Opinion
G037779
5-29-2007
In re KYLIE O., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. SHARON T., Defendant and Appellant.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED
Sharon T. appeals from a judgment terminating her parental rights to Kylie O. Sharon argues the court erred in failing to apply either the "parental bond" exception (Welf. & Inst. Code, § 366.26 (c)(1)(A)) or the "sibling bond" exception (Welf. & Inst. Code, § 366.26 (c)(1)(E)) to the general presumption favoring adoption as the permanent plan for a dependent child, once reunification efforts have failed. We conclude that where, as here, the child was taken from the mothers custody at birth, and never resided with either the mother or the siblings, there is no basis to conclude the court abused its discretion in declining to apply either exception. The judgment is affirmed.
All further statutory references are to the Welfare and Institutions Code.
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When Kylie was born in October of 2004, a toxicology screen administered at the hospital revealed that Sharon had tested positive for cocaine. As a consequence, Kylie was detained, and ultimately adjudicated a dependent of the court. At the time of Kylies birth, Sharon already had two older children — a girl aged 15 and boy aged 13. These older children were full siblings to each other, and half-siblings to Kylie. The older children were also detained initially, but later returned to Sharons custody.
Kylies father was identified in the dependency proceeding, but did not participate.
Almost immediately after her detention, Kylie was placed with her maternal aunt, and has remained in the aunts custody since that time. In January of 2005, the court adjudicated Kylie a dependent, and ordered Sharon to participate in reunification services, including parenting classes and drug testing. During the reunification period, both Sharon and her older children visited with Kylie regularly at the aunts home, and were able to enjoy birthdays and holidays together during those visits.
Unfortunately, Sharons drug problems were substantial, and of long duration. She was unable to satisfactorily address them during her year-long reunification period. As a consequence, at the 12-month review hearing, the court terminated reunification services and scheduled the matter for a section 366.26 permanency planning hearing.
The permanency hearing took place in September of 2006, when Kylie was not quite two years old. At the hearing, the social worker testified Kylie has "a very strong bond" with her aunt, whom she calls her "mother." The aunt had expressed a "strong desire" to adopt Kylie if she was not returned to Sharons custody. Moreover, the aunt also had a very close relationship with Kylies siblings, and was also amenable to continuing the contact between Kylie and her siblings. The siblings did not oppose the idea of Kylie being adopted by their aunt.
Sharon also testified, emphasizing that she enjoyed a significant bond with Kylie, who she said calls her "mommy." Sharon had continued with once per week visitation even after reunification services had been terminated. She explained that during those visits she plays with Kylie, feeds her, teaches her things and works on potty-training her. Sharon stated that at the end of their visits, Kylie clings to her, sometimes crying, and is "a little reluctant" to let her go. Sharon also stated that when Kylies half-siblings visit her, she becomes visibly excited; the children play together, and Kylie is unhappy to see them leave at the end of their visits. Sharon also acknowledged that Kylies aunt was "more than willing" to have her siblings visit with her, and Sharon had no reason to believe that would change in the future.
At the conclusion of the hearing, the court found that Kylie was adoptable, and concluded the facts of this case did not warrant the application of either the parental-bond or the sibling-bond exceptions to the general presumption favoring adoption as the preferred permanent plan. As a consequence, the court ordered termination of Sharons parental rights.
I
In reviewing an order terminating parental rights, we must "presume in favor of the order, considering the evidence 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.)
Of course, "[a]doption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573, citing In re Heather B. (1992) 9 Cal.App.4th 535, 546.) If a court determines there is no probability a child will be returned to his or her parents and is likely to be adopted, it must choose adoption as the permanent plan unless the parent establishes that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.)
Sharons first argument in this regard is that the court erred in refusing to apply the exception set forth in subdivision (c)(1)(A) of section 366.26. That subdivision allows the court to choose a permanent plan other than termination of parental rights, even when a child is otherwise deemed adoptable if it "finds a compelling reason for determining that termination would be detrimental to the child [because the] parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
Of course, the section 366.26, subdivision (c)(1)(A) exception is not applicable to every case in which the evidence suggests the existence of an affectionate relationship between the parent and dependent child. As the court recognized in In re Autumn H., supra, 27 Cal.App.4th at p. 575, "[i]nteraction between natural parent and child will always confer some incidental benefit to the child." The application of the section 366.26, subdivision (c)(1)(A) exception requires more than that.
What it requires is a balancing of relative benefits. The court must consider whether "the [parental] 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. In other words, the 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 parents rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
"[T]he Autumn H. language, while setting the hurdle high, does not set an impossible standard nor mandate day-to-day contact. Rather, the decision attempts to describe the nature of the beneficial parent-child exception to the general rule that adoption should be ordered when the child is likely to be adopted. Another way of stating the beneficial parent-child concept described in Autumn H. is: a relationship characteristically arising from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship. A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction. The Autumn H. standard reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist, one of those exceptional circumstances being the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the childs need for a stable and permanent home that would come with adoption." (In re Casey D. (1999) 70 Cal.App.4th 38, 51, italics added.)
The burden was on Sharon to establish the applicability of the statutory exception (In re Tabatha G., supra, 45 Cal.App.4th at p. 1164), and it was not sufficient for her to merely rely on evidence of "frequent and loving contact" (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418), or that both she and Kylie enjoyed their visits. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) Rather, Sharon was required to demonstrate it was she, more than Kylies aunt, who occupied the "parental role" in Kylies life. (Ibid.) The trial court concluded she failed to sustain that burden, and on the facts of this case, we could not say the court erred.
Indeed, the evidence is undisputed that it was Kylies aunt, rather than Sharon, who had raised Kylie from birth. It was the aunt, and never Sharon, who would have been there when Kylie awoke during the night, who would have cared for her when she fell ill, and who provided her with constancy, stability and structure. Sharon may have been willing to do all those things, but it was not she who actually did them.
And it is those things which create a "parental" bond, and distinguish it from other loving relationships in a childs life. While consistent visitation between a parent and dependent child who already enjoy such a bond may well be sufficient to maintain it, and thus qualify for the section 366.26, subdivision (c)(1)(A) exception, we think it unlikely that such visitation would be sufficient to create one.
But even assuming that such a thing is possible, there is certainly nothing in the facts of this case which would compel the conclusion it was Sharon, rather than Kylies aunt, who occupied that parental role in Kylies life. And having said that, it necessarily follows that the trial court did not abuse its discretion in refusing to apply the section 366.26, subdivision (c)(1)(A) exception in this case.
II
Sharons second argument is that the court erred in refusing to apply the subdivision (c)(1)(E) exception to section 366.26. That subdivision provides that the court need not order termination of parental rights in cases where it concludes termination "would be [a] substantial interference with a childs sibling relationship . . . ."
Initially, we note Sharon has standing to invoke the exception: "[A] `parent has standing to assert the [section 366.26,] subdivision (c)(1)(E) exception to termination of parental rights because the parent under general standing requirements is a party directly aggrieved by a decision on the issue. (In re L.Y.L. [(2002)] 101 Cal.App.4th [942,] 948; see also In re Daniel H. (2002) 99 Cal.App.4th 804, 811-812 [observing `that this new sibling relationship exception probably renders the standing issue moot. Because sibling relationships are now a statutory exception to adoption, those relationships directly impact the parents interest in reunification, an interest that can be kept alive merely by avoiding adoption].)" (In re Erik P. (2002) 104 Cal.App.4th 395, 402.)
In applying the section 366.26, subdivision (c)(1)(E) exception, the court is required to consider "the nature and extent of the relationship, including, but 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 childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(E).)
As explained in In re Erik P., supra, 104 Cal.App.4th at p. 404, the emphasis placed by the Legislature on factors such as "whether the child was raised with a sibling in the same home" and "whether the child shared significant common experiences," suggests that the relationship between an infant who was removed from parental custody at birth, and siblings with whom that infant has never resided, "is not the type of sibling relationship the section 366.26, subdivision (c)(1)(E) exception was enacted to protect." Instead, "the [L]egislature was concerned with preserving long-standing relationships between siblings which serve as anchors for dependent children whose lives are in turmoil." (Ibid.)
Although again, we would not rule out the possibility of some theoretical case where the sibling relationship was so strong — despite the circumstance of the dependent child having been removed from parental custody at birth — that the section 366.26, subdivision (c)(1)(E) exception could be properly applied, all we need say is that this is not that case.
Here, although Kylies siblings did visit with her frequently at the home where she lived with their aunt — and may have indeed formed a bond with her — there is no evidence which compels us to conclude that bond constitutes such a significant "anchor" for Kylie that it would outweigh her strong interest in having a permanent adoptive home. And even if there were, all indications are that Kylie is likely to be adopted by the aunt she now resides with; an aunt who even Sharon concedes is expected to continue facilitating contact among the siblings. Hence, it is not at all clear that termination of Sharons parental rights would substantially interfere with the sibling relationship.
On appeal, Sharon argues there was some evidence that sibling visitation might not be preserved in the event of Kylies adoption, because efforts to arrive at a formal visitation agreement were not successful. However, such an argument is properly addressed to the trial court, rather than this one. Our obligation is to uphold the trial courts findings, as long as they are supported by substantial evidence. In this case, there was plenty of evidence to support the courts express determination that sibling visitation was likely to continue even after Kylie was adopted.
Consequently, in the circumstances of this case the court did not abuse its discretion in refusing to apply the section 366.26, subdivision (c)(1)(E) exception to termination of parental rights.
The judgment is affirmed.
We concur:
SILLS, P. J.
ARONSON, J.