Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. J977618. Marguerite D. Downing, Judge.
Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant.
Robert E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Mother, Sophia F., appeals from an order of the juvenile court terminating her parental rights with regard to her two youngest daughters, Jessica L. and S.L. Mother contends that the court’s refusal to apply the “sibling relationship exception” to the statutory preference for adoption was not supported by substantial evidence. We conclude that substantial evidence supported the court’s determination and affirm the order.
See Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(v).
The evidence in a hearing to terminate parental rights -- the Welfare and Institutions Code section 366.26 hearing -- consists of the social report prepared for that hearing, the reports prepared for hearings pursuant to sections 361.5 (disposition), 366.21 (six- and 12-month review hearings), and 366.22 (permanency plan review), and any other evidence admitted by the court. (Welf. & Inst. Code, § 366.26, subd. (b); Cal. Rules of Court, rule 5.725(b).) Admitted at the section 366.26 hearing were the following reports: The status review report dated March 5, 2009; the last-minute information dated June 22, 2009; the last-minute information dated July 28, 2009; and the interim review report dated June 22, 2009. Our summary is taken from those documents. In addition, to the extent necessary to coherently summarize the procedural history, we take judicial notice on our own motion of the oral proceedings, the pleadings, and the court orders in the juvenile court record. (See Evid. Code, §§ 452, 459.)
In 2005, after mother faced allegations of neglect, she agreed to voluntary reunification services. Mother’s five minor children were placed in foster care until April 28, 2006, when the two youngest, Jessica and S., were returned to her custody. In June 2006, when Jessica and S. were five and two years old, the children were detained from mother and placed in father’s home. Two of their three older half-siblings, Robert and Rachel were placed together in a foster home, and the other, Joshua, was placed in a separate foster home.
On June 14, 2006, the Department of Children and Family Services (Department) filed a petition to bring the children within the jurisdiction of the juvenile court, pursuant to section 300. Approximately one week later, when father was arrested and charged with felony possession of methamphetamine, the two minors were briefly placed in shelter care and then released again to father. In the jurisdiction/disposition report, the children’s social worker (CSW) reported that the children had a strong bond.
Jesse L. is the father of Jessica and S., but not the father of the girls’ older half-siblings. Benny O. is the father of Rachel and Joshua, and the father of Robert is unknown. We refer to Jesse L., as “father,” because this appeal concerns only Jessica and S.
In August 2006, mother and father entered into a mediated plea agreement by which they agreed to submit the issue of the court’s jurisdiction on an amended petition, upon the dismissal of all but five counts, a-1, b-2, b-5, b-7, and j-2. The court accepted the pleas, and incorporated the mediation agreement as its order. As amended, counts a-1, b-2, and j-2 alleged:
The minute order of August 29, 2006, states that the court sustained counts a-1, b-2, j-2. However, the mediation agreement calls for amending and sustaining counts b-5 and b-7, as well. The minute order’s omission of counts b-5 and b-7 is an apparent clerical error.
“On or about 5-31-06 and on prior occasions,... mother... used inappropriate physical discipline with Jessica and S[.] by striking them about their bodies. Further, father did not take action to protect Jessica and S[.]. Said inappropriate physical discipline by mother and father’s failure to protect endangers Jessica and S[.], placing them and their siblings... at risk of physical and emotional harm.”
As amended, count b-5 alleged:
“On or about 5/29/06 the children[’s]... adult sibling Eddie... engaged in a violent altercation with... Jessica and S[.]’s father... in the presence of the children, which resulted in [father’s] sustaining bruises to his face and eye. Said domestic violence in the home of the children places the children at risk of physical and emotional harm.”
As amended, count b-7 alleged:
“[M]other failed to provide appropriate care for the children in that she did not obtain timely treatment for the children’s head lice which lasted for a period of 4 months, did not always provide adequate food for the children and did not follow-up with education evaluations and tutorial services to meet the educational needs of Joshua and Robert. Mother’s neglectful acts place the children at risk of physical and emotional harm.”
In the court-ordered disposition case plan, the juvenile court ordered mother and father to test randomly for drug use and participate in individual counseling. In addition, mother was ordered to submit to a mental health evaluation. Jessica, S., and the eldest sibling, Joshua, were removed from father’s custody and placed in the custody of a third cousin, Ruby G., and her husband, Jason. G.
In March 2007, the CSW removed Jessica, S., and Joshua from the home of Mr. and Mrs. G., after substantiating a report that Mr. G. had physically abused S. S. and Jessica were then placed in another foster home together. Joshua was placed in a separate foster home.
On August 21, 2007, the court ordered the Department to facilitate reasonable sibling visits separate from the parents.
At the section 366.21 review hearing in October 2007, the Department reported that sibling visits had taken place every two weeks, and the four older children said they liked the visits with their siblings. S. was too young to make a statement. The court scheduled section 366.21 review hearing for November 14, 2007.
Section 366.21 provides that the dependent child must be returned to the parent within no later than 12 months, unless a return to the parent’s custody would be detrimental to the child. (§ 366.21, subd. (e), § 366.22, subd. (a).) If the parent has not complied with the case plan, the court may schedule a hearing to determine whether to terminate parental rights pursuant to section 366.26. The court may continue the determination of whether to set a section 366.26 hearing, and may order additional services or assessments in the meantime. (See § 366.22, subd. (a).) The section 366.26 hearing is the selection and implementation stage, at which the juvenile court determines whether the permanent plan will be adoption, guardianship, or long-term foster care. If adoption is chosen, parental rights are terminated. (§ 366.26, subds. (b)(1), (c)(1).)
At the November 2007 hearing, the court terminated reunification services for mother, but continued the services for father, and continued the matter to February 7, 2008. At that time, the Department reported that father was in partial compliance with the case plan and that his visits with the children were sporadic. The Department recommended the termination of father’s reunification services, and the setting of a permanent plan hearing. The Department identified adoption as the best permanent plan for Jessica and S., and legal guardianship for Robert and Rachel. Joshua informed the CSW that he did not wish to be adopted, and would live with a parent or relative after his emancipation in two and one-half years. The Department therefore recommended a planned permanent living arrangement other than adoption or legal guardianship. The CSW did not address sibling visitation in the February 2008 report. The court scheduled a contested section 366.22 hearing regarding Jessica and S. for March 27, 2008, but that hearing was continued to allow the Department to file a subsequent dependency petition, pursuant to section 342.
The Department may file a subsequent petition whenever there are new facts or circumstances justifying the court’s jurisdiction. (§ 342.)
In late March 2008, Robert was charged with felony child molestation and declared a dependent minor pursuant to section 602.
The section 342 petition, filed April 19, 2008, alleged that during the children’s overnight visits in April, May, June, and July 2006, mother and father had sexual intercourse in the presence of Robert and Rachel; that mother and father disciplined Robert and Rachel by forcing them to watch them perform sex acts and view pornographic videos. All counts of the petition were sustained on November 6, 2008, and the children remained dependents of the court.
The contested section 366.22 hearing was again continued several times, ultimately to November 6, 2008. Jessica and S. had been placed in the home of prospective adoptive parents, Mr. and Mrs. R., in March 2008, when they were eight and four years old. The CSW reported that they seemed happy, comfortable, and secure there, and that the prospective adoptive parents took them to visit their siblings every other Thursday at McDonald’s. Both Jessica and S. told the CSW they wanted to be adopted. Jessica said that she wanted to stay with her prospective adoptive parents forever, and she called them “Mommy” and “Daddy.” Jessica had adjusted well and was making A’s in the second grade. S. had also adjusted well, and was attending a head start program.
At the November 2008 hearing, the Department reported that the children continued to have sibling visits every two weeks. Rachel and Joshua told the CSW that they enjoyed the visits with their siblings. After hearing argument of counsel and considering the social reports admitted into evidence, the court terminated family reunification services and set a contested section 366.26 hearing for March 5, 2009.
In March 2009, the Department reported that it was highly likely that Jessica and S. would be adopted if parental rights were terminated, and that Mr. and Mrs. R.’s adoptive home study had been completed and approved in December 2007. Because Joshua continued to state that he intended to return to mother once jurisdiction was terminated, the CSW was of the opinion that the only viable long-term plan was a permanent living arrangement. Joshua had been in the care of Mrs. M. for approximately two years and was doing well there. He was involved in sports and community services.
Rachel had been with her prospective adoptive parents, Ms. L. and Mr. G., since September 2005. They had expressed a willingness to become Rachel’s legal guardians and then consider adoption, but in February 2009, Rachel began to act out, and Ms. L. told the CSW that she was no longer interested in legal guardianship or adoption, but was willing to continue as Rachel’s foster mother. Rachel told the CSW that although she was hurt and confused, she wanted to stay with her current caretakers. The CSW inquired of Mr. and Mrs. R., the caretakers of Jessica and S., but they reported that they would be unable to care for Rachel. Mrs. R. continued to bring Jessica and S. to their visits at McDonalds.
The section 366.26 hearing was continued, and finally went forward on July 28, 2009, as to Jessica and S. only. Prior to the hearing, Jessica wrote a letter to the judge, asking that the process go faster, because it made her sad to go to parental visits when her parents did not show up. She stated that she liked her adoptive parents, because they loved her and took care of her, and if they could adopt her right away, she would be “Super-Duper happy.”
Mother was the only witness to testify at the section 366.26 hearing. Mother testified that since June 2006, she had not often visited her children, but had seen them the previous Thursday for an hour. Jessica was quiet, but S. gave her a hug and kiss, and they played together with a puzzle book. Mother admitted that she had missed “a few” visits, more than five or six. She testified that she believed a continued relationship with her children would be beneficial to them, because she loved them and wanted to spend as much time as she could with them.
Mother testified that she believed she could care for her children in the future. She admitted that she had not gone to any conferences at Jessica’s school, and in the past six months, she had not attended any medical or dental appointments with Jessica or S.
The court heard the argument of counsel. The Department’s counsel and the children’s counsel asked that mother and father’s parental rights be terminated to Jessica and S. The children’s counsel represented that Mr. and Mrs. R. had consistently facilitated visits, and understood the importance of Jessica and S.’s maintaining contact with their siblings.
Mother’s counsel argued that a continued relationship mother would be in the best interests of Jessica and S., because mother had visited them, although her visits were not exemplary, and because they recognize her as their mother. Counsel further argued that adoption would sever their contact with the girls’ siblings, Joshua, Rachel, and Robert.
Father’s counsel argued that terminating parental rights would substantially interfere with the sibling relationship between Rachel and her sisters, because the prospective adoptive parents of Jessica and S. were not willing to adopt Rachel along with her sisters. Counsel asked the court to apply the sibling bond exception to section 366.26, arguing that the sisters were bonded and would suffer detriment if their relationship were severed.
The court found by clear and convincing evidence that Jessica and S. were adoptable and that it would be detrimental to return them to their parents. The court commended mother for continuing to visit, but pointed out that she was still just visiting after three years, and the children were entitled to permanency. The court found no applicable exception to terminating parental rights, because in the year that Jessica and S. had been with their prospective adoptive parents, they referred to them as “Mom” and “Dad,” and Jessica had been able to focus on being a child instead of feeling responsible for her sister. The court found that the R. family had demonstrated a commitment to ensuring sibling visits on a regular basis, and that it would be detrimental to the children if parental rights were not terminated. The court therefore terminated the parental rights of mother and father to Jessica and S., and declared them free from the parents’ custody and control.
Mother filed a timely notice of appeal August 17, 2009.
DISCUSSION
Mother’s sole contention on appeal is that substantial evidence did not support the court’s finding that the sibling relationship exception set forth in section 366.26, subdivision (c)(1)(B)(v), was inapplicable.
A challenge to a juvenile court’s order terminating parental rights and refusing to apply a statutory exception is reviewed for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]” (Id. at p. 576.)
Some courts apply an abuse of discretion standard. (E.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) However, the Jasmine court recognized that “[t]he practical differences between the two standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling.... Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’...”’ [Citations.]” (Jasmine D., at p. 1351.)
We review the record to determine whether there is substantial evidence to support the finding that the exception does not apply. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) “We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts.... [We] affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]” (Ibid.)
Children have a compelling right to a stable, permanent home. (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) Once reunification services have been terminated, that right becomes paramount to the parents’ interest in the care, custody and companionship of their children. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) At the section 366.26 hearing, once a child has been found to be adoptable, the court is required to terminate parental rights and order adoption as the permanent plan for the child. (§ 366.26, subd. (c)(1); In re Celine R. (2003) 31 Cal.4th 45, 53.)
An exception to the preference for adoption may be made only when the parent has established a compelling reason for the court to determine that terminating parental rights would be detrimental to the child. (§ 366.26, subd. (c)(1)(B).) One such reason may be the substantial interference with a sibling relationship. (Id., subd. (c)(1)(B)(v).) To determine whether terminating parental rights would substantially interfere with a sibling relationship, the court should take into consideration such factors as “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.” (Ibid.)
Mother bore a heavy burden at the section 366.26 hearing to establish that exceptional circumstances justified the juvenile court’s application of the sibling relationship exception. (In re Celine R., supra, 31 Cal.4th at pp. 53, 61.) On appeal, the juvenile court’s orders are presumed to be correct, and the appellant bears the burden to show error. (See In re Julian R. (2009) 47 Cal.4th 487, 498-499.)
To demonstrate that substantial evidence did not support the court’s order, mother points to the CSW’s comment in the July 2006 disposition report that the children had a strong bond, and to evidence that the children visited with one another every two weeks. She also cites the children’s statements in October 2007, that they enjoyed the visits. Mother refers to summaries of the children’s visits. During a May 2008 visit, the children played games and talked about school, and S. danced with Rachel. In June 2008, Rachel and Jessica colored together, and Jessica invited Rachel to her party.
It is not enough for mother to demonstrate that there is sufficient evidence in the record favoring the application of the exception, and then stop there. (In re L. Y. L., supra, 101 Cal.App.4th at p. 947.) To meet her burden to show that the evidence was insubstantial, she must set forth, not just the evidence that favors her position, as she has done here, but all significant facts relevant to the issue. (In re S.C. (2006) 138 Cal.App.4th 396, 402, citing Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) As mother has failed to do so, she has not met her burden on appeal.
Moreover, the evidence cited by mother showed, at most, that Jessica and Rachel enjoyed a friendly relationship, not a close or strong bond between the sisters and their brothers, or between S. and Rachel. The statute suggests that more than a strong bond is required -- the court should consider whether the sibling bond is a strong and close. (§ 366.26, subd. (c)(1)(B)(v).) Other statutory factors are missing from the evidence cited by mother, as well. (Ibid.) It does not show that Jessica and Rachel were raised in the same home as their half-siblings, except for a short period when the children were very young. The girls were separated when Jessica was just five years old, and S. was just two years old. Thus, for nearly half their lives, Jessica and S. have been raised in a different home.
Further, the evidence cited by mother does not show that Jessica and S. shared significant common experiences with their siblings. The summaries of the children’s bimonthly visits revealed no significant common experiences the two younger sisters might have shared with Rachel or their brothers. The evidence showed that the children merely talked and played for an hour, with no indication that they behaved differently toward their siblings than they would with unrelated playmates. Although the older girls stated that they enjoyed the visits, S. was not always happy about them. Once, in May 2009, she was upset that she was required to visit her siblings, causing her to miss a school event.
Substantial evidence -- not cited by mother -- established that Jessica and S. would greatly benefit from adoption, another factor to be considered by the court. (See § 366.26, subd. (c)(1)(B)(v).) The girls’ therapist reported in February 2009, that Jessica and S. both showed strong emotional connections with their adoptive parents, who had learned to parent them effectively, and had assisted them in overcoming the emotional traumas they had suffered before joining them. The CSW reported in March 2009, that Jessica and S. were thriving with their prospective adoptive parents, and that they had bonded with them and called them “Mom” and “Dad.” The adoptive parents told the CSW that they loved the girls, and were overjoyed to have them become a part of their family. They have ensured that the girls’ medical, dental, legal, and mental health needs have been met. The CSW reported that the prospective adoptive parents had an extensive network of family, friends, coworkers, and church members who would be able to give them financial and emotional help.
Mother acknowledges that to apply the sibling relationship exception, the court was required to find that it would be detrimental to the child to terminate parental rights. (§ 366.26, subd. (c)(1)(B).) It was mother’s burden to establish such detriment. (In re Megan S. (2002) 104 Cal.App.4th 247, 252 (Megan).) To meet that burden, mother was required to produce evidence in the juvenile court, such as a psychological study or expert testimony, to demonstrate that the younger girls’ separation from their half-siblings would be detrimental to them. (Ibid.) Or, mother might have presented the children’s testimony. (Cf. In re Naomi P. (2005) 132 Cal.App.4th 808, 816-820 (Naomi).) Mother did none of these things, and thus did not carry her burden.
Finally, mother suggests that the Department was required to produce evidence that sibling visitation would continue. Neither case upon which mother relies imposed such a requirement. (See Naomi, supra,132 Cal.App.4th 808; Megan, supra, 104 Cal.App.4th 247.) In Naomi, the juvenile court applied the sibling relationship exception after hearing evidence that visits would continue if the child were placed in a legal guardianship with a particular relative, rather than an unrelated prospective adoptive parent. (Naomi,at p. 821.) The appellate court upheld the determination, because the parties opposing adoption had established that it would be detrimental to the child if sibling visits did not continue to the extent she needed. (Id. at p. 824.)
In Megan, it was undisputed that the child and her sister were bonded and shared a home and common experiences. (Megan, supra, 104 Cal.App.4th at p. 251.) The social worker had testified that it was preferable for Megan to maintain contact with her sister, but that she would also benefit by adoption. (Id. at p. 252.) The juvenile court balanced the two interests and chose adoption. (Id. at pp. 252-253.) The appellate court upheld the determination, noting that there is a preference for adoption, and that because the evidence showed a likelihood that visitation would continue, there would be no substantial interference with the sibling relationship. (Id. at p. 252.)
Neither case held that the absence of evidence that visitation will continue precludes adoption. Indeed, the Naomi court stated that “‘where possible, adoption is the first choice....’ [Citation.]” (Naomi, supra,132 Cal.App.4th at p. 822.) The Megan court held that a strong sibling bond was not enough to deny the child the benefits of adoption, and the party opposing adoption must establish that severing the sibling relationship would cause detriment to the child. (Megan, supra, 104 Cal.App.4th at pp. 251-254.)
We conclude that substantial evidence supported a finding that Jessica and S. would greatly benefit from adoption, and mother did not meet her burden to show otherwise. Thus, the juvenile court did not err in rejecting the sibling relationship exception.
DISPOSITION
The order of the juvenile court terminating parental rights is affirmed.
WE CONCUR: RUBIN, Acting P. J.FLIER, J.
All further statutory references are to the Welfare and Institutions Code.