Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J0402308.
Jones, P.J.
Summer P. (mother) and Miguel P. (father) appeal from an order terminating their parental rights as to their daughter Gabriella. Mother contends (1) the juvenile court erred when it denied her Welfare and Institutions Code section 388 petition based on changed circumstances, (2) the court erred when it chose adoption rather than guardianship as the permanent plan, and (3) the court erred when it declined to find applicable the exception to termination that is set forth in section 366.26, subdivision (c)(1)(B)(v). Father contends that if the order terminating mother’s rights is reversed, then the order terminating his rights should be reversed too. We reject mother’s arguments and therefore affirm the termination order as to mother and father.
Unless otherwise indicated, all further section references will be to the Welfare and Institutions Code.
Because father’s argument on appeal is derivative, we will focus on the allegations regarding mother.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 27, 2004, a petition was filed alleging Gabriella was a dependent child within the meaning of the Welfare and Institutions Code. The petition alleged, among other things, that mother had used drugs and alcohol during her pregnancy with Gabriella’s half-sibling; that mother and her boyfriend, Victor A., engaged in domestic violence in Gabriella’s presence, that mother verbally abused Gabriella, and that Victor A. physically abused Gabriella’s half-sibling.
In May 2005, mother admitted allegations that she had a substance abuse problem and that she and father had a history of domestic violence.
A dispositional report was prepared. It indicated that Gabriella and her half-siblings had been the subject of prior referrals. Mother had received voluntary family maintenance services from October 2003 through April 2004. In addition, mother and Victor A. had received voluntary family maintenance services between July 2004 and December 2004. However, mother and Victor A. continued to engage in substance abuse and domestic violence forcing child welfare authorities to file the petition at issue. Gabriella, who was then eight, was living with her godmother, Jill S. Gabriella’s half-siblings, Nikko, aged five, and Symonne, nearly two, were living with their maternal aunt. Gabriella’s youngest half-sibling, Victoria, who was two months old, was living with mother. Mother had recently spent three months in jail. After her release, she entered a residential treatment program where Gabriella and her siblings had visited a few times. The visits were “OK” but “chaotic.” Mother was described as honest and forthcoming, but she seemed to be having problems grasping the seriousness of her situation. The report proposed a reunification plan that included counseling, domestic violence prevention, parenting education, drug testing, and an in-patient substance abuse program.
The court adopted the proposed plan at a hearing in June 2005.
The record on appeal does not include a clerk’s or reporter’s transcript for the six-month review hearing. However, a 12-month review hearing was set for February 2006.
The report for that hearing indicated mother was having mixed success. On one hand, mother was making a “valiant effort.” She continued to participate in her substance abuse program and her drug tests were negative. She had completed parenting classes, and she had enrolled in a transitional housing and employment program. On the other hand, mother was “still [struggling] with her parenting skill[s].” Mother had difficulty comprehending information and engaging in treatment. The report recommended that mother undergo a psychological evaluation. More disturbing was a reported incident when mother had left Victoria, then only seven months old, alone in her bedroom with a baby monitor in the crib, while mother attended a meeting in another building.
At a hearing in July 2006, the court ordered that appellant continue to receive reunification services.
An 18-month review hearing was scheduled. Attached to the report for that hearing was a lengthy psychological evaluation of mother. The evaluation indicated there were several concerns about mother’s parenting abilities and psychological state including the fact that she was not able to describe how her drug use had impacted her children, that she consistently blamed Victor A. for her drug use and legal problems, that she insisted Victoria was not at risk when she left her alone while she attended a meeting in another building, and mother’s insistence that Gabriella was enuretic because she was “marking [her] territory.” The evaluation stated that mother “cannot now be expected to effectively and independently parent her children” and that it was impossible to predict when mother would be able to safely and independently parent. The report noted that Gabriella had not seen her mother since May 2006, and that Gabriella did not want to see her mother because she had yelled at and teased her during a prior visit.
After reviewing this evidence the trial court terminated reunification services and set the matter for a hearing to determine whether mother’s parental rights should be terminated.
The report for the termination hearing recommended that mother’s parental rights be terminated. According to the report, it was likely Gabriella would be adopted by her godmother, with whom she had lived for the past two and one-half years. The godmother was “completely dedicated” to adopting Gabriella and Gabriella wanted to be adopted. The report anticipated that Gabriella would continue to have contact with her siblings after the adoption. However, because Gabriella had lived apart from her siblings prior to the dependency and had spent the past two and one-half years living separately from them, the report stated that even if Gabriella’s adoption did disrupt her sibling relationships, the benefit of a permanent adoptive home outweighed the benefit of continuing those relationships.
Before the termination hearing could take place, mother filed a section 388 petition. She asked the court to set aside the termination hearing and provide her with additional reunification services. This was justified, mother argued, because she had made “tremendous strides in her co-parenting home,” was living clean and sober, and was then successfully caring for Gabriella’s sister Victoria. Mother supported her petition with a letter from a counseling program that she anticipated completing soon, and a letter from her mentor in the “Families First” program. The mentor mentioned mother’s success in parenting Victoria and complimented mother for being well-organized, consistent, and loving.
Child welfare authorities responded to mother’s petition by commending mother’s care for Victoria and her participation in her case plan. However, the authorities continued to believe that given mother’s psychological evaluation, it was unlikely that she could care adequately for both Victoria and Gabriella. Moreover, Gabriella did not want to return to mother’s care.
Before the court could conduct a hearing on the section 388 petition, the authorities submitted a report that indicated Gabriella had been in a fight at school. While Gabriella and her caretaker (the prospective adoptive mother) were discussing the incident, the caretaker pulled Gabriella’s hair. Understandably concerned, the authorities referred Gabriella and her caretaker to therapy.
Subsequently, child welfare authorities submitted another report stating that Gabriella and her caretaker had engaged in therapy with promising results. The report concluded, “[Gabriella and her caretaker] understand that the future may always hold certain challenges, but both are committed to the future of their family – and to the commitment necessary to have a stable and positive family life.”
On June 14, 2007, the court conducted a combination section 388 hearing and termination hearing. Turning first to the section 388 petition, the court heard testimony from mother who testified that she had her own apartment, and that she continued to attend addiction meetings and therapy. Mother believed that she could care for Gabriella as well as Victoria because she had “a lot of time on [her] hands.”
Child welfare authorities opposed mother’s section 388 request. They noted mother’s therapist had submitted a letter that indicated mother was not able to recognize how her behavior had affected her children, that mother blamed the system for her problems, and that mother had poor insight into her problems. The therapist also said she was very concerned about mother’s ability to maintain her sobriety.
The court denied mother’s section 388 petition “for all the reasons outlined in the therapist’s letter.” Moreover, the court said that a change had “not been shown to be in Gabriella’s best interest, since she does not want to return home.”
Turning next to the termination aspects of the hearing, the court heard testimony from a social worker who stated she had investigated the incident between Gabriella and her caretaker and that it was not a cause for serious concern. The social worker stated Gabriella needed someone to “focus on her emotional and mental and educational needs” and that “her prospective adoptive mother is very committed to those things . . . .”
The juvenile court expressed concern about the incident between Gabriella and her caretaker, but was “mindful that a child with a difficult upbringing could present difficult parenting issues.” The court also said it was “very, very aware that the caretaker and the child very much wish to be united as a family.” Accordingly, the court found Gabriella to be adoptable and that neither Gabriella’s relationship with her mother nor her relationship with her siblings outweighed the benefits of adoption. The court then terminated mother’s and father’s parental rights.
II. DISCUSSION
A. Mother’s Appeal
1. Section 388 Petition
Mother contends the juvenile court erred when it denied her section 388 petition.
Section 388 allows a parent to petition the court to change, modify or set aside a previous order in the dependency based on changed circumstances or new evidence. The parent bears the burden of showing that a change of circumstance exists and that the proposed change is in the child’s best interests. (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) A petition that alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests. (In re Edward H. (1996) 43 Cal.App.4th 584, 594.) “‘[C]hildhood does not wait for the parent to become adequate.’” (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610, quoting In re Marilyn H. (1993) 5 Cal.4th 295, 310.) On appeal, we will not reverse the decision of the juvenile court unless the parent establishes the trial court abused its discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
We find no abuse here. Mother’s motion and her testimony at the section 388 hearing did indicate that mother was making positive changes in her life. Mother had completed or was in the process of completing parenting classes. She was consistently testing negative for drugs. She had obtained housing and apparently had work selling cosmetics. In addition, she was successfully caring for Gabriella’s two-year-old sister Victoria. However, despite these positive changes, significant problems remained. Mother’s improved housing and work situation were both very recent, and the court could reasonably be concerned about how stable they were. Mother’s therapist expressed concern about mother’s parenting abilities due to her lack of insight and the fact that she blamed others for her problems. The therapist was also very concerned about whether mother could maintain her sobriety. The fact that mother could successfully parent Victoria, a pre-verbal child who had lived with mother for most or her life, did not necessarily mean that mother could care for Gabriella, a challenging child who has spent much of her life living with others and who wanted to be adopted. The court weighing these conflicting factors could reasonably conclude mother had not met her burden of showing changed circumstances. The court did not abuse its discretion.
2. Whether the Court Erred By Selecting Adoption As the Permanent Plan
Mother contends the trial court erred when it chose adoption rather than guardianship as the permanent plan.
The purpose of a section 366.26 hearing is to select and implement a permanent plan for the child. (In re Celine R. (2003) 31 Cal.4th 45, 52.) The hearing is designed to protect a child’s compelling right to have a placement that is stable and permanent and that allows a child’s caretaker to make a full emotional commitment to a child. (Id. at pp. 52-53.)
The court has five choices at a section 366.26 hearing. In order of preference the choices are: (1) terminate parental rights and order that the child be placed for adoption; (2) appoint a relative with whom the child is living as legal guardian; (3) identify adoption as the permanent placement goal and require efforts to locate an appropriate adoptive family; (4) appoint a nonrelative as legal guardian; or (5) order long-term foster care. (§ 366.26, subd. (b).) Whenever the court finds “that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.” (§ 366.26, subd. (c)(1).)
Section 366.26, subdivisions (c)(1)(A) and (c)(1)(B) set forth several statutory exceptions to termination. However, a court must order adoption and its necessary consequence, termination of parental rights, unless it finds that one of the specified statutory exceptions to termination exists. (In re Celine R., supra, 31 Cal.4th at p. 53.)
Here, mother contends the juvenile court should have selected guardianship rather than adoption of the permanent plan. She notes that when a parent’s rights are terminated, the biological connection between the parent and child is severed, and that a parent and other siblings then have no right to visit. Mother also notes that Gabriella clearly was under stress (as was reflected by the fact that she got into a fight) and that the prospective adoptive parent’s reaction to the fight was inappropriate.
We need not address the substance of mother’s arguments because mother makes no attempt to fit those arguments into the statutory framework that sets forth the exceptions to termination, other than her assertion regarding the loss of Gabriella’s sibling relationships. As we have said, a court must order adoption and termination of parental rights, unless it finds that one of the statutory exceptions to termination exists. (In re Celine R., supra, 31 Cal.4th at p. 53.) Absent argument that one of the statutory exceptions to termination exists, we have no grounds on which to conclude the court erred when it terminated mother’s parental rights.
Mother tries to remedy this problem somewhat in her reply brief by citing but not discussing sections “366.26, subd. (c)(1)(A)” and “366.26, subd. (c)(1)(E).” The statutes have been renumbered and the principles formerly set forth in those sections are now found in section 366.26, subdivision (c)(1)(B)(i), and section 366.26, subdivision (c)(1)(B)(v). In any event, we do not address arguments that are raised for the first time in a reply brief. (Consumers Union of U.S., Inc. v. Alta-Dena Certified Dairy (1992) 4 Cal.App.4th 963, 976.)
3. Exception to Termination Set Forth in Section 366.26, Subdivision (c)(1)(B)(v)
Mother contends the juvenile court erred when it failed to find applicable the exception to termination that is set forth in section 366.26, subdivision (c)(1)(B)(v).
Mother in fact cites to section 366.26, subdivision (c)(1)(E). The exception to termination upon which she relies is now found in section 366.26, subdivision (c)(1)(B)(v).
When a court finds by clear and convincing evidence that it is likely the child will be adopted, it shall terminate parental rights and order the child placed for adoption unless it finds a compelling reason to determine that termination would be detrimental to the child because there would be a substantial interference with the child’s sibling relationship. (§ 366.26, subd. (c)(1)(B)(v).) The party asserting the sibling relationship exception bears the burden of demonstrating it. (In re Megan S. (2002) 104 Cal.App.4th 247, 252.) There must be a showing of a significant sibling relationship and of detriment to the child from the severance thereof. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952 .) Even on such a showing, the court may still terminate parental rights if it determines the benefit of adoption outweighs maintaining the relationship. (In re Megan S., supra, 104 Cal.App.4th at p. 252.) The reviewing court determines whether substantial evidence supports the trial court’s conclusions. (Id. at p. 254.)
Here, the report for the termination hearing stated that Gabriella visited with her siblings once or twice a month and that she enjoyed the visits. However, the report noted that “Gabriella has not resided with her siblings for the past two years, and previous to that, she was often having extended visits away from the home (and thus her siblings) . . . .” A social worker who testified at the termination hearing testified that Gabriella’s relationship with her siblings was not so significant that it should prevent her adoption:
“Q. [I]s it your opinion that a permanent home for Gabriella with her current caretaker would outweigh any benefit that she would gain from continuing to have contact with her siblings?
“A. Yes.
“Q. And why is that?
“A. Because Gabriella still has eight years of her childhood, that she needs permanence and stability and someone who can focus on her and her emotional and mental and educational needs, which I think that those of us that are here today know are many. And her prospective adoptive mother is very committed to those things and wants . . . very much for Gabby to have a healthy and positive life so that her future can be productive.”
The juvenile court specifically credited this testimony:
“No sibling exception applies because the siblings – the youngest daughter never lived with Gabby and the relationship between Gabby and all of her siblings doesn’t outweigh the permanence offered by adoption.”
We conclude the court’s ruling on this point is supported by substantial evidence. The court did not err when it declined to find applicable the exception to termination that is set forth in section 366.26, subdivision (c)(1)(B)(v).
B. Father’s Appeal
Father contends that if the termination of mother’s parental rights is reversed, than the termination of his rights should also be reversed. Because we conclude the court correctly terminated mother’s parental rights, we reject father’s argument.
III. DISPOSITION
The orders terminating mother’s and father’s parental rights are affirmed.
We concur: Simons, J., Needham, J.