Filed 10/18/18 In re K.F. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from orders of the Superior Court of Fresno County. Leanne Le Mon, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Katie F. (mother) appeals the juvenile court’s orders summarily denying her petition for modification seeking custody of K.F. (daughter), and its order terminating parental rights over daughter. Mother contends she made a prima facie showing sufficient to support a hearing on her petition, and that the evidence established both a benefit to daughter to continue the parental relationship and a strong sibling bond in danger of loss. Finding no error in the court’s summary denial or its order terminating parental rights, we affirm.

STATEMENT OF FACTS AND PROCEDURE

Detention

On September 7, 2017, a protective hold was placed on then four-year-old daughter and 18-month-old K.F. (son)[1] when mother was found to be on drugs and unable to care for the children. Mother would disappear for long periods of time, leaving the children with maternal great-grandmother, who was in her 80’s and in failing health.[2] Great-grandmother’s home was unsafe for the children, strewn with junk and rotting food, due to great-grandmother’s hoarding tendencies. According to mother, she had been clean and sober for two years prior to December 2016, when she had a mental breakdown and relapsed after finding her own mother dead in the bathtub. Daughter reported that she rarely saw mother, and it was great-grandmother, a great aunt, and an aunt who cared for her and brought her food.

The Fresno County Department of Social Services (department) filed a Welfare and Institutions Code section 300[3] petition September 11, 2017, alleging mother had a methamphetamine substance abuse problem, putting the children at risk of harm. Mother had received substance abuse treatment in a previous dependency case in 2014 involving daughter. That dependency case was dismissed in June of 2016.

At the detention hearing September 12, 2017, the children were detained and placed together with daughter’s former care providers. Weekly visits between mother and the children were ordered. Jurisdiction/disposition set for October 17, 2017.

Jurisdiction/Disposition

The department recommended mother not receive reunification services due to past drug abuse and treatment (§ 361.5, subd. (b)(13)).[4] Daughter and son were reported to have a “good bond” with each other. It was also reported by the care providers that daughter initially had some difficulty sleeping in her own bed, presumably because she was used to sleeping with mother.

At the jurisdiction/disposition hearing October 17, 2017, the juvenile court found the allegations of the petition true and removed the children from mother’s custody. No reunification services were ordered for mother.[5] Visits between mother and the children were changed to once a month supervised visits.

A section 366.26 permanency hearing was set for daughter for January 23, 2018; a six-month review hearing was set for son in April of 2018. The section 366.26 hearing was subsequently continued to February 13, 2018.

Section 388 Petition and Section 366.26 Hearing

On February 9, 2018, mother filed a section 388 modification petition alleging her circumstances had changed because she enrolled in residential drug treatment after the September 2017 detention hearing, “successfully completed the phase two program on January 22, 2018” in residential care, and was now at a sober living facility. Mother requested that daughter not be adopted, but rather returned to her care or placed in legal guardianship. Mother claimed this would be in daughter’s best interest because mother had a “beneficial relationship” with daughter. Certificates showing mother’s participation in services were attached to the petition. The juvenile court denied mother’s petition following argument by the parties.

The department report prepared in anticipation of the section 366.26 hearing stated that, while mother missed several scheduled visits, visits thereafter between mother and daughter and son went well. Mother was said to be engaged and supportive during visits. They were affectionate with one another, and the children expressed sadness when the visits ended. The department’s assessment of the relationship between mother and daughter was that there was a “strong bond and attachment” between them. While mother was able to provide structure for daughter in visits, the department was unable to assess mother’s ability to provide structure outside a contained setting and for more than one hour.

Daughter was thought to be “generally adoptable” and was thriving in the home of her care providers, who wished to adopt her. She had been placed with her care providers since September 7, 2017, and was previously placed with them during the earlier dependency for almost a year, from June 2014 to May 2015. The department recommended postadoption mediation to allow mother to continue to have contact with daughter due to their bond; the care providers were open to such contact as long as mother was clean and sober.

At the continued contested section 366.26 selection and implementation hearing February 20, 2018, mother explained that she relapsed in December of 2016 when she found her own mother dead in a bathtub, which made her “lose [her] mind.” Mother regretted having made this choice, calling it “[s]tupid.” Mother testified that she then went to detox and found temporary placement for the children with great-grandmother. While she knew great-grandmother was a hoarder, she needed the assistance.

At the time of the hearing, mother testified she was sober, attending meetings, going to grief and loss counseling, attending therapy and psychiatry appointments, and had obtained a job. She was in sober living and would be there for another 30 days. Mother acknowledged not having visited her children before the jurisdiction/disposition hearing, but did not do so because she was not sober and did not want to violate a court order. She visited regularly thereafter, stating daughter lit up when she saw her, told her she missed and loved her, and said she cried for her. Mother described daughter and son as “inseparable.”

Social worker Enrique Medrano, who supervised two visits between mother and daughter testified that the visits went well and that mother was appropriate, engaging and interactive, and the two shared a significant bond. While the record repeatedly noted a strong bond between mother and daughter, the social worker did not think their bond outweighed the stability of adoption. Medrano also believed daughter had a bond with son, but he did not know how strong the bond was.

The juvenile court found clear and convincing evidence that daughter was adoptable, and that while mother and daughter loved each other and had a bond, it did not outweigh the benefits of adoption. The juvenile court found neither the parent-child relationship exception nor the sibling bond relationship exception applied to adoption. It then terminated mother’s parental rights as to daughter and selected adoption as daughter’s permanent plan.

DISCUSSION

1. SECTION 388 PETITION

Mother contends the juvenile court committed reversible error when it denied her section 388 petition “without an evidentiary hearing.” We disagree.

Procedural Background

Four days prior to the section 366.26 hearing, mother filed a section 388 modification petition requesting placement of daughter with her, because she was now in sober living and it would be in daughter’s best interest to be with mother.[6] Mother attached various certificates of her participation in services to the petition.

At the February 13, 2018, scheduled contested section 366.26 hearing, the juvenile court stated it had had an opportunity to review mother’s recent section 388 petition and, while it was “not technically on calendar,” it would be addressed during the current hearing. It then asked how each party wished to proceed.[7]

Counsel for the department asked that the juvenile court deny the section 388 petition, stating it failed to meet a prima facie showing of changed circumstances or that it would be in daughter’s best interest, as circumstances were merely “changing.”

Daughter’s counsel agreed with the department, stating that, while “some circumstances … are changing,” it was not enough for the juvenile court to make a prima facie showing of “a significant change of circumstances.”

Mother’s counsel asked that the juvenile court take into consideration the fact that, after daughter was removed, mother

“started NA and AA. She also enrolled herself in West Care and has been participating in West Care, doing very well, testing negative and working hard on getting sobriety. And in January of this year, January the 23rd – 22nd, I believe – she completed the second phase of the West Care treatment program and was discharged from West Care successfully and now she is in a sober living going through a treatment program there. [¶] Mom is really interested—I mean, has taken up being sober seriously. Like she told me, this time she’s doing it for herself and her child—and her children and she wants to do everything possible to have them in her care, enjoy the relationship that she developed with them. [¶] I understand that I hear [daughter’s] counsel and also the County Counsel stating that there hasn’t been enough change of circumstance. The main purpose for removal is as a result of drug substance abuse. My client, mother, took it upon herself and realized that that has a very—impact on her because two of her children were removed from her and she decided to go ahead and submit herself to whatever it takes to get—gain sobriety. And I can say that she ha[s] done very good on that. [¶] I know that currently she probably may not have her own home, but I don’t think that that should be a reason for not considering the [petition]. She is now in a sober living home where they have granted her two months of stay and she is working hard to get employment to be able to get her own housing.”

Following argument, the juvenile court denied the petition, with respect to placement of daughter with mother, finding “there has not been a prima facie showing of either change of circumstances or that the proposed changes is in the best interest of the minor.”

Applicable Law and Analysis

“Under section 388, a parent may petition to change or set aside a prior order ‘upon grounds of change of circumstance or new evidence.’ [Citations.] The juvenile court shall order a hearing where ‘it appears that the best interests of the child ... may be promoted’ by the new order. [Citation.] Thus, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child’s best interests.” (In re G.B. (2014) 227 Cal.App.4th 1147, 1157, fn. omitted.) “A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child’s best interests.” (Ibid.)

The summary denial of a petition under section 388 is only appropriate if the petition “fails to state a change of circumstance or new evidence that even might require a change of order.” (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) In determining whether the petition makes the necessary showing, the juvenile court may consider the entire factual and procedural history of the case. (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.) “[A]fter reunification services have terminated, a parent’s petition for either an order returning custody or reopening reunification efforts must establish how such a change will advance the child’s need for permanency and stability.” (In re J.C. (2014) 226 Cal.App.4th 503, 527.)

“We review such rulings for abuse of discretion and may not disturb the decision of the trial court unless that court has exceeded the limits of judicial discretion by making an arbitrary, capricious, or patently absurd determination.” (In re E.S. (2011) 196 Cal.App.4th 1329, 1335; see also In re B.D. (2008) 159 Cal.App.4th 1218, 1228.)[8]

The juvenile court did not abuse its discretion when it denied mother’s petition without a further hearing.[9] Mother failed to show changed circumstances or that it was in daughter’s best interest to have daughter placed in the sober living facility with her.

“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 interest. [Citation.] ‘“[C]hildhood does not wait for the parent to become adequate.”’ [Citation.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 47; see In re Mickel O. (2011) 197 Cal.App.4th 586, 615 [“petitioner must show changed, not changing, circumstances”].)

Here, mother’s history of substance abuse dates back to at least June of 2014, when she was found to be abusing methamphetamine and neglecting daughter. Daughter, who was slightly over one year old at the time, was removed from mother’s custody. Dependency was not dismissed until June 6, 2016, after mother completed substance abuse treatment. In the current case, mother admitted relapsing in December of 2016, a mere six months after her prior dependency case was closed. Mother’s substance abuse continued from December 2016 until, at least, September of 2017, when daughter and son were removed from mother again. During this time period, mother left the children for great periods of time with great-grandmother, who was elderly and, by September 2017, not willing or able to provide for their care. While mother was making progress in her current substance abuse program, she had only just completed the second phase of her drug treatment program a week before filing the section 388 petition, was still living in a supported sober living facility, and had less than six months of sobriety. On these facts alone, the juvenile court’s determination that mother’s circumstances were changing and not changed was simply not an arbitrary, capricious or patently absurd determination.

In addition, mother in no way showed that it would be in daughter’s best interest to be placed with mother at this time. Mother stated only that granting placement with her would be in daughter’s best interest because the two had a “very strong bond.” Daughter was entitled to permanency and stability, which she had in the prospective adoptive home, and mother had not shown how she could provide such stability.

The juvenile court properly summarily denied mother’s section 388 petition.

2. BENEFICIAL PARENT/CHILD RELATIONSHIP AND SIBLING RELATIONSHIP EXCEPTION

Mother does not dispute that daughter was adoptable. Instead, she argues her parental rights were wrongly terminated because the juvenile court failed to apply the parent-child beneficial relationship exception and/or the sibling relationship exception. We disagree.

Applicable Law

After reunification services are terminated, or as here, when they have not been ordered, “‘the focus shifts to the needs of the child for permanency and stability.’ [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 52.) A hearing under section 366.26 is held to design and implement a permanent plan for the child.

The Legislature prefers adoption, where possible, as the permanent plan. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)

At a section 366.26 hearing, once the juvenile court finds by clear and convincing evidence that the child is likely to be adopted within a reasonable time, the court is required to terminate parental rights and select adoption as the permanent plan, unless the parent shows that termination of parental rights would be detrimental to the child under one of several statutory exceptions. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) One of these statutory exceptions is the beneficial parent-child relationship exception to adoption, which applies when it would be detrimental to the child to terminate parental rights if “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) Another exception is where “[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).)

The burden is on the party seeking to establish the beneficial relationship exception to produce evidence establishing the exception is applicable. (In re Bailey J., supra, 189 Cal.App.4th at p. 1314.) Once the juvenile court finds that a parent has met his or her burden to establish the requirements of the beneficial relationship exception, the juvenile court may choose a permanent plan other than adoption if it finds the beneficial relationship to be “a compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B); see In re Bailey J., supra, at p. 1315.) However, “it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

Standard of Review

We acknowledge the parties' discussion in their respective briefing regarding the split of authority as to whether the substantial evidence standard, the abuse of discretion standard, or a hybrid standard applies in reviewing the juvenile court’s rejection of exceptions to adoption. (See In re Bailey J., supra, 189 Cal.App.4th at pp. 1314–1315 and In re K.P. (2012) 203 Cal.App.4th 614, 621–622 [hybrid combination of substantial evidence and abuse of discretion standards; applying substantial evidence test to determination of existence of a beneficial sibling relationship and the abuse of discretion test to issue of whether that relationship constitutes a compelling reason for determining termination would be detrimental to the child]; In re Autumn H. (1994) 27 Cal.App.4th 567, 576 [substantial evidence test: “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order”]; In re Jasmine D., supra, 78 Cal.App.4th at p. 1351 [abuse of discretion test].) Mother asserts our review should be for substantial evidence; the department, the hybrid standard.

Under any of these standards of review, our conclusion in this case would be the same because the practical differences between them are “not significant,” as they all give deference to the juvenile court’s judgment. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) “‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling.... 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 court’s action, no judge could reasonably have made the order that he [or she] did.’...”’” (Ibid.) Similarly, a substantial evidence challenge to the juvenile court’s failure to find a beneficial parental relationship or a sibling relationship cannot succeed unless the undisputed facts establish the existence of those relationships, since such a challenge amounts to a contention the “undisputed facts lead to only one conclusion.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1529; see In re Bailey J., supra, 189 Cal.App.4th at p. 1314.)

No Error In Rejecting Beneficial Parent-Child Relationship Exception

To prove the beneficial parental relationship exception applies, “the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child.” (In re I.W., supra, 180 Cal.App.4th at p. 1527.) Moreover, it is not enough simply to show “some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) “[T]he parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed.” (In re Angel B., supra, 97 Cal.App.4th at p. 466, italics omitted.)

In addressing the first prong of the beneficial parent-child relationship exception, whether mother was able to show regular visitation and contact, the juvenile court found contact between mother and daughter was “weak,” noting that weekly visits were ordered September 12, 2017, at the inception of the case, but that mother did not attend until October 23, 2017. Mother testified that this was due to the fact that she was not sober at the time and did not want to violate the court order requiring her to be sober. Visits thereafter were said to be consistent and appropriate.

Even if mother’s contacts and visits with daughter met the requirements of the first prong, mother failed to show that daughter had a significant, positive, emotional attachment to her that would outweigh the well-being the minor would gain in a permanent home with adoptive parents, necessary to satisfy the second prong. (See In re S.B. (2008) 164 Cal.App.4th 289, 297; accord, In re Jasmine D., supra, 78 Cal.App.4th at p. 1354.) Mother argues her positive and beneficial bond with daughter was evidenced by the fact that she was attentive and affectionate with her, provided comfort and encouragement, and acted as a parent to daughter, nurturing her development and redirecting her when necessary. Mother argues daughter was very comfortable with mother and distressed when visits ended. Mother notes that the social worker opined that there was a significant, strong bond between mother and daughter “that was of a parent-child relationship quality.” We note, however, that the social worker also opined that daughter “has developed a bond and attachment with the prospective adoptive parents,” and “[i]t is in [daughter’s] best interest to have a stable and permanent home through adoption.”

In its ruling, the juvenile court noted that, even prior to the inception of this dependency, daughter had said she rarely saw mother and it was grandmother and aunts who cared for her. The juvenile court took note daughter would be turning five in a few months and had spent a “significant amount of time” out of mother’s care, both because of earlier dependency proceedings from June 2014 to June 2016[10], as well as during the late portions of 2016 and most of 2017 prior to the current dependency proceeding when mother relapsed and left the children with great-grandmother. Once removed from mother’s custody, daughter was placed in the care of the same care providers she had been with during the earlier dependency proceedings. As stated by the juvenile court, “there ha[ve] been two removals since [daughter] was one years old, two removals from her mother due to issues relating to substance abuse. [¶] The Court does not feel that this is a stable relationship and does not feel that the mother has proven that there is such a bond and such a benefit to [daughter] that it would outweigh the benefit of adoption which would provide her with stability.”

As our courts have emphasized time and again, friendly, even loving, relationships are not enough. (E.g., In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419–1420 [although child loved mother and saw “a lot of her,” exception did not apply because she was more of “a close aunt” than a parent].) “[T]he exception does not permit a parent who has failed to reunify with an adoptable child to 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 Jasmine D., supra, 78 Cal.App.4th at p. 1348.) In order to trigger the exception, a strong parent-child bond must be coupled with an effort on the parent’s part to play a significant role in the child’s life and a desire on the child’s part to not be separated from the parent. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229 [“parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits”].) “It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship.” (In re Jasmine D. supra, at p. 1350.)

The juvenile court did not err in finding that the beneficial parental relationship exception was inapplicable in terminating mother’s parental rights.

No Error in Rejecting Sibling Relationship Exception

Mother also argues that the juvenile court erred in terminating parental rights to daughter because, in so doing, the court severed the relationship between daughter and her younger half sibling.[11] We disagree.

To establish the sibling relationship exception, the parent must show: (1) the existence of a significant sibling relationship; (2) that termination of parental rights would substantially interfere with that relationship; and (3) that it would be detrimental to the child being adopted if the relationship ended. (In re L. Y. L., supra, 101 Cal.App.4th at p. 952; see In re Celine R., supra, 31 Cal.4th at p. 54.) As with the parent-child exception, the parent asserting the sibling relationship exception has the burden of proof. (In re L. Y. L., supra, at p. 952.) If the parent makes this showing, then the juvenile court balances the benefit to the child of continuing the sibling relationship against the benefit of adoption. (Id. at pp. 952–953.) However, even if a sibling relationship exists that is so strong its severance would cause the child detriment, the juvenile court may still conclude that the detriment is outweighed by the benefit of adoption. (Ibid.) It is a “rare” case in which the court will find that this exception to adoption applies, particularly when the proceedings concern a young child whose needs for a competent, caring and stable parent are paramount. (In re Valeria A. (2007) 152 Cal.App.4th 987, 1014.)

Here, the evidence presented supported the juvenile court’s conclusion that the sibling relationship exception did not apply to prevent adoption. At the section 366.26 hearing, mother testified that daughter had a strong bond with son, her younger half sibling. Mother described the two, who had lived together for a year and one-half, as “best friends” and “inseparable.” Daughter would talk to son, sing to him, hold him, feed him, and burp him. Mother argues that, while daughter and son were living together at the time of the hearing, parental rights had not been terminated for son and there was a significant possibility he would be returned to his father or to both mother and father. As argued by mother, if the sibling exception was not applied, daughter would no longer be able to live with son and their relationship would end.

While there was some evidence presented that daughter was fond of son, mother did not present any evidence to show that it would be detrimental if daughter’s relationship with son was ended. In fact, daughter and son had spent time apart when mother would leave daughter with great-grandmother and son with paternal grandmother, who was even hoping to get legal guardianship of him. While maintaining sibling relationships is extremely important (see In re Erik P. (2002) 104 Cal.App.4th 395, 404), it does not appear here that daughter maintaining the sibling relationship with younger half sibling son outweighed the benefit she would enjoy though the permanence of adoption. (See In re L. Y. L., supra, 101 Cal.App.4th at pp. 951–952.)

We find no error on the part of the juvenile court in finding that the benefits to daughter of adoption outweighed the detriment that could occur as a result of losing her legal relationship with her younger half sibling.

DISPOSITION

The orders of the juvenile court are affirmed.