Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. Nos. 2675DEP & 2676DEP
Lambden, J.
M.G. (father) is the father of two young girls, T.G. and A.G., and he is appealing the juvenile court’s order terminating his parental rights regarding these two children pursuant to Welfare and Institutions Code section 366.26. He claims that insufficient evidence supported the court’s finding that his two children were adoptable. He also challenges the lower court’s summary denial of his section 388 petition to reinstate reunification services. We affirm the lower court’s judgment.
All further unspecified code sections refer to the Welfare and Institutions Code.
BACKGROUND
The Parents’ Relationship
T.G. and A.G., two girls born in 2005 and 2006, respectively, are the children of father and N.B. (mother). Mother and father met in 2003. They had a history of domestic violence violations. Mother and father separated in late March or early April 2007. Mother received a temporary restraining order against father on May 7, 2007.
Mother has two other children who are the half siblings of T.G. and A.G. The two other children do not reside with mother.
On June 14, 2007, the family law court granted mother sole physical and legal custody of T.G. and A.G.; it ordered father to have two supervised visits per week. It also ordered that father and mother submit to a drug and alcohol assessment, and that mother participate in domestic violence group counseling.
The Petition and Detention Hearing
Father was living with friends who owned a ranch. On June 28, 2007, just a few weeks after the family court had issued its order giving mother custody of T.G. and A.G., police officers found the two children living with father. The officers discovered the children while executing a narcotics search warrant on the property where father was staying. The children were found sleeping in a building containing a methamphetamine laboratory. Chemical and equipment used to manufacture methamphetamines were found approximately 20 feet from where the children were staying. The police took the children into protective custody and arrested father. Father told the officer that he had been smoking methamphetamines in the barn but denied knowing that the chemicals for manufacturing the illegal substance were in the building where the police found his children.
The Sonoma County Human Services Department (department) filed the original section 300 petition on July 2, 2007, alleging that T.G. and A.G. came within the jurisdiction of the juvenile court pursuant to section 300 subdivisions (b), (c), and (g). Specifically, pursuant to section 300, subdivisions (b) and (c), the petition alleged that father’s significant history of substance abuse rendered him unable to provide adequate care of the minors and that the documented history of domestic violence between mother and father placed T.G. and A.G. at substantial risk of both physical and emotional damage. Under section 300, subdivision (g), the petition alleged that father could not provide for the children because he was incarcerated; it also asserted that mother’s whereabouts at the time were unknown.
The juvenile court held the detention hearing on July 3, 2007. Father submitted to the detention of T.G. and A.G. and the court made the requisite findings to remove the children from the care and custody of their parents.
Subsequently, father was released from jail. Department amended the section 300 petition for both T.G. and A.G. to add that mother’s substance abuse rendered her unable to provide the children with adequate care pursuant to section 300, subdivision (b). Department filed a second amended petition deleting the allegations under section 300, subdivision (g).
The Jurisdiction and Disposition Hearing
Department filed its jurisdiction and disposition report on September 20, 2007. It recommended that the allegations in the petition be found true and that reunification services be ordered for both parents. Father acknowledged to the social worker that he used methamphetamines on a regular basis. He denied domestic violence.
The report noted that, after the children had been removed from father’s home and while he was incarcerated, he visited the children one time per week for one-half hour. Once he was released from jail, he joined mother for two supervised visits a week; father had been consistent with his visits.
The jurisdiction and disposition hearing took place on September 20, 2007. Father had violated the terms of his supervised release when he went out drinking alcohol one evening; he was therefore back in custody at the time of this hearing. The court found the allegations of the amended petition true and declared the children dependents of the juvenile court. The court ordered reunification services for both mother and father.
Three-Month Oral Update
Department filed an oral report memorandum on December 26, 2007. The report stated that both father and mother were failing to follow through with their family reunification service plan. Specifically, with regard to father, the report indicated that he had tested positive for methamphetamines on October 10 and 25, 2007, and had failed to appear for four drug test referrals. Further, he had not followed through with attending any parenting classes and had been inconsistent with his scheduled supervised visits with the children.
At the hearing on December 18, 2007, the court warned father he was not getting his life in order to permit the court to return the children to him. The social worker added that the parents were “running out of time” and that they had “three more months to prove to the department that they can pull through their services.” The court asked the social worker what grade she would give the parents; she responded that she would give both of them an “F.” Counsel for the children also assessed each parent with an “F” grade.
The Six-Month Review Hearing
Department prepared its six-month status review report that was signed on February 15, 2008, and recommended the termination of reunification services for both mother and father. The report noted that father, who had been homeless and unemployed, was now living with friends, his girlfriend, and mother and working for the apartment where they were living as a handyman and domestic engineer. The report stated that father had not visited his children consistently from June 28, 2007, until January 1, 2008. He had not, according to the report, followed through with the recommendations for counseling or for random urine screening. Additionally, the report stated that he had not participated in any domestic violence program, had failed to attend 12-step meetings, had failed to attend parenting classes, and had failed to follow through with cooperating with the social worker despite the court telling him to do so.
On April 8, 2008, department prepared an addendum report. Department continued to recommend that the court terminate reunification services for both mother and father. The report stated that father had been offered approximately 64 supervised visits with his children since their removal on June 28, 2007. Of these 64 scheduled visits, he attended 34 on time; he arrived late six times, canceled 12 times, failed to arrive five times, and missed seven visits due to incarceration. The report indicated father was now attending individual therapy sessions; his counselor reported he was engaged in therapy and appeared to be very interested in reunifying with his children. Father, according to the report, had completed eight of the authorized 24 sessions. Five months after his initial referral, the report stated that father had finally completed his intake assessment with the Drug Abuse Alternative Center. However, the report pointed out that father had not provided any evidence that he had attended any 12-step program. The report stated that father admitted to the social worker that he had a problem with using methamphetamines and that he missed drug tests because he would have tested positively for drugs. Additionally, the report declared that father had not attended any parenting classes. The report noted that father was awaiting sentencing after pleading guilty to a felony charge of possession for sale and admitting a prior conviction of sale. The crime, according to the report, carried a maximum mandatory sentence of six years in prison. The social worker wrote in the report that father had been honest and forthcoming with her about his circumstances.
At the contested hearing held on April 10, 2008, father’s counsel submitted on the addendum report. The court found father and mother had made minimal efforts toward alleviating the causes necessitating court intervention, terminated reunification services, and set a section 366.26 hearing.
Father’s Section 388 Petition
On September 8, 2008, father filed a section 388 petition. Father asserted that, at the time of the six-month hearing when the court terminated reunification services, “it was believed that father would be serving up to six years in prison. However, his sentence was only jail time . . . .” He asserted that his serving only six months was a change of circumstances and he wanted his reunification services reinstated.
The Section 366.26 Hearing
Department filed its section 366.26 report and recommended termination of parental rights; it determined that the children were likely to be adopted and recommended a plan of adoption for both children. It noted that father had received a suspended prison sentence of three years, but had to spend one year in county jail.
The report stated that department had conducted an adoption assessment. The report advised that the current foster family for the girls was not interested in adoption. However, department had identified a prospective adoptive family who had expressed a commitment to the adoption of T.G. and A.G. In March 2006, the prospective adoptive parents had adopted two other sons with developmental problems and developmental delays. Thus, department believed that these parents understood the special needs of children like T.G. and A.G. The prospective adoptive parents met with T.G. and A.G. for an initial visit on July 15, 2008. In addition to this prospective adoptive family, department had received responses from numerous approved families expressing an interest in adopting T.G. and A.G.
On August 7, 2008, at the section 366.26 hearing, father’s counsel reported that he had filed a section 388 petition. He argued that the changed circumstance was that father had been facing prison time in April, but now he was going to be released “no later than December but possibly [that same week of the hearing].” Father stated that he had a place secured in a residential treatment program and an appointment for an out-patient rehabilitation program. The court set the matter for a settlement conference.
On August 27, 2008, the court learned that the settlement conference had been productive, but unsuccessful. The parties agreed to attempt to resolve the remaining issues at a judicial settlement conference.
The remaining issues were not settled and the court held a contested hearing on September 8, 2008. The court summarily denied father’s section 388 petition to reinstate reunification services for him. Father submitted to department’s recommendation to terminate parental rights and free T.G. and A.G. for adoption. The court adopted department’s findings and ordered the termination of parental rights and the freeing of T.G. and A.G. for adoption.
Father filed a timely notice of appeal.
DISCUSSION
I. The Court’s Denial of Father’s Section 388 Petition Without a Hearing
A juvenile court’s ruling on a section 388 petition is reviewed for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The lower court’s decision will not be disturbed unless the court has abused its discretion by making a capricious, arbitrary, or absurd determination. (Ibid.)
Section 388, subdivision (a) provides that “[a]ny parent . . . having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made. . . .” “If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . .” (§ 388, subd. (c).) Modification may be sought even after the reunification period has ended. (In re Eric E. (2006) 137 Cal.App.4th 252, 258.)
There are two parts to the prima facie showing a parent bringing such a petition must make in order to proceed by way of a full hearing: (1) that there is a genuine change of circumstances or new evidence, and (2) that revoking the previous order would be in the best interests of the children. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) While the petition should be liberally construed in favor of granting a hearing, if the allegations in a petition so construed do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. (Id. at p. 309.) After reunification services have been terminated, the focus is on the child’s need for permanency and stability; the parent’s interest in the custody and companionship of the child is not paramount. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) A mere showing of “changing” circumstances is not enough. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) “In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.]” (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
In support of his claim that the court should have granted him a hearing on his section 388 petition, father asserts that the changed circumstance was that he did not have to serve a six-year prison term. He argues that the court terminated reunification services “based in part” on his unresolved criminal matters. He insists that the fact that he only had to serve a six-month term in county jail rather than serve a lengthy prison service was a new or changed circumstance.
The record does not support father’s argument that his serving six months in county jail rather than a prison term was a new or changed circumstance. In fact, at the six-month review hearing, where the court terminated father’s reunification services, the court stated: “Well I mean, your client is looking at at least six months in the county jail if not state prison. So that will affect his availability obviously.” Moreover, counsel for department stated, “I don’t think [father’s] sentence will affect the department’s decision at all.” Contrary to father’s argument, the court was very aware when it terminated reunification services that father may not serve any prison time. At the time the court terminated father’s reunification services it expressly stated that father was “looking at at least six months” in county jail, which was what father, in fact, faced and served. We therefore conclude that the fact that father only served six months in county jail was not a new or changed circumstance.
Not only was there no changed circumstance, but the record does not support father’s claim that the court terminated his reunification services because of his possible incarceration. The record indicates that father’s reunification plan included seven items; one item was that he would resolve all pending criminal matters. Nothing in the record supports father’s argument that this one item in his reunification plan was pivotal. At the six-month review hearing, father had not consistently visited the children and had failed to participate in counseling, substance abuse treatment, drug testing, domestic violence offender programs, 12-step meetings, and parenting classes. Thus, the evidence shows that reunification services were terminated, not simply because father possibly faced prison time, but because he had not complied with any part of his reunification plan.
Although father’s failure to make a prima facie showing of a change of circumstances is sufficient to support the lower court’s ruling, we note that father also has completely failed to make a prima facie showing that reunification services would be in the best interest of the children. Father claims that he had maintained a bond with the children and that his visits, although at times sporadic, always remained positive. However, the record documents that father had not visited the children consistently. Father had been offered approximately 64 supervised visits with his children since their removal on June 28, 2007. Of these 64 scheduled visits, he attended 34 on time; he arrived late six times, canceled 12 times, failed to arrive five times, and missed seven visits due to incarceration. Further, father had not attended any parenting classes.
Department noted that father was loving and engaged when he did visit the children and the girls appeared to be happy when they saw them. However, the girls were “able to separate easily from their parents, smiling and waving when they leave, and they do not appear to have any residual transition problems when back with their foster parents’ home.” Thus, the children’s bond with their father did not appear to be particularly strong.
Additionally, father’s drug abuse problem and failure to address this problem support a finding that he cannot provide a stable home for the children and that reunification services would therefore not be in the children’s best interest. Father had finally started to attend counseling and was engaged in the process, but by the time of the section 366 hearing he had only completed eight of the authorized 24 sessions. He provided no evidence that he had attended any 12-step program. Father admitted that he had a problem with using methamphetamines and explained that he had missed his court drug testing appointments because he knew he would have tested positively for drugs.
The record established that father had visited the children inconsistently, that he had not developed a particularly strong bond with them, that he had not attended any parenting classes, and that he was still using drugs just before the section 366.26 hearing. Accordingly, father did not provide prima facie evidence on how the provision of reunification services would serve the children’s best interests.
Father acknowledges that he did not expressly explain how the provision of reunification services would serve the children’s best interests, but he contends that his situation is similar to the one in In re Jeremy W. (1992) 3 Cal.App.4th 1407 (Jeremy). The lower court in Jeremy had summarily denied mother’s section 388 petition that she filed immediately before a section 366.26 hearing. (Jeremy, supra, at p. 1413.) The mother in Jeremy, had successfully complied with her court-ordered reunification plan, with the sole exception of maintaining stable housing, by the time of the 12-month review hearing. (Id. at p. 1414.) The court terminated reunification services because it concluded the failure to obtain stable housing indicated there was no likelihood of reunification within the next six months. (Ibid.) Within five months, mother filed a section 388 petition and submitted evidence that she had continued to comply with all elements of the reunification plan and had cured the housing problem. (Id. at pp. 1415-1416.) Additionally, she presented evidence that her child wished to be reunited with her, that there was a significant risk of harm to the child were he separated from her, and that he could be returned to her full physical custody within one month. (Ibid.) On this record, the reviewing court in Jeremy concluded that the lower court should not have denied mother a hearing on her section 388 petition. (Ibid.)
Father asserts in a conclusory fashion that his situation is similar to the one in Jeremy. However, the facts in Jeremy were significantly different from the present facts. In Jeremy, the mother had completely complied with her reunification plan in every respect except for her housing situation. Her changed circumstance was the sole reason for the lower court’s terminating reunification services. Here, even if we presume that father’s sentence was a changed circumstance, his possible prison sentence was not the sole reason for the lower court’s decision to terminate his reunification services; father had failed to comply with almost every aspect of his plan. Further, the petition’s allegations in Jeremy supported an implied allegation that the best interests of the child would be served by the changed order because the only basis that previously existed to prevent reunification had evaporated and there was evidence of harm to the child were the order not changed. Here, as already stressed, the court had many reasons for terminating father’s reunification services since he had failed to comply with any portion of his plan. Further, the evidence did not support a finding that the best interests of the children would be served by the changed order because father continued to have a drug problem, had not attended his parenting classes, and had not consistently visited the children.
Accordingly, we conclude that father has failed to make a prima facie showing that his circumstances had changed or that reinstating his reunification services would serve the best interests of T.G. and A.G., and therefore the lower court did not abuse its discretion in summarily denying father’s section 388 petition.
Since we conclude that the lower court properly denied father’s section 388 petition without a hearing, we need not address father’s claim that not having a hearing on his section 388 petition increased the risk of erroneous findings under section 366.26.
II. The Court’s Findings that the Children Were Adoptable
Father contends that the adoption assessment in the juvenile court failed to meet the statutory requirements because it did not assess the sibling bond. This inadequate assessment, he claims, establishes that insufficient evidence supported the court’s finding that the children were adoptable.
After termination of reunification services, if a juvenile court determines, based on the appropriate assessment and any other evidence, and subject to certain exceptions, “by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.” (§ 366.26, subd. (c)(1); see Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250.)
“[W]hat is required is clear and convincing evidence of the likelihood that the children will be adopted within a reasonable time either by the prospective adoptive family or some other family.” (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) “The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
The existence of a prospective adoptive parent, who has expressed interest in adopting a dependent child, constitutes evidence that the child’s age, physical condition, mental state, and other relevant factors are not likely to dissuade individuals from adopting the child. Thus, a prospective adoptive parent’s willingness to adopt generally indicates the child is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
We “ ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence––that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find [that termination of parental rights is appropriate based on clear and convincing evidence].’ ” (In re Angelia P. (1981) 28 Cal.3d 908, 924, superseded by statute on other grounds.) “When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
To the extent that father is arguing that the adoption assessment does not meet the statutory requirements, he has waived this argument. Specifically, father asserts that the assessment failed to evaluate the nature of the bonds between the two girls and their half siblings when considering the placement. Father did not challenge the adequacy of the assessment on any grounds in the lower court. “Having failed to object to the assessment’s adequacy in the juvenile court,” father has “waived any such objection on appeal.” (In re A.A. (2008) 167 Cal.App.4th 1292, 1317; In re Brian P. (2002) 99 Cal.App.4th 616, 623.)
Section 366.22, subdivision (b)(1)(B) provides that an adoption assessment shall include “[a] review of the amount of and nature of any contact between the child and his or her parents and other members of his or her extended family since the time of placement. Although the extended family of each child shall be reviewed on a case-by-case basis, ‘extended family’ for the purposes of this subparagraph shall include, but not be limited to, the child’s siblings, grandparents, aunts, and uncles.”
Father, however, may contest the ruling of adoptability on the basis of insufficient evidence, since department had the burden of proving the children’s adoptability. (In re A.A., supra, 167 Cal.App.4th at p. 1317.) We conclude, however, that the record supported the finding of adoptability.
Here, the assessment included a full evaluation of the girls’ ages, physical condition, and emotional state. The girls had slight developmental delays and minor medical issues, but were reportedly thriving in their placement. Moreover, a family wanted to adopt both girls. As already noted, a prospective adoptive parent’s willingness to adopt generally indicates the child is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
Father contends that the assessment failed to properly address the nature and quality of the girls’ history, sibling visits, and bonds with their half siblings, and therefore substantial evidence did not support the lower court’s findings. Although father contends that he is making a substantial evidence argument, he is essentially asserting that the assessment was inadequate. As already explained, that argument is waived. To the extent that he is really arguing insufficient evidence, the assessment was not completely devoid of any evidence regarding the girls’ relationship with their half siblings. The assessment described the girls’ relationship with their half siblings as de minimis. Under the substantial evidence test, this was some evidence. Given all the evidence of the girls’ adoptability, we conclude that substantial evidence supported the lower court’s finding that department established by clear and convincing evidence that the children were adoptable.
Once a juvenile court finds by clear and convincing evidence that a child is likely to be adopted, it must terminate parental rights unless an expressly enumerated statutory exception applies. (§ 366.26, subd. (c)(1)(B)(i)-(vi).) Here, the only possible exception implied by father’s argument is the following: “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.” (§ 366.26, subd. (c)(1)(B)(v).)
The party opposing termination has the burden of proving that the exception applies. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953.) Thus, father has the burden of proof. Since father never raised this statutory exception in the lower court, he presented no evidence on this issue.
Further, the record contained evidence that the placement would not substantially interfere with the sibling relationship. The prospective family wanted to adopt both girls so their bond remained intact. There is no evidence that the girls had a significant bond with their half siblings. The girls were less than three years old when taken into protective custody and the record indicates that they had no contact with their half siblings after being removed from the home. Nothing in the record indicates that they were old enough to create “close and strong bonds” based on “shared significant common experience.” (§ 366.26, subd. (c)(1)(B)(v).) At the time the girls had been removed from the home, neither of the half siblings was living with mother or father. One had been living with her paternal grandparents since April 2007. The other half sibling lived with his birth father and, on July 16, 2007, his father had filed for full legal custody of him. Indeed, the state adoption specialist described the girls’ relationship with their half siblings as follows: “It is unclear from the record the extent to which the children have had contacts in the past with the half siblings. By all indications, however, the contacts have been de minimus.”
Accordingly, we conclude that substantial evidence supported the lower court’s finding that the two girls were adoptable.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Richman, J.