Opinion
2d Juv. No. B214446 2d Juv. No. B214793
10-14-2009
In re P.C., et al., Persons Coming Under the Juvenile Court Law. VENTURA COUNTY PUBLIC SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.N., M.C. AND M,.M., Defendants and Appellants.
Lee Gilbert, under appointment by the Court of Appeal, for A.N., Appellant. Cameryn Schmidt, under appointment by the Court of Appeal, for M,.C., Appellant. Catherine C. Czar, under appointment by the Court of Appeal, for M. M., Appellant. Noel A. Klebaum, County Counsel, County of Ventura and Alison L. Harris, Deputy County Counsel, for Respondent.
Not to be Published in the Official Reports
In these consolidated cases, M.C. (mother) appeals from the juvenile courts order terminating her parental rights to four children: G.C., M.C., P.C., and A.N., Jr. M.M., the father of G.C. and M.C., appeals from the order terminating his parental rights. A.N., Sr., the father of P.C. and A.N., Jr., appeals from the order terminating his parental rights. (Mother, M.M., and A.N., Sr. are hereafter collectively referred to as "parents.") When parental rights were terminated, the ages of the children were as follows: G.C — 11 years, M.C. — 7 years, P.C. — 4 years, and A.N., Jr. — 3 years. Parents contend that the juvenile court erroneously found inapplicable the exceptions to the termination of parental rights that apply where: (1) "[t]he parents have maintained regular visitation and contact with the child and the minor would benefit from continuing the relationship," and (2) "[t]here would be substantial interference with a childs sibling relationship." (Welf. & Inst. Code, § 366.26, subds. (c)(1)(B)(i) & (c)(1)(B)(v).) Parents also contend that the juvenile court should have considered and selected legal guardianship instead of adoption as the permanent plan. We affirm.
Factual and Procedural Background
In addition to the four children involved in this appeal, mother and A.N., Sr. have one child: D.N. Mother and M.M. have two additional children: C.C. and A.M. Mother has an eighth child, M.D., by a third father. When parental rights were terminated, the ages of the four additional children were as follows: D.N. — 1 year, C.C. — 14 years, A.M. — 10 years, and M.D. — 15 years. (B214793 (793)
In January 2005 the juvenile court ordered that mothers six children (D.N. and A.N., Jr., had not yet been born) be detained in foster care. An investigation disclosed that mother had severely neglected her children: "There is a clear pattern of leaving the children in the home without supervision." A.N., Sr., who was living with mother, had physically abused C.C. and G.C.
A.N., Jr. was born in March 2005. He was also detained in foster care. G.C., M.C., C.C., and A.M. were placed together in the same foster home. A.N., Jr. and P.C. were placed together in a separate home. M.D. was placed with her paternal aunt. On July 7, 2005, all seven children were declared to be dependent children of the juvenile court and were removed from parental custody. (§ 300.)
On July 25, 2005, mother filed a section 388 petition requesting that the children be returned to her custody. On August 16, 2005, the children were placed with mother on condition that A.N., Sr. not reside in the home. A February 2006 status report noted that mother was residing with her seven children in a three-bedroom home in Moreno Valley. M.M. was paying the monthly rent of $1,500, while A.N., Sr. was paying the utilities and providing food for the family. Both fathers were employed as day laborers. In March 2006 A.N., Sr. was permitted to move back into the family home with mother and the children.
On May 31, 2006, the children were detained. Five days later, the juvenile court ordered that the children be removed from mothers custody, that the parents be provided reunification services, and that sibling visits occur on a regular basis. In September 2006 the court found true the following allegations in a supplemental section 387 petition: "The father, [A.N., Sr.] was authorized to reside in the home, and he has failed to protect the children in that he left the home, leaving the children in the care of the mother. The children have been left unsupervised and the oldest sibling, [M.D.], is caring for all the children."
P.C. and A.N., Jr. were placed together in the same foster home. G.C., M.C., C.C. and M.D. were placed together in a separate home until February 7, 2007. On that date G.C. and M.C. were moved to a new foster home, and C.C. and M.D. were moved to a different foster home.
On June 13, 2007, the juvenile court terminated reunification services, ordered visitation for the parents, and adopted a plan of long-term foster care as to all of the children except A.M. The foster parents of P.C. and A.N., Jr. requested that the children be removed from the foster home because they "were too aggressive and their negative behavior had increased." P.C. and A.N. Jr. were placed at the Casa Pacifica Pre-K shelter.
The foster mother of G.C. and M.C. was unable to continue providing care for them. Her close friend, R.G., "offered permanent placement for [G.C. and M.C.], including adoption or guardianship if needed." On December 21, 2007, they were placed in R.G.s home. P.C. and A.N., Jr. continued to reside at Casa Pacifica.
On April 10, 2008, a social worker prepared a report for a 90-day review hearing. The social worker noted that G.C. "is receiving services from Therapeutical Behavior Services . . . to address his behavioral issues that include physical aggression and poor coping skills among other behavioral issues." M.C. is receiving therapeutic services "for several issues of concern such as difficulty with coping with anger and frustrations, temper tantrums, poor social boundaries among other behavioral issues." P.C. and A.N., Jr. "continue in Casa Pacifica receiving an array of services." Mother and A.N., Sr. have visited P.C. and A.N., Jr. at Casa Pacifica, but they have often been late and "have missed several visits." "Casa Pacifica staff reported that [P.C. and A.N., Jr.] have no difficulty separating from their parents after the visits are over." Mothers and M.M.s visits with G.C. and M.C. have been inconsistent.
On May 20, 2008, P.C. and A.N., Jr. were placed in the home of their prospective adoptive parents. A June 2008 status review report recommended that the juvenile court set a section 366.26 hearing to establish a permanent plan of adoption for G.C., M.C., P.C. and A.N., Jr.
In July 2008 Sima Stanley, G.C.s and M.C.s therapist, wrote letters to respondent expressing her "deep concern regarding [G.C.s and M.C.s] emotional welfare at this time." Both children are "persistently in turmoil awaiting a final court decision regarding whether [their] placement is permanent or not . . . ." G.C. has "made much therapeutic progress . . . but these skills are quickly being lost as his anxiety and frustration increase. [¶] . . . His behavior problems now are a result of this persistent anxiety. Visits with his parents sometimes occur and sometimes do not. Plans have to be changed last minute, and feelings of abandonment and disappointment are again brought forward, causing more agitation." M.C.s "behavior problems" are also "a result of this persistent anxiety" concerning her unsettled situation.
On September 5, 2008, the juvenile court set a section 366.26 hearing. The court ordered Dr. Alfredo E. Crespo, a psychologist, to perform a psychological evaluation of the children, their siblings, and their parents. In November 2008 he prepared a detailed, 49-page report.
Dr. Crespo interviewed the children. A.N., Jr., then three years old, stated that he lived with his "Mommy" and then made other statements that were essentially unintelligible. P.C., then four years old, referred to her foster parents as her "`Mommy and Daddy." She said that she also has a "`Mommy [first name of mother] and Papi [ first name of A.N., Sr.]."
M.C. identified mother as her "`real Mom" and R.G. as her "`"foster" one." M.C. said, "`I wanna live with my Dad . . . [M.M.] . . . `cause I really want to live with him." G.C. told Dr. Crespo, "`I am not going to answer questions about who I want to live with . . . because it makes me feel bad." G.C. referred to R.G. as a really good friend. He said that his father, M.M., visits with him for four hours every Sunday and attends his baseball games. "[G.C.] stated that he is `against adoption of any among the children in his birth family and then stated that he wants `to go with my Dad . . . and with [C.C.], if he could, and my sister [M.C.] — and [A.N., Jr.] and [P.C.] should go with my Mom . . . because she knows more about little kids than my Dad does . . . ." G.C. received a low score on a test measuring happiness. "This suggests that [G.C.] is generally unhappier than most children his age."
Dr. Crespo observed the children interact with their siblings. He remarked, "There was an increasingly chaotic nature to the interaction among the children . . . ." After the children had left, mother "explained that the visit that had occurred `was crazy . . . and out of control, nobody knew what to do . . . but, they love each other a lot, and they were happy to see each other. "During the visit, P.C. asked M.C., "`Whats your name again?"
As to the sibling relationship, Dr. Crespo concluded that the children "are attached to one another," but P.C. and A.N., Jr. "may be least attached to their older siblings. This was illustrated rather dramatically when [P.C.] asked [M.C.] to remind [P.C.] of [M.C.s] name. However, [A.N., Jr. and P.C.], especially, have established a relationship with all among their siblings and, in my judgment, they would be also likely placed at risk for emotional problems, if they are adopted, and their sibling relationship thus permanently severed as a result of such case outcome — though less than [G.C] and [M.C.]."
As to the adoption of P.C. and A.N., Jr., Dr. Crespo opined: "[P.C. and A.N., Jr.] may be placed at risk of further emotional problems if their parents rights are terminated and they are adopted by their current caregivers. Particularly because the prospective adoptive parents . . . do not appear inclined to support an open adoption, it would seem that adoption for [P.C. and A.N., Jr.] would not only sever a sibling relationship (promoted and supported through consistent sibling visits) but also end a relationship with birth parents that love them but whose mother in particular remains unable to reassure the Court that she can parent all the minors."
In December 2008 social workers prepared a section 366.26 report recommending that parental rights be terminated and that a permanent plan of adoption be implemented. The report noted that both P.C. and A.N., Jr. are "adjusting well to the prospective adoptive parents." The report referred to a December 2008 letter from Katherine S. Kemp, Staff Clinician and Clinical Supervisor at Casa Pacifica. Kemp had been "providing Parent Child Interactional Therapy (PCIT) with [P.C. and A.N., Jr.] since October 2, 2007." Starting in May 2008, their foster parents were included in the therapy sessions. Kemp stated: "[P.C. and A.N., Jr.] appear to be attached to the foster parents and look to them for nurturance and guidance. The foster parents appear equally attached to [P.C. and A.N., Jr.] Foster parents report few behavioral concerns with either child at this time. [¶] As a result of this strong relationship, lack of any current behavioral problems as well as the foster parents mastery of PCIT skills, we are looking towards their graduation from our program within the next few weeks.
The report observed that, during the dependency proceedings, the children had been placed as follows: G.C. — five different foster homes; M.C. — six different foster homes; P.C. — four different foster homes plus Casa Pacifica; A.N., Jr. — three different foster homes plus Casa Pacifica.
As to the parents supervised visitation, the report declared: "[T]he parents have numerous late arrivals. . . . [T]his has caused anxiety and anger to the children." "Additionally, there have been several visits missed by [A.N., Sr.], and numerous missing visits by [M.M.]."
As to the attitude of G.C. and M.C. concerning their adoption by R.G., the report states: "[G.C. and M.C.] are happy and comfortable in this home and appear to have a close and positive relationship with the prospective adoptive mother and her children. They stated that they are happy living with prospective adoptive mother and would like to be adopted by her, provided that they continue having contact with their extended birth family. . . . The children stated that they would like to keep their first and last names after the adoption."
The report notes that all of the prospective adoptive parents "do not wish to enter into a Post Adoption Contract Agreement." But the prospective adoptive parent of G.C. and M.C. is "committed" to continuing supervised contact between the children and their father, M.M., as well as mother. She is also "supportive of supervised contact between the children and their siblings."
The prospective adoptive parents of P.C. and A.N., Jr., on the other hand, are not supportive of future contact between the children and their parents. But they do support supervised contact between the children and their siblings.
The report is critical of Dr. Crespos evaluation: "Even though Dr. Crespo feels the children would face some difficulties if the parents rights were terminated[,] he did not address the emotional toll on the children to linger in the foster care system waiting for their parents to prove their ability to meet all of the childrens many needs." "He discusses the childrens relationships with each other and their siblings. However, he did not discuss this with the current prospective adoptive parents, who plan to continue allowing contact among the siblings . . . ."
Section 366.26 Hearing
At the section 366.26 hearing, Dr. Crespo testified as follows:
P.C. has a "visting relationship," not a "normal" relationship, with her siblings. A.N., Jr.s relationship with his siblings has also "been built primarily on the basis of the structured and regular visitation." (4RT 518) If the juvenile court terminated parental rights as to P.C. and A.N., Jr., "they would be the least impacted out of the whole sibling group . . . ."
As to G.C. and M.C., "there would be benefits to an adoption. There would be more stability. There would be more attention to things like schooling and so forth." Thus far, G.C. and M.C. have had a "chaotic" childhood. But G.C. and M.C. "are attached to their birth parents. . . . They have memories of living with their mother and siblings. I think if that relationship is severed they will be potentially placed at risk of emotional problems often found in kids who are adopted — a longing for the birth family, a loss for what could have been."
On the other hand, if G.C. and M.C. were moved from their present foster home, "[i]t would have a negative effect because it would again introduce a change, instability into their lives . . . ." Adoption would also have a negative effect, but "not as negative as in the other scenario." It "would be better for them" to be adopted than to remain "in a state of limbo" in a foster home with visitation by their parents but without a goal of reunification.
As to P.C. and A.N., Jr., maintaining the status quo would have "a bad effect" because "it would be maintaining them in a state of limbo." Because of their young age and "the fact that they have . . . lived with the parents and siblings for a very little amount of time," adoption would have a "minimal" impact on P.C. and A.N., Jr. "As a matter of fact, I think its only fair to say that from their point of view the effect may be positive."
Sima Stanley, G.C.s and M.C.s therapist, testified: It has been "very stressful" for G.C. to be "in limbo" concerning his situation. M.C. says that "she wants to be with her dad," but she also says that "she loves her foster mom." M.C. does not talk about mother or her siblings except G.C. G.C. does not talk about his siblings except M.C.
Barbara Facundus, a social worker, testified: After visiting their parents, the children "appear to separate easily." "[G.C. and M.C.] love their dad." During one visit with M.M., G.C. told Facundus, "Ive got the coolest dad in the wor[l]d."
Emilia Pineda, an adoptions social worker, testified: G.C. said he "felt comfortable being adopted" so long as he would be able to continue visiting his parents. "[H]e also said that if given the choice, he would prefer to return to his parents, but he explained . . . that he knew that his parents could not take care of him." G.C. did not talk about his siblings. M.C. said that she wanted to be adopted by her foster mother, "but she also wanted to make sure that she will be able to visit with her parents." Pineda told both G.C. and M.C. that their foster mother intended to allow continued visitation by parents after adoption.
J. S., the previous foster mother of G.C. and M.C., testified: After a visit by M.C. with her siblings about four to eight weeks earlier, M.C. said that it "was not a good visit" because "there was a lot of people there and it seemed like everybody was mad." G.C. and M.C. have expressed fear about being moved to a new foster home. When they moved to their present foster mothers home about a year and a half earlier, they said that "they didnt want to ever move again. That was it." M.C. said "it might be fun" to live with her father, but "I really like it here [at her foster mothers home]."
Discussion
"By the time of a section 366.26 hearing, the parents interest in reunification is no longer an issue and the childs interest in a stable and permanent placement is paramount. [Citations.] . . . The child has a compelling right `to [have] a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.] Adoption is the Legislatures first choice because it gives the child the best chance at such a commitment from a responsible caretaker. [Citations.]" (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)
"If the court finds that a child may not be returned to his or her parent and is likely to be adopted, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the child under one of [several] specified exceptions. [Citations.]" (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The exceptions at issue here are set forth in two subdivisions of section 366.26: subdivision (c)(1)(B)(i), which applies if "[t]he parents have maintained regular visitation and contact with the child and the minor would benefit from continuing the relationship," and subdivision (c)(1)(B)(v), which applies if "[t]here would be substantial interference with a childs sibling relationship." Parents had the burden of proving that these exceptions are applicable. (Id., at p. 826; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.) All parents contend that the juvenile court erroneously determined the beneficial relationship exception to be inapplicable. Only mother and M.M. contend that it also erroneously determined the sibling relationship exception to be inapplicable.
We review the courts determinations under the substantial evidence standard. (In re Naomi P. (2005) 132 Cal.App.4th 808, 824; In re Derek W., supra, 73 Cal.App.4th at p. 827; In re Autumn H. (1994) 27 Cal.App.4th 567, 575; contra, In re Jasmine D., supra, 78 Cal.App.4th at p. 1351 [reviewing court should apply abuse of discretion standard].) "`"In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact."" (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) We view the evidence in the light most favorable to respondent, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) "It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630.) "The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]" (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Beneficial Relationship Exception
The juvenile court did not expressly consider the first prong of the beneficial relationship exception: that "[t]he parents have maintained regular visitation and contact with the child." (§ 366.26, subd. (c)(1)(B)(i).) It expressly considered only the second prong: that "the minor would benefit from continuing the relationship." (Ibid.) We need not consider the exceptions first prong because substantial evidence supports the juvenile courts determination that parents did not establish the requirements of the second prong.
In In re Autumn H., supra, 27 Cal.App.4th at p. 575, the appellate court interpreted "the `benefit from continuing the [parent/child] relationship exception to mean the 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 determining whether the exception applies, "the [juvenile] 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." (Ibid.; see also In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425 ["Autumn H. teaches that the juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family."])
Here, the juvenile court expressly engaged in the required balancing. The court noted that "the Autumn H.case says" that it "is required to balance the strength and quality of the natural parent-child relationship in a tenuous placement — which is what long-term foster care is, which is what guardianship is — against the security and the sense of belonging a new family would confer with adoption." The court declared: "[T]hese children are suffering from not knowing where they are going to live, not knowing whos going to raise them, and they will suffer if they are ever moved again. And to the extent that can be prevented and that they can be assured thats not going to happen, thats what they need. And the only way I can see to achieve that is adoption. [¶] . . . [T]hese children will suffer some detriment, probably even a lot of detriment, if their contact with their parents is completely cut off. . . . And so I have to weigh my alternatives. And again, the most convincing evidence is that the tenuousness of their current situation cannot continue. [¶] These children have lived outside their parents custody for a very long time. The relationship with their parents, while loving, is one . . . that for the last several years has consisted primarily of a visiting relationship, not of any kind of day-to-day, parental relationship. . . ." "[I]f I dont find that they should be adopted, they are going to remain in the system with no idea of what could happen next year or the year after that with the possibility of being removed from their current home, and I dont think they deserve that."
Substantial evidence supports the juvenile courts determination that the parents failed to establish that the benefit to the children from continuing the parental relationship outweighs the benefit of permanence and stability available only through adoption. As to P.C. and A.N., Jr., they were very young when parental rights were terminated on February 27, 2009: P.C. was four and A.N., Jr. was three years old. Since May 31, 2006, they had not lived with either parent. The record indicates that their attachment to their foster parents is substantially stronger than their attachment to their birth parents. When birth parents visited P.C. and A.N., Jr. at Casa Pacifica, the children had "no difficulty separating from [them] after the visits [were] over." Barbara Facundus, a social worker, testified that "the children appear to separate easily [from their birth parents] after the visits" that she supervised. While Facundus is driving them back to their foster parents, "[t]hey want to be reassured that theyre being returned with Mommy [A. — their foster mother]." Upon their return, "[t]hey greet Mommy [A.] with hugs and kisses and the dad. [¶] [A.N., Jr.] cant wait to give her a hug. Theyre smiling. Theyre in good moods. Theyre positive." During Dr. Crespos interview of P.C., she referred to her foster parents as "`Mommy and Daddy. "Katherine S. Kemp, Staff Clinician and Clinical Supervisor at Casa Pacifica, wrote that P.C. and A.N., Jr. "appear to be attached to the foster parents and look to them for nurturance and guidance."
P.C.s and A.N., Jr.s need for stability and permanence is especially important in view of the previous instability of their situation. In her four years, P.C. has lived in four different foster homes plus Casa Pacifica. In his three years, A.N., Jr. has lived in three different foster homes plus Casa Pacifica. At the section 366.26 hearing, Dr. Crespo testified that maintaining the status quo would have "a bad effect" on P.C. and A.N., Jr. because "it would be maintaining them in a state of limbo." Because of their young age and "the fact that they have . . . lived with the parents and siblings for a very little amount of time . . ., adoption would have a "minimal" effect on them. "As a matter of fact," Dr. Crespo declared, "I think its only fair to say that from their point of view the effect may be positive." Accordingly, the trial court reasonably concluded that the parental-child relationship did not promote "the well-being of [P.C. and A.N., Jr.] to such a degree as to outweigh the well-being [they] would gain in a permanent home with new, adoptive parents." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
G.C. and M.C. present a more difficult issue. They were considerably older than P.C. and A.N., Jr. when parental rights were terminated: G.C. was eleven and M.C. was seven years old. They both have a strong attachment to their father, M.M., and the severance of this relationship would have serious consequences. We recognize that, according to the section 366.26 report, G.C.s and M.C.s prospective adoptive mother, R.G., is "committed" to continuing supervised contact between the children and both birth parents. But we cannot assume that R.G. will fulfill this nonbinding "commitment." Nevertheless, viewing the evidence in the light most favorable to respondent, we conclude that the juvenile court reasonably determined that the parental-child relationship did not promote "the well-being of [G.C. and M.C.] to such a degree as to outweigh the well-being [they] would gain in a permanent home with new, adoptive parents." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Only adoption by R.G. can give G.C. and M.C. the security, stability, and peace of mind essential to their well-being. As Dr. Crespo observed, G.C. and M.C. have had a "[c]haotic" childhood. G.C. has lived in five different foster homes, and M.C. has lived in six different foster homes. G.C. and M.C. are clearly fond of and attached to R.G. They want to be adopted by her provided that they are allowed to continue seeing their birth family. M.C. said that she "really like[s] it here [at R.G.s home]." If adoption is not selected as the permanent plan, there is a risk that they would be moved to a new foster home. Both G.C. and M.C. have expressed fear about such a move.
According to Sima Stanley, G.C.s and M.C.s therapist, the instability of their present situation has been very stressful. As to G.C., Stanley testified: "[H]es in limbo. He has . . . found safety, a safe haven. He has found support. He likes getting support. He likes getting the direction, the supervision that he needs. And in many aspects of his life he has really improved. . . . [B]ut I think he wants to be able to know . . . what to expect for his future, as any child wants. And being in limbo, not knowing where I will be, what my future is is still very stressful. And then he ends up getting angry, getting upset, not having patience to do the activities of daily living that he should be able to." As to M.C., Stanley wrote in July 2008: "[M.C.] is persistently in turmoil awaiting a final court decision regarding whether her placement is permanent or not, and subsequently she feels that she cannot plan for her future. She is persistently in a state of agitation, which she translates as anger or disorganized behaviors, or bickering with her brother, or aggressive behaviors."
Even Dr. Crespo opined that it "would be better" for G.C. and M.C. to be adopted than to remain "in a state of limbo" in a foster home with visitation by their parents but without a goal of reunification. He also opined that the "negative effect" of being moved to a new foster home would be greater than the "negative effect" of adoption.
Sibling Relationship Exception
The sibling relationship exception applies if termination of parental rights would be detrimental to the child because "[t]here would be substantial interference with a childs sibling relationship, taking into consideration 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)(B)(v).)
Pursuant to the sibling relationship exception, "the court is directed first to determine whether terminating parental rights would substantially interfere with the sibling relationship by evaluating the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds. [Citation.]" (In re L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.) If the court determines that there would be substantial interference with the sibling relationship, it must "balance the benefit of the childs relationship with his or her siblings against the benefit to the child of gaining a permanent home by adoption in the same manner the court balances the benefit of the childs continued relationship with the parent against the benefit to the child of gaining a permanent home by adoption when considering the section 366.26, subdivision (c)(1)[(B)(i)] exception. 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. [Citation.]" (Id., at p. 951.)
As to G.C. and M.C., the juvenile court expressly found that the termination of parental rights would result in a substantial interference with their sibling relationship. The court declared: "I believe the evidence supports that the prospective adoptive parents would be willing to allow contact as long as its beneficial to the children, but Im going to assume that would mean there still would be a substantial interference." The court concluded that the benefit of permanence through adoption outweighed the benefit of G.C.s and M.C.s continued relationship with their siblings: "[T]hese children have been and are continuing to be harmed by having impermanence, instability in their lives that exist with anything less than adoption. [¶] . . . [T]here probably would be benefits [from continued contact with siblings], but I dont think that those benefits would outweigh the benefits of adoption. [¶] [G.C. and M.C.] have not lived together . . . with their siblings for a long time. They have not together experienced significant life events with their siblings, because they have not lived in the same home."
Substantial evidence supports the juvenile courts determination that the benefit of permanence through adoption outweighed the benefit of G.C.s and M.C.s continued relationship with their siblings. At the time of the section 366.26 hearing, G.C. and M.C. had not lived together with any of their siblings for two years. A sibling visit observed by Dr. Crespo was not impressive. He wrote that "the interaction among the children" became "increasingly chaotic." After the visit, mother "explained that the visit that had just occurred `was crazy . . . and out of control, nobody knew what to do . . . ." Sima Stanley, G.C.s and M.C.s therapist, testified that the only siblings they talk about are each other. After a recent visit by M.C. with her siblings, she told her previous foster mother that it "was not a good visit" because "there was a lot of people there and it seemed like everybody was mad." Emilia Pineda, an adoptions social worker who interviewed G.C., testified that G.C. did not talk about his siblings. According to Pineda, "He just wanted to make sure that he will be able to continue visiting . . . with his parents." In view of the prospective adoptive mothers commitment to permit supervised sibling visits, the juvenile court reasonably determined that G.C.s and M.C.s interests would be better served by adoption than by "a tenuous guardianship or foster home placement." (In re L.Y.L., supra, 101 Cal.App.4th at pp. 951.)
As to P.C. and A.N., Jr., the juvenile court did not expressly find that the termination of parental rights would result in a substantial interference with their sibling relationships. Assuming, for purposes of discussion, that the court impliedly so found, substantial evidence supports its determination that the benefit of permanence through adoption outweighed the benefit of P.C.s and A.N., Jr.s continued relationship with their siblings. According to Dr. Crespo, P.C.s and A.N., Jr.s sibling relationship was not the "normal" type engendered by living together in the same household. Dr. Crespo testified, "I think that they have a sibling relationship that is based on visitation and not on anything else." He further opined that P.C. and A.N., Jr. "may be least attached to their older siblings." This lack of a strong attachment "was illustrated rather dramatically when [P.C] asked [M.C.] to remind [P.C.] of [M.C.s] name." The juvenile court was also entitled to consider that P.C.s and M.C.s adoptive parents supported supervised contact with their siblings.
Legal Guardianship
"`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. [Citation.]" (In re Celine R. (2003) 31 Cal.4th 45, 53.) Despite the legislative preference for adoption, parents contend that the juvenile court should have considered and selected legal guardianship as the permanent plan. But the court did consider legal guardianship. As we previously noted, the court said that it "is required to balance the strength and quality of the natural parent-child relationship in a tenuous placement — which is what long-term foster care is, which is what guardianship is — against the security and the sense of belonging a new family would confer with adoption." The court was required to select adoption as the permanent plan because none of the exceptions to adoption was applicable. (§ 366.26, subds. (c)(1) & (c)(4)(A); see also In re Celine R., supra, 31 Cal.4th at p. 53; In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1165 ["Having made the necessary findings under the statutory scheme to terminate [mothers] parental rights, the court was not required to further consider whether [minors] best interests would be better served by a permanent plan of guardianship or long-term foster care"]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420 ["guardianship is only the best possible permanent plan for children in circumstances where the exceptions to terminating parental rights in section 366.26, subdivision (c)(1) apply"].)
In 2007 the Legislature added an exception to adoption where "[t]he child is living with a relative who is unable or unwilling to adopt the child . . ., but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child." (§ 366.26, subd. (c)(1)(A), added by Stats. 2007, c. 583, § 28.5, and Stats. 2007, c. 565, § 4.) Parents failed to establish the requirements of this exception to adoption. G.C., M.C., P.C. and A.N., Jr. were not living with a relative. Moreover, according to the section 366.26 report, the foster parents want to adopt the children and are not interested in a legal guardianship.
Disposition
The orders terminating parental rights are affirmed.
We concur:
COFFEE, J.
PERREN, J. --------------- Notes: All statutory references are to the Welfare and Institutions Code.