IN RE: ALEJANDRO R. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Michel L. (Mother) and Alejandro R., Sr. (Father) appeal from the juvenile court's orders denying their modification petitions and terminating their parental rights with respect to their son Jesus born July 2007.   Father also appeals from the court's order denying his modification petition and terminating his parental rights with respect to his son Alejandro born February 2005.   We affirm the orders.

FACTS AND PROCEEDINGS BELOW

A. Jesus

In October 2007, the Department of Children and Family Services (DCFS) detained Jesus, Alejandro and their three siblings after a police search found drugs, weapons and ammunition in the family home.   The DCFS originally placed Jesus with a paternal aunt but sometime between October 2007 and February 2008 removed him to a foster home.   The DCFS placed Alejandro with his paternal grandmother, a few months later in the home of his maternal aunt, and a few months after that in a foster home.   The DCFS placed the other children with relatives where they remain.

In February 2008, while in foster care, three-month-old Jesus was abused so severely that he almost died.   A brain scan showed chronic subdural hydromas and an acute subdural hematoma with loss of brain volume.   Doctors also found hemorrhaging around the left temporal lobe and in the posterior fossa and suspected areas of dead tissue from lack of oxygen in the temporal and occipital lobes.   Jesus, age three when trial proceedings ended, is legally blind, cannot walk and receives all nutrition and medication through a gastronomy tube.   He suffers from cerebral palsy and seizures.   The seizures occur as many as seven to ten times a day.   The DCFS reports that he “is totally dependent and requires specialized and full care for all activities of daily living as well as mobility.”   Since March 2008, Jesus has been placed with foster parents who have the skills and experience to meet his special needs.   This couple wishes to adopt Jesus and an adoptive home study has been approved.  (Mother had no criminal record.)   The court awarded Mother reunification services including parent education, drug rehabilitation and individual counseling and monitored visitation with the children.   The court did not order reunification services for Father ¹ but allowed him monitored visits if the children's caretakers were willing to take them to the prison.

The DCFS prepared a progress report in July 2008 regarding Mother's relationship with Jesus.   The foster mother told the DCFS that during visits Mother holds Jesus and asks questions about his well-being.   Jesus coos and smiles at the sound of Mother's voice.   On the other hand, Mother is usually 30 to 45 minutes late and sometimes does not arrive at all with no advance notice.   On occasion Mother falls asleep on the couch holding Jesus.   Mother has not attended any of Jesus' medical appointments despite the foster mother giving her a calendar with the appointments marked on it.

In November 2008, the DCFS submitted a further report on Mother's progress in reuniting with Jesus.   The report stated that Jesus is receiving physical therapy, occupational therapy, feeding therapy, vision therapy and infant stimulation.   Mother continues to arrive late for visits and often falls asleep on the couch with Jesus in her arms which poses a danger to Jesus.   The report also stated that Mother had completed her substance abuse and parenting programs.   Since the adjudication and disposition hearing in May 2008, Mother took 14 consecutive negative drug tests.   However, she failed to take seven of the required tests during that same period.   Mother told the DCFS worker:  “I want all my kids back [including] Jesus.   There is no better place for them than home with me.”   The report recommended continued family reunification services for Mother with all the children.

A follow-up report prepared in January 2009 stated that since November 2008 Mother had failed to take three of four required random drug tests.   She tested negative the one time she did take the test.   The report reversed its November recommendation that Mother continue to receive reunification services and instead recommended that the court terminate the services as to all the children and that it schedule a permanent planning hearing.   Shortly thereafter the DCFS again reversed its position and recommended that services continue as to all the children “based on [Mother's] recent compliance with random drug tests (3 consecutive clean tests), her current attendance to individual counseling [at] The Management Solutions Group, and her recent compliance with visits with [Alejandro and his siblings].”

In a March 2009 order, the court found Mother in compliance with the case plan and accepted the DCFS recommendation to continue Mother's reunification services.   The court continued the case to September and then to October 2009 for the 12–month review.

In its September 2009 report, the DCFS stated that between March 13 and July 14, 2009, Mother failed to appear for 9 out of 10 required drug tests and tested positive for amphetamines and methamphetamines in the only test she took.   Mother's visits with Jesus remained sporadic.   She visited him once in March and failed to visit in June, July and August 2009.   Her last visit was on May 21, 2009.   In the

At the 12–month review in October 2009, the court found that Mother was “in partial compliance with the case plan.”   The court terminated Mother's reunification services with all her children and set a permanent plan hearing for February 2010.

The DCFS filed a report in February 2010 for the permanent plan hearing scheduled for that month.   The report stated that Mother's visits with Jesus continued to be erratic.   She did not visit at all in September, October and December 2009.   She visited twice in November 2009 and twice in January 2010.

In February 2010, the court continued the hearing regarding Jesus but proceeded with the permanent plan hearing for Alejandro.   At that hearing it granted guardianship of Alejandro to his foster parents and retained jurisdiction.   In August 2010 it terminated jurisdiction over Alejandro.

In May 2010, Mother filed a petition under section 388 to reinstate her family reunification services with Jesus.   In the petition she stated that she “has tested clean for illegal substances and has attended anger management, domestic violence and individual counseling regularly” and “has almost completed a substance abuse program.”   Furthermore, she alleged, the change would benefit Jesus because it would preserve his familial ties and allow him to remain connected to his family as he grows older.   She made no mention of her visits with Jesus or her other children.

The DCFS filed a response to Mother's petition the same month.   The Department acknowledged that Mother had appeared for all 12 random drug tests ordered between December 2009 and April 2010 and that all the test results were negative.   Mother's visits with Jesus, however, continued to be irregular and infrequent.   In February 2010, Mother appeared for one out of six scheduled visits with Jesus;  in March, she made four out of seven scheduled visits;  in April, two out of nine;  in May, one out of six.   Between February and May 2010, Mother did not visit Jesus or call the foster parents to inquire about Jesus' well-being.

The court ordered Mother's petition to be heard at the time of the permanent plan hearing.

On August 23, 2010, Father filed a section 388 petition regarding Jesus and Alejandro.   With respect to Jesus, Father requested family reunification services, unmonitored visits and that the permanent plan hearing be taken off calendar.   Father asked the court to terminate the Alejandro's guardianship, reinstate jurisdiction and grant Father unmonitored visits with him.   The petition alleged Father's circumstances had changed because he had been released from prison the previous month, he had begun attending parenting classes and was in the position to provide a safe and stable home for the children.   Evidence in support of the petition showed that beginning in August 2010 Father participated in parenting classes, substance abuse counseling, anger management classes and that his drug tests were all negative.   Father claimed the changes he sought were in the best interests of Alejandro and Jesus because if the children were not reunited with Father they would lose contact with their siblings and family members.

The DCFS responded to Father's petition pointing out that for nearly all of Jesus' three years of life he has had no contact with Father and no contact with his family members or siblings except for five-year-old Alejandro who “reacts in a negative way to Jesus' appearance.”   The DCFS recommended Father have monitored visits with Jesus in order “to become familiar with Jesus' medical conditions and developmental disabilities which are extensive and can be overwhelming.”   The response concluded that despite Father's desire to reunify with Jesus, “[i]t would be detrimental to his emotional and [physical] health if there was a disruption of his current home.”   As to reuniting Jesus with Alejandro, the DCFS reported that “[a]ll attempts to promote for a sibling relationship and bonding have been unsuccessful because of how the family reacts to Jesus' appearance and lack of [ability] of Jesus to interact with them.”

The DCFS updated its response to Father's petition on September 30, 2010.   The new report noted that on August 23, 2010, the court authorized Father to have monitored visits with Jesus.   Between August 27 and September 20, 2010, Father had cancelled three of six scheduled visits.   He had visited twice, and one visit was cancelled by the foster parents because Jesus was ill.   Father did not call the foster parents to check on Jesus when he was sick and on his visits showed no interest in learning about feeding Jesus.

In October 2010, the court held a hearing on the parents' section 388 petitions and the permanent plan for Jesus.   Mother was present and testified.   Father was present but did not testify.

Mother testified that she had been visiting Jesus regularly once a week for the past month.   During their visits they engage in visual and physical therapy.   Mother also stated she attends Jesus' doctor's appointments, is familiar with his special medical needs and is “willing to ․ be responsible for his full-time care” because “I'm his Mom.” Asked why she believed it would be in Jesus' best interests to be reunited with her and his family, Mother answered:  “Because I've changed everything.   I'm not doing anything the way I used to do it.   I know I'm doing what I should be doing and what I should have been doing from the beginning, but I didn't do it.”

Mother admitted on cross-examination that the only training she had received in caring for Jesus was how to feed him through the tube and how to clean the tube.   She acknowledged that Jesus takes “about twelve medicines” a day including seizure medicines.   She did not testify that she had any training in administering these medications or in what to do should Jesus experience a seizure.   When asked who would care for Jesus while she was at work, Mother responded that “[m]ost likely” it would be her sister-in-law “who's not working at the time.”   Mother presented no evidence that the sister-in-law was willing or able to undertake Jesus' care.   Nor did she present a backup plan if the sister-in-law returned to work.   Finally, Mother conceded that none of Jesus' brothers or sisters had visited him since his injury except Alejandro who only visited him twice in three years.

Father's counsel argued that Father's parental rights as to Jesus should not be terminated because Jesus lived with Father “the first formative months of his life.”

The court denied both parents' section 388 petitions with respect to Jesus.   It acknowledged that the parents had made recent efforts to visit Jesus but found those efforts came too late.   It also found that Jesus had bonded with his foster parents who desire to adopt him and that the parents should have arranged with the caretakers of Jesus' siblings for visits between him and his brothers and sisters but failed to do so.

The court denied Father's section 388 petition as to Alejandro on two grounds.   Father did not demonstrate a change of circumstances.   He demonstrated participation in programs but had not completed any of them;  indeed he was not even halfway through.   Furthermore, the court found that it would not be in Alejandro's best interest “to just disrupt the legal guardianship that took us a long time to get to.”

Moving to the permanent plan hearing for Jesus, the court admitted into evidence the DCFS reports and Father's exhibits showing his attendance at various parenting programs.   The court found that it would be detrimental to Jesus to return him to his parents' care and custody;  that he is adoptable;  and a family wishes to adopt him.   The court further found no exception to adoption.   The court terminated Mother and Father's paternal rights to Jesus.

Mother appeals from the court's orders denying her section 388 petition and terminating her parental rights as to Jesus.   Father appeals from the orders as to Jesus and from the order denying his section 388 petition as to Alejandro.   We find no basis for overturning the court's orders.

DISCUSSION

I. DENIAL OF MOTHER'S SECTION 388 PETITION

Section 388 allows a party to file a petition requesting the dependency court to change, modify, or set aside a previous order.   The burden is on the petitioning party to make a prima facie showing of a change in circumstances or new evidence and that the proposed change would be in the child's best interest.  (In re Marilyn H. (1993) 5 Cal.4th 295, 309–310.)   We review the court's denial of the petition for abuse of discretion.  (In re Amber M. (2002) 103 Cal.App.4th 681, 685.)

Mother's petition sought to reinstate her family reunification services with Jesus which were terminated at the 12–month review hearing.   Mother claimed as a change in circumstances that she has tested clean, regularly attended anger management, domestic violence and individual counseling and had “almost completed a substance abuse program.”   She further alleged that reinstating reunification services would benefit Jesus because it would preserve his familial ties and allow him to remain connected to his family as he grows older.   The trial court found that Mother failed to carry her burden because her change of circumstances came “too late” in light of Jesus' special medical needs and his location with a family knowledgeable and willing to assist him with his unique needs.   We agree.

The court did not abuse its discretion in denying Mother's petition.   As a general rule, the maximum time a juvenile court may extend reunification services is 24 months from the date the child was initially removed from the parent's physical custody. (§ 361.5, subd. (a)(4).)   Jesus was initially removed from his parents' physical custody on October 2, 2007.   Reunification services were terminated 24 months later, on October 19, 2009.   No exceptional circumstances required the court to provide services beyond 24 months.   In any case, the court reasonably concluded that Mother's changing circumstances came too late to benefit Jesus.

II. DENIAL OF FATHER'S SECTION 388 PETITION

As to Father's requests to take Jesus' permanent plan hearing off calendar and terminate Alejandro's guardianship, the court correctly found that Father had not demonstrated a change in circumstances with respect to his ability to care for either child.   Father's evidence did not show that he had resolved his drug-use problem that led to the children's dependency.   The evidence only showed that Father had enrolled in a substance abuse program in August 2010,the same month he filed his section 388 petition.   He produced no record of his attendance up to the time of the hearing on the petition.   With regard to the best interests of Jesus and Alejandro, Father produced no evidence that he had the ability to care for Jesus, or that he was attempting to acquire the necessary skills and no evidence that guardianship was preventing Alejandro from visiting and interacting with members of his family.

III. DENIAL OF THE BENEFICIAL RELATIONSHIP EXCEPTIONS

Mother and Father both contend on appeal that the evidence was insufficient to support the court's denial of the “beneficial relationship” exceptions to the termination of their parental rights to Jesus.   Section 366.26 provides in relevant part that the court has discretion not to terminate parental rights if it finds “that termination would be detrimental to the child” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship” (§ 366.26, subd. (c)(1)(B)(i)) or “[t]here would be a substantial interference with a child's sibling relationship” (§ 366.26, subd. (c)(1)(B)(v)).

Because the issue of the beneficial relationship exception “turns on a failure of proof at trial,” “it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.”  (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)   Rather, the question for the reviewing court is “whether the evidence compels a finding in favor of the appellant as a matter of law.  [Citations.]  Specifically, the question becomes whether the appellant's evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’  [Citation.]”  (Ibid.)

Mother and Father failed to satisfy either prong of the parental beneficial relationship exception. (§ 366.26, subd. (c)(1)(B)(i).)   As we discussed above, neither parent “maintained regular visitation and contact” with Jesus.  (See discussion at pp.   3–5 (Mother), p. 6 (Father).)   In addition, the evidence showed that neither parent had the skills or experience to care for a child with Jesus' special needs who, at age three, had the developmental level of a seven-month-old and in addition was legally blind, received food and medicine through a gastrostomy tube and suffered from cerebral palsy and seizures.   ( See In re Marilyn H., supra, 5 Cal.4th at p. 310.)

The parents also contend that they established a sibling beneficial relationship exception to termination of parental rights.   We disagree.

In considering the sibling beneficial relationship exception the court must consider “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).)

Jesus was three months old when he and his brothers and sisters were removed from their parents' home and separated to live with different caretaker relatives and foster parents.   Thus they were not “raised ․ in the same home.”   Nor, three years later, does Jesus share “significant [and] common experiences” with his older brothers and sisters.   He is not bonded with any of them.   His only contact with his siblings in the three years since his removal from the family home has been two visits with Alejandro.

DISPOSITION

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. See section 361.5, subdivision (e)(1) (denial of reunification services to incarcerated parents)..  FN1. See section 361.5, subdivision (e)(1) (denial of reunification services to incarcerated parents).

MALLANO, P. J. JOHNSON, J.