Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County Ct. No. EJ002871, Gary M. Bubis, Judge. Affirmed.
IRION, J.
Krystle H. and Eric S. appeal the judgment terminating their parental rights to Erika S. They contend the juvenile court erred by summarily denying their Welfare and Institutions Code section 388 petitions. Krystle also contends the court erred by declining to apply the beneficial relationship and sibling relationship exceptions to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i), (v)), and Eric joins in those contentions. We determine the contentions to be without merit and affirm.
All further statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL BACKGROUND
Erika was born in September 2006. Beginning in October, Krystle and Eric used drugs to excess. They admitted using methamphetamine in Erika's presence and cutting it on the coffee table. In February 2007 Eric grabbed Krystle, held his hands around her throat and pinned her on the floor against Erika's crib. He then grabbed Erika and ran out of the apartment. He was arrested for domestic violence, and a restraining order was issued. In April Krystle and Eric were found together, in violation of the restraining order.
The San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for then six-month-old Erika, based on the above facts. Erika was detained with her maternal grandmother, Traci, for three days and was then placed in a foster home for six weeks before being returned to Traci. The court made a true finding on the petition and held various hearings during the minor's dependency. At the December six-month review hearing, the court terminated reunification services and set a section 366.26 hearing for April 2008.
In April 2008 the court set a contested section 366.26 hearing for May 27, and ordered that any section 388 petitions be filed by May 7. On May 27, Krystle and Eric filed their section 388 petitions.
In her section 388 petition, Krystle asked the court to vacate its December 2007 order setting the section 366.26 hearing; that it order services to be provided to her; and that Erika be placed with her or with her mother, Traci. As changed circumstances, Krystle alleged she was in the second phase of a program at KIVA, a residential drug treatment program; that she was taking domestic violence classes; and that she was doing well in therapy. Krystle asserted the requested modification in the court's order was in Erika's best interests because she had a strong bond with Erika and termination of parental rights might interfere with the relationship between Erika and a sibling, Rylee, born in March 2008.
Eric's section 388 petition asked the court to vacate its December 2007 order setting the section 366.26 hearing and to order that services be provided to him until the 18-month review date. As changed circumstances, Eric alleged that he had completed parenting, drug education and domestic violence courses, as well as a reentry program and an HIV-awareness class; that he regularly attended Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings while in custody; and that he was willing to continue services. Eric asserted that a change in the court's order was in the minor's best interest because Erika was young and should be raised by her biological parents, and that the minor was bonded to them.
Before issuing its ruling on the parents' section 388 petitions, the court read the entire file and secured offers of proof from Eric's counsel. The court denied the section 388 petitions without holding a hearing. The court then terminated the parents' rights to the minor.
Krystal and Eric appeal.
I.
The Court Did Not Err by Summarily Denying the Section 388 Petitions
Section 388 allows the juvenile court to modify an order if a parent establishes, by a preponderance of the evidence, that new evidence or changed circumstances exist and that the proposed change in the court's order would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) To obtain a hearing on a section 388 petition, a parent must make a prima facie showing on both elements. (Ibid.; In re Justice P. (2004) 123 Cal.App.4th 181, 188.) A section 388 petition should be liberally construed in favor of granting a hearing, but "[t]he 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." (Zachary G.,at p. 806.)
We review the summary denial of a section 388 petition for abuse of discretion. (In re Zachary G., supra, 77 Cal.App.4th at p. 808; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413; In re Aljamie D. (2000) 84 Cal.App.4th 424, 431, 433.) As we discuss below, the court did not abuse its discretion in denying a hearing on the parents' section 388 petitions, as the petitions, properly construed, did not establish a prima facie case on either of the two required elements.
We reject Eric's argument that de novo review is required and summary denial of his petition deprived him of due process.
A. The Petitions Did Not Establish a Prima Facie Case of Changed Circumstances
In denying the parties' section 388 petitions without hearing, the court noted the parents' significant drug and domestic violence histories and determined that their petitions did not allege facts which, if proven, would constitute changed circumstances. We agree.
1. Krystle's Section 388 Petition Did Not Establish Changed Circumstances
Krystle used methamphetamine heavily for three years; had untreated bipolar and schizoaffective disorders, a history of auditory hallucinations and many suicide attempts; and had failed to submit to a psychological evaluation, as called for by her case plan.
Against this background, the allegations made in Krystle's May 27 section 388 petition that she was in the second phase of a program at KIVA, was taking domestic violence classes and was doing well in therapy, at most showed changing, not changed, circumstances. Even if the facts alleged were proven, they would not be sufficient to warrant modification of the order setting the section 366.26 hearing. (In re Mary G. (2007) 151 Cal.App.4th 184, 206.) While Krystle was making progress with her plan, she only had been clean and sober since her entry into the KIVA residential drug treatment program and had completed only 11 weeks of that six- to nine-month program. She had only begun therapy, attending two or three sessions. Thus Krystle's petition failed to establish a prima facie case of changed circumstances, and the court was not required to grant her a hearing on the petition. (In re Zachary G., supra, 77 Cal.App.4th at p. 806.)
2. Erik's Section 388 Petition Did Not Establish Changed Circumstances
Eric began using drugs at age 11, a practice that largely continued throughout Erika's dependency. He had a lengthy criminal history, and was frequently in and out of custody. Eric's act of domestic violence against Krystle, Erika's mother, was one of the factors which brought Erika into the dependency system.
The allegations of Eric's section 388 petition—that he had completed parenting, drug education and domestic violence courses, as well as a reentry program and an HIV-awareness class, and that he regularly attended AA and NA meetings while in custody—were insufficient to make a prima facie showing of changed circumstances. The petition, considered with Eric's counsel's offer of proof, at best showed changing, not changed circumstances. (In re Mary G., supra, 151 Cal.App.4th at p. 206.) Eric did not start drug treatment until after his February 2008 incarceration, and was not able to demonstrate that he was able to remain drug and alcohol free out of custody. Eric's courses in parenting, drug education and domestic violence were only 16 hours long; the domestic violence prevention training required by his case itself was a 52-week course. Eric was not able to provide attendance records for more than 12 NA meetings, and was not able to provide attendance records at any AA meetings. Eric had not completed the psychological evaluation called for by his case plan. Thus, the court did not err in failing to hold a hearing on Eric's section 388 petition.
B. The Petitions Did Not Establish a Prima Facie Case that a Change in the Court's Order Was in the Best Interest of the Minor.
As stated above, a court does not err in failing to hold a hearing on a section 388 petition unless the parent establishes a prima facie case as to both changed circumstances and best interests. (In re Justice P., supra, 123 Cal.App.4th at p. 188.) Here, the petitions were insufficient to establish a prima facie case of changed circumstances, which, alone, would be sufficient to reject the parents' appellate challenge to the court's ruling. However, as we discuss below, the petitions also failed to establish a prima facie case that modification of the court's order would be in the best interest of the child.
Krystle alleged the requested modification was in Erika's best interests because they had a strong bond and terminating parental rights might interfere with the sibling relationship. Eric alleged Erika was bonded to him and Krystle and he demonstrated parenting skills during visits. These allegations were insufficient to show that the proposed modifications—vacating the section 366.26 hearing and extending reunification services—would be in Erika's best interests. At the time Krystle and Eric filed their section 388 petitions, the focus of the dependency proceedings had shifted from family reunification to providing permanency and stability for Erika. (In re Stephanie M. (1994) 7 Cal.4th 295, 317, 324.) Thus, a determination of Erika's best interests encompassed matters not alleged in the petitions, including the facts that she was bonded with Traci; Traci was ready, willing and able to provide her permanency through adoption; and Krystle's and Eric's contacts with Erika were minimal and had just begun. (Id. at pp. 317-318.) Because Krystle's and Eric's section 388 petitions failed to establish a prima facie case that the proposed modifications would be in Erika's best interests, the court did not err in failing to hold a hearing on the petitions.
II.
The Court Did Not Err by Failing to Apply the Beneficial Relationship Exception to Termination of Parental Rights
Section 366.26, subdivision (c)(1) allows termination of parental rights upon a showing, by clear and convincing evidence, of adoptability. An exception exists if "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship" with the parents. (§ 366.26, subd. (c)(1)(B)(i).) A beneficial relationship is one 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The existence of this relationship is determined by "[t]he 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 . . . ." (Id. at p. 576.)
Examining the evidence in the light most favorable to the judgment, we conclude Krystle failed to meet her burden of establishing the beneficial relationship exception to termination of parental rights. (In re Autumn H., supra, 27 Cal.App.4th at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.) At the time of the section 366.26 hearing, Erika was 20 months old. She had been out of parental custody for more than 13 months. Erika lived with Traci for nearly all that time and was bonded to her, not Krystle. Krystle had virtually no contact with Erika until February 2008. While the few recent supervised visits Krystle had with Erika went well, Erika needed and deserved the safe, stable adoptive home that Traci offered her.
Krystle helped care for Erika during the short period she lived in Traci's home immediately before Rylee's birth. Traci supervised Krystle's contact with Erika during that period.
III.
The Court Did Not Err by Failing to Apply the Sibling Relationship Exception to Termination of Parental Rights
Section 366.26, subdivision (c)(1)(B)(v) provides an exception to termination of parental rights if termination would substantially interfere with the child's sibling relationship and the severance of the relationship would be so detrimental to the child as to outweigh the benefits of adoption. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951-953.) The juvenile court must "balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer." (L. Y. L., at p. 951, citing In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Factors to be considered include whether the siblings were raised in the same home; whether they shared significant common experiences or have existing close and strong bonds; and whether ongoing contact is in the child's best interests, including her long-term emotional interest as compared to the benefit of adoption. (§ 366.26, subd. (c)(1)(B)(v).)
Examining the evidence in the light most favorable to the judgment, we conclude that substantial evidence supports the juvenile court's finding that Krystle and Eric did not meet their burden of proving the sibling relationship exception. (In re L. Y. L., supra, 101 Cal.App.4th at pp. 947, 952.) Erika and Rylee, her sister, lived together for the 12 weeks since Rylee's birth. Because the children were in the same home, there was no evidence that adoption would substantially interfere with the sibling relationship. Furthermore, while Erika was fond of Rylee, their relationship was minimal and did not outweigh the benefits Erika would derive from adoption. (L. Y. L., at pp. 951-953.)
The court did not err by declining to apply the sibling relationship exception.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.