Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Hideo Chino, Commissioner., Super. Ct. No. J516030C.
O'ROURKE, J.
Shawn E. appeals the judgment terminating his parental rights over his daughter, R.E. He contends the juvenile court abused its discretion by summarily denying his Welfare and Institutions Code section 388 modification petition and erred by declining to apply the beneficial relationship (§ 366.26, subd. (c)(1)(A)) and sibling relationship (§ 366.26, subd. (c)(1)(E )) exceptions to termination. We affirm.
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND
In October 2005, when R.E. was eight months old, the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions because her mother, Paulette A., physically abused her, and drank alcohol and used marijuana to excess, and Shawn failed and was unable to protect her. R.E. was detained in Polinsky Children's Center (Polinsky), and then placed in a foster home In June 2006 she was moved to another foster home.
At the July 31, 2006 six-month review hearing, the court terminated reunification services and set a section 366.26 hearing for November 29. Around early October, R.E. began a transition into the home of a maternal relative, who wished to adopt her. On November 29, 2006, the court ordered that any section 388 petitions be filed by January 12, 2007, and set a contested section 366.26 hearing for February 7. On January 12 the court extended the date for filing section 388 petitions to January 19. On January 30 Shawn filed his section 388 petition. On February 7 the court summarily denied Shawn's petition and terminated parental rights
SUMMARY DENIAL OF THE SECTION 388 PETITION
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent's request. [Citation.] [¶] However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The 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." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
Shawn's section 388 petition sought modification of the July 31, 2006, order terminating reunification services and setting the section 366.26 hearing. It asked that R.E. be placed with him, or that services be reinstated to transition her into his care. As changed circumstances, the petition alleged that Shawn had participated in individual counseling, completed a psychological evaluation on January 12, 2007, and completed a parenting program on January 9. The petition alleged that the requested changes would be in R.E.'s best interests because she would be raised by her biological father, his visits with her were loving and appropriate, and she appeared bonded to him.
There is no information in the record about the parenting program.
In denying an evidentiary hearing on the petition, the juvenile court noted that for six months, Shawn did not visit R.E. or have much contact with her; after services were terminated, he realized that Paulette was not going to reunify and it was likely that R.E. would be placed for adoption, and he began participating in services late in the case. In the meantime, R.E. developed a relationship with her caretakers. The court concluded that circumstances were changing, but had not changed. It did not abuse its discretion by determining that Shawn had failed to make a prima facie showing that circumstances had changed in the six months since it terminated reunification services.
The letter from Shawn's therapist, attached to his petition, stated that Shawn started therapy on November 1, 2006, had attended five weekly sessions, and needed "at least 20 more sessions." The therapist believed that Shawn had "made some progress in therapy," but "need[ed] to discuss further in therapy potential issues regarding risk to his children and to gain insight into how his past behavior has put the children at risk . . . ." The therapist was unable "to assess his current level of parenting skills" or to say "whether . . . he could safely parent his children," although his prognosis was positive and it would be "worthwhile to allow him to continue in therapy and to receive other services to give him an opportunity to realize that potential."
R.E.'s siblings S.E. and J.L. are discussed below in conjunction with Shawn's sibling relationship contention.
The psychological evaluation cited in Shawn's petition mentioned his "criminal history including a DUI, charges of vandalism and domestic violence," but stated that he had "apparently turned his life around." Shawn expressed regret for "the problems [R.E. was] facing" and showed appropriate concern, but told the evaluator that he was not in the house when Paulette injured R.E. and emphasized that Paulette was responsible for the Agency's involvement in R.E.'s life. The evaluator concluded "[s]ince there are no frank psychological factors of a clinical nature in [Shawn's] profile and clinical interview[,] the prognosis of his reunification plan likely rests on the strength of his commitment to his children."
Both the letter from the therapist and the psychological evaluation demonstrate that Shawn's circumstances were changing, not changed. He had barely started therapy and had a long way to go. The "at least 20 more sessions" the therapist recommended would cover some five months, assuming there were no more missed sessions. The qualifying language in the psychological evaluation is notable — that Shawn had "apparently" turned his life around and the reunification "likely" depended on how committed he was to R.E. It is also telling that Shawn expressed no responsibility for his failure to protect R.E. from Paulette. Despite a history of domestic violence, the section 388 petition said nothing about completion of a domestic violence program.
At the time of the hearing, the 18-month date was just two months away.
Nor did Shawn make a prima facie showing that it would be in R.E.'s best interests to be placed with him, or for services to be reinstated for her transition into his care. Neither his therapist nor the evaluator said anything about R.E.'s best interests. The petition's allegation that the requested changes would be in R.E.'s best interests because he is "her biological father" is insufficient. "The presumption favoring natural parents by itself does not satisfy the best interests prong of section 388." (In re Justice P. (2004) 123 Cal.App.4th 181, 192.) Shawn's allegations that he was loving and appropriate during visits and R.E. appeared bonded to him are likewise insufficient in light of the above factors. "A petition which 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 Casey D. (1999) 70 Cal.App.4th 38, 47.)
Finally, Shawn contends the court deprived him of due process. He reasons that the court imposed an impermissibly high burden of proof by not allowing an evidentiary hearing when he showed changed circumstances. We need not discuss this contention, as Shawn's premise is incorrect — he did not show changed circumstances.
The court did not abuse its discretion by summarily denying the section 388 petition.
THE BENEFICIAL RELATIONSHIP EXCEPTION
Section 366.26, subdivision (c)(1) requires termination of parental rights upon clear and convincing evidence of adoptability, but 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." (§ 366.26, subd. (c)(1)(A).) 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.) "[T]he 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." (Ibid.) The existence of a beneficial relationship is determined, in part, 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 that substantial evidence supports the finding that Shawn failed to meet his burden of showing regular visitation and contact and a beneficial relationship. (In re Autumn H., supra, 27 Cal.App.4th at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
The court stated: "Visitations lately for [Shawn] have been regular, but they have not be[en] historically. Regardless of the form or degree of contact the relationship is not a parental one which the child would not benefit from such continued relationship given the history of the case." The court also described the relationship as "budding."
Shawn did not see R.E. at all for approximately two months before the dependency petition was filed. In the year following the filing, he had no more than two visits with her. Beginning October 31, he visited her 17 times, for one hour per week. He missed three visits: one because he had the flu, one because there was a misunderstanding about the time, and the third for reasons the social worker did not know. Shawn never progressed to unsupervised visitation.
Shawn was appropriate, gentle, and affectionate during visits. He fed, instructed, and played with R.E. She seemed comfortable with him. She laughed and initiated frequent physical contact. At the beginning of one visit, she walked up to him and hugged him. She cried when visits ended on only two occasions.
By the time of the section 366.26 hearing, R.E. was two years old. She had not been in Shawn's care for at least one year, five months. Due to the long lapse in contact, R.E. did not have a significant bond with Shawn. The social worker believed R.E.'s relationship with Shawn was not beneficial and did not outweigh the benefits of adoption.
On the other hand, R.E. was very bonded to her relative caretaker who wished to adopt her. When he entered the room, she ran to him and hugged him. She fussed if he tried to hand her to someone else. When he left, she cried. She called him "dad" and called his wife "mom."
The juvenile court did not err by failing to apply section 366.26, subdivision (c)(1)(A).
THE SIBLING RELATIONSHIP EXCEPTION
Another exception to termination of parental rights exists 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." (§ 366.26, subd. (c)(1)(E).) The juvenile court is "to balance the benefit of the child's relationship with . . . her siblings against the benefit to the child of gaining a permanent home by adoption in the same manner the court balances the benefit of the child's continued relationship with the parent against the benefit to the child of gaining a permanent home by adoption when considering the section 366.26, subdivision (c)(1)(A) exception. The 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." (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951, citing In re Autumn H., supra, 27 Cal.App.4th 567, 575.) "To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child." (In re L. Y. L., supra, 101 Cal.App.4th at p. 952.)
Examining the evidence in the light most favorable to the judgment, we conclude that substantial evidence supports the conclusion the sibling relationship exception did not apply. (In re L. Y. L., supra, 101 Cal.App.4th at pp. 947, 953.) When R.E. was born, S.E. was two years old and J.L. was six years old. When R.E. was eight months old, all three children were detained in Polinsky. After fewer than three weeks, S.E. and J.L. were moved to a foster home, and R.E. did not live with them again. They had visits, but R.E. did not play with her siblings or say their names. The social worker stated: "While [R.E.] does not demonstrate a significant bond to her siblings at this time . . . the sibling relationship . . . will gain significance to [her] as she grows older. For that reason, the contacts between [R.E.] and her siblings are very important and should continue to take place." This statement does not demonstrate that R.E. would benefit more from continued sibling contact than from a permanent adoptive home. Moreover, there is nothing else in the record showing that the benefit from continued contact outweighed the benefit from a permanent adoptive home, even if termination of parental rights resulted in a substantial interference with the sibling relationship. (In re L. Y. L., supra, 101 Cal.App.4th at p. 953.) The juvenile court did not err by failing to apply section 366.26, subdivision (c)(1)(E).
DISPOSITION
Judgment affirmed.
WE CONCUR: NARES, Acting P. J., McDONALD, J.
The petition also alleged that Shawn successfully completed the Substance Abuse Recovery Management System program (SARMS). He was ordered into SARMS on January 4, 2006, and was discharged from SARMS on May 31 because he had completed the program. Because this occurred before the six-month review hearing order which he sought to modify, it does not qualify as a change of circumstances.