IN RE: S.J. et al. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Father S.J. and mother F.T. appeal the termination of their parental rights with respect to their children S.J.,¹ Justice J., and Sk.J. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Father and Mother had two children, S.J. and Justice J., while Father was married to and had a separate family with Rachel J. The children, a toddler and an infant, came to the attention of the Department of Children and Family Services (DCFS) in September 2008 when Mother had an altercation with Rachel J. DCFS filed a petition alleging that the children came within the jurisdiction of the juvenile court under Welfare and Institutions Code 2 section 300, subdivisions (a) and (b).  The children were detained and placed with Father.   In February 2009, the juvenile court found true the allegations in the dependency petition.   The court in March 2009 terminated dependency jurisdiction and gave Father sole legal and physical custody of the children.

In May 2009, DCFS filed a new dependency petition with respect to the two children and their newborn sibling, Sk.J. In this petition, DCFS alleged that Mother and Father created a detrimental and endangering situation for the three children by committing crimes while the two older children were with them.   Father had fled the police to avoid arrest and his whereabouts were not known;  Mother had been arrested for burglary.   The two older children were placed in a foster home, while the youngest was still at that time hospitalized due to her recent birth.

The juvenile court sustained the allegations of the petition and declared the children to be dependents of the juvenile court.   The children remained in their placement.   Father remained incarcerated.   As of December 2009, Mother's compliance with the case plan was “minimal.”   She had failed to demonstrate that she had undertaken the required parent education and counseling.

In April 2010, Mother advised DCFS that she had decided to enroll in parenting education and counseling, and she provided proof of her enrollment.   As of May 2010, she visited the children twice per week.   Rachel J. had also taken her children to visit S.J., Justice J., and Sk.J. At a May 2010 hearing, the court ordered DCFS to facilitate these sibling visits.

As of July 2010, Mother had been taking parenting classes but had not attended counseling.   Although Mother had previously stated she would not attend counseling with Rachel J., she now agreed to it.   Rachel J.'s children visited the children twice per month.   Rachel J. stated that her children were asking for more time with S.J., Justice, and Sk.J., and asked for longer visits, such as overnight visits.

In August 2010, Rachel J. filed a petition under section 388 to change the children's placement order and requested that the children be placed with her.   DCFS acknowledged that Rachel J. had maintained regular contact with the children, but recommended that the petition be denied because Rachel J. had not participated in counseling;  she had recently completed probation for a battery charge;  she was already a mother to five children, one of whom had special medical needs;  Rachel J.'s children were of similar ages to the children, meaning that if she took the children she would be caring for four toddlers and two babies;  and Rachel J. lacked sufficient support to care for such a large group.   Finally, Rachel J. had previously stated that she wanted to care for Mother's children only if they were also Father's children;  as there was some question whether Justice J. and Sk.J. were Father's children, DCFS was concerned about the stability of the sibling group in the event that Father was tested and paternity ruled out as to one or both children.   After a hearing, the juvenile court denied the petition on the ground that the best interests of the children would not be promoted by the proposed change of order.

In September 2010, the juvenile court terminated reunification services for both parents;  set a section 366.26 hearing for January 5, 2011;  and served Father in court with notice of the next hearing.

As of January 2011, DCFS reported that Mother had maintained consistent contact with the children through weekly monitored visits.   Monitors reported that Mother's behavior during visits was appropriate and that the children appeared to enjoy the visits.   The children were also noted to have visits with Rachel J. and her children.

Father, still incarcerated, completed a waiver of his right to attend the section 366.26 hearing and requested that he be represented by counsel at that hearing.   The court continued the hearing from its original date in January to a date in February and found that the father's appearance was waived for the February court date.

Shortly before the section 366.26 hearing, Mother filed a section 388 petition requesting that the order terminating reunification services and the permanent plan of adoption be changed so that the children would be placed with her.   Mother's counsel filed a separate section 388 petition requesting that reunification services be reinstated;  the section 366.26 hearing be taken off calendar;  and her visits be liberalized to unmonitored.   Mother provided a certificate of completion for parenting education and individual counseling.

According to a DCFS report dated March 2011, Mother was visiting with the children three times per week.   Mother's visits were impacting the children, particularly S.J., negatively, for Mother promised they would return to her once she completed her ordered services.   Moreover, during telephone conversations with S.J., Mother had promised that Father would be released from prison soon and that they would all be reunited as a family.   S.J. displayed “problematic behaviors following visits with her mother, including acting out following the visits.”   S.J.'s counselor and teacher were both reporting that S.J. experienced anxiety.   Justice J., too, was acting out after visits with Mother.   As of early March, Mother's visits had been reduced.

DCFS recommended that Mother's section 388 petitions not be granted.   Mother had completed parenting education and individual counseling, but she had not undertaken the court-ordered conjoint counseling with Rachel J.³ She attended only ten counseling sessions and DCFS was unable to confirm what topics were addressed in those sessions or what Mother's level of participation was.   Mother had an active warrant for her arrest, so she could be arrested at any time, causing DCFS to be concerned that she could be arrested during an unmonitored visit.   Moreover, Mother's visits had been having a negative impact on the children, which counseled against increasing visitation.

On March 23, 2011, the court denied Mother's section 388 petitions.   Father argued that the termination of parental rights would be detrimental to the children because it would substantially interfere with their relationship with their half-siblings, his children with Rachel J. Mother argued that the beneficial parent relationship adoption exception under section 366.26, subdivision (c)(1)(B)(i) applied such that parental rights should therefore not be terminated;  she also argued for the sibling relationship exception under section 366.26, subdivision (c)(1)(B)(v).

The juvenile court found that neither adoption exception applied.   With respect to the parental relationship, the court stated, “That relationship has to be a parenting relationship, not a visiting friendly relationship[,] and without a doubt neither parent has stepped up to have [that] kind and quality of a relationship with these children throughout the [pend]ency of this case.”   Turning to the sibling relationship exception, the court emphasized that for a sibling relationship to warrant a refusal to terminate parental rights, the contact with the siblings must be in the children's best interest—”including long term emotional interest and that is a strong statement, long term emotional interest as compared to the benefit of legal permanence․”  The court observed that the home of Father and Rachel J. was not an appropriate home for the children and that “permanence [was] in their best interest.”   The court said, “that emotional relationship with the step siblings would indeed suffer emotional detriment if they were to remain in that kind of environment when the father and the biological mother are still very much attached to and engaged in activities that are detrimental to the children.”

The court found by clear and convincing evidence that the children were adoptable and terminated Mother and Father's parental rights.   Mother and Father appeal.

DISCUSSION

I. Mother's Section 388 Petitions

Mother contends that the juvenile court abused its discretion in denying her section 388 petitions.   Section 388 is a general provision permitting the court, “upon grounds of change of circumstance or new evidence ․ to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.” (§ 388, subd. (a).)  The statute permits the modification of a prior order only when the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist;  and (2) the proposed change would promote the best interests of the child.  (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)   A parent seeking an order for reunification services after they have been denied has the burden of proving by a preponderance of the evidence that the benefit to the child of resuming reunification efforts outweighs the benefit the child would derive from the stability of the permanent placement.  (In re Angel B. (2002) 97 Cal.App.4th 454, 464–465.)   We review the court's ruling for an abuse of discretion.  (In re Stephanie M. (1994) 7 Cal.4th 295, 318–319.)

Upon reviewing the evidence Mother submitted, the juvenile court concluded, “Mother's compliance does not demonstrate even by a long shot a change of circumstances.   For Mother to come in here with the criminal history that she has with the arrest of the father of the children that were present on one occasion, and still have outstanding warrants;  [¶][a]nd present to the court what we suggest is changed circumstances such that we should put these children [']s permanence at risk is just an indication there are really no changed circumstances;  [¶] That there is still a tremendous amount of growth that the mother has to engage in in order for this court to think that she can move herself from the finding that is made when we terminate services of an unfit parent and to one unfit parent who can become fit with additional services.   [¶] She simply has not grown to that extent nor can the court find in any[ ]way that it will be in the best interest of the children to destabilize their permanence on a whim for a mother who doesn't get it.   She just doesn't get it.”

We find no abuse of discretion here.   Mother's attempts to comply belatedly with some of the court-ordered treatment, as commendable as they may be, did not establish a significant change of circumstances.   After being out of compliance with the case plan for so long that the court terminated reunification services, Mother had attended ten counseling sessions of an undescribed nature and completed her parenting education course.   Mother had not demonstrated that the therapy she received was designed to remedy the problems that led to jurisdiction;  very little was known about the therapy other than that Mother attended ten times.   Moreover, as the court observed, it was Mother's criminal activity—stealing while accompanied by her children—that provided a basis for this exercise of dependency jurisdiction over the children, and Mother remained subject to an active arrest warrant.   She may have visited with her children regularly and at a late date complied with most of the original court orders, but she could have been arrested at any moment.   The court reasonably implicitly found Mother's open arrest warrant to be an indicator that there was no change of circumstances with respect to the problem that led to dependency jurisdiction in the first place.   We cannot say that the court abused its discretion when it concluded that Mother had not shown a material change in circumstances by partially complying with her case plan for approximately two months after the termination of reunification services with her young children.

II. Notice to Father

Father contends that the order terminating parental rights must be vacated because he was not properly given notice of the new date of the section 366.26 hearing.   Father contends that DCFS was sending his notice to an old address despite having been informed by Rachel J. that he was now elsewhere, and that his waiver for an earlier scheduled section 366.26 hearing was not effective for a subsequent hearing date.   DCFS asserts that Father's notice was sent to Father's last known address at the correctional facility where he was incarcerated, and, because notice was proper for the initial date of the section 366.26 hearing, it complied with the notice requirements of section 294, subdivision (d) for the continuation of a section 366.26 hearing when it sent notice to Father's last known address.

Even if we assume that notice to Father was inadequate, the error was harmless under any standard.   Father was on notice that the next hearing was a section 366.26 hearing, and he had previously waived his right to be present at the section 366.26 hearing when it had been calendared for January 2011.   His counsel had advised the court in January that she would not request that he be present at the section 366.26 hearing because Father's wife Rachel J. had conveyed Father's wishes.   At the hearing itself, Father's counsel acknowledged that Father may not have received the notice sent by DCFS, but “he knows what's going on through his wife, the stepmother.”   Counsel represented Father at the section 366.26 hearing and attempted to establish the sibling exception to the termination of parental rights.   Wife Rachel J. was present at the section 366.26 hearing and testified.   There is no indication that Father would have testified at the hearing had notice been proper, for he had waived his presence at prior hearings;  his counsel considered his presence unnecessary and did not ask that an order be issued for his presence;  and Father had been incarcerated for the duration of this case and as such was unable to visit the children.

Father has not argued that he was prejudiced in any way by the alleged error in notice, instead claiming that it was structural error requiring reversal.   Father has not provided any authority to support his contention that the failure to properly notice a continued section 366.26 hearing date after a parent waived his presence at an earlier date and when no change in DCFS recommendation was made, is structural error that is reversible per se;  nor are we aware of any such authority.   The case relied upon by Father, In re Claudia S. (2005) 131 Cal.App.4th 236, at page 247, states that parents are entitled to due process notice of juvenile court proceedings concerning their children;  it also defines “due process notice” as notice reasonably calculated under all the circumstances to apprise interested parties of the action and to afford them an opportunity to appear.   In the absence of such notice, there is a “fatal defect” in the court's jurisdiction, according to In re Claudia S. (Ibid.) But here, even if official notice of the continued hearing date was not properly given, his own counsel indicated that Father knew “what's going on” in the case because his wife Rachel J. informed him;  she could also have conveyed any change in his wishes, such as a new desire to be present.   Accordingly, there is no structural error or failure of due process notice here.   Because Father has not established structural error and has made no effort to demonstrate prejudice from any notice failure, he has not established that he was prejudiced by the alleged error.

III. Exceptions to Termination of Parental Rights

At a hearing under section 366.26, the court must select and implement a permanent plan for a dependent child.   Where there is no probability of reunification with a parent, adoption is the preferred permanent plan.  (In re Derek W. (1999) 73 Cal.App.4th 823, 826.)   To implement adoption as the permanent plan, the juvenile court must find, by clear and convincing evidence, that the minor is likely to be adopted if parental rights are terminated. (§ 366.26, subd. (c)(1).)   Then, in the absence of evidence that termination of parental rights would be detrimental to the child under statutorily-specified exceptions (§ 366.26, subd. (c)(1)(A)-(B)), the juvenile court “shall terminate parental rights.” (§ 366.26, subd. (c)(1).)   Here, the juvenile court found that the children were adoptable and, finding no reason that the termination of parental rights would be detrimental to them, terminated both parents' parental rights.   Mother and Father appeal the termination ruling, each asserting that a different exception to termination of parental rights was applicable here.

Section 366.26, subdivision (c)(1)(B)(i), provides an exception to the general legislative preference for adoption when “[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:  [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”   The “benefit” prong of the exception requires the parent to prove his or her relationship with the child “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.”  (In re Autumn H. (1994) 27 Cal.App.4th 567, 575;  see also In re Derek W., supra, 73 Cal.App.4th at p. 826 [“parent has the burden to show that the statutory exception applies”].)   No matter how loving and frequent the contact, and notwithstanding the existence of an “emotional bond” with the child, “the parents must show that they occupy ‘a parental role’ in the child's life.”   (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108;  In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418–1419.)   The relationship that gives rise to this exception to the statutory preference for adoption “characteristically aris[es] from day-to-day interaction, companionship and shared experiences.   Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship.”  (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)   Moreover, “[b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement.”  (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

Section 366.26, subdivision (c)(1)(B)(v), provides an additional exception to the preference for adoption when “[t]here would be 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.”   In considering the availability of this exception, the court is directed “to determine whether terminating parental rights would substantially interfere with the sibling relationship by evaluating the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds.  [Citation.]  If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption.”  (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951–952;  accord, In re Celine R. (2003) 31 Cal.4th 45, 61.)  “[T]he concern is the best interests of the child being considered for adoption, not the interests of that child's siblings.”  (In re Naomi P. (2005) 132 Cal.App.4th 808, 822;  In re Celine R., supra, at pp. 49–50.)

For years California courts have diverged in their view about the applicable standard of review for an appellate challenge to a juvenile court ruling rejecting a claim that one of the adoption exceptions applies.   Most courts have applied the substantial evidence standard of review to this determination (see, e.g., In re Autumn H., supra, 27 Cal.App.4th at p. 576;  In re L.Y. L., supra, 101 Cal.App.4th at p. 953), although at least one court concluded that it is properly reviewed for an abuse of discretion.  (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)   More recently, the Sixth District has cogently expressed the view that the review of an adoption exception incorporates both the substantial evidence and the abuse of discretion standards of review.  (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314–1315 (Bailey J.).)   The Bailey J. court observed that the juvenile court's decision whether an adoption exception applies involves two component determinations:  a factual and a discretionary one.   The first determination—most commonly whether a beneficial parental or sibling relationship exists, although section 366.26 does contain other exceptions—is, because of its factual nature, properly reviewed for substantial evidence.  (Bailey J., at p. 1314.)   The second determination in the exception analysis is whether the existence of that relationship or other specified statutory circumstance constitutes “a compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B);  Bailey J., supra, at p. 1315.)   This “ ‘quintessentially’ discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption,” is appropriately reviewed under the deferential abuse of discretion standard.   (Bailey J., at p. 1315.)   We find the Bailey J. approach persuasive and apply its composite standard of review here.

A. Parental Relationship Exception

As of the date of the section 366.26 hearing, the two older children (ages five and three) had been out of Mother's custody for more than two and one-half years—they had first been placed with Father in September 2008, when S.J. was just under three years old and Justice J. less than one year old.   The youngest child, Sk.J., had never lived with her mother, as she was detained shortly after birth.   The children had been in the same foster placement since they were removed from Father's care in May 2009;  for the youngest, this foster home was the only home she had ever known.   Mother's entire relationship with Sk.J. had been established through her monitored visits.   Mother had maintained regular visitation with the children, but she never progressed beyond monitored visits—and her visits had been reduced in frequency due to the anxiety they produced in the two older children, especially S.J. At the section 366.26 hearing, Mother's attorney argued that parental rights should not be terminated because she visited consistently and because the children were bonded to her to an extent that termination would be detrimental to them.   Visitation, however, is not enough to establish a beneficial parental relationship, and Mother presented no evidence that she occupied a parental role in the children's lives.  (See In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418–1419.)   As the juvenile court observed, the evidence did not demonstrate that Mother had a beneficial parental relationship with the children, and the court's determination that no beneficial parental relationship existed was supported by substantial evidence.  (Bailey J., supra, 189 Cal.App.4th at p. 1314.)

B. Sibling Relationship Exception

Prior to the instant dependency case, the older two children lived for approximately eight months with Father, Rachel J. and their children.   Rachel J. described the relationship between her children and Mother's children as “good,” “much loving,” and “caring.”   After the children were placed in foster care, Rachel J. brought her children to visit them.   The visitation schedule had varied over time.   Initially visits were “once every now and then,” and then they stopped until the court ordered visits.   Visits were then on a monthly basis, unless Mother permitted them to visit with her, and in 2010 the children saw their half-siblings twice weekly.   Visitation recently had stopped for two months, but since the most recent court date, the children had been visiting together weekly for two hours.   When the children came together for visits, Mother's children would run to Rachel J.'s children, hug them, and were excited to see them.   They ate together, played together, took pictures, got along well, and enjoyed the time together.   Rachel J. believed that Mother's children would suffer if they no longer had contact with her children because of “[t]he time they spent.   They spent more time than anybody knows together.   S[.J.] would cry when my son wanted to go to school because she wanted to go with him.  [¶] Just the bond.   It's not fair for them to be without each other.”

The juvenile court did not clearly state whether it concluded that the children did not have a relationship with their half-siblings sufficient to meet the standards of the statute or whether the court concluded that on balance, the children's interest in permanence outweighed the half-sibling relationship such that the relationship did not constitute a compelling reason for finding adoption to be detrimental to the children.   The evidence before the court established that the children visited with their half-siblings on a somewhat regular basis, that the relationship was happy and affectionate, and that the older two children lived with their half-siblings for a period early in their lives (when S.J. was two and three years old and when Justice J. was one and two years old).   It did not compel a conclusion that the children had a beneficial sibling relationship with their half-siblings that would be substantially interfered with in the event of a termination of parental rights.   To the extent that the juvenile court's determination rested on the factual conclusion that the children lacked a beneficial relationship with their half-siblings, that determination was supported by substantial evidence.  (Bailey J., supra, 189 Cal.App.4th at p. 1314.)

To the extent that the juvenile court may have concluded that a beneficial relationship existed between the children and their half-siblings that would have been substantially interfered with by the termination of parental rights, the juvenile court did not abuse its discretion in concluding that the relationship between the children and their half-siblings did not constitute a compelling reason for finding adoption to be detrimental to the children.   (Bailey J., supra, 189 Cal.App.4th at p. 1315.)   Rachel J. believed that the children would suffer if the children no longer visited with her children because they had a bond and had spent time together, but the juvenile court could have concluded that Rachel J.'s belief was unfounded or that any potential detriment to these young children from the disruption or loss of the relationship with their half-siblings was outweighed by the benefit that they would gain by being adopted by their foster parents, who had cared for them continuously for much (and in Sk.J's case all) of their lives.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. Because the father and one child have the same initials, we will refer to the father as “Father” and the child as “S.J.”.  FN1. Because the father and one child have the same initials, we will refer to the father as “Father” and the child as “S.J.”

FN2. All further statutory references are to the Welfare and Institutions Code..  FN2. All further statutory references are to the Welfare and Institutions Code.

FN3. She had also been ordered to undergo conjoint counseling with Father, but Father's incarceration made that impossible..  FN3. She had also been ordered to undergo conjoint counseling with Father, but Father's incarceration made that impossible.

WOODS, Acting P.J. JACKSON, J.