Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK62863 Valerie Skeba, Referee (pursuant to Cal. Const., art. VI, § 21).
Janice A. Jenkins, under appointment by the Court of Appeal, for Objector and Appellant Eduardo R.
Marissa Coffey, under appointment by the Court of Appeal, for Appellant Antonio M.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Eduardo R. (father) and Jessica M. (mother) are the parents of nine-year-old Antonio M., eight-year-old Samantha M., four-year-old Luz M., three-year-old Esmeralda M., one-year-old Jacob M., and nine-month-old Viviana. Father and Antonio appeal from the termination of father’s parental rights pursuant to Welfare and Institutions Code section 366.26. Father contends that the juvenile court erred in failing to determine the wishes of Samantha, Luz, Esmeralda, and Jacob before terminating parental rights; the juvenile court violated his due process rights by not permitting him to call Samantha as a witness; and the juvenile court erred in failing to find the sibling relationship exception to the termination of parental rights. Antonio contends that the juvenile court erred in failing to grant a continuance to allow Samantha to be brought to court to testify and the juvenile court erred in failing to find the sibling relationship exception to the termination of parental rights. Father and Antonio join each other’s arguments. We affirm.
Mother has not appealed the juvenile court’s orders. Viviana is not a subject of the dependency proceedings at issue on appeal.
All statutory citations are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
On March 29, 2006, the Los Angeles County Department of Children and Family Services (Department) filed a section 300 petition with respect to Antonio, Samantha, and Luz, after mother tested positive for methamphetamine following Luz’s birth. Pending detention, Antonio and Samantha were placed with Maria M., maternal grandmother, and Luz was placed with a foster parent. The Department’s March 27, 2006, Detention Report states that father was married to maternal grandmother until January 2006, that mother and father engaged in an “ongoing inappropriate sexual relationship” while father was mother’s stepfather, and that mother and maternal grandmother “shared the same man for a considerable amount of time while living in the same home and after.” Mother was 17 years old when Antonio was born. Samantha was born shortly after mother turned 18 years old. The Department deemed maternal grandmother unfit to care for the children because father was the second of maternal grandmother’s husbands to have molested mother, and maternal grandmother had a long history with the Department, a history of drug and alcohol abuse, and a substantial criminal history. At the March 29, 2006, detention hearing, the juvenile court ordered the Department to remove Antonio and Samantha from maternal grandmother’s care and place them with Luz in foster care.
According to mother, she began having consensual sexual intercourse with father, her then step-father, when she was 16 years old.
According to the Detention Report, mother admitted “using” for about a year. Mother stated that she did not know she was pregnant until she was tested about one and a half months before she was due to deliver her baby. Notwithstanding the knowledge that she was pregnant, mother continued to use drugs for another three weeks. Mother had a history of drug abuse, arrests, and child-abuse referrals. Father admitted a history of marijuana use and an arrest history.
The Detention Report states that in March 2003, an emotional abuse referral was substantiated concerning ongoing domestic violence between mother and father and a “hostile love triangle” between father, mother, and maternal grandmother after maternal grandmother discovered the affair between her husband and her daughter. Mother allegedly brandished a knife at father because he went to her house and tried to force her to have sex with him. Mother and father fled before the Department could provide the family with services.
On July 19, 2006, the juvenile court declared the children to be dependents of the juvenile court under section 300, subdivision (b), based on mother’s history of and current substance abuse and the history of domestic violence involving father, mother, and maternal grandmother. The juvenile court ordered the children removed from parental custody and ordered family reunification services for both parents.
The Department’s January 17, 2007, Status Review Report states that Antonio, Samantha, and Luz were placed with Martha C. Mother was reported to be six months pregnant. The Department’s July 31, 2007, Status Review Report states that mother gave birth to Esmeralda in April 2007. Esmeralda remained in the parents’ home. In its August 16, 2007, 15 Day Review Report, the Department recommended that Antonio, Samantha, and Luz be placed in the parents’ home. The juvenile court granted the Department’s recommendation, placing the children with the parents.
In a February 14, 2008, Information for Court Officer, the Department informed the juvenile court that mother had tested positive for amphetamines/methamphetamine and recommended that the children be detained. The Department’s February 14, 2008, Status Review Report states that mother had not been drug testing. The juvenile court ordered Antonio, Samantha, Luz, and Esmeralda detained and placed them together in foster care.
On February 20, 2008, the Department filed a section 300 petition on behalf of Esmeralda alleging mother’s history of and current substance abuse and the history of domestic violence involving father, mother, and maternal grandmother. The Department also filed a supplemental section 387 petition on behalf of Antonio, Samantha, and Luz, based on mother’s drug relapse. On March 26, 2008, the Department filed an amended section 300 petition on behalf of Esmeralda and a supplemental section 387 petition on behalf of Antonio, Samantha, and Luz alleging that father was unable to provide the children with ongoing care and supervision due to father’s unstable housing situation.
On April 29, 2008, the juvenile court sustained the petitions. An Information for Court Officer stated that mother was pregnant again. The juvenile court ordered no family reunification services and set the matter for a section 366.26 hearing.
In November 2008, Jacob was born. On November 12, 2008, the Department filed a section 300 petition on behalf of Jacob after mother tested positive for amphetamine, methamphetamine, and opiates the day after Jacob was born. Jacob was detained and the children were placed with paternal cousin Y.R. The juvenile court subsequently ordered that the children were not to be separated.
On January 22, 2009, the Department filed a section 387 supplemental petition with respect to Antonio because Y.R. was unwilling and unable to provide Antonio with ongoing care and supervision. Y.R. requested that Antonio be removed from her home and care due to Antonio’s behavior. The Department’s Detention Report states that Antonio began to exhibit “sexual acting out behavior” with respect to his younger sisters soon after he was placed in Y.R.’s home. On January 12, 2009, the Child Abuse Hotline received a referral that alleged that Antonio had been sexually acting out with two-year-old Luz. The referral further alleged that Antonio had been a victim of sexual abuse by an unknown perpetrator.
According to the Detention Report, Antonio disclosed to Y.R. that in their prior foster homes, he had been touching Luz inappropriately. Luz was reported to be afraid of Antonio. According to Y.R., Samantha “‘hates’” Antonio and did not want to be around him. Y.R. questioned all of the verbal children in the home and all denied abuse by Antonio.
Y.R. told the social worker that she initially intended to adopt all of the children, but had rethought the matter and only wanted to adopt Jacob. Samantha told the social worker that she liked living in Y.R.’s home and did not want to leave. Samantha stated that she did not like Antonio because he hit her, pushed her, and lied. Samantha denied that Antonio had ever touched her inappropriately, but stated that he touched Luz and Esmeralda inappropriately. Samantha stated that she was afraid of Antonio because, during a fight, he told her that “‘he is going to cut me with a knife and I’ll die.’”
The social worker interviewed Y.R.’s seven-year-old daughter Michelle. Michelle stated that she did not feel safe at home because Antonio was a “little pervert” and acted inappropriately toward Luz. Michelle stated that Antonio had not touched her inappropriately. Michelle stated that she was afraid that Antonio was going to hurt Samantha because he was mean to Samantha and tried to hit her “all the time.”
Y.R. would not allow Antonio to be alone with his younger siblings and moved all of the children’s toys out of the bedrooms and into the living room to “prevent a situation.” Antonio had a “no close door” policy in Y.R.’s home. Y.R. attempted to teach Antonio that his behavior was inappropriate and to teach him about boundaries and respecting other people’s bodies.
The social worker interviewed Antonio. Antonio told the social worker that he had something to tell her. Antonio then disclosed that he had touched Luz inappropriately. Antonio explained that when he was four years old, he was watching television while father was in the shower and saw “‘a boy and a girl and they took off their clothes, began kissing and started humping, so I thought it was OK.’” Antonio denied that anyone had ever touched him, kissed him, or “humped” him in this manner. Antonio also denied touching any of his other siblings inappropriately. “Antonio stated that there is something wrong with his head that tells him to do these things and he does not want to do them any more because he knows that it is wrong now.” Antonio promised to stop touching others inappropriately.
On January 16, 2009, Antonio was removed from Y.R.’s home and placed with Maria C., an experienced foster mother who had dealt with children who had gone through the “same issues” as Antonio. The Department’s February 17, 2009, Jurisdiction/Disposition Report states that Antonio appeared to be adjusting well to Maria C.’s home. The Report states, however, that Antonio was not then able to reside safely with his siblings. Antonio’s current placement could meet Antonio’s extensive needs.
On March 21, 2009, Samantha, Luz, Esmeralda, and Jacob were placed in the home of Mr. and Mrs. R., nonrelated extended family members, after Y.R. stated that she could not care for the children any longer. The Department’s July 6, 2009, Status Review Report states that Samantha did not want to visit with her parents or Antonio. When told of such visits, Samantha reportedly began to cry and became very anxious and defiant. Samantha told the social worker that she felt “angry” when she visited with Antonio and her parents. Asked what made her feel angry, Samantha stated that she did not want to see Antonio or her parents. Samantha also disliked being in the car for the time it took to travel to the San Fernando Valley for visits. Samantha was afraid of being replaced, and it appeared that she was afraid she would be left in the San Fernando Valley when she visited. During a May 16, 2009, visit, Samantha remained seated next to maternal grandmother while mother played with Antonio, Luz and Esmeralda. During a July 10, 2009, visit, Samantha smiled and said “hi” to Antonio.
A June 26, 2009, report from Hathaway-Sycamores Child and Family Services stated that Antonio began receiving therapeutic services on April 16, 2009, and that he had attended 11 individual sessions with his therapist. Antonio’s progress was reported to have been gradual and stable as he worked toward using coping skills to manage feelings of loss, anger, resentment, and sadness associated with changes within the “family dynamic, ” past trauma, and placement in several foster homes.
On July 7, 2009, the juvenile court appointed Dr. Alfredo Crespo, Ph.D., under Evidence Code section 730, to assess Antonio’s progress in therapy and to make a recommendation as to whether Antonio could safely reside with his siblings or other children. Dr. Crespo’s September 8, 2009, report states that Antonio’s current foster mother described Antonio’s sex-related behavior as “much improved” after Antonio began taking psychotropic medication in early July 2009. Previously, Antonio had behaved inappropriately in the foster home and lied about it. Antonio reported that in a previous foster home, a taller boy had touched his “private.”
Dr. Crespo stated that the psychotropic medications were not likely to have caused the change in Antonio’s behavior. Dr. Crespo opined that Antonio’s history of sexual acting out might stem from early exposure to adult material and/or inappropriate sexual contact with another youth in foster care. Dr. Crespo stated that it was impossible to rule out the possibility that Antonio would resume his acting out behavior. However, the fact that Antonio responded well to medication and/or counseling and his placement with an experienced foster mother suggested that Antonio might then pose a lower degree of risk to his siblings, if placed with them, than he did previously. Dr. Crespo added, however, that without greater knowledge of the prospective adoptive mother’s ability to meet Antonio’s special, emotional needs, “the extent of risk [Antonio] may pose to his younger sisters cannot be presently ruled out.” Dr. Crespo concluded that Antonio might benefit from continued treatment.
The Department’s August 6, 2009, Status Review Report states that Samantha’s behavior in the R.’s home had improved. Samantha appeared to be happy and her appetite had increased. Samantha reported that she was doing “good.” Samantha read books and kept busy playing with other children.
On September 9, 2009, the juvenile court ordered the Department to “look into” overnight visits for Antonio with his siblings, and to investigate placing Antonio with his siblings. On November 4, 2009, the adoptive home study for Samantha, Luz, Esmeralda, and Jacob was approved.
In the Department’s November 6, 2009, Section 366.26 Report regarding Jacob, the Department stated that is was “exploring the possibility of Antonio having overnight visits with his siblings” but that Jacob’s prospective adoptive parent did not feel ready to handle Antonio’s extensive needs. In order to assure healthy contact between Antonio and his siblings, the Department planned to continue working with Antonio’s therapist on a plan that would assure child safety and healthy contact.
The Department’s November 6, 2009, Status Review Report states that Samantha, Luz, Esmeralda, and Jacob were thriving in the R.’s home. Samantha was reported to have adjusted to her prospective adoptive home and to have benefited significantly from therapy. Samantha enjoyed reading and school and was eager to learn new things. Attached to the Status Review Report was an October 16, 2009, case plan update in which Samantha was reported to have stated that she liked living at the R.’s home and liked playing with her many cousins. The caregiver reported that Samantha was eating and sleeping well and adjusting slowly to her home. Luz, Esmeralda, and Jacob all were reported to be thriving and growing in their placements with the R.’s., but to be too young to comment on their placements. Also attached to the Status Review Report was an October 20, 2009, report from Hathaway-Sycamores Child and Family Services that states that Antonio had consistently attended his scheduled appointments and reportedly had “made significant progress in managing his behaviors, by increasing his ability to maintain boundaries, to exhibit good judgment, and to display positive interactions among peers and adults a like.”
Antonio visited his siblings four times from May to September 2009. The Department’s January 6, 2010, last Minute Information for the Court states that Antonio did not visit with his siblings in November and December because Mrs. R. had difficulty transporting all four siblings the long distance to the visit site. The R.’s were reported to be committed to maintaining birth family contact, including with Antonio, as long as such contact was appropriate.
In December 2009, mother gave birth to Viviana. The juvenile court detained the baby with the R.’s.
In a March 8, 2010, Last Minute Information for the Court, the Department reported that the family visited at a McDonald’s on March 6, 2010. Antonio appeared to be very happy to see his siblings and hugged Samantha, Luz, and Esmeralda. Luz and Esmeralda sat next to Antonio, who helped his younger sisters by cutting their pancakes and adding syrup. Antonio also shared his orange juice with Esmeralda and Luz. Antonio and Samantha played together for about half an hour. The children appeared to enjoy the visit. At the end of the visit, Antonio kissed and hugged his siblings.
In a second March 8, 2010, Last Minute Information for the Court, the Department reported that the children and their caregivers had entered into a post adoption contact agreement. Under the agreement, the siblings would have one three-hour monthly visit, Antonio could call his siblings as often as he wanted as long as the calls were made prior to 9 p.m., the siblings would have the opportunity to mail special occasion cards and pictures to one another, the siblings would have the opportunity to give one another gifts on birthdays and other appropriate occasions, and the caretakers would discuss and arrange increased sibling contact if such contact would be appropriate and beneficial.
On March 18, 2010, the juvenile court held a trial under section 366.26. The juvenile court received the following evidence: the Department’s November 6, 2009, Status Review Report; January 6, 2010, Section 366.26 Report; January 6, 2010, Last Minute Information for the Court report; March 8, 2010, Section 366.26 Report; and the two March 8, 2010, Last Minute Information for the Court reports. The juvenile court also received in evidence the Department’s January 7, 2009, Detention Report and February 17, 2009, Jurisdiction/Disposition Report relating to Antonio’s removal from the Y.R.’s home and separation from his siblings.
At the trial, father testified that before Antonio had been replaced eight months prior, Antonio had always lived with his siblings. Father testified about his visits with his children. Father testified that Antonio played with his siblings and that Antonio cried at the conclusion of the visits because he wanted to go with his sisters. According to father, Samantha told him that she missed Antonio and wanted the family to be reunited, but did not cry at the end of visits. Father testified that he believed that it was safe for Antonio to live with his sisters.
Antonio actually was placed with Maria C. on January 16, 2009, about 14 months prior to the trial.
After the conclusion of the trial and argument by the parties, the juvenile court stated that there was no basis to believe that Mrs. R. would not allow sibling visits to continue and, even though the children would reside in separate homes, there was no basis to believe that the sibling relationships would not continue. The juvenile court found that the need for permanency for the children outweighed the benefits in continuing the sibling relationship. The juvenile court found that Antonio was not adoptable and ordered long-term foster care as Antonio’s permanent plan. The juvenile court terminated mother’s and father’s parental rights over Samantha, Luz, Esmeralda, and Jacob and placed the children in the Department’s care, custody, and control for adoption planning and placement.
As noted in footnote 1, above, Viviana was not a part of the proceedings.
DISCUSSION
I. The Juvenile Court Properly Exercised Its Duty To Consider The Wishes Of Samantha, Luz, Esmeralda, And Jacob Pursuant To Section 366.26, Subdivision (h)
Father and Antonio contend that the order terminating parental rights must be reversed because the juvenile court erred in failing to ascertain how Samantha, Luz, Esmeralda, and Jacob felt about adoption. Father and Antonio further contend that the juvenile court violated their due process when it denied their request to cross-examine Samantha and abused its discretion when it denied a continuance to allow Samantha to testify. We disagree.
A. Background
At the section 366.26 hearing, father testified that Samantha told him that she missed Antonio and wanted the family to be reunited. Based on father’s testimony, father’s attorney requested a continuance, stating that he wanted to cross-examine Samantha. The juvenile court denied the request, stating that Samantha “has a lawyer here to represent her position. So I don’t believe that testimony of an eight year old is absolutely necessary. Furthermore, the children reside quite some distance away. So the logistics of getting them here is very difficult.”
Father’s counsel suggested that Samantha could testify by telephone. The juvenile court responded that it is hard to take the testimony of an eight year old and Samantha had an attorney in court who was ready and willing to make Samantha’s position known to the court. Father’s counsel stated that he did not know if Samantha’s counsel had had an opportunity to discuss the matter with Samantha. Samantha’s counsel, who also represented Luz, Esmeralda, and Jacob, stated, “Your Honor, obviously, most eight year olds at this stage-many of them want to go home. That really isn’t the issue for the Court. So I don’t know what [father’s counsel] intends to elicit that would be relevant... to this stage of proceeding.”
Father’s counsel stated that he would cross-examine Samantha about her reported desire to live with mother and Antonio. The juvenile court responded, “All right. That’s a factor. That’s not the determinative factor. And, frankly, it’s a credibility issue with respect to what father is saying.” Apparently referring to the issue of father’s credibility, father’s counsel stated, “That’s why I’m asking to cross-examine the child.” Antonio’s counsel joined the request to cross-examine Samantha. The juvenile court denied the request.
Soon thereafter, father’s counsel noted his objection to not being able to cross-examine Samantha. Antonio’s counsel joined the objection, stating “I don’t believe that her attorney has talked to her about these particular issues. That’s my understanding.” The juvenile court inquired, “Are you suggesting that her attorney hasn’t done her job?” Antonio’s counsel responded, “No. I just-she said she hadn’t talked to her in the past couple days. And I don’t think she talked to her about the information that we heard today, I don’t believe.” The juvenile court stated, “Well, I have confidence that [Samantha’s counsel] understands the legal requirements at a.26 hearing and that she has talked to her clients, as any other attorney would, and, furthermore, that she will act not only in what-well, what they are asking for is one thing. What’s in their best interests is another thing. [¶] So the request for a continuance is denied unless minors’ counsel-that is, counsel for Samantha, Luz, Esmeralda-believes that she needs more time to prepare.” Counsel for Samantha, Luz, Esmeralda, and Jacob stated that she did not need additional time to prepare.
At the conclusion of the trial, Samantha’s attorney argued against application of the parental visitation exception in section 366.26, subdivision (c)(1)(B)(i) and the sibling relationship exception. Samantha’s attorney argued, “regardless of Samantha’s desire or not, which is not clear at all at this time-it’s not the information that I have, and it has never been the information before this Court-regardless of that, the situation which occurred in January of ’09 with Antonio would militate against any kind of placement of the children together as not being in her best interests.”
B. Relevant Legal Principles
1. Section 366.26, subdivision (h)(1)
Section 366.26, subdivision (h)(1) provides, “At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child.” This statute imposes a “mandatory duty on the courts to ‘consider the child’s wishes to the extent ascertainable’” before terminating parental rights under section 366.26. (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591 [applying former subd. (g)].) Section 366.26, subdivision (h) does not require that a minor’s wishes be presented through the minor’s oral testimony at the termination hearing. (In re Jesse B. (1992) 8 Cal.App.4th 845, 847 [applying former subd. (g)].) The requirement that the juvenile court consider a child’s wishes is satisfied if there is information before the juvenile court that provides evidence of the child’s feelings from which the juvenile court can infer the child’s wishes regarding the relevant issues. (In re Leo M., supra, 19 Cal.App.4th at p. 1592.)
The statement of a child’s wishes “‘may take the form of direct formal testimony in court; informal direct communication with the court in chambers, on or off the record; reports prepared for the hearing; letters; telephone calls to the court; or electronic recordings.’ [Citation.]” (In re Leo M., supra, 19 Cal.App.4th at p. 1591, fn. omitted.) A child’s attorney, arguing the child’s position, can satisfy the requirement of section 366.26, subdivision (h). (See In re Jesse B., supra, 8 Cal.App.4th at p. 853.) The decision in a termination action whether to require a direct statement from the minor regarding his or her thoughts about termination is left to the sound discretion of the juvenile court, considering such factors as the child’s age, maturity level, or whether addressing such an issue would traumatize the child. (In re Leo M., supra, 19 Cal.App.4th at p. 1592; In re Jesse B., supra, 8 Cal.App.4th at p. 853.)
In In re Jesse B., the court of appeal, citing section 317, subdivision (e), stated, “We must assume in the absence of record evidence to the contrary that [the minor’s] counsel complied with the code’s mandate and consulted, to the extent feasible, with his young client before urging the juvenile court to terminate parenthood. Accordingly, the juvenile court could properly conclude the little boy-assuming he had the capacity to reason and form an intelligent preference-did not have a contrary wish. [Citation.]” (In re Jesse B., supra, 8 Cal.App.4th at p. 853.)
Section 317, subdivision (e) provides:
Here, Samantha, Luz, Esmeralda, and Jacob were all represented by one independent counsel who had a duty, under section 317, subdivision (e), to represent the children’s interests. Because Samantha was over four years old, counsel also had a duty to ascertain and present to the juvenile court Samantha’s wishes. (Ibid.; In re Jesse B., supra, 8 Cal.App.4th at p. 853.) We assume, in the absence of evidence in the record to the contrary, that the children’s counsel discharged her duties under section 317, subdivision (e). (In re Jesse B., supra, 8 Cal.App.4th at p. 853.) Based on counsel’s argument for termination of parental rights, the juvenile court properly could conclude that the children did not want a contrary outcome. (Ibid.)
Whether or not Samantha’s counsel discharged her obligation under section 317, subdivision (e) based on her request to terminate parental rights, the record reflects that counsel spoke with Samantha concerning Samantha’s wishes and communicated those wishes to the juvenile court. When Antonio’s counsel objected to not being able to cross-examine Samantha and asserted her belief that Samantha’s counsel had not spoken with Samantha about Samantha’s wishes, the juvenile court stated its confidence that Samantha’s counsel knew the legal requirements of a section 366.26 hearing and had spoken with her clients. The juvenile court then offered Samantha’s counsel a continuance if she needed more time to prepare – i.e., to discharge her duties under section 317, subdivision (e). Samantha’s counsel represented that she did not need additional time to prepare. The juvenile court was justified in inferring from that representation that Samantha’s counsel spoke with Samantha concerning Samantha’s wishes. Later, during argument after the trial, Samantha’s counsel stated that “Samantha’s desire... is not clear at all at this time.” Counsel’s statement is not fairly construed as stating that she was not clear about Samantha’s wishes. Rather, the statement is fairly construed as stating that Samantha was conflicted about whether she wished to be adopted.
As for Luz, Esmeralda, and Jacob, neither father nor Antonio objected to or challenged at the March 18, 2010, section 366.26 hearing the assessment in the October 16, 2009, case plan update that Luz, Esmeralda, and Jacob were too young to comment on their placements. Nor did father or Antonio request an updated assessment. At the time of October 16, 2009, assessment, Luz was about three and a half years old, Esmeralda was about two and a half years old, and Jacob was not yet a year old. At the time of the March 18, 2010, section 366.26 hearing, Luz was not quite four years old, Esmeralda was just shy of her third birthday, and Jacob was 15 months old-all still at ages too young to comment meaningfully on their placements.
2. Due Process
“Different levels of due process protection apply at different stages of dependency proceedings. [Citations.]” (In re Thomas R. (2006) 145 Cal.App.4th 726, 733.) Once reunification services have been terminated and the matter is set for a section 366.26 hearing, “the focus shifts from the parent’s interest in reunification to the child’s need for permanency and stability. [Citation.]” (Ibid.) At this stage, a parent no longer has an “unfettered due process right to confront and cross-examine adverse witnesses.” (Ibid.) The due process right a parent retains at a section 366.26 hearing only “‘requires, in particular circumstances, a “meaningful opportunity to cross-examine and controvert the contents of the report”’ if it is relevant to the issues before the court. [Citations.]” (Ibid., italics omitted.) As explained above, a minor’s feelings regarding the termination of parental rights need not be presented through the minor’s testimony during the termination hearing. (In re Leo M., supra, 19 Cal.App.4th at p. 1591, fn. 6.) Samantha’s wishes were presented through the social worker’s reports. Father and Antonio were free to call and cross-examine the authors of those reports. Accordingly, father’s and Antonio’s due process rights were not violated.
3. Continuance
Because we conclude that the juvenile court properly considered the wishes of Samantha through the representations of Samantha’s counsel, we also conclude that the juvenile court did not abuse its discretion in denying a continuance to enable Samantha to testify (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811 [“Continuances are discouraged [citation] and we reverse an order denying a continuance only on a showing of an abuse of discretion [citation]”]).
II. The Sibling Relationship Exception To The Termination Of Parental Rights
Father and Antonio contend that the juvenile court erred in failing to find the sibling relationship exception under section 366.26, subdivision (c)(1)(B)(v) (formerly subdivision (c)(1)(E)) (section 366.26(c)(1)(B)(v)) to the termination of parental rights. The juvenile court did not err.
A. Standard of Review
Challenges to a juvenile court’s determination under section 366.26(c)(1)(B)(v) are governed by a substantial evidence standard of review. (See, e.g., In re Megan S. (2002) 104 Cal.App.4th 247, 250-251.) Under the substantial evidence standard of review, “[w]e determine whether there is substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court, resolving all conflicts in favor of the prevailing party, and drawing all legitimate inferences to uphold the lower court’s ruling. [Citation.]” (In re Xavier G. (2007) 157 Cal.App.4th 208, 213.) “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.) The appellant has the burden to show that substantial evidence does not support the juvenile court’s order. (Ibid.)
There is some authority that the abuse of discretion standard might apply. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
B. The Sibling Relationship Exception
At a section 366.26 hearing, the juvenile court is required to select and implement a permanent plan for a dependent child. When possible, adoption is the preferred permanent plan. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) “‘Adoption is the Legislature’s first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.’ (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 [93 Cal.Rptr.2d 644].) ‘Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child.’ (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1344 [63 Cal.Rptr.2d 562].)” (In re Celine R. (2003) 31 Cal.4th 45, 53.) If a dependent child cannot be returned to his or her parents and is likely to be adopted if parental rights are terminated, the juvenile court must select adoption as the permanent plan unless it finds that the termination of parental rights would be detrimental to the child under one of the exceptions specified in section 366.26, subdivision (c)(1)(B). (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) These statutory exceptions “permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (In re Celine R., supra, 31 Cal.4th at p. 53.)
One of the exceptions to the termination of parental rights is the sibling relationship exception in section 366.26(c)(1)(B)(v). (In re Celine R., supra, at pp. 53-54.) “In enacting this exception, the legislature was concerned with preserving long-standing relationships between siblings which serve as anchors for dependent children whose lives are in turmoil.” (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) The sibling relationship exception provides that parental rights will not be terminated and a child freed for adoption if “[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(c)(1)(B)(v).) It is the burden of the party claiming the exception to establish, by a preponderance of the evidence, the existence of the sibling relationship as well as the detriment its severance would cause the child being considered for adoption. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017, disapproved on other grounds in In re S.B. (2009) 46 Cal.4th 529, 537 & fn. 5; see In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)
“Reflecting the Legislature’s preference for adoption when possible, the ‘sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a “compelling reason” for concluding that the termination of parental rights would be “detrimental” to the child due to “substantial interference” with a sibling relationship.’ [Citation.]” (In re Celine R., supra, 31 Cal.4th at p. 61.) “To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship.” (In re L.Y.L., supra, 101 Cal.App.4th at p. 952, fn. omitted.)
In applying section 366.26(c)(1)(B)(v) a juvenile court is “first 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. [Citation.].)” (In re L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.)
Substantial evidence supports the juvenile court’s conclusion that the section 366.26(c)(1)(B)(v) exception does not apply. Father and Antonio failed to show a sufficiently significant relationship between Antonio and his siblings the termination of which would cause a detriment to Antonio’s siblings or that adoption would interfere with the siblings’ relationship with Antonio. (In re L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.)
The evidence concerning Antonio’s relationship with Samantha did not establish a relationship the termination of which would cause detriment to Samantha. At the time of the March 18, 2010, section 366.26 hearing, Samantha was eight years old, and, although she and Antonio had not lived together for about 14 months, she had lived with Antonio for most of her life. In January 2009, Samantha told a social worker that she did not like Antonio because he hit her, pushed her, and lied. Samantha denied that Antonio had ever touched her inappropriately, but was aware that Antonio had touched Luz and Esmeralda inappropriately. Samantha stated that she was afraid of Antonio because he had threatened to cut her with a knife during a fight. In July 2009, the Department reported that Samantha did not want to visit with her parents and Antonio and that she cried and became very anxious and defiant when told of impending visits. Such visits caused Samantha to feel “angry.” Samantha’s dislike of such visits may have been caused by her fear that she would be left at the San Fernando Valley location when she visited. Samantha was reported to have played with Antonio during visits.
Luz was not yet three years old, Esmeralda was not yet two years old, and Jacob was only two and a half months old when Antonio was removed from Y.R.’s home. At the time of the March 18, 2010, section 366.26 hearing, Luz, Esmeralda, and Jacob had lived apart from Antonio for about 14 months. During the relatively short time that Antonio lived with Luz and Esmeralda, he touched them in sexually inappropriate ways. Antonio’s relationships with Luz, Esmeralda, and Jacob are not the type of significant or “anchor” relationships the sibling relationship exception to the termination of parental rights is intended to preserve. (In re Erik P., supra, 104 Cal.App.4th at p. 404.)
Even if father and Antonio were deemed to have established a significant relationship between Antonio and his siblings, the termination of which would be detrimental to the siblings, father and Antonio have not shown that the siblings’ adoption would interfere with that relationship. The adoptive parents were committed to preserving the siblings’ relationship with Antonio. Prior to the March 18, 2010, section 366.26 hearing, the adoptive parents entered into a post adoption contact agreement pursuant to which the siblings would have one three-hour monthly visit with Antonio, Antonio would be able to call his siblings as often as he wanted, the siblings and Antonio could mail special occasion cards and pictures to one another, the siblings and Antonio could exchange gifts on birthdays and other occasions, and the caretakers would discuss and arrange increased contact between the siblings and Antonio if such contact would be appropriate and beneficial.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
We concur: TURNER, P. J., ARMSTRONG, J.
“The counsel for the child shall be charged in general with the representation of the child’s interests. To that end, the counsel shall make or cause to have made any further investigations that he or she deems in good faith to be reasonably necessary to ascertain the facts, including the interviewing of witnesses, and he or she shall examine and cross-examine witnesses in both the adjudicatory and dispositional hearings. He or she may also introduce and examine his or her own witnesses, make recommendations to the court concerning the child’s welfare, and participate further in the proceedings to the degree necessary to adequately represent the child. In any case in which the child is four years of age or older, counsel shall interview the child to determine the child’s wishes and to assess the child’s well-being, and shall advise the court of the child’s wishes. Counsel for the child shall not advocate for the return of the child if, to the best of his or her knowledge, that return conflicts with the protection and safety of the child. In addition counsel shall investigate the interests of the child beyond the scope of the juvenile proceeding and report to the court other interests of the child that may need to be protected by the institution of other administrative or judicial proceedings. The attorney representing a child in a dependency proceeding is not required to assume the responsibilities of a social worker and is not expected to provide nonlegal services to the child. The court shall take whatever appropriate action is necessary to fully protect the interests of the child.”