Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of San Diego County No. J517053A-B, Cynthia Bashant, Judge.
McDONALD, Acting P.J.
Sierra A. and P.A. (together the parents) appeal the judgment terminating their parental rights to their son S.A. and their daughter N.A. (together the children). Sierra contends the juvenile court abused its discretion by denying her Welfare and Institutions Code section 388 petition and erred by not applying the beneficial relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)). P.A. contends the San Diego County Health and Human Services Agency (the Agency) did not give proper notice of the section 366.26 hearing to five of the children's half siblings (the siblings) and the adoption assessment contained insufficient evidence concerning the children's relationships with the siblings. The parents contend the court erred by limiting their visitation with the children and join in each other's contentions. We affirm.
All statutory references are to the Welfare and Institutions Code.
I.
BACKGROUND
In April 2008 the Agency filed a dependency petition for eight-month-old S.A. The case was based on P.A.'s physical and sexual abuse of another child in the household, Sierra's teenaged half sister J.R., and P.A.'s physical abuse of one of the siblings, his 12-year-old daughter PJ. S.A. was detained out of the home. In October the court entered true findings and ordered S.A. placed in foster care, with reunification services for Sierra and no services for P.A.
N.A. was born in August 2008. In September the Agency filed a petition for her based on P.A.'s abuse of J.R. and PJ. The court ordered N.A. detained, but the parents concealed her whereabouts, and she was not taken into custody until February 2009. In October the court entered true findings in N.A.'s case, ordered her placed in foster care and denied the parents reunification services. At the same time, the court terminated Sierra's services in S.A.'s case and set a section 366.26 hearing for the children. The court ordered no contact between the parents and the children, pending further order, except in a therapeutic setting.
The section 366.26 hearing began in August 2010. Sierra filed her section 388 modification petition in September. The court denied the petition in October after an evidentiary hearing. In December the court selected permanent plans of adoption and terminated parental rights.
II.
SIERRA'S SECTION 388 PETITION
Section 388 allows the juvenile court to modify an order if a parent proves, by a preponderance of the evidence, that changed circumstances exist and the proposed modification would promote the children's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) We review the denial of a section 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
Sierra's section 388 petition asked the court to vacate the October 2009 order setting the section 366.26 hearing, allow Sierra visitation and reunification services, and order the Agency to evaluate for placement the homes of relatives and a nonrelative extended family member. As changed circumstances, the petition alleged: Sierra was attending a parenting skills program, maintaining stable housing and employment and living apart from P.A.; no charges had been filed following alleged violence between the parents in July 2009; there had been no conflicts between the parents in more than 14 months; and a relative and a nonrelative extended family member had requested placement consideration. The petition alleged the proposed modifications were in the children's best interests because they would benefit from being raised by Sierra and knowing their heritage and extended family, visits would allow Sierra and the children to reestablish their close relationship and, in the event of termination of parental rights, a farewell visit would permit photographs that would be important to the children later.
Sierra filed her petition in N.A.'s case only, but also made arguments concerning S.A. We construe the petition as applying to both children.
The juvenile court did not abuse its discretion by finding that Sierra had not met her burden of showing that circumstances had changed and the modifications were in the children's best interests. Sierra's participation in a parenting program was not a change of circumstance; she had completed a parenting program in 2008. Sierra testified she did not live with P.A., but her modification petition, which she had signed under penalty of perjury, listed P.A.'s address as her own. Sierra had reported to the police and the social worker that P.A. had bumped or shoved her in July 2009, and had testified in October 2009 that he had "chest-butted" her. At the section 388 hearing, however, Sierra testified P.A. had never been violent with her. Sierra continued to believe there was no basis for the true findings.
The nonrelative extended family member believed Sierra and P.A. were good parents and the allegations underlying the dependencies were false. She had never met S.A. and had not seen N.A. since N.A. was two or three weeks old. The only relative mentioned in Sierra's modification petition had not requested placement consideration until May 2010, after the children had been in their prospective adoptive home for more than four months. The relative had never met the children.
Sierra had given the Agency the names of other relatives, but did not respond to the Agency's requests for the addresses or telephone numbers of those relatives.
The case was past the reunification phase. The focus was on the children's need for permanency and stability and there was a rebuttable presumption that continued foster care was in their best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The children were thriving in the prospective adoptive home where they had lived for approximately nine months and were bonded to the foster parents. The social worker believed it was in the children's best interests to remain in this home permanently.
III.
VISITATION
In October 2009 the court ordered: "There is to be no contact direct or indirect between the child[ren] and [the parents] pending further court order except in a therapeutic setting." P.A. contends this order deprived him due process and prevented him from developing a beneficial relationship with the children that might have prevented the termination of parental rights. Sierra contends the order prevented her from establishing the beneficial relationship exception; the court erroneously delegated to the Agency the authority to decide whether visits would occur; and the Agency improperly prohibited visits and shifted to Sierra the responsibility of finding a therapeutic setting. Sierra also complains the children did not receive the therapy they needed.
The parents' challenge to the October 2009 order is untimely. To the extent they complain of events after the order, their claims are without merit. There was no delegation of authority; the order prohibited visits. The order left open the possibility of "contact... in a therapeutic setting" but did not require the Agency to arrange for therapy. There is no evidence the children needed therapy. There was no denial of due process.
S.A. needed, and received, services designed to improve his developmental skills. N.A. did not have developmental delays.
IV.
NOTICE TO THE SIBLINGS
P.A. contends the Agency did not give notice of the section 366.26 hearing to the three siblings who were minors and former juvenile court dependents (§ 294, subd. (a)(4)), and did not give timely notice to the two siblings who were current dependents (§ 294, subd. (c)(1)).
Dependency jurisdiction over the three siblings terminated in August 2009. The juvenile court reinstated jurisdiction in August 2010, before the commencement of the section 366.26 hearing in the instant case, to address an issue regarding restraining orders. The court again terminated jurisdiction in the three siblings' cases in September, before the court took any evidence at the section 366.26 trial in the instant case.
Section 294 requires the Agency to give notice of the section 366.26 hearing to "[a]ny known sibling of the child who is the subject of the hearing if that sibling either is the subject of a dependency proceeding or has been adjudged to be a dependent child of the juvenile court...." (§ 294, subd. (a)(4).) "Service of the notice shall be completed at least 45 days before the hearing date. Service is deemed complete at the time the notice is personally delivered to the person named in the notice or 10 days after the notice has been placed in the mail...." (§ 294, subd. (c)(1).)
"In general, '[a]n appellant may contest only such orders which injuriously affect him or her. The appellant cannot urge errors which affect only another party who does not appeal.' [Citations.] ' "For a valid appeal one must be injuriously affected by the court's ruling in an immediate and substantial manner, and not as a nominal or remote consequence." ' [Citation.] [¶]... [¶] A parent has standing to raise issues affecting [his or] her interest in the parent-child relationship. [Citations.] 'Where the interests of two parties interweave, either party has standing to litigate issues that have a[n] impact upon the related interests.' [Citation.]" (In re Desiree M. (2010) 181 Cal.App.4th 329, 333 [mother lacked standing to contend the children were not properly notified of the continued section 366.26 hearing in their own case].) Here, however, P.A. "is attempting to assert a statutory right that belongs solely to" the siblings (In re Desiree, supra, at p. 334), their right to notice of the section 366.26 hearing. Thus, he lacks standing.
Moreover, any error is harmless. S.A. was only eight months old when he was detained, and N.A. was only six months old when she was detained. By the time of the section 366.26 hearing, S.A. was three years old and N.A. was two years old. The children had no relationship with the siblings and there had been virtually no contact since the inception of this case. Thus, P.A. is incorrect in arguing "proper notice may have resulted in evidence germane to the section 366.26, subdivision (c)(1)(B)(v) sibling relationship exception to adoption."
V.
THE ADOPTION ASSESSMENT
For the section 366.26 hearing, the Agency was required to prepare an adoption assessment containing "[a] review of the amount of and nature of any contact between the child[ren] and [their]... siblings...." (§ 366.21, subd. (i)(1)(B).) A child's adoptability is determined "[o]n the basis of [the Agency's] assessment 'and any other relevant evidence.' " (In re Josue G. (2003) 106 Cal.App.4th 725, 732, quoting § 366.26, subd. (c)(1).) P.A. contends the court selected a permanent plan of adoption and terminated parental rights without sufficient evidence of the children's relationships with the siblings.
The Agency's assessment noted the children had had no contact with the siblings since being detained and there was no relationship between the children and the siblings. Social workers testified the children had not asked to see the siblings and had no relationship with them. The three nondependent siblings and their caregivers had not contacted the social worker. One of the nondependent siblings had a history of aggressive behavior. The other dependent sibling, PJ, "had some struggles of her own." The children's social worker had communicated with PJ's social worker, who had not said that PJ wanted to visit the children. Construing the record most favorably to the judgment, the Agency's reports, together with testimony from the social workers, set forth the information required by section 366.21, subdivision (i)(1)(B). (In re Josue G., supra, 106 Cal.App.4th at p. 732.)
VI.
THE BENEFICIAL RELATIONSHIP EXCEPTION
If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One exception exists if "[t]he parent[ has] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) 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.) The existence of this relationship is determined by taking into consideration "[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 most favorably to the judgment, we conclude substantial evidence supports the court's finding that Sierra did not meet her burden of proving the applicability of this exception. (Id. at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
Other than the issue discussed in part V, ante, there is no challenge to the juvenile court's finding the children were adoptable.
Until October 2009, Sierra visited the children regularly. During the visits, the children did not demonstrate a close attachment to Sierra. After October 2009, there was no contact between Sierra and the children. The children did not appear to experience any loss. Rather, they changed from sullen, confused and morose children to communicative, smiling and responsive children. By December 2010, Sierra had not called the foster home to inquire about the children's well-being for at least two months.
S.A. was three years old. He had been out of Sierra's custody since he was seven months old. N.A. was two years old. Sierra acknowledged she had never been N.A.'s primary caregiver. Sierra still believed there was no basis for dependency jurisdiction.
The children had lived with the foster parents for nearly a year and were happy and thriving in the home. The foster parents were dedicated to fulfilling the children's special needs and providing an enriching environment. The foster parents were warm and sensitive, and the children were comfortable and relaxed with them. The children were bonded to the foster parents. The foster parents wished to adopt the children and had an approved home study. The social worker believed it was in the children's best interests to remain in that safe and stable home permanently.
There is substantial evidence that the children did not have "a substantial, positive emotional attachment" to Sierra of the kind that would outweigh the well-being the children would gain in a permanent, adoptive home and that the children would not be greatly harmed by the severance of their relationship with Sierra. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.).
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J., O'ROURKE, J.