Opinion
H030038
12-1-2006
In re ARETHA T. et al., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDRENS SERVICES, Plaintiff and Respondent, v. JOSEPH T., III et al., Defendants and Appellants.
In this appeal, the parents of three dependent children challenge the juvenile court order terminating their parental rights. The parents contend that the court erred in selecting adoption as the childrens permanent plan, rather than legal guardianship. They assert the existence of two of the recognized exceptions to adoption, beneficial parental relationship and sibling bond. We conclude that the record supports the courts choice of adoption for these children. We therefore affirm the challenged order.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants in this case are Aretha T. and Joseph T., III. They are the parents of four children: Aretha T., Jr., born April 1997; Joseph T., IV, born January 1999; Margaret T., born January 2001; and Yasmine T., born July 2004. In addition to her four children with Joseph T., III, the mother has an older child, Jasmine B., who was born in January 1990.
Three of appellants children are the subject of this appeal: Aretha, Joseph, and Margaret. Appellants youngest child, Yasmine, took a different procedural path through the dependency system, and her case is not part of this appeal. The childrens older half-sibling, Jasmine, was the subject of an earlier dependency proceeding, which resulted in her adoption in 1997 by her maternal grandmother. We therefore mention the other children, Yasmine and Jasmine, only as pertinent to the procedural history of the case and as relevant to our examination of the sibling bond.
This dependency proceeding began in July 2004, when appellants youngest child Yasmine was born premature, with a positive toxicology for cocaine, and with life-threatening medical disabilities. When the mother went into labor with Yasmine, the father accompanied her to the hospital, leaving their other three children at the homeless shelter where the family had been staying. At that time, Aretha was seven years old, Joseph was five, and Margaret was three. The father stayed at the hospital and did not return for the children. Three days later, at the mothers request, the children were picked up from the shelter by their maternal aunt, who found the children hungry, dirty, neglected, and in the care of a known drug addict.
Dependency Petitions; Detention
On July 27, 2004, a petition was filed on behalf of the four T. children by the Santa Clara County Department of Family and Childrens Services (the Department). The petition sought dependency jurisdiction over the children pursuant to section 300, subdivision (b), of the Welfare and Institutions Code. The petition asserted that appellants had failed to protect the children and that the children were at risk due to appellants inability to provide appropriate care as a result of their substance abuse and mental health issues.
Further unspecified statutory references are to the Welfare and Institutions Code.
The three older children were detained pursuant to protective custody warrants. They were placed together in an emergency satellite foster home. Their infant sister was placed in protective custody at the hospital.
Appellants were permitted to visit the children.
Jurisdiction and Disposition
A combined jurisdiction and disposition hearing was held in August 2004. Appellants submitted on the dependency petition. The juvenile court sustained jurisdiction over all four children. The court ordered reunification services for appellants, including parenting classes, counseling, drug testing and substance abuse programs, as well as continued visitation.
The Department recommended against returning the children to appellants care, and the court agreed. Baby Yasmine remained hospitalized. Aretha, Joseph, and Margaret stayed together in foster care. The Department considered placing them with the maternal grandmother, but that alternative was rejected "due to the animosity between the parents and the maternal relatives."
Review Hearings
At a hearing held in October 2004, the juvenile court ordered appellants to undergo psychological evaluations. According to those evaluations, the mother was provisionally diagnosed with "Major Depressive Disorder Severe with Psychotic Features" and cocaine dependence. The fathers provisional diagnosis was "Schizophrenia-Paranoid Type, Post-Traumatic Stress Disorder" as well as cocaine dependence.
In February 2005, the court conducted a six-month review hearing. In a report prepared for that hearing, the Department noted that the father was then in voluntary treatment at the Veterans Administration Hospital in Palo Alto, while the mother was incarcerated at Elmwood. Appellants circumstances thus prevented visitation with the children. But even before that, their visits had been sporadic. The report states: "The mother has expressed her love for the children, but her visitation with the children has been inconsistent and minimal." In the social workers opinion, "it does not appear likely that the mother and father will be able to reunify with the children." The report advised the court: "The maternal grandmother [] is willing to adopt Aretha, Joseph, and Margaret if the parents are unable to reunify." Appellants had previously opposed placing the children with the maternal grandmother, because of their strained relations with her. Nevertheless, the report stated: "If the parents are unsuccessful in reunifying, it is hoped they can support the concurrent plan so they can maintain relationships with their children." As recommended by the Department, the court continued reunification services for both parents.
At the time of the six-month review hearing in February 2005, the three children were still in foster care. But in May 2005, the Department placed the three children with their maternal grandmother, a placement that the court subsequently approved.
In September 2005, the court conducted the 12-month review hearing as a contested matter. At the hearing, the parents testified and presented documentary evidence. The Department submitted a status review report, which recommended that the court terminate reunification services for both parents and set the case for a permanency planning hearing. The report included the social workers positive observations concerning visitation. The social worker noted that appellants had been visiting regularly, for two hours each week, supervised. The social worker reported: "The visits are fun for the children and fun to supervise." She also reported that the mother "is especially able to get the children to do things they do not want to do, like wash their hands before eating, and/or read books or listen to stories." On the question of returning the children to appellants custody, however, the report says this: "Although [the parents] have recently begun to comply with court orders and started to complete their service plan, and although both have made valiant attempts to gain sobriety, and although they have a great deal of love for the children, the undersigned [social worker] cannot recommend return of Aretha, Joseph, and Margaret to them at this time." In the social workers view, "neither [parent] has made substantive progress in addressing the issues which brought the children to the attention of the Juvenile Court. As a result Aretha, Joseph, and Margaret would be placed at risk if they were to be returned to the care of their parents at this time." The report thus concluded that appellants "love their children and demonstrate this by their commitment to visiting regularly and their caring for the children during those visits. However, neither [parent] has conquered his/her own problems sufficiently to be able to provide a stable home for their children. It is also doubtful that they will be able to correct their problems or complete their services within the next six months based on their performance for the past year." After hearing evidence from the Department and from appellants, the court took the matter under submission.
Several days later, on September 16, 2005, the juvenile court entered a formal order following the 12-month review hearing. The court described this as "a very sad case." As the court put it: "The parents love their children and present in court as caring people. However, they have been addicted to drugs and have serious mental health problems, the combination of which has led them to be unable to parent their children safely." The court also observed: "These children need a permanent home now." "Fortunately," the court stated, "the children have been placed with members of their family. It is the hope of the court that the entire family will be able to work together on behalf of these children." The juvenile court terminated reunification services to appellants and set the case for a permanency planning hearing.
Modification Petition; Permanency Planning
In February 2006, the father petitioned for modification of the courts September 2005 order insofar as it terminated reunification services and set the permanency planning hearing. (See § 388.) He sought return of the children to him with family maintenance services. As changed circumstances, the father cited his eight months of sobriety, his completion of a residential treatment program, and his acquisition of "stable suitable housing." The Department filed a written response, opposing the fathers petition.
The hearing on the fathers modification petition was conducted immediately before the permanency planning hearing. The combined hearing took place over two court days in February and March 2006. In connection with the modification petition, the father and the Department submitted testimonial and documentary evidence. In addition, the court took judicial notice of all prior findings, orders, and judgments in the case. The court entertained argument from all parties on the fathers modification petition.
The court ruled on the modification petition from the bench, denying it. After expressing his admiration and respect for the father and for his accomplishments, the judge concluded: "Legally speaking the facts that have been presented to me do not give me a reason to grant your motion. The change in circumstances is insufficient, the childrens best interest would not be served."
The court then turned to the matter of permanency planning. At the outset, the court clarified that it would consider "all of the testimony and other evidence ... just received in the 388 petition." The documentary evidence included reports prepared by the Department for the hearing. The social worker, who had testified earlier, provided further testimony. The mother testified as well. In addition, the court entertained "evidentiary comments" from the childrens attorney about their wishes. (See § 317.) At the conclusion of the evidentiary hearing, the court heard argument from all parties.
The juvenile court took the matter under submission. It rendered a formal order several days later, on March 14, 2006. As reflected in the order, the court determined "by clear and convincing evidence that termination of parental rights is in the best interests of each child." The court found that no statutory exception to adoption applied. The court therefore terminated appellants parental rights and it freed Aretha, Joseph, and Margaret for adoption.
Appeal
This appeal ensued.
Both the mother and the father challenge the March 2006 order terminating their parental rights. They seek reversal of that order, asserting three grounds: (1) the court should have applied the parental bond exception to adoption; (2) the court should have applied the sibling bond exception to adoption; and (3) the court should have selected legal guardianship instead of adoption as the childrens permanent plan. In addition, the fathers notice of appeal cites the denial of his modification petition as a ground for reversal. He offers no argument on that point, however, and we do not consider it. (See, e.g., Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 237-238 [appellate contentions deemed abandoned for lack of argument].)
The Department defends the juvenile courts decision to terminate appellants parental rights and to free the children for adoption. The children do not appear on appeal.
DISCUSSION
As a framework for our analysis, we begin with a brief overview of the principles of dependency law that inform our decision. Against that backdrop, we analyze the specific contentions raised here.
I. Overview of Dependency Law
The Legislature has provided for juvenile court jurisdiction over dependent children. (See § 300 et seq.)
The primary goal of the dependency statutes is "to ensure the safety, protection, and well-being of children who are at risk of abuse, neglect, or exploitation, while preserving the family whenever possible." (In re David M. (2005) 134 Cal.App.4th 822, 824.)
In dependency proceedings involving the removal of children from their parents, there are generally four phases: jurisdiction, disposition, reunification (unless bypassed), and the selection and implementation of a permanent plan. (In re Matthew C. (1993) 6 Cal.4th 386, 391.) We are concerned with the fourth and final phase here.
A. Permanency Planning
At the appropriate juncture, the juvenile court is required to select and implement a permanent plan for a dependent child. (§ 366.26; In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) "The selection and implementation hearing under section 366.26 takes place after the juvenile court finds that the parents are unfit and the child cannot be returned to them." (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) "A juvenile court at a section 366.26 hearing must select one of three plans for the child: adoption, guardianship or long-term foster care." (In re Jose V. (1996) 50 Cal.App.4th 1792, 1797.)
"Where there is no probability of reunification with a parent, adoption is the preferred permanent plan." (In re Tabatha G., supra, 45 Cal.App.4th at p. 1164.) "Adoption is the preferred placement because it offers the prospect of a secure permanent home." (In re Jamie R. (2001) 90 Cal.App.4th 766, 774.) "Where the trial court finds that the child is likely to be adopted, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental under one of [five] specified exceptions." (Id. at p. 773.) As relevant here, the statutory exceptions to termination of parental rights and adoption include parental and sibling bonds. (§ 366.26, subd. (c)(1)(A), (E).)
B. Burden of Proof
Parents seeking to avoid the termination of their parental rights based on the parent-child relationship bear the burden of proving that the statutory exception for parental bond applies to them. (In re Angel B. (2002) 97 Cal.App.4th 454, 466; see also, e.g., In re Jamie R., supra, 90 Cal.App.4th at p. 773.) Likewise, the burden of establishing the sibling bond exception rests with the party opposing termination of parental rights. (In re Megan S. (2002) 104 Cal.App.4th 247, 252.)
C. Appellate Review
As California Supreme Court precedent teaches, the juvenile courts placement determination for a dependent child typically is reviewed under the abuse of discretion standard. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) But many courts have employed the substantial evidence review standard when the issue on appeal is the termination of parental rights, since the requisite case-by-case assessment of relevant circumstances generally requires a fact-based analysis. (See, e.g., In re Erik P. (2002) 104 Cal.App.4th 395, 400; In re Brittany C. (1999) 76 Cal.App.4th 847, 854; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) As a practical matter, the differences between the two standards of review are not significant. "In its emphasis on deference, the abuse of discretion standard is similar to the substantial evidence rule." (In re Robert L. (1993) 21 Cal.App.4th 1057, 1065.) Furthermore, "evaluating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling." (Id. at p. 1067.)
Applying that deferential review standard, we view the evidence in the light most favorable to the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) We thus examine the record to decide whether "a reasonable trier of fact could find that termination of parental rights is appropriate based on clear and convincing evidence." (In re Jasmon O. (1994) 8 Cal.4th 398, 423, internal quotation marks omitted. Accord, In re Erik P., supra, 104 Cal.App.4th at p. 400.) The appellant has the burden of showing that the challenged order lacks evidentiary support. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
With that statutory overview in mind, we turn to the case at hand.
II. Analysis
At the termination hearing in this case, appellants argued for application of two statutory exceptions to the termination of parental rights, parental bond and sibling bond. They also urged the juvenile court to select guardianship as the permanent plan, rather than adoption. Appellants renew all of those arguments here. We consider each in turn, bearing in mind the deferential standard that governs our review.
A. Parental Bond
The "parental bond" or "beneficial relationship" exception is contained in section 366.26, subd. (c)(1)(A). As developed in the case law, the exception comprises three essential elements: (1) regular visitation and contact; (2) a parental role; and (3) a relationship that "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., supra, 27 Cal.App.4th at p. 575.)
That provision reads in pertinent part as follows: "(c)(1) If the court determines ... that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . A finding . . . that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (A) The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).)
1. Visitation
The first requirement, "regular visitation and contact with the child," is explicit in the statute. (§ 366.26, subd. (c)(1)(A); see, e.g., In re Amber M. (2002) 103 Cal.App.4th at p. 689 [mother had maintained "regular visitation and contact"]; (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1343 [mother had been consistent in her visitation, although the visits did not progress to unsupervised contact].)
In this case, the Departments report for the permanency planning hearing summarizes appellants visitation during the dependency as follows: "The parents were ordered to have one visit a week for two hours each visit. From 9/30/04 to 11/13/04, the parents visited 2 out of 6 possible visits. From 11/13/04 to 1/13/05, the parents visited the children 2 out of 10 possible visits. From 1/13/05 to the present the parents have visited regularly once a week for two hours. The visits were fun for the children. Visits were cancelled effective 12/2/05, when [the mother] was incarcerated and [the father] entered a Veterans drug treatment program." In early 2006, the father apparently had only two visits with the children. It is not clear whether the mother had any visits in 2006. In addition to face to face visits, appellants maintained regular weekly telephone contact with all three children after they were placed with the maternal grandmother.
The juvenile court did not make a specific finding on the question of whether appellants had maintained regular visitation and contact with the children, and we need not decide the issue. As we now explain, even assuming the necessary regular visitation and contact, appellants have failed to carry their burden of proving the other requirements of the statutory exception.
2. Parental Relationship
The second requirement is implicit in the statute. As this court explained more than a decade ago, the statute contemplates a relationship that is parental in nature. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Thus, in order to trigger the statutory exception, the parent must occupy a role that goes beyond that of friendly visitor, extended family member, or day care provider. (In re Angel B., supra, 97 Cal.App.4th at p. 468; In re Casey D. (1999) 70 Cal.App.4th 38, 52; In re Beatrice M., at pp. 1419-1420.) As we have previously observed: "While friendships are important, a child needs at least one parent." (In re Brittany C., supra, 76 Cal.App.4th at p. 854.)
Frequent, loving contact alone thus is not sufficient to establish the requisite parent-child relationship. (In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419.) Rather, the parental relationship is demonstrated by "the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Such "daily nurturing" is the hallmark of a parental relationship. (In re Brittany C., supra, 76 Cal.App.4th at p. 854; see also, e.g., In re Jamie R., supra, 90 Cal.App.4th at p. 774.) By the same token, however, everyday "contact is not necessarily required, although it is typical in a parent-child relationship. A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction." (In re Casey D., supra, 70 Cal.App.4th at p. 51.)
Many different variables shape the parent-child relationship. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) "Parent-child relationships do not necessarily conform to a particular pattern." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Four variables are commonly cited: "The age of the child, the portion of the childs life spent in the parents custody, the `positive or `negative effect of interaction between parent and child, and the childs particular needs are some of the variables which logically affect a parent/child bond." (In re Autumn H., at p. 576. See also, e.g.,In re Amber M., supra, 103 Cal.App.4th at p. 689; In re Angel B., supra, 97 Cal.App.4th at pp. 467-468; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) Given the many different forms that parent-child relationships may take, application of the "exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Examining the particular relationship at issue here, we conclude that appellants do not occupy a parental role in relation to Aretha, Joseph, or Margaret. We reach that conclusion after applying the variables cited above to the facts of this case.
a. Childrens Ages; Length of Parents Custody
We start with the first two factors, age and time with the parents. As of the time of the permanency planning hearing in March 2006, Aretha was nearly nine years old, Joseph had just turned seven, and Margaret had just turned five. Until July 2004, when these dependency proceedings were instituted, all three children had lived with appellants for their entire lives. Standing alone, this factor thus suggests that appellants occupied a parental role in their childrens lives.
b. Parental Interaction
Addressing the next factor, we consider whether appellants interaction with the children has been beneficial. Appellants visits were positive, described by the social worker as "fun" for the children. As just explained, however, positive interaction alone does not demonstrate the requisite parental relationship. (In re Angel B., supra, 97 Cal.App.4th at p. 468.) In this case, there is evidence that appellants oldest child Aretha was "parentified." As the social worker testified: "She took care of the younger children and in fact had some responsibility for taking care of her mother and father and worried a great deal." To the extent that a child feels or act as her parents care-givers, that stands the parental relationship on its head.
It is clear that the children enjoy their parents company, and that Aretha in particular craves it. It is equally plain that appellants have a deep love for their children. Appellants have worked hard on their own progress. But despite those positive gains, neither is able to act in a parental role, which requires more than providing affection and fun. Even "considered in the context of the very limited visitation" that appellants were permitted here, we find no basis for overturning the juvenile courts finding that the relationship here was not parental in nature. (Cf., In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538 [affirming juvenile courts determination that children would benefit from continued contact with parents].)
c. Meeting the Childrens Needs
That brings us to the remaining factor — ability to meet the childs needs. In this case, the record supports a finding that appellants have not met their childrens needs for essentials such as shelter and education. (Cf., In re Angel B., supra, 97 Cal.App.4th at p. 468 ["no evidence that Angel has any particular needs that can be met by Mother but not by the foster family"].)
As to the basic need for shelter, this record contains substantial evidence that appellants housing situation had been and remained unstable. The father had rented an apartment on a month-to-month basis less than a month before the start of the termination hearing. The mother was living in a motel, waiting to get into another residential treatment program. Beyond appellants current living situations, the social worker testified that "their entire lifestyle is one in which they move from place to place. And it was very detrimental to the children."
The lack of a stable home environment affected the two older children educationally. As the social worker testified, "Aretha rarely went to school. She had very little ability to read and to learn and to sit still in school when she was first placed in care. Joseph ... was so anxiety ridden in school he could hardly sit still and learn anything." According to the social workers further testimony: "Since being placed with the grandmother the children are doing much better in school." Even so, the social worker testified, the children still "have tremendous needs" and "they require a great deal of attention. Aretha does not like to do her homework. She ... has to be encouraged and ... made to do her homework. Joseph needs to have things repeated to him ... over and over again so that he retains it."
As the record makes clear, neither parent was meeting those educational needs up through July 2004, while the children were still in their custody. As of early 2004, Aretha had missed 62 days of school. In an interview for her court-ordered psychological evaluation, the mother reported difficulty getting Aretha to bed at night and then to school the next morning. The mother was quoted as saying: "I couldnt force her to go to bed and I was more lenient at times, I wouldnt force the issue." The mother also reported that Aretha "wouldnt go to school, I would wake her up if she didnt want to go, but I wouldnt make her go ...." By contrast, as of the six-month review report, Arethas report card showed no absences. Also, the maternal grandmother "has Aretha read to her every day. Aretha balks at doing this, but is not allowed to watch television until she has worked on her reading."
Even once the children were in the dependency system, although appellants would ask them about school and would read with them during visits, there is no evidence that they helped with homework or participated in educational decisions. To the contrary, the father testified that he had not attended any parent/teacher meetings nor had he participated in Josephs individual education plan, saying that he was "never invited" and "never notified or told anything about it." By contrast, the maternal grandmother "supervises the children doing their homework and makes sure they understand what they are learning. This has resulted in the vast improvement in school performance for Joseph and Aretha."
As the social worker observed, these parents and children plainly love each other, and the children enjoy their parents visits. Nevertheless, she opined, appellants did not function in a parental role toward Aretha, Joseph, and Margaret. As the social worker put it, "having fun during visits is not enough. Being a parent means that you set limits. That you send the kids to school when they dont want to go to school. You make sure that they do their homework and make sure they get their medical and dental treatments.... Make sure that they get their shots and that they have a stable home to live in and that they have food and they have a place to sleep every night that they can count on." In the social workers view, those elements were lacking in this relationship.
The juvenile court agreed with the Departments assessment, saying "the nature of the parents relationship with the children is not that of competent parents, rather that of friends having an enjoyable time with children." On this record, we must agree.
To sum up, the evidentiary record in this case provides no basis for reversing the juvenile courts determination that appellants relationship with their children was not sufficiently parental to warrant application of the statutory exception. While appellants both interacted with all three children in a loving way, neither has functioned as a parent in meeting their childrens basic needs.
3. Balancing Test
In determining applicability of the parental bond exception, the juvenile court assesses the benefit to the child from continuing the relationship with a biological parent against the benefit to the child of a permanent placement with an adoptive parent. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.) On one side of the equation is the relationship with the biological parent, which "must be sufficiently strong that the child would suffer detriment from its termination." (In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.) On the other side of the equation is permanence for the child through adoption. The "juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family." (In re Cliffton B., at pp. 424-425.) "In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Such a "balancing determination is obviously appropriate in deciding whether a child would be so harmed by terminating a relationship with a natural parent that an adoption should not go forward and the permanent plan should be diverted to guardianship or foster care." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.)
In assessing the benefit to the child of continuing the natural parental bond, the court looks for substantial benefit from the relationship and great harm from its termination. (See, e.g., In re Jasmine D., supra, 78 Cal.App.4th at p. 1349; In re Angel B., supra, 97 Cal.App.4th at p. 466; In re Autumn H., supra, 27 Cal.App.4th at p. 575.) As to the first element, "the parent must show more than that the relationship is `beneficial." (In re Casey D., supra, 70 Cal.App.4th at p. 52, fn. 4.) Concerning the second element, this court has previously rejected the notion "that the parent need only show some, rather than great, harm at this stage of the proceedings," reasoning that a contrary rule "would defeat the purpose of dependency law...." (In re Brittany C., supra, 76 Cal.App.4th at p. 853.)
In weighing the countervailing benefits of adoption, the court must bear in mind the well-established legislative preference for an adoptive placement over the less permanent alternatives of guardianship or foster care. (See, e.g., In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1344-1345; In re Beatrice M., supra, 29 Cal.App.4th at p. 1419.) "Adoption is the preferred placement because it offers the prospect of a secure permanent home." (In re Jamie R., supra, 90 Cal.App.4th at p. 774.)
In this case, the juvenile court explicitly balanced the benefits of maintaining the parent-child relationship against the benefits of security, stability, and permanence that adoption would provide. Having undertaken that balancing process, the court found that the benefits of adoption for Aretha, Joseph, and Margaret outweighed the harm that they would suffer from the loss of their relationships with appellants. That determination is amply supported in fact and law.
a. Parental Relationship
In applying the balancing test, the court first considers the benefit conferred by the parent-child relationship. In this case, the record reflects a close bond between appellants and the children, especially Aretha. Indeed, in its written decision, the juvenile court specifically acknowledged appellants love for their children.
Significantly, however, there is evidence here that suggests that the benefits to the children of continued contact with appellants may not be irrevocably lost. Despite a sometimes-rancorous relationship with appellants, the maternal grandmother had been accommodating weekly telephone calls for each of them with each of the children. As the court explicitly stated, "the testimony from the mother was indicative that the caretaker might be willing to permit continued contact between the children and the mother, should she become and remain drug free."
In any event, the evidence presented to the juvenile court supports its implicit determination that the parent-child relationship was not so vital to the childrens long-term well-being or of such substantial benefit that great harm would result from its termination. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) That evidence includes the social workers opinion that no undue detriment to the children would result from its termination, particularly given the proposed "kinship adoption." As the court concluded: "The parents relationship with the children is not one that the court must or should preserve when compared to the permanency that adoption can provide."
b. Permanency
Addressing the other side of the equation, the benefits of permanency, the court observed: "Given the childrens age and development, and given the long term neglect that they suffered while living with the parents, permanency at this time is critical." That observation is amply supported by the factual record here. The maternal grandmother provided much-needed structure for these children, which had been lacking while in their parents custody. After less than a year in her care, they were thriving. As stated in the Departments report for the permanency planning hearing: "The children have a stability that they have never known while in the care of their parents."
In weighing the benefits of permanency, the court properly considered the childrens wishes. (See § 366.26, subd. (h)(1) ["the court shall consider the wishes of the child"].) On appeal, the mother complains that no one explained to the children that adoption meant loss of their relationship with appellants. The record does not support that contention. Both the social worker and the childrens attorney explored the concept of adoption with the children. The social worker was asked: "Have you personally spoken to the children about the possibility of being adopted?" She responded: "No, I dont use that word with [] young children. I have talked to them about are they happy where they are, do they want to stay here. Can they think of any other place that they might want to live. Those are the kinds of questions that I deal with this age child." Furthermore, the childrens attorney presented "evidentiary comments" to the court. (See § 317.) As she reported, "we did visit the children on February 27th at the grandmother[s] home. And we spoke to the children about the idea of adoption and explained to them as best we could considering their ages." The attorney told the court that Aretha "seemed very sad for her parents. And she expressed worry over not being able to see her mother." Aretha "had a very hard time saying that she wanted to be adopted. It was clear it was a very hard decision to say those words. She expressed the concept of betraying her parents. ... But she did express [t]hat she wanted to stay with her grandmother very clearly." Reporting on her discussion with Joseph, the attorney reported that he "didnt have to think twice. He listened to our explanation of adoption and had no apprehension saying he wanted that. He says he has a good life with his grandmother and he said that he was fin[e] with her." As for Margaret, she "really was too little to participate in the conversation." The juvenile court thus had evidence of the childrens wishes. And its order specifically reflects that it took those wishes into account in making its decision.
In placing great weight on the benefit of permanency, the juvenile court acted in accord with the well-established legislative preference for adoption over less permanent placements, such as guardianship. (See, e.g., In re Lorenzo C., supra, 54 Cal.App.4th at pp. 1344-1345; In re Beatrice M., supra, 29 Cal.App.4th at p. 1419.) "The Legislature has decreed ... that guardianship is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them." (In re Beatrice M., at p. 1419.)
Having weighed the benefits of the parent-child relationship against the childrens need for permanence and stability, the juvenile court properly afforded them the most permanent and secure placement that it could — adoption.
B. Sibling Bond
The sibling bond exception applies when there is a "compelling reason" to find that terminating parental rights would substantially interfere with the dependent childs relationship with one or more siblings, to the childs detriment. (§ 366.26, subd. (c)(1)(E).) When the sibling bond exception is at issue, the court considers possible detriment to the child being considered for adoption, not the effect on the siblings. (In re Celine R. (2003) 31 Cal.4th 45, 54; In re Naomi P. (2005) 132 Cal.App.4th 808, 822.)
The statute reads in relevant part as follows: "(c)(1) If the court determines ... that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. ... A finding ... that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] ... [¶] (E) There would be substantial interference with a childs 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 childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(E).)
In considering the sibling bond exception, the court undertakes an analysis similar to that employed with the parental bond exception. (In re L.Y.L., supra, 101 Cal.App.4th at p. 951.) The analytic process involves examining the bond and balancing the dependent childs interests.
The first prong of the analysis focuses on the sibling bond itself. As to that prong, the party opposing the termination of parental rights must show: (1) that a significant sibling relationship exists; (2) that the termination of parental rights would substantially interfere with that relationship; and (3) that it would be detrimental to the dependent child if the relationship ended. (In re L.Y.L., supra, 101 Cal.App.4th at p. 952.) "If termination will substantially interfere with the sibling relationship, section 366.26, subdivision (c)(1)(E) lists numerous factors the juvenile court is to consider in determining whether the circumstance of any given case warrant the application of the exception." (In re Erik P., supra, 104 Cal.App.4th at p. 403.) "If the relationship exhibits some or all of these factors, the juvenile court must then go on to balance any benefit, emotional or otherwise, the child would obtain from ongoing contact with the sibling against the benefit of legal permanence the child would obtain through adoption." (Ibid.)
In cases where the second prong of the analysis comes into play, the court undertakes the weighing process "in the same manner" that it does when analyzing the parental benefit exception. (In re L.Y.L., supra, 101 Cal.App.4th at p. 951.) The court thus balances the sibling "bond with the legislative preference for adoption." (In re Megan S., supra, 104 Cal.App.4th at p. 252; see also, e.g., In re Naomi P., supra, 132 Cal.App.4th at p. 823.)
1. The Childrens Sibling Relationships
In this case, it is undisputed that Aretha, Joseph, and Margaret are very attached to each other. The children have lived with each other for their entire lives, both before and after their removal from their parents custody. (See, e.g., In re Gabriel G. (2005) 134 Cal.App.4th 1428, 1438; In re Jacob S. (2002) 104 Cal.App.4th 1011, 1015.) In the words of the statute, the children have "shared significant common experiences" and have "existing close and strong bonds" with each other. (§ 326.26, subd. (c)(1)(E).) Without question, the sibling relationships among Aretha, Joseph, and Margaret are significant.
In addition, Aretha, Joseph, and Margaret have a growing bond with their older half-sibling, Jasmine, who was previously adopted by the maternal grandmother. As the social worker put it: "These children are bonded to one another, love their older sister, and need to continue to be placed together." No one contends otherwise.
By contrast, Aretha, Joseph, and Margaret share no such bond with their baby sister, Yasmine. The three older T. children have never lived with Yasmine, who remains at a medical facility, apparently unresponsive to her environment. Nor is there any evidence suggesting that they have had any significant contact with her. The three older T. children thus have no real relationship with Yasmine, a point that appellants effectively concede.
Thus, the sibling relationships that concern us here are those among the three older T. children, as well as the one that all three children are forging with their older half-sibling, Jasmine.
2. Interference
For the sibling bond exception to apply, there must be evidence that the termination of parental rights would substantially interfere with the sibling relationship. (See, e.g., In re L.Y.L., supra, 101 Cal.App.4th at p. 952.) Appellants acknowledge that the three older T. children and Jasmine "are currently living together with the maternal grandmother." Nevertheless, they argue: "Should that placement fail, Aretha, [] Joseph, [] and Margaret would be in great danger of being separated from each other because of the difficulty in finding adoptive placements for sibling groups. They most definitely would be separated from Jasmine because she was already adopted by the grandmother."
We reject appellants argument. As the Department points out, the possibility of interference suggested by appellants is pure speculation. For all three T. children, their prospective adoptive home is with the maternal grandmother, who "has never wavered from her commitment to adopt these children." As for the childrens relationship with Jasmine, that bond stands to be strengthened by the courts order, since Jasmine is already part of the proposed adoptive home. Thus, it does not appear that any significant sibling relationship will be severed. For that reason: "Substantial evidence supports the courts determination that the sibling bond exception does not apply." (In re Jacob S., supra, 104 Cal.App.4th at p. 1019.)
C. Permanent Plan
In their final appellate contention, appellants argue that the juvenile court should not have selected adoption as the permanent plan, since guardianship would better ensure their continuing relationship with their children.
This court rejected the same argument more than a decade ago, in the case of In re Beatrice M., supra, 29 Cal.App.4th 1411. As we said there: "The Legislature has decreed, however, that guardianship is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them. In decreeing adoption to be the preferred permanent plan, the Legislature recognized that, `Although guardianship may be a more stable solution than foster care, it is not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature. " (Id. at p. 1419.) "Since the Legislature has mandated that dependent children who cannot be reunified with their parents be provided the most stable possible homes, we conclude the juvenile court correctly interpreted section 366.26, subdivision (c)(1)(A) to apply to situations where a dependent child benefits from a continuing parental relationship; not one, like that here, when a parent has frequent contact with but does not stand in a parental role to the child." (Id. at p. 1420.) Appellants "are correct that a permanent plan of adoption does not guarantee their continuing relationship with their [children]. But parental rights must be terminated to free children to be adopted into a new, permanent family. And guardianship is only the best possible permanent plan for children in circumstances where the exceptions to terminating parental rights in section 366.26, subdivision (c)(1) apply. Since we have already determined that appellants relationship with the [children] did not place them within these exceptions, it necessarily follows that the juvenile court correctly determined that adoption was the appropriate permanent plan for them." (Ibid.)
We see no reason to depart from Beatrice M. We therefore reject appellants arguments for favoring guardianship over adoption here. In this case, as the trial court specifically found, "the permanency of an adoptive home clearly outweighs any benefit that would result from maintaining the parent-child relationship through a lesser permanent plan such as legal guardianship." Given this factual record and the foregoing legal authority, we endorse that finding.
SUMMARY OF CONCLUSIONS
Appellants bore the burden of proving that severing the parent-child relationship and any potential disruption of the sibling bond would result in such great harm to the children as to outweigh the advantages of adoption. That burden is a heavy one: the statute requires the court to find a "compelling reason" to select a permanent plan for the child other than adoption. (§ 366.26, subd. (c)(1).) Given the evidentiary record in this case, we can find no fault with the juvenile courts determination that appellants failed to carry that burden. We therefore conclude that the trial court did not err in terminating parental rights.
Disposition
We affirm the order of March 14, 2006, which terminated appellants parental rights and freed Aretha, Joseph, and Margaret for adoption.
We Concur:
Mihara, Acting P.J.
Duffy, J.