Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County, Super. Ct. No. SJ11573 Elizabeth A. Riggs, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
NARES, J.
Hector G. and Ruby G. (together the parents) appeal an order terminating their parental rights to their son, Hector G. (hereafter, the minor), and Ruby appeals an order summarily denying her Welfare and Institutions Code section 388 petition. Hector contends the court violated his right to due process by terminating his parental rights without sufficient notice and without a special hearing regarding parental unfitness. Ruby asserts the court erred by denying her petition without a hearing and by finding the beneficial parent-child relationship and the sibling relationship exceptions to termination of parental rights and adoption did not apply. Hector joins in Ruby's arguments which may be to his benefit. We affirm the orders.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On December 28, 2005, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of the minor under section 300, subdivision (b), alleging he and Ruby tested positive for methamphetamine at his birth, and that Ruby admitted using illegal drugs and had received little prenatal care.
Ruby said she lived in Tijuana with Hector, but he did not know she used drugs. She has two older children who live with relatives. Ruby entered a drug abuse treatment program in San Diego, but then returned to Tijuana, where, she said, Hector was taking her to NA meetings. The minor was detained in foster care. Ruby asked that he be placed with the paternal grandmother (the grandmother) in Tijuana.
At the jurisdictional hearing on January 18, 2006, the court found the allegations true. It granted a continuance to allow Hector to be present at the disposition hearing and ordered he be provided notice. Ruby requested services through the Mexican social services agency (DIF).
Hector denied using drugs and stated he was not aware that Ruby used drugs. He was willing to participate in services. On January 30, 2006, Ruby told the social worker she was at a shelter in San Diego because Hector had lost his job and they had no money for services in Tijuana. Subsequently, Ruby returned to Tijuana and said she would participate in services there.
Hector was present at the February 9, 2006, disposition hearing and counsel was appointed for him. He requested paternity testing, which was scheduled for later that day. The court declared the minor a dependent child, removed him from Ruby's care, ordered him placed in foster care, and ordered reunification services for Ruby.
Hector's paternity test was completed on May 31, 2006, and filed with the court on June 6. It showed Hector is the minor's biological father. The social worker reported Ruby and Hector were participating in services through DIF and were visiting the minor. They lived in an apartment on the grandmother's property. In August Ruby moved to San Bernardino to live with relatives.
At the October 18, 2006, six-month review hearing, the court continued services and ordered the minor placed with the grandmother. The social worker began having difficulty making contact with Ruby. She reported Ruby had stopped participating in services and contacting the social worker. The grandmother was concerned that Hector was using drugs. She said Ruby and Hector had had at least five instances of domestic violence. After one violent altercation with Hector, Ruby left Tijuana to live in San Bernardino again. She subsequently began drug abuse treatment there.
At the 12-month hearing on May 10, 2007, the court found returning the minor to the parents' care would cause a substantial risk of detriment. It terminated services and set a section 366.26 hearing. The social worker reported the parents were having minimal contact with the minor. The grandmother said the parents continued to use drugs and to have a volatile relationship.
On October 10, 2007, Ruby petitioned under section 388, requesting the minor be placed in her care. She alleged she had continued in drug treatment and was caring appropriately for a new baby. At the section 366.26 hearing the next day, the court summarily denied her petition. For the section 366.26 hearing, Ruby testified the grandmother had prevented her from caring for the minor, but that beginning in March 2007 she had visited him every two weeks. She wanted him returned to her care. She said the minor had seen his new baby sibling about five times. The court accepted Hector's stipulated testimony that he would like the minor placed with Ruby in San Bernardino.
After argument by counsel, the court found the minor was likely to be adopted if parental rights were terminated, and adoption was in his best interests. It found none of the statutory exceptions to termination of parental rights and adoption were present, terminated parental rights and designated the grandmother as the prospective adoptive parent.
DISCUSSION
I. DUE PROCESS
Hector contends the court violated his right to due process by terminating his parental rights without sufficient notice and without a special hearing regarding parental unfitness.
A. Applicable Legal Principles
A parent's interest in the care and custody of his or her children is among the most basic of civil rights. (In re B.G. (1974) 11 Cal.3d 679, 688.) "Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence." (Santosky v. Kramer (1982) 455 U.S. 745, 747-748.) "California's dependency system comports with Santosky's requirements because, by the time parental rights are terminated at a section 366.26 hearing, the juvenile court must have made prior findings that the parent was unfit." (In re Gladys L. (2006) 141 Cal.App.4th 845, 848; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.)
The term "parental unfitness" was discontinued by the Legislature in 1969 in favor of the requirement the court find that awarding custody to the parent would be " 'detrimental to the child'." (In re Dakota H. (2005) 132 Cal.App.4th 212, 224, fn. 3.)
Section 361, subdivision (c) (1) provides inter alia that a child may not be taken from the custody of his or her parents unless the court finds by clear and convincing evidence the child would be in substantial danger if returned home and there are no reasonable means to protect the child absent removal. Before terminating parental rights the court must find returning the child to the parents would be detrimental to the child's well-being. Findings under section 366.21 or section 366.22 that the court has continued to remove the child from the custody of the parent and has terminated reunification services constitute a sufficient basis for terminating parental rights. (§ 366.26, subd. (c)(1).)
B. Analysis
Hector argues the court erred because it did not make the necessary findings against him by clear and convincing evidence when it removed custody only from Ruby at the dispositional hearing. Hector has not shown error. The court removed custody only from Ruby and made findings regarding only her at the disposition hearing because, at the time, Hector had the status of an alleged father. Paternity testing later showed he is the minor's biological father. In In re Gladys L., supra, 141 Cal.App.4th at pages 847-848, the appellate court held before a court may terminate a presumed father's parental rights to his child, it must have made a finding of detriment by clear and convincing evidence. Hector, however, never attained the status of presumed father. Thus, this holding does not apply to him. Further, at both the six-month and 12-month hearings, the court found by clear and convincing evidence that returning the minor to either Hector or Ruby would be detrimental. At the six-month hearing, the court stated it would adopt the Agency's recommendation contained in the report. The recommendation stated "that return of [the] child to the custody of the parents would create a substantial risk of detriment to said child's physical or emotional well-being" which the court found "by clear and convincing evidence . . . ." At the 12-month hearing, the court stated: "The court finds actually by clear and convincing evidence that the return of said child to the custody of the parents would create a substantial risk of detriment to said child's physical or emotional well-being. The court is making that finding by clear and convincing evidence." County counsel then asked the court to make an express finding regarding each parent. The court again found with respect to Hector that "placement with [Hector] would create a substantial risk of detriment to the child's physical and emotional well being. The court makes this finding by clear and convincing evidence[;] . . . court-mandated reunification services be terminated for the parents[; and] . . . the permanent plan of adoption is appropriate and is identified as the preferred permanent plan."
Hector was provided notice of these hearings. He was represented by counsel and did not object to the court's findings and orders. The court made the appropriate findings by the high standard of clear and convincing evidence. The findings were supported by substantial evidence and the time for review has long since passed. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 340.) There is no requirement for a special hearing on the issue of detriment.
Father has used the terms "parental unfitness" and "detriment" interchangeably in the briefs.
II. SECTION 388 PETITION
Ruby, joined by Hector, contends the court erred by denying her section 388 petition without an evidentiary hearing. She argues she made a prima facie showing that her circumstances had changed and continuing her relationship with the minor would serve his best interests.
A. Applicable Legal Principles
Section 388 provides in part:
"(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court . . . .
"[¶] . . . [¶]
"(c) 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 . . . ."
In order to gain the relief sought in a section 388 petition, the petitioner must show both a change of circumstances or new evidence and that the change sought is in the child's best interests. (§ 388; Cal. Rules of Court, rule 5.570(a); In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) A petition is liberally construed in favor of its sufficiency. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) The petitioner bears the burden of proof, however, to make both showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
Granting a petition that alleges circumstances only in the process of changing in the hope that the child and the parent might be able to reunify some time in the future, causing a delay in providing a permanent home to the child, may not support the child's best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) " ' "[C]hildhood does not wait for the parent to become adequate." ' [Citation.]" (Ibid.)
"[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court must order the hearing." (In re Angel B., supra, 97 Cal.App.4th at p. 461.) " ' "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." ' [Citations.]" (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.)
B. Analysis
The court did not abuse its discretion by finding Ruby did not make the prima facie showings required to warrant a hearing. Ruby alleged that after the court terminated services she continued to participate in services on her own, she had given birth to the minor's sibling and had shown she could appropriately parent her new child, and she had demonstrated her commitment to addressing the dependency issues. She provided documentation that she had been receiving drug abuse treatment in San Bernardino and had attended 30 sessions from April 3 to September 4, 2007, and had had 25 negative drug tests between April 17 and June 4 and between July 2 and August 30, 2007. Results of eight other tests were pending. On July 12 she was promoted from level A to level B. She also attached verification records showing attendance at NA meetings.
The documentation Ruby provided showed that her circumstances were changing, not that they had changed, as the statute requires. She had been provided with a reunification plan in January 2006 that required her to complete drug treatment, therapy and a parenting course. She completed the parenting course, but by the 12-month hearing in March 2007, after participating only minimally in drug treatment and therapy in the early days of the dependency case, she had dropped out of services. She began drug treatment again in April 2007 and had irregular attendance, and then took time out from June 11 until July 2 when her new baby was born. She did not provide documentation that she had participated in treatment from September 4 until October 11, 2007, the date of the hearing on her petition. She did not claim she had had individual therapy or treatment for the domestic violence that had surfaced during the dependency case. This evidence shows changing, not changed, circumstances.
Moreover, Ruby did not make a prima facie showing that placing the minor with her would serve his best interests. In In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532, the appellate court listed three factors a court might consider when determining if a child's best interests would be served by granting a section 388 petition: (1) the seriousness of the problem that led to the dependency and the reasons for any continuation of the problem; (2) the strength of the bond between the child and parent and the child and the caretaker; and (3) the degree to which the problem may be removed and the degree to which it has been removed.
The problem that led to the dependency was Ruby's serious substance abuse. As to the second factor, the minor had been a dependent child in foster care since his birth nearly two years earlier. Ruby presented no evidence she had had regular contact with him and little evidence they had a bonded relationship. By contrast, the grandmother had cared for the minor for nearly one year by the time of the hearing and had provided for all of his needs. He was very attached to her and she wanted to adopt him. As to the third consideration, although Ruby provided evidence she had made some progress during four months of drug treatment, she provided no information regarding therapy or domestic violence treatment. She argued she was providing care for her new baby, but nothing was known about this baby's birth or about her parenting of this child. Ruby did not make a prima facie showing that it was in the minor's best interests to further delay a permanent plan for him.
III. TERMINATING PARENTAL RIGHTS
Ruby asserts the court erred by terminating her parental rights because she showed the parent-child beneficial relationship exception to adoption and termination of parental rights of section 366.26, subdivision (c)(1)(A).
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
A. Applicable Legal Principles
Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parent's burden to show termination of parental rights would be detrimental to the child because of a specified statutory exception to termination of parental rights and adoption. (Id. at p. 574.) Under the exception found in former section 366.26, subdivision (c)(1)(A), the parent was required to show termination would be detrimental in that "[t]he parents . . . have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship." (See fn. 4, ante.) In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the exception]."
In reviewing whether sufficient evidence supports the trial court's finding, the appellate court reviews the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
B. Analysis
Ruby did not establish the beneficial parent-child relationship exception. Although she visited the minor twice each week at the beginning of the case and the Agency reported he appeared to be bonding with her, her visits soon became sporadic. After the minor was placed with the grandmother, the grandmother reported Ruby only had minimal contact with him even though they were both living on the same property in Tijuana. By April 2007 Ruby had left Tijuana and visited only occasionally. The grandmother said Ruby had not established a parent-child relationship with the minor because of their lack of contact. Ruby did not present evidence he would suffer harm from termination of her parental rights. We reject her arguments that she was prevented from visiting more because the Agency requested she move to the United States so it could better monitor her progress in services and that the Agency refused to provide referrals for services in San Bernardino. The Agency's request that she have services in the United States was made seven months before Ruby actually began participating in services in San Bernardino, and services were made available to her as soon as she moved there in March 2007. Ruby did not show she maintained regular visitation with the minor or that he would benefit more from continuing their relationship than from having a permanent adoptive home. The court did not err in determining the beneficial parent-child relationship exception did not apply.
IV. SIBLING RELATIONSHIP EXCEPTION
Ruby also contends the court erred by not applying the sibling relationship exception to adoption.
A. Applicable Legal Principles
Under section 366.26, subdivision (c)(1)(E), if the court finds the child will be adopted within a reasonable time, adoption must be ordered " 'unless the court finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child' because '[t]here would be substantial interference with a child's sibling relationship . . . .' (§ 366.26, subd. (c)(1)(E).)" (In re Daniel H. (2002) 99 Cal.App.4th 804, 811.) The purpose of this exception is to preserve long-standing sibling relationships that serve as "anchors for dependent children whose lives are in turmoil." (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) The sibling relationship exception contains "strong language creating a heavy burden for the party opposing adoption." (In re Daniel H., supra, at p. 813.) Factors for the court to consider under section 366.26, subdivision (c)(1)(E) include the nature and extent of the sibling relationship, whether the siblings were raised in the same home, whether they share a close bond and whether continued contact is in the child's best interests, as compared to the benefits of adoption. (§ 366.26, subd. (c)(1)(E).) The court considers the best interests of the adoptive child, not the best interests of other siblings. (In re Daniel H., supra, 99 Cal.App.4th at p. 813.)
B. Analysis
The court did not err by finding the sibling relationship exception did not apply. Ruby testified that the minor had seen his new baby sibling about five times. Even assuming this to be true, no evidence was presented about the visits or whether the minor interacted with the baby. There was no evidence presented about a relationship between these two siblings. Ruby has not shown error.
DISPOSITION
The orders are affirmed.
WE CONCUR: BENKE, Acting P.J., HALLER, J.