Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County, Ct. No. CK55594, Debra Losnick, Commissioner.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant E.H.
Andre F.F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant L.M.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Frank J. Da Vanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.
EPSTEIN, P. J.
Father E.H. and mother L.M. appeal from the order terminating their parental rights to their son. Mother also challenges the juvenile court’s denial of her petition for modification. We find no error and affirm the orders.
FACTUAL AND PROCEDURAL SUMMARY
M.H. was born in November 2005 with drug withdrawal symptoms and a positive toxicology screen for amphetamine. Mother tested positive for methamphetamine and marijuana at the time of his birth. M.H. was detained and a Welfare and Institutions Code section 300 petition was filed on his behalf. Mother and father submitted on an amended petition alleging the child’s positive toxicology, mother’s history of substance abuse, mother’s older child receiving permanent placement services under a legal guardianship, and father’s convictions for driving under the influence of alcohol. M.H. was adjudicated a dependent on January 31, 2006 and placed in foster care. The court ordered family reunification services for father, but not for mother, based on her failure to resolve her chronic drug use and her failure to reunify with her older child. (§ 361.5, subd. (b)(10), (13).)
All statutory references are to the Welfare and Institutions Code.
Father tested positive for drugs and failed to comply with his reunification plan. His reunification services were terminated in September 2006. A section 366.26 permanency planning hearing was set for January 2007, and continued numerous times. The Department of Children and Family Services (DCFS) recommended that parental rights be terminated and adoption selected as a permanent plan for M.H.
Mother and father had a baby girl, M.D.H., in October 2006. She was born with a positive toxicology screen for marijuana and amphetamine. She was detained and a section 300 petition was filed on her behalf, alleging mother’s drug use and failure to reunify with the baby’s siblings.
Mother was arrested in early January 2007 for driving without a license and failing to comply with a court order for community service. She was released in early February. On February 23, 2007, mother filed a section 388 request for a change of court order, based on her enrollment in a treatment program and her acceptance of responsibility for putting her children in harm’s way. The court summarily denied the petition for lack of supporting documentation.
Mother filed another section 388 petition on March 22, 2007, asking the court to reinstate reunification services as to M.H. and to take the section 366.26 hearing off calendar. She attached letters from her counselor verifying her enrollment and continued participation in an outpatient program at the Tarzana Treatment Center. According to the progress letter, mother had been fully compliant in all aspects of the program, which included five group therapy sessions per week, individual counseling sessions, random drug testing, and participation in 12-step programs. The court set a hearing on the petition.
The March 28, 2007 social worker’s report stated that on March 12, 2007, mother and father had been arrested by the Cypress Police Department and charged with possession of drug paraphernalia and giving false identification to a police officer. Father was transported to Orange County jail for outstanding warrants; mother was cited and released. (The case against mother was eventually dismissed.) The report also indicated the two children were in the same foster home, but that these foster parents would not adopt.
An April 12, 2007 report stated that father had been deported to Mexico. Mother faced charges of resisting arrest and possession of drug paraphernalia. As of May 4, 2007, the children had been matched with a new prospective adoptive family. DCFS continued to recommend that parental rights over M.H. be terminated, that M.D.H. be adjudicated a dependent child, and that the parents receive no reunification services as to her.
On May 4, 2007, the court sustained the section 300 petition as to M.D.H. based on stipulated amended allegations. After hearing evidence regarding mother’s participation and progress in her treatment program and her negative drug tests, the court granted reunification services to mother and father as to M.D.H. The court continued the hearing on mother’s section 388 petition as to M.H.
The section 388 petition was heard in June 2007. Mother testified that she attended six hours of classes at the Tarzana Treatment Center each day, six days per week. These classes addressed parenting, family education, addiction, relapse prevention, and recovery issues. She was testing for drugs on a daily basis, and all tests were negative. She visited consistently with M.H. except during the period she was in jail. She said she had learned a lot about how to better discipline M.H. during her visits. She taught him to ask for things, and she saw herself as a parental figure for him. The court acknowledged that there was no evidence that the mother and child did not have a good relationship. Mother testified that if M.H. were returned to her care, she hoped to move to Sacramento with him because she had relatives there who could help with his care. She planned to obtain a job, and had savings which would allow her to support M.H. She stated she was no longer with father as a couple, although she rode with him to visit the children.
The social worker testified that she had telephoned mother a few days before the hearing at the number mother provided. Father answered the phone and called to mother, who then spoke with the worker.
The court expressed concern about mother’s veracity regarding her involvement with father, and found that mother’s circumstances were changing, but had not changed. The court also found granting the petition was not in the child’s best interests. The court denied the section 388 petition and set M.H.’s case for a contested section 366.26 hearing on July 17, 2007.
The permanency planning hearing for M.H. was continued from July to August, and finally to October 31, 2007. The review hearing for M.D.H. was continued to the same date. The October 11, 2007 DCFS report indicated that mother was six months pregnant and had identified father as the father. Mother continued to have negative drug tests and she visited the children regularly. She was actively participating in her recovery program and was making efforts to change her life to maintain a drug-free lifestyle after completion of her program. Father was serving 180 days on the burglary charge, and was scheduled to be deported after his release. The children were placed in a prospective adoptive home, and the foster parents were willing to adopt and had an approved adoption homestudy.
Mother filed another section 388 petition on the date of the hearing, requesting further reunification services with M.H. The changed circumstances she cited were her completion of a nine-month outpatient program at Tarzana Treatment Center with no positive drug tests and classes addressing parenting and relapse prevention. She also noted she had obtained stable housing. She claimed the change of order would be in M.H.’s best interest because she has a strong bond with him; she “has straightened her life out” and completed court-ordered programs; and M.H. has a younger sister with whom mother is likely to reunify, and it would be in his interest to remain with his sibling. The court denied the petition as untimely because the case had been continued to that date for a contested permanency planning hearing.
The court proceeded to the section 366.26 hearing. Mother argued parental rights should not be terminated based on the very strong bond between her and the child. Father’s attorney requested a continuance of the section 366.26 hearing, “at least until [M.D.H.’s] case is right for a .26.” He argued against termination of parental rights based on the relationship exception and the sibling exception. The court denied the continuance. After hearing argument from all parties, the court found none of the statutory exceptions applied, and terminated parental rights as to M.H. The court then terminated reunification services for M.D.H. Mother and father filed timely appeals.
DISCUSSION
I
Father claims there was insufficient evidence to support the court’s ruling that the sibling relationship exception did not apply. Section 366.26, former subdivision (c)(1)(E) provides an exception to the selection of termination of parental rights as a permanent plan if “[t]here would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.”
Effective January 1, 2008, section 366.26, subdivision (c)(1) was amended and renumbered. (Stats. 2006, ch. 838, § 52.) Subdivision (c)(1)(E) is now subdivision (c)(1)(B)(v). Because the proceedings at issue occurred before the statutory change, we refer to the earlier version of the statute.
When considering the sibling relationship exception, the concern is the best interests of the child being considered for adoption, not the interests of that child’s sibling. (In re Hector A. (2005) 125 Cal.App.4th 783, 791.) The court may reject adoption under the sibling relationship exception “only if it finds adoption would be detrimental to the child whose welfare is being considered.” (In re Celine R. (2003) 31 Cal.4th 45, 49-50.)
At the time of the hearing, M.H. was two years old. His sister M.D.H. was one year old. M.H. had been in foster care his entire life, and his sister had been placed in the same foster home with him for her entire life. The issue here is not whether the children would be placed in separate adoptive homes, or whether one was adoptable while the other was not. The children were living together in a prospective adoptive home, and the prospective adoptive parents were willing to provide a permanent home for both children.
Father’s argument for the sibling exception is premised on the possibility that M.D.H. would reunify with mother. That possibility is not enough to delay permanency for M.H. There was no evidence of the extent of the sibling bond between the children, nor was there evidence that the prospective adoptive parents would not permit ongoing contact, should M.D.H. reunify with mother. Most importantly, there was no evidence that delaying legal permanence for M.H. was in his best interests. His permanency planning hearing already had been continued from early July until the last day of October. After two full years in foster care, M.H. was entitled to a permanent, stable home without having to wait for his sister’s case to be concluded. The court was within its discretion in finding the sibling exception did not apply, and in refusing to continue the matter until M.D.H.’s status had been resolved.
The court terminated reunification services as to M.D.H. at the same hearing, rendering it less likely that the siblings would be separated by terminating parental rights and selecting adoption as a permanent plan for M.H.
II
Mother claims the court abused its discretion in summarily denying her section 388 petition as to M.H. without a hearing. She argues that she had just completed her treatment program on October 19, 2007 which established a change of circumstance. In addition, she asserts the petition was timely, given the recent completion of the program. A petition to modify may be brought at any time before the termination of parental rights. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) But the petition still must show that a hearing would promote the best interests of the child, as required under section 388. Mother’s petition did little more than reassert the same claims that had been considered at the June 20, 2007 hearing on her previous section 388 petition.
At the June hearing, mother testified about her extensive participation in treatment at the Tarzana Treatment Center. The court credited that evidence, yet found no basis to reinstate reunification services. The changed circumstance she asserted in the October 31 petition was that she had completed the program and had stable housing. But M.H. had been in the dependency system for his entire two years of life, his relationship with mother had not progressed beyond monitored visits, and his permanency planning hearing had been continued numerous times. We already have rejected the claim that M.H.’s case should have been delayed to await the possibility that his sister would reunify with mother. The petition failed to establish that M.H.’s best interests “may be promoted” by extending his lack of permanence by granting mother’s request for reinstatement of reunification services. The court thus was not required to order a hearing on the petition. We find no abuse of discretion in the court’s denial of the section 388 petition without a hearing.
III
Mother claims there was insufficient evidence supporting the court’s ruling that the section 366.26, former subdivision (c)(1)(A) exception to termination of parental rights did not apply. Under that exception, parental rights shall not be terminated if the court finds that “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
This exception is now found at subdivision (c)(1)(B)(i) of section 366.26.
Although mother visited consistently with M.H., there was virtually no evidence establishing a benefit to him from continuing the relationship. At the June hearing on mother’s earlier section 388 petition, the social worker testified that she had observed two of mother’s visits with the children. At the first visit, M.H. was shy with mother and did not appear to be bonded to his parents. At the second visit, M.H. cried and the worker had to ask his foster father to stay with him.
Mother had testified at the June hearing about the parenting skills she had learned. Asked about her capacity to form a parent-child relationship with M.H., she said she would “[b]ecause I know what I can feel what my son needs. I can feel his needs and stuff, and I could be there and support him through what he’s going through or whatever he’s going through. No one is going to love my child the way I am going to love him. I am the parent. These are people that they are just willing to adopt him . . . .” She testified that she viewed herself as a parental figure “[b]ecause that’s my child, and I know its needs.” She described her efforts to understand M.H. better, and to help him learn to talk. She said he likes her to read to him. No additional evidence regarding visits was presented at the October hearing.
We agree with the court’s comment at this June hearing that there was no evidence to suggest that mother and M.H. did not have a good relationship or did not enjoy their visits. But that falls short of establishing that it would be detrimental to the child if the relationship were terminated. On this record, we find no error in the court’s determination that the section 366.26, subdivision (c)(1)(A) exception to adoption does not apply.
DISPOSITION
The orders are affirmed.
We concur: MANELLA, J., SUZUKAWA, J.