In re Tanya F.

Filed 2/7/08 In re Tanya F. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed.

Elizabeth K. appeals the judgment terminating her parental rights to Tanya F. and Carmen K. Elizabeth contends the juvenile court abused its discretion by summarily denying her Welfare and Institutions Code section 388^[1]modification petition, erred by declining to apply the beneficial relationship and sibling relationship exceptions to termination ( 366.26, subd. (c)(1)(A), (E)),^[2]and should have ordered a permanent plan of long-term foster care or guardianship. We affirm.

BACKGROUND

In June 2003, Elizabeth accidentally slammed two-year-old Carmen's finger in a door, severing the top part of the finger. Although Elizabeth was intoxicated, she drove Carmen to the emergency room. Carmen and five-year-old Tanya were detained out of Elizabeth's care, returned to her in September, removed again in June 2004, and returned in December. Jurisdiction terminated in June 2005. Throughout the two-year case, Elizabeth received reunification and family maintenance services.

In December 2005, when Tanya was eight years old and Carmen was five years old, the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions in the instant case. The Agency filed the petitions because Elizabeth was arrested for driving with a blood alcohol level of .15, with the children in the car, and she had a significant history of drug and alcohol use and a recent history of alcohol treatment. The girls were detained in a foster home, which eventually became a placement.

At the March 12, 2007 12-month review hearing, the court terminated reunification services and set a section 366.26 hearing. In August, on the day of the section 366.26 hearing, Elizabeth filed a section 388 petition. The court summarily denied the petition and terminated parental rights.

I.

The Court did not Abuse its Discretion

by Summarily Denying the Section 388 Petition

Section 388 allows the juvenile court to modify an order if a parent establishes, by a preponderance of the evidence, that new evidence or changed circumstances exist and the proposed change would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) To obtain a hearing on a section 388 petition, the parent must make a prima facie showing of those two elements. (Ibid.) The petition should be liberally construed in favor of granting a hearing, but "[t]he prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (Ibid.)

Elizabeth's section 388 petition requested modification of the order setting the section 366.26 hearing.^[3] The petition asked that the children be returned home, or that the court order a plan of long-term foster care with services. As changed circumstances, the petition alleged: Elizabeth's visits with the children were positive; Carmen wanted to

live with her; Tanya wanted a continuing relationship; Elizabeth had complied with the case plan, including therapy, a psychological evaluation, and fair to good participation with the Substance Abuse Recovery Management System (SARMS); and Elizabeth continued many of her programs after the court terminated services in March, attending meetings for another month and remaining sober.^[4] The petition alleged the requested modification was in the children's best interests because they and Elizabeth loved and were affectionate with each other; Carmen wanted to live with Elizabeth, Tanya wanted a continuing relationship, and Elizabeth had shown she could provide a loving, safe home.

The section 388 petition did not adequately allege a change of circumstances. Even before the setting hearing, visitation was positive, Carmen wanted to live with Elizabeth, and Tanya wanted a continuing relationship with her mother. Nor was Elizabeth's sobriety a change; she testified at the March 2007 setting hearing that she had been sober since November 2005. Continuing to attend meetings for only one month after services terminated nearly five months earlier was not a substantial change. The psychological evaluation took place before the setting hearing, Elizabeth's participation in SARMS ended on the day of the setting hearing, and the section 388 petition does not allege therapy continued after the setting hearing, so those allegations also were not changes. Moreover, there was no allegation Elizabeth benefited from SARMS or therapy, and she was defensive and guarded during the psychological evaluation, possibly invalidating some of the findings. Finally, Elizabeth had not succeeded with her case planand had she done so, the court would not have terminated services.

The section 388 petition did not adequately allege the proposed change would promote the children's best interests. Elizabeth lived at various times with an adult daughter, with an adult son, in a motel, and with her "ex." The petition did not say where she was living at the time of the hearing. Thus, the petition did not adequately allege she could provide a safe home for the minors. Moreover, Elizabeth's visits remained supervised and she continued to minimize the impact that her drinking problem had on the children. In view of these circumstances, Elizabeth's and the children's love and affection for one another and the children's wish to maintain the relationship were insufficient to support the conclusion that it was in their best interests to return to Elizabeth.

Similarly, the petition's allegations were insufficient to support the conclusion that long-term foster care was in the children's best interests. The children had been removed from Elizabeth's care three times over a four-year period, and the focus was on their need for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317, 324.)

The court did not abuse its discretion by summarily denying the section 388 petition. (In re Zachary G., supra, 77 Cal.App.4th 799, 808; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.)

II.

The Court Did Not Err by Failing to Apply

the Beneficial Relationship Exception

Section 366.26, subdivision (c)(1) allows termination of parental rights upon clear and convincing evidence of adoptability. An exception exists 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)(A).) A beneficial relationship is one that "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The existence of this relationship is determined by "[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.)

Examining the evidence in the light most favorable to the judgment, we conclude that while Elizabeth maintained regular visitation and contact, substantial evidence supports the finding she failed to meet her burden of showing a beneficial relationship sufficient to avoid termination of parental rights. (In re Autumn H., supra, 27 Cal.App.4th at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)

At the time of the section 366.26 hearing, Tanya was nine years eight months old and Carmen was nearly seven years old. Over the previous four years, they had been out of Elizabeth's custody three times: for nearly one year eight months in the instant case, and for two periods totaling eight to 10 months in the previous dependency. This amounted to approximately one-third of Carmen's life and almost one-fourth of Tanya's life.

Elizabeth spoke to the girls regularly by telephone, but ended the conversations if they started crying. She occasionally asked them about school, but apparently never asked the foster parents about their health, therapy, school, or whether they had any problems. She once asked the social worker about Tanya's health, but never asked her any other questions about the girls' health, therapy, or school. The girls enjoyed visits, which were filled with affection and fun. They were sometimes a little disappointed when visits ended, but they never asked the social worker for more visits. They clearly loved Elizabeth, in spite of the suffering she had caused them. Tanya sometimes missed Elizabeth. She talked to Elizabeth often, and when activities prevented her from calling Elizabeth, she felt "a little bit sad." Tanya testified that if she had a choice of living with her foster family or Elizabeth, she did not know which she would choose, and she "like[d] living with both." Tanya also testified she wished to continue living with her foster family, and if her foster mother decided she could not see Elizabeth, that would be okay. Tanya worried about being reunified with Elizabeth and "it happening again." Carmen testified, by offer of proof, that she liked living with her foster parents, but would rather live with Elizabeth. If Carmen was to be adopted, she wanted to be adopted by her foster parents.

The children lived with the foster parents for the entire period they had been out of Elizabeth's custody in this case. They were attached to the foster parents, who had become de facto parents and wished to adopt the girls. Tanya was doing well in the foster home. She felt comfortable and safe and her fear, anxiety, and depressive symptoms had decreased. Carmen's acting-out behavior had diminished significantly since the social worker had told her she would likely grow up in the foster home. Carmen's therapist believed Carmen had "connected well" with her foster parents "and this stability seem[ed] to have helped her begin to develop on target in most areas." The girls referred to their foster mother by her first name or as "mom." Tanya and Carmen greatly needed the stability of adoption.

The juvenile court did not err by failing to apply the exception to parental termination of section 366.26, subdivision (c)(1)(A).

III.

The Court Did Not Err by Failing to Apply

the Sibling Relationship Exception

Section 366.26, subdivision (c)(1)(E) provides another exception to termination of parental rights. The juvenile court must "balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer." (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951, citing In re Autumn H., supra, 27 Cal.App.4th 567, 575.) Factors to be considered in deciding whether the sibling relationship exception applies include: whether the siblings were raised in the same home; whether they shared significant common experiences or have existing close and strong bonds; and whether ongoing contact is in their best interests, including their long-term emotional interest. ( 366.26, subd. (c)(1)(E).)

At the time of the hearing, Tanya and Carmen's sister, Kimber T., was 18 years old. Kimber visited Tanya and Carmen during the earlier dependency. During this dependency, Kimber attended the majority of Elizabeth's visits with the girls. Kimber played with Tanya and Carmen, helped them when they needed it, and was affectionate with them. Tanya sometimes missed Kimber; once said she was looking forward to seeing her, and said she was sad to be separated from her older sibling. On one occasion, Tanya said she would like to live with Kimber, but also said she would like to live with her brother and another older sister. Carmen said she wanted to "line the sky with Mom, Tanya, and Kimber."

The three siblings lived together until Tanya and Carmen were first removed from Elizabeth's care, when Tanya was five years old and Carmen was two years old, and for a short period of time between the dependencies. In the past, Tanya sometimes had to rely on Kimber for care. While the relationship was loving and fun, and there were some shared experiences when Tanya and Carmen were very young, the children had not lived with Kimber for almost two years. Before then, they had not lived with her for a large portion of their lives. The social worker testified the sibling relationship was "fair to good," but not significant. She opined Tanya and Carmen would be disappointed, but not significantly harmed, if they could not see Kimber. The social worker also believed Tanya and Carmen had endured much instability, badly needed permanence, and that the benefits of adoption definitely outweighed the benefits the children derived from their relationship with Kimber.

The juvenile court did not err by failing to apply the sibling relationship exception of section 366.26, subdivision (c)(1)(E).

IV.

The Court Did Not Err by Failing to Order

a Permanent Plan of Long-Term Foster Care or Guardianship

Elizabeth contends the court should have ordered a permanent plan of guardianship or long-term foster care, which would have given Tanya and Carmen stability and allowed them to retain their relationship with their mother and sister. Because there was no challenge to the adoptability finding, and section 366.26, subdivisions (c)(1)(A) and (c)(1)(E) do not apply, we must affirm the termination of parental rights. ( 366.26, subd. (c)(1).)

DISPOSITION

Judgment affirmed.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

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^[1] Statutory references are to the Welfare and Institutions Code.

^[2] Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, sec. 52, pp. 4999-5000.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.

^[3] The petition gives the date of the setting order as July 10, 2007; it was actually March 12. On March 12, the court set the section 366.26 hearing for July 10, and on July 10, it set a contested hearing for August 7.

^[4] The petition alleged Elizabeth stopped attending meetings a month after the court terminated services because she had two full-time jobs.