Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 6045, 6046, 6047, 6048, 6049
HULL, J.
G.R., mother of the minors, appeals from orders of the juvenile court denying her petition for modification and terminating parental rights as to two of her five children. (Welf. & Inst. Code, §§ 366.26, 388, 395; further undesignated statutory references are to the Welfare and Institutions Code.) Appellant contends the juvenile court abused its discretion in denying her petition for modification as to the three older minors and erred in failing to find that the sibling exception to preference for adoption applied to this case. We affirm the orders of the juvenile court.
Facts and Proceedings
The Department of Social Services (DSS) placed the five minors, J., age 15; O., age 13; B., age 9; P., age 4 and R., age 2, in protective custody in April 2007 as a result of appellant’s ongoing substance abuse, failure to complete substance abuse treatment and arrest for possession of drug paraphernalia. Four years earlier, the minors were detained due to appellant’s arrest and adjudged dependents. Appellant was sentenced to state prison for drug possession but reunified with the minors in 2004 and received family maintenance services until March 2005.
In September 2006, DSS investigated reports that appellant was using methamphetamine and found she was participating in a drug court program in Nevada. Appellant denied substance abuse when questioned but tested positive for methamphetamine shortly thereafter. Appellant was charged with various drug-related charges in Nevada a few months before the 2006 investigation, had outstanding warrants from Nevada at the time of the current removal and was pending sentencing for drug possession.
After removal, the two youngest minors tested positive for exposure to methamphetamine. DSS initially recommended the court deny services to appellant due to her history of substance abuse, relapses and failure to participate in court-ordered treatment. However, at the court’s request, DSS developed a reunification plan, which the court adopted in July 2007.
Appellant participated in some of the plan services but had ongoing violations of visitation rules, talking about the case and her health problems and thereby upsetting the older minors, particularly J. who felt he needed to go home and take care of her. Appellant also had several positive tests during the reunification period. At the contested 12-month review hearing in May 2008, the court terminated services and set a selection and implementation hearing.
The reports for the selection and implementation hearing stated that R. and P. were likely to be adopted by the current caregiver who then had all five minors in her home. Because J., O. and B. were not likely to be adopted, DSS recommended permanent plans of long-term foster care for J. and O. and guardianship for B. with the current caregiver.
In September 2008, appellant filed a petition for modification seeking to reinstate services based upon her ongoing participation in services and negative drug tests. Numerous documents were attached to the petition in support of the modification.
An addendum report conceded that appellant had made a concerted effort in the last four months to complete services and remain clean and sober but questioned the soundness of her judgment and whether she had benefitted from the services. The addendum also noted that the three older minors showed an increase in negative and defiant behavior as the selection and implementation hearing approached. Due to the increased turmoil, J. and O. were moved to one respite foster home and B. was moved to another. Without the older minors, P. and R. experienced greater stability and had begun to thrive. A CASA report for P. and R. stated they interacted well with the foster mother and were happier without their siblings in the home because the siblings fought among themselves all the time.
At the combined hearing on the petition for modification and to select and implement a permanent plan for the minors, appellant testified she regularly attended a 12-step program and had continuously tested clean since February 2008. Since her services were terminated, she made arrangements on her own to continue the various programs, which were part of the reunification plan. Appellant further testified she had made enough progress in her 12-step program that she was able to assist others.
The court, relying in part on factors for assessing a petition for modification discussed in In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, found appellant’s substance abuse problem had not been resolved and the minors would not be safe in her care. The court denied the petition for modification.
The court then proceeded to the selection and implementation hearing. Appellant presented no evidence and did not argue any exception to the preference for adoption applied to the two youngest minors. Minors’ counsel addressed the placement preferences expressed by the three older minors. The court found P. and R. were likely to be adopted and terminated parental rights as to them. The court further found J., O. and B. were not likely to be adopted and selected a permanent plan of long-term foster care for them.
Discussion
I
Petition for Modification
Appellant contends the court abused its discretion in failing to grant her petition for modification as to the three older children because their permanent plan was long-term foster care and continuing services for her would not delay their permanency.
A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances.
Section 388 provides, in part: “(a) Any parent... 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 the court previously made or to terminate the jurisdiction of the court.... [¶] (d) If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, termination of jurisdiction, or clear and convincing evidence supports revocation or termination of court-ordered reunification services, the court shall order that a hearing be held....”
“The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is preponderance of the evidence. [Citation.]” (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parent’s interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The juvenile court may consider various factors to determine what is in the child’s best interest including “(1) the seriousness of the problems which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.)
In this case, appellant’s unresolved substance abuse was an extremely serious problem. She had been addicted to methamphetamine for many years and was provided extensive services to address her substance abuse in both California and Nevada. She was even successful in reunifying with the minors for a time. Despite this, she returned to substance abuse and illegal drug-related activity. It was clear from appellant’s history that her substance abuse problem could not easily be ameliorated and was subject to recur when she was not in a structured program with solid external support. Appellant’s current sobriety was commendable, but, at seven months, was of relatively short duration to demonstrate the long-term commitment to a drug-free life that was necessary to provide the safety and stability the minors required. The older minors did have a bond to appellant, although it was partly due to feelings of responsibility for appellant’s well-being.
Even were we to assume appellant had shown a change of circumstances, she did not establish that the proposed change of the juvenile court’s order was in the minors’ best interests. No abuse of discretion in denying the petition for modification appears.
II
Termination of Parental Rights
Relying on section 366.26, subdivision (c)(1)(B)(v), appellant contends termination of her parental rights was erroneous because it would substantially interfere with the siblings’ relationship.
With the exception of limited circumstances set forth in section 366.26, subdivision (c)(1)(B), if the juvenile court finds a child is likely to be adopted it must terminate parental rights. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) Appellant now asserts the existence of an exception under which termination of parental rights would be detrimental because there would be substantial interference with a child’s sibling relationship. (§ 366.26, subd. (c)(1)(B)(v).) However, appellant had the burden of establishing the existence of any circumstances constituting an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(e)(3); Evid. Code, § 500.) Appellant did not, through evidence or argument, bring this exception to the attention of the juvenile court and may not assert it for the first time on appeal. (In re Daisy D. (2006) 144 Cal.App.4th 287, 292.)
In an attempt to avoid forfeiture of the issue, appellant points to statements by minors’ counsel and the court during the discussion of the placement of the three older minors and their wishes. Such statements could not have apprised the juvenile court of the need to consider or rule on an exception to the preference for adoption in the case of P. and R.
Even if they could be so construed, appellant cannot prevail. The statements upon which she relies do not mention either of the two younger children or their bonds to the other siblings, only the wishes of the three older children with regard to placement. In applying the sibling exception, the juvenile court must consider the interests of the adoptive child, not the siblings in determining whether termination would be detrimental to the adoptive child. (In re Daniel H. (2002) 99 Cal.App.4th 804, 812; In re Celine R. (2003) 31 Cal.4th 45, 49-50.) Nothing in the record indicates that either of the two adoptive children had any significant bond to the older siblings, only that they were happier in the foster home without them.
Disposition
The orders of the juvenile court are affirmed.
We concur: RAYE, Acting P. J., ROBIE, J.