Opinion
F074147
05-17-2017
In re SAMUEL V. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. CLAUDIA F. et al., Defendants and Appellants.
Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Claudia F. Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant Rodolfo V. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 14CEJ300127-5, 14CEJ300127-6 & 14CEJ300127-7)
OPINION
APPEAL from an order of the Superior Court of Fresno County. Mary Dolas, Judge. Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Claudia F. Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant Rodolfo V. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
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Claudia F. (mother) and Rodolfo V. (father) (collectively, the parents) appeal from the juvenile court's August 2, 2016 order terminating their parental rights and identifying adoption as the permanent plan for their now six-year-old son S.V., four-year-old son F.V., and three-year-old son G.V. (collectively, the minors). The parents contend the juvenile court erred (1) in failing to apply the beneficial parent-child and sibling relationship exceptions to the statutory preference for adoption, and (2) in denying their request for a sibling bonding study. We will affirm.
In this opinion, certain persons are identified by initials, abbreviated names, and/or by status in accordance with our Supreme Court's policy regarding protective nondisclosure. No disrespect is intended.
FACTUAL AND PROCEDURAL BACKGROUND
In reviewing the current appeal, we observed the respondent Fresno County Department of Social Services did not provide its own summary of the case but simply stated that it "accepts the recitation of the procedural and factual history" provided in the parents' briefs. While applicable statutes and court rules might not require the department to provide an independently-prepared case summary, a summary would nevertheless be helpful in future cases.
Detention
Mother and father are the parents of seven children, including the minors and their now 15-year-old daughter C.V., 15-year-old son R.V. (C.V.'s twin), 14-year-old daughter D.V., and nine-year-old son, V.V. The minors and their siblings came into the juvenile dependency system in April 2014, when father was incarcerated in the county jail and mother and the children were found living in a basement without the owner's permission. There was no food in the home and the children had to use the restroom outside in a bucket. The children bathed and drank water from the garden hose. Mother was known to law enforcement as having a history of homelessness as the family had been found "squatting" in a foreclosed home the previous month.
On April 19, 2014, the Fresno County Department of Social Services (the department) took the children into protective custody, reporting it was worried the children and mother would continue to be homeless and have to live without food or a restroom. The department was also worried that mother and father would continue to expose the children to domestic violence, which scared the children and made them sad. In addition, the department was worried the children would continue to feel afraid of father because he yelled at them and called them derogatory names.
According to the detention report, father had a prior criminal history dating back to 1999, and his "arrests and charges include[d] child endangerment, corporal injury to a spouse/cohabitant, inflict[ion of] corporal injury on a spouse/cohabitant, disorderly conduct/drunk, violation of domestic violence protective order, violation of stay away or protection order, and possession of marijuana." Mother's prior criminal history dated back to 2010, and her "arrests and charges include[d] petty theft."
On April 22, 2014, the department held a "Team Decision Making" meeting on behalf of the children. Mother attended the meeting with a cousin and aunt. Father was unable to attend the meeting due to his incarceration. The children's maternal grandmother also participated in the meeting via telephone.
During the April 22, 2014 meeting, mother disclosed that the family had struggled for several years with housing and that she depended on father's income to help pay the rent. Mother further disclosed that she and father would get into verbal arguments and he would leave, requiring her to move. Mother expressed the belief father was in jail on warrants due to his failure to complete domestic violence classes.
A social worker informed the group attending the meeting that the department was concerned that father was using alcohol, marijuana, and methamphetamine and that mother let him "use their EBT card to fuel his addiction." The maternal grandmother and aunt both agreed and said "[father] was only nice to [mother] before her money posted." Mother's relatives also reported "[father] emotionally abused [mother] and they have heard him call her a 'fat stupid bitch' and that he would deny that some of the children were his."
Mother admitted she gave money to father but denied she knew father used, or that she had ever seen him use, methamphetamine, despite their long relationship, and the social worker informing her that father had "drug tested twice with probation for high levels of methamphetamine." Mother told the social worker father drank alcohol and she believed he used marijuana but never around her.
Mother further reported that the children had not gone to school in a month due to the family's homelessness and that C.V. and R.V. liked to "ditch" school. In addition, mother said that "the children do not listen to her and that they have stated why 'should they' as [mother] never keeps her promises as the children have asked her to leave [father]."
The April 22, 2014 meeting resulted in the department determining "the children could not be safely returned to [mother] at this time and that a petition would be filed on their behalf." The department reported "[mother's] reaction to the decision was 'I don't blame you' as she stated that she had not been the best mother and recognized that she had not provided a stable home environment for her children."
Jurisdiction
In the jurisdiction report prepared in May 2014, the department reported that the children were placed in three separate foster homes: the minors were placed together in one home, the minors' brothers, R.V. and V.V., were placed in a second home, and the minors' sisters, C.V. and D.V., were placed in a third home.
On June 4, 2014, the juvenile court assumed dependency jurisdiction over the seven children under Welfare and Institutions Code section 300, subdivisions (b) (failure to protect), (c) (serious emotional damage), and (g) (no provision for support).
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Disposition
According to the disposition report prepared in June 2014, the three minors and their two older brothers remained in the same two foster homes, while their two older sisters had been placed with their paternal aunt and uncle, Lucy V. (Aunt Lucy) and Jose V. (Uncle Jose).
The report further stated that "[t]he children appear closely bonded to each other and to [mother]" and that Aunt Lucy and Uncle Jose were "supportive of both mother and father for reunifying with their children."
At the disposition hearing on July 7, 2014, the juvenile court formally ordered the children removed from parental custody and granted the parents reunification services.
Six-month Review Period
The six-month review report reflected that the minors and their two brothers had been placed together with their great maternal aunt and uncle, Norma M. (Aunt Norma) and Alex M. (Uncle Alex), while their two sisters remained with Aunt Lucy and Uncle Jose.
The department reported that the parents had regularly and consistently visited and were bonded with the children. Mother attended weekly, supervised two-hour visits. During visits, mother was engaging and interactive with the children, and they were affectionate towards one another.
In October 2014, mother started having her visits with the children supervised by Aunt Norma and Uncle Alex. During these visits, mother attended holiday events such as trick-or-treating and family birthday parties.
Upon his release from jail in August 2014, father began attending weekly, one-hour supervised visits with the children. In October 2014, his visits were increased to two hours. The visits were reportedly going well. Father and the children were affectionate towards one another. Father engaged in play with the children, conversed with them, and corrected their behavior.
The department further reported that sibling visitation had been occurring on a weekly basis. The children had been visiting together at the home of Aunt Lucy and Uncle Jose, and the two older brothers had been spending the night and sometimes the entire weekend at their home. In addition, Aunt Norma and Uncle Alex had taken all of the children to family events, including birthday parties and barbeques, and had taken the older siblings to Great America Amusement Park.
Twelve-month Review Period
According to the 12-month review report, the minors and their two brothers remained placed with Aunt Norma and Uncle Alex, while their two sisters remained with Aunt Lucy and Uncle Jose.
Again, the department reported that the parents had been visiting regularly and consistently, and that they appeared bonded with the children. Since December 2014, mother had been having unsupervised visits with the children three days a week. She picked up the children and took them to various public places, out to eat, and to nearby parks and malls. The older children reported they enjoyed visiting with mother.
Father had also been having unsupervised visits with the children since December 2014. Father's visits took place once a week in the home of Aunt Lucy and Uncle Jose, with the visits lasting a maximum of eight hours. The children reported that they enjoyed visiting father. Father brought the children food and they usually watched a movie, played soccer together, or threw around a football outside in the yard. Father did not take the children out of the home and Aunt Lucy and Uncle Jose were always present at home during these visits.
At a meeting in April 2015, the department discussed how the parents seemed ready to progress to liberal visitation. The department referred the parents to "Emergency Housing" because neither of them had an appropriate or agreeable place for the children to visit overnight.
In May 2015, the social worker spoke with father's probation officer and learned that father had violated his probation due to charges of being drunk in public and resisting arrest in March 2015. The department had not been aware father was in violation of his probation at the time of the April 2015 meeting, when liberal visitation was recommended. Although it no longer recommended liberal visitation for father, the department concluded that it appeared safe for father to continue to have unsupervised visitation with the children, as long as they continued in the home of Aunt Lucy and Uncle Jose.
Eighteen-month Review Period
In the 18-month review report prepared in September 2015, the department recommended terminating the parents' reunification services because the parents had not complied with their case plans nor ameliorated the conditions that had brought the children to the juvenile court's attention. The department reported that the children remained in the same relative placements as before and that the children appeared "very bonded" to one another.
Regarding mother, the department reported that she had been residing with her boyfriend for approximately nine months, even though she had been advised in late December 2014, that it would not be safe for the children to visit or reside in this home due to the boyfriend's criminal history. The boyfriend also had a current and open child welfare case regarding his own children.
In June 2015, father was found intoxicated and arrested for violating his probation. In July 2015, father was sentenced to a 24-month prison term and was incarcerated at Wasco State Prison.
Regarding parental visitation, the department reported that mother had visited the children regularly and unsupervised, approximately three days a week, from December 8, 2014, until May 11, 2015. She had liberal visitation with the children at Emergency Housing for approximately one month, until she was discharged on June 29, 2015, after staff found excessive trash in the apartment and marijuana in the couch cushions.
The children's care providers reported that, during the period of liberal visitation, mother would often run out of milk or need their assistance to obtain additional food for the children over the weekend. C.V. also reported that she did not like the location.
Mother was unable to have liberal visits for the month of July 2015 because she was unable to secure an appropriate location. During this time, mother had unsupervised visits at the home of Aunt Lucy and Uncle Jose, until she was able to have two liberal visits during the month of August 2015 at the home of Aunt Norma and Uncle Alex.
From December 8, 2014 until the time of his incarceration in the county jail in early June 2015, Father had weekly, unsupervised visits with the children at the home of Aunt Lucy and Uncle Jose. After father's incarceration, C.V. and D.V. stated they did not want to visit him. However, they changed their minds after they found out he would be sentenced to prison. While incarcerated at the county jail, father received visits with the children supervised by their care providers.
In an addendum report prepared in late December 2015, the department reported that, on November 13, 2015, the department held a "Permanency Team Meeting." Mother was notified but did not show up for the meeting. Aunt Lucy, Aunt Norma, and Uncle Alex attended the meeting.
Aunt Norma and Uncle Alex expressed they were not willing to continue placement of the five boys due to "issues of disrespect from the mother and the children." They reported feeling "tired of the mother's unappreciative behavior" and explained she "would not speak to them directly but communicated with them through the children via text messages, and even though they have allowed her overnight visits at their home on two occasions, ... only [D.V.] attended one overnight because [C.V.] did not want to."
Aunt Lucy reported that father had been recently released from prison but had not yet requested visits. After initially stating father would not be allowed to visit in the home due to his criminal history, the supervising social worker agreed father could continue to visit the children there as long as Aunt Lucy and Uncle Jose were present in the home.
The team then discussed options for the boys. Aunt Norma and Uncle Alex changed their minds about not wanting to provide a permanent plan and said they did not want to adopt but would consider guardianship. The team then planned for R.V. to live with Aunt Lucy and Uncle Jose for six months to a year, and for the possibility of V.V. living with them once they had additional space. The team also planned for Aunt Norma and Uncle Alex to provide a plan of guardianship for the minors, and to consider a plan of guardianship for V.V., if Aunt Lucy and Uncle Jose were not approved for placement.
The addendum report further reflected that mother continued to participate in liberal and unsupervised visits with some or all of the children in Aunt Norma and Uncle Alex's home. Aunt Norma and Uncle Alex reported that mother did not conform to a regular visitation schedule but would "sporadically" ask for visits with the children.
It was further reported that mother attended two of C.V.'s quinceañera practices during the month of December 2015. Mother also participated in a liberal visit with the minors over the Christmas holiday for five days at the home of Aunt Norma and Uncle Alex, while they traveled to Ensenada, Mexico. Prior to this, mother took all the children to the Fresno fair on an unsupervised visit and allowed C.V. to be separated from her after dark resulting in C.V. becoming lost, leaving the fair, and walking alone to a nearby home of relatives.
The addendum report also noted that, around November 15, 2015, father began participating in weekly, supervised four-hour visits with all the children in the home of Aunt Lucy and Uncle Jose.
At the 18-month review hearing on January 6, 2016, the juvenile court terminated the parents' reunification services and set a section 366.26 hearing. The court ordered mother to have reasonable, unsupervised visits with the children at a minimum of one time per week, and granted the department discretion to allow liberal visits as agreed by the care providers. The court also ordered father to have supervised visits with the children at a minimum of one time per week, and granted the department discretion to allow unsupervised visits.
Section 366.26 Report
In April 2016, the department prepared a section 366.26 report recommending termination of parental rights and a permanent plan of adoption with respect to the minors. According to the section 366.26 report, the three minors remained placed with Aunt Norma and Uncle Alex, who now wished to adopt them, and the minors' four siblings had all been placed with Aunt Lucy and Uncle Jose.
Although Aunt Lucy and Uncle Jose were open to providing a permanent plan of legal guardianship for the minors' siblings, they understood the children were not ready to accept them as their legal guardians and preferred to be in a permanent plan of Planned Permanent Living Arrangement (PPLA) at that time. Aunt Lucy and Uncle Jose also expressed agreement with a PPLA because they had only recently received placement of R.V. and V.V. and felt they needed more time to develop trust and work on their relationship with the two boys.
On March 7, 2016, the department learned from Aunt Lucy and Uncle Jose that the parents visited the children on the weekend in their home: mother visited on Saturdays and father visited every other Sunday. Aunt Norma and Uncle Alex would bring the minors to these visits. Aunt Lucy also reported that mother would spontaneously want and request visits with the children without a day's notice.
The department further reported that, since the 18-month review hearing on January 6, 2016, the parents had failed to make themselves available or to contact the department regarding visitation. Between March and April 2016, Bee Xiong, the adoption assessment worker made several unsuccessful attempts to contact the parents and to make arrangements to observe visits with the children.
Due to the parents' failure to return Xiong's calls and/or to contact the department regarding scheduling visits, the department had been unable to assess the parents' ability to provide structure, nurture, challenge, or engage with the children. The report explained that these were four areas that needed to be addressed to complete the adoption assessment, and answer one of the main questions that needed to be answered, namely the question of the "strength of relative bonds between the dependent child and parent caretakers."
Xiong was able to observe the minors' prospective adoptive parents, Aunt Norma and Uncle Alex, interact with the minors and reached only positive conclusions regarding their ability to provide structure, nurture, challenge, and engage the children. In addition, Aunt Norma and Uncle Alex reportedly understood the importance of family history and relationship and were willing to enter into a post-adoption contact agreement through mediation with the parents and to schedule sibling visits.
Although the minors were at an age they could not comprehend the permanent plan of adoption, they were observed to engage well with Aunt Norma and Uncle Alex and were comfortable and content in the placement. They looked to the prospective adoptive parents to meet their needs, to console them when they were hurt or sad, and praise them for their accomplishments.
The minors not only relied on Aunt Norma and Uncle Alex to provide for their daily needs, they also depended on them to advocate and seek necessary services to master their developmental milestones. The minors had speech delays, but it was evident that their speech had improved since placement with Aunt Norma and Uncle Alex.
The section 366.26 report concluded that the minors did not have a significant parent-child relationship but rather had "a friendly visitor relationship with their parents." Therefore, the minors' relationship with the parents did not outweigh "the relationship and security gained under a permanent plan of adoption with the potential prospective adoptive parents that want to provide a permanent plan of adoption."
Request for Sibling Bonding Study
At a hearing on April 13, 2016, mother's counsel stated they "were going to be asking for a sibling bond assessment" and father's counsel stated they "would join in that request to have assessment ... as to the sibling bond." The court did not rule on the request for a sibling bonding study, but set a settlement conference and asked the department to prepare an addendum report on the issue. On July 8, 2016, the minors' siblings filed a section 388 petition requesting a sibling bonding study among other things.
The department opposed the requests for a sibling bonding study in its addendum report prepared on May 11, 2016, and in its response to the siblings' section 388 petition prepared on July 12, 2016. In both, the department stated that it "recognized there is a sibling relationship between the children" but concluded this relationship did not outweigh "the relationship and security gained under a permanent plan of adoption with the potential prospective adoptive parents that want to provide a permanent plan of adoption." The department then cited a number of factors supporting this conclusion.
The department first noted: "The children have been placed in two ... separate foster homes since they were removed from their parents ... on April 19, 2014.[] At the time of removal, [S.V.] was three ... years old, [F.V.] was one ... year old, and [G.V.] was seven ... months old."
Although, as mother points out, this statement is not technically correct because the children were initially placed in three separate foster homes at the time of their removal, for the majority of the proceedings the children were indeed placed in two different foster homes. Moreover, the department went on to correctly indicate that the minors' two older brothers had resided with the minors at Aunt Norma and Uncle Alex's house until they were both placed with their sisters at Aunt Lucy and Uncle Jose's house in late February 2016.
The department then observed that Aunt Norma and Uncle Alex continued to take the minors to visits with their siblings and the visits appeared to go well. Sibling visits would occur at the same time as visits with the parents during the weekend: mother would visit on Saturdays and father would visit every other Sunday.
Aunt Norma and Uncle Alex reported that the minors did not ask to have additional visits with their older siblings. Although the minors appeared to do well when they arrived at visits, as soon as they saw Aunt Norma and Uncle Alex leave, G.V. would cry, and the minors would be excited when the care providers returned to pick them up.
Both sets of relative care providers reported that the minors did not display any distress at the end of visits and would wave goodbye to their siblings and parents without difficulty. The minors would not ask to see their siblings or parents nor request additional visits.
The department's response to the siblings' section 388 petition further noted that both sets of relative care providers agreed to continue sibling contact and that sibling visits would continue to be on a monthly basis depending on the care providers' respective availability. They also agreed they would "follow the Consortium for Children agreement regarding the contact between the siblings."
Section 366.26 Hearing
The section 366.26 hearing and the hearing on the siblings' section 388 petition commenced on July 25, 2016. At the outset, the juvenile court heard and denied the requests for a sibling bonding study. In ruling, the court explained: "I believe it would cause an undue delay at this time. And I agree that in reviewing the entire file and all the previous reports, ... I believe there is sufficient evidence in the record in regards to the relationship between the siblings."
Mother then presented the testimony of three witnesses: Aunt Norma, mother, and Xiong.
According to Aunt Norma's testimony, she had been the minors' care provider for almost two years and was planning to adopt them. Mother visited the minors regularly and the minors were always happy to see mother. The minors were also excited to see father.
The minors would ask to call mother on the phone once or twice a week. Mother rarely answered calls from Aunt Norma, so the minors would leave mother a voicemail when they called her. The minors would also call father on the phone once or twice a week and would appear happy—laughing and giggling—while speaking with him.
The minors would usually visit their siblings at the same time as they visited their parents. When they saw their siblings, the minors would react by getting out of the car and running. Aunt Norma never observed the minors crying after the visits were over.
Aunt Norma confirmed that if she adopted the minors, she was going to allow them to visit their siblings. When asked how often, she testified: "Every month or if it's possible before that. But I cannot tell you exactly." She and her husband filled out some papers regarding the frequency of visitation. When asked what the papers said they agreed to, Aunt Norma said they would visit, "the father with the siblings every month."
In her testimony, mother described her visits with the minors and the affection and enthusiasm they expressed in interacting with her and their siblings. According to mother, S.V. had expressed that he wanted to stay with his siblings, by saying "mommy, home, mommy home with [C.V.], [D.V.], [R.V.]." F.V. had also become "very emotional" when it was time to leave visits, getting "to the point where he can't even catch his breath from crying because he wants to stay."
Xiong testified he had been assigned to the case since February 2016. As the adoption assessment worker, he was responsible for recommending what he felt was the most appropriate permanent plan for the seven children.
Xiong was unable to assess the bond between the parents and the children before deciding what permanent plan to recommend. Xiong explained: "I was trying to coordinate visits with parents. But ... they never got back with me." He consequently "asked the care providers for the four older ones ... to let me know when mom is going to have a visit with the children so I can actually attend."
Xiong was only able to observe "briefly" ("not even ... an hour") one visit between mother and the children. The visit appeared "appropriate" but it was not enough time for him "to determine if the visit was going well or not." Xiong was also unable to assess the bond between the minors and their older siblings.
When asked to summarize why he felt adoption would be the best permanent plan for the minors, Xiong testified:
"The three younger minors have been residing with [Aunt Norma and Uncle Alex] for almost two years. They have been following through with all of the services that is needed for [S.V.] and requested for services for [F.V.] with the notice [of] his speech impairment difficulty. They have been really active in their development."
Xiong acknowledged the children appeared to have a sibling bond "because they do get along, they interact, communicate" and "appear to be happy together." He believed there was going to be ongoing contact between the minors and the siblings because of the post-adoption contact agreement and because the prospective adoptive parents were relatives of the children, and he had considered this factor in recommending adoption as the minors' permanent plan.
Xiong confirmed that in his review of the case, he had heard nothing negative about the relationship between the parents and the children. He had also heard nothing but positive reports regarding how the minors reacted to the parents and to their older siblings.
Asked to clarify "the Consortium for Children agreement that has been discussed in this case," Xiong confirmed that the "agreement provides for six sibling visits per year at a minimum." Xiong did not have any personal recommendation as to how many sibling visits should occur per year if the minors were adopted.
Father called Aunt Lucy to testify. Aunt Lucy testified she currently cared for the minors' four older siblings: the girls, C.V. and D.V., had been in her care about two and a half years, and the boys, R.V. and V.V., had been in her care since February 2016.
Father visited the children at Aunt Lucy's house every other Sunday from 10:00 a.m. to 2:00 p.m. When the minors arrived for visits with father, they were happy and would go to father right away and hug him and play with him. He would play different sports with them like soccer, football, or basketball.
Father would also bring food to the visits and would put it on plates and serve it to the children to eat. While they were eating, father would talk to the children and help them with their table manners. The minors would listen to father when he gave directions to them.
When father watched movies with the children, he always brought age-appropriate movies for the minors. Father also played games with the children inside and was respectful of Aunt Lucy's home. She had also heard him read books to the minors in the living room.
Aunt Lucy testified that when visits were ending, "usually one or two of [the minors] start looking sad or say they don't want to go." F.V. and S.V. usually seemed the saddest. They would hug father and look like they did not want to let go of him.
Aunt Lucy intended to maintain contact between the siblings and the minors. When asked if she felt confident that contact would be able to continue, Aunt Lucy testified, "I'm hoping so. Yes."
Aunt Lucy was next asked whether she had "been made aware of how often they are considering that they will have contact." Aunt Lucy responded, "I thought it was at least six a year, but I was told it's at least four, a minimum of four." She explained: "Leslie from Consortium ... gave me the letter saying that it was six times but I didn't know it was only a minimum of four 'til [a department] meeting" the previous Thursday.
When asked if she meant she was "not positive" when she had said she was hoping contact would continue among all the children, Aunt Lucy testified: "Well, I mean I know everybody has their own life and if stuff changes, maybe they might not see them as often. That's why I'm saying I'm hoping it does stay the same or close to the same." Aunt Lucy further testified she had a "good enough" relationship with Aunt Norma and that they would communicate and set up visits by texting or calling each other.
The siblings called D.V. and C.V. to testify, and the court accepted the siblings' stipulated testimony of R.V. and V.V.
D.V., who was 13 years old at the time of the hearing, testified that she was living with her parents when the minors were born and lived with them up to the point they were removed from the parents. After that, D.V. never lived with the minors again, but she had been able to visit them.
S.V. and F.V. always referred to mother as "Mommy" and G.V. always referred to her as "Mom." The minors always referred to father as "Papi." The minors knew D.V. was their sister, and she would do different activities with them, including playing soccer, reading, drawing, singing and dancing, and making videos.
At the beginning of visits, S.V. would start clapping and run up to the family. F.V. would also get happy and start running around and hugging everyone. G.V. too would run around and hug everyone.
S.V. and F.V. would sometimes cry when their aunt came to pick them up, but the two younger brothers (i.e., F.V. and G.V.) would also "get happy." D.V. had never seen G.V. cry when picked up from a visit.
C.V., who was 15 years old at the time of the hearing, testified that she was living at home with the parents when the minors were born. Other than when she was removed from the parents, there was never a time she lived apart from the minors.
C.V. currently saw the minors every Friday or Saturday with mother, and every other Sunday with father. During visits, they would all play together. They would go outside, play tag, wrestle, and play soccer.
C.V. further testified that, when the minors were first dropped off at visits, S.V. would get out of the car, start clapping and jumping, and then "run to everybody and say, 'Hi.'" F.V. would be happy but there was "a sort of shyness." He would want to hug them and then he would smile.
The minors would sometimes cry when it was time to leave visits. C.V. testified that S.V. would show he was upset by not wanting to talk to them and saying, "You're mean" and getting in the car right away. When F.V. cried, he would not want anyone to see him cry and would turn away and "cry silently to himself."
G.V. rarely cried when he had to leave visits. When he did cry, it was when he had to leave father. C.V. explained: "He's really attached to my dad so ... he cries loud, like he [doesn't] want to leave my dad." F.V. would react the same way after father left a visit.
According to the stipulated testimony of R.V. and V.V., when they lived with the minors, they would eat, take walks, and play with the minors. In playing together, they would wrestle, play soccer, swim, sing, and dance. S.V. would jump up and down and clap his hands, and F.V. and G.V. would smile and be happy.
R.V. and V.V. and the minors spent and celebrated all birthdays and holidays together as a family prior to being removed and when they were living with the minors in their relatives' home. During visits, they would talk, eat, laugh, play, swim, and watch movies with the minors. They visited the minors at least once a week. Every other week, they visited them two times a week.
S.V. would sometimes call R.V. "Dad" and looked to him for protection when needed. S.V. and F.V. called V.V. a nickname based on his name. R.V. and V.V.'s relationship with the minors was "special because they spent more time living together and provided them with extra attention when needed."
The minors would show R.V. and V.V. affection with hugs and kisses. S.V. would not want to leave visits and show this by pointing back and forth between him and the family and saying, "me." Based on their experience communicating with him, R.V. and V.V. believed this meant S.V. was saying he wanted to stay with them.
The minors were always happy to see them when they arrived for visits. S.V. and F.V. would sometimes cry when the visits ended. R.V. and V.V. were happy to be able to visit the minors at least one time a week. Their care providers' busy schedules kept them from seeing each other more.
R.V. and V.V. knew that S.V. and F.V. wanted to see them more because they would say "me, me" and point to everyone around them to show they want to be there. They would also have to tell S.V. and F.V. that they would get to come back for them to stop crying.
Finally, the stipulated testimony of R.V. and V.V. stated that the minors called mother "mom" and father "dad" and that the minors were happy to see the parents.
Juvenile Court's August 2, 2016 Ruling
After finding the minors adoptable, the juvenile court found the beneficial parent-child and sibling relationship exceptions did not apply to preclude termination of parental rights. In ruling, the court stated:
"First, as to the parents' exception, under Welfare and Institutions Code Section 366.26[, subdivision] (c)(1)(A), does provide an exception to the termination of parental rights where the parents can show they have maintained regular and consistent visits and contact with their children and that the children would benefit from continuing that relationship. The parent seeking to establish this exception does have the burden to show that the statutory exception applies.
"In regards to the visitation element, mother and father assert that they have maintained regular visits and contact with their children. I find
that the evidence does support both mother and father have maintained regular visits and contact. I'll also note, however, that father's visits have remain supervised and they've been described as friendly but it's noteworthy the visits with father have not progressed beyond third party supervised visits two times a month, and although they are friendly and happy and the children know who the father is, there really was not evidence that the father has occupied a parental role. He visits, is happy and is friendly, but parenting requires more than occasional visits.
"Mother has also visited regularly with her children and those visits have progressed to the point where at one point mother had overnight visits with her children—again, focusing on [the minors]—however, due to incidents that have been identified in the report, the visits had to regress and have returned to unsupervised and not overnight visits but have remained consistently weekly. And again, those visits were happy and friendly and the children enjoyed the visits and seeing both their mother and their siblings. The law and the cases show that this exception requires more than a showing of regular and happy visits. The parents have to show that they have moved beyond regular and happy visits and have participated or engaged in more of a parental beneficial relationship and I don't find that either parent necessarily has shown that parental benefit relationship.
"The issue is not whether there's a friendly relationship between mother and father and their children. Here, clearly the minors know who their mother and father are. The question is between the parent and children, whether that relationship is so significant and compelling in the minors' lives that the benefits of preserving that relationship is outweighed by the benefits and stability of adoption. The Court does acknowledge mother and father made efforts to visit and maintain contact with their children.
"The Court also finds that mother and father have not ameliorated the issues which resulted in the minors' removal after, again, the statutory time that the parents have had to resolve those issues and they have not demonstrated any likelihood that they will be able to resolve those issues within the short period of time and take custody of the minors within any reasonable time. The law does require giving parents an opportunity to reunify and when that time tolls, the Court must look to providing the minors stability and security.
"Here, the evidence shows that [the minors] have lived with their current respective relative care providers for more than two years. Based on their age, especially [F.V.] and [G.V.], they've lived more with the care
provider than with their parent and it's almost half of [S.V.'s] life has been with the relative care provider, not with the parent.
"The parents have not demonstrated that they were able to continue or occupy a parental beneficial role. Given the extensive period of time that the minors were not residing with them and residing with the care provider and the Court finds that the minors are benefiting and have formed an appropriate relationship and attachment in their current placement which has provided them stable, suitable and a loving home.
"When benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent-child relationship, the law does require and the case law does support that the Court shall order adoption.
"As to the sibling relationship, this arises when adoption would create a substantial interference with the child's sibling relationship. To show a substantial interference with a sibling relationship, the parent must show the existence—the parent or the sibling granted standing, as in this case, must show the existence of a significant sibling relationship and that the severance of which would be detrimental to the child. Many siblings have a relationship with each other but many would not suffer detriment if the relationship ended. If the relationship is not sufficiently significant to cause detriment, then there is no substantial interference with that relationship.
"Here, I think the evidence does show there is a sibling relationship between the four older minors and their three younger siblings. They lived together prior to being removed from their parents. Although, again, [F.V.] and [G.V.] have lived and [S.V.] have lived separately from some of the older minors for a longer period of time than they lived together. They have lived in two separate homes during their time in foster care. However, during this time, the evidence clearly show that they have maintained regular and consistent contact and visits. But as noted in the cases cited by counsel in argument, primarily the [In re D.O. (2016) 247 Cal.App.4th 166] case, the issue is whether terminating parental rights as to the younger minors would substantially interfere with the sibling relationship they have with their older siblings.
"Again, in the cases cited, the exception only applies when adoption would result in substantial interference with the child's sibling relationship and only if the Court determines terminating parental rights would substantially interfere with sibling relationship must the Court then weigh the child's best interest in continuing that relationship against the benefit
the child would receive by the permanency of adoption and, again, the sibling bond exception is evaluated from the perspective of the child being considered for adoption not the perspective of the sibling.
"Here, there was no evidence that the sibling relationship would be interfered with. In fact, the evidence presented which were the testimony of the relative care providers for the older minors as well as the relative care provider for the younger minors both testified that they did comply with visitation between the siblings during the time of reunification services. Both care providers testified they were committed to continuing sibling visits and contacts, albeit not as frequently, but they were committed to continuing visits and both stated that they believe that the sibling relationship was important. There was testimony of a post-adoptive agreement that the care providers agreed to insure ongoing sibling visits and contact. The evidence showed that, again, throughout the two years the minor[s] have been in foster care, each care provider was consistent in complying with scheduled visitations and there was no evidence that this commitment would not continue or that the sibling relationship would end should the younger minors be adopted.
"So I don't find that the sibling exception was shown in that there really was no evidence that the relationship would end should the three youngest minors be considered for adoption."
DISCUSSION
I. The Juvenile Court Did Not Err in Failing to Apply the Beneficial Parent-Child Relationship Exception and/or Sibling Relationship Exception to Adoption
Mother and father contend their parental rights were wrongly terminated under section 366.26 because the juvenile court failed to apply the beneficial parent-child relationship exception and/or the sibling relationship exception to the statutory preference of adoption. We disagree.
A. Applicable law
"'At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child.... The permanent plan preferred by the Legislature is adoption. [Citation.]' [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child." (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
There are statutory exceptions that "'permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.'" (In re C.B. (2010) 190 Cal.App.4th 102, 122, fn. omitted.) One statutory exception to adoption applies when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
Another statutory exception to adoption applies when "[t]here 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." (§ 366.26, subd. (c)(1)(B)(v).)
The parent has the burden of producing evidence to establish the existence of the parent-child beneficial relationship or sibling relationship exception to adoption. (In re K.P. (2012) 203 Cal.App.4th 614, 621 (K.P.); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345 (Lorenzo C.).) Once the juvenile court finds that a parent has met his or her burden to establish the requirements of the exception, the juvenile court may choose a permanent plan other than adoption if it finds the beneficial parent-child or sibling relationship to be "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).)
When the juvenile court finds the parent has not met his or her burden of producing evidence establishing the existence of the beneficial parent-child relationship or sibling relationship exception, our review is limited to determining whether the evidence compels a finding in favor of the parent on this issue as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528 (I.W.); In re Breanna S. (2017) 8 Cal.App.5th 636, 647.) "When the juvenile court concludes the benefit to the child derived from preserving parental rights is not sufficiently compelling to outweigh the benefit achieved by the permanency of adoption, we review that determination for abuse of discretion." (In re Breanna S., at p. 647; see K.P., supra, 203 Cal.App.4th at pp. 621-622.)
Because the juvenile court's factual determinations are generally reviewed for substantial evidence, it has often been posited that a challenge to a finding that no beneficial relationship exists is similarly reviewed for substantial evidence. (See e.g., In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) However, the substantial evidence test is "typically implicated when a defendant contends that the plaintiff succeeded at trial in spite of insufficient evidence" while "[i]n the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment." (I.W., supra, 180 Cal.App.4th at p. 1528.) "[S]uch a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact's unassailable conclusion that the party with the burden did not prove one or more elements of the case." (Ibid.) Thus, the court's determination that a parent has not satisfied his or her burden of proof on the existence of one of the adoption exceptions is properly reviewed, as in all failure-of-proof cases, for "whether the evidence compels a finding in favor of the appellant as a matter of law." (Ibid.; see In re Aurora P. (2015) 241 Cal.App.4th 1142, 1156-1157, 1162-1163; see also Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 769.)
B. No error in rejecting beneficial parent-child relationship exception
As mentioned above, the beneficial parent-child relationship exception pertains where the evidence supports "a compelling reason for determining that termination would be detrimental to the child [because the parent] ... [¶] ... maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "'To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination.' [Citation.] A beneficial relationship 'is one that "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." [Citation.]'" (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
The nature of the relationship between the parent and child is key in determining the existence of a beneficial relationship; it is not sufficient to show that the child derives some benefit from the relationship or shares some "'emotional bond'" with the parent. (K.P., supra, 203 Cal.App.4th at p. 621.) "To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) In other words, the parent must show he or she occupies a "'"parental role" in the child's life.'" (K.P., supra, 203 Cal.App.4th at p. 621.)
Here, there was no dispute—and the juvenile court found—the parents maintained regular visitation and contact with the children. Nonetheless, the juvenile court found the parents failed to meet their burden of establishing the minors would benefit by continuing their relationship with the parents or that the parents occupied a parental role in the minors' lives. The evidence did not compel a finding in favor of the parents on this issue as matter of law. Therefore, the court did not err by refusing to find the beneficial parent-child relationship exception inapplicable.
In rejecting the beneficial parent-child relationship exception to adoption, the juvenile court correctly observed that the law "requires more than a showing of regular and happy visits" for the exception to apply and noted that "visits with father have not progressed beyond third party supervised visits two times a month, and although they are friendly and happy, ... there really was not evidence that the father has occupied a parental role." (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419 ["loving and happy relationship" with parent does not necessarily establish statutory exception].) The court similarly noted that mother "visited regularly" and the visits were "happy and friendly" and had "progressed to the point where at one point mother had overnight visits with [the minors] ... however, due to incidents that have been identified in the report, the visits had to regress and have returned to unsupervised and not overnight visits." Moreover, the evidence showed the minors had lived with Aunt Norma and Uncle Alex for over two years, which constituted the majority of F.V. and G.V.'s young lives, and S.V. had lived almost half of his life with the prospective adoptive parents.
In finding the parents failed to meet their burden of showing the beneficial parent-child relationship exception was applicable, the juvenile court's statements clearly reflected awareness of the relevant legal issues and the record supports the court's conclusions concerning those issues. In any event, the court did not abuse its discretion in failing to apply this exception to adoption. Given the facts of this case, it would have been reasonable for the court to conclude the parent-child relationship was not a "compelling reason for determining that termination would be detrimental to [the minors]." (§ 366.26, subd. (c)(1)(B); K.P., supra, 203 Cal.App.4th at p. 622.)
C. No error in rejecting sibling relationship exception
In evaluating the applicability of the sibling relationship exception, the juvenile court "is directed first to determine whether terminating parental rights would substantially interfere with the sibling relationship." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952; see In re Daisy D. (2006) 144 Cal.App.4th 287, 293 ["The exception ... applies only when adoption would result in 'substantial interference with a child's sibling relationship.'"].) "If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption." (In re L.Y.L., at p. 952, italics added.) "The sibling relationship exception 'permits the trial court to consider possible detriment to the child being considered for adoption, but not a sibling of that child.'" (In re D.M. (2012) 205 Cal.App.4th 283, 291.) It is a "rare" case in which the court will find that this exception to adoption applies, particularly when the proceedings concern a young child whose needs for a competent, caring and stable parent are paramount. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.)
The juvenile court did not err in concluding that mother and father did not meet their burden of establishing the sibling relationship exception because they failed to present evidence showing termination of parental rights and adoption would substantially interfere with the minors' relationships with their siblings. As the court observed in rejecting this exception to adoption, throughout the two years the minors and their siblings had been in foster care, their respective care providers had been "consistent in complying with scheduled visitations and there was no evidence that this commitment would not continue or that the sibling relationship would end should the younger minors be adopted." Not only was there no evidence the sibling relationship would end, as the court also observed, there was affirmative evidence that the care providers were "committed to continuing sibling visits and contacts, albeit not as frequently," and that they "believe[d] that the sibling relationship was important." In addition, their testimony established they had entered a "post-adoptive agreement ... to [e]nsure ongoing sibling visits and contact."
The parents appear to be claiming that evidence of the anticipated decrease in frequency of visits between the minors and their siblings under the post-adoption visitation agreement was sufficient to meet their burden of establishing "substantial interference" with the sibling relationships within the meaning of section 366.26, subdivision (c)(1)(B)(v). The parents' argument implies that in cases where there is evidence prospective adoptive parents have entered an agreement to continue sibling contact post adoption, the department must prove the frequency of contact under the agreement will be commensurate with the frequency of contact prior to termination of parental rights to establish termination will not substantially interfere with the sibling relationship. This is clearly not the law. (See In re D.O., supra, 247 Cal.App.4th at p. 176 ["it was appellants' burden to establish there would be substantial interference, not the Agency's burden to establish there would not"].)
Since the parents here presented no evidence termination of parental rights would substantially interfere with the minors' sibling relationship, and the evidence does not otherwise compel a finding in favor of the parents on this issue, the trial court did not err in declining to apply the sibling relationship exception to adoption based on the parents' failure of proof. However, even if the termination of parental rights would substantially interfere with the relationship shared by the minors and their siblings, the juvenile court would not have abused its discretion in concluding the benefits of continuing the sibling relationship did not outweigh the benefits of a permanent home for the minors through adoption. (In re Celine R. (2003) 31 Cal.4th 45, 61.) The juvenile court's determination is simply not beyond the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 (Stephanie M.).)
We also note the record does not support father's assertion that the juvenile court "mistakenly believed that [the minors] had not been placed with any of the older siblings subsequent to detention." (Italics added.) What the court actually said was this: "[F.V.] and [G.V.] have lived and [S.V.] have lived separately from some of the older minors for a longer period of time than they lived together." (Italics added.) We have set forth the court's ruling in detail above, in part, to provide the most complete and accurate presentation possible of the court's rationale for finding the parents failed to meet their burden of establishing the adoption exceptions at issue on appeal.
II. The Juvenile Court Did Not Err in Denying the Request for a Sibling Bonding Study
Mother and father contend the juvenile court also erred in denying their request for a sibling bonding study. We reject this contention.
A bonding study is an expert opinion on the relationship between the parent and child or between siblings. Such a study is not required prior to termination of parental rights. (Lorenzo C., supra, 54 Cal.App.4th at p. 1339; In re Richard C. (1998) 68 Cal.App.4th 1191, 1195 (Richard C.).) The juvenile court is never required to appoint an expert when making a factual determination—here, the relative benefit of sibling relationship as compared to adoption—unless "it appears to the court ... that expert evidence is ... required." (Evid. Code, § 730.) Thus, when there is extensive evidence in the record of the relationship between parent and child or between siblings, a bonding study is unnecessary. Absent a showing of clear abuse, the exercise of the court's discretion in granting or denying a request for a bonding study will not be overturned. (Stephanie M., supra, 7 Cal.4th at pp. 318-319; Lorenzo C., at p. 1341.) As the court noted in Richard C., there are practical reasons for the juvenile court to decline to order such expert advice:
"Bonding studies after the termination of reunification services would frequently require delays in permanency planning.... The Legislature did not contemplate such last-minute efforts to put off permanent placement. [Citation.] While it is not beyond the juvenile court's discretion to order a bonding study late in the process under compelling circumstances, the denial of a belated request for such a study is fully consistent with the scheme of the dependency statutes, and with due process." (Richard C., supra, 68 Cal.App.4th at p. 1197.)
The juvenile court acted well within its discretion in denying the request for a bonding study at the time of the section 366.26 hearing. There were two years' worth of reports and logs of visitation to demonstrate the sibling relationship and bond between the minors and the siblings, the existence of which was never in significant dispute but acknowledged in the department's reports throughout the proceedings below. In light of the extensive evidence of the sibling relationship already before it, the court did not abuse its discretion in denying the request for a sibling bonding study, which would have unnecessarily delayed permanency planning.
DISPOSITION
The juvenile court's order is affirmed.
/s/_________
LEVY, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DETJEN, J.