In re G.T.

Filed 8/16/07 In re G.T. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Deborah A. Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, Dawn M. Messer and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.

Ellen L. Bacon, under appointment by the Court of Appeal, and Dan Kern for Minors.

Rosa T. appeals an order terminating her parental rights to four of her children. The childrens father, Guillermo T., is not a party to the appeal. Rosa contends that the court erred in denying her petition for modification without a hearing and that the sibling bond and beneficial parental relationship exceptions contained in Welfare and Institutions Code section 366.26, subdivision (c),^[1]precluded termination of her parental rights. We affirm the order.

FACTUAL AND PROCEDURAL HISTORY

Rosa T. and Guillermo T. have five children together. Four of the children J.T., age 14; K.T., age 4; E.T., age 3; and G.T., age 2 are the subjects of the dependency proceedings. The couple has another son, B.T., age 14, who is J.T.s twin. Rosa has two other children, E.D., age 17, and P.G., who is an adult. B.T. and E.D. are also the subjects of dependency proceedings, but are not parties to this appeal.

In 1993, Los Angeles County Child Protective Services (CPS) removed P.G., E.D., B.T. and J.T. from parental custody because Guillermo had molested P.G. Sexual abuse allegations were substantiated against the parents in 1993, 2002, and 2006. CPS provided reunification and family maintenance services for approximately six years. Rosa did not reunify with P.G.; reunification services were terminated in 1999. She apparently did reunify with J.T., B.T., and E.D.

In or about January 2006, the children were detained after J.T. reported to law enforcement that Guillermo had been sexually abusing her for five or six years, since she was eight. She reported that she had complained to her mother repeatedly, but that her mother did nothing to protect her. Guillermo was arrested and petitions pursuant to section 300 were filed by the San Bernardino County Department of Childrens Services (DCS) as to all six children (i.e., all except P.G.), alleging Guillermos sexual abuse of J.T., Rosas failure to protect, and Rosas failure to reunify with P.G. Rosa admitted that Guillermo had molested J.T., and that B.T. had been molested by a paternal uncle, who was in prison. Rosa was arrested and charged with child endangerment.

The petitions were sustained. Guillermo was not given reunification services. Rosa was given reunification services as to B.T. and E.D., but not as to J.T. and the three younger children. The court set a section 366.26 hearing as to J.T. and the younger children. DCS recommended that K.T., E.T., and G.T. be adopted by P.G., their adult half sister. J.T., who was 14, did not want to be adopted. She preferred to remain in her current placement under long-term foster care and hoped to reunify with her mother after she graduated from high school. B.T. and E.D. were to be returned to Rosas custody. Prior to the section 366.26 hearing, K.T. and E.T. were placed with P.G. G.T. had recently been diagnosed with cerebral palsy. He had also suddenly developed crossed eyes. The social worker recommended leaving him in his foster home until tests and possible surgery were completed. He would move to his adoptive home with P.G. upon completion of his medical care.

Prior to the section 366.26 hearing, Rosa filed a petition for modification, pursuant to section 388. She had been released from jail and had moved in with her mother. She stated in her petition that she had completed numerous programs while incarcerated and was now capable of protecting her children. She contended that it would be in the childrens best interest to be returned to her care so they could reestablish their family. The court set a hearing on the petition, but limited the evidence at the hearing to declarations. The court denied the petition, finding that the petition and documents attached thereto failed to establish the types of changes and progress that would be needed for the [c]ourt to find that its in the best interest of these children to change the existing orders.^[2]

At the section 366.26 hearing, the parties stipulated that the siblings shared a strong bond and that visits among them were frequent and appropriate. They had been visiting every other week, but since K.T. and E.T. had been placed with P.G., visits had been occurring several times a week.

J.T. still did not want to be adopted, but she wanted to be placed with P.G. in long-term foster care. She did not object to the younger children being adopted. B.T. and E.D. were opposed to adoption of the younger siblings because they feared that their contact with their siblings might be terminated or restricted. Rosa opposed termination of parental rights based on the sibling bond and the beneficial parental relationship provisions of section 366.26, subdivision (c).

The court terminated parental rights as to K.T., E.T., and G.T., and selected adoption by P.G. and her husband as their permanent plan. G.T. was to remain temporarily in his current foster home, with the expectation that he would be moved to P.G.s home within six to 12 months. The court found that termination of parental rights as to J.T. would be detrimental because she was over 12 years old and objected to termination. The court selected long-term foster care as J.T.s permanent plan, with the goal of placing her with a fit and willing relative. The court continued existing orders for sibling visitation, with discretion vested in the adult caretaker. The court also ordered weekly visits between J.T. and Rosa, supervised by DCS.

Rosa filed a timely notice of appeal.

LEGAL ANALYSIS

THE COURT DID NOT ERR IN DENYING THE SECTION 388 PETITION

Rosa filed a petition, pursuant to section 388, seeking modification of the order denying reunification services as to J.T., K.T., E.T., and G.T. She sought either the return of the children to her custody or reunification services. She asserted that it was in the childrens best interest to reestablish their family in a single home because there was a strong bond between the children, who were then in three separate placements. She also described classes and therapy she had attended while incarcerated and asserted that the programs had made her better able to protect her children. She now contends that it was prejudicial error to deny the petition without a hearing because it stated sufficient facts showing changed circumstances and that modification of prior orders would be in the best interest of the children.

A juvenile court order may be changed, modified, or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.) A section 388 petition may be summarily denied without a hearing only if the parent fails to make a prima facie showing of these elements. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) The petition should be liberally construed in favor of granting a hearing to consider the parents request. (Ibid.)

Contrary to Rosas contentions, the court in this case did order a hearing. However, the court exercised its discretion to limit proof to documents, with the proviso that upon a showing of good cause, it would permit testimony. (Cal. Rules of Court, rule 5.570(h).)^[3] Rosa does not contend that the court abused its discretion or violated her due process rights by so limiting the hearing (see In re Matthew P. (1999) 71 Cal.App.4th 841, 849-851), nor does she contend that the court abused its discretion in finding that Rosa failed to demonstrate good cause to permit her to adduce live testimony.^[4] Neither issue is fairly encompassed within the issue she does raise, nor is either addressed by the authorities she cites. She also makes no contention that the court abused its discretion in denying the petition on its merits. Therefore, we will not address any of those issues.

THE BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION

Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) Section 366.26 provides for six circumstances which permit the juvenile court to choose not to refer the child for adoption if it finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child. ( 366.26, subd. (c)(1).) One of the six circumstances is that the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(A).) Rosa asserted this exception at the section 366.26 hearing. On appeal, she contends that the court erred in terminating her parental rights despite the evidence of the extent of her bond with her children.

The statutory exceptions to the preference for adoption apply only under exceptional circumstances. (In re Celine R. (2003) 31 Cal.4th 45, 53-54 (Celine R.).) The parent has the burden of proving that termination of parental rights would be detrimental to the child. (In reJasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).) Even if the parent does produce evidence in support of one of the statutory exceptions, the court must nevertheless terminate parental rights unless it finds a compelling reason for determining that termination would be detrimental to the child. ( 366.26, subd. (c)(1).) This is quintessentially [a] discretionary determination. (Jasmine D., supra, at p. 1351.) We review the juvenile courts ruling under section 366.26, subdivision (c)(1)(A) under an abuse of discretion standard, which has been articulated as follows: Broad deference must be shown to the trial judge. The reviewing court should interfere only if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. . . . [Citations.] (Jasmine D., supra, at p. 1351.)

Rosa contends that the following evidence demonstrates that she has a strong bond and a beneficial parental relationship with her children. The three youngest children, K.T., E.T., and G.T. (the only children as to whom her parental rights were terminated) had lived with her all their lives. She had written to them during her incarceration and arranged for a visit immediately after her release. At their first visit, K.T. and E.T. recognized her. K.T. told the social worker, Ive found my mother. She arranged for a second visit two weeks later. Visitation went well, and the children were happy to see her and looked forward to the visits. Shortly before the section 366.26 hearing, she had an all-day visit with G.T. on a day when he had eye surgery. This is not sufficient to show an abuse of discretion. Adoption is the preferred option because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker. [Citation.] (Celine R., supra, 31 Cal.4th at p. 53.) Therefore, the court may apply one of the statutory exceptions only if there are exceptional circumstances which justify selecting an option other than adoption. (Ibid.) Rosa had apparently made a great deal of progress since the children were removed from her custody, but her history does not demonstrate that she was a responsible caretaker. The fact that the children had a bond with her and enjoyed their visits is insufficient to meet Rosas burden of proving that termination would be detrimental to the children. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)

THE SIBLING BOND EXCEPTION

Rosa also asserts that the court should have applied the sibling bond exception.

At the section 366.26 hearing, Rosa asserted the sibling bond exception, saying that all six of the children were strongly bonded and up until January of that year had lived together in the same home. She did not explain why termination of parental rights as to K.T., E.T., and G.T. would affect that bond. She acknowledged that P.G. recognized the need for continuing contact among the siblings; that B.T. and E.D. had been visiting K.T. and E.T. at P.G.s home three or four times a week; and there had been visits among the siblings once a week since they were taken into custody. The parties stipulated that there was a strong bond among the siblings: B.T. and E.D. objected to the adoption; J.T. did not; and counsel for K.T., E.T., and G.T. asked the court to find that adoption was in their best interest.

The sibling bond exception applies if [t]here would be substantial interference with a childs 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 childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption. ( 366.26, subd. (c)(1)(E).) Just like the beneficial parental relationship exception discussed above, the sibling bond exception permits the court to select an option other than termination of parental rights and adoption only if there are exceptional circumstances, which show that adoption would be detrimental to the child whose welfare is being considered at the section 366.26 hearing. (Celine R., supra, 31 Cal.4th at pp. 49-50, 53; In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) The juvenile courts finding that the exception does not apply is reviewed for abuse of discretion. (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

The exception requires proof that adoption would cause substantial interference in the sibling relationship. ( 366.26, subd. (c)(1)(E); In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.) Here, there is no evidence that adoption would cause substantial interference in the relationship. On appeal, Rosa does not articulate any basis for concluding that the adoption would interfere with the sibling relationship, except that adoption by P.G. would mean that the younger children would live separately from the older children. She also states that it was speculative whether P.G. would adopt G.T., who remained in his foster placement pending the transition to P.G.s home; and that once parental rights were terminated, DCS has control over the adoptive placement, presumably meaning that someone other than P.G. might adopt the children. In the juvenile court, Rosa merely asserted that terminating parental rights would interfere with the sibling relationship without stating any factual basis for that position. The juvenile court found any concerns speculative and insufficient to support a conclusion that the adoption would interfere with the siblings relationship.

The record supports this conclusion. P.G. is also a member of the sibling group and appears to share a strong bond with the younger children. After K.T. and E.T. moved to P.G.s home, visits between them and the older siblings increased from once every other week to three to four times a week. There was no evidence that P.G. would decide to limit or terminate visits between her own siblings. Nor was there any reason to believe that P.G. would not adopt all three of the younger children, despite the fact that G.T. was to remain temporarily in his foster home. J.T. was expected to live with P.G. as well. In the absence of any evidence to the contrary, the courts conclusion that the adoption would not substantially interfere with the relationship among the siblings is supported by the evidence, and its determination that the exception did not apply was not an abuse of discretion.

DISPOSITION

The orders terminating parental rights as to K.T., E.T., and G.T., and freeing them for adoption are affirmed. The order for long-term foster care as a permanent plan for J.T. is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MCKINSTER

J.

We concur:

/s/ HOLLENHORST

Acting P.J.

/s/ RICHLI

J.

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

^[2]In our tentative opinion, we stated, erroneously, that the court denied a hearing on the section 388 petition. This is the position taken in mothers briefing. At oral argument, county counsel pointed out that the court did not deny the petition summarily, i.e., without a hearing, but set a hearing limited to consideration of declarations. (See Cal. Rules of Court, rule 5.570(f).) The court denied the petition on its merits.

^[3]Rule 5.570(h) provides:

(h) Conduct of hearing ( 388)

(1) The petitioner requesting the modification under section 388 has the burden of proof. If the request is for the removal of the child from the childs home, the petitioner must show by clear and convincing evidence that the grounds for removal in section 361[, subd.] (c) exist. If the request is for removal to a more restrictive level of placement, the petitioner must show by clear and convincing evidence that the change is necessary to protect the physical or emotional well-being of the child. All other requests require a preponderance of the evidence to show that the childs welfare requires such a modification.

(2) The hearing must be conducted as a disposition hearing under rules 5.690 and 5.695 if:

(A) The request is for removal from the home of the parent or guardian or to a more restrictive level of placement; or

(B) There is a due process right to confront and cross-examine witnesses.

Otherwise, proof may be by declaration and other documentary evidence, or by testimony, or both, at the discretion of the court.

^[4]As far as the record shows, Rosa did not object at the time the court ruled that it would limit the hearing to documentary evidence. At the time of the hearing, Rosa sought to submit additional documents for the courts consideration in ruling on the petition. In the alternative, she asked the court to permit the testimony of her therapist as to the subject matter addressed in counseling and Rosas progress in counseling. The court denied Rosas request. The court noted that despite six years of such services during the previous dependency, Rosa had allowed Guillermo to molest J.T. and did nothing to protect her. The court held that a course of treatment or therapy for the few months Rosa was incarcerated was not sufficient to demonstrate the type of changes and progress that would be needed for the court to find it in the best interest of the children to change the existing orders. Accordingly, the court denied the petition.