Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment and an order of the Superior Court of San Diego County, No. NJ13353F, Michael Imhoff, Commissioner.
AARON, J.
H.M. and David H. appeal a judgment terminating their parental rights to their son, Kevin H., under Welfare and Institutions Code section 366.26. They also appeal an order denying H.M.'s petition to modify a prior placement order under section 388. We affirm.
Further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
H.M. is the mother of Kevin H., who was born in December 2007. She has five older children. In April 2006 the San Diego County Health and Human Services Agency (the Agency) removed the older children from the home after H.M.'s boyfriend, Gregorio M., touched H.M.'s 12-year-old daughter on her breast and vaginal areas, exposed his penis and asked her for oral sex. When H.M. learned of the incident, she slapped her daughter.
H.M. participated in treatment for nonprotecting parents of sexually abused children for 18 months. During treatment, H.M. asserted that she was living with David H. and that she was no longer in a relationship with Gregorio. The Agency received reports that David and Gregorio were the same person.
When Kevin was born, the Agency removed him and filed a petition alleging that he was at risk of sexual abuse. (§ 300, subd. (j).) During the first five months of Kevin's dependency proceedings, David and H.M. (parents) denied that David was Gregorio. In May 2008, the parents admitted that they had lied to the Agency and acknowledged David's true identity. The court placed Kevin in foster care and ordered a reunification plan for the parents.
David did not attend court-ordered treatment for sex offenders. The court terminated his reunification services at the six-month review hearing. Based on reports indicating that H.M. was doing well in therapy and that she and David were separated, the court continued H.M.'s services. However, the Agency learned that H.M. had not told her therapist or the social worker about her ongoing relationship with David. The court terminated H.M.'s reunification services at the 12-month review hearing and set a section 366.26 hearing to select and implement a permanent plan for Kevin.
H.M. petitioned the court to place Kevin with his maternal grandmother, Maria V., who lived in southern Mexico. (§ 388.) The court held the section 388 hearing and the section 366.26 hearing on August 6, 2009.
The social worker reported that H.M. had informed the Agency in August 2008 that Maria was interested in caring for Kevin. In December, the Agency contacted the Mexican social services agency after Maria requested that the Agency place Kevin in her care. Maria's home study was completed in April 2009. The home study was favorable.
The Mexican social services agency recommended that Kevin be placed with Maria. Maria received income from renting land, raising and selling pigs and goats, and grinding corn. Two of her children, ages 16 and 11, were living with her. Maria was also caring for a young grandchild while her 22-year-old daughter completed school in Mexico City. Maria had a crib, furniture and clothing ready for Kevin. The three-bedroom home did not have indoor plumbing. The family obtained water from a well.
Maria did not have a car or medical insurance. There was a medical clinic in the community that provided free medical care to low-income families. The clinic did not have a pediatrician. If anything were to happen to Maria, her 22-year-old daughter or another relative would care for Kevin. Maria had not seen H.M. for 16 years, but spoke with her by telephone every five or six months. She had never met any of H.M.'s children. Maria did not have a visa to enter the United States.
The Agency was opposed to placing Kevin with Maria. The social worker's primary concern was that Kevin did not know his grandmother. The social worker was also concerned that Maria would not be able to accommodate Kevin's needs because of her low income, her basic living conditions, and the lack of access to pediatric care in her community.
In its section 366.26 reports, the Agency stated that Kevin was in good health. Although he displayed stranger anxiety, he was happy and sociable around people he knew. Both David and H.M. had consistently maintained contact with Kevin throughout his dependency. They were loving, appropriate and affectionate with Kevin. Kevin responded well to his parents and they were able to engage him during visits. However, he had difficulty separating from his foster mother when she dropped him off for visits.
The foster parents wanted to adopt Kevin. They had initiated an adoptive home study. Kevin had lived with the foster parents for more than half his life. They were capable of meeting his needs.
Kevin's five siblings did not live with him. His foster parents had not facilitated sibling visitation, but they said they were committed to doing so in the future.
The social worker believed that neither David nor H.M. had a parental relationship with Kevin. Although Kevin enjoyed spending time with his parents, he had never been in their care.
The court denied H.M.'s section 388 petition and found that none of the exceptions to termination of parental rights applied. The court terminated David's and H.M.'s parental rights and freed Kevin for adoption.
DISCUSSION
I
Section 388 Petition for Relative Placement
David and H.M. contend that the court erred when it determined that placing Kevin with his grandmother would not be in his best interests and denied H.M.'s section 388 petition. They argue that the order contravenes the relative placement preference under section 361.3.
The Agency argues that the relative placement preference does not apply after reunification services have been terminated and the case has been referred to a section 366.26 hearing. (In re Sarah S. (1996) 43 Cal.App.4th 274, 285-286.) Citing opposing case law, the parents respond that the relative placement preference remains in effect until the child has been freed for adoption. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032; see § 366.26, subd. (k).) The Agency has forfeited this issue on appeal by failing to raise it in the trial court. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.)
Under section 388, a parent, interested person or the dependent child (generically, petitioner) may petition the court to change, modify or set aside a previous order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petitioner requesting the modification has the burden to show that there is a change of circumstances or new evidence, and that the proposed modification would be in the child's best interest. (Ibid.; Cal. Rules of Court, rule 5.570(e); In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.)
The "child's best interests" is a complex concept that requires the trial court to evaluate a number of factors. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531-532 (Kimberly F.).) These factors will vary according to each child's needs and circumstances. In any custody determination, a primary consideration in determining the child's best interests is the goal of assuring stability and continuity for the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317-319 (Stephanie M.), citing Burchard v. Garay (1986) 42 Cal.3d 531, 538, and fn. 6.)
The parents' contention that the court was required to place Kevin with Maria because she met the placement criteria under section 361.3 is without merit. By its own terms, section 361.3 does not create an evidentiary presumption that placement with a relative is in the child's best interests. (Stephanie M., supra, 7 Cal.4th at p. 320.) Rather, the California Supreme Court has held that "preferential consideration" means that " 'the relative seeking placement shall be the first placement to be considered and investigated.' " (Ibid., quoting § 361.3, subd. (c)(1).) "The court is not to presume that a child should be placed with a relative, but is to determine whether such a placement is appropriate, taking into account the suitability of the relative's home and the best interest of the child." (Stephanie M., supra, at p. 321; In re Luke L. (1996) 44 Cal.App.4th 670, 679-680.) Even if a relative meets all of the criteria under section 361.3, subdivision (a)(2) through (8), the court must still determine whether placement with that relative would be in the child's best interest, considering the totality of the child's circumstances and needs. (§ 361.5, subd. (a)(1); see Stephanie M., supra, at pp. 317-319, Kimberly F., supra, 56 Cal.App.4th at pp. 531-532.)
The court found that H.M. had shown a change in circumstances since the last placement order, but also concluded that it would not be in the best interests of the child to place him with his grandmother. (§ 388, subd. (a).) The court acknowledged that there was evidence to show that the grandmother would provide an appropriate home, and that the Mexican social service agency would provide adequate services to the child. The court explicitly stated that grandmother's means and living conditions, which the Mexican authorities had found to be sufficient but which troubled the Agency, did not disqualify the grandmother's home as a possible placement for Kevin. However, the court was very concerned about the fact that Maria had never met Kevin, and that they were strangers to each other. Kevin had had a difficult transition from the first foster home to his current foster home, and did not appear to tolerate change well. The court also considered the length of time that Kevin had been with his current foster parents and Kevin's significant attachment to them. The court concluded that changing Kevin's placement from a familiar environment to one that was completely unknown to him would adversely affect his emotional well-being.
The parents criticize the social worker's conclusions that the grandmother's home was not suitable for Kevin because of her relative poverty, and because the nearest hospital was a half hour away. While those criticisms may not be without merit, appellants should focus on the court's findings and orders, not the social worker's conclusions.
This determination was committed to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Michael B. (1992) 8 Cal.App.4th 1698.)
We conclude that the court did not abuse its discretion. The court placed the most weight on the fact that the grandmother had had no contact with Kevin. Maria had made no effort to establish a relationship with Kevin or with her other grandchildren in San Diego. She did not visit, write or call. Kevin lacked any kind of bond to the grandmother. Conversely, Kevin had a strong primary bond with his foster parents, who were willing to adopt him. The court could reasonably have concluded that a transition to another home would be emotionally traumatic to Kevin and might affect his ability to form a lasting, trusting bond to a caregiver. "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." (Burchard v. Garay, supra, 42 Cal.3d 531 at p. 538, fn. omitted.)
"[T]he fundamental duty of the juvenile court is to 'assure the best interest of the child.' " (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 865, quoting Stephanie M., supra, 7 Cal.4th at p. 321.) The record shows that the court exercised its sound discretion to determine Kevin's best interests within the parameters of the applicable statutory framework.
II
Termination of Parental Rights
At a permanency plan hearing under section 366.26, the court may order one of three alternatives: adoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If the dependent child is adoptable, there is a strong preference for adoption over alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.) If the court determines that the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1)(B). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) Of these exceptions, the beneficial parent-child relationship exception and the sibling relationship exception are at issue here. (§ 366.26, subd. (c)(1)(B)(i) and (v).)
We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If there is substantial evidence supporting the court's ruling, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c). (Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.); In re S.B. (2008) 164 Cal.App.4th 289, 298.)
A. The beneficial parent-child relationship exception
David and H.M. argue that termination of parental rights would be detrimental to Kevin because they had a beneficial relationship with Kevin. (§ 366.26, subd. (c)(1)(B)(i).) They contend that they parented their son to the fullest extent possible through consistent and regular visitation, and that the Agency's focus on their inability to meet Kevin's day-to-day needs was misplaced.
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." "Benefit from continuing the relationship" means "the [parent-child] relationship 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., supra, 27 Cal.App.4th at p. 575.) It does not require proof that the child has a "primary attachment" to a parent or that the parent maintained day-to-day contact with the child. (In re S.B., supra, 164 Cal.App.4th at p. 300; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534-1538; In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
Where the parent has continued to regularly visit and contact the child, and the child has maintained or developed a significant, positive, emotional attachment to the parent, then "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." (Autumn H., supra, 27 Cal.App.4th at p. 575 .)
The court found that David and H.M. regularly and consistently visited and contacted Kevin. The visits were described as appropriate, affectionate and engaging, and Kevin responded well to the parents' attention. The court noted that Kevin did not exhibit any anxiety when he left his parents to return to the home of the foster parents, and determined that any benefit that Kevin may derive from continued contact with his parents was greatly outweighed by his need for the stability and permanency that would be achieved through adoption.
There is substantial evidence in the record to support the court's findings. While David and H.M. had loving relationships with Kevin, they failed to demonstrate that they had established a beneficial parental relationship with him. David refused to participate in treatment for sexual offenders. Despite years of treatment services, H.M. was not willing or able to focus on Kevin's needs, and instead, placed greater importance on maintaining her relationship with David. While the parents loved Kevin, they did not demonstrate the type of devoted commitment to him, and the willingness to sacrifice their own interests, that typically characterize a beneficial parent-child relationship. (In re S.B., supra, 164 Cal.App.4th at p. 300.)
The record also supports the reasonable inference that Kevin would derive substantial benefit from adoption. Kevin was flourishing in a stable home with committed, competent and attentive caregivers. By the time of the section 366.26 hearing, 19-month old Kevin had lived in the caregivers' home for 10 months. The fact that Kevin displayed a significant attachment to his caregivers supports the finding that he would not be greatly harmed by termination of parental rights. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
B. The sibling relationship exception
David and H.M. contend the Agency ignored court orders for sibling visitation, and thereby deprived Kevin of the opportunity to form lasting relationships with his five older siblings. The parents argue that as a matter of justice and fair play, this court should reverse the finding that the sibling relationship exception under section 366.26, subdivision (c)(1)(B)(v) did not apply, and remand this case to the trial court with directions to enforce its orders for sibling visitation before conducting a new section 366.26 hearing.
The Agency acknowledges that the court ordered sibling visitation, and that, despite the order, no visitation occurred. The Agency contends that the parents have forfeited the right to seek review of this issue because they did not raise the lack of sibling visitation in the trial court, and did not argue that the sibling relationship applied. The Agency argues that equity favors Kevin, who is entitled to the permanency and stability of an adoptive placement.
While we do not condone the failure to implement the court's orders for sibling visitation, we must conclude that the parents have forfeited this issue on appeal. "A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.] Forfeiture, also referred to as 'waiver,' applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.)
This court has previously held that the application of the sibling relationship exception to termination of parental rights will be rare, "particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014, citing In re L.Y.L. (2002) 101 Cal.App.4th 942, 950.) On this record, in view of Kevin's needs for permanency and the fact that he had never lived with his siblings, David and H.M. cannot show that there was a reasonable probability that they would have achieved a more favorable result if the Agency had facilitated court-ordered sibling visitation. (People v. Watson (1956) 46 Cal.2d 818, 836; see Cal. Const. art. 6, § 13.) We use the term "facilitate" because the record does not indicate whether the siblings' father, who had custody of the siblings, was willing to cooperate with the court's order, which was not binding on a nonparty.
DISPOSITION
The orders are affirmed.
WE CONCUR: NARES, Acting P. J., HALLER, J.