court denied E.G.'s section 388 petition without an evidentiary hearing.
At a contested selection and implementation hearing, Santana testified the minors were adoptable and their caregivers had been approved to adopt them. Santana supervised 23 visits between E.G. and the minors, and he also observed the minors with their caregivers. The minors were excited to see E.G. at visits, and they ran to hug and kiss her. However, they separated easily from E.G. after visits. Elizabeth and Keyla had a strong sibling relationship and it would be detrimental to them to be separated.
Santana believed E.G. and Elizabeth had a positive relationship, but it was not a parent-child relationship because E.G. had not been available to meet Elizabeth's daily needs. Elizabeth was bonded to her caregivers. Santana stated Elizabeth would not experience emotional distress or long-term detriment if parental rights were terminated.
Santana testified E.G. and Keyla did not have a parent-child relationship because Keyla had lived with E.G. for only two months of her life, and Keyla's parental relationship was with her caregivers. Keyla only recently became comfortable with E.G. at visits. Keyla would be unaffected by termination of parental rights.
In Santana's opinion, the minors did not have a beneficial relationship with E.G. Because there was no satisfactory explanation for Juan's death and Keyla's injuries, Santana believed the minors were at risk in E.G.'s care. The minors needed stability and it was in their best interests to be adopted by their caregivers.
After considering the evidence and argument of counsel, the court found the minors were adoptable and none of the exceptions to adoption applied. The court terminated parental rights and referred the minors for adoptive placement.
DISCUSSION
I
E.G. challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception did not apply to preclude terminating parental rights. She asserts she regularly visited the minors and shared a significant, loving and positive relationship with them.
A
We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
After reunification services are terminated, the focus of a dependency proceeding shifts from preserving the family to promoting the best interests of the child, including the child's interest in a stable, permanent placement that allows the caregiver to make a full emotional commitment to the child. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.) At the selection and implementation hearing, the court has three options: (1) terminate parental rights and order adoption as the permanent plan; (2) appoint a legal guardian for the child; or (3) order the child placed in long-term foster care. (Ibid.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of several specified exceptions. (§ 366.26, subd. (c)(1)(A) & (B)(i)-(vi); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to the adoption preference if termination of parental rights would be detrimental to the child because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We have interpreted the phrase "benefit from continuing the relationship" to refer to a parent-child relationship that "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent[-]child relationship in a tenuous placement against the security and 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; accord In re Jason J. (2009) 175 Cal.App.4th 922, 936.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B
Here, E.G. consistently visited the minors except when she was incarcerated. However, E.G. did not meet her burden of showing her relationship with the minors was sufficiently beneficial to warrant a permanent plan other than adoption.
The relationship between E.G. and the minors, although positive and loving, was not parental. The minors enjoyed their visits with E.G., but separated easily from her and did not ask for her between visits. Keyla had no attachment to E.G. To the extent Elizabeth had a relationship with E.G. that was somewhat beneficial, it did not meet Elizabeth's need for a parent. (In re Angel B. (2002) 97 Cal.App.4th 454, 466; In re Derek W., supra, 73 Cal.App.4th at p. 827 [relationship between father and son was pleasant and emotionally significant but was not the type of consistent nurturing that marks a parental relationship].) "A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Angel B., supra, 97 Cal.App.4th at p. 466.) There was no evidence the minors had a "significant, positive, emotional attachment" to E.G. so terminating the parent-child relationship would result in great harm to them. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
Further, E.G. did not show that maintaining the relationship with the minors outweighed the benefits of adoption for them. E.G.'s role in the harm to Juan and Keyla prevented the minors from safely returning to her custody and caused them to experience turmoil and instability. The minors lived with their caregivers for most of their lives and were bonded to them. The caregivers were committed to adopting the minors, who need the stability and permanence of adoption. (In re Justice P. (2004) 123 Cal.App.4th 181, 191 [child's interest in stable and permanent home is paramount once a parent's interest in reunification is no longer at issue].) The court was required to, and did, weigh the strength and quality of the parent-child relationship, and the detriment involved in terminating it, against the potential benefit of an adoptive home for the minors. We cannot reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Casey D., supra, 70 Cal.App.4th at p. 53.) The minors, whose needs could not be met by E.G., deserve to have their custody status promptly resolved and their placement made permanent and secure. Substantial evidence supports the court's finding the beneficial parent-child relationship exception did not apply to preclude terminating E.G.'s parental rights.
Nothing in the record supports E.G.'s argument that "governmental error" and her resulting "wrongful incarceration" contributed to termination of her parental rights. The minors became dependents because E.G. was responsible for the serious physical harm to Keyla and for causing Juan's death through abuse or neglect. E.G.'s first incarceration resulted from her confession to causing her children's injuries. The record before us does not disclose the circumstances of E.G.'s second arrest, incarceration and eventual release. Even when E.G. was not incarcerated, she was unable to progress beyond supervised visits, and she continued to deny any wrongdoing or knowledge of how the children's injuries occurred. At the time of the selection and implementation hearing, E.G. had not established a beneficial parent-child relationship with the minors. Terminating parental rights was not "an unnecessary or inappropriate governmental intrusion into this family."
In the first dependency proceeding, E.G. submitted on the allegations of the petitions, admitting she and L.G. had caused Keyla's injuries. In the second dependency proceeding, the court found E.G. caused Juan's death through abuse or neglect.
II
E.G. contends the finding the minors were adoptable was based on insufficient evidence of their feelings and preferences regarding adoption. She asserts the social worker did not provide the minors with an age appropriate explanation of adoption or the alternative of guardianship. She further asserts six-year-old Elizabeth should have been told she may never see her mother again if parental rights were terminated.
A
At a hearing to select and implement a permanent plan for a dependent child, the court must consider the wishes of the child to the extent ascertainable and act in the child's best interests. (§ 366.26, subd. (h)(1); In re Juan H. (1992) 11 Cal.App.4th 169, 173.) When Agency recommends adoption as a child's permanent plan, it must prepare an assessment that includes "a statement from the child concerning placement and the adoption... unless the child's age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition." (§ 366.21, subd. (i)(1)(E).)
The statutory requirement to consider a child's wishes at a selection and implementation hearing does not include explaining all the possible consequences of adoption to the child, and the court need not determine whether the child wishes to be adopted: "[In honoring [children's] human dignity... we should not carelessly impose upon them decisions which are heavy burdens even for those given the ultimate responsibility to decide. To ask children with whom they prefer to live or to ascertain what they wish through other evidence is one thing. To ask those children to choose whether they ever see their natural parent again or to give voice to approving that termination is a significantly different prospect.... [I]n considering the child's expression of preferences, it is not required that the child specifically understand the proceeding is in the nature of a termination of parental rights." (In re Leo M. (1993) 19 Cal.App.4th 1583, 1593; accord In re Amanda D. (1997) 55 Cal.App.4th 813, 820.) Instead, where practicable and consistent with the child's best interests, the social worker should attempt to obtain some evidence of the child's feelings from which the court can then infer the child's wishes. In the absence of evidence to the contrary, we presume the court has performed its statutory obligation on behalf of the child. (In re Leo M., supra, at p. 1594.)
B
Here, Agency's report contained sufficient information for the court to assess the minors' wishes and to act in their best interests in selecting a permanent plan for them. When Santana asked the minors where and with whom they wanted to live, they both responded they wanted to live with their foster mother. Santana informed the court that the minors, who were six and four years old, were too young to fully understand the concept of adoption, but they did understand they would live with their caregivers until they were grown. The social worker was not required to explain to the minors the difference between adoption and guardianship, or to present them with those options. Requiring the social worker to tell Elizabeth that adoption meant she may never see her mother again would be too great a burden on this young child.
Further, the minors' wishes about placement were adequately reflected in the reports showing they were bonded to their caregivers and thriving in their home. From this evidence, the court could reasonably infer adoption was in the minors' best interests. (In re Cody S. (1997) 56 Cal.App.4th 230, 234.)
III
E.G. contends if parental rights to Elizabeth were not terminated, then parental rights to Keyla should not be terminated because the minors have a bonded sibling relationship within the meaning of section 366.26, subdivision (c)(1)(B)(v). Having concluded there was no error as to the findings of adoptability and the lack of a beneficial parent-child relationship with respect to Elizabeth, we need not address this contention.
IV
E.G. contends the court erred by summarily denying her section 388 modification petition without an evidentiary hearing. She asserts she made a prima facie showing her circumstances had changed and the proposed modification—returning the minors to her custody or provision for further reunification services—was in the minors' best interests.
A
A party may petition the court under section 388 to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Casey D., supra, 70 Cal.App.4th at p. 47.) The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "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.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (In re Jasmon O., supra, at p. 415.) "However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] 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.) In 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., supra, 123 Cal.App.4th at pp. 188-189.)
B
E.G.'s section 388 modification petition alleged her circumstances had changed because she was released from custody after criminal charges against her were dismissed and she had completed her case plan requirements but was unable to continue with individual therapy after services were terminated. However, E.G.'s petition did not allege these changes allowed her to safely parent the minors, but only that "it is quite possible she would have been able to continue to make progress in her individual therapy" had her reunification services not been improperly interrupted. These allegations of changing circumstances are not legally sufficient to warrant a hearing on her section 388 petition. (In re Angel B., supra, 97 Cal.App.4th at p. 465.) Delaying the selection of a permanent plan to determine whether a parent who has not reunified with the child might be able to reunify at some future point does not promote a child's best interests or stability for the child. (See In re Edward H. (1996) 43 Cal.App.4th 584, 594.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H., supra, 5 Cal.4th at p. 310.)
Even had E.G. made a prima facie showing of changed circumstances, her petition did not show that placing the minors with her or providing further services was in the minors' best interests. E.G. had been complying with her case plan at the time of her second arrest and incarceration, but she had not acknowledged her dangerous parenting behaviors, and her progress in therapy was merely adequate. Where, as here, a modification petition is filed on the eve of a selection and implementation hearing, "the child's interest in stability is the court's foremost concern, outweighing the parent's interest in reunification. Thus, a section 388 petition seeking reinstatement... of reunification services must be directed at the best interest[s] of the child." (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348-1349.)
The minors' best interests would not be served by removing them from their prospective adoptive home and placing them with E.G., considering her lack of insight and consistent denial about her role in Juan's death and Keyla's injuries. (See In re Anthony W. (2001) 87 Cal.App.4th 246, 252 [juvenile court properly denied section 388 petition without a hearing where there was no showing it was in minors' best interests to return to parent's custody]; In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [summary denial of section 388 petition was proper where there was no showing of how the children's best interests would be served by depriving them of a permanent stable home in exchange for an uncertain future].) "[A] primary consideration in determining the child's best interests is the goal of assuring stability and continuity. [Citation.] When 'custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
Here, the minors had been in the dependency system for nearly five years and the proper focus of this case was on their need for stability, continuity and permanence, regardless of E.G.'s interest in reunification. (In re Stephanie M., supra, 7 Cal.4th at pp. 317-318; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1507.) Because the facts alleged in the petition, even liberally construed, would not have sustained a favorable decision on the section 388 petition, E.G. was not entitled to an evidentiary hearing. (In re Zachary G., supra, 77 Cal.App.4th at pp. 806, 808; In re Mary G. (2007) 151 Cal.App.4th 184, 205-206.)
Having concluded there was no error as to any of the issues raised by E.G., we need not address her claim of cumulative error.
DISPOSITION
The judgments are affirmed.
WE CONCUR: HUFFMAN, Acting P. J., HALLER, J.