Filed 8/29/13 In re T.W. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re T.W. et al., Persons Coming Under
the Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,                                            E057845

         Plaintiff and Respondent,                                       (Super.Ct.Nos. J234685 & J234686)

v.                                                                       OPINION

J.F. et al.,

         Defendants and Appellants.



         APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,

Judge. Affirmed.

         Neil R. Trop, under appointment by the Court of Appeal, for Defendant and

Appellant, mother.

         Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and

Appellant, father.
                                                             1
       Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County

Counsel, for Plaintiff and Respondent.

       The children, T.W. and M.W., were removed from the parents’ custody when their

six-year old half sister, C.V., reported being sexually molested by father and her cousin,

in addition to allegations of parental substance abuse and domestic violence. The parents

received services for 23 months. Father completed his services plan but did not address

the sexual abuse allegations. Mother did not complete her service plan and failed to

reveal her mental health issues until shortly before services were terminated, never

addressing those mental health issues. Prior to the hearing pursuant to Welfare and

Institutions Code1 section 366.26, at which parental rights were terminated, father filed a

petition to modify the prior order terminating services (§ 388), which was denied without

a hearing. Both parents appeal.

       On appeal, the parents assert the trial court erred in determining that the parent-

child beneficial relationship exception had not been established. Father also argues

separately that the court erred in denying his section 388 petition. Mother separately

argues for reversal due to the existence of a sibling bond, and because the court failed to

consider the wishes of the children. We affirm.




       1All further statutory references are to the Welfare and Institutions Code, unless
otherwise stated.

                                              2
                                       BACKGROUND

       This dependency originated when C.V., mother’s six-year-old child from a prior

relationship, was taken to the hospital by her maternal grandmother on August 24, 2010.

The maternal grandmother informed the hospital staff that the injury was sustained when

she fell down some stairs a day or so earlier. However, the grandmother was concerned

because the child’s mother used drugs and father, mother’s live-in boyfriend and father of

mother’s two younger children, was abusive. The parents had a prior history with the

San Bernardino Children and Family Services (CFS) agency for various unfounded or

inconclusive allegations.

       The medical examination revealed the vaginal laceration and hymenal oddities,

which were not specific for sexual abuse, but C.V.’s history raised concerns about neglect

and sexual abuse. C.V. was interviewed following the medical examination and

informed the social worker that both her six-year-old cousin T., and her “daddy” (father),

had touched her “down there” at the paternal grandmother’s residence in Newberry

Springs. A detention warrant was obtained from the juvenile court resulting in the

temporary removal of C.V.,2 along with her two younger half-siblings, M.W. and T.W.,

Jr.

       Juvenile dependency petitions were filed with respect to M.W., age four, and

T.W., Jr., age two, alleging that they were at risk of abuse or neglect due to the parents’


       2   C.V. lives with her biological father and is not a part of this appeal.

                                                3
failure to protect due to mother’s substance abuse and ongoing acts of domestic violence

(§ 300, subd. (b)), sexual abuse of C.V. (§ 300, subd. (d)), and the abuse of a sibling.

(§ 300, subd. (j).)

       At the jurisdictional hearing, the juvenile court found that C.V. had been touched

by father but that he had not caused the laceration in her vagina. The court then made

true findings under section 300, subdivisions (b), (d), and (j), as to M.W. and T.W., Jr.

The children were declared dependents, and were removed from their parents’ custody;

the court approved a reunification plan as to M.W. and T.W., Jr., ordering both parents to

participate in it. Father timely appealed the jurisdictional and dispositional findings and

orders. On November 15, 2011, we affirmed the judgment. (In re T.W., et al.; San

Bernardino County Children and Family Services v. T.W. (Nov. 15, 2011, E052867)

[nonpub. opn.].)

       By the time of the six-month review hearing, the parents had complied with some

but not all of their service plans. CFS recommended continuation of reunification

services based on father’s progress reports, although the social worker noted he had never

taken responsibility for the sexual abuse of his stepdaughter. Based on a mediated

agreement and the social worker’s recommendations, the court continued services and

gave CFS authority to liberalize visits.

       During the next review period, the parents failed to make progress to rectify the

problems that brought the family to the attention of CFS and the court, namely, the areas

of substance abuse and sexual abuse. Mother continued to have a substance abuse

                                              4
problem and failed to complete any program. Although father complied with some

services and was engaged in therapy, he continued to deny sexually abusing C.V. Visits

went well and both children were described as bonded to the parents. Nevertheless, CFS

recommended that services be terminated and that a hearing pursuant to section 366.26 be

scheduled.

          The 12-month review hearing was continued in order to obtain a report or letter

from father’s therapist regarding risk factors from the prior sexual abuse reports. Father’s

therapist reported that father had made excellent progress in all of the treatment areas

except the issue of sexual abuse of C.V. However, father’s therapist concluded father

was a low risk for sexual abuse of his children, but would be a high risk if he were to

resume substance abuse. The social worker concluded that the parents, while willing to

complete parts of the service plan, had failed to address the problems that brought the

family to the attention of the court, which were substance abuse and sexual abuse.

          The juvenile court continued the 12-month review hearing a second time to obtain

additional opinions about father’s history, progress, and risk factors. The new hearing

date was also scheduled as an 18-month review hearing. (§ 366.22.) A psychological

evaluation pursuant to Penal Code section 288.1 was prepared, using the actuarial

assessment instruments to determine his potential for reoffending. It concluded that

father was not capable of safely and competently parenting children and presented an

unacceptable risk of reoffense. The father was given an opportunity to obtain another

report.

                                               5
       On May 25, 2012, the court conducted the contested 18-month review hearing. In

his testimony, father denied molesting C.V. and indicated that what he had learned about

sexual abuse from his therapy sessions related to what was considered sexual abuse, such

as kissing the mother or having sex in front of the children. However, father

demonstrated he had successfully completed the other aspects of his reunification plan.

As to mother, the only remaining protection issue was her unwillingness to acknowledge

the sexual abuse findings made by the court.

       At the conclusion of the hearing, the court terminated reunification services to the

parents, but determined that it was not in the best interest of the minors to consider

termination of parental rights. Over the objections of county counsel and the minors’

attorney, the court ordered a Planned Permanent Living Arrangement (PPLA) with the

children in their current placement, with the goal of returning them to mother’s custody.

Reunification services to father were terminated, but mother was to receive services

under the children’s plan. On June 20, 2012, father timely appealed. 3

       On July 23, 2012, at county counsel’s request, the juvenile court reconsidered the

orders made on May 25, 2012, and vacated them, concluding that it lacked authority to

order a permanent plan of PPLA at the section 366.22 hearing. Prior to the hearing, the

social worker filed an interim review report indicating mother had never complied with

the therapy portion of her reunification plan, attending only one session in June 2012,

       3  On August 29, 2012, we issued an order on our own motion that the writ
petition in case No. E056728 would be considered with the appeal in case No. E056529.

                                              6
although she had completed an outpatient substance abuse program. Additionally, the

social worker learned for the first time from mother’s psychiatrist that she suffered from

mental illness in addition to bipolar disorder, namely schizoaffective disorder, which

impaired her parenting ability and put the children at risk for further abuse.

       Mother had not made CFS aware of her mental health issues. The medication

prescribed for mother’s mental illness apparently was ineffective in eliminating the

auditory hallucinations she experienced. Additionally, mother’s behavior at visits

showed poor judgment and lack of empathy for the oldest child, C.V., the victim of the

molestation, in contacting father during the visits and showing the children pictures of

another perpetrator.

       The court granted county counsel’s request to reconsider the prior order and, after

vacating the previous order, it entered a new order terminating reunification services for

both parents, and setting a hearing for the selection and implementation of a permanent

plan pursuant to section 366.26. Both parents filed notices of intent to file extraordinary

writ petitions from the subsequently modified order terminating services and setting the

section 366.26 hearing. As a result of the modification of the prior order, the appeal in

case No. E056529 was dismissed as moot. We denied the petitions on November 7,

2012. (T.W. et al. v. Superior Court (Nov. 7, 2012, E056728) [nonpub. opn.].)

       In the meantime, on September 19, 2012, the social worker informed the court, by

way of packet, that the children had been matched with adoptive parents. CFS began

transitioning the children into the new placement. On September 20, 2012, CFS

                                              7
requested that parental visits with the children be reduced from two, two-hour visits per

week, to one, two-hour visit per month, in order to facilitate bonding with the prospective

adoptive family. The parents objected to this request. On October 2, 2012, the juvenile

court ordered that visits be reduced to one, two-hour visit per week.

       On December 3, 2012, father filed a petition to modify the prior order terminating

services on the ground that he had completed his reunification plan requirements “a long

time ago,” and the children have a strong bond with him. The court summarily denied

the petition without a hearing on the ground it did not allege any new evidence or change

of circumstances.

       The contested section 366.26 hearing was conducted on December 17, 2012.

After considering all the evidence presented, the court found by clear and convincing

evidence that the children were adoptable and that the beneficial parent-child relationship

exception did not apply. The court terminated parental rights to both children. Both

parents appealed.

                                      DISCUSSION

       1.     Summary Denial of Father’s Section 388 Petition Was Proper.

       Father claims that prima facie evidence supported his section 388 petition and that,

consequently, the court erred in summarily denying it. We disagree.

       A juvenile court order may be changed, modified or set aside under section 388 if

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

                                             8
interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.) The parent

bears the burden to show both a legitimate change of circumstances and that undoing the

prior order would be in the best interest of the child. (In re Kimberly F. (1997) 56

Cal.App.4th 519, 529.)

        Generally, the petitioner must show by a preponderance of the evidence that the

child’s welfare requires the modification sought. (In re B.D. (2008) 159 Cal.App.4th

1218, 1228.) The petition is addressed to the sound discretion of the juvenile court, and

its decision will not be overturned on appeal in the absence of a clear abuse of discretion.

(In re Stephanie M., supra, 7 Cal.4th at p. 318; In re S.J. (2008) 167 Cal.App.4th 953,

959.)

        Section 388 petitions are liberally construed in favor of granting a hearing to

consider the request. (In re E.S. (2011) 196 Cal.App.4th 1329, 1340; In re Jeremy W.

(1992) 3 Cal.App.4th 1407, 1413-1414.) However, if the liberally construed allegations

of the petition do not make a prima facie showing of changed circumstances and that the

proposed change would promote the best interests of the child, the court need not order a

hearing on the petition. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) The prima

facie requirement is not met unless the facts alleged, if supported by evidence given

credit at the hearing, would sustain a favorable decision on the petition. (Ibid., citing In

re Edward H. (1996) 43 Cal.App.4th 584, 594.) In such a case, the petition may be

denied without an evidentiary hearing. (In re Marcelo B. (2012) 209 Cal.App.4th 635,

642.)

                                              9
       In his reply brief, father argues that his refusal to admit sexual abuse, standing

alone, is not sufficient to show his circumstances had not changed. His refusal to admit

the allegations was not at issue. What was at issue was his failure to even allege, much

less make a prima facie showing, that his circumstances were changed from the time that

services were terminated. Here, the trial court determined that the petition failed to allege

new evidence or a change of circumstances in summarily denying it. Our review

supports this determination. Father’s own petition alleges that he had fully completed his

court ordered services a long time prior to the filing of the section 388 petition. Father’s

position at the time he filed the petition was the same as his position at the time his

services were terminated, so no change of circumstance was alleged. Having failed to

allege any new circumstances, it cannot be said he made a prima facie showing on that

ground.

       Nor did father present new evidence which would cast doubt on the validity of the

finding of sexual abuse, although he repeatedly refers to his denials of abuse. A parent’s

denial of abuse, after a juvenile court has made a factual finding of sexual abuse, does not

constitute new evidence which would justify a change of the prior order. Father did

present evidence at the combined 12- and 18-month review hearings to support his

assertion he did not pose a serious risk of reoffense, but he did not present evidence

which would undermine the jurisdictional finding (see Blanca P. v. Superior Court

(1996) 45 Cal.App.4th 1738, 1741-1742, where a psychological evaluation exonerated

the father of molestation and concluded he lacked any tendency toward molestation) at

                                             10
the section 388 stage, this does not constitute new evidence which undermines the factual

finding.

       Father relies on the psychologists’ risk assessments—prepared in connection with

the combined 12- and 18-month review hearing—as evidence undermining the true

finding of sexual abuse. However, nothing in those reports raises a question as to the

validity of the true finding that T.W. had sexually abused his step-daughter. In this

significant respect, this case differs from Blanca P. v. Superior Court, supra, 45

Cal.App.4th at page 1753, on which father relies. We realize that true findings for

jurisdiction are made by a mere preponderance of evidence. But father’s personal denial

is insufficient to make that true finding go away. This failure meant that the sexual abuse

allegation, which was a primary cause of the loss of custody, had never been addressed

by father in his reunification plan.

       Because there was no prima facie showing of changed circumstances or new

evidence to support a modification, the summary denial of father’s petition was proper.

       2.     The Parents Failed to Meet Their Burden of Proving that Termination of

Parental Rights Would Be Detrimental Due to a Beneficial Parent-Child Relationship.

       Both parents argue that the juvenile court erred in terminating their parental rights

in light of a beneficial parent child relationship. We disagree.

       Section 366.26, subdivision (c)(1), provides that if the court determines, based on

the [adoption] assessment and any other relevant evidence, that it is likely the child will

be adopted, the court shall terminate parental rights and order the child placed for

                                             11
adoption, unless one of several statutory exceptions applies. Once the court determines a

child is likely to be adopted, the burden shifts to the parent to show that termination of

parental rights would be detrimental under one of the exceptions listed in section 366.26,

subdivision (c)(1)(B). (In re Zachary G., supra, 77 Cal.App.4th at p. 809, citing In re

Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) We must affirm a trial court’s

rejection of the exceptions if the ruling is supported by substantial evidence. (Zachary

G., at p. 809.)

       One such exception applies when the court finds a compelling reason for

determining that termination would be detrimental to the child because the 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).) This exception applies only

when the relationship with a natural parent 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.) The

determination of whether a beneficial parent-child relationship exists is reviewed for

substantial evidence. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)

       The juvenile court found that the parents had met the first prong by maintaining

regular contact and visitation. But it concluded that the parents had not demonstrated that

maintaining the parent-child relationship was such a benefit to the children as would

outweigh the benefit of adoption. Thus, we will focus our inquiry on the second prong of

the exception, whether the children would benefit from continuing the relationship.

                                             12
       Evolving case law began with the premise that a parent’s “frequent and loving

contact” with the child is not enough to sustain a finding that the exception would apply,

when the parents “had not occupied a parental role in relation to them at any time during

their lives.” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) However,

recognizing the practical difficulty of establishing a parental role when a child has been

removed from the home, current decisions hold that to determine if the parents have

occupied a parental role, it is not necessary for a parent to show day-to-day contact and

interaction. (In re S.B. (2008) 164 Cal.App.4th 289, 299; In re Casey D. (1999) 70

Cal.App.4th 38, 51.) As the court observed in In re S.B., supra, if that were the standard,

the rule would swallow the exception. (Ibid.) Therefore, we do not look for proof of

day-to-day contact or interaction.

       Instead, the court determines whether the parent has maintained a parental

relationship, or an emotionally significant relationship, with the child, through consistent

contact and visitation. (In re S.B., supra, 164 Cal.App.4th at pp. 298, 300-301.) To

overcome the preference for adoption and avoid termination of the natural parent’s rights,

the parent must show that severing the natural parent-child relationship would deprive the

child of a substantial, positive emotional attachment such that the child would be greatly

harmed. (In re Angel B. (2002) 97 Cal.App.4th 454, 466 [italics in original], citing In re

Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)

       The factors to be considered when looking for whether a relationship is important

and beneficial are: (1) the age of the child, (2) the portion of the child’s life spent in the

                                              13
parent’s custody, (3) the positive or negative effect of interaction between the parent and

the child, and (4) the child’s particular needs. (In re Angel B., supra, 97 Cal.App.4th at p.

467; see also In re Bailey J., supra, 189 Cal.App.4th at p. 1315.)

       The social worker’s reports demonstrate that the children had a bond with their

parents, and enjoyed visitation with their parents. But this does not compel a conclusion

that the parent-child relationship is so significant that severance would be detrimental.

The children were in foster care for a significant portion of their young lives (for one-

third of M.W.’s life, and one-half of T.W.’s life), and there is no evidence they looked to

their parents for comfort or for their basic needs.

       On the other hand, the social worker’s reports reveal the children looked to their

adoptive parents for comfort, affection, guidance and direction, that the children called

the adoptive parents mommy and daddy, and referred to the adoptive family’s home as

their own home. The parents failed to establish that maintaining the parent-child

relationship would benefit the children such that severance of the relationship would be

detrimental.

       There was other evidence supporting the conclusion that adoption would not be

detrimental. First, mother’s unstable mental health condition, never addressed during the

reunification phase, supports the judge’s conclusion that maintaining a relationship with

her would not outweigh the benefit the children would gain from the permanence and

stability of the adoptive home. Because of her mental illness, she could not even recall

missing several visits, insisting that she had been there. She acknowledged in her

                                             14
testimony at the section 366.26 hearing that her mental health condition causes her to

forget dates, times and events. Because of this unresolved problem, the benefit of

maintaining a relationship with mother would not outweigh the permanence and security

that adoption would provide.

       Second, father’s unresolved sexual abuse issue compelled a conclusion that the

benefit of maintaining a relationship with him did not outweigh the benefit the children

would gain from the permanence and stability of the adoptive home. The juvenile court

properly found that the beneficial parent-child relationship exception did not apply.

       3.       Mother Failed to Preserve Any Issue Challenging the Court’s Alleged

Failure to Consider the Wishes of the Children or the Sibling Relationship Exception.

       Mother argues, for the first time on appeal, that the adoption assessment failed to

indicate the children’s views on adoption and that the juvenile court’s finding of

adoptability failed to consider the wishes of the children.4 In a separate argument,

mother claims the children were not adoptable because of the sibling bond exception.

Mother has forfeited these claims.

                a.     Forfeiture

       Mother’s argument that adoptability assessment fails to include information about

the children’s understanding of and views about being adopted, was not raised in the trial

court, so it is forfeited. (In re A.A. (2008) 167 Cal.App.4th 1292, 1317; In re Brian P.


       4    Father joined these arguments.

                                             15
(2002) 99 Cal.App.4th 616, 623.) Further, neither parent argued at the hearing that the

court failed to consider the wishes of the children, or requested that the children be

required to testify at the hearing. (See In re Amanda D. (1997) 55 Cal.App.4th 813, 819-

820.) Thus, any challenge to the court’s finding that it had considered the best interests

of the children is limited to a substantial evidence review.

       In her reply brief, mother asserts that the failure to obtain a statement from the

minors as to their views of adoption resulted in an insufficient body of evidence to

support the court’s judgment as to the appropriate permanent plan. We disagree. The

court’s selection of adoption as the appropriate permanent plan is based on clear and

convincing evidence that the children are adoptable. That finding in this case is

unaffected by any failure to ask the children how they felt about adoption. Nevertheless,

because the issues fail on the merits, we address them briefly.

              a.      The Children’s Wishes

       Section 366.26, subdivision (h)(1), provides that “[a]t all proceedings under this

section, the court shall consider the wishes of the child and shall act in the best interests

of the child.” The section does not require the presence of the child in court unless the

child, or the child’s counsel, so requests and the court orders. (§ 366.26, subd. (h)(2).)

       Evidence of the children’s wishes need not be in the form of direct testimony in

court or chambers; it may be found in court reports prepared for the hearing. (In re

Amanda D., supra, 55 Cal.App.4th at p. 820; see also In re Christopher L. (2006) 143

Cal.App.4th 1326, 1334.) The court is not required to specifically ask the child how he

                                              16
or she feels about ending the parental relationship. (Amanda D., at p. 820, citing In re

Leo M. (1993) 19 Cal.App.4th 1583, 1593.) The court must only consider the child’s

wishes to the extent those wishes are ascertainable, since a child may not be able to

understand the concept of adoption. (In re Joshua G. (2005) 129 Cal.App.4th 189, 201,

citing In re Juan H. (1992) 11 Cal.App.4th 169, 173.)

       Here, the children were only six and four years old at the time of the hearing, and

the social worker reported that they were too young to understand the concept of

adoption. This conclusion was unchallenged at the hearing. The report, prepared a

month before the hearing, goes on to state that the children viewed the prospective

adoptive parents as their parental figures and the adoptive home as their home. This was

sufficient to communicate the children’s wishes where both children expressed

contentment in the adoptive home and a parental relationship with the adoptive parents.

       This evidence was not undermined by mother’s testimony that the children

expressed a desire to come home with her, because her inability to recall events

accurately rendered her testimony unreliable. The only recent, reliable information about

the children’s wishes was found in the social worker’s report. Substantial evidence

supports the court’s conclusion that the wishes of the children had been considered in

finding that they were adoptable.

              b.     Sibling Exception

       Mother’s final argument is that the judgment terminating her parental rights as to

both children must be reversed because of the close bond between the children, and refers

                                            17
to the sibling bond exception to a finding of adoptability. She does not assert that their

adoption would interfere with their relationship to C.V., their older half-sister.

       The parent has the burden of establishing an exception to termination of parental

rights. (In re Daisy D. (2006) 144 Cal.App.4th 287, 291.) During the hearing, neither

mother nor her counsel argued the applicability of this exception. (Ibid.) There is no sua

sponte duty on the part of the court to determine whether the sibling exception to

adoptability applied. (Id. at p. 292.) Absent such a duty, mother’s failure to raise the

exception at the section 366.26 hearing forfeits the issue for purposes of appeal. (Ibid.)

       In any event the children had been placed together during the entire dependency

period, were placed together in an adoptive home by adoptive parents who plan to adopt

both of them. Adoption would not significantly interfere with their relationships with

each other.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 RAMIREZ
                                                                                           P. J.

We concur:


KING
                           J.


MILLER
                           J.

                                             18
