In re N.G.

Filed 8/18/09 In re N.G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 orders of the Superior Court of San Diego County, Michael Imhoff, Judge. Affirmed.

Crystal G. appeals orders terminating parental rights to her children, N.G. and S.G., under Welfare and Institutions Code[1]section 366.26. She also appeals orders summarily denying her section 388 petitions for modification to extend reunification services and place S.G. with her. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

Crystal is the mother of three daughters, S.B., N.G. and S.G. N.G. and S.G. (children) are the subjects of this appeal.[2] Because the issues on appeal include the children's relationships with S.B. (older sister), we also describe her circumstances.

Crystal has a history of methamphetamine and alcohol abuse. In August 2004 Crystal was convicted of felony driving under the influence, with bodily injury, and sentenced to 365 days in jail and five years' probation.

In July 2004 older sister, at the age of three years old, tested positive for gonorrhea. In September 2004 she was adjudicated a dependent of the juvenile court. Crystal was incarcerated during the proceedings. At the six-month status review hearing, the court terminated reunification services and placed older sister with her paternal grandparents, who were her legal guardians.

In July 2007 N.G. came to the attention of the San Diego County Health and Human Services Agency (the Agency) when Crystal and her boyfriend engaged in domestic violence. In September, in a proceeding related to Crystal's felony conviction, Crystal admitted using methamphetamine and alcohol. She was incarcerated and ordered to enroll in a residential substance abuse treatment program. The Agency detained 18-month-old N.G. in protective custody. She was adjudicated a dependent of the juvenile court and placed in foster care. The court ordered a plan of family reunification services for Crystal, including substance abuse treatment.

Crystal did not attend drug treatment as ordered in her criminal proceedings. She was incarcerated in state prison with an expected release date of April 2010.

N.G. had speech delays, emotional and behavioral issues, delays in gross motor skills and anxiety. She hoarded food and bit her fingers and toenails until they bled. N.G. was anxious in new situations and had difficulty separating from the foster mother. Her problems improved with treatment and consistent care.

At N.G.'s six-month status review hearing, the court terminated reunification services and set a section 366.26 hearing.

In July 2008, while in prison, Crystal gave birth to S.G. The court adjudicated S.G. a dependent of the court, denied reunification services to Crystal and set a section 366.26 hearing.

In September 2008 S.G. was placed in the same foster home with N.G. S.G. was a happy and responsive baby but required a special diet and medication. The public health nurse was concerned about drug exposure and scheduled an evaluation.

In March 2009 Crystal requested a hearing on her motions to vacate the orders setting a section 366.26 hearing, order an additional period of reunification services and place S.G. with her in a mother-child reunification program through the California Institution for Women. She stated her circumstances had changed because she was enrolled in MIRACLE.[3] The project director described available services and stated Crystal had made exceptionally good use of project resources. Crystal alleged the modification was in the children's best interests because they would have an opportunity to reunify with her and to maintain their relationships with their older sister.

The hearing on Crystal's section 388 motions and the section 366.26 hearing were held on March 17, 2009. The court first considered Crystal's section 388 motions.

The court determined the section 388 motions stated a prima facie case of changed circumstances. Crystal was participating in a structured program and was doing well. However, Crystal did not state a prima facie case to show an extension of the reunification period was in the children's best interests and the court denied the section 388 motions without an evidentiary hearing.

With respect to the section 366.26 hearing, the court admitted in evidence the Agency's section 366.26 report, the social worker's curriculum vitae, and a number of photographs of the children playing with their older sister. The court heard testimony from the social worker, Crystal and the children's maternal grandmother.

The Agency reported Crystal had two or three visits with N.G. in October and November 2007. Because of the distance to the state prison, prison visits did not occur. Crystal telephoned N.G. every two or three weeks. She visited N.G. twice when she was in local custody in October and November 2008.

The social worker testified older sister was a sweet, loving sister to the children. She was very affectionate with S.G., but it was not a mutual relationship. S.G. did not know older sister as her sister. The siblings had visits approximately twice a month. The social worker did not see any bonding or attachment from the children to their older sister. The foster parents wanted to adopt the children. They did not intend to maintain the children's contact with older sister. They had nothing against her but did not want to remain involved with the children's grandparents.

The maternal grandmother testified she had weekly hour-long visits with N.G. and after S.G. was born, with both children, until January 2009 when her visits were reduced to once a month. She brought older sister with her to every visit except when older sister was sick. Older sister liked to hug and kiss S.G. but spent most of her time playing with N.G. They interacted well. Grandmother stated older sister and N.G. were close. They lived together for most of N.G.'s life and shared birthdays and Christmases together.

Crystal testified she visited the children only when she was transferred to local custody for dependency proceedings. She telephoned the foster mother once a week and wrote the children one to three times each week. When she visited N.G., Crystal picked her up, comforted her, loved and kissed her. N.G. asked for older sister all the time. Older sister was broken-hearted and did not understand why she could not see the children. Crystal had a close relationship with N.G. She knew N.G. loved her. Crystal stated she could not say the same about S.G.

The court stated it was very clear Crystal loved and cared deeply for her children. She was not able to visit them frequently but maintained contact through regular telephone calls and letters. Crystal did her best under difficult circumstances. However, the children looked to others for security and to meet their day-to-day needs. The court determined that the children's need for stability and permanency greatly outweighed any benefit their contact with Crystal may have conferred, and found that section 366.26, subdivision (c)(1)(B)(i) (beneficial parent-child relationship exception) did not apply.

The court disagreed with the Agency's contention N.G. lacked a connection to her older sister. The court stated N.G. lived with older sister for a substantial period of time and maintained consistent contact with her. However, there was little evidence to show S.G. had the same type of contact that would lead to a significant sibling relationship with older sister. Considering the children's long-term emotional interests and ages, the court determined that the children would derive more benefit from legal permanence through adoption than from an ongoing relationship with their older sister, and found that section 366.26, subdivision (c)(1)(B)(v) (sibling relationship exception) did not apply.

The court found that the children were likely to be adopted and termination of parental rights would not be detrimental to the children. ( 366.26, subd. (c)(1).) The court terminated parental rights. The court noted it was not terminating sibling rights and ordered the Agency to arrange visits and facilitate contact between the children and their older sister.

DISCUSSION

A. Section 388

Crystal contends the court erred by arbitrarily denying an evidentiary hearing on the merits of her section 388 petitions. She argues the court applied a higher standard of proof than required to establish a prima facie case that the proposed modification may be in the children's best interests.

The Agency asserts the court did not err because Crystal did not establish the reasons the modification would be in the children's best interests. Minor's counsel joins the Agency's arguments.

Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, there is a change of circumstances or new evidence, and the proposed modification may be in the child's best interests. ( 388, subd. (d); In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.)

The court must liberally construe the petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; Cal. Rules of Court, rule 5.570(a).) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (Marilyn H., at p. 310; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) "The 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." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) When determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)

We review a summary denial of a hearing on a section 388 modification petition for abuse of discretion. (In re Zachary G., supra, 77 Cal.App.4th at p. 808.) Under this standard of review, we will not disturb the decision of the trial court unless the trial court 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.)

With respect to N.G., the court found that Crystal did not meet her burden to establish a prima facie case that extension of the reunification period was in N.G.'s best interests. N.G. had some very difficult challenges to overcome and did not have a parent-child relationship with Crystal. She was attached to her foster parents and deserved permanency.

The court stated its decision was more difficult with respect to S.G. because it was possible she could qualify for placement with Crystal. However, S.G. had never lived with Crystal and the placement was not available for four months, a significant developmental period for a child S.G.'s age.

The court did not misapply the standard of proof required to meet the threshold for a section 388 evidentiary hearing. Crystal's circumstances with respect to a fact crucially important to the children's interests did not change. She was not scheduled to be released from prison until April 2010. By that time N.G. would have been in the dependency system for almost three years, with limited prospects for ongoing contact and visitation with Crystal. The foster parents would have cared for N.G. for two and one-half years and her attachment to them would be firmly established.

S.G. did not know Crystal. Because of Crystal's circumstances, S.G. would not be able to become familiar with her mother in the four months before a placement would be available. The record also shows S.G. had a medical condition requiring medication, special formula and support from the public health nurse. Crystal did not state she knew about S.G.'s medical needs and had the necessary skills or resources to properly care for her.

We conclude the court did not abuse its discretion when it determined Crystal did not state a prima facie case the modifications sought may be in the children's best interests.

B. Termination of Parental Rights

Crystal contends the court erred when it terminated parental rights to the children. She argues termination of parental rights would be detrimental to the children because they had a beneficial relationship with her and a strong relationship with their older sister. ( 366.26, subd. (c)(1)(B)(i) & (v).)

The Agency asserts Crystal did not have a parent-child relationship with the children. It acknowledges N.G. enjoyed being with her older sister but argues any interference with the sibling relationship would not be seriously detrimental to the children because they were far too young to experience sadness at the loss of their relationships with their older sister. Minor's counsel joins the Agency's arguments.

At a permanency plan hearing under section 366.26, the court may order one of three alternatives: adoption, guardianship, or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If the dependent child is adoptable, there is a strong preference for adoption over alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G., supra, 77 Cal.App.4th at pp. 808-809.)

After the court determines the child is likely to be adopted, the burden shifts to the parent to show termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; but see 366.26, subd. (c)(1)(B).)

We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If there is substantial evidence supporting the court's ruling, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c). (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.); In re S.B. (2008) 164 Cal.App.4th 289, 298.)

1. The Beneficial Parent-Child Relationship Exception

Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."

"Benefit from continuing the relationship" means "the [parent-child] relationship 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." (Autumn H., supra, 27 Cal.App.4th at p. 575.) It does not require proof the child has a "primary attachment" to a parent or the parent maintained day-to-day contact with the child. (In re S.B., supra, 164 Cal.App.4th at p. 299; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534-1538; In re Casey D. (1999) 70 Cal.App.4th 38, 51.)

Where the parent has continued to regularly visit and contact the child, and the child has maintained or developed a significant, positive, emotional attachment to the parent, "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 parent's rights are not terminated." (Autumn H., supra, 27 Cal.App.4th at p. 575.)

We accept the court's findings that Crystal deeply loved her children and maintained regular contact with them to the extent possible under the circumstances. The record shows her efforts were not sufficient to maintain her parental relationship with N.G., who had developed a sense of security and belonging in her foster home, which was also her prospective adoptive home. The evidence clearly shows Crystal never parented S.G. and was not able to establish a parent-child relationship with her. The court's finding that the beneficial parent-child relationship exception did not apply is supported by substantial evidence in the record.

2. The Sibling Relationship Exception

The sibling relationship exception applies when the parent shows, by a preponderance of the evidence, that termination of parental rights would be detrimental to the child because it would substantially interfere with a child's sibling relationship, taking into consideration the nature and extent of the relationship. ( 366.26, subd. (c)(1)(B)(v).)

"To determine the nature and extent of the sibling relationship, the Legislature directs the juvenile court to consider the factors set forth in section 366.26, subdivision [(c)(1)(B)(v)]." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1007, citing In re Celine R. (2003) 31 Cal.4th 45, 54; In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952.) These factors include, but are 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 court carefully and sensitively considered the nature and extent of the children's relationships with their older sister. We recognize that the court was fully aware of the potential loss involved to all three siblings and encouraged the Agency and the foster parents to continue the children's relationships with their older sister. There is no doubt older sister was a sweet, loving and affectionate sister and the children derived benefit from their contact. However, the record supports the reasonable inference that although S.G. saw older sister at least twice a month until she was almost six months old, this contact was not sufficient to establish a basis for a strong sibling relationship with her older sister. We conclude substantial evidence supports the finding interference with that relationship would not be detrimental to S.G. ( 366.26, subd. (c)(1)(B).)

The court found that N.G. had an ongoing, positive relationship with older sister, but N.G.'s long-term emotional interests would be better served by the permanence and stability of adoption, even if adoption substantially interfered with her existing relationship with older sister. ( 366.26, subd. (c)(1)(B)(v).) This court has previously stated that the application of the sibling relationship exception will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount. (In re Valerie A., supra, 152 Cal.App.4th at p. 1014, citing In re L.Y.L., supra, 101 Cal.App.4th at p. 950.)

Here, N.G. had just turned three years old at the time of the hearing. The foster parents provided proactive, competent and loving care to N.G. since she was 18 months old. They met her special needs and were committed to becoming her adoptive parents. In view of N.G.'s age and her need for a permanent, safe, stable home with competent parents, we conclude there is substantial evidence to support the court's finding the sibling relationship exception did not apply.

DISPOSITION

The orders are affirmed.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

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[1] Further statutory references are to the Welfare and Institutions Code.

[2] N.G.'s and S.G.'s fathers did not participate in reunification services and did not object to termination of parental rights.

[3] MIRACLE is one of six projects of The Mother-Child Reunification Program run by the Center for Children of Incarcerated Parents in partnership with the California Department of Corrections & Rehabilitation.