In re E.C. CA4/1

Filed 4/9/13 In re E.C. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re E.C., a Person Coming Under the
Juvenile Court Law.
D062739
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. SJ12205D)
Plaintiff and Respondent,

v.

CARLOS C. et al.,

Defendants and Appellants;

NICHOLAS C. et al.,

Appellants.

APPEALS from a judgment of the Superior Court of San Diego County, Carol

Isackson, Judge. Affirmed.

In September 2012, the juvenile court terminated parental rights in the dependency

case of one-and-one-half-year-old E.C. Father Carlos C., mother M.C. (together, the
parents) and E.C.'s older siblings (the siblings) appeal. All of the appellants contend the

court erred by declining to apply the sibling relationship exception (Welf. & Inst. Code,

§ 366.26, subd. (c)(1)(B)(v))1 to termination of parental rights. Carlos additionally

contends the court abused its discretion by denying his modification petition (§ 388),

which requested that E.C. be placed with paternal uncle C.H. We affirm.

BACKGROUND

Before E.C. was born, the siblings became dependents of the juvenile court as a

result of the parents' domestic violence and substance abuse. In July 2009, when the

siblings ranged in age from nine to 13 years old, they were placed with C.H. C.H.

allowed the parents frequent contact and overnight visits with the siblings. In February

2010, a social worker from the San Diego County Health and Human Services Agency

(the Agency) told C.H. that the visits had to be supervised. C.H. became the siblings'

guardian and the court terminated dependency jurisdiction in July. Before the court

terminated jurisdiction, C.H. told the Agency that the siblings no longer had overnight

weekend visits with the parents.

Although C.H. was aware of the parents' ongoing problems, including substance

abuse and domestic violence, he continued to leave the siblings in the parents' care for

extended periods. In July 2010, one of the siblings said he had recently stayed with the

parents for a couple of days while C.H. went to Las Vegas. In August, two of the siblings

reported C.H. was behaving differently, drinking more and leaving them alone more. In

1 All further statutory references are to the Welfare and Institutions Code.
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September, C.H. acknowledged that the siblings had recently spent the night with the

parents.

E.C. was born in December 2010. He suffered from opiate withdrawal and

remained in the hospital for more than a month. While E.C. was still in the hospital, C.H.

allowed the siblings to have an unsupervised weekend visit with the parents. During the

weekend, M.C. drank alcohol to the point of intoxication, the parents argued and the

police were summoned to the home. On January 14, 2011, the Agency held a meeting

with concerned relatives. C.H. was invited but did not attend.

On January 19, 2011, the Agency filed a dependency petition for one-month-old

E.C. The petition was based on E.C.'s drug withdrawal, M.C.'s substance abuse, the

events during the siblings' recent weekend visit with the parents and the siblings' past

dependency cases.

After being discharged from the hospital, E.C. was detained in a foster home. In

February, the parents told the social worker they preferred that E.C. remain in the foster

home rather than be moved to C.H.'s home. In March, the social worker asked C.H. if he

was interested in visiting E.C. and if he wished to be considered for placement. C.H. said

he wanted to visit. He said he could not care for E.C. at that time, although he did not

want E.C. and the siblings to be separated. C.H. said that if the parents did not reunify,

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he wished to be considered for placement at that point. C.H. said he would schedule an

appointment to be fingerprinted, a prerequisite for visitation.2

In April 2011, the court entered true findings on the petition, ordered E.C. placed

in foster care and ordered reunification services for the parents. In May, C.H. asked the

social worker about the possibility of E.C. being placed with him. The social worker

asked if C.H. was willing to be the relative caregiver and explained what that meant.

C.H. said he would be willing to have E.C. placed in his home, but he needed to know

ahead of time because it would be different than having school age children. Also in

May, Carlos held a machete to the throat of the family cat while one of the siblings was

having an unsupervised visit. During the ensuing child welfare investigation, C.H.

delayed contact between the social worker and the siblings.

In August 2011, C.H. left a voice mail message for the social worker, stating that

he had talked to Carlos and that E.C. should be in C.H.'s home. In September, C.H.

refused to be fingerprinted, explaining that he had been cleared when the siblings were

placed with him. The social worker told C.H. he would have to be fingerprinted again in

order to be considered for E.C.'s placement. In November, M.C. reported that C.H. was

drunk and had locked the siblings out of the home.

By January 2012, E.C. had been in foster care for approximately one year. During

that time, except for C.H.'s inquiries, no relatives had come forward who were

appropriate for placement and who had expressed an interest in placement and a

2 There is no indication in the record that C.H. ever arranged to be fingerprinted in
2011.
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willingness to submit to a background check. On January 4, at the six-month review

hearing, the court terminated reunification services and set a section 366.26 hearing.

Because no relatives were available for placement, that day E.C. was placed in a

concurrent planning foster home. E.C. remained in the foster home for the rest of the

case, and his foster mother became his de facto parent.

On January 25, 2012, the social worker asked C.H. for assistance in notifying

Carlos of the section 366.26 hearing. C.H. asked why he had not been called regarding

placement and said, "I need to step in. The baby should not be with strangers." On

February 16, the social worker called C.H. to discuss relative placement. C.H. said "he

would step in, if nobody else did." C.H. said that having E.C. "in his home would be a

big change and that he would have to talk about it more with his fiancé[e]." On February

29, the social worker called C.H. again. C.H. said that no one had contacted him about

placement before E.C. was placed in foster care and "it would be best if [E.C.] was

placed with relatives." The social worker said she would interview C.H. by telephone the

next day to start the home evaluation process. On March 1, she interviewed him and

submitted a request for a relative home assessment. On March 12, M.C. told the social

worker she wanted E.C. placed with C.H.

In March 2012, the Agency's adoptions manager "denied" C.H.'s home evaluation,

citing his criminal and child welfare history and his lack of judgment in allowing the

siblings unsupervised contact with the parents. Between 1998 and 2003, C.H. was

charged three times with driving under the influence. The first two cases were dismissed;

the third charge, driving under the influence with bodily injury, resulted in a

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misdemeanor conviction and a sentence of five days in jail and five years' probation. In

November 2010, C.H.'s former girlfriend obtained a restraining order after receiving

numerous threatening, abusive and nonsensical text messages from him. The restraining

order is set to expire in November 2015.

On May 25, 2012, C.H. filed a grievance in response to the denial of his home

evaluation. On June 29, an Agency director reversed the denial. On July 10, C.H. called

the Agency and said he was willing to adopt E.C. On July 19, the social worker

discussed with C.H. the Agency's concerns regarding his past decisions to allow the

siblings frequent unsupervised contact with the parents despite his awareness of the

parents' problems.

In August 2012, Carlos filed his section 388 petition. On September 24, the court

denied the petition. On September 25, the court terminated parental rights.

CARLOS'S SECTION 388 PETITION

Section 388 allows the juvenile court to modify an order if a party establishes, by a

preponderance of the evidence, that changed circumstances exist and the proposed

modification would promote the child's best interests.3 (In re Zachary G. (1999) 77

Cal.App.4th 799, 806.) When a case is past the reunification phase, the focus is on the

child's need for permanency and stability, and there is a rebuttable presumption that it is

3 In the instant case, the parties stipulated that the approval of C.H.'s home for
placement constituted changed circumstances. The court accepted the stipulation. Thus,
we address only the best interests aspect of section 388.
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in the child's best interests to remain in the current placement. (In re Stephanie M. (1994)

7 Cal.4th 295, 317.)

We review the denial of a section 388 petition for abuse of discretion. (In re

Jasmon O. (1994) 8 Cal.4th 398, 415.) Thus, we will not reverse unless the juvenile

court's decision was " ' "arbitrary, capricious, or patently absurd" ' " (In re Stephanie M.,

supra, 7 Cal.4th at p. 318) and " 'exceeded the bounds of reason' " (id. at pp. 318-319).

" 'When two or more inferences can reasonably be deduced from the facts, the reviewing

court has no authority to substitute its decision for that of the trial court.' " (Id. at p. 319.)

"We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve

evidentiary conflicts." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) We therefore

accept the juvenile court's finding that the social worker was credible and C.H. was not.

At the time of the hearing, E.C. was nearly two years old and had lived with his

foster mother for nearly nine months. They had developed a strong bond. E.C. viewed

his foster mother as his parent. He had trouble detaching from her to visit the siblings

and was happy to see her at the close of visits. The foster mother had addressed E.C.'s

developmental issues and he was doing well. She wished to adopt him and her home had

been approved for adoption.4 The social worker believed it was in E.C.'s best interests to

remain in the stable, loving home of his foster mother and that removal from the home

"would be a traumatic experience for him." As discussed more fully below, E.C.'s

4 C.H.'s home had not been approved for adoption.
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relationship with the siblings was "not so important [as] to warrant pulling [him] from the

stability he knows so that he can be with his siblings."

C.H. had not formed a relationship with E.C. Although C.H. was aware of this

case from the beginning, he made little or no effort to establish a relationship until it

became apparent that parental rights might be terminated. There is no documentation that

he visited E.C. before June 2012. For more than a year after the commencement of the

case, C.H.'s attitude toward placement ranged from indifference to ambivalence. Only

after E.C. was placed in the concurrent planning foster home did C.H. express an

unequivocal willingness to accept placement. Moreover, there were serious concerns

about C.H.'s ability to protect E.C. on a long-term basis, arising in part from C.H.'s poor

judgment in allowing the siblings to have unsupervised contact with the parents; drinking

and driving; and engaging in behavior that resulted in the still extant restraining order.

C.H. minimized those concerns.

The court did not abuse its discretion in denying Carlos's section 388 petition.5

THE SIBLING RELATIONSHIP EXCEPTION

Section 366.26, subdivision (c)(1)(B)(v) provides an exception to termination of

parental rights when termination would substantially interfere with the child's sibling

5 The Agency argues that the relative placement preference (§ 361.3) did not apply
at the time of the section 388 hearing and asks this court to "provide much needed
guidance regarding" when the preference applies. Carlos does not contend that C.H. was
entitled to placement preference under section 361.3. Carlos merely asserts that section
361.3 is one component of a public policy favoring placement with relatives, and the
policy was an additional factor showing that it was in E.C.'s best interests to be placed
with C.H. On this record, we decline the Agency's request.
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relationship and the severance of the relationship would be so detrimental to the child to

outweigh the benefits of adoption. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-953;

§ 366.26, subd. (c)(1)(B)(v).) The juvenile court must "balance the beneficial interest of

the child in maintaining the sibling relationship, which might leave the child in a tenuous

guardianship or foster home placement, against the sense of security and belonging

adoption and a new home would confer." (In re L.Y.L., at p. 951, citing In re Autumn H.

(1994) 27 Cal.App.4th 567, 575.) Factors to be considered include whether the children

were raised in the same home; whether they shared significant common experiences or

have existing close and strong bonds; and whether ongoing contact is in the child's best

interests, including his or her long-term emotional interests, as compared to the benefits

of adoption. (§ 366.26, subd. (c)(1)(B)(v).) "[T]he application of this exception will be

rare, particularly when the proceedings concern young children whose needs for a

competent, caring and stable parent are paramount." (In re Valerie A. (2007) 152

Cal.App.4th 987, 1014.) Examining the evidence in the light most favorable to the

judgment, we conclude substantial evidence supports the finding the appellants did not

meet their burden of proving the exception.6 (In re L.Y.L., at pp. 947, 952.)

E.C., who was not quite two years old at the time of the hearing, had never lived

with the siblings. Other than visits, E.C. and the siblings did not have shared common

experiences. E.C. was still getting to know the siblings and the relationship had not

developed. The social worker believed E.C. did not have a strong bond with the siblings.

6 The parents and the siblings asserted the exception in juvenile court.
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As discussed above, E.C. and his de facto parent did have a strong bond, and she wished

to adopt him. The relative strength of E.C.'s bonds with the de facto parent and the

siblings was evident at sibling visits. E.C. enjoyed the visits, but had no trouble

separating from the siblings. E.C. had trouble separating from his de facto parent and

was happy to see her when visits ended. Substantial evidence supports the finding that

the benefits E.C. would derive from adoption outweighed any benefits he would derive

from ongoing sibling contact.

The siblings contend the court's finding that E.C. did not share a close relationship

with them was based on the court's mistaken belief that E.C. had only six hours of visits

with the siblings over just a few months. The court stated: "If [C.H.] had [made an effort

to build a relationship with E.C.], if there were a strong relationship with [C.H.] and the

siblings, . . . the evidence might be different in this case. But it's not. There isn't a

relationship there except for six hours of visits over the last few months." It appears that

the court was referring to E.C.'s visits with C.H., not to E.C.'s visits with the siblings.

E.C. had seven visits with C.H. from June to September 2012, and nine visits with some

or all of the siblings during that period.7 Even if the court's statement is ambiguous,

however, this is of no assistance to the siblings. The fact remains that the appellants

failed to meet their burden of showing that severance of the sibling relationship would be

so detrimental to E.C. as to outweigh the benefits he would derive from adoption.

7 The extent of E.C.'s contact with the siblings before June 2012 is unclear. There
were no sibling visits between January and June 2012.
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 Substantial evidence supports the conclusion that the sibling relationship

exception did not apply.

DISPOSITION

The judgment is affirmed.

HALLER, Acting P. J.

WE CONCUR:

MCINTYRE, J.

AARON, J.

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