Opinion
2d Juv. No. B300145
06-01-2020
IN RE JIMMY M. et al., Persons Coming Under The Juvenile Court Law. VENTURA COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T.R., et al., Defendants and Appellants.
Michelle J. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant T. R. Nancy R. Brucker, under appointment by the Court of Appeal, for Defendant and Appellant J. M. Leroy Smith, County Counsel, Joseph J. Randazzo, Assistant County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. J071678, J071679, J071680, J071681)
(Ventura County)
T.R. (mother) and J.M. (father) appeal the juvenile court's order terminating their parental rights to their minor children James and J. with a permanent plan of adoption, and continuing the placement of their minor children Jimmy and Jeremy with their paternal grandmother as a fit and willing relative. (Welf. & Inst. Code, § 366.26.) Appellants contend the court erred in finding that the sibling relationship exception to adoption (id., subd. (c)(1)(B)(v)) did not apply to James and J. Father also contends the court erred by declining to grant the paternal grandmother legal guardianship of Jimmy and Jeremy. We affirm.
All statutory references are to the Welfare and Institution Code unless otherwise stated. --------
FACTS AND PROCEDURAL HISTORY
Dependency Petitions; Detention
Appellants are the natural parents of Jimmy (born in March 2008), Jeremy (born in August 2011), James (born in August 2015), and J. (born in July 2016). In December 2017, the Ventura County Human Services Agency (HSA) filed dependency petitions as to all four children. On November 30, 2017, appellants were arrested following the execution of an arrest and search warrant at their apartment. Drug paraphernalia, firearms and ammunition were found within reach of the children and the home was dirty, cluttered, and unsafe. The petitions alleged that appellants "have ongoing issues of domestic violence in the presence of the child[ren]" that "create substantial risk to the child[ren]'s emotional and physical well being." Father was also reported to have a history of substance abuse and criminal behavior. In amended petitions, mother was reported to have a history of substance abuse and unaddressed mental health issues including depression and psychosis.
At the conclusion of the detention hearing, the juvenile court ordered that all four children be detained. Jimmy and Jeremy were placed together in a foster home. James and J. were placed together in another foster home with Carolyn and David H. (the prospective adoptive parents).
Jurisdiction and Disposition
In its jurisdiction and disposition report, HSA recommended that the children be declared dependents and that mother and father be offered family reunification services. Mother told the social worker that at the time of the children's removal father was living with the paternal grandmother Olivia M. (the paternal grandmother) in a different apartment in the same building. Father reported to the social worker that he was currently employed by In-Home Supportive Services (IHSS) as the paternal grandmother's caretaker. Jimmy stated that he wanted to be placed with the paternal grandmother if Jeremy could also be placed with her. When asked if he thought James and J. should also be placed with the paternal grandmother, Jimmy replied "no[,] she would only take care of two of us."
The paternal grandmother expressed her interest in having all four children placed with her and was referred to the Resource Family Approval program (RFA). She asked the children's paternal uncle to move out of her apartment "because she does not want the fact that he has [a] criminal history to impact her ability to have placement of the children." When asked if father would be returning to live with her after his release from jail, the paternal grandmother stated that she would require him to live elsewhere. James and J. were reported as "doing well behaviorally in their placement" with the prospective adoptive parents and both children "present[ed] as happy and playful."
The RFA social worker indicated that the paternal grandmother's residence had yet to be approved. HSA also stated it "does have some concerns regarding the paternal grandmother and her proximity to the parents and the issue that prompted the children's removal. The police report associated with the father's recent arrest indicates that he may have been soliciting the paternal grandmother to help hide his illegally obtained firearm. The police report also indicates that a YouTube rap video shows . . . gang members on the balcony of the paternal grandmother's apartment. In the video, a gun can be seen sitting on the balcony table in front of a known gang member. Additionally, the father reports he is back and forth between living with the paternal grandmother and the mother because he is the grandmother's caregiver through IHSS."
At the conclusion of the uncontested jurisdiction and disposition hearing, the juvenile court sustained the amended section 300 petitions as to all four children, ordered the children removed and declared them dependents, and awarded mother and father reunification services and supervised visitation. The matter was set for a sixth-month review hearing in June 2018, and for an interim review hearing regarding placement and visitation on February 1, 2018. Court appointed special advocates (CASA's) were also appointed for each child.
Interim Review Hearing
In a memorandum for the February 1, 2018 hearing, HSA offered an update on its continuing efforts to place all four children together in the same foster home. Although a potential placement had been identified, HSA "was hesitant to move the children given that [they] are really well adjusted to their respective foster homes." Moreover, mother and father "both expressed liking the current foster parents and feel they are doing a good job caring for the children. They requested that the children not be moved to a new foster home even though it would mean they would be placed together. The father expressed that he is hopeful the paternal grandmother will eventually obtain placement and that if a placement change must be initiated, he would rather it be because the children are going to be placed with family."
HSA also reported that although the paternal grandmother was attending RFA classes, she "requires a standard exemption before she can be deemed 'placement ready.'" HSA also reiterated that it "has reservations about the appropriateness of placement with the paternal grandmother. The grandmother and parents present as very codependent and it is difficult to imagine that she would be able to enforce and maintain healthy boundaries with the parents. Although the paternal grandmother presents as very loving and bonded with the children at visits, the interdependence between her and the parents and the close proximity between [their] apartments remain a potential barrier." HSA added that the paternal grandmother drove the parents to their visits with the children and that father was employed as her caregiver.
At the conclusion of the February 1, 2018 hearing, the court ordered that mother and father could have joint supervised visitation with the children two times each week for two hours. The court also ordered that any other changes regarding visitation were at HSA's discretion.
Six-Month Review
In its status report for the June 2018 six-month review hearing, HSA recommended that reunification services be continued for mother and father. As of March 30, 2018, Jimmy and Jeremy were living with the paternal grandmother. Although the paternal grandmother's home had not been RFA approved based on the recommendation of Bethany Christian Services, HSA was "working with the paternal grandmother to help mitigate the concerns which influenced the recommendation. The concerns are mostly connected to the paternal grandmother's ability to set boundaries and limits with the parents for the safety and protection of the children." James and J. had a weekly overnight sibling visits with Jimmy and Jeremy at the paternal grandmother's apartment.
HSA also reported that appellants' supervised visitation was taking place at the paternal grandmother's apartment and that they arrived late to their visits. They were four hours late for their visit on Easter, even though they "were living in the next apartment building over at the time." Moreover, "[t]he paternal grandmother admitted that she allowed the visit to take place because she felt bad for the parents." The social worker "was also aware that the parents were staying longer after their visits as the caregivers would comment that they would see the parents at the scheduled pick-up time." The social worker "instructed the paternal grandmother to cancel visitation when the parents are 15 minutes late and to end the visitation on time. If not, she jeopardized having placement of the older two children and losing the privilege of monitoring the visits for the family. Since then, the parents have ensured that they arrive on time to their visits and leave when the visits are scheduled to end." The social worker added that the paternal grandmother "recently expressed a desire to no longer monitor the visits for the parents as while the parents are arriving to the visits on time and leaving when they are scheduled to do so, [they] are hanging around the apartment complex, [even] though they have already been evicted. Keeping placement of the oldest two children and demonstrating to [HSA] that she is able to establish boundaries with the parents and protect the children is a top priority for the paternal grandmother and she is worried that the parents' presence at the complex puts that at risk."
At the conclusion of the six-month review hearing, the court ordered that reunification services be continued for an additional six months and set the matter for a twelve-month review hearing in December 2018.
Termination of Services
On September 7, 2018, HSA filed a JV-180 request for change of court order seeking the termination of reunification services and the setting of a permanency planning hearing with a permanent plan of adoption for all four children. The social worker reported that "[t]he parents have not progressed through their case plan services. The father has a warrant out for his arrest for failure to appear at a criminal court hearing and states he is afraid that if he participates in services, law enforcement will come to arrest him. The mother has not submitted to drug testing since 02/23/18 and the father has never tested. Neither parent is participating in any services at this time." The social worker added that "[i]f the paternal grandmother is approved for placement for all 4 children, all of the children will be placed in her care. She continues to state her commitment to the permanent plan of adoption." "If James and J[.] are unable to return to the care of the parents and are unable to be placed in the home of [the paternal grandmother], their [prospective adoptive parents] are committed to adoption."
A hearing on the JV-180 request was set for October 9, 2018. In an October 5, 2018 memorandum, HSA reported that mother and father had broken into the paternal grandmother's apartment when she, Jimmy, and Jeremy were not present and that mother had been seen chasing father around with a knife. The paternal grandmother acknowledged that neighbors had told her this, "but she didn't want to believe them initially. In the past, she left her front door unlocked, but has begun the practice of locking the door at all times." Although the paternal grandmother still wanted custody of all four children, her home was not yet RFA approved. At the conclusion of the October 9 hearing, the court granted HSA's request, terminated reunification services, and set the matter for a section 366.26 hearing. The court also granted James and J.'s prospective adoptive parents' application for de facto parent status.
Section 366.26 Hearing
In its initial report for the section 366.26 hearing, HSA recommended that parental rights be terminated as to James and J. with a permanent plan of adoption by the prospective adoptive parents. As to Jimmy and Jeremy, HSA recommended that the hearing be continued for 90 days so it could "reassess safety concerns regarding the paternal grandmother's ability to draw boundaries with the parents and to see the safety plan working."
The paternal grandmother's home was RFA approved for all four children on November 7, 2018. During an overnight sibling visit on November 17 and November 18, James and J.'s prospective adoptive mother saw both mother and father in or around the paternal grandmother's apartment. When the prospective adoptive mother picked up James and J., the paternal grandmother told her she "was not good for the kids and they should be with her." The paternal grandmother also denied that father had been at the apartment when the children were dropped off for their visit, even though the prospective adoptive mother had seen him there. At a November 29, 2018 Child Family Team (CFT) meeting which the paternal grandmother attended, "[i]t was determined . . . that placement of James and J[.] would not take place with the grandmother due to the many concerns regarding the unauthorized contact with the parents."
In January 2019, the paternal grandmother filed a caregiver information form indicating that she wanted to be designated as the legal guardian of all four children. She also stated that she was "strongly opposed" to the adoption of James and J. by the prospective adoptive parents and made various allegations relating to the children's care in that placement.
In February 2019, Jimmy's CASA reported that Jimmy was "extremely sad" about the possibility that James and J. would be adopted. Jimmy wanted his CASA to tell the court that he hoped all of his siblings could live together with the paternal grandmother. Jimmy's CASA had also recently observed all four children together and reported "it was immediately obvious that they are extremely close to one another and that the younger siblings look up to Jimmy." Jeremy's CASA filed a report stating that Jeremy enjoyed spending time and playing with James and J., and expressing his belief that future visitation between Jeremy and his younger siblings should "be preserved as much as appropriate."
Following several continuances, the contested section 366.26 hearing commenced in June 2019. In an amended section 366.26 report as to Jimmy and Jeremy, HSA recommended that both children remain dependents and "receive placement with a fit and willing relative," i.e., the paternal grandmother. HSA reported "[i]t is unclear if the grandmother is unable or if she is unwilling to maintain strong boundaries with the parents, particularly the father, who is currently [in] local jail. It does appear that at times she is able to call the police when the mother comes near the residence[,] . . . [y]et no calls were made on 11/17/2018 or 11/18/2018 when both the mother and father were observed at the home."
At the section 366.26 hearing, James and J.'s prospective adoptive mother testified that she and her husband wanted the children to continue seeing their siblings and the paternal grandmother, but were unwilling to enter a written agreement to that effect given their concerns about the paternal grandmother's ability to keep the children safe while in her care. She agreed that it was important for James and J. to maintain their relationships with their siblings. Jimmy's CASA testified that he had seen "what's obviously a very tight sibling bond" between all four children.
The social worker testified that HSA hoped to place Jimmy and Jeremy in legal guardianship with the paternal grandmother once it was determined that the safety plan instituted at the CFT meeting was working. The HSA supervisor assigned to the case testified that the paternal grandmother's failure to participate in counseling until November 2018 contributed to the recommendation that Jimmy and Jeremy be placed with her as a fit and willing relative rather than a guardianship.
The paternal grandmother testified that James and J. loved their older siblings and that all four children were always very affectionate toward each other. She also disputed the prospective adoptive mother's claim that she had seen mother and father at the paternal grandmother's apartment building when she dropped off and picked up James and J. Mother and father also testified that they believed it was in James and J.'s best interests to continue their sibling relationships with Jimmy and Jeremy.
At the conclusion of the hearing, counsel for mother and father argued that the paternal grandmother should be appointed as the legal guardian of Jimmy and Jeremy and that the dependency cases as to those children should be dismissed. Counsel further argued that the sibling relationship exception precluded the termination of their parental rights to James and J. Counsel for Jimmy and Jeremy agreed that the sibling relationship exception applied as to James and J., but also agreed with HSA's recommendation that Jimmy and Jeremy be placed with the paternal grandmother as a fit and willing relative rather than ordering guardianship. James and J.'s attorneys urged the court to find that the sibling relationship exception did not apply and that it was in the children's best interests to be adopted by the prospective adoptive parents, with whom they had been living since December 2017.
The court agreed with HSA's recommendations as to all four children and entered judgment accordingly. As to James and J., the court stated: "I'm satisfied based on all the evidence that I've heard that the two younger children are obviously adoptable and they've been placed with an appropriate placement for the last nearly two-year period. And those persons, [the prospective adoptive parents], have done a very good job with those children. And [the children] have been living with [them] for at least half their lifetime, roughly speaking a little more than half the lifetime for J. And by all accounts, [the prospective adoptive parents] have been doing a good job with those children and are focused on their long-term development and growth into healthy, well-rounded children."
In finding that the sibling relationship exception to adoption did not apply, the court stated: "Now, I'm satisfied based on all the evidence that I've heard that it's best for them to be with the [prospective adoptive parents] in an adoptive family arrangement. . . . And it's undisputed from everything the Court's heard that these children love each other. . . . But it's not a test of love that the Court has to apply. It's a test of best interest based on results. And results I'm seeing from the time that James and J[.] have been with the [prospective adoptive parents] show that they are quite capable as adoptive parents and will do what the Court expects to be the right thing when it comes to raising these children in a stable, loving, caring, safe environment."
The court continued: "I do find [the prospective adoptive mother] to be quite credible. And I would find that even with the children going with the [prospective adoptive parents] . . . , I don't see that that necessarily is going to be an end to the relationship between Jimmy, Jeremy, James and J[.] Because I do believe her . . . when she says she understands and appreciates the relationship that these children have and wants to continue that relationship and will in fact work to continue that relationship." The court told Jimmy, who was present at the hearing, "it's not a situation where the Court wants to see an end to your relationship with your two younger siblings. Quite the contrary. I want to see that continue. And I think that . . . this decision will be the best way for that to occur."
As to Jimmy and Jeremy, the court found that HSA had sufficiently demonstrated "the need for not jumping immediately to legal guardianship but to making sure that [the paternal grandmother is] getting to the places that she needs to get to, to perhaps ultimately get to a legal guardianship. And [HSA] has enough in the form of red flags that they have to look at to make sure that she's staying on track and getting there. And I would certainly hope and encourage her to do that. She certainly, as I said, obviously loves these children. . . . And I'm hopeful that she'll continue to rise to the occasion in terms of taking care of Jimmy and Jeremy."
DISCUSSION
James and J.
Appellants contend the juvenile court erred in finding that the sibling relationship exception to adoption did not apply to James and J. We disagree.
Once the juvenile court determines that a child is likely to be adopted, the burden shifts to the person challenging adoption to show that terminating parental rights would be detrimental to the child under one of the exceptions to adoption set forth in section 366.26, subdivision (c)(1). (In re C.F. (2011) 193 Cal.App.4th 549, 553.) Under the sibling relationship exception to adoption, terminating parental rights would be detrimental where it causes "substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, [1] whether the child was raised with a sibling in the same home, [2] whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and [3] whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).)
"'[T]he "sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a 'compelling reason' for concluding that the termination of parental rights would be 'detrimental' to the child due to 'substantial interference' with a sibling relationship.""' (In re Naomi P. (2005) 132 Cal.App.4th 808, 823.) This exception will be applied "rare[ly], particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.) If the court finds the sibling relationship exception applicable, it must select legal guardianship, placement with a fit and willing relative, or long-term foster care rather than adoption. (§ 366.26, subd. (c)(4)(A).)
"We apply the substantial evidence standard of review to the court's factual findings regarding the applicability of the sibling relationship exception, 'and the abuse of discretion standard to the court's weighing of competing interests.'" (In re Isaiah S. (2016) 5 Cal.App.5th 428, 438.) We are bound by the juvenile court's credibility determinations. (In re A.B. (2014) 225 Cal.App.4th 1358, 1363.) 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
The court did not err in finding that the sibling relationship exception did not apply. The threshold requirement for the exception is a finding that adoption would cause "substantial interference with a child's sibling relationship . . . ." (§ 366.26, subd. (c)(1)(B)(v).). The prospective adoptive mother, whom the court found "credible," stated her commitment to James and J. continuing their relationships with Jimmy and Jeremy. The juvenile court properly relied on this evidence in finding that terminating parental rights would not substantially interfere with the siblings' relationships. (In re D.O. (2016) 247 Cal.App.4th 166, 175 [court may consider assurances of continued sibling visits in determining whether there will be substantial interference with sibling relationship].)
Even if the evidence compelled a finding that adoption would cause substantial interference with sibling relationships, the juvenile court's orders would still have to be affirmed. The second prong of the exception requires the court to balance whether "ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).) In applying this part of the statute, the court "must balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951.)
The juvenile court properly exercised its discretion by weighing these factors and determining that the benefits of adoption outweighed James and J.'s beneficial interest in maintaining their relationships with their two older siblings. The fact that counsel for both James and J. urged the court to find that the sibling relationship exception to adoption did not apply "suggests that this is not one of those rare instances in which the exception applies." (In re D.O., supra, 247 Cal.App.4th at p. 174.) Moreover, the cases appellants cite in arguing to the contrary are inapposite. (See, e.g., In re Naomi P., supra, 132 Cal.App.4th at p. 824 [affirming juvenile court's finding that the sibling relationship exception applied where the court "had the opportunity to observe the demeanor of the relevant witnesses" and "had some doubts about [the] intentions [of Naomi's prospective adoptive mother], and of her appreciation of the importance of Naomi's sibling relationships"].)
By the time of the section 366.26 hearing, James and J. had spent almost two years of their young lives with their prospective adoptive parents. By all accounts, the children have thrived in that placement. As the social worker testified, James and J. "have a strong relationship with [the prospective adoptive parents] and [their] biological children. They share a lot of memories already. They've had holidays, birthdays, vacations. They're thriving. They're happy. They call [the prospective adoptive parents] mom and dad." Although there was evidence regarding the impact that James and J.'s adoption would have upon Jimmy and Jeremy, "the ultimate question is whether adoption would be detrimental to the adoptive child, not someone else." (In re Celine R. (2003) 31 Cal.4th 45, 55.)
Mother contends that "[i]mplementing a plan of legal guardianship would give James and J[.] permanency with their caregivers, and at the same time, ensuring their important sibling relationship is maintained." This contention fails to account for the fact that adoption is the preferred permanent plan. (§ 366.26, subd. (c)(1).). "'Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child'" through adoption. (In re Celine R., supra, 31 Cal.4th at p. 53.) The juvenile court did not abuse its discretion in ordering the preferred permanent plan of adoption for James and J.
Jimmy and Jeremy
Father also contends the court erred in ordering Jimmy and Jeremy to continue in their placement with the paternal grandmother as a fit and willing relative rather than granting the paternal grandmother legal guardianship of both children. We are not persuaded.
Section 366.26 "governs a juvenile court's selection of a permanent plan for a dependent child when the child cannot be reunited with his or her parents. . . . Subdivision (b) requires that the placement decision be made according to the following order of preference: adoption; legal guardianship to a relative with whom the dependent child is living; legal guardianship to a non-relative; permanent placement with a fit and willing relative; and foster care. [Citation.]" (In re J.M. (2020) 44 Cal.App.5th 707, 713.)
"'The best interest of the child is the fundamental goal of the juvenile dependency system, underlying . . . child safety, family preservation, and timely permanency and stability.' [Citation.] '"'Its purpose is to maximize a child's opportunity to develop into a stable, well-adjusted adult.'"' [Citation.] Stability and continuity of care are primary considerations in determining the child's best interest. [Citation.] Custody determinations in dependency proceedings are 'committed to the sound discretion of the juvenile court,' and such rulings 'should not be disturbed on appeal unless an abuse of discretion is clearly established.' [Citation.] We will not disturb a custody determination '"'unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'"' [Citation.]" (In re J.M., supra, 44 Cal.App.5th at p. 718.)
The juvenile court did not abuse its discretion in ordering that Jimmy and Jeremy continue in their placement with the paternal grandmother as a fit and willing relative rather than awarding her legal guardianship. The record amply supports the conclusion that the paternal grandmother had yet to demonstrate that she could keep the children safe from both mother and father. Moreover, the order placing Jimmy and Jeremy with the paternal grandmother as a fit and willing relative is "subject to the periodic review of the juvenile court under Section 366.3." (§ 366.26, subd. (b)(6).) As the court recognized, the hope is that the paternal grandmother will "ultimately get to a legal guardianship." The court also found, however, that "[HSA] has enough in the form of red flags that they have to look at to make sure that she's staying on track and getting there." As HSA persuasively argues, "[g]iven the lingering concerns about [the paternal] grandmother and the lack of evidence that it would cause the boys any harm, the court's decision to place them with 'a fit and willing relative'—i.e., [the paternal] grandmother— and to continue their dependencies for the next six months was sensible." Father's arguments to the contrary are unavailing.
DISPOSITION
The juvenile court's order is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
YEGAN, Acting P.J.
TANGEMAN, J.
Kevin J. McGee, Judge
Superior Court County of Ventura
Michelle J. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant T. R.
Nancy R. Brucker, under appointment by the Court of Appeal, for Defendant and Appellant J. M.
Leroy Smith, County Counsel, Joseph J. Randazzo, Assistant County Counsel, for Plaintiff and Respondent.