Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. JD115010. Jon Edward Stuebbe, Judge.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
B.C. Barmann, Sr., County Counsel, and Mark L. Nations, Deputy County Counsel, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.
OPINION
E.V. (Mother) appeals from the juvenile court’s refusal to grant a hearing on her Welfare and Institutions Code section 388 petition for modification of its decision to terminate her parental rights of her daughter S.O. and from the court’s failure to apply the sibling adoption exception under section 366.26, subdivision (c)(1)(B)(v). We conclude the juvenile court did not abuse its discretion in declining to grant a hearing on the section 388 petition and that Mother failed meet her burden of establishing the sibling adoption exception. Accordingly, we will affirm the disposition.
Further statutory references are to the Welfare and Institutions Code.
BACKGROUND
In June 2007, the Kern County Department of Human Services (Department) received a referral that a baby girl, S.O., tested positive for amphetamine at the time of her birth two days earlier. The Department placed S.O. and her 3-year-old half brother, A.G., into protective custody.
On June 13, 2007, the Department filed a section 300 petition alleging S.O. was at risk of suffering physical harm or illness because both S.O. and Mother tested positive for methamphetamine. The petition additionally alleged two of S.O.’s older half-siblings were previously found abused or neglected resulting in the termination of Mother’s parental rights. A third sibling was later discovered to also have been removed from the custody of Mother. A similar section 300 petition was also filed in regard to A.G.
The juvenile court detained S.O. following a detention hearing the next day. At a July 19, 2007, jurisdictional hearing, the juvenile court sustained the petition, finding S.O had suffered, or there was a substantial risk of suffering, serious physical harm or illness and that she had been abused or neglected. (§ 300, subds. (b) & (j).)
By the time of the dispositional hearing on August 7, 2007, S.O. and A.G. were residing in separate foster homes. Although they had been originally placed together, the previous caretaker was unwilling to continue providing care to A.G. due to behavioral problems. The social study reported that Mother “began using methamphetamine during her teenage years,” but that she claimed she did not use drugs very often and not since November 2006, seven months before S.O.’s birth. The social worker had discussed with Mother an initial case plan that included substance abuse, neglect, and parenting counseling. Although Mother reported that she had enrolled, the social worker discovered Mother never attended the counseling orientation or classes. Mother received three negative drug test results and one test was presumed positive because she failed to report for testing. She visited with S.O. and A.G., but not as frequently as permitted by the court.
At the dispositional hearing, the juvenile court found both of S.O.’s parents had made “minimal progress” in alleviating or mitigating the circumstances that led to her removal from the home. The court ordered reunification services be provided for up to six months. The parents were notified that given S.O.’s age, their failure to participate in court-ordered services could result in the termination of reunification services.
In preparation for a six-month review hearing scheduled for January 18, 2008, and subsequently continued until February 13, 2008, the social worker reported that Mother was again pregnant and had completed a parenting counseling course, but that she failed to report for substance abuse counseling. While Mother tested negative for controlled substances on seven occasions, she failed to report for three scheduled testing’s that were presumed positive. S.O.’s parents participated in regular visitations that were reported to be of “good quality.” The social study also indicated A.G., since diagnosed with autism and delayed speech and social skills, had joined S.O. in the same foster home placement on November 5, 2007. The foster parents reported A.G. had made a “complete turn-around” in positive behavior and expressed their willingness to retain S.O. and A.G., as well as their unborn sibling, should reunification services fail.
In a February 13, 2008, supplemental social study, the social worker reported S.O.’s parents missed or rescheduled several visitations. The parents underwent two drug tests in January providing negative results. Given Mother’s complete failure to participate in substance abuse counseling and her partial failure to drug test, the social worker recommended reunification services be terminated as to S.O., but recommended they continue as to A.G. Mother did not object to the recommendation and the court ordered termination of reunification services with S.O.
On June 16, 2008, Mother filed a petition under section 388 requesting reunification services be reinstated for six months, contending she enrolled in substance abuse counseling in February 2008 and expected to be completed in October 2008. She admitted she missed some drug tests but that she had tested negative in the tests for which she reported. The request stated Mother was already receiving reunification services in regard to A.G., that she had recently given birth to another child in May 2008, and that she wanted to “give the child a chance to be reunited with a clean and sober mother and siblings in an intact family unit rather than being separated from them.” The juvenile court summarily denied the request because it did “not state new evidence or a change of circumstances.” S.O.’s father also filed a section 388 petition, which was subsequently denied.
In a social study filed on June 20, 2008, the social worker reported that over the past year Mother visited S.O. on only 26 out of 51 court ordered visits. According to the report, S.O., A.G., and their newborn sister had all been placed in the same home where the caregivers were willing to adopt them, although there was a chance A.G. might be reunited with his father the following month. The social worker opined S.O. was adoptable and that she had established a strong bond with her prospective adoptive parents with whom she had resided since she was almost 3 weeks of age.
At a June 20, 2008, permanency planning hearing under section 366.26, Mother did not introduce any evidence, but argued the sibling exception should be applied to allow her to receive additional reunification services based on a “significant possibility” that A.G. would be reunited with his parents, and that the newborn sister might similarly be reunited with her parents. Mother’s counsel particularly stressed the relationship between S.O. and A.G. because they had been residing together for the past seven months. Finding only a “very limited sibling relationship,” the juvenile court found the sibling exception did not apply and accepted the Department’s recommendation to terminate the parental rights of S.O.’s parents.
DISCUSSION
I. Summary Denial of Section 388 Hearing
Section 388 allows the juvenile court to modify a previous order if a parent establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed modification would promote the child’s best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.); Cal. Rules of Court, rule 5.570.) To obtain a hearing on a section 388 petition, a parent must make a prima facie showing as to both elements. (Zachary G., supra, at p. 808; In re Justice P. (2004) 123 Cal.App.4th 181, 188.) A section 388 petition should be liberally construed in favor of granting a hearing, but “[t]he 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.” (Zachary G., supra, at p. 806.) A petition which includes general conclusory allegations does not rise to the level of a “‘prima facie’” showing. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) We review the summary denial of a section 388 petition for abuse of discretion. (Zachary G., supra, at p. 808; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413; In re Aljamie D. (2000) 84 Cal.App.4th 424, 431, 433.)
California Rules of Court, rule 5.570(d) provides: “If the petition [under section 388] fails to state a change of circumstances or new evidence that may require a change of order or termination of jurisdiction, or that the requested modification would promote the best interest of the child, the court may deny the application ex parte.”
Mother contends she presented a prima facie case for a section 388 hearing by presenting new evidence and a change of circumstances. Mother contends her pleadings showed she “was now participating successfully in drug treatment, and in fact had been doing so for four months.” She claims revoking the previous court order was in the best interest of S.O. because “all children have a fundamental independent right, an intrinsic human right, to their nature family relationship.” (See Adoption of Kay C. (1991) 228 Cal.App.3d 741, 749-750.) Mother also contends that adoption is never a guarantee of solving a child’s problems, citing academic articles suggesting an adoption can be set aside and that “some adoptions may be permanent but unstable or unhappy because adoptive parents, like any other parents, become sick or die, have substantial abuse problems, lose their jobs or suffer any of the other innumerable frailties of human existence.”
While Mother presents legitimate considerations the juvenile court must always consider when deciding whether to terminate parental rights, she did not present the juvenile court with any specific change of circumstances warranting a modification of its February 13, 2008, order terminating reunification services. Mother listed the following changes in her June 16, 2008, request: 1) she was expecting another child, 2) she completed parenting counseling, 3) her drug tests were negative, but she had missed some tests, and 4) she “enrolled” in substance abuse counseling which she expected to complete by October 2008. However, the Department had previously presented each of these facts to the juvenile court in its January 18, 2008, social study and February 13, 2008, supplemental reports before the juvenile court issued its reunification services termination order. Indeed, the only information not before the juvenile court earlier was that Mother “expected” to complete her substance abuse counseling in October 2008, but she never asserted she had actually attended such services. Even at the time of the August 7, 2007, dispositional hearing, and at the February 13, 2008, six month review hearing, the Department advised the juvenile court that Mother had a history of enrolling in counseling but failing to attend. On its face, the petition did not bring to light any new evidence or state a change in circumstances that suggested any basis for the juvenile court to modify its order terminating reunification services.
II. Sibling Exception
Mother additionally challenges the sufficiency of the evidence to support the juvenile court’s finding that the sibling exception to terminating parental rights found in section 366.26, subdivision (c)(1)(B)(v) did not apply based on the sibling relationship between S.O. and A.G. “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Mother does not allege the juvenile court erred by not applying the sibling exception as to S.O.’s newborn sister.
Under section 366.26, subdivision (c)(1)(B)(v), the juvenile court may not terminate parental rights where the court finds that termination would be a detriment to the child if:
“There 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.”
Under this exception, “the existence of a relationship alone is not enough; but it must be ‘sufficiently significant’ to cause detriment” to the child if it were severed. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017.) The sibling exception “‘only applies when the juvenile court determines that there is a “compelling reason” for concluding that the termination of parental rights would be “detrimental” to the child due to “substantial interference” with a sibling relationship.’” (In re Celine R. (2003) 31 Cal.4th 45, 61.) Moreover, the juvenile court may take into account the detriment to the child whose welfare is being considered. Thus, the court “may not prevent a child from being adopted solely because of the effect the adoption may have on a sibling.” (Id. at pp. 49-50.)
The juvenile court explained it carefully considered the Mother’s argument because the case presented a “strange conundrum where one child is going out and two others may be staying in .…” The juvenile court continued:
“I’m going to find that [the sibling exception] does not apply. I think because of the very young age of [S.O.], we need to be looking at her best interests through the eyes of this child and what she knows and understands. And it is her interests that I really must consider in this case.
“At this young age, her world consists literally of the people who have been caring for her, the caretakers. The brother being there when he arrived, she would be six months old, not crawling, not -- certainly not walking; maybe being able to roll over. Her attachment would not be to a sibling, although this would certainly be an influence in her life.
“But to say that she has a separate and independent sibling attachment to him, which might be the case if she were two or three or four or five, I would be certainly listening very hard to the recommendation of [Mother’s counsel], but at this young age, I just don’t believe that it applies or makes sense that her interests in permanency would be overrun by this what would have to be a very limited sibling relationship.”
S.O.’s social study reports indicate she was born in June 2007, removed from her home on June 11, 2007, and placed in her current pre-adoptive home on June 28, 2007, with whom she had formed a bond and where she has since remained. Her half-brother A.G., born in September 2003, was residing with his father before being placed in the same home as S.O. on November 5, 2007. S.O. and A.G. had only lived together for seven months, almost entirely before her first birthday. Mother does not point to any interaction between the half-siblings documented in the social studies, much less a relationship sufficiently significant to cause detriment if were severed. Other than physically residing in the same home for seven months, there is no evidence from which the juvenile court could conclude S.O. and A.G. had an existing bond with each that if severed would override the potential benefits of adoption.
DISPOSITION
The judgment is affirmed.