Opinion
G059268
01-06-2021
In re A.B., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.B. et al., Defendants and Appellants.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant A.B. (Mother). William Hook, under appointment by the Court of Appeal, for Defendant and Appellant A.M. (Father). Leon J. Page, County Counsel, Karen L. Christensen, and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent. No appearance by the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DP025039-002) OPINION Appeal from a judgment of the Superior Court of Orange County, Jeremy D. Dolnick, Judge. Affirmed. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant A.B. (Mother). William Hook, under appointment by the Court of Appeal, for Defendant and Appellant A.M. (Father). Leon J. Page, County Counsel, Karen L. Christensen, and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent. No appearance by the Minor.
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A.B. (Mother) and A.M. (Father) appeal from a judgment terminating parental rights to their six-year-old son, A.B., at a hearing held pursuant to Welfare and Institutions Code section 366.26 (permanency hearing). The court determined A.B. was adoptable and his caregivers wanted to adopt him and provide a permanent loving home. Mother contends the juvenile court erred when it failed to order post-adoption sibling visitation between A.B. and his younger brother I.B. Earlier this year, this court affirmed the trial court's decision to separate the siblings and return I.B. to Mother's care. (In re I.B. (2020) 53 Cal.App.5th 133 (I.B.).) We conclude the arguments raised in this appeal lack merit, and we affirm the judgment.
All further statutory references are to the Welfare and Institutions Code.
Father's opening brief joins with the arguments set forth in Mother's brief. He does not raise any additional arguments.
FACTS
We incorporate by reference our detailed statement of facts contained in the I.B. opinion. To briefly summarize, in February 2017, Orange County Social Services Agency (SSA) removed the children due to their exposure to domestic violence and a messy home. (I.B., supra, 53 Cal.App.5th at p. 154.) The case languished for several years because the sibling set was very difficult to place due to A.B.'s extreme behavioral issues. (Ibid.) Mother, who is legally blind, struggled to control and discipline A.B. during visits, and there was evidence A.B. bullied and physically abused his younger brother, I.B. Eventually, SSA found foster parents (Hope and Jonathan), who had worked with the children in their group home and were willing to adopt the siblings. Due to an additional year of services between the 18-month review and the permanency planning hearing, Mother's circumstances improved significantly. She was able to show substantial evidence of changed circumstances, and in January 2020, the court granted her section 388 petition to separate the siblings and return I.B. to her care. (Id. at pp. 159-160.)
I.B.'s counsel filed an appeal, asserting the siblings should not have been separated and that it was not in I.B.'s best interests to change custody. (I.B., supra, 53 Cal.App.5th at p. 135.) We affirmed, holding that while it was a close case, the trial court did not abuse its discretion. (Ibid.) I.B. was clearly bonded to both his mother and the foster parents. "What tipped the scales, and was discussed at length at the hearing, was that both potential placements had disadvantages. . . . [T]here was evidence of a high risk of future harm to I.B. by his older brother at his current placement. If A.B. was one of the foster parent's biological children or an unrelated foster child, there would be little discussion about the appropriateness of placing I.B. somewhere he was being treated as a 'human punching bag,' sustaining bruises, scratches, and red marks on his neck. I.B.'s counsel and SSA argue[d] there was a need to preserve the sibling bond, but they [did] not suggest how this relationship benefitted I.B.'s best interests and, in particular, his need for a stable home environment. Without a bonding study or expert opinion, there is little to contradict the overwhelming evidence the abusive nature of the sibling relationship was unhealthy. Living in an abusive environment can provide permanency but not necessarily a healthy and stable situation." (Id. at p. 160.)
I.B.'s counsel discussed cases noting the importance of preserving the sibling relationship. We concluded: "This case is different because I.B. was being separated from a sibling to be reunited with his mother. While there was evidence of a significant beneficial relationship between I.B. and Mother, the same could not be said about I.B.'s relationship with his brother. Rather, I.B. was terrified of his brother. 'Not all sibling relationships are strong or healthy.' [Citation.] 'Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended.' [Citation.]" (I.B., supra, 53 Cal.App.5th at p. 160.)
While the I.B. appeal was pending, the trial court continued the permanency hearing as to A.B. because the court was unclear if the foster parents were willing to adopt him without I.B. The court asked for additional evidence about A.B.'s adoptability and if any of the exceptions to terminating parental rights applied.
Social worker Michael Cos filed a report in February 2020, stating the foster parents did not believe the children should have been separated but they were committed to adopting A.B. In May 2020, Cos asked the foster family for their thoughts about legal guardianship over adoption. They opposed legal guardianship because they felt like the court would be using them to take care of A.B. but not adopt him. They added Mother should not be given an "opportunity to come back later in life to take him from us."
In early March 2020, A.B. was diagnosed with "Attention Deficit/Hyperactivity Disorder, Combined Type" and "Conduct Disorder . . . Moderate." The therapist recommended A.B. be evaluated by a psychiatrist for a more accurate diagnosis. Mother and Father visited A.B., but they struggled to handle his aggressive behavior towards I.B. or discipline him. I.B. was returned to Mother's care at the end of March 2020. Thereafter, Mother's and Father's visits with A.B. were suspended due to the COVID-19 pandemic, but they participated in FaceTime calls.
After I.B. went to live with Mother, A.B. missed him terribly and emotionally struggled with his absence. In the beginning, he would frequently ask about his brother. He was described as being "more emotional, clingy, and [he would] sporadically cry." During video visits, A.B. appeared to be protective of his brother and would offer Mother advice on how to appropriately parent I.B. A.B. told Mother that he was angry with the court for taking I.B. away because his brother was "supposed to be home with [him]."
In June 2020, the caretakers reported A.B. had defecated three times in inappropriate places. They spoke with his therapist, who believed the incidents were "connected to the child's separation anxiety over his younger brother leaving the placement." The social worker interviewed A.B., who indicated he was sad I.B. was not living with him and he wanted I.B. to return. A.B. was also having trouble sleeping and his caretakers would reassure him during the night that they were still there. The therapist believed A.B. was "struggling to adjust to being alone[.]" The therapist stated A.B. worried about his brother and wondered what was going to happen to them. While being home schooled during the COVID-19 pandemic, A.B.'s behavior improved. He liked school and did not complain about homework.
In July 2020, Hope submitted a Caregiver Information Form. She reported six-year-old A.B. was a healthy, energetic boy. She described his emotional health as continuing to be "rocky" because his aggressive behaviors (physical and verbal) were persistent. In addition, since I.B.'s departure, A.B. was more anxious and he sought to control all aspects of daily life. She stated the following: "As [A.B.] maneuvers through what appears to be the five stages of grief, we continue to reassure him that he has our love and attention and that we are here for him for whatever he needs. We have continued to observe that he experiences a sense of safety, security[,] and comfort within our home and can be de-escalated with ease if interacting with either Jonathan or myself." She confirmed A.B. was excelling with home schooling and at the last Individualized Education Program meeting they discussed whether to eliminate A.B.'s modified school schedule. Hope stated visits with Mother were "fair at best" and sometimes Mother made inappropriate remarks to A.B. She provided a detailed account of A.B.'s feelings and needs for the future. She concluded, "Over the past two weeks, [A.B.] has seemed to be on the cusp of full acceptance of the separation [from I.B.] He does appear to still have a bit of anxiety regarding [I.B.'s] well-being, but Jonathan and I are working on positive ways to help [him] work through those temporary feelings of fear, doubt[,] and uncertainty."
California Rules of Court, rule 5.534(k)(2) provides, "The current caregiver has the right to be heard in [certain] proceeding[s] . . . including the right to submit information about the child to the court before the hearing. Written information about the child may be submitted to the court using the Caregiver Information Form (form JV-290) or in the form of a letter to the court."
Hope provided the following recommendation to the court: "I stand by my previous recommendation to have [A.B.] remain in the care of my husband and I as adoptive parents. [A.B.] continues to flourish into a charismatic, charming, protective[,] and responsible person as we continue to provide him with love, patience[,] and compassion in a healthy and safe environment. Jonathan and I are committed to helping [A.B.] continue to have a strong bond between him and his younger brother, [I.B.], as well as his parents. We understand how much that is needed in order for him to feel complete. A week before his birthday this year, I asked [A.B.] what he wanted as a gift and without hesitation, he looked me in the eye and said 'I just want my baby brother back for my birthday. That's it.' His eyes and his tone of voice let me know that he was sincere in his request. So, a couple of days prior to [his] birthday celebration, I reached out to [Mother] to ask if it would be okay if we could have the boys meet while following the Center of Disease Control's safety guidelines for social distancing; [Mother] agreed. After his party was over, we took [A.B.] to see [I.B.] on his birthday as a surprise. He was so excited upon seeing [I.B.] that he let out a loud squeal and began to clap his hands. They spoke to each other from approximately [10] ten feet away. They took turns yelling out how much they love and miss each other and how they wish they could give each other big hugs. It was truly a heartwarming sight as you can tell that both of them were being genuine. Jonathan and I packed some of the Spiderman-themed food from the party so that [Mother and I.B.] could share some part of the festivities--even if from a distance. On the car ride home, [A.B.] said something like, 'Now it's okay that I only got cupcakes for my party because I got my wish.' Jonathan and I would like to continue to foster more of these sweet and fond memories as time progresses."
In July 2020, the court resumed the permanency hearing. The court first heard testimony from Jonathan, who stated he and his wife were committed to adopting A.B. After discussing A.B.'s behavioral progress, Jonathan stated he and Hope organized visits with I.B. and they were "very committed" to ensuring an ongoing sibling relationship. Jonathan explained he intended to keep Mother and I.B. in A.B.'s life. He stated, "I grew up without my brother and my siblings, and it took me forever to be able to find them once I became an adult." Jonathan stated he now had a relationship with his siblings, and added he could not "just see a child growing up and not having any contact with his siblings. So it's . . . as much as I'm breathing, that's how committed I am." Jonathan reiterated he was not in favor of legal guardianship because he wanted what was best for [A.B.] and it would be difficult to know the child could be "snatched away" from him "at any time because, you know, . . . I love that little boy, and . . . I just don't want to lose him[.]" When asked to explain why he was feeling emotional when discussing legal guardianship, Jonathan stated he felt A.B. was his "son," and while he understood how his biological parents felt, the child was also part of his family. He wanted A.B. to have "a good life" and it was not fair what the child was going through.
During closing arguments regarding the sibling bond exception (section 366.26, subdivision (c)(1)(E)), SSA's counsel stated the boys had "a close relationship" but there was no concern adoption would substantially interfere with the sibling relationship. Counsel explained the foster parents were "dedicated" to facilitating sibling contact. Mother's counsel argued the court could not rely on the caretakers' statements that they would not cancel visits with Mother and I.B. Counsel argued that if SSA believed visitation was not an issue SSA "could have proposed a post-adoption contract[.]" Counsel voiced concern SSA never took steps to guarantee visitation. Father's counsel joined in Mother's arguments. A.B.'s attorney agreed and asserted that, "the court cannot rely on promises of the foster family to make continued contact." However, he concluded A.B.'s positive relationship with his brother was ultimately outweighed by the benefits of having a permanent home.
"If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption. (§ 366.26, subd. (c)(1)(E).)" (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952, italics added.)
The court ruled A.B. was adoptable. It determined the foster parents' opposition to legal guardianship was not due to a lack of commitment but rather demonstrated "how strongly they want[ed]" A.B. to live with their family permanently. Turning to the statutory exceptions to terminating parental rights, the court determined none applied, including the sibling bond exception. In reaching this conclusion the court stated it was not relying on a post-adoption visitation agreement. It determined there was evidence that Jonathan and Hope were committed to maintaining a relationship between the siblings, they had facilitated visits in the past, and there was "no reason to believe they would not continue to do so." The court found Jonathan's testimony he was committed to maintaining the sibling relationship was credible. The court recognized A.B. had suffered emotionally due to being separated from his brother but also the foster parents reported he was improving in that regard. It noted there was evidence A.B. felt safe with Jonathan and Hope and enjoyed living with them. The court concluded that in weighing the benefits of the two relationships, adoption outweighed the sibling relationship. The court ordered Jonathan and Hope would now have de facto parent status.
The court added it was "mindful that [A.B.] [was] not generally adoptable, and that he currently lives with a family who desires to adopt him." It commented that if the placement were to fail, the child's prospects for adoption would decline significantly. However, it believed "the current caregivers have been dedicated to addressing [the child's] behavioral and special needs in the home and through therapy. His progress is purely a result of commitment by these particular caregivers[.]" The court stated it would not be inclined to order legal guardianship and "deny [A.B.] the permanency he deserves." The court stated there would be no benefit in placing the child in the limbo of legal guardianship, especially when his caregivers were "willing to commit to him and his special needs." It added that ordering legal guardianship would only benefit the parents, which was not the purpose of the sibling benefit exception.
At the end of the hearing, Mother's counsel asked the court if it was "the court's intention or desire to continue" with sibling visitation "during this next transition period?" The court stated its ruling reflected "that my belief was these kids were going to continue to have the visitation. If something were to [be] disrupted then I want to know about it." The court acknowledged the siblings were going in different directions and asked, "do we need to set up any kind of a mediation for any kind of post-sibling contract or anything of that nature?" SSA's counsel stated there was no reason to believe visitation would cease. Mother's counsel replied visitation was tied to Mother's visitation under COVID-19 conditions and he believed SSA would "just shut down everything." The court stated visitation would have to be arranged between Mother and the foster parents. It advised, "If I'm wrong and somehow tomorrow there's a shutdown of these visitations, then bring it to my attention right away and I'll address it. I think this is a cooperation between people. I can't imagine [SSA] is going to call the caregivers and [Mother] and say 'this visitation is done'" The court stated it would order SSA "not to do that" but it could not "fathom that would happen or anyone would encourage any of the parties to do that. I think they're all committed to this in whatever shape or form that should arrive at this point." The court repeated the parties should let it know immediately if something changed because it would "address it right away."
DISCUSSION
Mother asserts we must reverse the court's order terminating parental rights because the court erred by not ordering SSA or A.B.'s attorney to set up a post-adoption visitation contract. She faults the court for relying on A.B.'s foster parents' unwavering commitment to facilitate visitation. We conclude she lacks standing to raise this issue, and in any event, the argument fails on the merits.
Mother suggests she has standing to raise this issue because in the In re Cliffton B. (2000) 81 Cal.App.4th 415, 426-427 (Cliffton B.) case, the court referred to section 16002, subdivision (e) (regarding duties to develop plans for ongoing visitation) after it terminated parental rights. She misconstrues the case. In Cliffton B., the father, the dependent child, and the child's brother appealed from an order terminating the father's parental rights on the ground that the juvenile court failed to adequately consider the issue of sibling visitation at the hearing to terminate parental rights. The court considered the issue only because the child was a party to the appeal. (Id. at p. 425.) It held the father lacked standing to raise the issue. (Ibid.) Moreover, the court determined the issue of sibling contact was not relevant to the determination of whether parental rights should be terminated. (Id. at pp. 426-427.) Preserving a child's relationship with relatives was not an exception for terminating parental rights. (Id. at p. 427.)
Similarly here, Mother and Father lack standing to raise issues regarding the siblings' interests in each other because their own parental rights are not affected. (Cliffton B., supra, 81 Cal.App.4th at p. 425.) In other words, a minor's interest in maintaining a relationship with a sibling is unrelated to the parents' interest in reunification. (Ibid.) The sibling contact issue can only be raised by the minors, and neither A.B. nor I.B. joined in this appeal.
In any event, if we were to address the merits, we would find no reversible error because the court did not have an affirmative duty to keep the siblings together at the permanency planning stage of the proceedings. "'The goal of permanency planning is to end the uncertainty of foster care and allow the dependent child to form a long-lasting emotional attachment to a permanent caretaker.' [Citation.] Adoption is preferable to permanency plans of guardianship and long-term foster care. [Citation.]" (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1188.) The parties, including A.B.'s attorney, do not maintain the court erred by choosing adoption as the permanent plan.
Mother's reliance on section 16002 is misplaced. This provision reflects the Legislative policy of maintaining sibling togetherness. When that is not possible, SSA must make "a diligent effort" to provide siblings with "ongoing and frequent interaction" when "as part of developing the permanent plan for the child" if parental rights are terminated. (§ 16002, subd. (b).) The statute provides that if parental rights are terminated and a child is placed for adoption, SSA must take affirmative steps to facilitate ongoing sibling contact, unless it would be detrimental to the child. (§ 16002, subd. (e).) The steps include providing information and training about the importance of maintaining sibling relationships. (§ 16002, subd. (e)(1) & (2).) SSA must also "to the extent practicable" gather the child, his sibling, the prospective adoptive family, and "a facilitator" together for a meeting to decide if the adoptive parents will voluntarily execute a postadoption sibling contract agreement" following the termination of parental rights. (§ 16002, subd. (e)(3).) This last step allows the prospective adoptive parents to experience firsthand the sibling relationship during a meeting designed to encourage them to execute a postadoption sibling contract.
Section 16002, subdivision (b), provides in relevant part: "When placement of siblings together in the same home is not possible, a diligent effort shall be made, and a case plan prepared, to provide for ongoing and frequent interaction among siblings until family reunification is achieved, or, if parental rights are terminated, as part of developing the permanent plan for the child." (Italics added.)
Section 16002, subdivision (e) provides: "If parental rights are terminated and the court orders a dependent child . . . to be placed for adoption, [SSA] shall take all of the following steps to facilitate ongoing sibling contact, except in those cases provided in subdivision (b) where the court determines by clear and convincing evidence that sibling interaction is contrary to the safety or well-being of the child: [¶] (1) Include in training provided to prospective adoptive parents information about the importance of sibling relationships to the adopted child and counseling on methods for maintaining sibling relationships. [¶] (2) Provide prospective adoptive parents with information about siblings of the child; . . . . [¶] (3) To the extent practicable, the county placing agency shall convene a meeting with the child, the sibling or siblings of the child, the prospective adoptive . . . parents, and a facilitator for the purpose of deciding whether to voluntarily execute a postadoption sibling contract agreement . . . on a date after termination of parental rights and prior to finalization of the adoption. . . ." (Italics added.) --------
In this case, Jonathan and Hope did not have to "meet" I.B. or be shown his relationship with A.B. This is a unique case in which the prospective adoptive parents cared for the child and his sibling for over a year, and also witnessed firsthand A.B.'s grief process after being separated from his brother. Mother does not explain what would be gained by holding an additional meeting and she does not suggest A.B.'s caretakers did not know about the possibility of signing a postadoption sibling visitation contract. In addition, we found no evidence in this record, and Mother cites to none, suggesting SSA failed to provide training or information discussed in section 16002. To the contrary, Hope's heartfelt statements in the Caretaker Information Form and Jonathan's emotional testimony strongly suggest the prospective adoptive parents fully understood and appreciated the importance of maintaining the sibling relationship. Because A.B.'s adoption has not been finalized, there is still time for the adoptive parents to consider signing a postadoption sibling visitation contract.
We appreciate the court in Cliffton B. recognized that "[a]fter the permanent plan is selected," the court may consider the issue of sibling contact. (Cliffton B., supra, 81 Cal.App.4th at p. 427.) That court acknowledged the argument that a "literal reading" of section 16002 only directs SSA to take action "and does not place any affirmative duty on the juvenile court unless sibling interaction is suspended." (Ibid.) Nevertheless, the court concluded the juvenile court had an implied duty to consider visitation before adoption takes place. "[T]he obvious intent of the Legislature would be eviscerated if the juvenile court were not required to consider sibling contact for a dependent child over whom it has jurisdiction. The statute contemplates that sibling contact will be an ongoing issue subject to periodic review throughout the dependency proceedings. When the juvenile court terminates parental rights and refers a child for adoption, it retains jurisdiction over that child until the adoption is effected. During that interim period, the juvenile court can make visitation orders as it sees fit, and sibling contact should remain the subject of its concern." (Ibid., italics added.) In Cliffton B., the court determined that because the juvenile court adopted SSA's report, that recommended two hours of sibling visitation each month, the juvenile court satisfied "any implied duty" it had "to consider sibling visitation." (Ibid.)
In the case before us, the court did much more than merely adopt a social worker's report. In the context of evaluating the sibling bond exception, the court considered a great deal of direct evidence about the caregivers' strong commitment to maintaining the sibling relationship and A.B.'s grief process following his separation from I.B. It determined Jonathan was a credible witness, whose own suffering in losing contact with his siblings was a compelling reason to believe his avid commitment to facilitating visits. It was astonishing that when Jonathan compared the need to maintaining sibling ties as being akin to the autonomic response of breathing. Similarly, Hope's feelings of love and support for A.B. prompted her to arrange visits for the child because she understood contact with I.B. was vitally important to him. She believed maintaining the brotherly bonds were important because they made A.B. "feel complete." Hope described how she reached out to Mother to coordinate a special socially-distanced birthday celebration for the siblings despite the COVID-19 pandemic.
When making its ruling, the juvenile court considered the totality of the circumstances, which included A.B.'s unresolved aggressive behavioral issues, his emotional suffering, signs of improvement due to the loving support of his foster parents, and their commitment to maintaining sibling contact. Moreover, at the end of the hearing, the court appropriately expressed an interest in setting up a "post sibling contract," his reference to a postadoption visitation contract. The court correctly understood this type of contract can be arranged during the interim period before "adoption is effected." (Cliffton B., supra, 81 Cal.App.4th at p. 427 [court retains jurisdiction before adoption].) The court's statements reflected its recognition the court lacked authority to compel the foster parents to sign this kind of agreement, but it also appreciated the foster parents were cooperative and fully grasped the importance of ongoing contact. (See Cal. Rules of Court, rule 5.451(b) ["No prospective adoptive parent or birth relative may be required by court order to enter into a contact-after-adoption agreement"].) The court was clearly taken aback by Mother's counsel's suggestion SSA or the foster parents would stop visitation after parental rights terminated. It asked to be notified if circumstances changed. In light of all the above, we cannot say the court failed to consider or demonstrate its concern for the issue of sibling visitation in this case. We find no error.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: MOORE, J. FYBEL, J.