Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. J513-886A/B, Laura J. Birkmeyer, Judge.
HALLER, J.
K.S. appeals orders terminating parental rights to her children under Welfare and Institutions Code section 366.26. She contends the beneficial parent-child relationship exception, the sibling relationship exception, and the Indian child exception applied (§ 366.26, subd. (c)(1)(B)(i), (v) & (vi). We disagree and affirm the orders.
Unless otherwise specified, further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2006 the San Diego County Health and Human Services Agency (the Agency) removed Kaitlin, then eight years old, and Tyler, then age four, from the home of their mother, K.S. (hereafter, Sandra). Kaitlin and Tyler (together, the children) could not awaken Sandra, who was on the floor of their apartment in a semi-coherent state. Sandra had a history of alcoholism. The apartment was extremely filthy, with beer cans everywhere and no place for the children to sleep. The only food in the home was a package of bologna. The children had been begging the neighbors for food.
Sandra had a history of child neglect, substance abuse and criminal activity. In 2001 Sandra lost custody of her eldest daughter, E.S., due to severe neglect. E.S. was in the care of her presumed father, R.M. R.M. also cared for Kaitlin when Sandra was homeless, incarcerated or incapacitated, most recently during summer 2006 when Sandra was homeless. R.M. also cared for Tyler for a short time.
Robert L. was Tyler's father and Kaitlin's presumed father. Robert had a history of substance abuse, criminal activity and repeated incarceration. His mother and her husband (Grandparents) cared for Tyler for two or three months in 2006.
In December 2006 the Agency detained Kaitlin with R.M. Tyler was detained with Grandparents.
Robert was a registered member of the North Fork Mono Rancheria tribe (the Tribe). The Tribe determined the children were eligible for membership and proceeded with their enrollment. The Tribe was involved with the children's dependency proceedings, which were conducted in accordance with the provisions of the Indian Child Welfare Act, title 25 United States Code, section 1901 et seq. (ICWA), and section 224 et seq.
Robert's biological father was Native American.
At the disposition hearing in March 2007, the court removed the children from parental custody, continued their placements with R.M. and Grandparents and ordered a plan of family reunification services.
Sandra and Robert were unable to stabilize their circumstances. Sandra tested positive for methamphetamine and admitted using marijuana. Robert failed several drug tests. He was often incarcerated during the dependency proceedings. At the 12-month hearing in May 2008, the court terminated services and set a hearing to select and implement a permanent plan for the children.
In June 2008 the Tribe passed a resolution opposing termination of parental rights (first resolution). The resolution stated the Tribe did not believe in termination of parental rights and instead supported the continuation and expansion of family relationships. The Tribe sought to protect the children's interests in their tribal, cultural and political rights and recommended guardianship as each child's permanent plan.
In its report filed for the section 366.26 hearing, the Agency recommended a permanent plan of adoption for each child. R.M. and Grandparents were each willing to adopt or become the child's guardian if the Tribe did not consent to adoption.
In October 2008 the Tribe rescinded its first resolution and stated that, as a matter of tribal law, the permanent plan for the children was adoption (second resolution). The Tribe stated its Resolution was to be afforded full faith and credit by the California courts, as provided under ICWA. The Tribe also requested the court issue orders prohibiting the adoptive parents from disenrolling the children from the Tribe and providing for regular, frequent and meaningful contact between Kaitlin and Tyler and between Tyler and E.S., and for meaningful contact between the Tribe and the children.
In January 2009 Sandra filed a petition for modification under section 388. She requested the court place the children with her with continued family maintenance services. The court granted a hearing and set it to be heard with the section 366.26 hearing.
The contested section 388 and section 366.26 hearings were held on February 10 and March 20, 25 and 30, 2009. The court heard testimony from R.M., Indian child welfare expert Phillip E. Powers, Kaitlin's therapist Vanja Gale, Psy.D., and Agency social worker Janaia Bruce. The court admitted the following exhibits in evidence: the declarations of Phillip Powers dated May 7 and September 8, 2008; the Tribe's second resolution and request for orders; and the Agency's reports dated September 9 and October 27, 2008, and February 10 and 13, and March 20, 2009.
The parties agreed the court could consider the evidence presented at the section 388 hearing at the section 366.26 hearing. On March 25, 2009, the court denied the section 388 petition and proceeded to the section 366.26 hearing.
In addition to the underlying facts described above, we summarize the evidence relevant to the issues raised on appeal, keeping in mind we view the evidence in the light most favorable to the prevailing party. (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1096, citing Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)
Powers stated the children deserved a permanent home. Each child wanted to remain with her caregiver. The Tribe had concluded that guardianship was not in the children's best interests. The children had a strong understanding of what they wanted. Any action that would adversely impact their desire for permanency would be detrimental to their psychological and emotional needs.
The children would be harmed by disenrollment from the Tribe because they would lose their cultural heritage and their educational rights for funding, including federal funds for higher education. The Tribe wanted the children's non-Indian adoptive parents to pursue the children's tribal culture, including contact with the Tribe, and to continue to facilitate contact between the siblings.
R.M. stated that he had known Kaitlin all her life. Kaitlin's relationship with Sandra was strained. Sandra did a better job trying to meet Kaitlin's emotional needs when she did not have day-to-day responsibility for her care. After visiting Sandra, Kaitlin's demeanor varied. Sometimes she was jovial. Other visits upset Kaitlin for two to three days. Since her last contact with Sandra, Kaitlin's grade in English dropped from "B" to "F". Kaitlin wanted to continue to have a relationship with Sandra.
Kaitlin and Tyler were very close. R.M. arranged visitation with Grandparents. Tyler visited Kaitlin at least once every three weeks.
Robert stated he had not pursued Kaitlin's Indian heritage because of his other responsibilities. If Kaitlin were interested, he had no objection to her involvement in Indian activities.
Beginning in January 2007 Dr. Gale provided weekly therapy to Kaitlin. The goal of therapy was to decrease the negative impact of Kaitlin's traumatic experiences on all areas of her development. When she began therapy, Kaitlin displayed anxiety and significant symptoms of depression. She had academic and social deficits and some behavioral problems. Kaitlin made significant progress and developed appropriate and strong attachments to R.M. and E.S.
Dr. Gale stated termination of parental rights would not be detrimental to Kaitlin. Kaitlin had a sense of stability and security in her current placement. Dr. Gale spoke with Kaitlin about adoption throughout the dependency process. Kaitlin said she wanted to stay with R.M. because he was able to take care of her and he loved her. She understood adoption was permanent.
Dr. Gale and R.M. told Kaitlin that when Sandra was appropriate and stayed clean and sober, Kaitlin would have access to visitation. Kaitlin did not object to decreased or postponed visitation with Sandra.
Dr. Gale believed it would be detrimental to Kaitlin if her relationship with Tyler was terminated. She had a very close relationship with her sister.
Bruce reported that Kaitlin and Tyler wanted to be adopted by their respective caregivers. Tyler said she loved where she lived. She knew her grandmother wanted to adopt her and stated, "I will live with her forever." Kaitlin said, "I want R.M. to adopt me. He knows how to take care of me." Both children realized Sandra could not care for them as a parent.
Bruce observed the relationship between Kaitlin and Tyler. Kaitlin was Tyler's big sister and Tyler "soak[ed] it all up." Loss of contact would be detrimental to each child, and possibly result in long-term detriment. In assessing the sibling relationship, Bruce considered the caregivers' mutual relationships and their love for both children, their history of cooperation with sibling visitation and their stated intent to promote the sibling relationship. The caregivers understood the sibling relationship was vital for each child's growth. Grandparents had not initiated contact with Kaitlin because they believed Sandra had access to R.M.'s home. They now had a clearer understanding of the limits R.M. placed on Sandra's contact with Kaitlin.
The court found by clear and convincing evidence that adoption was in the children's best interests and none of the exceptions to termination of parental rights applied. The court terminated parental rights.
DISCUSSION
The Parties' Contentions
Sandra contends the court erred when it terminated parental rights. She argues substantial evidence does not support the court's findings the beneficial parent-child relationship exception, the sibling relationship exception and the Indian child exception do not apply to preclude termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i), (v) & (vi).)
The Agency argues substantial evidence supports the court's findings under the applicable provisions of section 366.26, subdivision (c)(1)(B).
Minor counsel joins in and adopts the Agency's brief.
Termination of Parental Rights Under Section 366.26
At a permanency plan hearing under section 366.26, the court may order one of three alternatives: adoption, guardianship, or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If the dependent child is adoptable, there is a strong preference for adoption over alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.)
Once the court determines that the child is likely to be adopted, the burden shifts to the parent to prove the applicability of an exception to termination of parental rights under section 366.26, subdivision (c)(1)(A) or subdivision (c)(1)(B). (Cf. In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) To avoid termination of parental rights under section 366.26, subdivision (c)(1)(B), the court must find a compelling reason that termination would be detrimental to the child due to one or more defined circumstances. (§ 366.26, subd. (c)(1)(B)(i)-(vi).) Three of those exceptions, the beneficial parent-child relationship exception, the sibling relationship exception and the Indian child exception, are relevant here. (§ 366.26, subd. (c)(1)(B)(i), (v), (vi).)
Standard of Review
We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If there is substantial evidence supporting the court's ruling, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c)(1)(B). (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.); In re S.B. (2008) 164 Cal.App.4th 289, 298.)
Beneficial Parent-Child Relationship Exception
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." "Benefit from continuing the relationship" means "the [parent-child] relationship promotes 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." (Autumn H., supra, 27 Cal.App.4th at p. 575.)
Where the parent has continued to regularly visit and contact the child, and the child has maintained or developed a significant, positive, emotional attachment to the parent, "[t]he court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (Autumn H., supra,27 Cal.App.4th at p. 575 .)
"Neither section 366.26, subdivision (c)(1)(B)(i), nor Autumn H. requires proof that the child has a 'primary attachment' to a parent or that the noncustodial parent has maintained day-to-day contact with the child." (S.B., supra, 164 Cal.App.4th at p. 300, citing Autumn H., supra, 27 Cal.App.4th at p. 575, and In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
Sandra asserts the court erred when it did not find she had a beneficial relationship with each child sufficient to outweigh the prospective benefits from adoption. Sandra argues sufficient evidence was introduced at trial to prove the exception and requests reversal of the orders terminating parental rights on that ground. In support of her argument, she details some of the positive aspects of her interactions with the children.
Sandra misconstrues her burden on appeal. Rather than present some of the evidence in the record that may have supported her contention that the court should have ruled in her favor, she has the burden on appeal to show there is no evidence of a substantial nature that supports the court's ruling. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) Sandra cannot meet that burden here.
Substantial evidence supports the court's finding that although Sandra maintained regular visits and contact with the children, she did not display the consistent nurturing that would mark a parental relationship. The record shows Sandra did not act in a parental role to Kaitlin and Tyler. Sandra's substance abuse left her incapacitated and the children without supervision. The children were dirty and their home was filthy. Kaitlin would rummage through the cabinets to find food for Tyler or ask neighbors for food. Kaitlin was often late to class after lunch because it was her most substantial meal of the day. A school evaluation determined Kaitlin was emotionally disturbed.
After the children were removed from her custody, Sandra continued to use drugs rather than make a concerted effort to ameliorate her problems and develop a parental relationship with the children. After she filed a section 388 petition, Sandra relapsed, had an altercation with a family member and was arrested, and refused recommended in-patient treatment.
The court could reasonably determine Kaitlin did not have a beneficial relationship with her mother. Kaitlin's interactions with Sandra often left Kaitlin angry, upset and destabilized for several days. Sandra did not demonstrate an understanding of Kaitlin's emotional needs. Kaitlin was acutely aware of Sandra's limitations and had developed a strong and appropriate bond with R.M. With his consistent care and attention, Kaitlin began to thrive socially, academically and emotionally. Kaitlin wanted R.M. to adopt her. She regularly and spontaneously called R.M. "dad."
To the extent Kaitlin expressed ambivalence toward terminating all contact with Sandra, Dr. Gale and R.M. assured Kaitlin she would not be deprived of contact as long as Sandra was sober and stable. Kaitlin accepted the limitation without protest. Dr. Gale opined that termination of parental rights would not be detrimental to Kaitlin.
Tyler was cheerful and animated when the social worker spoke to her about adoption. She said she loved where she lived and would live with her grandmother forever. Although Tyler was affectionate with Sandra during visitation and enjoyed her attention, even frequent and loving contact or pleasant visits between the parent and child may be insufficient to justify the selection of a permanent plan other than adoption. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) Further, the record shows Tyler was a happy and affectionate child. The court could reasonably infer Tyler's affection for Sandra did not signify that Tyler had a substantial, positive emotional attachment to Sandra. (Autumn H., supra, 27 Cal.App.4th at p. 575 .)
The court could reasonably conclude that any benefit from continuing the parent-child relationships was outweighed by the well-being and sense of security Kaitlin and Tyler would gain in a permanent home with their likely adoptive parents. (Autumn H., supra, 27 Cal.App.4th at p. 575 .)
Sibling Relationship Exception
The sibling relationship exception applies when the parent shows, by a preponderance of the evidence, that termination of parental rights would be detrimental to the child because it would substantially interfere with a child's sibling relationship, taking into consideration the nature and extent of the relationship. (§ 366.26, subd. (c)(1)(B)(v).)
To determine the nature and extent of the sibling relationship, the court considers the factors set forth in section 366.26, subdivision (c)(1)(B)(v). These factors include, but are not limited to, "whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and 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 re Valerie A. (2007) 152 Cal.App.4th 987, 1007-1008.)
Sandra contends the evidence shows Kaitlin and Tyler had an existing close and strong sibling relationship, and expert witnesses agreed the loss of that relationship would be detrimental to them. The court recognized the importance of maintaining the children's bond. It acknowledged that once the children were adopted, the adoptive parents would have sole control over sibling contact and there was no guarantee the sibling relationships would be preserved. Sandra argues that under these circumstances, the court erred when it determined such interference with the sibling relationship did not establish a compelling reason that termination would be detrimental to the children. (§ 366.26, subd. (c)(1)(B).)
With one exception, Sandra correctly recites the evidence and the court's findings. If that were the end of our analysis, we might agree with her position. However, the court must also consider "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).) Even if siblings have a close and strong relationship, the court must weigh the benefits the child derives from the sibling relationship against the benefits the child will derive from adoption.
Sandra contends R.M. stated he would not supervise future sibling visitation. The record shows R.M. stated he would not supervise visits between Sandra and Kaitlin.
This court has previously stated that the application of the sibling relationship exception will be rare, particularly when the proceedings concern a young child whose need for a competent, caring and stable parent are paramount. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014, citing In re L.Y.L. (2002) 101 Cal.App.4th 942, 950.)
With respect to Tyler, who turned four years old shortly before she was placed with Grandparents, the record shows her need for a stable and competent home was paramount. Tyler considered herself "lucky" to be adopted and live in a "house that loves her." She was part of Grandparents' family and had met their extended and adopted family. Tyler spoke in terms of living with her grandmother "forever."
As to Kaitlin, her needs for security and stability were in many ways greater than Tyler's. Dr. Gale described the stressful and destabilizing effect of continued court proceedings on Kaitlin, as well as the negative impact of Sandra's continued involvement on Kaitlin's emotional health. The court discussed R.M.'s understanding of, and sensitivity to, Kaitlin's needs, including her need for continued contact with Tyler. We also note Kaitlin is being raised in the same home with her older sibling.
While we understand there is no absolute guarantee of continued contact when siblings are adopted by different families, Sandra does not meet her burden on appeal to show no substantial evidence supports a finding that adoption would substantially interfere with the sibling relationship. (§ 366.26, subd. (c)(1)(B)(v).) The court acted within its discretion when it considered the caregivers' history of facilitating sibling contact, each caregiver's relationship with the other caregiver, their love for both children and their stated intent to continue to facilitate sibling contact.
In many respects the caregivers' circumstances were akin to extended family. R.M. was involved in Tyler's life before the dependency proceedings began. He cared for her for a short time. Throughout the dependency proceedings Tyler visited Kaitlin at least once every three weeks. R.M. "thoroughly enjoy[ed] having Tyler around." On occasion, Grandparents contacted R.M. to arrange for Tyler to stay overnight at his home. In addition, the Tribe sought to ensure continued sibling contact and stated its intent to pursue post-adoption visitation to the fullest extent allowed by federal and/or state law.
We conclude the court did not err when it determined the sibling relationship exception did not establish a compelling reason for determining termination of parental rights would be detrimental to the children. (§ 366.26, subd. (c)(1)(B).)
Indian Child Exception
The Indian child exception now authorizes a court to consider whether there is a compelling reason for determining that termination of parental rights would not be in an Indian child's best interest. This exception may apply, but is not limited to, circumstances where "[t]he child's tribe has identified guardianship, long-term foster care with a fit and willing relative, or another planned permanent living arrangement for the child." (§ 366.26, subd. (c)(1)(B)(vi); see also In re A.A. (2008) 167 Cal.App.4th 1292, 1321-1322; In re T.S. (2009) 175 Cal.App.4th 1031, 1038.)
Sandra contends the Tribe did not consistently support adoption because it was likely the children would lose their connection to their Indian heritage if parental rights were terminated, and the court erred when it did not apply the Indian child exception. In support of her argument she reviews the federal policy underlying ICWA and the Indian child's interest in protecting his or her Indian identity.
The Agency contends substantial evidence supports the findings under section 366.26, subd. (c)(1)(B)(vi).
The Agency also argues the state court need not give full faith and credit to tribal resolutions under title 25 U.S.C. section 1911(d). This argument is unnecessary to the resolution of the issue on appeal and we do not consider it here.
The Tribe was initially opposed to adoption as contrary to their tribal values. However, after careful consideration of each child's needs, the parents' continued instability, lack of amenability to treatment and Robert's lack of contact with the children, the Tribe concluded that guardianship was not in the children's best interests. Thus the circumstances specifically identified in section 366.26, subdivision (c)(1)(B)(vi) do not apply.
With respect to other circumstances the court may have considered in support of the exception, the court carefully examined whether termination of parental rights would cause the Tribe to reject or disassociate itself from the children, depriving them of tribal and/or federal benefits the children might receive as Indian children. The record clearly shows the Tribe would not disenroll the children if they were adopted. The Tribe actively sought to protect its interest in promoting the children's identity as tribal members and solicited and received the caregivers' agreement to the Tribe's proposed conditions. We conclude there is substantial evidence to show the Indian child exception did not apply. (§ 366.26, subd. (c)(1)(B)(vi).)
DISPOSITION
We affirm the orders.
WE CONCUR: HUFFMAN, Acting P. J., NARES, J.