Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWJ004267. Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI. § 21.)
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Minor.
OPINION
MILLER, J.
INTRODUCTION
Lynn P. (mother) appeals from an order terminating her parental rights to her daughter, K.B., pursuant to Welfare and Institutions Code section 366.26. Her sole contention is that the juvenile court erred in failing to apply the sibling relationship exception set forth in former subdivision (c)(1)(E) of section 366.26. We disagree and affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Effective January 1, 2008, the sibling relationship exception to termination of parental rights is codified at section 366.26, subdivision (c)(1)(B)(v). For purposes of clarity, we shall refer to it as former section 366.26, subdivision (c)(1)(E).
FACTUAL AND PROCEDURAL BACKGROUND
In February 2005, K.B. (born January 1998) and her half siblings, Carissa M. (born February 1989), Kayla M. (born June 1990), Curtis M., Jr. (born February 1992), and Kyle M. (born October 1993), were removed from mother’s custody and placed in foster care. One day earlier, mother had beaten Kyle with a belt, causing swelling to his face and left eye. A dependency petition was promptly filed, alleging, among other things, the incident of physical abuse against Kyle, as well as mother’s unresolved substance abuse and anger management issues. At the time the petition was filed, K.B.’s father was incarcerated, as was the father of K.B.’s siblings. At the detention hearing on March 1, 2005, the court ordered the children returned to mother on the condition she not use corporal punishment and the children attend school regularly.
The jurisdictional/dispositional hearing was held in late April 2005. The court found true the allegations of the petition, as amended, and declared the children dependents of the court. Mother was to retain custody of the children, subject to supervision by the social worker, and to participate in reunification services. By that time, however, it appeared that mother was already having difficulty managing the children.
The original petition included an allegation that mother had inflicted nonaccidental serious physical harm pursuant to subdivision (a) of section 300. As amended, the petition struck that allegation and also modified the subdivision (b) count to delete the reference to mother hitting Kyle with a belt and to instead provide that mother inappropriately disciplined Kyle.
On November 2, 2005, a section 387 supplemental petition was filed, alleging mother’s failure to participate in her court-ordered case plan and indicating that her “exact whereabouts” were unknown. The following day, mother’s whereabouts were ascertained, and on November 15, 2005, the court dismissed the supplemental petition without prejudice. The court also found that “conditions exist that would justify initial assumption of jurisdiction, or that such conditions are likely to exist if supervision is withdrawn.” A status review hearing was scheduled for May 15, 2006.
On February 10, 2006, a renewed supplemental petition was filed, alleging that mother had (1) not been compliant with her case plan as evidenced by her verbal and emotional abuse of the children and her use of corporal punishment to discipline her sons; (2) failed to provide adequately for the children’s needs; (3) failed to participate in counseling services for herself or to provide counseling for her children; and (4) tampered with her drug tests. The children were removed from mother’s custody and placed in confidential foster homes; Kayla and Carissa, who refused to reside with their siblings, were placed in one home, with the siblings in another.
It appears that even while the children were presumably in mother’s care, they were not always residing with her. In March 2006, Carissa told the social worker she had been living with her boyfriend and his parents for six months; Kayla said she was living with friends from school; and K.B. said she lived “off and on” with her maternal aunt, Laura N.
On April 12, 2006, the court held a jurisdictional/dispositional hearing on the section 387 petition. Mother did not appear, and no evidence was presented. The court found the allegations of the petition to be true and ordered that services be offered to mother and to the father of K.B.’s siblings, who by then had been released from prison.
In May 2006, K.B. was placed with her paternal stepgrandmother, D.J., in whose home she has since resided. On October 3, 2006, the court authorized DPSS to place Carissa, Kyle, Curtis, and Kayla with their father.
K.B.’s father and D.J.’s son are half brothers.
A contested six-month review hearing was held on November 7, 2006. In mother’s absence, the court ordered family maintenance services for the father of K.B’s siblings, terminated mother’s services with respect to K.B., and scheduled a section 366.26 hearing for January 18, 2007.
At the time DPSS’s permanency hearing report was prepared in early January 2007, the recommendation as to K.B. was legal guardianship, and D.J. was said to understand its ramifications. The report also indicated that K.B. said she wanted to continue staying with D.J., who “keeps her safe.” According to that report, “[w]hen both are observed, one would not know that the grandmother is not the biological mother of [K.B.]” K.B. was described as a well-mannered child who showed respect to people and was very courteous, qualities which she learned from D.J. D.J. enjoyed caring for K.B. and said she would do anything to protect her.
On January 18, 2007, at DPSS’s request, the matter was continued to April 10 to allow completion of an adoption assessment report. Furthermore, in light of a conflict of interest, new counsel was appointed to represent K.B.
In late February 2007, the four siblings were removed from their father’s custody and placed with their maternal aunt, Laura N. Shortly thereafter, the case was closed as to Carissa, who had turned 18 the previous month and who was living with her boyfriend.
On April 10, 2007, again at DPSS’s request, the hearing was continued to June 5. Two addendum reports were prepared, one in April and one in June. By April, the recommendation had changed to adoption as the most appropriate permanent plan for K.B. According to the June report, as between D.J. and Laura, K.B’s preference was to stay with D.J., where “there is always plenty of food, she has more fun, she gets help with her homework . . . and gets to play tetherball with her friends.” In fact, there was nothing she did not like about her current placement. K.B. did, however, like to visit Laura, as she would then get to see her siblings. When asked what she did not like about visiting Laura, K.B. said there was not enough food (although the report indicated that, according to the boys, there was always plenty of food). In any event, K.B. stated that even if her needs were met in both homes, she would prefer living with D.J. The social worker had spoken to Kayla, Curtis, and Kyle, who said they missed K.B. and wanted to know if she could come live with them.
The social worker further reported that both Laura and D.J. “wish to adopt [K.B.]. Both caregivers have opinions about each other and at times the investigation appeared to take on the dynamics of a custody battle. However, the child has expressed that she prefers to reside with the current caregiver, [D.J.], and that she would prefer to continue visiting her siblings at [Laura’s] home instead of residing with [Laura].”
At the June 2007, permanency hearing, K.B.’s attorney represented to the court that K.B.’s desire was to be adopted by her grandmother and to visit her aunt. In mother’s absence, her attorney advised the court it was his client’s request not to terminate her parental rights. Contending that the sibling relationship exception applied in that termination of parental rights would interfere with K.B.’s sibling relationships, he argued: “Two of her siblings are placed in foster care. One of the siblings is placed with a relative. Termination of parental rights would likely affect her ability to continue her relationship with those siblings, so we would ask that the Court consider a lesser plan of legal guardianship or long-term foster care.”
In opposing the position asserted on mother’s behalf, the deputy county counsel indicated that K.B. was visiting regularly with her siblings and there was no reason to believe that visitation would not continue. She further noted that K.B., who was much younger than her teenaged siblings, had been with D.J. for over a year, “and the disruption that it would cause her to not be in a permanent home with this particular adoptive mother would be far greater than any benefit she could possibly get from . . . being with her siblings in a different home or from not having this permanent and stable home with her adoptive mother.”
The court then terminated parental rights, finding that it was likely K.B. would be adopted and that none of the statutory exceptions applied. The sole issue before the court, in light of the argument presented, was whether potential disruption of the sibling relationships outweighed the benefit to K.B. of adoption, and whether severance of the sibling relationship would cause K.B. overall detriment, creating a compelling reason not to terminate parental rights. In resolving this issue, the court said, “I do not think it has been demonstrated to the Court that there will be a substantial interference with the child’s sibling relationships or that the child’s . . . interest in maintaining those relationships would outweigh the interest of having a permanent placement for that child; therefore, I do not find that that exception applies in this case.”
The court then proceeded with the permanency hearing as to K.B.’s siblings. As for Kyle and Curtis, who were residing together in a foster home where they both had been placed previously, DPSS recommended a “plan of planned permanent living arrangement.” As for Kayla, the recommendation was for legal guardianship with Laura. The court agreed as to the boys, but continued the matter as to Kayla for 30 days to enable DPSS to ascertain the status of Laura’s husband, who had a violent criminal history, suggesting that placement with Laura might not be appropriate for Kayla.
DISCUSSION
A. If the court finds that terminating parental rights would substantially interfere with a sibling relationship, it may select a permanent plan other than adoption.
Under former section 366.26, subdivision (c)(1)(E), if the juvenile court finds the child will be adopted within a reasonable time, adoption must be ordered “‘unless the court finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child’ because ‘[t]here would be substantial interference with a child’s sibling relationship . . . .’ [Citation.]” (In re Daniel H. (2002) 99 Cal.App.4th 804, 811.) The purpose of this exception is to preserve long-standing sibling relationships that 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 contains “strong language creating a heavy burden for the party opposing adoption.” (In re Daniel H., at p. 813.) “[T]he concern is the best interests of the child being considered for adoption, not the interests of that child’s siblings.” (In re Naomi P. (2005) 132 Cal.App.4th 808, 822 (Naomi P.).)
In deciding this issue, we apply the substantial evidence standard of review. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017 (Jacob S.).) Under this standard, an appellate court must affirm the juvenile court’s order if there is evidence that is reasonable, credible, and of solid value to support the order (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080), and the evidence must be considered “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. [Citation.]” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
We recognize that some courts, in reviewing a juvenile court’s ruling on whether an exception applies to termination of parental rights, have applied the abuse of discretion standard. (See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [applying parental benefit exception is a “quintessentially discretionary determination”].) However, “[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.]” (Ibid.)
“The parent bears the burden of showing that a sibling relationship exists and that its severance would be detrimental to the child. [Citation.] The existence of a relationship alone is not enough, but it must be ‘sufficiently significant’ to cause detriment on termination. [Citation.] If the court finds that there is a substantial detriment, it must ‘weigh the child’s best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption.’ [Citation.]” (Jacob S., supra, 104 Cal.App.4th at p. 1017.) Thus, making a determination as to whether the sibling relationship exception applies is a two-step process. In the present case, the court found there had been no showing that terminating parental rights would substantially interfere with K.B.’s relationships with her siblings or that K.B.’s interest in maintaining those relationships outweighed her interest in having a permanent and stable home. However, because the court found that the first prong had not been satisfied, there was no need for it to go any further. It follows that inasmuch as substantial evidence supports the court’s finding that terminating parental rights would not interfere with K.B.’s sibling relationships (see In re L.Y.L. (2002) 101 Cal.App.4th 942, 952), we do not reach the second prong.
B. Substantial evidence supports the juvenile court’s finding that the sibling relationship exception was inapplicable.
Mother contends the court erred in finding that the sibling relationship exception did not apply. She argues that K.B. had significant relationships with her siblings, the severance of which would be detrimental to her. Further, she contends that, in light of the animosity between D.J. (K.B.’s prospective adoptive mother) and Laura (the caretaker of the sibling), K.B.’s ability to maintain those relationships was at risk.
In support of her position, mother points to the following: In April 2006, the siblings visited together at Laura’s house; in November 2006, K.B. visited her siblings every weekend and talked on the telephone during the week; in February 2007, K.B. said she wanted to live with Laura; in April 2007, K.B. said the only reason she likes to visit Laura is to see her sisters; in April 2007, Laura told the social worker that she wanted K.B. placed in her care as it would be in K.B.’s best interests to be with her siblings; and in April 2007, Kayla, Curtis, and Kyle said that they missed K.B., and the boys wanted to know when K.B. could come live with them. Moreover, mother infers that because the siblings were raised together in the same home, they automatically shared significant common experiences which warrant application of the exception. Her position is unavailing.
That K.B. had a relationship with her siblings cannot be disputed. Indeed, she resided with them for the first seven years of her life and continued to visit with them on a regular basis after all of the children were removed from mother’s custody. And it is reasonable to presume that K.B. would benefit from continued contact with her siblings. However, that is not the test. As we have already said, the existence of a relationship alone is not enough; the relationship must be “sufficiently significant” to cause detriment upon termination. As was recognized in In re L.Y.L., supra, 101 Cal.App.4th at page 952: “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.” Even if visits were to be discontinued, a child’s desire to continue seeing his or her siblings does not, without more, establish a compelling reason for applying the exception.
In support of its position that K.B. did not share a significant bond with her siblings, DPSS points to the fact that K.B. preferred staying in D.J.’s home rather than in Laura’s home, where the siblings were then residing. Mother responds that there is nothing in the record to show that K.B.’s desire to live with D.J. had anything to do with her siblings. Mother contends that K.B.’s strong relationship with her siblings “should not be minimized simply because she lived in a stable home where she preferred to stay. Since she had frequent visitation with her siblings while she lived at D.J.’s and while the case was open, logic dictates that she did not think she would not be able to see her siblings if she stayed with [D.J.] The record does not state whether K.B. was asked if she would want to live with [D.J.] if it meant she could not see her siblings. [Mother] suggests that K.B. would not.” In taking this position, mother overlooks the reality that there simply is no evidence of a substantial bond.
Nor does the record establish, as mother asserts, that K.B. was actually confused as to where she wanted to live. Mother relies on the social worker’s notes following a visit with K.B. on February 6, 2007, when K.B. told the social worker that she wanted to live with Laura. Noting that one month earlier K.B. said she wanted to stay with D.J., the social worker wrote that K.B. “appeared to be confused at this point. She is nine years old, and caught up between two families that love her very much. She appeared to be trying not to hurt [anybody’s] feelings. She has been at her current placement for about 8 months without any complications. The caretaker speaks highly of [K.B.] and has been providing all of her physical and emotion[al] needs since.” However, this is apparently the only reference in the record to K.B. wanting to live with her aunt. In April, and again in June, K.B. said she wanted to stay with D.J. The fact that K.B. at one time said she wanted to live with Laura does not necessarily mean that she was confused.
Mother relies heavily on Naomi P., supra, 132 Cal.App.4th 808. In that case, the juvenile court applied the sibling relationship exception even though the child had never lived with any of her siblings. In explaining its ruling, the court found the testimony and demeanor of the minor’s siblings particularly compelling: “‘The one thing that struck me about all of the children’s testimony was their demeanor. Each had a happy, joyful expression on their face when they talked about Naomi.’” (Id. at p. 821.)
In affirming the juvenile court’s order, the Court of Appeal noted the court’s reliance on the siblings’ testimony, stating: “It is not our role to interfere with the trial court’s assessment of the witnesses’ demeanor and credibility.” (Naomi P., supra, 132 Cal.App.4th at p. 824.) The reviewing court explained that the court’s observation of the children’s “testimony constituted powerful demonstrative evidence that it would be in Naomi’s best interest to ensure continuation of the [sibling] relationship[s].” (Ibid.) And it agreed with the trial court’s determination that “‘these siblings have been a constant thread in this young child’s life and . . . there is a compelling reason to believe that continued contact is important for this child’s long-term emotional well-being.’” (Ibid.) Additionally, the Court of Appeal found “important” the juvenile court’s observation of the prospective adoptive mother’s testimony, which gave the juvenile court “reason to question whether, if adoption were ordered, visitation would be allowed to continue to the extent Naomi needs.” (Ibid.) For these reasons, the appellate court concluded, “[t]he juvenile court had before it substantial evidence to support its conclusion that all requirements had been met to justify application of the sibling relationship exception.” (Ibid.)
Naomi P. is distinguishable from the present case for several reasons. First, the juvenile court ruling in that case—that the sibling exception applied so as to preclude adoption—is the opposite of the situation in the case before us. Indeed, the task facing the reviewing court in Naomi P. was to determine whether there was substantial evidence to support the exception’s applicability, whereas ours is to determine whether substantial evidence supports the court’s finding that the exception is inapplicable. Prior to Naomi P., the only published decisions regarding the sibling relationship exceptions were those in which appellate courts had affirmed orders refusing to apply the sibling relationship exception. (See Naomi P., supra, 132 Cal.App.4th at p. 823.) As the Naomi P. court itself explained, precedents for the one type of situation “are of somewhat limited value” to courts faced with the other situation. (Ibid.) Naomi P. thus provides little guidance for this case.
More importantly, Naomi P. is distinguishable on its facts. Above all, the children in Naomi P. shared a bond, as evidenced by the demeanor and testimony of the siblings, upon which the juvenile court heavily relied. Through their testimony, it became “‘very clear to [the court] how very deeply these children love their little sister.’” (Naomi P., supra, 132 Cal.App.4th at p. 821.) Furthermore, because Naomi was too young to verbalize her own feelings, the testimony of the siblings enabled the court to discern the feelings the children had for each other. Here, by contrast, although the siblings were old enough to testify at the time of the hearing, none did. The only evidence presented was the social worker’s report that the children said they missed K.B. If the siblings had something to say, counsel for mother could easily have called upon them to testify as to their feelings about K.B. and what it would mean if they did not see her again. True, when considering the exception, the concern is the child who is to be adopted, not the siblings. (Id. at p. 822.) However, what the siblings have to say is indirect evidence of the effect the adoption may have on the adoptive child. (In re Celine R. (2003) 31 Cal.4th 45, 55.) In any event, K.B. was old enough to express her wishes and her feelings—and at no time did she say either that she wanted to live with her siblings or that it was essential she continue to see them.
Mother points to Naomi P. as “a good example of a case where there can be a significant sibling relationship despite age differences and despite whether they live together.” Further, she contends the present case is even stronger because the children did live together. She misses the point. The trial court’s decision in Naomi P. was unrelated to whether the children lived together; what mattered was the demeanor of the siblings and how it portrayed the relationship between them, i.e., the siblings were happy and joyous when talking about Naomi.
In the present case, while the children did live together for many years, there is no evidence that their lives were intertwined, as in Naomi P. Indeed, there is a dearth of evidence that K.B. felt close enough to her siblings that she would rather give up a chance for a stable and loving adoptive home than lose any relationship she may have with them. Mother acknowledges that the record does not contain a great deal of information about the sibling relationship, but argues that because the children were older when they were removed from her custody, there is, in essence, a presumption that they shared significant common experiences sufficient to warrant application of the exception. She contends: “The fact that the social worker did not document exactly what [the siblings] did during the visits does not mean it did not occur. The facts in the reports provide indirect evidence that the siblings played together and spent quality time together. The siblings would not say they missed each other and wanted to live together if they did not have a significant relationship.” What mother is asking us to do is prevent a proposed adoption based purely on speculation. We are neither willing nor able to do so.
In any event, contrary to mother’s assertion, there is “no evidence that the relationships between any of the siblings will necessarily cease upon termination of parental rights.” (Jacob S., supra, 104 Cal.App.4th at p. 1019.) Indeed, unlike the situation in Naomi P., there is no indication here that the siblings’ caretakers do not appreciate the importance of maintaining sibling contact or that any discord between them will likely stand in the way of a meaningful relationship between the siblings. Nonetheless, during closing argument at the permanency hearing, mother’s counsel acknowledged that K.B.’s brothers, who had previously been placed with Laura, were in foster care, and that only Kayla remained in Laura’s home. Thus, any issue as to the effect the feelings of the caretakers for one another might have on the ability of the siblings to maintain a relationship was essentially moot. It is curious that appellate counsel for mother takes the untenable position that “[t]he animosity between the two caretakers casts more doubt than reassurance regarding whether sibling visitation would continue.”
As previously indicated, there was a possibility that Kayla, too, would be removed from Laura’s home.
Finally, we disagree with the premise, as urged by mother, that no matter what the relationship is between K.B. and D.J., the placement will be permanent; thus, legal guardianship is “another permanent plan that can provide for the same permanence while at the same time safeguarding the very important relationship K.B. had with her siblings. As the circumstances in Naomi P. demonstrate, a legal guardianship is not necessarily permanent.
The opinion in Naomi P. indicates that in November 2001, Naomi was placed with mother’s cousin, Veronica, who was willing to provide long-term foster care. By June 2002, Veronica wished to adopt Naomi, but changed her mind a few months later and was appointed legal guardian. In December 2003, Veronica was no longer able to care for Naomi, who was then placed with Virginia, a family friend. Meanwhile, Naomi’s maternal grandmother, who was legal guardian to Naomi’s siblings, offered to be Naomi’s legal guardian, but needed some time and asked that it be postponed for a while. In July 2004, Virginia said she wanted to adopt Naomi; and in November, upon the court finding the sibling relationship exception applied, Virginia was appointed Naomi’s legal guardian. (Naomi P., supra, 132 Cal.App.4th pp. 814.)
In sum, substantial evidence supports the juvenile court’s determination that the sibling relationship exception did not apply.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: McKINSTER, Acting P.J., GAUT, J.