Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Ct. No. J986293 Stephen C. Marpet, Juvenile Court Referee.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Owen L. Gallagher, Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Appellant Sandra L. (mother) appeals from a juvenile court order terminating her parental rights to Jesus Michael L. (Jesus), born November 2000. She contends that the trial court erred in finding that the Welfare and Institutions Code section 366.26, subdivisions (c)(1)(A) and (c)(1)(E), exceptions to termination of parental rights did not apply. Because the juvenile court’s order is supported by substantial evidence.
Mother is also the mother of 10 other minor children: Priscilla C. (Priscilla), Saul M.C., David C., Mario C., Suzanna C., Angelica C., Adrianna M.C., Brianna C., Xavier C., and Diana C. Her parental rights to another child, Arthur, who was previously a dependent of the juvenile court, were terminated on March 13, 2001, and he was adopted. The father of Jesus and his siblings was deceased at the time these dependency proceedings commenced.
Jesus is identified by several different names in the appellate record; we defer to the name on his birth certificate.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Jesus’s Detention
On March 5, 2003, the Department of Children and Family Services (DCFS) received a referral that Jesus, then two and one-half years old, had been medically neglected by mother. Specifically, he had been born prematurely at 32 weeks and was suffering birth defects, including a cleft lip and palate. The referral indicated that mother had, on several occasions, failed to keep and follow up on necessary medical surgical appointments for Jesus. In addition, medical personnel were concerned that mother’s neglect would result in unnecessary speech delays and eating problems for Jesus.
Jesus, along with his siblings, was detained on March 21, 2003. Jesus was placed in a medical placement foster home, and his siblings were placed in various other foster homes.
Section 300 Petition and Detention Hearing
On March 26, 2003, DCFS filed a petition on behalf of Jesus and nine siblings alleging, under section 300, subdivisions (b) and (c), that Jesus was born with a cleft lip and palate, which were repaired on April 6, 2001, that mother neglected Jesus’s medical needs, including by failing to attend medical appointments, thereby delaying his surgery, and that the medical providers had difficulty contacting mother; Jesus and his siblings were former dependents of the juvenile court; and, mother failed to ensure the regular school attendance of six of Jesus’s siblings.
At the detention hearing, the juvenile court ordered that Jesus and his siblings be detained and suitably placed. The juvenile court also ordered DCFS to provide family reunification services to mother. Mother was granted monitored visits, with DCFS discretion to liberalize.
Mediation Agreement, Amended Petition, and Adjudication/Disposition Hearing
For the adjudication/disposition hearing, DCFS reported regarding the children’s placements; Jesus continued to reside in medical foster placement. He was happy when he visited with mother.
Meanwhile, mother had begun parenting classes and was participating in counseling.
At the hearing on June 5, 2003, mother entered into a mediation agreement and pled no contest to an amended petition. As to Jesus, the amended petition alleged his various birth defects and mother’s failure to keep medical appointments. The amended petition was sustained, and Jesus was declared a child described by section 300, subdivision (b). Mother was ordered to participate in parent education and individual counseling to address her neglect of the children’s medical and educational needs. Jesus and his siblings were ordered suitably placed, and mother was granted monitored visitation. The juvenile court also ordered DCFS to provide mother with family reunification services and directed mother to participate in parenting education, individual counseling addressing neglect, the children’s medical and educational needs, and child behavioral management issues. The matter was continued for a six-month review hearing.
Six-month Review Hearing (§ 366.21, subd. (e))
For the six-month review hearing, DCFS reported that Jesus remained placed in the same medical foster care home and that he had received a necessary surgery. He was attached to his foster parents; however, he had exhibited behavior problems, including screaming in the night, throwing tantrums, throwing himself on the floor, throwing himself into furniture, hitting himself, and throwing food. He was seen regularly by a doctor, who diagnosed him with Attention Deficit Hyperactivity Disorder. He spoke only eight words in English, and he spoke no Spanish.
DCFS also reported that Jesus had visited overnight with mother every weekend, and had visited with his siblings on weekends as well. His foster parents reported no serious concerns, although he did have trouble sleeping upon his return from the weekend visits. Mother reported that initially Jesus would cry when he saw her, however, he would now become excited when he saw her and say “Ma-Ma.” He appeared to enjoy visiting with his siblings. Mother stated that she wanted Jesus returned to her care.
The juvenile court found that mother was in compliance with her case plan, and granted DCFS discretion to release several of the children, including Jesus, to mother’s custody when appropriate. It ordered six additional months of family reunification services.
12-month Review Hearing (§ 366.21, subd. (f))
On May 25, 2004, DCFS reported that Jesus had participated in weekend overnight visits with mother and that mother would facilitate visits with his siblings. The foster parents had commented on several instances in which Jesus had returned from visits with bruises and/or scratches. In addition, Jesus had trouble sleeping after the visits, and he exhibited more aggression. On the other hand, mother indicated that Jesus got along well with his siblings during visits, he had no trouble sleeping, and he exhibited few behavioral problems. Five of mother’s children had been returned to her custody.
The juvenile court found mother in compliance with her case plan, and granted DCFS discretion to release several of the minors, including Jesus, to mother’s custody when appropriate. Family reunification services were also ordered for an additional four months. The matter was then continued for an 18-month review hearing.
18-month Review Hearing (§ 366.22)
On September 24, 2004, DCFS reported that Jesus began school on September 21, 2004. He was very happy when he visited with mother and his siblings. He continued to display behavioral and sleeping problems. He was trying to speak more, such as attempts to count to 10 in English and Spanish. DCFS also reported that mother had been evicted from her home, had resided in her daughter’s home for a couple of weeks, and then moved in with her grandmother. During this period, overnight weekend visits between mother and Jesus had been terminated. Mother would pick Jesus up for a couple of hours, and then return him to the foster home.
The juvenile court continued the matter for a contested hearing.
Contested 18-month Review Hearing
On November 15, 2004, DCFS reported that Jesus had begun attending special education preschool classes five days a week. He was able to respond to his name, but he did not say it. He did not recognize any letters or numbers. He was not toilet trained. He was participating in speech therapy twice a week.
Mother, meanwhile, was living with her nine other children in a one-bedroom apartment with mother’s oldest daughter, Priscilla, and Priscilla’s two children and boyfriend.
Overnight weekend visits between mother and Jesus had resumed. DCFS noted, however, that during the time that Jesus’s overnight visits with mother had been can celled, Jesus slept better, did not exhibit the previous behavioral problems, and his vocabulary increased.
During his visits with his siblings, Jesus was very happy and excited to be around them.
Ultimately, the juvenile court found that returning Jesus to mother’s custody would likely result in severe emotional or severe physical harm. Thus, the parties agreed to terminate reunification services to mother and to place Jesus into long-term foster care based upon his special needs. Mother was granted overnight weekend visitation, and DCFS was given discretion to release Jesus to mother once suitable housing was found. The juvenile court ordered DCFS to provide permanent placement services, and the matter was set for further review of the permanent plan.
Review Hearing
On March 25, 2005, DCFS reported that on January 19, 2005, Jesus had been re-placed with another foster family. Mother had not visited Jesus since the beginning of January 2005.
Apparently, during the month of January, mother had left Priscilla’s home and was either living in different motels or her whereabouts were unknown. In addition, a new referral had been called into the child abuse hot line by school officials on January 31, 2005.
Mother was not in regular communication with DCFS, although she did telephone Jesus several times after his re-placement. She did not, however, call the foster home during the past month. While he did ask for mother when he was first moved into the new foster home, he had not asked for her during the past month. Jesus’s foster parents reported that Jesus’s behavior problems had diminished and he slept better after not visiting mother.
Because her living arrangements were unknown, DCFS instructed Jesus’s foster parents not to release Jesus to mother for overnight weekend visits if mother so requested. Mother, however, made no such request.
The juvenile court set the matter for a section 366.26 selection and implementation hearing.
Section 366.26 Hearing
At the July 29, 2005, hearing, DCFS reported that once mother obtained her own residence in March 2005, Jesus resumed having unmonitored overnight visits with her and his siblings every weekend. During a visit by the DCFS social worker to mother’s home during one such visit, the social worker observed Jesus as very happy and playful with his siblings; seven of his siblings lived with mother. Mother stated that she wanted to regain custody of Jesus.
Mother was in compliance with her case plan and was in regular contact with DCFS. Accordingly, DCFS recommended that the juvenile court order the permanent plan for Jesus to be home of parent after the scheduled re constructive surgery on his cleft palate.
Further Review Hearing
On September 23, 2005, DCFS reported that since the overnight weekend visits with mother had resumed in March 2005, Jesus’s behavioral problems returned. Specifically, he was defiant and aggressive, and he had a hard time sleeping.
At the hearing, the juvenile court ordered DCFS to provide permanent placement services to mother and granted DCFS discretion to place Jesus in his mother’s home. The juvenile court further found that the goal for Jesus was for him to return to mother’s care, custody, and control.
Jesus’s Unmonitored Visits with Mother Cease
On November 8, 2005, school officials informed DCFS that Jesus had come to school with a black eye. Upon investigation, DCFS was told that Jesus had returned to the foster parents’ home with the injury after an unmonitored weekend visit with mother. Mother and Jesus’s siblings gave conflicting accounts as to how Jesus’s injury occurred. While mother reported that Jesus had been playing ball and fell down, striking his head on a table, one of Jesus’s siblings kept pointing to a mattress in the bedroom, stating “here, here, here.” Jesus was only able to mutter “Saul in bed.” DCFS noted that Jesus is “medically fragile,” and the social worker was concerned that, because of his medical handicaps, Jesus might have been the target of his siblings. Accordingly, DCFS informed the foster mother that, until further notice, Jesus was not allowed to have unmonitored weekend visits with mother.
At the time, Saul was 19 years old.
Further Review of Permanent Plan Hearing
On March 24, 2006, DCFS reported that Jesus was still residing in the home of his foster mother. Since the suspension of the overnight weekend visits with mother, Jesus was no longer exhibiting behavioral problems; he was not defiant or aggressive, he was not having a hard time sleeping, and his speech was improving. DCFS also reported that since the overnight weekend visits with mother were suspended in November 2005, mother made no effort to visit with Jesus, despite the foster mother’s efforts to arrange such visits. In addition, Jesus had not asked to visit with mother or his siblings.
Mother remained in full compliance with her case plan.
At the hearing, the juvenile court ordered that mother’s weekend visits be suspended pending the next hearing. The juvenile court modified mother’s visitation with Jesus, restricting her to unmonitored day visits in a public setting.
Further Review of Permanent Plan Hearing
On October 3, 2006, DCFS reported that Jesus’s current foster parents expressed willingness to become his legal guardians; however, DCFS was attempting to locate a possible adoptive home. The foster parents were not yet ready to consider adoption.
Mother had not contacted or visited Jesus during the past supervision period. Although the foster mother had called mother to schedule a visit, mother did not return the calls or had an excuse or represented that the scheduled date did not suit her. Regarding mother’s failure to visit Jesus, the social worker indicated: “The reason . . . mother does not comply with visitation is due to the fact that foster mother [lives] far away from . . . mother, and . . . mother has a lot of young children, which is difficult for . . . mother to transport them for visitation. In addition, during the past period of supervision . . . mother gave birth to a baby girl at one pound and . . . mother had to spend a lot of time in the hospital.”
In the meantime, Jesus had displayed no behavioral problems and he was sleeping better at night. He also appeared to have developed a very close bond with his foster family.
At the hearing, the juvenile court determined that Jesus could not be returned to mother’s physical custody and that no substantial probability existed that he would be returned within six months. The juvenile court ordered a permanent living arrangement with Jesus’s foster parents, with the specific goal of adoption. The matter was set for a selection and implementation plan hearing.
Section 366.26 Hearings and Termination of Mother’s Parental Rights
On January 10, 2007, DCFS reported that on November 21, 2006, the DCFS social worker had arranged a telephone call between Jesus, mother, and Jesus’s siblings. Except for that telephone call, mother had not visited or contacted Jesus since the unmonitored weekend visits had been terminated in November 2005.
DCFS reported that Jesus’ current foster parents were willing to adopt him.
The matter was continued for a contested hearing.
On February 26, 2007, DCFS reported that on February 5, 2007, Jesus’s current foster mother had informed the social worker that she and her husband were no longer interested in adopting Jesus; however, they desired to be his legal guardian. According to the foster mother, the foster parents made this decision because Jesus exhibited behavioral problems, including issues of anger, impulse control, sleep disturbance, hyperactivity, temper tantrums, and defiance towards authority. The foster parents stated that they wanted Jesus to participate in therapy for two years, and then they would decide whether to adopt him. Consequently, DCFS activated an adoptive home search for Jesus.
Accordingly, DCFS requested that the juvenile court order Jesus to remain placed in the home of his current foster parents until an adoptive home could be identified.
On April 3, 2007, DCFS reported that a psychological assessment of Jesus determined that he was suffering from Adjustment Disorder with Mixed Disturbances of Emotion and Conduct. Jesus’s foster parents were still interested in legal guardianship, however, DCFS requested that the matter be continued to locate an appropriate adoptive home.
On July 10, 2007, DCFS reported that although mother had begun speaking to Jesus by telephone twice a week, she had not visited with him, despite the foster mother’s attempts to arrange such visits.
The foster parents now indicated that they were interested in adopting Jesus, and they did not object to post termination of parental rights visits by mother.
At the hearing, mother did not appear. Her attorney, however, requested that the juvenile court set a contested hearing on the grounds that (1) the section 366.26, subdivision (c)(1)(A), exception to parental rights applied because mother had a relationship with Jesus and he knew her and thought of her as his mother; and (2) the section 366.26, subdivision (c)(1)(E), exception to termination of parental rights applied because Jesus had a very strong relationship with all of his siblings, who were currently in mother’s care. The juvenile court denied the request, noting: “There is no basis on any documents before me that even one of those exceptions would rise – any issues would rise to the level of those exceptions.” The juvenile court then found, by clear and convincing evidence, that Jesus was adoptable and terminated mother’s parental rights.
Mother’s timely appeal followed.
DISCUSSION
I. Standard of Review
Under section 366.26, subdivision (c)(1), once a juvenile court determines that a child is likely to be adopted, “the court shall terminate parental rights and order the child placed for adoption . . . unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more” of six enumerated exceptions. (§ 366.26, subds. (c)(1)(A)-(F).)
A party claiming an exception to adoption under section 366.26, subdivisions (c)(1)(A) through (c)(1)(F) has the burden of proof of establishing by a preponderance of the evidence that the exception applies. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) When reviewing a juvenile court’s finding that no exceptional circumstance exists to the termination of parental rights, we apply a substantial evidence standard of review. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
II. Substantial Evidence Supports the Juvenile Court’s Findings that Neither Exception to the Termination of Parental Rights Applied
A. Section 366.26, subdivision (c)(1)(A)
Under section 366.26, subdivision (c)(1)(A), the juvenile court may refrain from terminating parental rights only if the parent establishes that she has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” “[T]o establish the exception . . . the parents must do more than demonstrate ‘frequent and loving contact’ [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.]” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108–1109.) “[A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child’s need for a parent.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) Thus, the parent has the burden of showing that continuation of the parent-child relationship will promote the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents, or that termination of the parental relationship would be detrimental to the child. (In re Jamie R. (2001) 90 Cal.App.4th 766, 773.)
In other words, this exception is two-pronged, focusing on visitation and contact with the child and the benefit to the child of continuing the relationship. (In re Aaliyah R., supra, 136 Cal.App.4th at p. 450.)
As to the first prong of mother’s burden, mother completely failed to establish that she maintained regular visitation and contact with Jesus. The record is unequivocal: In the 20 months preceding the juvenile court’s termination of mother’s parental rights, mother had not visited Jesus even once. Given mother’s utter failure to visit Jesus, she cannot establish any juvenile court error regarding this exception.
Notably, in her opening brief, mother only focuses upon contact that she had with Jesus in his first two and one-half years of life and at the onset of the juvenile court proceedings.
B. Section 366.26, subdivision (c)(1)(E)
To determine the significance of the sibling relationship, the juvenile court considers the nonexclusive list of factors set forth in section 366.26, subdivision (c)(1)(E). (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.) Those factors are: “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 [(3)] has existing close and strong bonds with a sibling, and [(4)] 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)(E).) The juvenile court evaluates the factors exclusively as they relate to the child being considered for adoption; the focus is not on the other siblings. (In re Celine R. (2003) 31 Cal.4th 45, 54.)
As with the parental benefit exception, the analysis is two-pronged: first the juvenile court must determine whether terminating parental rights would substantially interfere with a sibling relationship. Second, “even if a sibling relationship exists that is so strong that its severance would cause the child detriment, the court then weighs the benefit to the child of continuing the sibling relationship against the benefit to the child adoption would provide.” (In re L.Y.L., supra, 101 Cal.App.4th at pp. 952–953.)
Applying the foregoing principles, substantial evidence supports the juvenile court’s finding. Jesus was 28 months old when he was taken into custody and placed in foster care. While he initially participated in weekend overnight visits with his siblings, those visits were facilitated by mother. Thus, when mother’s overnight weekend visitation with Jesus was terminated in September 2004 and the visits were reduced, though the record is silent, it is logical to assume that Jesus’s visitation with his siblings, if it occurred at all, was also reduced.
By November 2004, mother’s overnight weekend visits with Jesus had resumed, and Jesus visited with his siblings. But all the record indicates is that Jesus was happy and excited around his siblings.
Then, between January and March 2005, mother failed to visit Jesus. Again, though the record fails to address this issue, it is logical to assume that during this time frame, no visits occurred between Jesus and his siblings.
Sometime after March 2005, mother’s weekend overnight visits with Jesus resumed. But, the only information we have about those visits is that Jesus was “very happy and was very playful with his siblings” and that he “was getting a lot of attention from his siblings.”
In November 2005, school officials informed DCFS that Jesus had come to school with a black eye. There were conflicting accounts as to how that occurred and there were concerns that because of Jesus’s birth defects and medical handicaps, he might have been the target of his siblings. Accordingly, unmonitored weekend visits with the siblings were terminated.
Furthermore, as mentioned above, for the succeeding 20 months, from November 2005 through July 2007, mother failed to have any visits with Jesus and, although the record is silent, it is logical to assume that Jesus had no visitation with any of his siblings.
Finally, we note that mother failed to present any evidence regarding the nature and extent of Jesus’s relationship with any individual sibling. There is no evidence of any shared significant common experiences and no evidence of any ongoing contact between Jesus and any individual sibling. Rather, it appears that for at least the 20 months prior to the juvenile court’s order terminating mother’s parental rights, Jesus had no relationship whatsoever with his siblings.
Under these circumstances, we readily conclude that substantial evidence supports the juvenile court finding that the section 366.26, subdivision (c)(1)(E) exception did not apply.
DISPOSITION
The juvenile court order terminating mother’s parental rights is affirmed.
We concur: BOREN, P. J., CHAVEZ, J