Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J06-01652
Sepulveda, J.
A.F. (Mother) appeals from the judgment terminating her parental rights to S.T. (the minor) under Welfare and Institutions Code section 366.26. Mother contends the juvenile court abused its discretion by denying her section 388 petition. Mother’s sole claim on appeal is that the juvenile court erred by failing to consider S.T.’s sibling relationship (see § 366.26, subd. (c)(1)(B)(v)) with her two older brothers, A.T. and M.T. We affirm the judgment.
All further undesignated statutory references are to the Welfare and Institutions Code.
Neither A.T. nor M.T. is a subject of this appeal. Additionally, S.T.’s two older half-sisters are not part of the instant appeal; both girls were placed together in a non-relative placement and were not subjects of the proceedings below.
I.
BACKGROUND
The minor, who was about 11 months old when dependency proceedings began, is the youngest of Mother’s five children. In August 2006, the Contra Costa County Children and Family Services Bureau (Bureau) received a report that Mother’s whereabouts were unknown, and that she often left her five children with relatives for extended periods of time. That month, Mother had attended a family barbeque with the children and left without taking them, leaving family members to figure out who could care for them.
On September 12, 2006, the Bureau filed a juvenile dependency petition as to the minor and her two older brothers (then five and three years old) pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The minor and her brothers were ordered detained. At a September 26, 2006 jurisdiction hearing, Mother admitted to a section 300, subdivision (b) count in the petition, which alleged that she “exhibits angry, volatile, and unpredictable behavior,” including threatening her children that she would cut them up into little pieces and put them in the backyard, threatening to throw her children in the garbage can and to drown them, and telling them that she hates them. The juvenile court sustained that count of the petition, and the remaining counts were dismissed. Mother also stipulated that she would submit to random drug testing and enter a drug treatment program if she tested positive or missed tests.
Mother did not appear at the disposition hearing on October 23, 2006. The minor was adjudged a dependent child, and the juvenile court ordered reunification services.
At the contested six-month review hearing on May 8, 2007, a social worker from the Bureau explained that the status review report incorrectly stated that the minor and her older brothers were part of a sibling group. The social worker further explained that although the children had been initially placed together, she did not consider them to be a “sibling group,” as the children had resided in separate placements ever since she had been assigned to the case. Counsel for the Bureau requested that the paragraph recommending a finding that the children be deemed part of a sibling group (§ 361.5, subd. (a)(3)) be stricken. After the parties “waive[d] irregularities,” the juvenile court incorporated the Bureau’s recommendations without reading them on the record. The juvenile court then terminated reunification services and ordered a section 366.26 selection and implementation hearing as to the minor. The minute order from the May 8, 2007 status review hearing reflects that the children were found to be members of a sibling group (§ 361.5, subd. (a)(3)).
In a section 366.26 report dated August 24, 2007, the Bureau recommended that legal guardianship was the most appropriate plan for the minor’s brothers, who had been placed with the maternal great-grandparents. The maternal great-grandparents, who were both in their seventies, reported that they were unable to adopt the boys, but they were committed to caring for them as long possible. The maternal great-grandparents, however, acknowledged that they did not know how long they would be able to care for the boys.
In the same report, the Bureau also recommended that Mother’s parental rights be terminated as to the minor, and that adoption was the most appropriate permanent plan for the minor, who had been placed with her maternal second cousin and her cousin’s husband as the prospective adoptive parents. In making this recommendation, the Bureau took into consideration the minor’s relationship with her brothers, noting that the minor “visits with them often and spends a great deal of time with them.” The Bureau, nevertheless, concluded that termination of Mother’s parental rights would not interfere with the minor’s relationship with her brothers, as she would continue to have contact with them and would continue her relationship with them. The Bureau further added: “Even though [the minor] has a relationship with her brothers, she recognizes her current caregivers as her mother and father. They are the only parents she knows and adoption by the current caregivers is the only permanent plan that is appropriate for [the minor].”
In a September 14, 2007 section 388 petition, Mother requested six additional months of reunification services for all three children. The petition alleged, among other things, that Mother had entered a 90-day residential drug treatment program on June 1, 2007, that she had undergone a mental health assessment in June 2007, and that she was attending four 12-Step meetings each week.
At the combined section 388 and section 366.26 hearing on December 11, 2007, the juvenile court granted the request for an additional six months of reunification services for Mother and her sons. However, the court denied the request for further reunification services with respect to Mother and the minor. The juvenile court then proceeded with the section 366.26 hearing with respect to the minor. Mother’s counsel requested the court to appoint a guardian for the minor rather than terminate parental rights. The minor’s counsel supported the Bureau’s recommendation that termination of parental rights and adoption was the most appropriate permanent plan for the minor.
The juvenile court, noting that no exceptions to adoption had been articulated, followed the Bureau’s recommendation and terminated Mother’s parental rights to the minor.
II.
DISCUSSION
The juvenile court may modify an order if a petitioning party shows, by a preponderance of the evidence, changed circumstance or new evidence and that modification would promote the dependent child’s best interests. (§ 388; see In re Stephanie M. (1994) 7 Cal.4th 295, 322; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) The factors to be considered include the seriousness of the problem leading to the dependency and the reason for its continuation; the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and the nature of the change of circumstance, the ease by which the change could be achieved, and the reason the change did not occur sooner. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532.) We review the juvenile court’s order for an abuse of discretion. (In re Michael B., supra, 8 Cal.App.4th at p. 1704; In re Kimberly F., supra, 56 Cal.App.4th at p. 522.)
Mother’s section 388 petition sought to modify the May 2007 six-month review order terminating reunification services. The petition requested six more months of services. The petition alleged that additional reunification services would be in the children’s best interest because: “The minors lived with their mother for a significant part of their life [sic]; they are attached and bonded to one another. [Mother] is committed to providing a safe and stable home for the children.”
The juvenile court granted the request for an additional six months of reunification services for Mother and her sons. However, the court denied the request for further reunification services with respect to Mother and the minor. In so ruling, the court explained: “Now, with regard to [the minor] . . . she can only have seen the mom [a] very limited number of times in her whole life because she didn’t see her for over a year and then she had limited visitation after that. And [the minor] is in a stable home. She doesn’t appear to have a real strong relationship with her mother. So I will find it’s not in [the minor’s] best interests for [family reunification] services be granted to the mother.”
Mother contends that the juvenile court abused its discretion “by failing to accord sufficient weight to the sibling relationships in determining the best interests” of the minor. The juvenile court, however, does not have a sua sponte duty to determine the application of any of the exceptions to the termination of parental rights. (In re Daisy D. (2006) 144 Cal.App.4th 287, 292; In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295.) In general, the failure to raise the sibling relationship exception results in a waiver of any complaint about the court’s failure to apply it. (See In re Erik P., (2002) 104 Cal.App.4th 395, 403.) Here, even though Mother had the burden to raise any relevant exceptions at the combined hearing, she failed to do so. At the combined section 388 and section 366.26 hearing, there was no evidence adduced bearing on the sibling bond. Moreover, the issue of a sibling exception was not raised or otherwise developed at the combined hearing.
Even if Mother’s brief reference to the sibling bond in her section 388 petition overcomes waiver and forfeiture, that exception (see § 366.26, subd. (c)(1)(B)(v)) is inapplicable under the facts of this case. The sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. (§ 366.26, subd. (c)(1)(B)(v); In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) It 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 Daniel H., supra, 99 Cal.App.4th at p. 813.)
Section 366.26, subdivision (c)(1)(B)(v) (former § 366.26, subd. (c)(1)(E)), provides an exception to the termination of parental rights 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.”
Here, the evidence simply did not compel a finding that termination would substantially interfere with a sibling relationship. In fact, the minor and her brothers had been placed with members of the same extended family, and the children spent a “great deal” of time together during regular visits. Although the boys’ placement with the maternal great-grandparents was somewhat uncertain, there is no evidence suggesting that the sibling relationship would not continue. Also, there is no evidence that termination of parental rights would lead to a severance of sibling ties. More importantly, Mother failed to present any evidence at the combined hearing that the need for sibling bonds would outweigh the benefits of adoption. (§ 366.26 subd. (c)(1)(B)(v); see In re Erik P., supra, 104 Cal.App.4th at p. 403.) In other words, Mother failed to satisfy her heavy burden of proof for the exception to apply.
Mother, however, argues that she was not required to establish the sibling bond exception in order to prevail on her section 388 petition. Rather, she contends she was only required to prove that the proposed change would be in the best interests of the minor. By this argument, Mother takes the inconsistent position that even though she was not required to establish a sibling bond, the trial court, nevertheless, erred in failing to consider it when determining the minor’s best interests. This contention defies logic. In any event, on this record, Mother has not established that six more months of reunification services, between Mother and the minor, would be in the minor’s best interest.
The minor, who was two years old at the combined hearing, had been in the dependency system for half of her short life. She was thriving in the home of the prospective adoptive parents, who were her maternal cousins. She was attached to them and they were committed to adopting her. They offered her the stability that Mother had been unable to provide.
Mother insists that there was no evidence that the minor had a “particular need” for stability, and in any event, she only requested six more months of reunification services, not a return of the minor to her care. This contention is completely without merit. It must be remembered that “ ‘[o]nce reunification services are ordered terminated, the focus [in juvenile dependency proceedings] shifts to the needs of the child for permanency and stability.’ [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 52.) Children in the dependency system possess “ ‘compelling rights . . . to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.’ [Citation.]” (Id. at pp. 52-53.) Here, at the time of the combined section 388 and section 366.26 hearing, the minor was two years old and had been in the dependency system since she was nearly 11 months old. While six months “may not seem a long period of time to an adult, it can be a lifetime to a young child. Childhood does not wait for the parent to become adequate.” (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) Accordingly, the juvenile court did not abuse its discretion by concluding that the minor would benefit more from a stable, permanent home than from an extension of Mother’s services.
We conclude that the juvenile court did not err in denying Mother’s section 388 petition as to the minor and in terminating Mother’s parental rights to the minor under section 366.26.
III. Disposition
The order denying Mother’s section 388 petition and the order terminating parental rights are affirmed. Judgment affirmed.
We concur: Ruvolo, P. J., Rivera, J.