In re Jonathan T.

Filed 10/17/07 In re Jonathan 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Riverside County. Becky Dugan and Christian Thierbach, Judges. Affirmed.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant, Michael T.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant, Stephanie T.

Janette Freeman Cochran, under appointment by the Court of Appeal, for minor, Jonathan T.

Karen Dodd, under appointment by the Court of Appeal, for minor Brianna T.

Joe S. Rank, County Counsel, Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.

Defendants and appellants Stephanie T. (mother) and Michael T. (father) are the natural mother and father, respectively, of five children: Ryan T., twins Nicholas and Nathan T., a daughter Brianna T., and the youngest, Jonathan T. All five children were made dependents of the juvenile court. Mother and father appeal an order of the juvenile court terminating their parental rights to the younger two children, Brianna and Jonathan. Both parents argue that the court erred in terminating their parental rights, because the order improperly severed important ties to their older siblings. In addition, father argues that the court erred in denying his petition for changed orders under Welfare and Institutions Code section 388. The claims on appeal are unmeritorious and we affirm.

FACTS AND PROCEDURAL HISTORY

Mother, father, and the four older children were living in a shelter when the children were first taken into custody in October 2004. Both parents allegedly had a history of drug abuse.

While the four older children were in care, mother gave birth to Jonathan. The parents had been making progress on their case plans, and Jonathan was not detained.

Eventually, the older four children were returned to the parents custody. Relatively soon, however, the parents stopped participating in their case plan activities, stopped their required drug tests, and later tested positive for drug use.

On a supplemental petition filed in November 2005, all five children were removed from the parents care. Jonathan and Brianna, the youngest two children, were placed together in one placement. The three older children were together in a different placement.

At the jurisdictional and dispositional hearing on the supplemental petition, the court found that the parents were out of time with respect to the older four children, and did not offer reunification services as to Jonathan. The court ordered a permanent plan of planned living arrangements for the children.

At the review hearing in July 2006, the court set a selection and implementation hearing for Jonathan and Brianna. Their caretakers wished to adopt them. Before the selection and implementation hearing, father, who had not appeared at the two previous hearings, filed a petition under Welfare and Institutions Code section 388, alleging changed circumstances. He provided documentation that he was attending AA meetings, participating in a drug treatment program, and testing negative for drug use. He asserted he had been drug-free since August 2006. The court found that father had made a prima facie showing of changed circumstances, and set a hearing on his petition.

On the date of the hearing itself, in March 2007, father gave evidence that he had continued to attend meetings and that he had remained free from drug use in the interim between filing the modification petition and the hearing. He had also obtained housing for the family. Mother, by stipulation, joined in fathers modification petition. Father argued that he had maintained his sobriety for approximately seven months. He asked for six more months of reunification services or, alternatively, that the court select long-term guardianship as the permanent plan.

The court denied fathers modification petition. It pointed out that, although father had made recent strides, there had been several times when it had appeared that the parents had made progress, only to have them relapse into drug usage once more.

As to selecting the appropriate permanent plan, the court opined that guardianship as opposed to adoption was not unreasonable, but counsel pointed out that the legislative scheme mandated adoption, unless some statutory exception applied. The court found that the children (Brianna and Jonathan) were likely to be adopted, and that no exception, such as the beneficial parental relationship exception or the sibling relationship exception, applied. The court therefore terminated mothers and fathers parental rights to Jonathan and Brianna.

Father and mother each filed a notice of appeal.

ANALYSIS

I. Fathers Appeal

Father argues that the juvenile court erred in denying his petition under Welfare and Institutions Code section 388 for modification based on changed circumstances.

A. Standard of Review

A parent seeking modification of juvenile court orders based upon changed circumstances bears the burden of showing both that circumstances have changed, and that a modification of the juvenile courts orders is in the childs best interest. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) The juvenile courts determination of a modification petition is subject to review for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)

B. The Juvenile Court Did Not Abuse Its Discretion in Denying Fathers Petition for Modification

Fathers petition, filed November 16, 2006, claimed that he had been free from drug use since August 23, 2006, a matter of just under three months. In October and November 2006, fathers attendance sheet showed he had attended nine 12-step meetings. He provided documentation showing two clean drug tests in October and November 2006. The director of a church-based discipleship program wrote a letter attesting to fathers enrollment in that program as of September 2, 2006, and his commencement of the first phase of the program on September 27, 2006. Father was residing in a sober living house as of October 3, 2006.

By the time of the hearing on fathers petition in March 2007, father submitted a record of one additional clean drug test (dated March 2007), and a 12-step attendance card showing he had attended 11 meetings between December 7, 2006, and March 18, 2007. Father made an offer of stipulated testimony at the hearing that he and mother had secured a four-bedroom home, and that father was employed full time.

As the court noted, looking at the history of this case, there have been several instances where it looked like, hey, they have turned the corner and they really do mean it this time and theyre sober for a while. And then, boom, this insidious disease of drug addiction re-asserts itself and youre back to square one. . . . [] [O]n balance here, considering everything that has been submitted to me, including the very commendable drug testing results over a significant period of time, ultimately, I have to conclude that its too little too late.

We cannot say, under the circumstances of this case, that  the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.  (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) 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 . . . might be able to reunify at some future point, does not promote stability for the child or the childs best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47; see also In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.)

Here, father had shown at best that his circumstances might be changing. He had attended a few 12-step meetings, he had begun to participate in a treatment program, and, if his evidence was credible, he had managed to stay drug-free for seven months. This showing was insufficient to demonstrate that placing the childrens futures on hold was in their best interest. The court did not abuse its discretion in denying fathers modification petition.

II. Mothers Appeal

The gravamen of mothers appeal is that the court should have applied the sibling relationship exception, under Welfare and Institutions Code section 366.26, subdivision (c)(1)(E), so as not to terminate the parents parental rights.

A. Standard of Review

Generally, we review the trial courts rulings on an exception to the termination of parental rights for substantial evidence. (In re Zachary G., supra, 77 Cal.App.4th 799, 809; In re Derek W. (1999) 73 Cal.App.4th 823, 827.)

B. Substantial Evidence Supported the Courts Determination That the Sibling Relationship Exception Did Not Apply

After reunification services have terminated, the focus of a dependency proceeding shifts from family preservation to promoting the best interest of the child including the childs interest in a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.] [Citation.] The purpose of a section 366.26 hearing is to provide stable, permanent homes for dependent children. [Citation.] At a section 366.26 hearing the juvenile court has three options: (1) to terminate parental rights and order adoption as a long-term plan; (2) to appoint a legal guardian for the dependent child; or (3) to order the child be placed in long-term foster care. [Citation.] Adoption is the preferred plan and, absent an enumerated exception, the juvenile court is required to select adoption as the permanent plan. [Citation.] The burden falls to the parent to show that the termination of parental rights would be detrimental to the child under one of the exceptions. [Citation.] [] There are five circumstances that may present a compelling reason for determining that termination [of parental rights] would be detrimental to the child. . . . [Citation.] One is if [t]here would be a 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. [Citation.] (In re Fernando M. (2006) 138 Cal.App.4th 529, 534-535.)

Mother argues that Jonathan and Brianna were so bonded to their older siblings that the juvenile court should have found the sibling-relationship exception applied. We disagree.

Although Brianna had spent part of her young life in the same household with her older siblings, Jonathan was born while the other four children were out of the home. Relatively soon after reunification of the family, all five children were removed and Jonathan and Brianna were placed together in one home, and the older three children in another. Thus, Jonathan had not been with his older siblings for almost his entire life. While Brianna had spent some of her life living in the same home as the older siblings, she had spent by far the greater portion living with Jonathan in their prospective adoptive home. Brianna was old enough (eight years old at the time of the hearing) to speak her mind, and she was clear that she wanted to be adopted. She knew what adoption meant, and desired the permanency of that status over the relationship with her other siblings.

Although mother pointed out that the oldest child, Ryan, had been devastated when Jonathan was removed from the home, the key issue was the benefits and burdens to the adoptive child(ren), not the other siblings. (In re Daniel H. (2002) 99 Cal.App.4th 804, 8l3.)

Mother contends that the court issued the termination order only after issuing an order requiring post-adoption sibling contact, and intimates that the court must therefore have determined, sub rosa, that the benefits of maintaining the sibling bonds outweighed the benefits of adoption.

Whether or not the court could validly make and enforce a post-adoption sibling contact contract, however, does not detract from the courts actual consideration and rejection of the sibling relationship exception. As Department of Public Social Services points out, the record is clear that the court knew and understood when and how to apply the sibling exception and that the court did in fact consider the exception but found it inapplicable. The court explicitly stated, I dont see any factual support where the sibling relationship would be harmed in any way, by terminating parental rights and ordering adoption as the permanent plan.

Substantial evidence supported the courts determination. It did not appear that adoption would be detrimental to Briannas or Jonathans well-being, including their sibling relationships, in any way.

DISPOSITION

The orders of the juvenile court are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

GAUT

J.

KING

J.

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