Filed 9/12/17 In re Bryan R. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from orders of the Superior Court of Los Angeles County, Stephen C. Marpet, Commissioner. Affirmed.

Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.

Tarkian & Associates and Arezoo Pichvai for Plaintiff and Respondent.

_______________________________

Appellant Melissa B. appeals the juvenile court’s orders summarily denying two petitions for modification seeking additional reunification services or custody of her three minor sons, Bryan R., Angel B. and Dominick Z., and its order terminating parental rights over Dominick.[1] Mother contends she made a prima facie showing sufficient to support a hearing on her petitions, and that the evidence established both a benefit to Dominick to continuing the parental relationship and a strong sibling bond in danger of loss. Finding no error in the court’s summary denials or its order terminating parental rights, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying proceeding commenced in 2012, when Bryan was 10, Angel was 5, and Dominick was not yet born. The Los Angeles Department of Children and Family Services (DCFS) initially interceded when their older sister Leticia R., then 17, threatened suicide.[2] The August 2012 petition alleged that Mother failed to obtain mental health services for Leticia, and also alleged that Mother had offered Leticia methamphetamine and allowed an unrelated male to choke her.[3] When interviewed by the caseworker, Mother blamed Leticia for the initiation of the proceedings and said she did not wish to reunify with her or have visits with her. Subsequently, Omar, Bryan and Angel refused to visit or speak with their sister. While the case was pending, Bryan was hospitalized on a 72-hour hold because he became violent and his foster mother was unable to control him. In February 2013, Mother tested positive for metham-phetamine. That same month, DCFS filed an amended petition and a second amended petition to add allegations of substance abuse, and allegations that Mother failed to ensure that Bryan received appropriate mental health services. In April 2013, the court found these allegations true, as well as the prior allegations pertaining to Leticia.

By the time of the April 2013 jurisdictional hearing, Mother had enrolled in a substance abuse program and had multiple negative drug tests, leading the court to permit unmonitored visitation. Within a month, Mother relapsed, leaving her program and testing positive for amphetamines and methamphetamine. Between May 2013 and February 2014, Mother enrolled in four different drug treatment programs, but completed none. Her visitation with the three boys was inconsistent. The court terminated reunification services in April 2014.[4]

Bryan and Angel proved difficult to place.[5] They were moved multiple times until they were placed in the foster home of Mrs. H. The two did well in her care, advancing in school and getting along with peers and family members. Although Mother objected, they began visitation with Leticia. Mrs. H. was fond of them and wanted to become their legal guardian.

In 2014, Mother became pregnant with Dominick, and enrolled in a new substance abuse program. In October 2014, Mother filed a section 388 petition showing changed circumstance -- completion of a substance abuse program and six months of negative testing -- which persuaded the court to reinstate reunification services. When Mother gave birth to Dominick that same month, he was drug free. DCFS permitted her to retain custody under a voluntary family maintenance program. In April 2015, the court returned Omar, Bryan and Angel to Mother’s care, and DCFS provided family maintenance services. But on July 28, after missing multiple drug tests in June and early July, Mother tested positive for amphetamines and methamphetamine. When confronted with the results, Mother first denied using drugs but subsequently admitted a relapse stemming from her long history of substance abuse, including use of amphetamines and methamphetamine since adolescence. She explained that it had been difficult for her to adapt to being back with the children, and that she was “overwhelmed and frustrated” by the boys’ “negative behaviors” and fighting.

In August 2015, DCFS filed a section 387 supplemental petition applicable to Omar, Bryan and Angel, and a section 300 petition applicable to Dominick, alleging that Mother had an unresolved history of substance abuse and was a current user of amphetamines and methamphetamine. Bryan and Angel were detained and placed in separate group homes. Mother had sent Dominick to his father, Alejandro, in Mexico to avoid detention. But Alejandro was not in a position to care for Dominick, and the boy was returned and placed with a paternal aunt. DCFS recommended no further reunification services be provided Mother. Mother began two new substance abuse programs, but left the first and was discharged from the second. In February and March 2016, the court ordered that no further reunification services be provided Mother.

In May 2016, the caseworker reported that Dominick was in therapy, as he had begun to pinch himself, pull his hair out, and bang his head on hard surfaces when angry.[6] By September, Dominick’s self-harming behavior had nearly been eliminated through therapy, although the paternal aunt reported signs of regression after visits with Mother. The aunt wished to adopt him. Bryan and Angel said they did not want to be adopted, but wanted to reunify with Mother.[7] They blamed themselves for Mother’s relapse and expressed the belief that had they behaved better, the family would still be together. Bryan was in a group home that he liked, receiving wraparound services, doing well in some areas but struggling academically. Staff at the home reported seeing Bryan give Mother money during their visits. In 2016, Angel was placed with foster mother Danielle S., his tenth placement, and was receiving wraparound services and therapy. He was initially doing well in the new home. However, his foster mother reported that during visitation, Mother would tell Angel of her financial struggles, and that Angel had stolen money and given it to Mother. Bryan, Angel and Dominick had sibling visits once a month. They interacted well, talking and playing together, and were happy to see each other.

In January 2016, Mother, who reported she was still using methamphetamine because she felt “frustrated” and “want[ed] to run away from her problems,” restarted one of the substance abuse programs she had left. She completed the program six months later, testing negative on weekly drug tests during that period and attending weekly therapy sessions. She enrolled in the aftercare program and continued to test negative.[8] She continued to see a therapist.[9] She had a sponsor and regularly attended a 12-step program. She was consistent in visiting Dominick, but missed visits with the older boys.

In September 2016, Mother filed a section 388 petition seeking return of the children or additional reunification services based on the progress she had made. The petition was summarily denied for reasons the court explained at a September 27, 2016 hearing: “The court is finding that Mother’s made some changes but it’s in the changing stage[,] continuing to be in a changing stage[, but] not changed.”

On November 8, 2016, the day of the section 366.26 hearing, Mother filed a new section 388 petition, again seeking reunification services or release of the children to her care. That petition also was summarily denied, the court finding that “it’s not in the minor[s’] best interest and not a sufficient change of circumstance.”

Bryan and Angel also filed section 388 petitions, seeking to have their relationship with Dominick “recognize[d],” contending they had standing to object to termination of parental rights over their young brother at the upcoming hearing. DCFS filed a response, stating that when interviewed, Bryan said he objected to Dominick’s adoption because Mother would not “do [as] well” or fight as hard for his and Angel’s return if their baby brother was adopted. The caseworker reported that during sibling visits, Bryan interacted more with Angel than Dominick and did not appear to have a strong bond with Dominick. The caseworker also reported that the paternal aunt intended to permit sibling visits to continue after the adoption. The court agreed to hear the boys’ objections at the hearing.

The section 366.26 hearing took place on November 8, 2016. Mother testified she had been clean and sober since October 2015, and that she had visited Dominick regularly, twice a week for two hours. She said she read to him and played with him, and he was happy during their visits. She said that during visits between Dominick and Bryan and Dominick and Angel, the boys played and laughed together. Bryan testified that in the months they lived together he played with Dominick, read to him, and tried to keep him happy. He visited his brother every month. Dominick laughed, ran toward him and hugged him. The parties stipulated that Angel did not want Dominick to be adopted.

Counsel for Bryan and Angel argued that the sibling exception applied, and that severing the parental relation-ship would be detrimental to Dominick. Counsel for Mother argued that severing Dominick’s relationship with Mother would be detrimental to the child and would lead to the loss of the siblings’ relationship. Counsel for Dominick’s father, Alejandro, indicated that his client did not object to freeing Dominick for adoption by the paternal aunt. Counsel for Dominick informed the court that Dominick considered his aunt and uncle to be his parents, and contended that no exception to terminating parental rights applied. Counsel for DCFS reviewed Mother’s long history with DCFS, and contended there was no reason to preclude Dominick from being adopted by relatives who had provided a safe nurturing home for the boy. The court found that no exception applied, and terminated parental rights over Dominick. Mother appealed.

DISCUSSION

A. Summary Denial of Section 388 Petitions

Mother contends the court erred in summarily denying her section 388 petitions. For the reasons discussed, we disagree.

“Section 388 permits ‘[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court’ to petition ‘for a hearing to change, modify, or set aside any order of court previously made . . . ’ on grounds of ‘change of circumstance or new evidence.’” (In re Lesly G. (2008) 162 Cal.App.4th 904, 912, quoting § 388, subd. (a).) A section 388 petition may be filed and heard at any time, up to and including the time of the section 366.26 hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 308-309.) However, “[t]o support a section 388 petition, the change in circumstances must be substantial.” (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) Moreover, “[o]nce reunification services are ordered terminated, the focus shifts [from reunification] to the needs of the child for permanency and stability,” and a presumption arises that “continued care [under the dependency system] is in the best interest of the child.” (In re Marilyn H., supra, at pp. 309-310.)

On receipt of a section 388 petition, the court may either summarily deny the petition or hold a hearing. (In re Lesly G., supra, 162 Cal.App.4th at p. 912.) The petition will be summarily denied unless the petitioner makes a prima facie showing in his or her favor. (Ibid.) “‘There are two parts to the prima facie showing: The parent must demonstrate (1) [either] a genuine change of circumstances or new evidence, and . . . (2) [that] revoking the previous order would be in the best interests of the [child]. [Citation.]’” (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079; accord, In re G.B. (2014) 227 Cal.App.4th 1147, 1157.) “‘If the liberally construed allegations of the petition 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.’” (In re C.J.W., supra, at p. 1079.) We review the juvenile court’s summary denial of a section 388 petition for abuse of discretion. (In re C.J.W., at p. 1079.)

“In considering whether the petitioner has made the requisite showing, the juvenile court may consider the entire factual and procedural history of the case.” (In re Mickel O. (2011) 197 Cal.App.4th 586, 616.) Here, the factual and procedural history of the case supported the court’s decision to summarily deny the petitions. Mother’s history of substance abuse dated back to at least 2000 and the recurrence in 2006. The instant case had been pending since 2012. When it was initiated, Mother blamed her daughter for bringing the family under DCFS scrutiny. It was six months before the true cause of the family’s dysfunction was revealed: Mother’s unresolved drug addiction. After DCFS uncovered her use of methamphetamine, Mother enrolled in a program, testing drug free for several months, and was given unmonitored visitation at the April 2013 jurisdictional hearing. Within a month, she relapsed. During the reunification period that followed, Mother was in and out of multiple treatment programs, making no progress in any of them. As the permanent plan began to take shape for Bryan and Angel, Mother gave birth to her fifth child. She was able to refrain from drug use during her pregnancy, and maintain a drug-free lifestyle for several months after Dominick’s birth. The court granted her October 2014 section 388 petition and in April 2015, returned custody of Bryan and Angel, removing them from a stable home with a potential long-term guardian. Despite constant DCFS supervision and assistance, Mother’s sobriety lasted only three months.[10] When her children were again removed, Mother did not seek treatment or return to sobriety. By her own admission, she continued to use methamphetamine, and it was not until January 2016 that she enrolled in a substance abuse program. The evidence submitted by Mother indicated at best that she was able to maintain sobriety while enrolled in a substance abuse program and for a period thereafter when on her own. But the record reveals her sobriety never survived the day-to-day stress of maintaining a home and caring for multiple difficult children. Thus, assuming everything said in the September and November section 388 petitions was true, there was insufficient evidence of changed circumstances or benefit to the children for the court to grant either petition.

Mother contends that because Bryan and Angel did not have prospective adoptive homes and both expressed the desire to be returned to her care, it was in their best interests for the court to give Mother another chance at reunification. In order to prevent children from spending their lives in uncertainty, “there must be a limitation on the length of time a child has to wait for a parent to become adequate.” (In re Marilyn H., supra, 5 Cal.4th. at p. 308; see § 352, subd. (a) [juvenile court required to “give substantial weight to a minor’s need for prompt resolution of her or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements”].) Bryan and Angel had been waiting since 2012 for Mother to become adequate. After years of bouncing from placement to placement, Bryan and Angel were in need of permanence and stability, even if that meant long-term placement in a group home or foster home. Returning them to Mother or dangling a promise of return to Mother when the likelihood was that Mother would relapse again would not have benefitted them. Even when viewed most favorably to Mother, the evidence in support of the petitions provided no basis for the court to find it would have been in the best interests of the children to delay their opportunity to achieve permanence and stability.

B. Termination of Parental Rights Over Dominick

Mother contends the court erred in finding no statutory exception to termination of parental rights. Again, we disagree.

“The court has four choices at the [section 366.26] permanency planning hearing . . . : (1) terminate parental rights and order that the child be placed for adoption . . . ; (2) identify adoption as the permanent placement goal and require efforts to locate an appropriate adoptive family; (3) appoint a legal guardian; or (4) order long-term foster care. (§ 366.26, subd. (b).)” (In re Celine R. (2003) 31 Cal.4th 45, 53.) Termination of parental rights to free the child for adoption is the first choice because “‘“it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.”’” (In re C.B. (2010) 190 Cal.App.4th 102, 122.) If the court determines by clear and convincing evidence that it is likely the child will be adopted, the court “shall terminate parental rights and order the child placed for adoption” (§ 366.26, subd. (c)(1)), unless one of the statutory exceptions applies and “provides a compelling reason for finding that termination of parental rights would be detrimental to the child.” (In re Celine R., supra, at p. 53.)

There was no dispute that Dominick was adoptable. Accordingly, Mother “ha[d] the burden of showing that the termination of parental rights would be detrimental under one of the exceptions listed in section 366.26, subdivision (c)(1)(B). [Citation.]” (In re J.C. (2014) 226 Cal.App.4th 503, 528.) At the hearing, Mother sought to invoke the exceptions found in section 366.26, subdivision (c)(1)(B)(i), precluding termination of parental rights where “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship,” and subdivision (c)(1)(B)(v), precluding termination of parental rights when “[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.” (§ 366.26, subd. (c)(1)(B)(v).)

1. Parental Benefit Exception

A parent seeking to forestall termination of parental rights under the parental benefit exception must establish: (1) “the existence of a beneficial parental . . . relationship” and (2) that “the existence of that relationship constitutes a ‘compelling reason for determining that termination would be detrimental.’” (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315, italics omitted, quoting § 366.26, subd. (c)(1)(B); accord, In re Logan B. (2016) 3 Cal.App.5th 1000, 1013.) [11]

Satisfying the exception “requires the parent to prove 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,’” and that 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.”’” (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643, italics omitted, quoting In re Angel B. (2002) 97 Cal.App.4th 454, 466.) “A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (In re Angel B., supra, at p. 466, italics omitted.) In determining whether to apply the exception, the court “balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “[A] parental relationship is necessary for the exception to apply, not merely a friendly or familiar one.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350, italics omitted.) “‘[A] child needs [a] parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent.’” (Ibid.) In determining whether the exception has been established, the court may consider such factors as “‘the age of the child, the portion of the child’s life spent in the parent’s custody, . . . and the child’s particular needs.’” (Ibid.)

Dominick was two at the time of the section 366.26 hearing. He had spent only 10 months with Mother. He had been in the home of his paternal aunt more than half his life. She had ably cared for him during the negative behaviors that followed the initial detention. Since July 2015, his relationship with Mother was limited to two, two-hour monitored visits per week. During those visits, she played with him and read to him. She had not played a parental role in his life for more than a year.

Mother claims that Dominick’s self-harming behavior after he was placed with the paternal aunt and after visits with Mother was evidence that severing the relationship would be detrimental to the child. Dominick’s behavior, improved with therapy by the time of the hearing, only emphasized the need for a stable home. Termination of parental rights and adoption by the paternal aunt offered the permanence and stability he needed. The court’s order determining that termination of parental rights would not be detrimental to Dominick under the parental benefit exception was not an abuse of discretion.

2. Sibling Exception

In enacting the sibling exception provision, the Legislature was primarily concerned with “preserving long-standing relationships between siblings which serve as anchors for dependent children whose lives are in turmoil.” (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) The party espousing the sibling exception must establish the existence of a strong sibling relationship, and demonstrate that its severance would be detrimental to the child for whom a permanent plan of adoption is being considered. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.) “Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended.” (Ibid.) Moreover, even if the sibling relationship is so strong that its severance would cause the child detriment, before applying the exception, the court must find the benefit of continuing that relationship outweighs the benefit to the child adoption would provide if parental rights are terminated. (Id. at pp. 952-953.) Accordingly, application of the sibling relationship exception will be rare, “particularly when the proceedings concern a young child . . . whose need for a competent, attentive and caring parent is paramount.” (In re Michael G. (2012) 203 Cal.App.4th 580, 593; accord, In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.)

Bryan and Angel indicated that they would be saddened by Dominick’s adoption. But “‘the language [of the provision] focuses exclusively on the benefits and burdens to the adoptive child, not the other siblings.’” (In re Celine R., supra, 31 Cal.4th at p. 54.) Thus, a juvenile court may not derail an adoption “that is in the adoptive child’s best interests because of the possible effect the adoption may have on a sibling.” (Ibid.) Although the court should “carefully consider all evidence regarding the sibling relationship as it relates to possible detriment to the adoptive child,” including “[a] nonadoptive sibling’s emotional resistance towards the proposed adoption,” as it may be “indirect evidence of the effect the adoption may have on the adoptive child,” the ultimate question is “whether adoption would be detrimental to the adoptive child, not someone else.” (Id. at p. 55.)

Evidence that the prospective adoptive parent is willing to maintain sibling contact undermines the showing required under section 366.26, subdivision (c)(1)(B)(v) of “substantial interference with the sibling relationship.” (In re Megan S. (2002) 104 Cal.App.4th 247, 254; see, e.g., In re Jacob S. (2002) 104 Cal.App.4th 1011, 1019, disapproved on another ground in In re S.B. (2009) 46 Cal.4th 529 [where extended family members seeking to adopt two of five children expressed intent to maintain ties with siblings, court found no evidence sibling relationship would cease upon termination of parental rights]; In re Valerie A., supra, 152 Cal.App.4th at p. 1014 [court could not ignore “practical realities of the extended family’s circumstances in considering whether termination of parental rights would substantially interfere with the sibling relationships” where extended family member seeking to adopt younger siblings was willing to continue contact with older sibling]; In re Daisy D. (2006) 144 Cal.App.4th 287, 293 [no evidence that adoption by paternal grandparents would interfere with minor’s relationship with half-siblings where grandparents intended to maintain contact].)

Dominick had lived with his siblings for only four months. He was not yet a year old when the children were taken from Mother in July 2015. Since then, his sole contact with Bryan and Angel had been once-a-month visits for a few hours. There was no evidence that he recognized their familial relationship to him. Nor was there evidence that severance of the relationship would have a detrimental impact on him. Moreover, as his prospective adoptive parent was a family member who indicated a willingness to maintain sibling contact, there was no evidence that the relationship would, in fact, be severed. In sum, the evidence presented did not establish substantial interference with the sibling relationship causing detriment to Dominick. Accordingly, the juvenile court did not err in finding the sibling exception did not apply.

DISPOSITION

The court’s orders summarily denying Mother’s section 388 petitions and its order terminating parental rights over Dominick are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

COLLINS, J.