In re P.N.

Filed 6/30/08 In re P.N. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(El Dorado)

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Rebecca N., mother of P.N. and A.N. (the minors), appeals from the orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code, 366.26, 395.)^[1] Appellant contends the juvenile court erred in denying her petition for modification and terminating her parental rights. We affirm.

FACTS

Minor A.N. was first removed from parental custody in March 2004 when she was almost two years old. Appellant, who had mental health and substance abuse problems, had voluntarily sought to have A.N. and an older sibling placed with the maternal aunt.^[2] A.N. and her sibling remained with the maternal aunt for over a year until returned to appellant under a family maintenance plan. The first dependency was terminated in January 2006, although appellants compliance with the family maintenance plan was beginning to waver and there was concern she continued to need oversight to adequately parent her children.

Five-and-a-half months later, the El Dorado County Department of Human Services (DHS) filed a new petition to remove A.N., now four years old; P.N., four months old; and their two older siblings from appellant because of neglect. Appellant left P.N. in the care of his six-year-old sister, who also was expected to clean the house. A.N. and her five-year-old brother reported being hit and spanked. The minors were initially returned to appellant with intensive services but were again detained two weeks later as a result of domestic violence between the parents and appellants failure to protect the minors from the father. DHS daily attempted to arrange visits but appellant did not respond; DHS recommended visits twice a week for up to four hours at a time. At appellants request, visits with the minors were reduced to once a week for up to four hours. At visits, appellant did not exercise parental control over the minors but instead appeared to be amused at the chaotic interaction and aggression. After an initial placement in foster care, A.N. and P.N. were placed with the maternal aunt in August 2006.

The court ordered reunification services for appellant with no decrease in the frequency of visitation. Appellants visitation with the minors and their siblings was difficult to schedule because of the frequency of visits and separate placements of the children. There was a meeting to address the issues, but problems persisted. Appellant was offered, but did not accept, Amtrak tickets to go to Modesto, where the minors were placed, to visit them. The visits needed to remain supervised because appellant was unable to provide structure and to listen to the minors needs instead of focusing on her own. A psychiatric report stated that treatment of appellants mental disorder was difficult and multifaceted and success depended upon a patients being highly motivated to persevere; the psychiatrist found appellant to be minimally motivated and not likely to improve. DHS reported appellant had been receiving services for three years, but if she did not address her mental health issues, external support would not help her keep the minors safe if returned to her.

In December 2006 DHS moved to suspend all visitation between the minors and appellant following her violation of visitation rules by going to the maternal grandparents home, assaulting the maternal grandmother, and intentionally inflicting injuries on herself in front of the minors siblings. The court temporarily suspended visits. After a hearing in December 2006, the court ordered monthly supervised visitation with A.N. and P.N. at the DHS office in El Dorado County. Appellant did not appeal the order or challenge the visitation orders at the next review hearing, but concentrated only on the adequacy of other services.

The six-month review report stated appellant had attended scheduled supervised visits and was generally appropriate, although there were a few negative incidents. According to the report, appellants behavior during the December 2006 incident that resulted in decreased visitation demonstrated she still put her own interests first and failed to manage her anger. An addendum report stated appellant had made some progress in therapy but had a setback after the altercation in December 2006, leading her therapist to recommend a referral to a specialist in borderline personality disorders. At the review hearing in March 2007, the court terminated services as to the minors, finding that A.N. and P.N. constituted a sibling group, and continued services to the minors siblings. Visitation was set at once a month for two hours with weekly telephone calls.

Three months later, appellant filed a petition for modification seeking reinstatement of services, alleging she had participated in, and benefitted from, services in the siblings case.

The report for the selection and implementation hearing stated the minors had been placed in the maternal aunts home for 10 months. Appellant continued to visit monthly. A.N. reportedly missed her mother and cried on the way back to the maternal aunts residence because she wanted to go home. However, A.N. was able to be comforted by the maternal aunt and uncle. The two minors had a strong sibling bond. The maternal aunt and uncle were willing to adopt both minors and were committed to maintaining the sibling bonds. The report recommended termination of parental rights.

The report of the court appointed special advocate filed in July 2007, regarding one of the siblings who had a review hearing pending, stated that the minors behavior during visits was very wild, visits were chaotic, and appellant had a hard time directing them. The siblings review report noted that appellant was more of a play buddy than a parental figure during visits; did not set appropriate limits for the minors; and did not recognize, or ignored, their comfort level when insisting on affection or activities in which she wanted them to engage.

An addendum report for the combined review hearings indicated appellant had made progress in therapy, having become more accountable for her behavior and understanding the need to follow through. Despite this change in circumstances, the social worker was unable to conclude that granting appellants petition for modification was in the minors best interests because the change was recent and the minors needed permanence and stability. Moreover, while recommending continued services in the siblings case, the social worker noted that appellant still had to focus on reestablishing a parental role with them.

In September 2007 the court held a combined hearing on the petition for modification, a status review for the siblings, and a section 366.26 selection of a permanent plan for the minors. The parties stipulated there was a change in circumstances and the only question on the petition for modification was whether the request to reinstate services was in the minors best interests.

Appellant testified about what she had learned regarding parenting. She stated she was visiting regularly and using her new parenting skills. She wanted to be an important part of the minors lives and have an opportunity to parent them. She said she began to have daily telephone contact with A.N. a few months before the hearing. Since then, A.N. had been asking for longer visits and saying she wanted to return to appellants home. Appellant believed she had a substantial and positive relationship with the minors and it would be beneficial to them to continue the relationship because they would see she had become a better parent.

The social worker testified that appellant had made recent progress but further services were not in the minors best interests because they deserved permanency. She acknowledged A.N. had recently said she wanted to go home. The social worker noted that a report from the visit supervisor regarding a visitation incident indicated appellant did not exercise adequate supervision. She further testified that appellant had had the ability to travel to Modesto to visit the minors if she had chosen to do so. The social worker testified there was some benefit to continued contact between appellant and the minors because they know her and see her as fun, but she had not maintained a parental relationship and they would not be greatly harmed by termination of parental rights. The social worker further testified that the minors connection to appellant was as a loving person, not as a parent. The relationship the minors had with appellant would not outweigh the benefit of staying with the maternal aunt and uncle, who provided consistency and limits. The social worker said appellant has only recently realized that parenting involves setting boundaries, as she had been coached, rather than the unlimited fun and play she had encouraged during visits.

In ruling on the petition for modification, the court observed that because services had been terminated, the focus shifted to permanence and continued care for the minors and that appellant had failed to meet her burden to show the change was in the minors best interests. The court, taking notice of prior reports, commented on appellants long-term mental health problems and the continuing question of appellants ability to care for all of her children. The court also stated that appellant had not presented evidence of a significant parental relationship with the minors, whose primary bond was with the maternal aunt, their caretaker. After lengthy consideration of various factors relating to the best interests of the minors, the court denied the petition for modification. In terminating parental rights, the court found the sibling exception to termination of parental rights did not apply and appellant had not shown that the benefit of continued contact with her outweighed the benefit to the minors of permanence and stability in an adoptive home.

DISCUSSION

I

Appellant contends the court abused its discretion in denying her petition for modification.

A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances.^[3] The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is a preponderance of the evidence. [Citation.] (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; see In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) When the petition is brought after termination of reunification services, the best interests of the child are of paramount consideration. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parents interests in reunification but to the needs of the child for permanence and stability. (Ibid; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

Here, the minors had been out of the home for over a year and had bonded to their caretakers. Additionally, A.N. had lived with the same caretakers for more than a year in the first dependency. The home was stable and meeting their needs. Appellant had evidently learned new skills and was beginning to be able to utilize them. However, she had successfully reunified once before, only to slide back into a pattern of neglect when close supervision was removed. This history, coupled with appellants entrenched pattern of putting her needs before those of the minors, meant she would need to make a significant showing that she would be able to provide stability for them. She did not do so. The juvenile court did not abuse its discretion in denying the petition for modification.

II

Appellant argues the court erred in terminating her parental rights because the evidence established an exception to the preference for adoption since continued contact with her would benefit the minors and severing the sibling bond through adoption would be detrimental to the minors.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.] [Citation.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances that permit the court to find a compelling reason for determining that termination [of parental rights] would be detrimental to the child. (Welf. & Inst. Code, 366.26, former subd. (c)(1), now subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(e)(3); Evid. Code,  500.)

Benefit Exception

One of the circumstances in which termination of parental rights would be detrimental to the minor is: The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, former subd. (c)(1)(A), now subd. (c)(1)(B)(i).) The benefit to the child must promote 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 other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Even frequent and loving contact is not sufficient to establish this benefit absent a significant positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Brian R. (1991) 2 Cal.App.4th 904, 924.)

Appellant established that she visited the minors regularly but failed to demonstrate the relationship was more than that of a friendly visitor or playmate. Although she had recently begun to take a parental role during visitation, this nascent development did not transform the relationship into one that if terminated would greatly harm the minors.

Appellant argues that wrongful decrease in her visitation rendered her unable to meet the criteria of this exception to termination of parental rights.

Appellants visitation was originally set at twice a week for up to four hours at a time. All parties found it difficult to maintain this schedule and visitation was reduced, in part at appellants behest, to once a week for up to four hours. Appellant was offered transportation to visit the minors in Modesto, which would have provided additional visits, but she declined. After an altercation and physical confrontation in December 2006 with the maternal grandmother, who cared for the minors two siblings, and in violation of visitation orders, visitation was briefly suspended, then decreased to once a month for four hours. After services were terminated, visitation was set at once a month for two hours. None of the visitation orders were appealed. Appellant may not now challenge those orders. (In re Daniel K. (1998) 61 Cal.App.4th 661, 667; John F. v. Superior Court (1996) 43 Cal.App.4th 400, 404-405.)

In any case, the decrease had little impact on appellants ability to establish the benefit exception. She testified she had daily telephone contact with the minors prior to the section 366.26 hearing and loving contact in visits. The problem was not lack of contact, but lack of parental behavior by appellant when contact did occur.

Sibling Exception

A second circumstance under which termination of parental rights would be detrimental is when [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, former subd. (c)(1)(E), now subd. (c)(1)(B)(v).) The court must consider the interests of the adoptive child, not the siblings, in determining whether termination would be detrimental to the adoptive child. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813; In re Celine R. (2003) 31 Cal.4th 45, 49-50.)

To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952, fn. omitted.)

There was little evidence of a sibling relationship before the court except that between A.N. and P.N. P.N. had only lived with the other two siblings for four months before removal and could not have had a significant relationship with them. A.N. had more in common with the other two siblings, particularly since she shared a placement with one of them in the first dependency. However, while A.N. played with her siblings in visits and wished she had more time with them, there was no evidence that the sibling relationship was so close and strong that it outweighed the benefit to her of the permanency of adoption, particularly since the more recent shared experiences and strong bond were with P.N., who was also being adopted by the current caretakers. No error in terminating parental rights appears.

DISPOSITION

The orders of the juvenile court are affirmed.

RAYE , J.

We concur:

NICHOLSON , Acting P.J.

ROBIE , J.

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

^[2] The oldest of the four siblings was previously placed with the maternal grandparents in 1998. The remaining sibling was living with appellant and the minors under a family maintenance plan prior to the voluntary placement.

^[3] Section 388 provides, in part: Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . . [] . . . [] . . . If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, or termination of jurisdiction, the court shall order that a hearing be held . . . .