Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. Nos. J04-01702, J04-01703, J05-02166
Parrilli, J.
Martha P. (mother) and Efrain L. (father) (collectively, parents) appeal from the juvenile court’s orders to (1) deny their request for a bonding study, and (2) terminate their parental rights with respect to minors Angelica L., Lizbeth L., and Z. L. after finding the so-called “sibling exception” to Welfare and Institutions Code section 366.26 inapplicable. Additionally, mother appeals from the juvenile court’s order to deny her petitions under section 388 requesting modification of a prior order that terminated reunification services with respect to Angelica and Lizbeth, denied services with respect to Z., and set a permanency planning hearing with respect to all three girls. We affirm.
Unless otherwise stated, all statutory citations herein are to the Welfare and Institutions Code.
Father has joined in all arguments made in mother’s opening brief except that relating to her section 388 petitions. Accordingly, we need not distinguish between parents’ arguments except for purposes of our section 388 discussion.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts, to a large extent, were set forth in an earlier opinion in this cause, and will not be repeated at length here. (Martha P. v. Superior Court, A113205, May 17, 2006, nonpub. op.) That earlier opinion denied mother’s petition for writ of review of orders made by the juvenile court on February 8, 2006, which: (1) terminated reunification services with respect to four of her children: Mario, Lizbeth, Angelica and Brenda (collectively, “the older siblings”); (2) denied reunification services with respect to her infant daughter, Z.; and (3) set a permanency planning hearing regarding the older siblings and Z. pursuant to section 366.26 (“February 8, 2006 orders”). (Ibid.) We thus begin where our earlier opinion ends.
On May 15, 2006, mother filed petitions under section 388 to modify the February 8, 2006 orders as they relate to Lizbeth, Angelica and Z. Specifically, mother requested the juvenile court change the orders to terminate reunification services as to Lizbeth and Angelica, and to deny reunification services as to Z., by ordering six additional months of services or, alternatively, by returning the children under a family maintenance plan. In support of her petitions, mother alleged her circumstances had changed in that she was actively participating in substance abuse, parenting and domestic violence programs. She further alleged the children would benefit by granting the petitions because parents and children loved and missed one another.
On June 1, 2006, father filed similar section 388 petitions. Like mother, father requested the juvenile court change the February 8, 2006 orders with respect to Lizbeth, Angelica and Z. to provide six additional months of services or, alternatively, to return the children with or without a family maintenance plan. Additionally, father’s petitions requested weekly visits, a bonding study and a referral to mediation. Father also pointed to his participation in substance abuse, parenting and domestic violence programs as justification for a new order. Father alleged the children would benefit from a new order because, inter alia, they would return to their family and siblings, with whom they are quite bonded.
At a May 25, 2006 hearing, father reiterated his request for a bonding study, and mother joined his request. The juvenile court set a hearing on parents’ bonding study request on June 15, 2006. At that hearing, the Contra Costa County Children and Family Services Bureau (“bureau”); Mr. and Mrs. N., the de facto parents of Lizbeth, Angelica and Z.; and counsel for Angelica, Lizbeth, Mario and Z. opposed a bonding study on the following grounds: (1) parents’ request had come too late in the proceedings and (2) given the children’s young ages, a bonding study would yield little useful information beyond what could be attained from lay witnesses. The juvenile court agreed, and denied the request.
On July 12, 2006, the juvenile court began hearing parents’ section 388 petitions and the section 366.26 permanency plans with respect to Lizbeth, Angelica, Mario, Brenda and Z. At the start of the hearing, the juvenile court ordered that Brenda be returned home pursuant to a family maintenance plan on the condition parents’ home was found to be in an appropriate condition. The parties also stipulated to parents’ participation in domestic violence and parenting programs, a support group for parents of disabled children, and Alcoholics Anonymous (“AA”) and Narcotics Anonymous (“NA”) meetings. They further stipulated father had tested negative for drugs 11 times from January 12 to July 6, 2006, and had paid for the tests himself. The juvenile court then heard testimony from several witnesses.
Section 388 petitions were also filed on behalf of Y. and Efrain Jr., two of parents’ older children who remained at home. The juvenile court denied the petitions on grounds not relevant here. No appeal has been taken from that decision.
As discussed in more detail in our prior opinion in this cause, Mario tested positive for methamphetamines at birth and suffers from several disabilities, including Down’s Syndrome.
Brenda testified regarding her sibling bond with Lizbeth, Angelica and Z. Brenda lived with Lizbeth and Angelica a year and a half ago when they were first removed from parents’ home. She had since moved to another foster home, but visited Angelica and Lizbeth weekly. She used to also visit Mario and Z., but had not done so in about a month, which made her sad. At visits, Angelica told Brenda she “miss[ed] her a lot” and Lizbeth often ran up and hugged her. Both girls call Brenda “Benna.” Brenda believed Lizbeth and Angelica loved her and wanted to spend time with her, but they had not mentioned wanting to live with her again. She helped bathe and feed them when they all lived together, and would like to live with them again. She did not, however, know her sisters’ favorite foods, toys or television shows, nor talk to them about what they liked to play with. Crying, Brenda testified she was “sad and kind of mad” that she now saw Lizbeth and Angelica less frequently.
Mother admitted using drugs throughout most of the dependency proceedings, and during her pregnancy with Z. Mother acknowledged her drug addiction negatively affected her children, but believed the children nonetheless adored their parents. She had been participating in twice weekly AA meetings, and had worked on AA’s first six steps. She had been sober 9 months, and had completed a substance abuse outpatient program. She was scheduled to begin a year-long class for complete recovery at the Latina Center, where she would be able to choose from among many different classes. She was willing to do everything possible to have her children return home.
Mother did not have a steady job, but often cleaned houses to make extra income. Father operated a gardening business. She believed, together, they made sufficient income to support the entire family.
Sheree Howe, a substance abuse counselor at Tri-Cities Discovery Center, confirmed father had enthusiastically completed the Center’s treatment program, and was continuing with an extended program. Howe tested father 8 to 9 times and mother 12 to 13 times for drug use, although few if any of the tests were conducted randomly. Rather, parents requested and paid for the tests. Father’s tests were administered by sending him, alone and unobserved, to the restroom with a container to urinate in.
Howe had no personal knowledge of parents attending AA meetings, but acknowledged helping them prepare for the hearing by making a copy of their AA attendance records. She was asked about an exhibit consisting of a list parents compiled of the dates they allegedly attended AA meetings based on the attendance cards they received upon signing in at the meetings. She acknowledged the copy she made was “sloppy,” and some of the dates included on it were erroneous.
Father testified parents attended AA meetings on all the dates listed in the exhibits submitted to the court. He further testified that, were his children returned, he would get a larger apartment for parents and the younger children, and move his two older sons into a trailer on their property. He received over $5,500 in income between May 7 and June 12, 2006, and expected that income level to continue in the future.
Robert Rincon, a substance abuse counselor with 25 years of professional experience, testified regarding AA practices and procedures. Rincon denied it was AA’s practice or procedure for meeting attendees to sign in for more than one meeting on the same night. Moreover, in his experience, no AA personnel would sign off on an attendee’s attendance sheet for 18 meetings at the same time unless the personnel could independently verify the attendee’s attendance at each meeting. Rincon could not verify parents attended AA meetings on the dates listed in the exhibits after reviewing the organization’s attendance sheets, even though, generally, “everybody signs in” at meetings.
Paula Hollowell, an adoptions court social worker, testified the children appeared to do “well” during parent and sibling visitation. She observed one of Brenda’s visits with Lizbeth and Angelica, and noted the children appeared warm, playful, and engaged with one another. She observed during a home visit that Angelica and Lizbeth called Mr. and Mrs. N. “mommy” and “poppy,” and Mrs. N’s mother “grandma.”
De facto parent William N. testified he and his wife, Donna N., had been caregivers for Angelica and Lizbeth since May 2005, and for Z. since February 2006. He generally took the older girls, and sometimes Z, three times a month to visit Brenda in Pinole, and monthly to visit the entire family in Richmond. When Angelica and Lizbeth first came to the N.’s home, Angelica mentioned her siblings “[v]ery little,” and Lizbeth never mentioned them. Nonetheless, Mr. and Mrs. N. encouraged the girls to know their siblings, and Angelica and Lizbeth have enjoyed their visits with Brenda, with whom they appear warm and attached. Mr. and Mrs. N have permitted Y., who began calling their home in May 2006, to speak with the girls regularly to see how they are doing.
The bureau suspended the monthly family visits in February 2006 due to concern that parents had tested positive for TB. The issue had been resolved, however, and a visit was scheduled for that afternoon following the hearing.
William N. considered the siblings’ relationship beneficial, but acknowledged the visits had some negative consequences. In particular, the visits were emotional, and the girls often had disrupted sleeping and eating patterns on visitation days. Nonetheless, were Mr. and Mrs. N. permitted to adopt Z., Angelica and Lizbeth, they would continue sibling contact so long as it did not endanger the girls’ safety or well-being. Mr. and Mrs. N. would also consider entering into a post-adoption agreement to maintain sibling visits.
With respect to parents, Mr. N. testified that neither Angelica nor Lizbeth asked about them. Father had called the girls only two or three times since their placement began, and the last call from either parent was in 2005. Nonetheless, for the girls’ benefit, Mr. and Mrs. N. “encouraged them to know that they have two mommies and poppies.”
Following the hearing, the juvenile court made several orders. The juvenile court denied the section 388 petitions as to Z., Mario, Lizbeth and Angelica on the grounds that parents failed to meet their burden of proving the circumstances leading to dependency had changed, or that continuing services or returning home was in the children’s best interests. The juvenile court terminated parental rights with respect to Z., Angelica and Lizbeth, but continued the hearing with respect to Mario. The juvenile court also denied parents’ renewed request for a bonding study.
This appeal followed.
DISCUSSION
Parents contend the juvenile court erred in (1) denying their request for a bonding study, and (2) terminating their parental rights with respect to Angelica, Lizbeth and Z. Separately, mother contends the juvenile court erred in denying her section 388 petitions. For reasons discussed below, we affirm.
We note the bureau failed to provide any response to mother’s arguments relating to her section 388 petitions. We further note with concern the bureau failed, in violation of the rules of appellate procedure, to provide record citations in support of the majority of its argument. (Cal. Rules of Court, rule 8.204 (a)(1)(C).)
I. Denial of Parents’ Request for a Bonding Study.
Parents first requested a bonding study to assess the siblings’ relationship after reunification services had terminated and the matters of Angelica, Lizbeth and Z. had been set for a permanency planning hearing pursuant to section 366.26. The juvenile court denied parents’ request on the grounds that (1) it came too late in the proceedings, and (2) it likely would not yield additional useful information beyond what lay witnesses could provide. Parents claim the juvenile court’s ruling was error.
A bonding study is an expert assessment of the nature and extent of the bond that exists between certain family members. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1168.)
As an initial matter, we note parents have framed this issue as one implicating their right to effective assistance of counsel. Parents argue the juvenile court’s ruling violated such right by precluding them from relying on experts in preparing their defense. They then reason that, given the fundamental nature of the right at stake, the juvenile court should have viewed their request with “considerable liberality,” and granted it so long as the bonding study was “reasonably necessary.” In making this argument, parents rely primarily on a single criminal case, People v. Guerra (2006) 37 Cal.4th 1067, 1085.
We know of no juvenile dependency case that has adopted parents’ proposed standard, much less adopted it in the context of a bonding study request. Moreover, parents ultimately concede, consistent with well-established California juvenile dependency authority, that the juvenile court’s decision to deny their bonding study request is reviewed for abuse of discretion. (E.g. In re Richard C. (1998) 68 Cal.App.4th 1191, 1197 [Richard C.].) We apply this standard instead of parents’ proposed standard. Accordingly, parents must show that “ ‘under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’ [Citations.]” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067-1068.)
We conclude the juvenile court could indeed have reasonably denied parents’ request for a bonding study on the ground that it was untimely. As this court has previously held, where the juvenile court has terminated reunification services and set a hearing to establish a permanent plan, a parent’s “right to develop further evidence regarding [his or] her bond with the children . . . approach[es] the vanishing point.” (Richard C., supra, 68 Cal.App.4th at p. 1195.) The reason is this. Once the juvenile court has terminated reunification services, the focus of the dependency proceedings shifts away from preserving the natural parent-child relationship and towards finding the child a stable and permanent alternative home. (Id. at pp. 1195-1196.)
In In re Lorenzo C. (1997) 54 Cal.App.4th 1330, the Court of Appeal, Fifth District, relied on similar reasoning in addressing a parent’s claim of a right to a bonding study after the child was removed from the home and reunification services were terminated. Concluding no such right existed, the court reasoned: “There is no requirement in statutory or case law that a court must secure a bonding study as a condition precedent to a termination order. . . . [A]lthough the preservation of a minor’s family ties is one of the goals of the dependency laws, it is of critical importance only at the point in the proceeding when the court removes a dependent child from parental custody (§ 202, subd. (a)). [Fn. omitted.] Family preservation ceases to be of overriding concern if a dependent child cannot be safely returned to parental custody and the juvenile court terminates reunification services. Then, the focus shifts from the parent’s interest in reunification to the child’s interest in permanency and stability. [Citation.]” (In re Lorenzo C., supra, 54 Cal.App.4th at pp. 1339-1340 [Lorenzo C.].)
We conclude the reasoning set forth in Richard C. and Lorenzo C. applies here, even though we are concerned with a sibling bond rather than a parent-child bond. As in those cases, when parents requested the bonding study, the juvenile court had already terminated services and set a permanency planning hearing for Angelica, Lizbeth and Z. As such, the juvenile court quite properly was no longer focused on preserving the natural familial bonds, but rather on safeguarding Angelica’s, Lizbeth’s and Z.’s need for permanency and stability. Ordering the bonding study at that point would have required the juvenile court to return to what undoubtedly was a pre-permanency planning issue – whether family reunification was appropriate. That, in turn, would have caused a lengthy and unnecessary delay inconsistent with the Legislature’s intent that dependency cases proceed expeditiously. (Richard C., supra, 68 Cal.App.4th at p. 1197 [“[t]he Legislature did not contemplate . . . last minute [requests for bonding studies] to put off permanency planning”]; Lorenzo C., supra, 54 Cal.App.4th at p. 1340 [“the section 366.26 hearing [is designed] to allow the trial court to avoid reconsidering issues previously decided in the dependency proceedings in order to expedite the permanent placement of the child”]). The juvenile court had discretion to avoid that result.
Further, even were we to consider the merits of the bonding study request, viewing the evidence in a light most favorable to affirming the juvenile court’s decision, as we must, we would conclude denying it was wholly reasonable. (In re Robert L., supra, 21 Cal.App.4th at p. 1067.) Evidence existed of some bonding between the siblings. For example, Brenda, who lived with Angelica and Lizbeth in the N.’s home for a few months before moving to another foster home, testified her sisters loved her and wanted to be with her. They called her “Benna.” Angelica told Brenda she missed her and Lizbeth would run up and hug her during the visits. Social worker Hollowell described the siblings’ relationship as warm, playful and engaged.
Brenda was moved to another home due to problems that arose between Brenda and Mr. and Mrs. N.’s other children.
However, there was also evidence of a strong bond between Angelica, Lizbeth, Z.and Mr. and Mrs. N. Z., the infant, had lived with the N.’s for over 5 months, since she was only three months old, and had lived with parents only 10 days. Lizbeth had lived with the N.’s for over 14 months, nearly the amount of time she lived in parents’ home. Angelica, two and a half years old when removed from parents home, had also lived with the N.’s for over 14 months. None of the girls asked about parents, and mentioned Brenda and their other siblings “very little.” The girls called Mr. and Mrs. N “mommy” and “poppy,” and Mrs. N.’s mother “grandma.” Hollowell described the girls as “jumping up and down,” excited to see Mrs. N to show her pictures they made at preschool. Under these circumstances, it is unlikely a bonding study would have yielded significant additional evidence. The juvenile court thus did not err in declining to order it.
II. Order to Terminate Parental Rights.
Parents further contend the juvenile court erred in terminating parental rights to Angelica, Lizbeth and Z. after finding such decision would not be detrimental to the children for reasons set forth in the sibling exception under section 366.26, subdivision (c)(1)(E). On review, we uphold a juvenile court’s finding so long as it is supported by substantial evidence. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) In making that determination, we “do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court’s order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]” (Ibid.)
That the juvenile court has continued a child’s removal from parental custody and has terminated reunification services is a sufficient basis for terminating parental rights absent a compelling reason for determining such termination would be detrimental to the child due to the existence of one of the circumstances specified in section 366.26, subdivision (c)(1). Relevant here, section 366.26, subdivision (c)(1)(E), the so-called sibling exception, precludes termination of parental rights where it would be detrimental to the child because: “[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.” (§ 366.26, subd. (c)(1)(E).)
In finding termination of parental rights would not be detrimental under the circumstances set forth in the sibling exception, the juvenile court noted Z. had spent all but 10 days, and Angelica and Lizbeth had spent nearly half their lives, outside parents’ home, evidence belying significant common experiences or close, strong bonds between the girls and their siblings. (§ 366.26, subd. (c)(1)(E).) The juvenile court also noted whether parents had met the requirements of the sibling exception had to be considered from the viewpoint of the removed children—Angelica, Lizbeth, and Z. As such, Brenda’s testimony that she loved her siblings and wanted them to return home was not dispositive. Finally, the juvenile court found clear and convincing evidence that returning the children to parents would be detrimental, and that adoption would be in their best interests.
We conclude the juvenile court’s decision was proper. As discussed in more detail above, the evidence of a bond between Angelica, Lizbeth, and Z. and their siblings did not outweigh the evidence of a bond between the girls and Mr. and Mrs. N., who undisputedly wished to adopt them and could provide a stable, healthy, and loving home. Moreover, parents had been provided well over 12 months of services to help them reunify their family. They had also had well over 12 months to request an expert study or to otherwise gather evidence of a sibling or parent-child bond. They failed to do either. As such, even assuming a bonding study would have yielded some additional evidence of a sibling bond, the juvenile court did not abuse its discretion in finding parents failed to meet the sibling exception standard.
We acknowledge parents’ claim that the juvenile court misapplied the sibling exception by rejecting Brenda’s testimony regarding a sibling bond. We believe parents misconstrue the record. The juvenile court did not find Brenda’s testimony irrelevant. Rather, the juvenile court found the proper focus was on Angelica’s, Lizbeth’s, and Z.’s viewpoint, not Brenda’s. That is consistent with the law: “[A] nonadoptive sibling’s emotional resistance towards the proposed adoption may also implicate the interests of the adoptive child. In an appropriate case, the court should carefully consider all evidence regarding the sibling relationship as it relates to possible detriment to the adoptive child. But the ultimate question is whether adoption would be detrimental to the adoptive child, not someone else.” (In re Celine R. (2003) 31 Cal.4th 45, 55 [Celine R.] [emphasis added].)
Celine R. also teaches that “[w]hen appropriate, the court can encourage the adoptive parents to agree to visits among the siblings.” (In re. Celine R., supra, 31 Cal.4th at p. 55.) The juvenile court did just that, pointing to the N.’s interest in maintaining contact among the siblings and expressing “confiden[ce]” such contact would occur.
Accordingly, no basis exists to disturb the juvenile court’s finding that the sibling exception was inapplicable, and that parental rights to Angelica, Lizbeth and Z. should be terminated.
III. Denial of Mother’s Section 388 Petitions.
Before and after reunification services are terminated, a parent has a continuing right to petition the court pursuant to section 388 for a modification of any order in the case based on a showing of changed circumstances or new evidence. (§ 388.) In bringing the petition, the parent has the burden to prove by a preponderance of the evidence that changed circumstances exist and that the proposed modification would be in the child’s best interest. (Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, 1068; Cal. Rules of Court, rule 5.570, subds. (a), (e).) “[W]hether a child is [being] reared in a more mainstreamed or socioeconomically advantaged household [than the natural parent’s household] is not dispositive under section 388. It is not, after all, in the court’s authority to ‘play God’ and determine which of two households a child should have been born into.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
Mother’s petitions for modification under section 388 sought further reunification services or the return of Angelica, Lizbeth and Z. pursuant to a family maintenance plan. The petitions, among other things, advised the juvenile court that, since services had terminated, mother had on her own initiative complied with the requirements set forth in the bureau’s case plan. In particular, mother had completed a parenting class, was participating in drug treatment programs and taking drug tests, and had attended classes in a domestic violence treatment program. At the hearing in support of her petitions, mother admitted her past drug abuse was damaging to the children, and claimed to be willing to do everything possible to get them back.
Denying the petitions, the juvenile court congratulated mother on her progress, but found her circumstances not “changed,” as section 388 requires, but merely “changing.” In particular, the juvenile court noted mother’s long history of substance abuse, her failed drug tests throughout the reunification process, her repeated failure to take advantage of treatment programs made available to her, and her submission to the court of AA attendance records that appeared to be forged. Thus, after weighing the stability of the children’s current placement against the risks associated with returning them to parents, “who are just getting into sobriety,” the juvenile court found mother had not met her burden of proving the modification was in the children’s best interests
Mother argues the juvenile court inappropriately relied on a “simple best interests” standard in denying her petitions. Specifically, mother claims the juvenile court ignored the children’s interests in maintaining their family ties, and instead focused solely on their interests in continuing placement in a “better household.” We agree with mother the economic disparity between natural parents and caregivers cannot be dispositive, and that attention must be paid to familial attachments and bonds. (In re Kimberly F., supra, 56 Cal.App.4th at pp. 529-530.) Here, however, the record makes clear the juvenile court was not focused one-dimensionally on whether Mr. and Mrs. N. could provide a better, more affluent home. Rather, the juvenile court was focused on a multitude of relevant factors, including the seriousness of the substance abuse and other problems that led to the children’s dependency, the degree to which those problems can or have been ameliorated by parents, and the relative strength of the children’s bonds to their natural family and to their caregivers. (Id. at p. 532.) And while, as the juvenile court found, the evidence proved mother had in the past few months taken steps to address her problems and to improve the quality of her life, it did not necessarily prove her problems were solved or that further reunification services or a family maintenance plan at this time was in Angelica’s, Lizbeth’s, or Z.’s best interests. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) Rather, the evidence proved the children’s need for permanency and stability would be best served by adoption. Accordingly, we find no basis for modifying the juvenile court’s order.
DISPOSITION
The juvenile court’s orders are affirmed.
We concur: McGuiness, P. J., Siggins, J.