Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. J515803B, D-E, Hideo Chino, Commissioner.
NARES, Acting P. J.
Debra P. appeals an order terminating her parental rights to her son, D.I., and an order denying her Welfare and Institutions Code section 388 petition regarding D.I. and two of her other children, V.P. and Z.M. She contends the court erred by denying her section 388 petition without a hearing and by not applying the beneficial parent-child relationship exception to adoption of section 366.26, subdivision (c)(1)(A) and the sibling relationship exception of section 366.26, subdivision (c)(1)(E). We affirm the orders.
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.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
FACTUAL AND PROCEDURAL BACKGROUND
On May 3, 2005, the San Diego County Health and Human Services Agency (the Agency) petitioned under section 300, subdivision (b) on behalf of Debra's five children: 15-year-old L.H.; 12-year-old V.P.; 10-year-old S.P; five-year-old Z.M.; and three-year-old D.I., alleging the children were at substantial risk because Debra suffered from a mental illness. V.P., Z.M. and D.I. are the subjects of this appeal.
Police, neighbors, social workers, hospital staff and school personnel had reported concern about Debra's mental health. The home was cluttered and had a terrible stench, and the apartment manager reported Debra locked the children out of the home for hours at a time so that she could pray for world peace. Debra was hospitalized. Medical personnel reported she was psychotic and had auditory hallucinations. There had been numerous past referrals to child welfare services regarding the family. L.H. said she was living with her paternal grandmother because she was tired of caring for the other children. The fathers of the children had criminal histories. Two were in prison, another was deceased. The court ordered the children detained.
Debra was hospitalized again on May 12, 2005, and again on June 14. She refused medication and said she was her own doctor. On June 2 she abducted D.I. and V.P. from their foster home. They were returned by an unidentified man the following day. On June 30 the court sustained the petitions, removed the children from Debra's custody and ordered reunification services.
Debra's psychological and psychiatric evaluations reported she suffered from "undifferentiated schizophrenia with fluctuating delusional patterns." Debra began participating in services of her reunification plan. She was under the care of a psychiatrist and a psychologist; she completed a parent education program and had consistent visitation with the children.
At the six-month hearing on March 7, 2006, the court ordered additional services for Debra and for Z.M.'s father. It granted Debra unsupervised visitation and gave the Agency discretion to allow V.P. and S.P. to begin a 60-day trial visit with her. On June 28 Z.M. was placed with his father.
V.P. and S.P. began the trial visit on March 9, 2006, but they were removed on March 31. V.P. said Debra hit, pushed and shoved her, pulled her hair and threw her to the floor. Debra gave S.P. cough medicine when he was not sick and she kept both children home from school for several days. S.P. said on one occasion Debra shoved him and then yelled, "Come on, fight back." Debra said she had "fired" her psychologist and her psychiatrist. Police were called when she tried to pick up S.P. from school after he had been removed from her care. They were called again when she threatened to take D.I. from his foster home. Supervised visits were terminated by the visitation facility because Debra refused to cooperate with visitation staff. On July 13 Debra was hospitalized again. Also, on June 29, V.P. had left her paternal grandmother's home after an argument, and Debra would not disclose V.P.'s whereabouts. V.P. was located on August 3 and temporarily placed in a friend's home.
At the 12-month hearing on August 16, 2006, the court found Debra had not made substantive progress with the provisions of her case plan and terminated services. It continued Z.M.'s placement with his father and set a section 366.26 hearing for the other children.
The social worker recommended D.I. be adopted and recommended another planned living arrangement as permanent plans for V.P., L.H. and S.P. D.I. was in good health, attractive and intelligent. Debra's visits had been sporadic. The social worker observed that during visits, D.I. constantly sought Debra's attention and voraciously ate the sugared snacks she brought and listed new toys for her to buy for him. Debra told him it was the Agency's fault she did not visit more often. The visitation center monitor reported Debra discussed inappropriate topics with D.I., she did not set limits for him, and he had become increasingly hostile and demanding during visits. In February 2007 D.I. was moved to a home with a family who was committed to adopting him. His therapist reported D.I.'s behavior regressed after each contact with Debra. The social worker opined there had not been much change to Debra's attitudes and actions from the time the children were first removed.
On May 15, 2007, Debra petitioned under section 388, asking that V.P., Z.M., and D.I. be returned to her care. She alleged she had maintained a relationship with D.I. and could provide a stable and safe home. The court denied the petition without a hearing. Debra then submitted to the Agency's recommendation of placing Z.M. with his father and terminating jurisdiction. The court terminated jurisdiction as to Z.M. and ordered he would have no visitation with Debra. Debra also submitted to the Agency's recommendations for V.P., L.H. and S.P. The court ordered another permanent planned living arrangement as the plans for these children.
For the May 15, 2007 section 366.26 hearing regarding D.I., Debra's psychiatrist testified he began treating Debra as an outpatient in October 2006. He said she responded to treatment very well and was compliant with medications. She told him she had a close relationship with her children and had done her best for them. He opined they would not be at risk in her care, but admitted he had never seen her with the children and did not know why they had been removed.
The social worker recommended D.I. be adopted. She opined D.I. and Debra did not share a parent-child relationship. She said he was in a home with a family who wanted to adopt him, and there were eight other families in San Diego County and 22 families outside the county who wanted to adopt a child like him. The social worker said that during visits D.I. sometimes referred to Debra as "mommy" and sometimes said he loved her. The social worker said D.I. suffered from post traumatic stress disorder and contacts with Debra triggered his symptoms of this disorder. She said D.I. rarely spoke of his siblings unless he saw pictures Debra had of them, and he did not ask for visits with them unless Debra encouraged him to do so. She testified D.I. told her he wanted to live in his prospective adoptive home even after he was grown up.
Debra testified D.I. had lived with her and his siblings for the first three years of his life and they had a close relationship. She said the bond between V.P. and D.I. was especially close, and D.I. often talked about V.P. and asked to visit her. Debra said she had regular visits until she was advised she could no longer visit, and when she could not see D.I., she telephoned him every week. She said her requests for more visits were denied. She said D.I. always asked when he could go home with her.
The court found D.I. was adoptable and none of the statutory exceptions to adoption were applicable. The court terminated Debra's parental rights to D.I. and referred the matter for adoption.
DISCUSSION
I. Denial of Debra's Section 388 Petition
Debra contends the court erred by denying her section 388 petition without a hearing. She argues her assertions in the petition, that she had maintained a relationship with D.I., she could provide a safe home and it was in the children's best interests to grow up in the same household, were sufficient to warrant a full evidentiary hearing.
A. Authority
Section 388 provides in part:
"(a) Any parent or other person 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 in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . . [¶] . . . [¶]
"(c) 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 . . . ."
In order to gain the relief sought in a section 388 petition, the petitioner must show both a change of circumstances or new evidence and that the change sought is in the child's best interests. (§ 388; Cal. Rules of Court, rule 1432(c); In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) "It is not enough for the parent to show just a genuine change of circumstances under the statute[,] the parent must [also] show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) A petition is liberally construed in favor of its sufficiency. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) The petitioner bears the burden of proof, however, to make both showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
"[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court must order the hearing." (In re Angel B., supra, 97 Cal.App.4th at p. 461.) " ' "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." ' [Citations.]" (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.)
Debra's argument this court must review denial of an evidentiary hearing de novo is incorrect. The juvenile court has discretion to deny the request for an evidentiary hearing if the petitioner has not made a prima facie showing. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) "The [section 388] petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (Ibid.) A reviewing court will not disturb a court's discretionary ruling in a dependency proceeding " ' "unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." ' [Citations.]" (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
B. Application
The court did not abuse its discretion by denying Debra's petition without an evidentiary hearing. The court reasonably found Debra had not made a showing of changed circumstances or that it would be in V.P.'s, Z.M.'s or D.I.'s best interests to be returned to her care.
Debra's psychiatrist testified that Debra had been under his care and was taking prescribed medications. However, Debra had a history of complying with her medical requirements and then stopping and slipping back into mental illness. She was hospitalized for mental illness in April 2005. She was again hospitalized on May 12, 2005, and again in June 2005. She began making progress and in March 2006, V.P. and S.P. were returned to her care for a 60-day trial visit. However, her mental illness returned. The children reported she hit and slapped them, pulled their hair and gave them long lectures. V.P. said the situation was scary, and they did not feel safe in Debra's care. In May, June and July 2006 Debra suffered a serious relapse. In July 2006 she was involuntarily committed to a psychiatric facility because she was making violent threats. Although at the time of the May 5, 2007 hearing she had been under a psychiatrist's care for some months and was complying with her medication regimen, she had a history of compliance followed by periods of not complying with her medical requirements. She did not show changed circumstances.
Further, Debra did not show the change she proposed was in the children's best interests. Debra alleged she was able to "provide a stable and safe home which is in their best interest." However, there was not any evidence that she could provide a safe home for the children. Her visits with D.I. and V.P. were supervised, and she had not had a visit with Z.M. since April 2006. Debra had not been able to care safely for the children before the dependency. One of her neighbors had reported buying groceries for the family, and another took the children to school because Debra did not do so. When V.P. and S.P. lived with her during the 60-day trial visit, she was abusive to them and did not take them to school or to their therapy appointments. Between the six-month review and the section 366.26 hearing, there were times when her whereabouts were unknown and she did not regularly see the children.
Throughout the dependency, Debra did not accept the need for juvenile court intervention. She told D.I. it was the court's fault that she did not visit more often. She had a difficult time accepting the fact of her mental health problems and had a history of stopping her medications. During the 60-day trial visit with V.P. and S.P., she stopped taking her medications and said she had "fired" her psychiatrist and therapist. D.I.'s therapist opined that his symptoms of post traumatic stress disorder were triggered by contact with Debra, and he was anxious before visits with her.
Debra has not shown the court abused its discretion in finding she did not make a prima facie showing sufficient to warrant an evidentiary hearing on her section 388 petition.
II. The Beneficial Parent-Child Relationship Exception to Adoption
Debra asserts the court erred by not applying the beneficial parent-child relationship exception to adoption of section 366.26, subdivision (c)(1)(A). She argues she visited D.I. regularly and maintaining the close relationship they shared outweighed the benefits to him of adoption.
A. Authority
Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parents' burden to show termination of parental rights would be detrimental because one of the specified exceptions of section 366.26, subdivision (c)(1)(A) exists. (In re Autumn H., supra, 27 Cal.App.4th at p. 574.) Under the exception in section 366.26, subdivision (c)(1)(A), the parent must show termination would be detrimental in that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the exception of section 366.26, subdivision (c)(1)(A)]."
In In re Autumn H., supra, 27 Cal.App.4th, at pages 575-577, this court found substantial evidence to support an order terminating parental rights. This court stated:
"In the context of the dependency scheme prescribed by the Legislature, we interpret the 'benefit from continuing the [parent/child] relationship' exception to mean the relationship 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." (Id. at p. 575.)
In reviewing whether sufficient evidence supports the trial court's finding, the appellate court reviews the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th, at p. 576.)
B. Application
Substantial evidence supports the court's finding the beneficial relationship exception did not apply. Debra did not visit D.I. regularly during parts of the dependency period. At the section 366.26 hearing, she testified that at one point she did not see him for about five months. The social worker testified there were times Debra did not visit, and her telephone calls were sporadic.
Further, the evidence did not show the relationship Debra had with D.I. was beneficial to him. Although she and D.I. had affectionate visits together, D.I.'s therapist reported contacts with Debra triggered D.I.'s post traumatic stress disorder symptoms and continued contact with her was not beneficial for him. The social worker agreed with this assessment. When the social worker came to take D.I. to visits, he sometimes would lock the car door and not allow the social worker to drive him. He appeared to look forward to visits when Debra had promised him toys and sweet snacks, but at times he would say he did not want to visit Debra. At the end of visits she prolonged their goodbyes, causing D.I. to become anxious. D.I. was attached to his prospective adoptive parents and said he wanted to stay with them even after he was a grownup. Debra has not shown the court erred by not finding she had a beneficial parent-child relationship with D.I. that would outweigh the benefits to him of adoption.
III. The Sibling Relationship Exception to Adoption
Debra contends the court erred by not applying the sibling relationship exception to adoption of section 366.26, subdivision (c)(1)(E). She contends the exception applies because D.I. had a strong bond with his siblings, especially V.P., and adoption would interfere with their relationship.
A. Authority
The exception to adoption of section 366.26, subdivision (c)(1)(E) relates to the relationship among siblings. It requires that adoption must be ordered if the court finds the child will be adopted within a reasonable time
" 'unless the court finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child' because '[t]here would be substantial interference with a child's sibling relationship . . . .' (§ 366.26, subd. (c)(1)(E).)" (In re Daniel H. (2002) 99 Cal.App.4th 804, 811.)
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. (2002) 104 Cal.App.4th 395, 404.) The sibling relationship exception contains "strong language creating a heavy burden for the party opposing adoption." (In re Daniel H., supra, 99 Cal.App.4th at p. 813.) Factors for the court to consider include the nature and extent of the sibling relationship, whether the siblings were raised in the same home, whether they share a close bond and whether continued contact is in the child's best interests as compared to the benefits of adoption. (§ 366.26, subd. (c)(1)(E).) The court considers the best interests of the adoptive child, not the best interests of other siblings. (In re Daniel H., supra, 99 Cal.App.4th at p. 813.)
B. Application
D.I. had lived together with his siblings for the first three years of his life. He had been in foster care for two years. L.H.and V.P. said they did not want him to be adopted. However, D.I. spoke of them only when Debra mentioned them or when he saw the pictures of them on her key ring. The social worker opined D.I. would benefit more from the stability of an adoptive home than he would from continuing his relationship with his siblings. The court was entitled to rely on the social worker's opinion. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420-1421.) Debra has not shown the court erred by not applying the sibling relationship exception to adoption.
DISPOSITION
The orders are affirmed.
WE CONCUR: McINTYRE, J. IRION, J.