Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DP011664, Carolyn Kirkwood, Judge.
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
O'LEARY, ACTING P. J.
Angela O. appeals from the juvenile court’s judgment made at the Welfare and Institutions Code section 366.26 hearing (permanency hearing). The juvenile court terminated her parental rights to her six-year-old daughter A.O. She argues the court should have applied the sibling exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(v)). Alternatively, she argues the Orange County Social Services Agency (SSA) should be equitably estopped from arguing against the sibling exception because a social worker failed to facilitate visits between A.O. and her two older sisters. We find no error and affirm the judgment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
The parties and applicable case law cite the relevant statutory provision as section 366.26, subdivision (c)(1)(E). The subdivision was renumbered (c)(1)(B)(v) by a 2007 amendment without any change to its substance. (Stats. 2007, ch. 583, § 28.5.)
I
This dependency case began in April 2005, when then three-year-old A.O. and her 7-year-old sister, Ar.O., and 12-year-old sister, Ak.O., were taken into protective custody. Angela had struck Ak.O.’s eye with her hand, pulled her hair, threw her into a stroller, and scratched her arm with a butter knife. Ak.O. reported this kind of abuse had been going on for years. Angela was arrested for child abuse. A.O. was placed with her maternal cousin Marian M. Ar.O., who is autistic and has other special needs, was placed with a non-related extended family member. Ak.O. was placed in the custody of her father, Yepi P. After Angela pled no contest, the court sustained the petition brought under section 300, subdivision (b).
Because this appeal concerns the siblings and their relationship, we will focus our summary on those facts. As for their mother, Angela, suffice it to say she failed to comply with her case plan after nearly two years of services. Rather than take any responsibility for her actions, she continued to accuse others for her problems and the need for dependency proceedings.
After she was taken into protective custody, Ak.O. reported to a social worker that A.O. only lived with her and Ar.O. “off and on.” She stated A.O. lived primarily with Marian. The social worker later interviewed Marian, who stated she had cared for A.O. “full time” since her birth. She said Angela first brought A.O. to her when the child was six months old and asked Marian to take care of the baby because Ar.O. was beating her. Marian recalled A.O. had a black eye and bruises on her body. She now wondered if it was Angela, and not Ar.O., who was hitting the baby.
Marian recalled that at first she cared for A.O. for only one week at a time, and Angela would then take her back for a few days. In October 2002, Marian asked Angela to officially give her legal custody of A.O. because the child was becoming attached to her and separation “was becoming too difficult on the child.” After almost two years of no contact, in March 2004, Angela asked for A.O. back for visits lasting between a few days to a week. Marian noticed a negative change in A.O. following her visits with Angela.
Marian recalled that in April 2005, Angela had requested to see her daughter more, and consequently, Marian was only caring for A.O. approximately four nights a week. Marian believed Angela “never really wanted A.O.” and asserted it is only because SSA was now involved that Angela wanted A.O. back.
When the social worker interviewed A.O., the child reported she wanted to stay with Marian, who she referred to as her “‘mom.’” The court granted Marian’s request to become A.O.’s de facto parent. In her request, Marian stated A.O. had lived with her since 2002 and she listed all the activities they liked to do together. She stated A.O. enjoyed family dinners and gatherings, loved to make people laugh, and was a very smart child. Marian stated A.O. “is sometimes scared she will be taken out of our home. I always reassure her that things will be [okay].”
During the dependency, the sisters saw each other weekly at the same time they visited with Angela. Ak.O. was observed to sometimes pick on, and speak negatively towards, her younger sisters. In December 2005, a social worker observed, “In spite of this, all three girls express excitement at seeing each other at their visits.” It was also reported A.O. “is very strongly attached to [Marian] and is comfortable in her placement.” Marian decided she could not also provide a home for Ar.O. due to her many special needs. Ar.O. was placed in a foster home.
By March 2006, Marian reported A.O. was becoming increasingly angry and defiant after visits with her sisters and Angela. The social worker and Marian agreed A.O. would benefit from individual counseling. Ak.O. was also receiving counseling and she too had requested that the amount and duration of visits with Angela be reduced. At the end of March 2006, Angela asked the social worker to keep Ak.O. away from visits until she learned to “behave.” SSA granted this request and thereafter only Ar.O. and A.O. came to the visits arranged for Angela.
In May 2006, the social worker reported visits with Angela were detrimental to A.O. The child was questioning why she was being forced to visit, and claimed she no longer wanted to see her mother. The social worker asked the court to reduce the length of visits, and she hoped Angela would resume counseling services. Due to many continuances, the six-month review hearing also became the 12-month review hearing, and it was held on May 23, 2006. The court continued reunification services for Angela and ordered SSA to use “best efforts to facilitate weekend visits.”
In August 2006, A.O.’s counsel filed a request seeking to change the visitation order and discontinue contact between the child and her mother. In the request, counsel stated contact resulted in emotional trauma and extreme anxiety for the child. The therapist had indicated the child was being re-traumatized through each contact that she had with Angela. “Ending visitation and telephone contact would enable [A.O.] to stabilize emotionally and allow the therapist to have a positive intervention with the child.” In support of the request, the social worker recounted more specific findings made by the therapist: “A.O. is suffering from symptoms similar to posttraumatic stress disorder. She is intelligent and articulate and has made it clear that she does not want any contact with her mother. The child indicated nobody is listening to her and she has nightmares every night. She is afraid her mother will try to abduct her or come to her school. A.O. thinks she is ugly, stupid, and a bad girl and the therapist believes Angela created and reinforces these feelings.”
Ak.O., whose dependency case had a different case number from her sisters, also asked the court to reduce Angela’s visits and telephone contact. The court granted this request and also denied Angela’s request for conjoint counseling. Ak.O. found visits to be very distressing and negatively affecting her ability to create bonds with her new caretakers—her father’s family. We affirmed these orders in a prior opinion. (In re [Ak.O.](April 18, 2007) G037480 [non. pub opn.].)
In September 2006, the court considering A.O.’s case, “directed” SSA “to facilitate sibling visits.” A new social worker was assigned to the case because the prior one felt threatened by Angela, and had filed a request for a restraining order against her. The court granted a restraining order (lasting six months) based on evidence Angela had made verbal threats to kill the social worker.
In the next report, the new social worker noted A.O. continued to refuse to visit with Angela. Ar.O. stated she would like to be placed with her sister Ak.O., because she was able to protect her. Ar.O. did not articulate who she needed protection from. However, like her sisters she began to refuse visits with Angela. “[Ar.O.] expressed she would rather play with her friends.”
As for visits between the sisters, the social worker reported, “The children previously visited with each other on a weekly basis. The children are all placed in different locations and arrangements are currently being made so that the siblings can meet with each other on a monthly basis, at a minimum.”
At the next hearing, the court terminated reunification services and scheduled a permanency hearing. It also ordered SSA “to ensure sibling visits no less than twice per month.” Unfortunately, this mandate was not followed.
In the report prepared for the permanency hearing, it was recommended parental rights be terminated. The social worker noted that due to scheduling conflicts, the children had only one visit with each other per month. “The children appeared to enjoy their visitation together. They often expressed that they are happy to see each other and like spending time with each other. The children often engage in activities such as coloring and playing games with various toys.”
In addition, it was reported a maternal aunt and uncle appeared willing to become Ar.O.’s legal guardians, and Ar.O. stated she wanted to remain in their care. Marian wanted to adopt A.O., stating she loved her and was looking forward to watching her grow and develop. Marian stated she did not desire a Kinship Adoption Agreement because “she believe[d] she can arrange future contacts with the birth family as appropriate.”
In an addendum report, the social worker noted A.O. stated she wanted to be adopted by Marian. She was doing well at home and in school. She still refused to have any contact with Angela. However, Ar.O.’s placement changed to a group home. Sadly, her maternal aunt and uncle changed their minds about becoming her legal guardian. Ar.O. was very sad, confused, and wanted to return to their care.
After several continuances, the permanency hearing was held on June 4, 2007. The social worker stated the twice-monthly sibling visits ordered by the court did not take place due to the caretakers’ scheduling conflicts. She reported the sisters visited in November, December, April, and May. A.O. had asked the social worker to maintain her sibling relationships. She liked visiting with her sisters despite some problems with Ar.O.’s behaviors. Marian told the social worker she was willing to facilitate future visits for the sisters. Marian agreed A.O. should have contact with them. The social worker noted A.O. had not been living at home full time for approximately two years prior to the detention and, therefore, missed a lot of the family turmoil. However, she believed it was important for A.O. to maintain a sibling relationship with her sisters and she benefited positively from it.
Angela testified A.O. lived with her for the first 18 months of her life and felt A.O. shared a strong bond with her sisters. She recalled that when A.O. was an infant, Ak.O. “would hover over her like a mother.” A.O. would cry when her sisters went to school and she was excited when they came home. Angela said that although Ar.O. was a little jealous of A.O., she nevertheless “accepted her as a sister.” Angela stated the sisters were together frequently, even when A.O. was primarily living with Marian. She claimed the sisters resided together for a little over a year before the detention, and they would often sleep together in the same beds. She recalled A.O. expressed verbal and physical affection towards her sisters during their visits throughout the dependency. Angela complained about the inadequate number of sibling visits and she believed Marion would interfere with the sibling relationship if she adopted A.O.
The court made several findings in ruling the sibling exception did not apply. It noted there was a significant age difference between the sisters. Ak.O. was almost 15 and A.O. is almost six. Given this nine year age difference, Ak.O. was in grade school when A.O. was born. She observed Ar.O. and A.O. were closer in age, but A.O. was separated from her sisters before she turned two years old. The court acknowledged A.O. frequently saw her sisters at family functions and school activities, but lived apart from them for over a year. Although she lived together again for a short time, they have lived apart for two years during the dependency proceedings. The court noted the sisters display verbal and physical affection towards one another, and they enjoy being together. It recognized A.O. had expressed a desire to continue seeing her sisters.
With respect to the issue of whether Marian would facilitate visitation after adoption, the court found “it[] significant that [Marian] is reported to be sensitive to A.O.’s emotional and developmental needs in general, and that she told the social worker that she would do more visits when time permitted.” The court concluded it was SSA who “dropped the ball” with respect to ensuring sufficient visits during the dependency and the evidence did not support Angela’s accusation Marian was unwilling to have A.O. visit her sisters. The court determined it was likely Marian “would continue to support the child’s ongoing relationship with her siblings.”
The court stated, “I have also considered the worst case scenario and that would be that the children would never see each other again if [A.O.] is freed for adoption. [¶] And the court finds . . . [A.O.] might be sad . . . and she would miss them like a representative or extended family member or cousin perhaps that has moved away.” The court concluded this relationship is not the truly significant bond contemplated in the sibling exception, “and there has been no showing that [A.O.] would suffer harm if she were separated from her siblings.”
The court then turned its attention to SSA’s failure to follow the court’s sibling visitation order. The court found it inexcusable for the social worker to misunderstand the twice-monthly visitation was an “absolute order” rather just an authorized guideline. It did not find the social worker’s testimony on this issue to be credible. However, the court concluded that while SSA’s failure deprived A.O. of something she was legally entitled to, it did not impact the court’s sibling exception analysis. It explained, “It would not be reasonable to conclude on this record that 10 more visits would have resulted in the girls developing a significant relationship which, if terminated would cause [A.O.] substantial detriment. [¶] The court has to consider the best interests of the child. . . The court may not punish the child because of the failures of the agency. This child deserves permanency that adoption provides.”
The court concluded there was substantial evidence A.O. wanted to be adopted by Marian. “She is reported to be calmer and more at ease knowing she [does not] have to visit with her mother. And it appears that she is craving permanency and stability. [¶] So even assuming termination would substantially interfere with the sibling relationship in this case, the benefit [A.O.] would receive from a permanent adoptive home outweighs the interest in continuing the sibling relationship.” It rejected Angela’s contention the sibling exception to terminating parental rights applied. The court terminated parental rights and freed A.O. for adoption.
II
Angela asserts the court reversibly erred by not applying the beneficial sibling relationship exception to adoption. She argues the evidence does not support the court’s finding the sisters never developed a truly significant bond and she proved A.O. would suffer harm if she never saw her sisters again. Angela argued past behavior is the best predicator of future behavior, and the record shows Marian made no effort to facilitate or accommodate sibling visitation. She argues this proves there would be substantial interference with the sibling relationship if A.O. were adopted.
Under section 366.26, subdivision (c)(1)(B)(v), if the 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., supra, 99 Cal.App.4th at p. 813.) “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.] We review the record for substantial evidence to support the court’s findings. [Citation.]” (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017.)
This strongly articulated preference for adoption in the statutory scheme answers Angela’s claim legal guardianship would benefit A.O. more than adoption.
Factors for the court to consider under section 366.26, subdivision (c)(1)(B)(v), include the nature and extent of the sibling relationship, whether the siblings were raised in the same home, whether they share a close bond, and whether continued contact is in the child’s best interests, as compared to the benefits of adoption. The court considers the best interests of the adoptive child, not the best interests of other siblings. (In re Daniel H., supra, 99 Cal.App.4th at p. 813.)
The record supports the finding the girls shared a close bond. A.O. was three when she was taken into protective custody. She had lived for approximately two of those three years with her sisters amidst the turmoil caused by a physically and emotionally abusive mother. We have no doubt a unique and special bond was forged between these young victims during those difficult times. Although A.O. is the youngest, she was very vocal about her desire to continue seeing her sisters. Certainly, continued contact would be in A.O.’s best interests.
However, as stated by the court, it was required to assess whether a sufficiently strong sibling bond exists to avoid adoption. As best stated by county counsel in its briefing, the evidence shows A.O.’s “bond with her sisters was a valued but ultimately secondary part of her life.” It was Marian who initially rescued A.O. when she was a toddler, and has continuously served as her anchor and loving supporter. A.O. thrived in Marian’s care during the two years of the dependency proceedings. She was noticeably calmer and more at ease when visitation with Angela ceased. And it was around this same time when visits with her sisters also were unfortunately curtailed, but A.O. manifested no obvious ill effects from the added time of separation. Perhaps this was because A.O.’s time with her sisters has always been disjointed because she was essentially living in two households since she was a baby.
Moreover, contrary to Angela’s contention, there is “no evidence that the relationships between any of the siblings will necessarily cease upon termination of parental rights.” (In re Jacob S., supra, 104 Cal.App.4th at p. 1019.) The court heard different viewpoints on who was to blame for the lack of visits between the sisters in the months leading up to the permanency hearing. On one hand, Angela argued Marian failed to attach any importance to the sibling relationship. She had a history of only facilitating visits when she had time or it was convenient.
On the other hand, Marian told the social worker she was willing to facilitate future visits and understood A.O. would benefit from continuing the sibling relationships. Marian had a solid history of providing for all of the child’s needs. As noted in one of the social worker’s reports, Marian “ensured that the child’s physical, educational, medical and emotional needs have been met. . . . [She] has ensured that the child attends therapy sessions in order for the child to discuss her problems and concerns. [She] has provided a comfortable and safe home for the child to reside. [She] continues to show her commitment and desire to adopt the child. [Marian] noted that she can provide the child with a stable, caring and loving home.” In light of the above, it was reasonable for the court to conclude Marian would not intentionally deprive A.O. of her important need to remain in contact with her sisters. Moreover, we will not reweigh the court’s decision about the credibility of some of the testimony in determining it was SSA who had “dropped the ball” with respect to organizing visits. It did not find Marian was to blame.
Finally, we reject Angela’s argument SSA should be “equitably estopped” from arguing against the sibling exception because of its failure to ensure every court-ordered sibling visit took place. As aptly stated by the juvenile court, we will “not punish the child because of the failures of the Agency.” The 10 missed visits did not change the fact A.O.’s relationship with her siblings was secondary to her desire for the permanency and stability adoption by Marian would bring to her life. The evidence supports adoption was in A.O.’s best interests.
III
The judgment is affirmed.
WE CONCUR: ARONSON, J. IKOLA, J.