In re D.C.

Filed 10/23/06 In re D.C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from a judgment and orders of the Superior Court of San Diego County, Hideo Chino, Referee. Affirmed.

In these consolidated appeals, Tony C. and Deborah H., the parents of D.C., challenge an order denying a change in placement of their son from his de facto parents to the paternal grandmother. Tony, joined by Deborah (see Cal. Rules of Court, rule 13(a)(5)), also appeals the denial of his Welfare and Institutions Code section^[1] 388 petition seeking placement of D.C. with him, and the judgment terminating parental rights pursuant to section 366.26. Tony contends he made the requisite showings under section 388, and the juvenile court erred by not applying the statutory exceptions to adoption based on a beneficial parent-child relationship (§ 366.26, subd. (c)(1)(A)) and on a beneficial sibling relationship (§ 366.26, subd. (c)(1)(E)).

The San Diego County Health and Human Services Agency (Agency) agrees with the parents that the juvenile court erred by denying placement of D.C. with the paternal grandmother in Case No. D048092. Agency does not take a position on the other appellate issues presented by Tony and joined by Deborah in Case Nos. D048385 and D048561.

The de facto parents, Neil and Heather B., contend neither the parents nor Agency have standing to appeal the court's denial of the request to change D.C.'s placement, and, in any event, the court acted well within its discretion when it denied the request. The de facto parents also contend the court did not abuse its discretion by denying Tony's section 388 petition, and did not err by not applying the beneficial parent-child relationship and the beneficial sibling relationship exceptions to adoption. (§ 366.26, subs. (c)(1)(A) & (c)(1)(E).)

PROCEDURAL AND FACTUAL BACKGROUND

D.C. was born in February 2003. In addition to D.C., Tony and Deborah are the parents of David, who was born in March 1995, and A.C., who was born in 1994. A.C. has lived with the paternal grandmother in Vancouver, Washington since she was three weeks old. For five years, while Tony and Deborah were incarcerated, David also lived with the paternal grandmother, who also had two of D.C.'s half-siblings living with her.^[2] After the parents were released they moved to San Diego with David and newborn D.C.

In January 2004, Agency filed dependency petitions on behalf of D.C. and David because they were exposed to domestic violence between Tony and Deborah. (§ 300, subd. (b).) The parents asked the boys be placed in an African-American home. Deborah requested the boys be placed with either the paternal grandmother or the maternal grandparents, who also lived in Washington. Upon learning David and D.C. were in protective custody, the paternal grandmother immediately contacted Agency and requested the children be placed with her.^[3] The social worker expressed concern that placing the children out of state could interfere with parental visitation and reunification.

D.C. and David could not be placed together in San Diego because David had negative behaviors -- including aggression toward others as well as self-destructive behavior -- which required more attention and care. David was detained at Polinsky Children's Center, and D.C. was detained in a foster home. The brothers visited each other on a weekly basis.

On January 28, Tony and Deborah submitted on the dependency petitions, which the court sustained. The court declared David and D.C. dependents of the court and ordered services and supervised visits for the parents. D.C. was placed in a licensed foster home and David was placed in a group home.

On May 14, D.C. was placed in the concurrent foster home of Neil and Heather because the social worker mistakenly believed that placement with relatives would not be approved.

On July 28, Agency requested an expedited evaluation of the relatives in Washington under the Interstate Compact for Placement of Children (ICPC); the court granted the request.

At the six-month review hearing, the court continued reunification services for Tony, but terminated Deborah's services because she had been convicted of a felony.

On August 24, Neil and Heather applied for de facto parent status, and the court approved the application on November 9.

By September, the paternal grandmother had been granted ICPC approval for one child; she was given a special license to accommodate D.C., but not David. Agency told the Washington ICPC office it wanted to place D.C. with the grandmother because it was necessary to keep David in a group home for the time being. Agency recommended to the court that D.C. be placed with the paternal grandmother. The social worker opined it was in D.C.'s best interest to reunite with his family.

The de facto parents, however, hired counsel and set the issue of D.C.'s placement with the grandmother for trial. The de facto parents also requested a bonding study. The court ordered the bonding study and ordered D.C. not be removed from the de facto parents' home pending the trial. The bonding study, performed on December 8, found D.C. had an important attachment to the de facto parents. The evaluator opined that disruption of this attachment could be emotionally and psychologically catastrophic for D.C.

Meanwhile, Tony was working on his case plan and said he wanted D.C. to be placed with him. If the boys could not be returned to him, Tony wanted them to be placed with the paternal grandmother. Agency reported David and D.C. continued to visit each other regularly. Tony visited his sons regularly and had unsupervised visitation. Heather also brought David to her home for overnight visits with D.C.

For the upcoming 12-month review hearing, Agency changed its recommendation for six more months of services for Tony to termination of services after Tony used profanity and made threatening gestures to a social worker and the de facto parents outside the courtroom following a hearing. Agency also changed its position on D.C.'s placement; it requested the child not be placed with the paternal grandmother.

The placement matter and the 12-month review were tried over three days in April 2005. The court refused to change D.C.'s placement, finding the proposed change would not be in D.C.'s best interests because D.C. had developed a close relationship with the de facto parents. The court also terminated reunification services and set a section 366.26 hearing for both D.C. and David.^[4]

In September, a second ICPC evaluation approved the paternal grandmother for placement of David in addition to D.C.

In October, Agency recommended both D.C. and David be adopted by the paternal grandmother because the boys were strongly bonded to each other. The social worker opined that separate permanent plans for the brothers would not be in their best interests because they probably would not retain contact with each other.^[5] Agency was committed to keeping the brothers together, and believed this could best be accomplished if the paternal grandmother adopted them.

Agency asked the court to place David and D.C. with the grandmother. Agency planned first to place David with the grandmother and, once he was stabilized, to transition D.C. into the grandmother's home.

On October 11, the paternal grandmother filed a de facto parent application for David. On the same day, the de facto parents of D.C. asked for a continuance so they could file a de facto parent application for David, which they did the following day.^[6]

On October 25, David was placed in Washington with the paternal grandmother. David and D.C. maintained telephone contact.

In December, the court granted the paternal grandmother's application for de facto parent status with respect to David.

Tony and Deborah agreed with Agency that D.C. should be placed with the paternal grandmother. In the event D.C. was not placed with the grandmother, Tony wanted D.C. placed with him. Tony filed a section 388 petition requesting D.C. be returned to his custody.

D.C.'s biological parents and his de facto parents requested a trial on Agency's request to place him with the paternal grandmother. The court ordered Agency not to move D.C. pending trial. The court also granted the request of D.C.'s de facto parents for a bonding study update evaluation. The court received a stipulation by all counsel that D.C. and David were bonded and a bonding study of their relationship was unnecessary.

The placement trial took place during six days in January and February 2006.

Psychologist Yanon Volcani, who conducted both bonding studies, reported that D.C. continued to perceive the de facto parents as his psychological parents and primary caregivers. Volcani also continued to believe the disruption of their relationship could be emotionally and psychologically catastrophic for D.C. At trial Volcani testified that when he observed D.C. with the de facto parents, the child was "delight[ed]." D.C. did not mention any relatives. When Volcani asked D.C. whom he wanted to be with if he was on an island or in his home, D.C. said he wanted to be with his de facto parents. According to Volcani, Heather was the one whom D.C. wanted to tuck him in bed at night, feed him, read to him, and take care of him when he was sick. Volcani opined the de facto parents were "critical" people in D.C.'s life.

Social worker Fatimah Abdullah testified that David did not have any behavioral outbursts and was doing well since being placed with the paternal grandmother. The treatment plan authored by David's therapist was incorporated into David's treatment in Washington. Abdullah testified that D.C. often would ask Tony during visits where his brother David was. D.C. also asked Abdullah about David. When Abdullah responded that David was with their grandmother, D.C.'s demeanor changed and he became sullen and quiet. After Abdullah suggested they telephone David, D.C. smiled and was happy while talking with David.

Abdullah testified Agency's policy was to have relatives adopt if they were appropriate. Abdullah reported David did not want to be adopted if he could not see Tony. David's first choice was to be returned to Tony's custody.

D.C. and Tony were affectionate with each other, laughing, tickling and hugging. D.C. called Tony "Daddy," and often climbed on his lap and asked him to take his hand. D.C. was sad when the visits ended.

Since the previous August, D.C. also had visits with the paternal grandmother and other relatives. Although D.C. did not recognize the grandmother at first, D.C. allowed the grandmother to hug him and talk to him. At the next visit, D.C. easily went to the grandmother and easily displayed affection to her. At another visit, D.C. sat on the grandmother's lap and hugged her.

Social worker Heidi Staples, who supervised Agency's adoption placement program, testified Volcani did not have enough information to say what was in the best interests of D.C. A bonding study, she explained, focuses on one particular relationship but does not factor in other relationships and complexities of the case. On the other hand, an adoption assessment looks at all aspects of a child's life and is aimed at achieving not only the short term best interests of the child but his or her long term best interests as well.

Heather, the de facto mother of D.C., testified she and her husband decided to adopt D.C. almost immediately after he was placed in their home. Heather was willing to facilitate contact between D.C. and his relatives and did not recall stating otherwise. (See fn. 4, ante.) The de facto mother acknowledged that D.C. and David were very close, and she said she wanted the brothers to maintain their relationship.

The paternal grandmother testified that when she first learned that D.C. and David were taken into protective custody in January 2004, she immediately telephoned Agency and told them she wanted to have the boys placed with her. However, social workers told her the boys' parents would be involved in reunification for three to six months and the grandmother did not want to interfere with the reunification. However, the grandmother made it clear that she wanted custody of the boys if they were not returned to Tony.

The court denied Agency's request to place D.C. with the paternal grandmother in Washington. The court said it placed great weight on Volcani's bonding study and found it was not beneficial for D.C. to be removed from the de facto parents. The court said it was acting in D.C.'s best interest.

A trial on Tony's section 388 petition was held on March 30 and April 6. According to Tony's Domestic Violence Program evaluation, Tony had done an excellent job and graduated from the program. Psychologist Ronald Rowe, Tony's therapist, reported Tony had exceeded all of the therapist's expectations; Tony's progress had been extraordinary. "Every indication I have is that [Tony] has worked very hard to reunite with his sons," Rowe wrote. "I believe he had made the changes necessary to demonstrate he can live without violence in his life." Tony also had successfully completed the McAlister Institute's Drug and Alcohol Treatment Program. The coordinator of the New Alternatives Family Visitation Center reported Tony always complied with the program's rules and was appropriate and consistent with his parenting of the boys during visits at the center.

Cecelia Carreto, who supervised once-a-week visits between Tony and boys from October 2004 until March 2006, testified the boys, without prompting, hugged and kissed each other. Each time, D.C. greeted Tony with a hug and a kiss and called him "Dad" or "Daddy." Tony engaged both boys in play and demonstrated the ability to set limits for the boy. Tony helped D.C. with potting training and grooming. D.C. became angry when the visits ended and did not want to go with the monitor. Tony assisted Carreto in getting D.C. back in her car.

Tony testified he gained insight into his domestic violence problem through individual and group counseling and took responsibility for his part in the domestic violence between himself and Deborah. Since the previous November, Tony had lived with his stepsister and her two daughters. Tony said David and D.C. could live there with him. Tony had unsupervised visits with D.C. on Fridays from 8:00 a.m. until 2:00 p.m.

Tony testified he recognized there was a bond between D.C. and the de facto parents. If D.C. were placed with him, Tony would not cut the child off from the de facto parents.

All parties stipulated that if social worker Abdullah were called as a witness, she would testify that at the end of visits with his father, D.C. said he did not want to go and his eyes teared up. D.C. said he wanted to stay with Tony forever. D.C. often ran from Abdullah when she arrived to pick him up and hid from her. When she returned D.C. to the home of the de facto parents, he did not display any problems.

The court denied Tony's section 388 petition, noting that although there had been a change in circumstances regarding Tony's compliance with the original reunification plan, the court could not find it would be in D.C.'s best interest to be placed with his father. The court indicated evidence that it would not be in D.C.'s best interests to be removed from the de facto parents was presented repeatedly.

On April 24, psychologist Beatriz Heller conducted a bonding study between D.C. and Tony. Heller reported both of them were "effusive in verbal and physical demonstrations of affection." Heller opined that D.C. and Tony had a "strong attachment" to each other "particularly compared to that which exists for other families slated for [§ 366].26 hearings." Further, D.C. was "enriched emotionally and cognitively from the interactions with his biological father." Heller continued: "While his de facto mother appears to be the psychological parent to D.C., there is no doubt that there is a significant relationship between D.C. and his biological father that, if maintained, can add significantly to the child's life and facilitate the development of trust in others and the experience of loving adults without the accompanying feeling of betraying one or the other." Heller recommended that D.C. have a permanent plan that ensured ongoing contact with Tony.

The contested section 366.26 hearing was held May 2 and 3.

Social worker Abdullah testified D.C.'s relationship with David should be continued, and the de facto parents had agreed to continue it. Abdullah testified it would be difficult for D.C. if he had no further contact with David, but she did not know if it would be detrimental.

Abdullah opined that D.C. viewed Heather as a maternal figure and Tony as his father figure. Abdullah did not know if it would be detrimental to cut off D.C.'s contact with Tony. Abdullah testified that the de facto parents indicated they were willing to allow D.C. to have contact with all of his biological relatives.

Psychologist Heller testified Tony was very responsive to D.C., which was significant because it showed Tony could, among other things, attend to his son's needs for structure and safety. Heller opined that D.C. reacted very well to Tony setting boundaries.

Heller testified there was no question that Tony and D.C. loved each other. Tony and D.C. had a very good relationship because the child enjoyed being with Tony and felt secure with his father. Heller acknowledged that D.C.'s main psychological parent was the de facto mother, but said D.C. and Tony had a strong attachment. Heller opined that D.C. would benefit from continuing to have contact with Tony after adoption. Heller added that if D.C. did not have any contact with Tony the child's sense of belonging would be negatively affected and this could result in emotional problems for him later on.

The court found both D.C. and David were likely to be adopted and neither the beneficial sibling relationship nor the beneficial parent-child relationship exceptions to adoption applied. The court found adoption was the appropriate permanent plan for both boys and terminated parental rights.

DISCUSSION

I

COURT DID NOT ABUSE ITS DISCRETION BY DENYING

CHANGE OF PLACEMENT TO GRANDMOTHER

Deborah and Tony as well as Agency contend the juvenile court abused its discretion by denying Agency's request to change D.C.'s placement from the de facto parents to the paternal grandmother in Washington. They assert it was in D.C.'s best interests to be placed with the paternal grandmother, his brother David -- with whom he was deeply bonded -- and other relatives so that D.C. would not lose all familial connections with his biological family. They also claim the court did not adequately consider the preference for placing dependent children with relatives and the importance of maintaining sibling bonds.

The de facto parents contend Tony and Deborah, as well as Agency lack standing to raise issues of relative placement; therefore, the appeal in Case No. D048092 should be dismissed. We need not address this contention because we conclude the placement order did not constitute an abuse of discretion. In other words, for purposes of this appeal, we shall assume, without deciding, that Tony and Deborah have standing on this issue, and Agency has the right as respondent to set forth its views.

Our review of the court's order denying a change of placement is largely determined by In re Stephanie M. (1994) 7 Cal.4th 295, which upheld a juvenile court's order denying a section 388 motion seeking to change the placement of the dependent child from the foster parents to a relative. Here, as was the case in In re Stephanie M., supra, the Agency's second request for a change of placement came late in the proceedings -- after the court had terminated services and set a 366.26 hearing. The Supreme Court, observed:

"After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (In re Stephanie M., supra, 7 Cal.4th at p. 317, citing In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

Furthermore,

"In any custody determination, a primary consideration in determining the child's best interests is the goal of assuring stability and continuity. [Citation] 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' " (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

We review a juvenile court's custody placement orders under the abuse of discretion standard of review; the court is given wide discretion and its determination will not be disturbed absent a manifest showing of abuse. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) "Broad deference must be shown to the trial judge. The reviewing court should interfere only ' "if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did." [Citations.]' [Citation.]" (Ibid.)

We conclude the court did not abuse its discretion in denying the request that D.C. be placed with the paternal grandmother. We acknowledge it is important to accord relatives a "fair chance" to obtain custody. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033.) At the same time, however, the fundamental duty of the juvenile 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." (In re Stephanie M., supra, 7 Cal.4th at p. 321.) "Balancing the benefits of maintaining extended family relationships against the best interests of the child is a critical element in the placement decision." (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 864.) On this record, the court's finding that D.C.'s best interests would not be served by placing him in the paternal grandmother's home and its order denying Agency's request for a change of placement were not unreasonable; we find the court acted within its discretion. (In re Robert L., supra, 21 Cal.App.4th at p. 1067.)

It was undisputed that the de facto parents provided D.C. with excellent care and nurturing; D.C. thrived in their care. He was a happy, engaging child who was developmentally on target. In February 2006 when the trial on Agency's second request for a change of placement took place, D.C. was three years old and had lived with the de facto parents for 21 months -- more than half of his life. In effect, the de facto parents were the only functioning parents D.C. has known.

Furthermore, psychologist Volcani testified that D.C. viewed the de facto parents as his primary parental figures. With respect to the most recent of his bonding studies, Volcani reported:

"Findings from the current study continue to be consistent with D.C. perceiving the [de facto parents] as his 'psychological parents' and the primary caregivers in his life. As emphasized in my previous report, the nature of D.C.'s bond to the [de facto parents] involves his internalizing them as a central aspect of his developing self structure. I emphasized in my previous report that disruption of such a relationship could be emotionally and psychologically 'catastrophic.' Given the additional year of D.C. being in the [de facto parents'] care and the particular juncture of his development, this possibility is now heightened."

Volcani testified the risks of emotional damage to D.C. outweighed the benefits the child would receive from maintaining familial connections by being placed with the paternal grandmother.

Although Agency as well as the parents attempted to downplay the significance of Volcani's analysis by pointing out limitations inherent in his bonding studies, the juvenile court said it gave considerable weight to Volcani's testimony. In so doing, the court was acting well within its province. As an appellate court, we cannot reweigh the evidence. (Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 863.) When two or more inferences reasonably can be deduced from the facts, we have no authority to substitute our decision for that of the court below. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.) The court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (Id. at p. 318.)

We acknowledge the law's general preference to place dependent children with relatives to maintain familial ties. (See In re Baby Girl D. (1989) 208 Cal.App.3d 1489, 1493.) With respect to changes in the placement of dependent children, the governing statute is section 361.3, which provides that relatives who request placement of a dependent child are given preferential consideration. (§ 361.3, subd. (a).)

D.C.'s paternal grandmother was eligible for preferential consideration as a relative placement. (§ 361.3, subd. (c)(2).) However, " '[p]referential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) Preferential consideration "does not create an evidentiary presumption in favor of a relative, but merely places the relative at the head of the line when the court is determining which placement is in the child's best interests." (In re Sarah S. (1996) 43 Cal.App.4th 274, 286.) Thus, section 361.3 requires the social worker and the court to give preferential consideration for relatives seeking placement of a child; the statute does not require preferential placements for relatives. "[T]he court is not to presume that a child should be placed with a relative, but is to determine whether such a placement is appropriate, taking into account the suitability of the relative's home and the best interest of the child." (In re Stephanie M., supra, 7 Cal.4th at p. 321.)

Significantly, section 361.3 applies to two situations--at the dispositional hearing when the child is removed from parental custody (§ 361.3, subd. (a)), and when "a new placement . . . must be made" (§ 361.3, subd. (d); see also Cesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1032). Neither of these situations was extant when the request to place D.C. with the paternal grandmother was made. The dispositional hearing had long since passed, and it was not necessary to make a new placement for D.C. at that time. D.C. was doing extremely well in the home of the de facto parents to whom he was strongly bonded. Therefore, the statutory preference given to considering relatives for placement under section 361.3 did not apply at that time.

Of course, a party can seek relative placement of a dependent child who is in a still viable placement, as Agency did here. In such cases, the overriding inquiry is whether the change in placement is in the child's best interests. (See In re Stephanie M., supra, 7 Cal.4th at p. 321.) Further, the court, in determining whether a relative placement is in the child's best interests, may consider the criteria listed in section 361.3, subdivisions (a) and (d). (In re Stephanie M., supra, 7 Cal.4th at p. 317 at pp. 320-321.)^[7]

With respect to the importance of maintaining the sibling bonding between D.C. and David, the court acknowledged that the brothers had a strong bond. However, according to the evidence before the court, the de facto parents had encouraged and nurtured the bond between D.C. and David. Also, the de facto mother testified she was willing to facilitate contact between D.C. and David. In light of these circumstances, the court reasonably could compare D.C.'s parental attachment to the de facto parents with the importance of maintaining his strong sibling bond with David and find D.C.'s best interests were better served by his continued placement with the de facto parents.

We realize that but for the fact that the paternal grandmother lived out of state -- necessitating an ICPC evaluation -- and her willingness to allow Tony and Deborah a chance to reunify with the children, D.C. and David probably would have been placed with her when these proceedings began. Further, it is arguable that Agency should not have placed D.C. in a concurrent placement during the reunification process and while a relative's home was being evaluated. We sympathize with the paternal grandmother's dilemma of having the issue of placing D.C. with her coming so late in the proceedings through no fault of her own. Nonetheless, those factors are not determinative. The court correctly focused on the child's best interests rather than the grandmother's understandable frustration. (In re Stephanie M., supra, 7 Cal.4th at pp. 323-324.) The overriding inquiry in considering a change in a still viable placement is whether the move is in the child's best interests; the focus is not on the relative's interests and not on any asserted wrongdoing by Agency. (Id. at pp. 320-321, 323-324.) The reality is that "[c]hildhood does not wait . . . ." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) By the time of the placement hearing, D.C. had lived with the de facto parents for 21 months -- more than half of his life -- and a change in his placement to the grandmother's home would not have been in his best interests. There was no abuse of discretion.

II

COURT PROPERLY DENIED TONY'S SECTION 388 MOTION

Tony, joined by Deborah, contends the court abused its discretion by denying his section 388 petition seeking to have D.C. returned to him.

Under section 388, a parent may petition the court to change, modify or set aside a previous court order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petition shall set forth why the requested modification is in the best interests of the dependent child. (§ 388, subd. (b)(4).)

The parent bears the burden of showing, by a preponderance of the evidence, that a change of circumstances exists and the proposed change is in the child's best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court may consider the entire factual and procedural history of the case in considering a section 388 petition. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)

Rulings on section 388 motions are reviewed for abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) An order on a section 388 motion will not be disturbed on appeal unless the court has exceeded the bounds of reason by making an " '. . ."arbitrary, capricious, or patently absurd determination" . . . .' " (Ibid.)

Although the de facto parents argue that Tony did not show changed circumstances, Agency -- both below and before this court -- has asserted that Tony demonstrated circumstances had changed sufficiently to meet the first prong of section 388. We agree with Agency and Tony that he demonstrated changed circumstances.

Tony had regular and consistent visits with D.C., which was undisputedly positive for both of them. Tony had progressed to unsupervised visits. Since the court terminated services, Tony continued working on his case plan voluntarily and had met the objectives of the plan. Tony completed his domestic violence program and received glowing reports of progress. Tony's therapist reported Tony's improvement had been extraordinary. Tony had successfully completed a drug treatment program. Tony had found suitable housing for himself and D.C. in his stepsister's residence.

However, the question remains whether Tony satisfied the second prong of section 388 -- that is, showing that his request to have D.C. returned to him was in the best interests of the child. Establishing the best interests prong of section 388 is more difficult to accomplish when the changing circumstances come after reunification services have been terminated and the child's need for a permanent, stable home is paramount. At this point, the balancing of the parent's rights versus the child's rights shifts, and the child's interest in a stable, permanent home outweighs the parent's interest in reunification. (See In re Jasmon O. (1994) 8 Cal.4th 398, 420.) As this court has observed:

"A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.]" (In re Casey D., supra, 70 Cal.App.4th at p. 47.)

From our review of the record, we find substantial evidence supported the juvenile court's finding that placement of D.C. with Tony at that juncture would not promote D.C.'s best interests. Accordingly, the court acted well within its discretion by denying the section 388 motion. (In re Stephanie M., supra, 7 Cal.4th at pp. 317, 321.)

D.C. was in a stable loving home with his de facto parents, who wished to adopt him. D.C. was thriving in this home. Psychologist Volcani strongly recommended against removing D.C. from the de facto parents' home because of the strong parental attachment. Based on his bonding studies, Volcani opined that separating D.C. from the de facto parents could be emotionally and psychologically catastrophic. Tony did not present any expert testimony that moving D.C. to his home would be in the child's best interests.

We acknowledge that Tony's visits with D.C. showed that he and the child had a strong bond. Their interaction was always positive, and D.C. identified Tony as his father. However, the court could reasonably conclude the bond between D.C. and the de facto mother was markedly stronger than the bond between D.C. and Tony. The de facto mother had parented D.C. for more than half his life and approximately more than twice as long as Tony and Deborah had. Regardless of the positive relationship between D.C. and Tony, it did not outweigh D.C.'s need for ongoing permanency and stability. Tony had not established a more meaningful relationship with D.C. than the relationship between the child and the de facto mother.

The court did not abuse its discretion in denying Tony's section 388 petition.

III

STATUTORY EXCEPTIONS TO ADOPTION DID NOT APPLY

Tony contends the juvenile court erred by not finding that the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(A)) and/or the sibling relationship exception to adoption (§ 366.26, subd. (c)(1)(E)) applied. The contention is without merit.

Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the selection and implementation hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless one of the five statutory exception applies. (§ 366.26, subd. (c)(1)(A)-(E).) The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; § 366.26, subd. (c)(1).)

Our standard of review is the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576-577.)

Beneficial Parent-Child Relationship

Section 366.26, subdivision (c)(1)(A) provides that after the court finds the child is likely to be adopted the court shall not terminate parental rights if it finds termination would be detrimental to the child because "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Italics added.) The exception applies only if both prongs are met.

The record contains substantial evidence that Tony maintained regular visitation and contact with D.C.; Tony met the first prong of section 366.26, subdivision (c)(1)(A). However, Tony cannot prevail unless he also met the second prong of the statute --showing he had a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(A).

In In re Autumn H., supra, 27 Cal.App.4th at page 575, this court explained that to come within the beneficial relationship exception to adoption, a parent must show 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." (Italics added.) The court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) In balancing these interests, relevant factors include "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Id. at p. 576.) Further, the parent must show the benefit arises from a parental rather than caretaker or friendly visitor relationship. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420 [exception does not apply when a parent "has frequent contact with [dependent child] but does not stand in a parental role to the child"].) We affirmed this balancing test, explaining the standard "reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist . . . ." (In re Casey D., supra, 70 Cal.App.4th at p. 51, italics added.)

By the time of the contested section 366.26 hearing, D.C. had lived with the de facto parents two weeks shy of two years. D.C. thrived during this period -- he was a happy, delightful child who was healthy and developmentally on target. It was the de facto parents -- not Tony -- who provided D.C. with food, shelter, protection and guidance on a daily basis. As psychologist Volcani stated, D.C. wanted Heather to tuck him in bed at night, feed him, read to him and take care of him when he was sick. When Volcani asked D.C. whom he wanted to be with if he was on an island or in his home, D.C. said he wanted to be with his de facto parents.

We acknowledge that Tony had an extremely positive relationship with D.C. and regularly performed caregiver functions during their visits. In addition, D.C. addressed Tony and referred to him as his father. However, as psychologist Heller acknowledged, Heather -- not Tony -- was D.C.'s psychological parent. In sum, although Tony had a significant relationship with D.C., he did not fill a parental role to D.C. within the meaning of section 366.26, subdivision (c)(1)(A).

Moreover, Tony did not meet his burden of showing the benefits of continuing his legal relationship with D.C. outweighed the well-being the child would gain in a permanent adoptive home. A young child such as D.C. needs a sense of permanence, which he had not known for approximately two years. Although D.C. very much enjoyed his visits with Tony, the visits were largely playtime for D.C. Further, the caregiver functions that Tony regularly performed during the visits, did not confer a regular parental role on Tony. He remained a friendly visitor.

The court did not err by finding the exception to adoption under section 366.26, subdivision (c)(1)(A) did not apply.

Sibling Relationship

It was not disputed that D.C. and David were bonded. D.C. lived with his older brother David for the first 11 months off his life. After being taken into protective custody, the brothers had regular contact with each other. D.C.'s de facto parents noticed the brothers were close and fostered the relationship by having David visit their house. David also regularly visited with D.C. and Tony.

Subdivision (c)(1)(E) was added to section 366.26, effective January 1, 2002, as a fifth enumerated exception to adoption relating to the relationship between siblings. "Thus adoption shall now be ordered '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.) Factors to be considered include the nature and extent of the relationship, whether the child was raised with a sibling in the same home, and whether the child has strong bonds with a sibling. (§ 366.26, subd. (c)(1)(E).) The court must also consider " '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.' [Citation.]" (In re Daniel H., supra, at p. 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.) It focuses exclusively on the benefits and burdens to the child being considered for adoption, not the other siblings. (Ibid.; see also In re Celine R. (2003) 31 Cal.4th 45, 54.)

"Under section 366.26, subdivision (c)(1)(E), the court is directed first to determine whether terminating parental rights would substantially interfere with the sibling relationship. . . ." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952.) It is only after the court concludes that adoption would result in a substantial interference with a sibling relationship, that the court moves on to the second step -- weighing the child's best interests in continuing the sibling relationship against the benefit the child would receive by the permanency of adoption. (Id. at p. 952.)

Here, there was substantial evidence that adoption of D.C. by the de facto parents would not substantially interfere with the sibling relationship. Since D.C. was placed with them, the de facto parents arranged for visits between the two brothers. The visits were expanded to all day visits and later to overnights in the de facto parents' home. After David was placed in the paternal grandmother's home in Washington, the de facto parents promoted contact between the brothers through telephone calls.

The de facto mother testified that she very much wanted D.C. to maintain his relationship with David and would allow as much contact between the brothers as the paternal grandmother would permit. The de facto mother also said she intended to allow D.C. to remain contact with any biological family members he chooses. The social worker also testified that the de facto parents were open to contact between David and D.C.

The juvenile court did not err by finding the exception to adoption under section 366.26, subdivision (c)(1)(E) did not apply.

DISPOSITION

The judgment and orders are affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

McDONALD, J.

IRION, J.

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^[1] All statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] The parents are not appealing orders as to D.C.'s siblings. The siblings will be mentioned to the extent they are relevant to the issues raised in these consolidated appeals.

^[3] The paternal grandmother has been a licensed foster parent since 1985. She has adopted one child and assumed guardianship of three other children, who are her grandchildren. Her residence, which is one block from a new medical clinic, has five bedrooms, two bathrooms and fully fenced backyard. When David was in her care previously, the paternal grandmother actively participated in David's school programs and was given the Family of the Year award. Although she is a widow, the paternal grandmother's large extended family in Vancouver supported her as a foster parent.

^[4] Tony filed a petition for extraordinary writ relief regarding the termination of his reunification services and the setting of the section 366.26 hearing. We denied Tony's petition. (Tony C. v. Superior Court (Aug. 2, 2005, D046217) [nonpub. opn.].) Tony and Deborah appealed the court's order denying placement of D.C. with the paternal grandmother. We affirmed the order. (In re David C. et al. (Oct. 18, 2005, D046349) [nonpub. opn.].)

^[5] The de facto parents told the social worker that although they recognized the importance of D.C.'s relationship with David they did not intend to have D.C. maintain contact with his biological family. At trial, however, the foster mother testified she would keep D.C. in contact with both David and Tony.

^[6] One week later, the de facto parents of D.C. withdrew their de facto application for David and their request for David's placement with them.

^[7] Section 361.3, subdivision (a) provides in part: "In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors: (1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. (2) The wishes of the parent, the relative, and child, if appropriate. (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. (4) Placement of siblings and half-siblings in the same home, if that placement is found to be in the best interest of each of the children as provided in Section 16002. (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. (6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful. (7) The ability of the relative to do the following: (A) Provide a safe, secure, and stable environment for the child. (B) Exercise proper and effective care and control of the child. (C) Provide a home and the necessities of life for the child. (D) Protect the child from his or her parents. (E) Facilitate court-ordered reunification efforts with the parents. (F) Facilitate visitation with the child's other relatives. (G) Facilitate implementation of all elements of the case plan. (H) Provide legal permanence for the child if reunification fails. . . . (I) Arrange for appropriate and safe child care, as necessary. (8) The safety of the relative's home . . . ."

Section 361.3, subdivision (d) provides: "Subsequent to the hearing conducted pursuant to Section 358 [dispositional hearing], whenever a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives who have not been found to be unsuitable and who will fulfill the child's reunification or permanent plan requirements. In addition to the factors described in subdivision (a), the county social worker shall consider whether the relative has established and maintained a relationship with the child.