Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Charlotte Wittig, Juvenile Court Referee, Super. Ct. No. J03-56029.
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, John A. Rozum and Channone M. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Kane, J.
Rosa S. appeals from a June 2007 order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her five-year-old son, R.S. Appellant contends the court erred by failing to find that termination would be detrimental to R.S. either on account of her parental/child relationship or because adoption would substantially interfere with the child’s sibling relationship. On review, we conclude the court did not abuse its discretion and will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In January 2003, the Tulare County Superior Court detained then 14-month-old R.S., his 5-year-old sister, and his 8-year-old brother. Appellant’s and the father’s alcohol abuse and domestic violence rendered them unable to adequately supervise or protect their children. Appellant also suffered from bipolar disorder which exacerbated the situation. In short order, the court adjudged the three children dependents, formally removed them from parental custody, and ordered reunification services for both parents. Except for a six-month period in 2004, when the court returned the children to the father’s care with family maintenance services, these children have been in out-of-home placement throughout the balance of these proceedings. Their contact with their parents has been necessarily limited to supervised visits.
Unfortunately, the children have also experienced numerous placement changes over the course of their dependency and, for the most part, have been unable to live together. For the first ten months of their dependency, R.S. and his sister lived in a separate placement from their older brother. He had asked to be moved. Then R.S. and his sister were placed with their brother, and the children made significant progress. The progress they made appeared related to the significant trauma the older children, in particular, had experienced over the years through their exposure to parental domestic violence, child abuse, neglect, and abandonment.
Meanwhile, the parents complied with their respective reunification plans and showed initial signs of progress. Consequently in March 2004, the court returned the children to the father’s care with family maintenance services. It also continued services for appellant and even permitted her to live in the family home.
Whatever progress the parents made proved to be short-lived. By July 2004, the court terminated services for appellant and ordered her out of the house. Respondent Tulare County Health and Human Services Agency (agency) redetained the children in August 2004 based on the father’s noncompliance with the family maintenance plan as well as his breach of the court’s exclusion order. The court terminated all reunification efforts the following month and set the first of multiple permanency planning hearings.
Recommending a permanent plan for the children in 2005 was problematic. They then shared a very strong attachment with one another. Yet, the older children had mental health issues. The older brother had been in therapy since the summer of 2004. He suffered, like appellant, from bipolar disorder and displayed self-harming behaviors. By November 2004, the older brother’s therapist commenced collateral sessions with both the older siblings, who exhibited sexualized behaviors, to deal with the trauma they had experienced with the parents. R.S. never required any mental health therapy. There were also ongoing weekly visits with the parents, which impeded any opportunity for the children to begin forming a healthy parent-child relationship with any prospective adoptive parents. Further, there was evidence of bonding between the children and their parents. However, their relationship was described as “very unhealthy” and “emotionally/psychologically abusive.” As a consequence, the agency urged the court to select long-term foster care as the appropriate permanent plan and either terminate or significantly reduce parent-child visitation.
At the first section 366.26 hearing in March 2005, the court found termination would not be detrimental to the children but stopped short of terminating parental rights. The court determined the children were difficult to place because they were members of a sibling group and ordered a further section 366.26 hearing in six months’ time. During that window of time, the agency was to search for a more permanent plan. The court specifically added that while the parents maintained regular visitation and contact with the children, the parents failed to establish the children would benefit from continuing their relationship. The court expressly found visits were chaotic for the children and impacted their emotional well-being. The court then ordered the agency to gradually decrease visitation to every other week.
Both appellant and the father unsuccessfully appealed from this decision. (In re R.S.(F047926) & In re Ralph S. (F047925).)
Despite the court’s goal of finding a more permanent home for all three children, the older siblings had to be moved into separate placements the following month. The foster family reported in early April 2005 that the children fought too much among themselves. The foster family was willing to keep R.S. but wanted the older two children removed. Fortunately, the foster family agency was able to place the older siblings in separate but neighboring homes so that the children saw each other almost daily.
At the next section 366.26 hearing in September 2005, the court found R.S. and his sister were adoptable. However, because the children had such a strong sibling bond and no one was willing to adopt all three, the court found adoption would be detrimental and ordered the children into long-term foster care. It also continued visitation with the parents at once every other week.
The older brother was not adoptable due to his mental health problems.
Over the next year, the children remained in their respective foster homes while the agency attempted unsuccessfully to find one adoptive home for all three children. Meanwhile, the father maintained consistent visits with them, although he arrived late and inebriated to one visit in March 2006. He also had some difficult emotional times during visits. In addition, he had to be asked to decrease his gift giving, as it agitated the older brother if he did not get the gift he had requested.
By contrast, appellant did not maintain regular visits. This was apparently due in part to her mental health issues. She missed numerous visits in the later part of 2005. Then, in the first part of 2006 she was apparently incarcerated and did not visit with the children. When she resumed attending visits in May 2006, the children were reportedly happy to see her. Appellant was appropriate in her visits and offered support to the children. She also was aware of all the children and seemed to notice R.S. when he tried to express himself. R.S. had shown signs of speech delay. Of the three children, the daughter demonstrated the most need for appellant’s attention and affection.
Then, in June 2006, placement again became an issue. The older brother could no longer remain with his foster mother and there was no room for him in either of the other children’s foster homes. The foster family agency placed him with a new foster mother but in another town. Fortunately for the brother, he did well in the new home but missed his younger siblings.
Also in June 2006, a clinical social worker submitted a court-ordered bonding study as to the children as well as between the children and the parents. The clinical social worker, Maria Montaño, observed the children with and without their parents on more than one occasion over several months. During that timeframe, she also separately interviewed each child as well as R.S.’s foster mother and apparently reviewed agency records.
In her study, Montaño first addressed her clinical impressions of the sibling relationship for adoption purposes. She reported the children were raised together until their January 2003 detention and summarized their placement history. She also stated that the children shared significant experiences and had existing close and strong bonds with one another. She noted in this regard that all the children had witnessed their parents’ domestic violence, alcohol abuse and mental health issues, had shared many foster homes and placement changes, and had expressed a strong bond with each other. All the children stated they would be sad or would cry if they could not see each other on a consistent basis. Specifically as to R.S., Montaño observed:
“[R.S.], age 4, has a good connection with his siblings despite some learned apprehension when his siblings are in a bad mood. If he were placed in long term foster care or legal guardianship, he would be there for 14 years. This is not an appropriate amount for any child. [R.S.] is young enough to have the capacity to attach to new parents and a set of siblings, if he were to be adopted. Contact with his siblings would be beneficial, but in comparison to the benefits of legal permanence, adoption would be preferred. In order for adoption to occur for [R.S.], he would have to be moved to a prospective adoptive home as soon as possible, as his current care providers do not want to adopt him.”
As for the parent/child relationship, Montaño observed that the family was very affectionate with each other and there were strong connections between the father and the older son, and between appellant and the daughter. For example, the older children were especially distressed when the parents did not arrive on time for visits. R.S. did not appear to react in the same way. Montaño noted he was very happy when the parents brought him toys. In addition, the older children’s needs tended to draw the parents’ attention such that they were unable to always give R.S. an equal amount of attention. While the older children would be greatly affected by a lack of contact with the parents, it appeared R.S. would be able to cope better and easily adjust. Given the level of attachment with the parents and his young age, termination of parental rights would not appear to be detrimental to R.S. By contrast, termination for the older children would appear to be emotionally detrimental and they would require therapeutic support.
Montaño concluded her report with a series of recommendations. Relevant to this appeal, she recommended R.S. be freed for adoption. The permanency of adoption appeared to outweigh his relationship both with his parents and with his siblings. Meanwhile, his brother and sister were not ready for such a major split from their parents or siblings.
In an apparent follow-up to Montaño’s study, an adoptions social worker assessed the children in July 2006. The adoptions specialist agreed that R.S. appeared to have less of a sibling bond than his older siblings, though he did have a bond. Also, the adoptions specialist believed there would be significant emotional detriment, in the case of the older children, if parental rights were terminated because they were very attached to their parents. However, the adoptions specialist could not say the same about R.S. Nevertheless, the adoptions specialist recommended continued long-term foster care along with a further attempt to place R.S. and his sister, if not all three children, in “a foster/adopt home” in the next six months. Although the agency continued to seek a single placement for all three children, it was not successful.
Meanwhile, distant paternal relatives from San Diego contacted the case-carrying social worker and expressed interest in having R.S. placed with them for the purpose of adoption. The social worker encouraged the couple, Mr. and Mrs. G., to come spend time with the children. In turn, the G. family began making monthly trips to Tulare County to visit R.S. R.S. enjoyed being with the G. family.
In November 2006, a relative assessment unit approved Mr. and Mrs. G.’s home for placement of R.S. Later that month, the case-carrying social worker placed R.S. with the G. family on the understanding they would transport R.S. for court-ordered visits until the court could make a ruling on a new visitation schedule. The G. family was willing to make monthly trips with R.S. to Tulare County for visitation purposes until they were able to adopt. Thereafter, the G. family would allow ongoing sibling contact, which they could facilitate because they traveled to Tulare County at least every other month for family celebrations. The G. family was also willing to consider some kind of contact between R.S. and his parents if they (Mr. and Mrs. G.) could adopt.
Based on these facts, the agency petitioned the court to modify visitation to once-a-month and set a new section 366.26 hearing for R.S. Prior to a hearing on the petition, the agency also reported that R.S. had been doing well since his change of placement. According to Mrs. G. who had taken a bonding leave of absence from her job, R.S. appeared to be very happy, he did not cry, he was excited every day, was a joy to be with and was enthusiastic. Notably, when the G.s brought R.S. for a visit with his family, R.S. reportedly asked “Is this the parents who buy me gifts.” R.S. appeared to relate to his parents in this manner and did not have much of an emotional response to them. Also, when a visit was cancelled in mid-December, R.S. had no emotional response to the cancellation. Further, according to the social worker, R.S. now wanted to be adopted.
In January 2007, the children’s counsel declared a conflict leading the court to appoint separate counsel for R.S. Thereafter, at an uncontested hearing, the juvenile court granted the agency’s requests. It set a new section 366.26 hearing to select and implement a permanent plan for R.S. and reduced his visitation with his parents and siblings to once a month.
Once again, the parents unsuccessfully challenged the juvenile court’s decision in this court. (Rosa S. v. Superior Court (F052107) & Ralph S. v. Superior Court (F052108).)
In advance of the section 366.26 hearing, an adoption social worker prepared a “366.26 WIC Report” in which he recommended the court find R.S. adoptable and terminate parental rights. Relevant to this appeal, the report stated the parents had visited consistently since the social worker received the case in January 2007. Also, R.S. was excited to see his parents and his siblings. However, there was a question of whether the source of his excitement was, in fact, the presents he received from his parents before each visit. The parents had to be advised not to bring so many presents to the visits as they were causing some anxiety in R.S. and his siblings.
In addition, R.S. often had a difficult time after visits. He was sometimes defiant and non-compliant for one to two days following a visit. Although the agency acknowledged R.S. had a relationship with his parents, it also observed that the parents had not participated in his day-to-day care since 2004. R.S.’s most significant relationship was currently with the G.s whom the agency designated as R.S.’s prospective adoptive parents. It did not appear termination of parental rights would be detrimental to R.S.
The adoption social worker also reported that Mr. and Mrs G. informed him that they planned to allow R.S. to have continued contact visits with his older siblings as long as it appeared to be in his best interest. They felt it was important for R.S. to stay in contact with his siblings. They also knew that the older siblings did not want to lose contact with R.S.
In a June 2007 addendum report, the adoption social worker detailed R.S.’s monthly visits with his parents over the preceding six months. At each visit, R.S. and his siblings were happy and appeared to enjoy their time with the parents. R.S. appeared engaged with his family. He was also becoming very attached to the G.s. At the end of all but one visit, R.S. was happy to return to the care of the G.s and exhibited no apparent separation anxiety. That one visit, apparently in January 2007, concluded with R.S. breaking into tears and stating he wanted to return home. During that visit, appellant told R.S. it would make her very sad if R.S. did not return to her because she loved him. R.S. became very quiet. The father then called for a group hug and prayer. During the prayer, the father said he was writing people to keep R.S. in the family and have him returned to the parents. In his conclusion to the addendum report, the adoption social worker added it continued to be his recommendation that the court terminate parental rights.
The court conducted its last section 366.26 hearing for R.S. in June 2007. At that hearing, the agency submitted on the reports it had filed with the court. The parties, including the agency, stipulated to an offer of proof, which the court accepted, as to what the adoption social worker who had prepared those reports would testify to if called as a witness. According to the offer of proof, he
“personally observed visitation between [R.S.] and [his siblings], and they start the visits -- greet each other with hugs and kisses. They appear happy to see each other. … [T]he visits go well, and that it’s the social worker’s opinion that [R.S.] would benefit from ongoing contact. Further, that at the end of a visit the children part without any separation anxiety and that [R.S.]’s happy to return to the care of his foster parents.”
Following the offer of proof, the father took the witness stand. He described R.S. as happy, playing and being with the family during their visits. In the father’s view, this was proof that R.S. was attached to him. The father also testified he had observed R.S. distraught at the end of a visit “[t]wo visits ago.” According to the father, R.S. cried and said he felt sad that he had to leave. Neither appellant nor the siblings had any evidence to present.
When asked by the court for the siblings’ position, their attorney did not oppose the agency’s adoption recommendation. R.S.’s attorney supported his permanent placement and argued against the court finding that termination would be detrimental based on either the strength of the parent/child relationship or the sibling relationship. By contrast, both parents asked the court to find termination would be detrimental based on their respective relationships with R.S. Appellant’s attorney also asked the court to look at R.S.’s relationship with his older siblings and not rely on the relatives’ willingness to maintain ongoing contact between R.S. and the other children.
Following closing arguments, the court found R.S. adoptable and terminated parental rights. In so doing, it expressly rejected both parents’ arguments in favor of a detriment finding.
DISCUSSION
I. Introduction
Because R.S. was likely to be adopted, the law required the court to terminate parental rights, unless one of the specifically designated circumstances, set forth in section 366.26, subdivision (c)(1), provided a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Appellant and the father bore the evidentiary burden of showing termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) As mentioned above, both parents claimed that they had maintained regular visitation with R.S. and a continued relationship would be in his best interests. (§ 366.26, subd. (c)(1)(A).) In addition, appellant urged that termination would substantially interfere with R.S.’s sibling relationship. (§ 366.26, subd. (c)(1)(E).)
Since the time of the superior court’s decision in this case, section 366.26, subdivision (c) has been amended effective January 1, 2008. We have followed the version of the law in effect at the time of the court’s ruling.
On appeal, we review the juvenile court’s rejection of the parents’ detriment claims for abuse of discretion, not substantial evidence as appellant urges. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Having completed that review, we conclude the juvenile court did not abuse its discretion in rejecting either of the parents’ detriment claims.
II. Parent Child Relationship
While it was undisputed the father maintained regular visits with R.S. over the course of his dependency, appellant did not. Particularly in the later part of 2005 and the first four months of 2006, she did not regularly visit with R.S. or the other children. She missed numerous visits in the later part of 2005. Thereafter, she was incarcerated. Thus, if for no other reason, her argument for a detriment finding under section 366.26, subdivision (c)(1)(A), fails. In any event, she failed to establish that their relationship was so strong that R.S. would suffer detriment from its termination. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)
Nonetheless, appellant contends that factors, used to assess whether a parent/child relationship is important and beneficial to the child, weigh in her favor. Citing In re Angel B. (2002) 97 Cal.App.4th 454, 466, she argues R.S.’s age, the portion of his life spent in her custody, the positive effect of their interaction, and R.S.’s particular needs establish that the court abused its discretion. We disagree.
First, R.S. was only five years old at the time of the 2007 termination hearing. Indeed, he was only 14 months old when he was first detained and he has never returned to appellant’s custody. At best, for an additional six months, the court returned R.S. to his father’s care and during only half of that time or three months was appellant permitted to reside in the home. In other words, R.S. has spent well more than half of his life out of appellant’s custody.
Second, at the first permanency planning hearing in 2005, the court specifically found the parents failed to establish the children would benefit from continuing their relationship. It also expressly found to the contrary, that the visits adversely impacted the children’s emotional well-being. Although the quality of the visits eventually improved and were generally happy and loving experiences, the loss of a child’s frequent and loving contact with a parent is insufficient to show detriment. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) In addition, the court could have determined that the happiness R.S. displayed at those visits particularly in 2006 and 2007 was to some degree a result of the presents the father brought. In this regard, we remind appellant of R.S.’s query in late 2006 “Is this the parents who buy me gifts.” According to the evidence, this was the manner in which R.S. appeared to relate to his parents.
Next, although R.S. had a relationship with his parents, they had not participated in his day-to-day care since 2004. As the clinical social worker Montaño observed in her 2006 bonding study, R.S. did not have a strong connection or attachment to his parents in the way that his older siblings did. By the time of the 2007 proceedings, R.S.’s most significant relationship was with the G.s who were committed to providing him the stability and permanence to which he was entitled.
Further, there was no evidence that R.S. had particular needs which a continued relationship with either parent would serve. But for the father’s testimony, there was also no evidence R.S. experienced any distress or separation anxiety as his contact with his parents gradually reduced to once-a-month visits. Indeed, except for one incident triggered apparently by the parents’ heartfelt yet inappropriate remarks, R.S. was described as a very happy child who was neither distressed when his parents were late for visits nor troubled when visits were cancelled.
The parent/child exception under section 366.26 requires that the parent/child relationship promote the child’s well-being to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Here, there was no such evidence. While appellant considers the legislative preference for adoption an obstacle confronting her family, she ignores R.S.’s entitlement to stability and permanence. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) This could best be achieved through adoption. Accordingly, we conclude the court did not abuse its discretion by rejecting appellant’s argument.
II. Sibling Relationship Exception to Adoption
For the so-called sibling relationship exception in section 366.26, subdivision (c)(1)(E) to apply, a court must find:
“There would be substantial interference with a child’s 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 child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.”
As the California Supreme Court explained in In re Celine R., supra, 31 Cal.4th at page 61:
“[T]he ‘sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a “compelling reason” for concluding that the termination of parental rights would be “detrimental” to the child due to “substantial interference” with a sibling relationship.’ (In re Daniel H. [(2002)] 99 Cal.App.4th [804,] 813, quoting § 366.26, subd. (c)(1).)”
The nature and extent of R.S.’s sibling relationship in this case was unique. As our factual summary discloses, the agency perceived a strong sibling bond which it and the court sought to sustain for several years by seeking out an adoptive home for all three children. Indeed, as appellant emphasizes in her briefing, the court in 2005 found termination would be detrimental to the children due to their sibling relationship. However, as the record later developed, it was the older children who shared the strongest ties. Starting in 2006, there was a growing consensus of opinion that R.S. had less of a sibling bond than his older siblings. The record also supported that opinion.
R.S. had not been raised with his siblings. He was an infant when he was removed and over the next four and a half years, he lived together with his siblings for only 18 months. Starting in April 2005, the children had to be placed in separate homes because they fought so much. Fortunately, they were placed in neighboring homes and had frequent contact with one another. However, even that situation only lasted until June 2006. It was then that the older brother had to be placed with a new foster parent in another town. Notably, while there was evidence that the older brother missed his younger siblings, there was no evidence that R.S. missed his brother, or was otherwise adversely affected by the move. Later, when R.S. moved to San Diego with Mr. and Mrs. G. and his contact with his siblings was further reduced, there was no evidence it was emotionally distressing for him.
The children did share significant experiences, although those experiences were largely comprised of witnessing their parents’ domestic violence, alcohol abuse and mental health issues as well as experiencing foster care and many placement changes. It is also true that in the summer of 2006 R.S. told the clinical social worker he would be sad or would cry if he could not see his older siblings. However, by December 2006, he wished to be adopted.
The record in this case simply did not compel a finding that termination would substantially interfere with the sibling relationship. Although there was undisputed evidence that continuing contact between R.S. and his older siblings would be beneficial, it was also undisputed that benefit was outweighed by the benefit of the legal permanence R.S., who was still a very young child in comparison to his siblings, would receive through adoption by the G.s. Although appellant now challenges the opinions of those such as Montaño, the clinical social worker who conducted the 2006 bonding study, her argument is little more than a challenge to the weight the various social workers’ opinions were entitled to in the trial court. Evidentiary weight, however, is not an issue for this court to resolve. (In re Laura F. (1983) 33 Cal.3d 826, 833.) We also note given his siblings’ then strong feelings against adoption unless they could be adopted as a group, absent adoption R.S. would be relegated to many more years of foster care and the unpredictability of foster placement, which had plagued these children from the start.
There was, as well, the G.s’ sincere commitment to maintain sibling contact through their frequent visits for family events. While appellant is dismissive of this showing, the court did not have to ignore it.
As the California Supreme Court explained in In re Celine R., supra, 31 Cal.4th at page 61:
“[E]ven if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption.”
On this record, the court properly could find the benefit of adoption to R.S. outweighed the benefit attached to a continued sibling relationship. Consequently, the court did not abuse its discretion.
DISPOSITION
The order terminating parental rights is affirmed.