Opinion
E067618
08-17-2017
In re J.H., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.W. et al., Defendants and Appellants.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant D.W. Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant J.H. Lelah S. Fisher, under appointment by the Court of Appeal, for Defendants and Appellants T.S. and M.G. Jean-Rene Basle, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J264301) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant D.W. Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant J.H. Lelah S. Fisher, under appointment by the Court of Appeal, for Defendants and Appellants T.S. and M.G. Jean-Rene Basle, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
D.W. (Mother) and J.H. (Father) have a history of abusing drugs that led to the San Bernardino County Department of Children and Family Services (CFS) removing their three children from their home. The parents' reunification services were terminated as to their two older children, M.H. and S.H., in 2015. The two older children reside with their legal guardians and nonrelative extended family members (NREFM), M.G. and T.S. Subsequently, both parents were denied reunification services as to their youngest child, J.H., pursuant to Welfare and Institutions Code section 361.5, subdivisions (b)(10), (b)(12), and (b)(13). About four months later, the parents each filed section 388 petitions as to J.H., which were summarily denied. The parents appealed from the juvenile court's orders denying their section 388 petitions, and this court affirmed the juvenile court's orders in case No. E066695.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
Approximately nine months after J.H. was detained, at J.H.'s section 366.26 hearing, the parents requested M.G. and T.S. be considered for placement of J.H. Previously, there was no contact between the parents and M.G. and T.S. as they were unaware of J.H.'s birth. M.G. and T.S. subsequently filed a section 388 petition requesting sibling visitation, assessment of their home, and placement of J.H. with them under a plan of adoption or legal guardianship. Following an investigation, CFS learned that M.G. was Mother's ex-boyfriend and father to another of Mother's children, M.W. (J.H.'s half sibling). CFS also discovered that M.G. and T.S. had M.H. and S.H. under a legal guardianship as they were unable to adopt them due to M.G.'s criminal history. The juvenile court denied M.G. and T.S.'s section 388 petition, finding it was not in J.H.'s best interest. The juvenile court thereafter found no exceptions to adoption and terminated parental rights.
On appeal, M.G. and T.S., with the parents joining, argue that the juvenile court erred in denying their section 388 petition and that the court improperly denied sibling visitation. Mother, with Father joining, also argues that the juvenile court erred in failing to apply the beneficial parental relationship and the sibling relationship exceptions to termination of parental rights. We reject these contentions and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background up until the November 16, 2016 hearing is taken from this court's prior unpublished opinion. (In re J.H. (Apr. 20, 2017, E066695) [nonpub. opn.].)
Mother and Father are parents of three young children: five-year-old M.H., three-year-old S.H., and 15-month-old J.H. They both have a history of abusing drugs, lengthy criminal histories, and a history with CFS. Mother began using amphetamines/methamphetamines on a daily basis when she was 12 years old. She has a criminal history involving drug charges from 2009 through 2013, as well as two prior charges for robbery in 2001 and 2002. Father also has a criminal history involving numerous arrests and/or convictions for theft, drugs, burglary, battery on spouse/cohabitant, attempted burglary, and vehicle theft from 2008 through 2015. Father is on formal probation until January 2019.
The parents had a juvenile dependency case involving M.H. and S.H. from October 2013 through March 2015. Mother was incarcerated at the time, and her reunification services were terminated in 2014. A few months later, Father's reunification services were terminated. M.H. and S.H. now reside with their legal guardians and NREFM's, M.G. and T.S.
While pregnant with J.H., Mother went to the hospital on February 9 and again on February 18, 2016, to be induced. She tested positive for amphetamines on both occasions. Mother gave birth to J.H. in late February 2016. J.H. tested negative at birth and did not display withdrawal symptoms. J.H. was eventually discharged to the custody of her parents.
After receiving a referral, the social worker investigated the family. Mother denied current drug use despite the recent positive drug tests and claimed she had been clean for two years. She asserted that she reached into the toilet to retrieve a drug pipe tossed in by Father's " 'street sister' " who was " 'throwing her drugs out.' " Mother believed the drug was absorbed into her system from the toilet water before she rinsed her hands.
Father reported that he last used drugs in November 2015, when he was arrested for possession for sale. He claimed that he was sober since his release on January 5, 2016, and that he takes drug tests on demand for his employment an average of three or four times per week. He was also required to attend one Narcotics Anonymous (NA) meeting per day as part of his program for parolees.
CFS detained J.H. based on Mother's positive drug test, Father's recent drug use and arrest, and the parents' history with CFS. And, on March 1, 2016, CFS filed a section 300 petition on behalf of J.H. pursuant to section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling), based on the parents' substance abuse and failure to previously reunify with J.H.'s siblings.
At the March 2, 2016 detention hearing, J.H. was formally detained and the parents were provided with services pending the dispositional hearing, supervised visitation, and ordered to drug test. The parents were also informed that they may not be provided with reunification services.
In the March 23, 2016 jurisdiction/disposition report, CFS recommended that no reunification services be offered to either parent pursuant to section 361.5, subdivisions (b)(10) and (b)(13), and that a section 366.26 hearing be set to establish a permanent plan of adoption for J.H. When interviewed, Mother again claimed that she had not used drugs for over two years. She continued to maintain that she recently tested positive because she was helping Father's " 'street sister' " dispose of a drug pipe. She acknowledged she had a history of using drugs on a daily basis since she was 12 years old. Mother stated that she was incarcerated during the prior dependency matter and could not take advantage of the reunification services offered to her.
Father claimed that he had been taking care of his drug addiction since he was released from prison by enrolling in a drug program and testing every day he attended the program. He agreed with Mother's explanation of her positive drug test. Father also stated that he was no longer involved with criminal activity and that he was abiding by the terms and conditions of his parole. The parents had been residing with the maternal grandfather but had recently moved out of the home due to the maternal grandfather's use of marijuana, and were living in a hotel until they could find adequate housing.
CFS opined that the parents had not shown any significant change in their lifestyle since the removal and termination of their reunification services for their older children in 2014. CFS referred Mother to counseling, parenting classes, substance abuse classes, and substance abuse testing. Father indicated that he was enrolled in a program called Probationers Recovering through Intervention and Drug Education (PRIDE) through the probation department and that he attended four nights a week. At PRIDE, Father received substance abuse classes, individual therapy, and group therapy. Both parents were attending NA meetings and had provided an attendance sheet to CFS. Both parents also visited J.H. once a week for two hours and the visits were described as appropriate. The parents willingly engaged and interacted with J.H.
At the March 23, 2016 jurisdictional/dispositional hearing, the matter was referred to mediation, and the hearing was set contested in the event mediation was not successful.
The parties were unable to reach a mediated resolution and, therefore, the matter was heard on Apri1 20, 2016. Following arguments, the juvenile court found the allegations in the petition true and declared J.H. a dependent of the court. The juvenile court denied reunification services to the parents pursuant to section 361.5, subdivisions (b)(10), (b)(12), and (b)(13).
Less than four months later, on August 3, 2016, Father filed a section 388 petition seeking increased and unmonitored visits, as well as weekend and overnight visits in addition to informal services under a permanent plan living arrangement for eventual return of J.H. to his custody. He claimed that he had been testing negative for drugs, consistently attending a substance abuse outpatient treatment program, parenting and counseling classes, and regularly visiting J.H. He also alleged that he had a stable income and housing and that he had a bond with J.H. In support, Father attached a letter dated July 11, 2016, from Mental Health Systems verifying his progress, a certificate award from PRIDE noting Father had been clean for six months, a certificate of completion of phase one from PRIDE, Father's attendance sheets from NA meetings, and Father's negative drug test results.
On August 8, 2016, the juvenile court summarily denied Father's section 388 petition, finding that there was no evidence of changed circumstances or that the proposed change order would be in J.H.'s best interest.
On August 12, 2016, Mother filed a section 388 petition contending that she had engaged in services, and that she had been diligently visiting J.H. and established a bond to the extent possible under the current circumstances. She requested that J.H. be returned to her care under family maintenance or she be granted reunification services to reunify with J.H. In support, Mother attached an attendance sheet for her parenting program, a proof of discharge from probation on May 7, 2016, a certificate of completion from her outpatient substance abuse program dated June 23, 2016, a certificate of completion of a 12-hour parenting program dated June 18, 2016, and attendance sheets from her NA meetings and her group therapy.
On August 16, 2016, the juvenile court summarily denied Mother's section 388 petition, finding no change of circumstances, and the change order was not in the best interest of the child.
CFS recommended that the section 366.26 hearing be continued for 120 days to allow for the permanent plan of adoption to be implemented. A concurrent adoptive home had been identified for J.H., but CFS requested more time to complete an assessment. J.H. had been in her former placement from February 26, 2016 through June 2, 2016. However, she was removed to a special needs home, which was her concurrent prospective adoptive home, due to her cleft palate. J.H. and her prospective adoptive caregivers appeared bonded to each other, and they were providing her basic needs. Meanwhile, the parents had continued to regularly visit J.H.
On August 18, 2016, the juvenile court granted a 90-day continuance of the section 366.26 hearing and set the matter for November 16, 2016.
Thereafter, on August 18, 2016, both Mother and Father filed separate notices of appeal from the denial of their section 388 petitions without a hearing.
Subsequently, this court found the juvenile court did not err and affirmed the orders denying the parents' section 388 petitions.
CFS recommended terminating parental rights and adoption as J.H.'s permanent plan with her prospective adoptive parents. The parents requested that the siblings' home be considered for placement. The juvenile court requested CFS to consider the siblings' home for placement of J.H. but indicated that it was not ordering any change of placement at that time. The court maintained J.H.'s placement with her prospective adoptive parents, and denied Mother's request to authorize sibling visitation. The court noted the siblings' case was closed and it did not have authority to order sibling visitation.
On December 12, 2016, T.S. and M.G. filed a section 388 petition, requesting the court to change its order placing J.H. "for adoption without first considering the willing and available home of her 3 siblings." T.S. stated that she and M.G. were first made aware of J.H. on November 16, 2016, after Mother called them stating J.H. was being placed for adoption. T.S. thereafter began contacting CFS social workers and documented her efforts to communicate with CFS social workers regarding J.H. T.S. requested visits between J.H. and her siblings, an assessment of her and M.G.'s home, and placement of J.H. with them under a plan of adoption or legal guardianship. T.S. asserted she and M.G. already had legal guardianship of J.H.'s full brothers and full legal custody of J.H.'s older half brother.
The juvenile court ordered a hearing on the section 388 petition at the same time as the contested section 366.26 hearing set for January 20, 2017. The court also ordered the social worker to consider/assess placement of J.H. with her siblings.
CFS recommended that the court deny the section 388 petition and that J.H. remain with her prospective adoptive parents. CFS interviewed T.S. and M.G., and discovered M.G. was Mother's ex-boyfriend and father to J.H.'s half brother M.W. M.H. and S.H. had been placed with T.S. and M.G. when they were two and a half years old and 10 months, respectively. T.S. and M.G. reported that they were unable to adopt M.H. and S.H. due to M.G.'s criminal history. They noted that although they wanted to adopt M.H. and S.H., they were afraid an adoption home study would not go through. They stated that they eventually desired to adopt M.H. and S.H. They also wanted to adopt J.H. but were willing to be legal guardians of her if adoption was not an immediate option. If they were denied placement of J.H., T.S. and M.G. desired ongoing sibling contact.
CFS reported that T.S. and M.G. appeared sincere in their desire to keep the siblings together. However, there were concerns that they may not be able to provide permanency for J.H. due to M.G.'s lengthy criminal history, which included multiple parole violations, and convictions for burglary, receiving stolen property, possession of paraphernalia, under the influence of a controlled substance, buying or receiving stolen property, vehicle theft, and accessory. CFS further noted that T.S. and M.G. are not relatives of J.H., and neither they nor her siblings had a relationship with J.H. On the other hand, J.H. was bonded and attached to her prospective adoptive parents, who were meeting the child's special needs and were willing and able to adopt her and facilitate sibling visits. CFS opined that it would create emotional harm and trauma to remove J.H. from her prospective adoptive parents.
CFS also reported that the parents had regularly and consistently visited with J.H. However, while the parents interacted appropriately with J.H. and J.H. appeared comfortable with them, she did not appear attached or bonded with them. The social worker noted J.H. was more attached and comfortable with her prospective adoptive parents and interacted more easily with them, while the parents struggled, at times, to gain J.H.'s attention.
On January 20, 2017, following argument, the juvenile court denied the section 388 petition for placement of J.H. with T.S. and M.G. because it was not in J.H.'s best interest. The court noted J.H. did not have a relationship with either the siblings or T.S. and M.G. Thereafter, the court heard arguments from the parties concerning parental rights. Following argument, the court found J.H. adoptable and terminated parental rights, finding no applicable exception to termination applied. This appeal followed.
III
DISCUSSION
A. Denial of Section 388 Petition
T.S., M.G., and Mother argue the juvenile court abused its discretion in denying T.S. and M.G.'s section 388 petition seeking modification of the November 16, 2016 order placing J.H. in an adoptive home without an evidentiary hearing. T.S. and M.G. sought placement of J.H. in their home, visits between J.H. and her siblings, and a formal assessment of their home. T.S., M.G. and Mother argue that the court's denial of the section 388 petition was an abuse of discretion because T.S. and M.G. presented new evidence, CFS failed to place the siblings together, T.S. and M.G. qualified as NREFM's, and placing J.H. with them and her siblings was in J.H.'s best interest.
Father has joined and adopted Mother's substantive arguments.
Under section 388, a juvenile court order may be changed or set aside "if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re Zachary G. (1999) 77 Ca1.App.4th 799, 806 (Zachary G.).) "[I]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition." (Ibid.; § 388, subd. (d) ["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 . . . ."].) The 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., at p. 806.) We review the juvenile court's order denying a section 388 petition without an evidentiary hearing for abuse of discretion. (Id. at p. 808.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . ." (In re Kimberly F. (1997) 56 Ca1.App.4th 519, 522.)
Assuming, without deciding, T.S. and M.G.'s recent knowledge of J.H.'s existence could be construed as "new evidence," (Zachary G., 77 Cal.App.4th at p. 806) they cannot make a prima facie showing that placing J.H. with her siblings in their home was in J.H.'s best interest. As the juvenile court noted, J.H. did not have a relationship with either them or her siblings. Meanwhile, J.H. had been living with her prospective adoptive parents for about seven months. J.H. was bonded and attached to her prospective adoptive parents, who desired to adopt her and provide her with a stable, loving home. Her prospective adoptive parents were meeting J.H.'s needs and providing her with the special medical care she required due to her cleft palate. CFS opined that it would create emotional harm and trauma to remove J.H. from her prospective adoptive parents.
T.S. and M.G. argue the juvenile court committed reversible error in concluding neither visitation nor permanent placement of J.H. with her siblings in their home presented prima facie evidence of best interest. In support, they assert public policy and legislative intent strongly favor placement of a dependent child with siblings, and if placement is not possible, sibling visitation. They further claim that the law favors placement with NREFM's over placement in foster care.
Contrary to T.S. and M.G.'s contention, there is no statutory obligation for CFS to place J.H. with her siblings. While there is a legislative intent to preserve sibling bonds, in this case there was no bond between J.H. and her siblings. The siblings had never met J.H. and it does not appear that they were even aware of her existence. Moreover, it was not until the continued section 366.26 hearing in November 2016 (more than eight months after J.H. was detained) that the parents requested the siblings' home to be considered for placement.
T.S., M.G., and Mother argue the juvenile court should have granted their section 388 petition because CFS failed to comply with section 16002 by making diligent efforts to place J.H. with her siblings. Section 16002 states that it is the Legislature's intent to preserve and strengthen the family unit by "ensuring that when siblings have been removed from their home . . . , the siblings will be placed in foster care together, unless it has been determined that placement together is contrary to the safety or well-being of any sibling." (§ 16002, subd. (a)(1).) To effectuate this intent, the responsible agency "shall make a diligent effort in all out-of-home placements of dependent children, including those with relatives, to place siblings together in the same placement, and to develop and maintain sibling relationships. If siblings are not placed together in the same home, the social worker . . . shall explain why the siblings are not placed together and what efforts he or she is making to place the siblings together or why making those efforts would be contrary to the safety and well-being of any of the siblings." (§ 16002, subd. (b).) Additionally, "[w]hen placement of siblings together in the same home is not possible, a diligent effort shall be made, and a case plan prepared, to provide for ongoing and frequent interaction among siblings until family reunification is achieved, or, if parental rights are terminated, as part of developing the permanent plan for the child." (§ 16002, subd. (b).) The statute sets forth a legislative goal of placing siblings together, but does not create a mandatory duty to do so. (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 642 ["[P]lacement with siblings is a legislative goal that does not create a mandatory duty. It is a factor to be considered in making the discretionary foster care placement."].)
T.S., M.G., and Mother reason that since CFS was required by section 16002 to place J.H. with her siblings and the juvenile court made no finding that placement of J.H. with her siblings was contrary to her safety or well-being, the juvenile court should have held a full evidentiary hearing on the issue of J.H.'s placement. However, the statute does not provide that either CFS or the juvenile court must place every dependent child with his or her siblings absent a finding that such placement is contrary to the safety or well-being of the child. Rather, it requires CFS to "make a diligent effort" to place siblings together, and only if such efforts are not made, to explain "why making those efforts would be contrary to the safety and well-being of any of the siblings." (§ 16002, subd. (b).) Here, the juvenile court ordered CFS to consider and assess the siblings' home for placement of J.H. The social worker included information concerning J.H.'s placement with her siblings, as well as sibling visits. The social worker noted that J.H.'s prospective adoptive parents and T.S. and M.G. were willing to pursue open communication and visits between J.H. and her siblings. The social worker also noted that it was not in J.H.'s best interest to change her placement, opining it would create emotional harm and trauma to J.H. to remove her from her current caregivers, to whom she was bonded and attached. Although section 16002 sets forth a legislative goal to place siblings together, T.S. and M.G. had not made a prima facie showing that a change in J.H.'s placement with her siblings was in her best interest.
T.S. and M.G. also argue that the juvenile court erred in denying their section 388 petition without a full evidentiary hearing because CFS failed to adhere to the NREFM statutes and CFS failed to give them notice as mandated under section 309, which would have allowed them to seek prompt placement of J.H. and sibling visitation. They request a remand directing the juvenile court to require CFS to make an explicit determination whether NREFM placement is appropriate under applicable statutory standards and submit a reconsidered recommendation for J.H.'s permanent plan.
The court must make orders for the care and custody of a child adjudged a dependent child. (§ 361, subd. (a).) When a child is ordered removed from his or her parents, the court must place the child under the supervision of the social worker, who may make any one of four specified placements. (§ 361.2, subd. (e).) The only placement option relevant here is: "[t]he approved home of a nonrelative extended family member [NREFM] as defined in Section 362.7." (§ 361.2, subd. (e)(3).) "In 1995, recognizing the importance of continuity of community, school, church and friends to dependent children who have been removed from their families, the Legislature enacted section 362.7, which permits a county welfare department to place a dependent child in the home of a NREFM. [Citations.]" (In re Michael E. (2013) 213 Cal.App.4th 670, 674 (Michael E.), superseded by statute on another point as indicated in In re Joshua A. (2015) 239 Cal.App.4th 208 (Joshua A.).) Section 362.7 defines a NREFM as any "adult caregiver who has an established familial . . . or mentoring relationship with the child. The county welfare department shall verify the existence of a relationship through interviews with the parent and child or with one or more third parties. The parties may include relatives of the child, teachers, medical professionals, clergy, neighbors, and family friends."
The social services agency has an affirmative duty to investigate, identify, and locate appropriate relatives, including but not limited to those relatives suggested by the parent. (§ 309, subd. (e)(1) ["If the child is removed, the social worker shall conduct, within 30 days, an investigation in order to identify and locate all . . . parents of a sibling of the child, if the parent has legal custody of the sibling . . . ."]; In re R.T. (2015) 232 Cal.App.4th 1284, 1296 (R.T.) ["Upon removing [the child] from his parents' custody, the agency was required to identify and locate adult relatives for possible placement, including relatives suggested by the parents."].) The social services agency must use due diligence in locating the parents of siblings and notify these parents the child has been removed and explain the various options regarding placement, care, guardianship, adoption, and visitation. (§ 309, subds. (e)(1)(A)-(B), (e)(3).)
T.S. and M.G. cite Michael E., supra, 213 Cal.App.4th 670 for the proposition the juvenile court abused its discretion in rejecting their request to assess their home for placement as NREFM's. Relying on Samantha T. v. Superior Court (2011) 197 Cal.App.4th 94, 108, the court in Michael E. stated: "An NREFM placement may be appropriate in cases where the child does not have an existing relationship with the individual seeking NREFM status, if that individual has a close connection with the child's family and placement will further the legislative goals of allowing the child to remain in familiar surroundings, facilitating family reunification or providing a culturally sensitive environment to the child.[] [Citation.] Thus an individual may qualify as an NREFM under the express terms of the statute or within the legislative goals of the statute. [Citation.]" (Michael E., at p. 675, fn. omitted.) Any placement must also be in the child's best interest. (Ibid.)
In Michael E., the incarcerated father requested the juvenile court to order his fiancée assessed for placement of his son. Father's fiancée was the mother of the child's infant half sibling, but had never met father's son. The court in Michael E. concluded it was not an abuse of discretion for the juvenile court to deny ordering an assessment of father's fiancée on the grounds the fiancée did not personally come forward to request the child's placement in her home, the five-year-old child had been living with foster parents for five months and developed a close relationship with them, the fiancée did not live in the same part of town as the foster parents, and placement with the fiancée would disrupt the child's schooling and continuity of care in a familiar environment. The court in Michael E. concluded: "Absent a need for a change of placement, placing [the child] with someone he did not know would not be in his best interests. [Citation.]" (Michael E., supra, 213 Cal.App.4th at p. 676.)
Here, at the time of the section 366.26 hearing in January 2017, J.H. had lived with her prospective adoptive parents for seven months, was happy in her prospective adoptive parents' home, and had bonded with her prospective adoptive parents. On the other hand, J.H. did not know T.S. and M.G. and she had no relationship with them. In addition, there was no evidence that the parents had a close connection with T.S. and M.G. or that placement in their home would "further the legislative goals of allowing the child to remain in familiar surroundings, facilitating family reunification or providing a culturally sensitive environment to the child." (Michael E., supra, 213 Cal.App.4th at p. 675.) While there was a past relationship between M.G. and Mother, they had not spoken to each other in a long time and M.G. was unaware of J.H.'s existence until November 16, 2016, shortly before the termination hearing. Furthermore, CFS was concerned about M.G.'s lengthy criminal history and the basis for T.S. and M.G. not adopting J.H.'s full siblings. The juvenile court could reasonably conclude placement with T.S. and M.G. was not in J.H.'s best interest. (Michael E., at p. 675.) NREFM placement does not override J.H.'s interest in continuing in a stable nonrelative placement. "The statute does 'not supply an evidentiary presumption that placement with a relative [or NREFM] is in the child's best interests' but it does require the social services agency and juvenile court to determine whether such a placement is appropriate, taking into account multiple factors including the best interest of the child, the parents' wishes, and the fitness of the relative [or NREFM]." (R.T., supra, 232 Cal.App.4th at p. 1295, quoting In re Stephanie M. (1994) 7 Cal.4th 295, 320 (Stephanie M.).) Despite the strong relative and NREFM preference rules, a NREFM is not guaranteed custody and the focus must remain on the child's best interest. (See In re Isabella G. (2016) 246 Cal.App.4th 708, 723 (Isabella G.); Stephanie M., at pp. 317-320, 322; Joshua A., supra, 239 Cal.App.4th at pp. 218-219.) When considering a relative or NREFM's placement request, the child's best interest is paramount, and the court must consider the statutory factors that seek to ensure the child's interest is promoted and protected. (§ 361.3, subd. (a)(1); Stephanie M., at p. 320 [even if the relative preference applies, it does not "overcome the juvenile court's duty to determine the best interests of the child"].) "[R]egardless of the relative [or NREFM] placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected." (Stephanie M., at p. 321.)
T.S. and M.G. rely on R.T., supra, 232 Cal.App.4th 1284, for the proposition that the case should be remanded because CFS failed to notify them under section 309, subdivision (e)(1), and therefore they were foreclosed from requesting placement of J.H. until November 16, 2016, when they finally learned of J.H.'s existence. In R.T., the agency detained a newborn child in foster care with a teenage sibling. (R.T., at pp. 1291- 1295.) The father objected and sought placement of the child with two paternal aunts. (Id. at p. 1293.) The paternal aunts were preferred relatives under the relative assessment statute. The agency initiated home evaluations on the paternal aunts but refused to move the child. The social worker later admitted that the agency never really considered the paternal aunts for placements. (Ibid.) After the dispositional hearing, a paternal aunt and uncle filed a section 388 petition seeking placement. The juvenile court took 10 months to rule on the petition and denied it. In the interim, the parents attempted to do designated relinquishments to the aunt and uncle, but the agency refused to accept the relinquishments, and the juvenile court eventually terminated parental rights. (R.T., at pp. 1293-1295.) In a consolidated appeal by the parents and the aunt and uncle, the appellate court held that the agency abused its discretion in refusing the relinquishments without a reasoned assessment, and remanded the case for the agency to submit new reports and recommendations, taking into account the child's best interest. (Id. at pp. 1305-1309.) The appellate court, however, acknowledged that the passage of time may have strengthened the child's bond with his current caretakers, which would play a role in evaluating the child's best interest upon remand. (Id. at p. 1308.)
The facts in this case are readily distinguishable. In this case, the parents did not designate relinquishments to J.H. Moreover, the parents did not immediately request T.S. and M.G.'s home be considered for placement, but rather waited until the section 366.26 hearing had been set and J.H. had been placed in an adoptive home. While T.S. and M.G. appear to shift responsibility to CFS for not notifying them of J.H. pursuant to section 309, the parents were fully aware of their other children's dependency cases and the siblings' placement with T.S. and M.G. Furthermore, once the parents and T.S. and M.G. notified CFS of their desire to have J.H. placed in T.S. and M.G.'s home, CFS assessed T.S. and M.G.'s home. Nothing in the record suggests that CFS or the court did not consider T.S. and M.G.'s home as a possible change in placement for J.H. Rather, it was determined that it would not be in J.H.'s best interest to change her placement and place her with T.S. and M.G. As such, any purported error in CFS's failure to comply with section 309, subdivision (e)(1), in locating M.G. earlier was harmless.
When a party brings a section 388 motion seeking to move a minor's custody to a relative or NREFM's home after the disposition hearing or after a section 366.26 reference, the court must give preferential consideration to the request, but this consideration must include an assessment of the child's current circumstances and whether the new placement would be in the child's best interest. (Isabella G., supra, 246 Cal.App.4th at p. 723; see Stephanie M., supra, 7 Cal.4th at pp. 317-320, 322.) In the present matter, a careful review of the entire record shows that it would not be in J.H.'s best interest to change her placement from her prospective adoptive home to T.S. and M.G.'s home. The evidence shows that J.H. was thriving in her prospective adoptive home and that she was bonded to her prospective adoptive parents. J.H. was being well cared for and her prospective adoptive parents were meeting J.H.'s special needs. Based on all of the evidence before it, the juvenile court could properly conclude that it was not in J.H.'s best interest to be moved from her prospective adoptive parents. Accordingly, the court did not err in denying T.S. and M.G.'s section 388 petition without a full evidentiary hearing.
B. Sibling Visitation Order
T.S. and M.G. contend the juvenile court erred in failing to order sibling visitation following the termination of parental rights. They argue that the court erroneously concluded it could not order sibling visitation because the siblings' case was closed and the siblings were no longer dependents.
We reject the arguments advanced by T.S. and M.G. in the instant case. Section 361.2, subdivision (j), states: "If the court has ordered removal of the child from the physical custody of his or her parents pursuant to Section 361, the court shall consider whether there are any siblings under the court's jurisdiction, or any nondependent siblings in the physical custody of a parent subject to the court's jurisdiction, the nature of the relationship between the child and his or her siblings, the appropriateness of developing or maintaining the sibling relationships pursuant to Section 16002, and the impact of the sibling relationships on the child's placement and planning for legal permanence."
Under this section, the juvenile court had no jurisdiction to order sibling visitation. M.H. and S.H.'s dependency proceedings had been terminated, and therefore, were not subject to the juvenile court's jurisdiction. Furthermore, J.H.'s oldest nondependent half sibling was in the physical custody of M.G., who is not J.H.'s father. In fact, as pointed out by T.S. and M.G., In re Luke H. (2013) 221 Cal.App.4th 1082 (Luke H.) and In re A.R. (2012) 203 Cal.App.4th 1160 (A.R.) support the juvenile court's finding it had no jurisdiction to order sibling visitation in this case.
Explaining the decision in A.R., the court in Luke H., supra, 221 Cal.App.4th 1082 stated: "In A.R., the appellate court reversed the portion of a dispositional order entitling A.M., a 17-year-old dependent child, to supervised visitation with her five-year-old half brother, A.R., whose dependency petition had been dismissed. The A.R. court described the limited jurisdiction of the juvenile court to make only those determinations authorized by specific statutory authority. [Citation.] The court explained: 'The filing of A.R.'s dependency petition vested the juvenile court with subject matter jurisdiction, i.e., the inherent authority to deal with the case or the matter before it. [Citation.] When the court dismissed A.R.'s petition following the jurisdictional hearing, A.R. was no longer in need of the juvenile court's protection and its jurisdiction over him terminated. [Citation.]" (Luke H., supra, at pp. 1087-1088, citing A.R., supra, 203 Cal.App.4th at p. 1170.)
"The A.R. court explained, 'there is no statutory provision requiring sibling visitation in these circumstances.' [Citation] The court first considered section 361.2, which provides: 'Where the court has ordered removal of the child from the physical custody of his or her parents pursuant to Section 361, the court shall consider whether there are any siblings under the court's jurisdiction, the nature of the relationship between the child and his or her siblings, the appropriateness of developing or maintaining the sibling relationships pursuant to Section 16002, and the impact of the sibling relationships on the child's placement and planning for legal permanence.' (Id., subd. (j).) A.R. reasoned that, '[b]ecause A.R. was not under the court's jurisdiction at the time of A.M.'s dispositional hearing, this section is inapplicable.' [Citation.]." (Luke H., supra, 221 Cal.App.4th at p. 1088, italics omitted, citing A.R., supra, 203 Cal.App.4th at p. 1171.)
"The A.R. court next considered section 388, subdivision (b), 'which permits a person who desires a sibling relationship with a child, who is either a dependent of the juvenile court or the subject of a dependency petition, to petition the court to assert that relationship and seek, inter alia, visitation with the dependent child.' [Citation.] A.R. reasoned this statute 'expressly requires the filing of a verified petition on behalf of a person seeking sibling visitation with a dependent of the juvenile court. Since no such petition was filed here, that section is inapplicable.' [Citation.]." (Luke H., supra, 221 Cal.App.4th at p. 1088, citing A.R., supra, 203 Cal.App.4th at p. 1171.)
The Luke H. court reached the same conclusion, and rejected Luke's argument that A.R. was distinguishable "because the juvenile court had jurisdiction over mother and therefore, could issue a visitation order against mother. In A.R., the custodial parent no longer was before the juvenile court." (Luke H., supra, 221 Cal.App.4th at p. 1089.) Luke H. explained, "The juvenile court's jurisdiction over mother (Angel's custodial parent) does not matter. What matters is that the juvenile court had no statutory authority to enter a visitation order regarding a nondependent sibling." (Luke H., at p. 1089.)
T.S. and M.G.'s attempts to distinguish Luke H. and A.R. are unavailing. We find these cases on point and reject T.S. and M.G.'s arguments to the contrary. None of the statutory provisions cited by T.S. and M.G. support their contention that the juvenile court had jurisdiction to order sibling visitation in the present matter. (See, e.g., §§ 361.2, 362.1, 366.29, 388, subd. (b), 16002.) Furthermore, none of the statutory provisions cited by T.S. and M.G. impose any obligation upon the juvenile court to enter orders for sibling visitation.
Accordingly, we find the juvenile court did not err in failing to order sibling visitation in the present case.
C. Beneficial Parental Relationship Exception
Mother contends the juvenile court erred in finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A), did not apply to preclude the termination of parental rights. We disagree.
After reunification services are denied or terminated, " 'the focus shifts to the needs of the child for permanency and stability.' " (In re Celine R. (2003) 31 Cal.4th 45, 52 (Celine R.).) " 'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.' " (Id. at p. 53; see § 366.26, subd. (c)(1).) " 'Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child.' " (Celine R., at p. 53.) A statutory exception to the general rule requiring the court to choose adoption exists where "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" (§ 366.26, subd. (c)(1)(B)) because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
" 'To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination.' [Citation.] A beneficial relationship 'is one 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 re Marcelo B. (2012) 209 Cal.App.4th 635, 643.) The nature of the relationship between the parent and child is key in determining the existence of a beneficial relationship; it is not sufficient to show that the child derives some benefit from the relationship or shares some " 'emotional bond' " with the parent. (In re K.P. (2012) 203 Cal.App.4th 614, 621 (K.P.).) "To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) In other words, the parent must show he or she occupies a " ' "parental role" in the child's life.' " (K.P., at p. 621.)
The parent has the burden of proving the statutory exception applies. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 (Bailey J.).) The parent must show both that a beneficial parental relationship exists and that severing that relationship would result in great harm to the child. (Ibid.) A juvenile court's finding that the beneficial parental relationship exception does not apply is reviewed in part under the substantial evidence standard and in part for abuse of discretion. The factual finding, i.e., whether a beneficial parental relationship exists, is reviewed for substantial evidence, while the court's determination that the relationship does or does not constitute a "compelling reason" (Celine R., supra, 31 Cal.4th at p. 53) for finding that termination of parental rights would be detrimental is reviewed for abuse of discretion. (Bailey J., at pp. 1314-1315; K.P., supra, 203 Cal.App.4th at p. 621.) A juvenile court's ruling on whether there is a " 'compelling reason' " is reviewed for abuse of discretion because the court must "determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and . . . weigh that against the benefit to the child of adoption." (Bailey J., at p. 1315, italics omitted.) More specifically, a challenge to a court's failure to find a beneficial relationship amounts to a contention that the "undisputed facts lead to only one conclusion." (In re I.W. (2009) 180 Cal.App.4th 1517, 1529.) Thus, unless the undisputed facts establish the existence of a beneficial parental relationship, a substantial evidence challenge to this component of the juvenile court's determination cannot succeed. (Bailey J., at p. 1314.)
In this case, although the record reflects Mother maintained regular visitation with J.H., Mother failed to show that she occupied a parental role or that J.H. would benefit from continuing the relationship with Mother. J.H. was removed from Mother's care when she was three days old. Since then, Mother had only maintained supervised visitation. A parent's failure to progress beyond monitored visitation with a child and to fulfill a "meaningful and significant parental role" justifies an order terminating parental rights. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109.) "It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) There is no evidence in the record to suggest Mother occupied a parental role in J.H.'s life.
Mother argues that J.H. had only lived with her prospective adoptive parents since June 2016. Nevertheless, J.H. had lived with her prospective adoptive parents for a greater amount of time than she had lived with Mother. Moreover, the social worker noted that J.H. did not appear attached or bonded to the parents and that J.H. was more comfortable with her prospective adoptive parents. J.H. was bonded and attached to her prospective adoptive parents, who were meeting her special needs and wished to adopt her. The record does not support a finding that Mother's relationship with J.H. outweighs the benefit and stability J.H. would derive from adoption. In sum, the record supports the juvenile court's determination that the beneficial parent-child relationship exception did not apply in this case.
D. Sibling Relationship Exception
Mother also argues the juvenile court erred in terminating parental rights to J.H. because the court failed to adequately consider the long-term benefits of her relationship with her three older siblings under section 366.26, subdivision (c)(1)(B)(v). We disagree.
Section 366.26, subdivision (c)(1)(B)(v) creates an exception to 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."
To establish the sibling relationship exception, the parent must show: (1) the existence of a significant sibling relationship; (2) that termination of parental rights would substantially interfere with that relationship; and (3) that it would be detrimental to the child being adopted if the relationship ended. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952; see Celine R., supra, 31 Cal.4th at p. 54.) As with the parent-child exception, the parent asserting the sibling relationship exception has the burden of proof. (In re L.Y.L., at p. 952.) If the parent makes this showing, then the juvenile court balances the benefit to the child of continuing the sibling relationship against the benefit of adoption. (Id. at pp. 952-953.) However, even if a sibling relationship exists that is so strong its severance would cause the child detriment, the juvenile court may still conclude that the detriment is outweighed by the benefit of adoption. (Ibid.) It is a "rare" case in which the court will find that this exception to adoption applies, particularly when the proceedings concern a young child whose needs for a competent, caring, and stable parent are paramount. (In re Valeria A. (2007) 152 Cal.App.4th 987, 1014.) We review the juvenile court's order declining to apply the sibling relationship exception for substantial evidence. (In re L.Y.L., at p. 947.)
In the present matter, the record supports the juvenile court's conclusion that the sibling relationship exception did not apply to prevent adoption. As the juvenile court noted, all of the parties conceded there was no relationship between J.H. and her siblings. Indeed, by the time J.H. was born, her siblings were residing with T.S. and M.G. J.H. and her siblings had never resided in the same home. Additionally, J.H. had no sibling contact or bond with her siblings, and it would not be detrimental if J.H.'s relationship to her siblings ended. Accordingly, the juvenile court did not err in failing to apply the sibling relationship exception.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.