Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. J515935, Carol Isackson, Judge.
O'ROURKE, J.
Cynthia M. appeals a judgment terminating her parental rights to her minor son Salvador V. under Welfare and Institutions Code section 366.26. Cynthia contends the court erred by denying her section 388 petition for modification seeking return of Salvador to her care. She also contends the court lacked sufficient evidence to support its finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) and sibling relationship exception of section 366.26, subdivision (c)(1)(E) do not apply to preclude terminating her parental rights. A.V., Salvador's father, joins in Cynthia's assertions. We affirm the judgment.
All statutory references are to the Welfare and Institutions Code.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) The beneficial parent-child relationship exception, formerly section 366.26, subdivision (c)(1)(A) is now section 366.26, subdivision (c)(1)(B)(i). The sibling relationship exception, formerly section 366.26, subdivision (c)(1)(E) is now section 366.26, subdivision (c)(1)(B)(v). Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2005 the San Diego County Health and Human Services Agency (Agency) filed a petition on behalf of newborn Salvador under section 300, subdivision (b). Salvador became a dependent and was removed from parental custody based on findings that he tested positive for methamphetamines at birth. Cynthia also tested positive and admitted to using methamphetamine during her pregnancy. Cynthia disclosed that she had been using alcohol and methamphetamines since she was 17 years old. She claimed she had a period of sobriety that lasted three years after which she relapsed.
The court placed Salvador in foster care. The social worker reported Cynthia and Salvador's father, A.V., continued to abuse methamphetamines. Both parents were in custody for possession of controlled substances.
During the next six months, Cynthia and A.V. remained in prison. Cynthia participated in some services while in custody, including a parenting inmate program, substance abuse intervention and anger management classes. A.V. was not offered services in prison but he did complete a prison packet. A.V. lived in a facility that did not allow for contact visits. Cynthia had visits twice a month with Salvador and the social worker reported the visits went well. At the six-month review hearing, the court continued services for Cynthia for an additional six months.
In a 12-month review report, the social worker recommended the court terminate reunification services for Cynthia. Cynthia remained in prison and did not have any in-person contact with Salvador. She did have telephone contact with him and was able to participate in services provided for her at the prison. Cynthia completed a parenting course and attended Narcotics Anonymous (NA) meetings and Alcoholics Anonymous (AA) meetings. The social worker acknowledged Cynthia's participation in services but believed it was unlikely for Salvador to reunify with her or A.V. because they had not completed all the objectives in their case plans. The court terminated reunification services and set a section 366.26 selection and implementation hearing.
The social worker assessed Salvador as adoptable due to his age, good health, and lack of developmental problems. Salvador's relative caregiver, his maternal grandmother, wanted to adopt him and had initiated the home study process. This grandmother also cared for his half sibling, Daniel. There were numerous other families interested in adopting a child like Salvador in the event Salvador's grandmother could not adopt him.
The social worker did not believe Salvador had a significant relationship with either parent. Both parents had not maintained regular contact with Salvador because they had been in jail for most of Salvador's life. He instead looked to his grandmother for his everyday emotional and physical needs and had lived with her for about 16 months.
One month before the social worker submitted the section 366.26 assessment report, Cynthia was released from prison. The social worker reported Cynthia did not consistently visit Salvador after her release.
In April 2007 Cynthia filed a section 388 petition for modification, seeking to have Salvador returned to her along with family maintenance services. In support of her petition, she alleged she had completed a parenting program, participated in NA and AA meetings, participated in drug court and had progressed to phase II of the drug court program. She further indicated she had visits with Salvador and that the visits went well. Cynthia did not raise any arguments addressing how the proposed modification would be in Salvador's best interests.
The social worker filed an addendum report detailing two visits she observed between Salvador and Cynthia. The social worker noted Cynthia had some difficulty feeding Salvador and needed assistance. Cynthia's visits, however, were generally appropriate and she displayed affection toward Salvador and played with him. At the end of the visit, Salvador did not show signs of distress. During the second visit, Cynthia displayed affection toward Salvador and Salvador played with Cynthia. Cynthia disclosed to the social worker she married A.V. while they were incarcerated. At the end of the visit, Salvador easily separated from Cynthia.
The social worker acknowledged Cynthia's progress and noted her participation in drug court. The progress made was positive but the social worker noted Cynthia had a long drug abuse history and that Cynthia had only begun to recover. In addition, the social worker expressed concerns that Cynthia married A.V. A.V. remained in prison for a drug related offense and had a long drug abuse history. It concerned the social worker that the relationship might negatively impact Cynthia's recovery.
In a second addendum report, the social worker detailed two additional visits between Cynthia and Salvador. Cynthia fed Salvador and they later played in the yard. During the second visit, they played in the yard again. Salvador did run to Cynthia when he saw her. At the end of the visit, Salvador cried and reached out to Cynthia.
In July 2007 the court held a section 388 evidentiary hearing to address Cynthia's petition. The social worker testified that in her opinion, Salvador did not have a significant relationship with Cynthia and that Salvador did not see her as a parental figure. Salvador had been raised by his maternal grandmother and saw her as the primary parental figure. Salvador referred to his grandmother as "Mom" and looked to her for all his needs. The social worker recommended adoption as a permanent plan for Salvador.
Cynthia testified she was enrolled in drug court and was in phase III of the program. She drug tested weekly, attended NA meetings and currently was looking for an out-patient program. In addition to pursuing services, Cynthia had secured a job and shared an apartment with her sister.
A.V. testified he loved Salvador and wanted to continue his relationship with him. A.V. had little contact with Salvador because he was in prison and unable to use the telephone.
The court also heard argument from Salvador's trial counsel and guardian ad litem (GAL), Dana Feuling, concerning the issue of whether granting Cynthia further services was in Salvador's best interests. Feuling argued Cynthia should receive more time to participate in services. Fueling would like to have seen Cynthia participate in an out-patient drug program and was "disappointed" that Cynthia did not pursue one. When testifying whether it would be in Salvador's best interests for the court to grant the section 388 petition, Fueling believed that was a difficult question because it was based on whether Cynthia would remain sober. Fueling did not have the benefit of a therapist's testimony to support her opinion and there was some question as to how Cynthia would react once A.V. was released from custody. Despite these uncertainties, Fueling recommended the court grant Cynthia additional time to pursue services.
After considering evidence and hearing arguments, the court found Cynthia had shown changed circumstances but she did not meet her burden of showing the requested modification was in Salvador's best interests. The court denied the section 388 petition. The court also found Salvador was likely to be adopted and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court made no finding as to whether Cynthia had regular visits with Salvador. The court terminated parental rights and referred Salvador for adoptive placement.
DISCUSSION
Cynthia contends the court erred by denying her section 388 petition for modification seeking Salvador's return to her care, or alternatively, further reunification services. She asserts she showed her circumstances had changed and that returning Salvador to her custody would serve his best interests.
A
Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, there is a change in circumstances or new evidence, and the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we may not substitute our decision for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
When the court evaluates the appropriate placement for a child after reunification services have been terminated, its sole task is to determine the child's best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 320.) In this context, the goal is to assure the child "stability and continuity." (Id. at p. 317.) The need for stability and continuity " 'will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citations.]" Thus, after the court terminates reunification services, "there is a rebuttable presumption that continued foster care is in the best interest of the child." (Ibid.)
B
The court found Cynthia's circumstances had changed. Thus, we examine only whether the court abused its discretion by denying her section 388 petition because it would not be in Salvador's best interests to be returned to Cynthia or for Cynthia to receive additional services. After termination of reunification services, the focus of the dependency proceedings is to provide the child with permanency and stability. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254-256; In re Marilyn H. (1993) 5 Cal.4th 295, 310.) At the time of the hearing on the section 388 petition, Salvador had been a dependent for two years. The problems that led to the instant dependency were serious. Salvador was born with a positive test for methamphetamines. Cynthia admitted to using methamphetamines while pregnant and that she had a history of abusing the drug starting at age 17. She had participated in treatment programs in the past, achieved sobriety for a few years, and then relapsed. During the dependency, Cynthia has made progress with her reunification services. Admittedly, she has achieved about two years of sobriety. However, this sobriety follows a history of drug use, recovery and relapse. Cynthia had not lived independently without the benefits and support of rehabilitation services. In addition, during the dependency, Cynthia had not progressed to unsupervised visits and although the visits that did take place were appropriate, the relationship between Cynthia and Salvador did not outweigh the stable and long-term relationship Salvador has with his relative caregiver. It was not in Salvador's best interests to postpone implementing a permanent plan of adoption. " '[C]hildhood does not wait for the parent to become adequate.' " (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)
Cynthia asserts the court should have given more weight to the position of Fueling, Salvador's counsel and GAL. The role of a GAL is to provide "recommendations to the court concerning the best interest of the child . . . ." (Cal. Rules of Court, rule 5.662 (d)(1), (2).) Fueling did, as permitted under the rules, provide her recommendation to continue services for Cynthia. However, she also expressed concerns that Cynthia had not participated in a structured out-patient program and there was no indication how committed Cynthia would remain to Salvador and her sobriety once A.V. was released from prison. The court considered Fueling's recommendation along with other testimony and evidence presented at the hearing. Based on the record, the court acted well within its discretion to determine that placing Salvador in Cynthia's custody was not in Salvador's best interests even in light of Fueling's recommendation. Even when two or more inferences reasonably can be deduced from the facts, we may not substitute our decision for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.) The court acted within its discretion by denying Cynthia's section 388 modification petition.
II
Beneficial Parent-Child Relationship Exception
Cynthia contends the evidence is insufficient to support the court's finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) does not apply to preclude terminating her parental rights. A.V. joins in Cynthia's argument.
A
We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. (In re Casey D., supra, 70 Cal.App.4th at p. 52.) Rather, we "accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (Id. at p. 53.) The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of six specified exceptions. (§ 366.26, subd. (c)(1) (A)-(F); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(A) provides an exception to the adoption preference if termination of parental rights would be detrimental to the child because "[t]he parents . . . have maintained regular visitation and contact with the [child] and the [child] would benefit from continuing the relationship." We have interpreted the phrase "benefit from continuing the relationship" to refer to a parent-child relationship 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 other words, the court balances the strength and quality of the natural parent[-]child relationship in a tenuous placement against the security and 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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B
During the two years of dependency proceedings, A.V. did not regularly visit with Salvador. Cynthia had some regular visitation with Salvador while she was incarcerated. After her release, Cynthia visited Salvador about once a month. Even if Cynthia's visitation is considered to be regular, Cynthia did not meet her burden of showing her relationship with Salvador was sufficiently beneficial to outweigh the benefits of adoption. Although Cynthia had appropriate contact visits with Salvador toward the end of the proceedings, she did not occupy a parental role in Salvador's life. Salvador's current relative caregiver is dedicated to him, has an approved home study, and wants to provide Salvador with a permanent home. Where, as here, the biological parent does not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) Salvador, whose needs Cynthia could not meet, deserves to have his custody status promptly resolved and his placement made permanent and secure.
In addition, to establish the section 366.26, subdivision (c)(1)(A) exception, Cynthia needed to show Salvador would suffer detriment if their relationship were terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The evidence, however, did not show terminating parental rights would likely cause Salvador great harm and deprive him of a "significant, positive, emotional attachment." (Ibid.) The record shows that during every contact visit, except for one, Salvador easily separated from Cynthia and showed no signs of distress. During the last contact visit, Salvador did cry and reached for Cynthia. This is the only evidence of Salvador showing any signs of distress. Although Salvador may grieve and feel a sense of loss if he no longer has contact with Cynthia, there was no showing he would be greatly harmed. To require a parent to show only "some, rather than great, harm at this stage of the proceedings would defeat the purpose of dependency law . . . ." (In re Brittany C., supra, 76 Cal.App.4th at p. 853.)
After balancing the strength and quality of the parent-child relationship against the security and sense of belonging that an adoptive placement would give Salvador after two years of dependency proceedings, the court found the preference for adoption had not been overcome. Substantial evidence supports the court's finding the section 366.26, subdivision (c)(1)(A) exception is inapplicable. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 425.)
III
Beneficial Sibling Relationship Exception
Cynthia contends the sibling relationship exception set forth in section 366.26, subdivision (c)(1)(E) applied to compel a permanent plan other than adoption. She asserts Salvador's sibling, Daniel, had a close relationship with Salvador and that the termination of parental rights would substantially interfere with that relationship. A.V. joins in Cynthia's argument.
A
Section 366.26, subdivision (c)(1)(E) provides an exception to terminating parental rights when the juvenile court finds there is a compelling reason for determining that termination would be detrimental to the child due to substantial interference with a child's sibling relationship. Factors to be considered include the nature and extent of the relationship, whether the child was raised with a sibling in the same home and whether the child has strong bonds with a sibling. The court must also consider whether ongoing contact is in the child's best interests, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption. (§ 366.26, subd. (c)(1)(E); see also In re L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.) The purpose of this exception is to preserve long-standing sibling relationships that serve as "anchors for dependent children" whose lives are in turmoil. (In re Erik P., supra, 104 Cal.App.4th at p. 404.)
The sibling relationship exception contains "strong language creating a heavy burden for the party opposing adoption." (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) The exception focuses exclusively on the benefits and burdens to the child being considered for adoption, not the other siblings. (Ibid.) Similar to the beneficial parent-child relationship exception, application of the sibling relationship exception requires a balancing of interests. (In re L.Y.L., supra, 101 Cal.App.4th at p. 951.) However, the parents have the burden to show: (1) the existence of a significant sibling relationship; (2) termination of parental rights would substantially interfere with that relationship; and (3) it would be detrimental to the child if the relationship ended. (Id. at p. 952.) Once the parent establishes that a sibling relationship is so strong that its severance would be detrimental to the adoptive child, the court then decides whether the benefit to the child of continuing the sibling relationship outweighs the benefit of adoption. (Id. at pp. 952-953.)
B
We consider first whether Salvador and Daniel have a significant sibling relationship sufficient to trigger the application of the section 366.26, subdivision (c)(1)(E) exception. There is evidence here to show the siblings sometimes live together at their maternal grandmother's home. However, the two siblings had not grown up together and Daniel occasionally lives with his paternal grandmother. Beyond the fact the siblings sometimes live together, Cynthia and A.V. did not present any evidence at trial that the siblings "shared significant common experiences or [have] existing close and strong bonds . . . ." (§ 366.26, subd. (c)(1)(E).) In any event, the siblings will continue to have contact even if parental rights are terminated because Salvador will live with Daniel at their maternal grandmother's home. Further, Cynthia is willing to allow the two boys to remain in contact should she ever regain custody of Daniel and live apart from Salvador. The court properly found the substantial interference with a sibling relationship exception does not apply. (In re L.Y.L., supra, 101 Cal.App.4th at p. 952.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, Acting P. J., IRION, J.