In re Z.B. CA3 ( 2023 )

Filed 8/10/23 In re Z.B. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
In re Z.B., a Person Coming Under the Juvenile Court C096441, C096683
Law.
SAN JOAQUIN COUNTY HUMAN SERVICES (Super. Ct. No. STK-JD-DP-
AGENCY, 2020-0000143)
Plaintiff and Respondent,
v.
T.B.,
Defendant and Appellant.
In these consolidated cases, C096441 and C096683, appellant T.B. (mother),
mother of the minor, appeals from the juvenile court’s order terminating parental rights
and freeing the minor for adoption. (Welf. & Inst. Code, §§ 366.26, 395; statutory
section citations that follow are found in the Welfare and Institutions Code unless
1
otherwise stated.) Mother challenges the juvenile court’s summary denial of her section
388 petition seeking placement of the minor in her home with family maintenance
services. Mother also claims the court erred by finding neither the beneficial parental
relationship exception to adoption nor the sibling relationship exception to adoption
applied. (§ 366.26, subd. (c)(1)(B)(i) & (v).) We affirm the juvenile court’s orders.
FACTS AND HISTORY OF THE PROCEEDINGS
T.B. previously filed related appeals from orders issued by the juvenile court in
San Joaquin County (In re Z.B. (Apr. 27, 2023, C095624 & C095625) [nonpub. opn.]).
Remittiturs issued in those consolidated cases on July 20, 2023, and the judgments are
therefore final. (See McClain v. Rush (1989) 216 Cal.App.3d 18, 26 [issuance of
remittitur after appeal renders judgment final and unassailable for all purposes, including
collateral estoppel and res judicata].)
We take judicial notice of this court’s unpublished opinion filed April 27, 2023.
(Evid. Code, § 452, subds. (c) & (d).) A portion of the background is taken, verbatim,
from that unpublished opinion. We do so because mother construes the record in her
favor, ignoring the well-established rule that the juvenile court is the finder of fact, and
we construe the record in the light most favorable to the juvenile court’s order. (In re
Zeth S. (2003) 31 Cal.4th 396, 405; In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-
1089.) The remainder reflects a summary of combined factual and procedural history
from the current consolidated cases as follows.
In May 2020, the [San Joaquin County Human Services Agency (Agency)]
learned of problems between mother and eight-year-old B.B. (the minor’s half-sibling),
whose biological father was reportedly incarcerated. B.B. lived with the minor, mother,
and mother’s boyfriend, but she had been staying with mother’s friend because mother
was threatening to drop her off at a children’s shelter. B.B. reported that mother verbally
and physically abused her and told her and others that she “does not want [B.B.]
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anymore.” B.B. was taken into protective custody and placed with grandfather. The
social worker informed the shelter that background checks for grandfather and his wife
had been cleared by the Department of Justice and child protective services, and a home
assessment regarding B.B. was scheduled for grandfather.
On May 20, 2020, the Agency filed a dependency petition pursuant to section 300,
subdivisions (b), (c), (g), and (j) on behalf of B.B., and subdivisions (b), (g), and (j) on
behalf of the minor (then four months old). The petition alleged mother used
methamphetamine at the time of B.B.’s birth, and that she had relapsed and was using
methamphetamine and marijuana. The juvenile court sustained the allegations in the
petition (as amended in court), took jurisdiction over B.B. and the minor, ordered the
minor removed from parental custody, and ordered supervised visitation and drug court
for mother.
When the minor was removed from mother’s custody, the Agency asked
grandfather about accepting placement. Given his surgery and ongoing chemotherapy
treatment for pancreatic cancer, grandfather declined.
The Agency reported that mother wanted the minor returned but did not want to
reunify with B.B. By February 2021, mother had disavowed B.B. entirely, wanting
nothing to do with the child and choosing to reunify only with the minor. Mother was
reportedly using substances again and failed to follow through with counseling and
mental health treatment for B.B.
In April 2021, and again in May 2021, F.H., father of three of the minor’s half
siblings, and his wife C.H. (the H. family) came forward and inquired about placement of
both B.B. and the minor. However, B.B. had already been placed with grandfather and
his wife and the minor was placed in a foster home. Grandfather and his wife were
struggling with some of B.B.’s behaviors and working with a community support group
to maintain placement of the child. The minor had been placed on an emergency basis
with a family friend. However, after approximately five months, the family friend no
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longer wanted to care for or provide permanency for the minor and gave notice. The
minor was then removed and placed in a foster home.
The Agency reported that, while it was appropriate to maintain a sibling
relationship, the minor and B.B. were not placed together because they were not removed
at the same time, and because grandfather and his wife were not willing to take the minor
into their home. Grandfather and his wife were, however, willing to visit with the minor
and have sibling visits in their home. However, they had ongoing concerns about B.B.’s
behavioral issues and their own age and health issues and were still deciding whether
they wanted to provide any form of long-term care for B.B.
At the contested disposition hearing on April 21, 2021, the court bypassed mother
for reunification services and reduced her visitation to one time per week.
On July 7, 2021, the court heard arguments regarding F.H.’s request for placement
of the minor in his home. The Agency informed the court that, in early June 2021, the
minor had been in a stable foster placement when her caretaker unexpectedly died. The
Agape Villages Foster Family Agency (FFA) social worker discovered the caretaker had
passed away when he went to pick up the minor for her visit with mother. Because it was
a Friday afternoon and it was unknown how long the minor had been in the home with
her deceased caretaker, it was urgent that the minor be immediately placed with certified
caretakers. Thus, the FFA immediately placed the minor with her new caretakers “under
respite conditions.” When the Agency became aware of the caretaker’s death one week
later, the Agency social worker immediately scheduled child family team (CFT) meetings
to discuss relative placement. In the June 2021 and July 2021 CFT meetings, grandfather
and his wife stated they wanted the minor to be placed with and adopted by F.H. and his
family . . . . The minor’s present caretaker, however, expressed concern regarding the
minor’s emotional dysregulation following visits with the H. family.
The Agency argued in favor of placement with the H. family. It argued the
minor’s emotional dysregulation following visits with them was due to the minor’s
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unexpected transition to a new foster home following the death of her previous caretaker.
Minor’s counsel objected to placement of the minor with the H. family because the three
H. family half siblings continued to have a relationship and unsupervised contact with
mother, who posed a risk to the minor. The minor’s counsel also objected to moving the
minor at all given the traumatic event the child recently experienced with the unexpected
passing of her caretaker. Counsel noted the minor was settling into her new placement
and was doing well and it would be detrimental to move her.
The Agency disagreed and argued it would not be detrimental to move the minor
from her present caretaker, having been placed there for just three weeks “due to a respite
emergency situation” (i.e., the unexpected death of the foster parent), and it would be
better for the minor to be with relatives such as the H. family. Minor’s counsel countered
that there was no relative placement preference given that the case was postdisposition,
the minor was in a concurrent home, and there was no need to move her. Counsel argued
further that the minor, who was only one and a half years old, was not raised in the same
household as the H. family half siblings and was likely not as bonded to those children as
they were to her. The court ordered increased visitation between the minor and the H.
family siblings to determine the nature and extent of any connection between the
children.
On August 25, 2021, the Agency reported that B.B. was doing well in the care of
grandfather and his wife, and was closely bonded to and wanted to continue visits with
the minor. The Agency reiterated that the minor had not been placed with B.B. because
grandfather and his wife had indicated they were not in a position to take the minor into
their home. It was also noted again that grandfather and his wife had not yet decided
whether they wanted to establish some form of long-term care or permanency of B.B.
At the August 25, 2021 review hearing, the Agency reported receipt of a relative
information form filed by the maternal grandmother raising “significant concerns”
regarding the appropriateness of the H. family home for placement of the minor,
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including that F.H. had previously been in a long-term relationship with mother during
which mother and F.H. both used drugs and were involved in domestic violence and F.H.
repeatedly allowed mother to be in the presence of the minor in violation of the court’s
order. The Agency was initially not inclined to believe the statements made by the
maternal grandmother and was still confident in the eventual plan to move the minor to
the H. family home. However, as the resource family approval process (RFA) continued,
the Agency gathered information that tended to support the concerns raised by the
maternal grandmother and, as a result, the Agency determined in October 2021 that the
H. family would no longer be considered for placement. The Agency noted the current
caretaker was willing to be a concurrent home for the minor and was committed to
maintaining a relationship between the minor and the half siblings going forward so there
was no need to move the minor.
Mother objected to the maternal grandmother’s unsworn statements, claiming the
grandmother was estranged from the rest of the family. Mother argued that, when the
minor’s prior foster mother passed away, the Agency should have placed the minor with
a relative or a nonrelated extended family member, but instead placed the minor with a
nonrelated foster caretaker. Mother stated she intended to submit a voluntary
relinquishment of her parental rights over the minor to the H. family and, in the event that
failed, to grandfather who already had custody of B.B. The Agency argued it would
reject mother’s voluntary relinquishment as to the H. family and would not provide an
approved adoptive home study for the family, both of which would be required for a
relinquishment. Mother requested a placement hearing and asserted that grandfather was
now willing to take the minor and was already RFA approved. The court instructed
mother to file an appropriate motion.
On September 2, 2021, the maternal grandmother filed a second relative
information form setting forth her concerns regarding the Agency’s plan to place the
minor with grandfather and his wife, including that grandfather and his wife could not
6
agree on whether to take permanent placement of B.B., let alone the minor, grandfather
had admitted his poor health, and grandfather could not be trusted to keep the minor away
from mother.
In September 2021, the Agency reported that the minor had been placed with her
current caretaker under respite conditions after her previous foster mother passed away
unexpectedly. F.H. was approved for placement and the H. family wanted to adopt both
the minor and B.B. in order to ensure the sibling bond between them remained intact.
The Agency reported that the minor appeared to be comfortable with grandfather
and his wife, and that grandfather was now requesting that the minor be placed with them
so that the minor and B.B. could grow up together. The two children reportedly had an
“undeniable bond.” The Agency stated it was appropriate to maintain the relationships
between the minor and all of her half siblings, including the H. family half siblings.
However, the Agency was not willing to place the minor with the H. family given the
concerns raised by the maternal grandmother, and the fact that assessment of
grandfather’s home was underway, and the Agency was awaiting the court’s
determination at the upcoming placement hearing.
On September 7, 2021, mother filed a motion for change of placement of the
minor together with the supporting declaration of grandfather. Mother argued it was in
the minor’s best interest to be placed and raised with her siblings, whether that be in the
home of grandfather or the H. family. Grandfather made some of these same arguments
in his declaration, as well as his responses to a number of the claims and accusations
lodged by the maternal grandmother in her relative information forms. Finally,
grandfather asserted that B.B. wanted to live and grow up with the minor and he and his
wife could and would provide a safe, stable, permanent home for both children.
At the September 7, 2021, review hearing, B.B. requested to be heard in chambers,
where she informed the court of her desire to be placed with the minor in the home of the
7
H. family. The court adopted the Agency’s recommended findings, including that B.B.’s
current placement with grandfather was appropriate.
In its October 2021 report, the Agency reported that grandfather and his wife were
no longer being considered for placement given issues grandfather and his wife were
having with B.B., which would be exacerbated by adding the minor to the household, and
given the Agency’s suspicions that grandfather would allow mother unsupervised access
to the minor. The Agency further reported that, while the minor’s extended family
clearly loved her, the minor was thriving, stable, and bonded with her current caretakers
who were providing for her physical and emotional needs and were willing to adopt her.
The Agency was in the process of assessing the minor’s foster family for prospective
adoption. The minor continued to visit with her half siblings, grandfather, and the H.
family, all of whom she recognized and enjoyed. The Agency recommended termination
of parental rights with a permanent plan of adoption.
The initial section 366.26 hearing on October 13, 2021, was preceded by a
continued placement hearing. The Agency informed the court that the H. family had
withdrawn their request for placement after learning their RFA application would be
denied. Mother’s counsel stated the minor’s caretakers were willing to adopt the minor
but were unwilling to adopt B.B. The court continued the hearing and, subsequent
thereto, found the minor’s current caretakers to be de facto parents.
At the December 17, 2021, continued placement hearing, mother’s counsel
informed the court that grandfather and his wife wanted placement of the minor, but that
mother would nevertheless consent to placement with the minor’s current caretakers if
the minor and B.B. were placed there together. The Agency declined to consent to
mother’s offer unless ordered to do so by the court, stating it would place undue pressure
on the caretakers. The Agency also noted it continued to have concerns regarding B.B.’s
‘tenuous’ placement with grandfather and his potential inability to keep B.B. long term.
The court continued the placement hearing and trailed the section 366.26 hearing.
8
In January 2022, the Agency reported the minor’s biological father, R.M. (father),
who had recently become a participant in the proceedings, had indicated he did not have
the desire or the financial means to care for the minor and waived his right to participate
in further dependency proceedings.
Mother objected to adoption by a nonrelative and again requested that the minor
be placed with grandfather. Visits between the minor and her half siblings were arranged
by the minor’s caretakers, the H. family, and grandfather in the hopes that such
arrangement would continue even if the minor were adopted by her caretakers, who
continued to express their commitment to maintaining the sibling relationships, as well as
the relationship between the minor and the grandparents postadoption.
On January 12, 2022, mother filed a supplemental brief again requesting
placement of the minor with grandfather. Mother argued grandfather should have been
considered for placement in June 2021 when the minor’s placement changed due to the
unexpected death of her caretaker. She further argued she had repeatedly offered to
voluntarily relinquish her parental rights to grandfather, who she argued was ready,
willing, and able to provide permanency for the minor and B.B.
At the January 14, 2022, continued placement hearing, the Agency informed the
court of its opposition to mother’s request to place the minor with grandfather. Social
worker Luz Mayorga testified that the minor required a new placement in June 2021 due
to the unexpected passing of her foster mother. While it was the Agency’s normal
practice to assess relatives and nonrelatives for placement, the Agency did not consider
grandfather for placement at that time because the FFA handled the emergency placement
of the minor. Mayorga did not learn about the caretaker’s death until after the minor had
been in the home of the new caretakers for one week. Mayorga did not know why the
FFA did not consider grandfather or any other relative for placement at the time of the
emergency removal. She opined that, given B.B.’s placement in grandfather’s home,
grandfather should have been assessed for emergency placement. However, when
9
Mayorga learned about the death of the caretaker, she did convene a CFT meeting to
discuss relative placement. The FFA social worker, the new caretakers, mother,
grandfather, and the maternal grandmother all participated. At that time, grandfather
wanted the minor placed with the H. family and it was the Agency’s intention to do so,
however, the minor’s counsel objected based on the maternal grandmother’s statements
of concerns.
Mayorga testified further that the Agency normally attempted to place siblings
together but grandfather declined placement after the death of the caretaker and, by the
time he requested placement and was RFA approved, there were concerns about
suspected emotional abuse of B.B. in grandfather’s home as well as marital difficulties
between grandfather and his wife, who were reportedly “on [the] verge of a divorce”
because grandfather’s wife did not want the minor placed in their home. Those concerns
arose shortly after B.B.’s placement with grandfather, whose wife believed it was only a
temporary placement. Mayorga also testified that the Agency did not accept mother’s
offer to execute a voluntary relinquishment of her parental rights over the minor to
grandfather because of those concerns and the Agency feared that placing the minor in
grandfather’s home would do nothing to alleviate the existing problems and would place
the minor in a “dysfunctional household.”
Mayorga further testified that the minor had a bond with her current caretakers,
referring to her foster parents as “mom” and “daddy,” often seeking them out, and
wanting to be held or carried by them. The Agency felt it was neither appropriate nor in
the minor’s best interest to place the minor with grandfather because the minor was
bonded to her caretakers and not grandfather or his wife and this would be the minor’s
fourth placement. Mayorga stated that, during visits between the minor and grandfather
and his wife, the minor usually sought out B.B. for care and comfort rather than
grandfather or his wife. Mayorga opined that the minor was doing well with her
caretakers and the behavioral concerns she initially had were no longer present.
10
Grandfather confirmed he initially declined placement of the minor because he
was recovering from cancer surgery and chemotherapy, but he stated he was now fully
recovered and his cancer was in remission. He denied using illegal substances as alleged
by the maternal grandmother. He testified his relationship with mother (his daughter)
was strained due to the way mother emotionally abused B.B., and he stated he never
allowed mother to have unsupervised contact with B.B. Grandfather testified that he did
not request placement of the minor at the June 2021 CFT meeting because it was his view
that the minor and B.B. should be placed with the H. family. However, once the H.
family withdrew from the RFA process, he told the social worker he was willing to adopt
both B.B. and the minor. He testified his wife was not initially on board with adopting
both B.B. and the minor, but after having a serious discussion in October 2021 and
completing all of the required classes, she was. He was RFA approved for B.B.
Grandfather testified he was now able to care for and provide for the minor and protect
the minor from mother. His wife was also willing to adopt the minor and B.B. He
denied any domestic violence with his wife or any emotional abuse of B.B. by his wife.
Mother testified she wanted the minor and B.B. to be placed together and she was
willing to relinquish her parental rights to either the current caretakers or grandfather
with that proviso. The parties stipulated that B.B. would testify she wanted to live with
the minor and she felt safe in the home of grandfather and his wife. After hearing
argument, the court took the matter under submission.
On January 21, 2022, the court denied mother’s motion for change of placement,
ordered that the minor remain with her current caretakers, and confirmed the matter for a
contested section 366.26 hearing.
Mother, grandfather, and B.B. appealed from the juvenile court’s orders denying
placement of the minor with grandfather. This court subsequently affirmed the juvenile
court’s orders in that regard.
11
On February 25, 2022, the San Joaquin County Human Services Agency (Agency)
filed a status review report stating the minor continued to flourish with her prospective
adoptive parents. Increased visitation between the minor and B.B. had yet to begin due to
the caretakers’ concerns that the minor might become overwhelmed and dysregulated.
The minor was reportedly developing appropriately and was receiving weekly therapeutic
services to work on, among other things, her attachment dysregulation issues. It was also
noted that, while the court recently denied mother’s request for a placement change into
the home of B.B., the minor and all of the half siblings were currently visiting one
another at least once a week and the prospective adoptive family hoped to continue the
relationship between the children postadoption. B.B. informed the Agency that it was her
continued desire to spend more time with the minor and that the minor live with her at
grandfather’s home.
On March 1, 2022, the court set the matter for a section 366.26 hearing on
March 18, 2022. That date was subsequently continued to May 20, 2022.
On May 16, 2022, mother filed a section 388 petition requesting that the court
vacate its previous order denying her reunification services and place the minor in her
custody with six months of family maintenance services or, alternatively, vacate the
section 366.26 hearing and provide mother with six months of reunification services.
Mother argued she “maintained frequent and continuous contact with the minor,”
“private-paid and completed a plethora of services including inpatient treatment,
parenting, individual therapy, [and] intense aftercare outpatient, and . . . submitted to hair
follicle testing every other month all of which are negative for all substances.” Mother
alleged the requested change would be in the minor’s best interest because the minor “is
not doing well with [her caretakers]”; mother “can provide a safe, stable, permanent
home for [the minor]”; the minor “will have ample access to her siblings”; mother “has
demonstrated changed circumstances such that the child will be safe in her care”; and
mother and the minor “share a strong mutual attachment and the child calls mother
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‘mommy.’ ” In a memorandum of points and authorities accompanying her petition,
mother argued she completed inpatient treatment in August 2021 and “has remained
clean and sober since completion.” She also argued that, since hair follicle testing
“covers 90-day periods,” it was “more likely than not that Mother has been clean from all
substances from August 2021 to [May 16, 2022].”
The Agency opposed mother’s section 388 petition arguing mother previously
completed substance abuse treatment and other components of her 2012 dependency
action, relapsed the day that action was dismissed, continued to abuse substances and was
convicted for possession of a controlled substance in 2019, and tested positive for
cannabis and alcohol in December 2020 and again in February 2021 when reporting to an
outpatient treatment program. Her participation in the outpatient program was “at best
inconsistent,” she tested positive for drugs in March and April 2021, and she admitted she
relapsed on methamphetamine on April 9, 2021. As a result, mother was bypassed for
reunification services.
The Agency further argued mother’s petition failed to make a prima facie showing
of changed circumstances, or that the requested change was in the minor’s best interests,
and made conclusory statements without providing supporting documentation. Finally,
the Agency argued mother’s section 388 was untimely pursuant to the Superior Court of
San Joaquin County, Local Rules, rule 5-300(B) (local rule 5-300(B)), which provides, in
pertinent part: “Application shall be made to the Court in a timely manner following
discovery of the circumstances alleged to support the petition to modify, and in no event,
at a later time which prejudices any party. Applications requesting return of a minor to a
parent shall be made not less than 20 judicial days before any previously set hearing
pursuant to [section 366.26]. Where hearing for any petition is requested within 20
judicial days, good cause must be shown in a supporting declaration.”
The minor also opposed mother’s section 388 petition arguing mother’s
completion of a number of classes and therapy sessions predated the dispositional order
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and therefore did not demonstrate changed circumstances; while mother’s nine months of
sobriety was commendable, that relatively short period of sobriety was insufficient to
show changed circumstances given mother’s extensive history of substance abuse; and
mother failed to demonstrate the requested change was in the minor’s best interests.
On May 20, 2022, the court heard argument on mother’s section 388 petition, took
the matter under submission, and continued the section 366.26 hearing.
On June 8, 2022, the court denied mother’s section 388 petition without an
evidentiary hearing. The court stated as its reason for denial that the petition was
untimely pursuant to local rule 5-300(B), there was no prima facie evidence to support
mother’s “conclusionary statements” of changed circumstances, mother’s circumstances
were “changing,” and there was no showing that the requested change was in the minor’s
best interests. The court also set the section 366.26 hearing for July 20, 2022.
The Agency’s July 2022 status review report focused on the minor’s half sibling,
B.B., noting it was in B.B.’s best interest to maintain her sibling relationship with the
minor, as the two children were bonded and had been living together prior to removal.
The Agency reiterated that the minor and B.B. were not placed together because they had
not been removed at the same time and grandfather and his wife were not in a position to
take the minor into their home. It was noted, however, that the minor and B.B. were
regularly visiting one another.
On July 20, 2022, the court commenced a contested section 366.26 hearing. At
the time of the hearing, the minor was two years old and B.B. was 10 years old. The
social worker testified that mother had visited with the minor regularly for approximately
two years. During those visits, the minor recognized mother and willingly went to her,
and the two spent time playing. But, when the visits were over and it was time to go, the
minor “easily depart[ed] from” mother. The social worker testified that the postadoption
contract agreement called for sibling visitation and visitation between the minor and
maternal grandmother. The social worker opined that it would not be detrimental for the
14
minor to terminate the parent-child relationship based on the tender age of the minor
when she was removed (four months of age) and the amount of time the minor spent
growing up in the care of nonrelatives as compared to the time she lived with mother.
The social worker acknowledged mother’s weekly visitation but determined it did not
outweigh the time the minor spent forming attachments to her caregivers.
The social worker testified the minor had visits with B.B. and the other three half
siblings at least once a week and separate visits on a weekly basis with B.B. only. She
opined that the visits between the minor and B.B. were “very meaningful” to B.B., who
looked forward to the meetings. No similar remarks were made with respect to the
importance of the visits to the minor. The social worker further opined that placing the
minor separate from her siblings would “not have an [e]ffect on [the minor]” given her
young age.
After hearing impassioned argument from counsel, the court found that
terminating the minor’s relationship with either mother or the minor’s half siblings would
not cause detriment sufficient to outweigh the benefits of adoption and therefore neither
the beneficial parental relationship exception nor the sibling relationship exception
applied. The court terminated parental rights, finding it was in the minor’s best interest
to do so.
DISCUSSION
I
Denial of Section 388 Petition
Mother contends the juvenile court abused its discretion when it denied her section
388 petition without a hearing. She claims the petition showed a change in circumstances
and that the requested modification was in the minor’s best interests. As we explain, the
juvenile court did not err.
15
A petition to change or modify a juvenile court order under section 388 must
factually allege there are changed circumstances or new evidence to justify the requested
order, and that the requested order would serve the minor’s best interests. (In re
Daijah T. (2000) 83 Cal.App.4th 666, 672; In re Kimberly F. (1997) 56 Cal.App.4th 519,
526.) The petitioner has the burden of proof on both points by a preponderance of the
evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48, disapproved of on other
grounds by In re Caden C. (2021) 11 Cal.5th 614, 636, fn. 5 (Caden C.).) The parent
must make “ ‘[s]pecific allegations describing the evidence constituting the proffered
changed circumstances or new evidence’ is required. [Citation.] Successful petitions
have included declarations or other attachments which demonstrate the showing the
petitioner will make at a hearing of the change in circumstances or new evidence.” (In re
Anthony W. (2001) 87 Cal.App.4th 246, 250.) In assessing the petition, the juvenile court
may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181,
189.)
The petition must be liberally construed in favor of its sufficiency. (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. (In re Daijah T., supra, 83 Cal.App.4th at
p. 673.) “ ‘A “prima facie” showing refers to those facts which will sustain a favorable
decision if the evidence submitted in support of the allegations by the petitioner is
credited.’ ” (Ibid.) Nonetheless, if the juvenile court finds the petition fails to make a
prima facie case as to either or both tests under section 388, the juvenile court may deny
the petition without an evidentiary hearing. (In re Justice P., supra, 123 Cal.App.4th at
p. 189; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413; In re Zachary G. (1999)
77 Cal.App.4th 799, 806; see Cal. Rules of Court, rule 5.570(d).) We review the
summary denial of a section 388 petition for abuse of discretion. (In re Anthony W.,
supra, 87 Cal.App.4th at p. 250; In re S.R. (2009) 173 Cal.App.4th 864, 870; In re J.T.
(2014) 228 Cal.App.4th 953, 965.)
16
Here, mother failed to make the prima facie showing necessary to obtain an
evidentiary hearing. Mother alleged circumstances had changed as demonstrated by her
“frequent and continuous contact with the minor”; completion of services she paid for,
including inpatient treatment, parenting, individual therapy, and intense aftercare
outpatient; and hair follicle testing showing she was negative for all substances.
However, the fact that mother regularly visited the minor was consistent with her regular
visitation over the two-year span of the case and thus showed no change. Likewise,
regarding mother’s privately paid services, the documentation mother attached showed
the individual therapy sessions and one of the two parenting courses were completed
prior to April 21, 2021. That is, the information was available when the court bypassed
mother’s services and therefore did not show changed circumstances.
As for the remainder of the privately paid services and drug tests, mother provided
conclusory statements regarding her participation, supported by a certificate of
completion of the parenting class, documents showing her hair follicle tests were
negative, and a letter from a resident advisor at The Lakes Treatment Center. “The
change in circumstances supporting a section 388 petition must be material.” (In re N.F.
(2021) 68 Cal.App.5th 112, 120.) Mother’s petition contained nothing to demonstrate
she tested regularly or that the four tests she did take were randomly scheduled, nor did it
demonstrate she completed the treatment program at all. That information was key to
any determination of whether circumstances had changed given mother’s history of drug
use and previous failures to stay clean. The fact that she participated in an inpatient
treatment program and drug tested four times over the course of one year did little to
demonstrate changed circumstances, especially in light of her substance abuse history.
As the juvenile court found, mother’s petition showed, at best, that mother was in
the process of change, but had not set forth a prima facie showing of changed
circumstances. The arguments, contained in the memorandum of points and authorities
attached to mother’s petition -- that mother “successfully completed inpatient treatment
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in August 2021 and has remained clean and sober since completion,” that “[h]air follicle
testing covers 90-day periods,” and that “it is more likely than not that Mother has been
clean from all substances from August 2021 to [May 16, 2022]” -- were not evidence of a
change of circumstances. Even assuming mother’s sobriety for nine months, “[i]n the
context of a substance abuse problem that has repeatedly resisted treatment in the past, a
showing of materially changed circumstances requires more than a relatively brief period
of sobriety or participation in yet another program.” (In re N.F., supra, 68 Cal.App.5th at
p. 121.) As the cases demonstrate, mother’s brief period of sobriety was not enough to
demonstrate a change in circumstances. (In re C.J.W. (2007) 157 Cal.App.4th 1075,
1081 [changed circumstances were not satisfied by three months of sobriety]; In re
Cliffton B. (2000) 81 Cal.App.4th 415, 423 [changed circumstances not satisfied by
father’s seven months of sobriety]; In re Kimberly F., supra, 56 Cal.App.4th at p. 531,
fn. 9 [“Likewise the parent who loses custody of a child because of the consumption of
illegal drugs and whose compliance with a reunification plan is incomplete during the
reunification period. It is the nature of addiction that one must be ‘clean’ for a much
longer period than 120 days to show real reform”].) Mother’s conclusory and
unsupported statements regarding her participation in and completion of privately paid
services leading to nine months of sobriety was insufficient to demonstrate mother’s
circumstances had changed.
Given mother’s failure to demonstrate a prima facie case of changed
circumstances, we need not reach the issue of whether mother made a prima facie
showing of how a change in the bypass order would be in the best interest of the minor.
(In re Casey D., supra, 70 Cal.App.4th at p. 48; In re Justice P., supra, 123 Cal.App.4th
at p. 189.) We note, however, that mother’s unsupported allegations, including that the
minor “is not doing well with [her caretakers]” and that mother shares a “strong mutual
attachment” with the minor, who “will have ample access to her siblings,” were also
conclusory and would not support a finding that it was in the minor’s best interest to
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return the minor to mother or grant further reunification services. (In re N.F., supra,
68 Cal.App.5th at p. 120.) In any event, even assuming mother’s circumstances had
greatly improved over the past year, the minor’s best interests “are not to further delay
permanency and stability in favor of rewarding” mother for her “hard work and efforts to
reunify.” (In re J.C. (2014) 226 Cal.App.4th 503, 527.)
We conclude the juvenile court did not abuse its discretion in denying mother’s
section 388 petition without a hearing.
II
Termination of Parental Rights
Next, mother contends the juvenile court erred in terminating her parental rights
pursuant to section 366.26. She claims the court erred in finding the beneficial parental
relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) did not apply, the court
erred in denying her request for a bonding study, and the court should have considered
legal guardianship as an alternative to adoption. She also claims the court erred when it
failed to apply the sibling relationship exception to adoption. (§ 366.26, subd.
(c)(1)(B)(v).) These claims lack merit.
A. Beneficial Parental Relationship Exception
We first reject mother’s claims that the court failed to properly analyze the
applicability of the beneficial parental relationship exception under Caden C., supra,
11 Cal.5th 614, and erred in failing to find the exception applicable.
At the section 366.26 selection and implementation hearing, a juvenile court must
choose one of the several “ ‘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
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to find a “compelling reason for determining that termination [of parental rights] would
be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) One such circumstance is the
so-called beneficial parental relationship exception. (§ 366.26, subd. (c)(1)(B)(i)
[beneficial parental relationship exception]; Caden C., supra, 11 Cal.5th at p. 629.)
The party claiming the exception has the burden of establishing the existence of
any circumstances that constitute an exception to termination of parental rights.
(Caden C., supra, 11 Cal.5th at pp. 636-637; In re Melvin A. (2000) 82 Cal.App.4th 1243,
1252; Cal. Rules of Court, rule 5.725(d)(2).) For the beneficial parental relationship
exception to apply, the parent “must show regular visitation and contact with the child,
taking into account the extent of visitation permitted. Moreover, the parent must show
that the child has a substantial, positive, emotional attachment to the parent—the kind of
attachment implying that the child would benefit from continuing the relationship. And
the parent must show that terminating that attachment would be detrimental to the child
even when balanced against the countervailing benefit of a new, adoptive home.”
(Caden C., at p. 636.)
The beneficial parental relationship exception to adoption “must be examined on a
case-by-case basis, taking into account the many variables which affect a parent/child
bond. The 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 are some of the variables which logically affect a parent/child bond.”
(In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The factual predicates of the
exception must be supported by substantial evidence, but the juvenile court exercises its
discretion in weighing that evidence and determining detriment. (Caden C., supra,
11 Cal.5th at pp. 639-640.) We do not substitute our judgment for that of the juvenile
court as to what is in the child’s best interests. (Id. at pp. 640-641.)
As to the first element in Caden C., there was no dispute that mother regularly
visited the minor for the two-year period after removal. As for the second element,
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mother claims she was not merely a friendly visitor but rather she had a substantial,
positive emotional attachment with the minor as evidenced by the minor’s interactions
with her during visits, including the minor smiling at her, laughing, crawling, and playing
with her, babbling, and saying, “Ma” to her, hugging and kissing her, and accepting
comfort and care from her.
The social worker testified that, while mother’s interactions with the minor were
appropriate and the minor recognized mother, willingly went to her, and played with her,
visits appeared to be “pretty standard and common” and the minor “easily depart[ed]
from” mother when the visits were finished. But as to from whom the minor sought
comfort, the minor was noted to seek comfort from one of her older half siblings and the
social worker and, whenever present, her caregiver. The minor reportedly seemed most
comfortable in the presence of “motherly role figures” such as C.H., half sibling B.B.,
and one of the minor’s older half siblings, sometimes also referring to them as “momma.”
With respect to the third Caden C. element, the social worker testified she did not
believe termination of the parent-child relationship would be detrimental to the minor
considering the age of the minor at removal (four months) and the time the minor spent
growing up in the care of nonrelatives (nearly two years) compared to the time the minor
lived with mother (four months). Mother failed to present any evidence that terminating
the minor’s relationship with her would be detrimental to the minor when balanced
against the benefits of adoption. In fact, although she visited regularly, she failed to show
any benefit to the minor of continuing their relationship beyond the incidental benefit that
generally arises from interaction between natural parent and child. And the only
evidence reflecting the minor’s feelings about separation from mother was that the minor
separated easily at the end of visits. There was no evidence the minor missed mother
between visits or asked for more visits.
Mother claims she was hampered in making the requisite showing by the court’s
erroneous denial of her request for a bonding study and its failure to order one sua sponte.
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The juvenile court, however, has no sua sponte duty to order a bonding study. (In re
Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339-1340.) If a bonding study is needed, it is
incumbent on mother to request one. (Id. at p. 1339.) Yet, the only support mother
provides for her alternative contention that the court erroneously denied her request is the
following statement, made by her attorney at the May 20, 2022, hearing on her section
388 petition: “This Court denied my request for a bonding study earlier on in this case,
and so we don’t have a bonding study. We would have had a bonding study.” Mother
provides no record citation supporting her claim that she ever actually requested a
bonding study, whether it be prior to, during, or after the May 20, 2022, hearing but prior
to the July 20, 2022, section 366.26 hearing; nor have we found any such request in the
record. As the appellant, it is mother’s burden to provide a record demonstrating error.
(Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) She has not done so here.
Lastly, to the extent mother argues the court should have considered legal
guardianship as an alternative to adoption, apart from her failure to prove the application
of the exception, we reject the contention. Mother requested we take judicial notice of
exhibits consisting of post-judgment guardianship proceeding documents relating to the
minor’s sibling. We deferred decision on the request pending calendaring and
assignment of the panel. We now deny the request because the documents are
unnecessary to our resolution of the issues on appeal. There is no general best interest
exception to adoption. (In re Cliffton B., supra, 81 Cal.App.4th at pp. 426-427.) The
statutes and case law have made it clear that parental rights to an adoptable child should
be terminated unless one of the statutory exceptions apply. (Ibid.) Thus, where, as here,
the juvenile court finds the minor adoptable and no exceptions apply, “it is presumed,
even in the absence of a specific finding by the court, that adoption is the choice that is in
the child’s best interests” and “ ‘the less desirable and less permanent alternatives of
guardianship and long-term foster care need not be pursued.’ [Citations.]” (In re Jose V.
(1996) 50 Cal.App.4th 1792, 1799.)
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There was ample evidence to support the court’s finding that the beneficial
parental relationship exception to adoption did not apply.
B. Sibling Relationship Exception
Mother also contends the court erred in finding the sibling relationship exception
to adoption did not apply.
As previously noted, 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.” (§ 366.26, subd. (c)(1)(B).) One such circumstance is when
termination of parental rights would result in “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).)
There is a “heavy burden” on the party opposing adoption under the sibling
exception. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) “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.” (In re
L.Y.L. (2002) 101 Cal.App.4th 942, 952.) If the court determines that the child has a
significant sibling relationship and would suffer detriment if that relationship were
severed, the court then must weigh the benefit to the child of continuing the relationship
against “the benefit of legal permanence through adoption.” (§ 366.26,
subd. (c)(1)(B)(v); see In re L.Y.L., at pp. 952-953.) As with the beneficial parental
relationship exception to adoption, we do not substitute our judgment for that of the
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juvenile court as to what is in the child’s best interest. (Caden C., supra, 11 Cal.5th at
p. 641.)
There was insufficient evidence here to show that the relationship between the
minor and her half siblings was so significant that severing those relationships would
have been detrimental to the minor. During the first few months of the minor’s life, she
lived with mother and B.B. in the home of mother’s boyfriend. B.B. was removed first
and placed with grandfather. The minor was removed three days later and placed
elsewhere because grandfather was undergoing chemotherapy for pancreatic cancer and
was unable to assume care of her. Since that time, the minor has never lived with either
B.B. or the H. family half siblings. By all accounts, the minor has enjoyed visits with
B.B. and the other three half siblings over the two years following her removal. The
record makes plain that all of the half siblings, particularly B.B., were very fond of the
minor and expressed their desire to be together. However, there was no evidence that the
minor, who by the time of the section 366.26 hearing was two years old, expressed a
desire to be with her half siblings or had any trouble separating from them at the end of
the visits. (See In re Daniel H., supra, 999 Cal.App.4th at p. 813. [“the language [of the
exception] focuses exclusively on the benefits and burdens to the adoptive child, not the
other siblings”].) And while the minor and her half siblings shared visits, they otherwise
shared no life experiences, having lived in separate places and having been raised by
different people. (§ 366.26, subd. (c)(1)(B)(v).)
Mother bore the burden of demonstrating the sibling relationship exception to
adoption applied and failed to make the requisite showing. (In re Daniel H., supra,
999 Cal.App.4th at p. 813.) The juvenile court did not err.
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DISPOSITION
The orders of the juvenile court are affirmed.
HULL, J.
We concur:
EARL, P. J.
DUARTE, J.
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