Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK51502, D. Zeke Zeidler, Judge.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant Renee Y.
Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant Matthew Y.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Matthew Y. (father) and Renee Y. (mother) appeal an order terminating their parental rights to Tyler Y. We affirm.
Our summary of the facts repeats in part the summary we provided in our unpublished opinion, Mathew Y. v. Superior Court (Dec. 20, 2010, B227357) [nonpub. opn.].
1. The Y. Family
Before the commencement of this action mother and father were married and living together with their three boys, Christian Y. (born in February 2003), Jagger Y. (born in June 2004) and Tyler (born in May 2007). Mother and father had a history of drug abuse, related crime and domestic violence, both before and after their children were born.
2. The Commencement of This Action
In the early morning hours of March 7, 2009, paramedics found mother and Tyler sleeping in an alley near their home. Although it was 47 degrees, Tyler was only wearing a diaper and a short sleeve shirt. The paramedics transported mother and Tyler to a hospital to be treated for hypothermia and called the police. Mother advised the police that she left her residence on March 6, 2009 at 5:00 p.m. to avoid a dispute with father.
After mother tested positive for amphetamine and methamphetamine, respondent Los Angeles County Department of Children and Family Services (DCFS) was called to investigate. Mother advised a DCFS social worker that she obtained her drugs from father and that the building they resided in was a haven for drug users. She also stated that father was “abusive” toward her. At the time, father was under house arrest for violating his probation related to his conviction for possession of narcotics.
On March 11, 2009, the DCFS filed a juvenile dependency petition requesting that the juvenile court assert jurisdiction over Christian, Jagger and Tyler. On that same day, the juvenile court found that a prima facie case for detaining the children was established and ordered that father and mother be given family reunification services. The children were removed from mother and father and placed in foster homes. Christian and Jagger were placed in one home and Tyler in another. Mother and father were allowed monitored visits.
3. The Original Juvenile Dependency Petition Was Sustained
On May 5, 2009, pursuant to a mediation agreement, father and mother pleaded no contest to certain allegations in the juvenile dependency petition. In accordance with the agreement, the juvenile court dismissed certain allegations and sustained certain allegations. The juvenile court found that it had jurisdiction over the children under Welfare and Institutions Code section 300, subdivisions (b) [failure to protect] and (j) [abuse of sibling] based on the episode that occurred on March 7, 2009, mother’s unresolved history of substance abuse, including use of amphetamine and methamphetamine, the “domestic altercations” between mother and father, and father’s unresolved history of illicit drug use. Pursuant to the recommendation of the DCFS, the court ordered the DCFS to provide family reunification services to father and mother. The court also permitted mother and father to continue their monitored visits of the children.
All future statutory references are to the Welfare and Institutions Code.
4. Supplemental Juvenile Dependency Petition
At first, family reunification services appeared successful. Mother and father attended counseling programs and passed a number of drug tests. On May 7, 2010, however, mother tested positive for amphethamine and methamphetamine and father failed to appear for his scheduled drug test.
On May 26, 2010, the DCFS filed a supplemental juvenile dependency petition pursuant to section 387. In that petition, the DCFS alleged, inter alia, that mother and father had a history of drug abuse and were current users of illegal drugs, that mother tested positive for amphetamine and methamphetamine on May 7, 2010, that father failed to appear for a random drug test on that day, and that mother’s and father’s drug use endangered the physical and emotional health and safety of the children.
5. The Drug Tests on July 30 and August 9, 2010
On July 30, 2010, both mother and father failed to appear for a randomly scheduled drug test. On August 9, 2010, father again failed to appear for a drug test. On that same day, mother tested positive for amphetamine and methamphetamine.
6. August 30, 2010, Order
On August 30, 2010, the juvenile court sustained the supplemental petition, terminated reunification services, and scheduled a hearing pursuant to section 366.26 regarding the termination of parental rights of mother and father on December 29, 2010. Father promptly filed a petition for an extraordinary writ challenging the August 30, 2010, order. On December 20, 2010, we denied the petition.
7. Tyler’s Prospective Adoptive Father
When Tyler was removed from mother and father in March 2009, he was initially placed in the care of his paternal grandfather Elden Y. But he didn’t stay there long. Tyler moved to at least three more homes before finally being placed in early 2012 in the home of his prospective adoptive father. According to a DCFS report dated March 10, 2011, Tyler “has made an excellent adjustment to this home.”
The prospective adoptive father, who has an approved Adoption Home Study, has prior experience raising children of Tyler’s age. He also expressed and demonstrated a willingness to assist Tyler in maintaining contact with his brothers and biological parents so long as it is in Tyler’s best interest. According to the prospective adoptive father, Tyler “regularly mentions his brothers, secondly he asks about his grandmother, and thirdly his mother. [Tyler] does not ask about his father
8. Termination of Parental Rights
On December 29, 2010, the juvenile court appointed a permanent guardian for Christian and Jaeger. With respect to Tyler, however, the section 366.26 hearing was continued from that date and then on two more occasions for a variety of reasons. On one occasion the hearing was continued because both mother and father were incarcerated.
This appeal only involves Tyler and does not involve Christian or Jagger.
Finally, on June 20, 2011, the juvenile court held the hearing. Immediately prior to the section 366.26 hearing, mother filed a request pursuant to section 388 to change the August 30, 2010, order. Mother asked the juvenile court to reinstate family reunification services. The juvenile court summarily denied this request on, inter alia, the grounds that (1) the request did not state new evidence or a change of circumstances, (2) the proposed order did not promote the best interests of the child, and (3) there was no legal basis for the proposed order.
The juvenile court then heard testimony from mother and father and arguments by counsel regarding the termination of parental rights to Tyler and Tyler’s potential adoption. At the conclusion of the hearing, the court found clear and convincing evidence that Tyler would be adopted and ordered the termination of mother’s and father’s parental rights. Mother timely appealed the court’s order denying her section 388 request and terminating her parental rights. Father, too, timely appealed the order terminating his parental rights.
CONTENTIONS
Mother and father contend the juvenile court should not have terminated their parental rights under both the so-called beneficial parent and beneficial sibling exceptions to the general rule requiring termination upon a finding the child will be adopted. They also contend the juvenile court abused its discretion in not appointing independent counsel to represent Christian and Jagger at Tyler’s section 366.26 hearing.
DISCUSSION
1. There Was Substantial Evidence to Support the Juvenile Court’s Order Terminating Mother’s and Father’s Parental Rights
A section 366.26 hearing proceeds on the premise that the efforts to reunify the parents and child are over, “and the focus of the hearing is on the long-term plan for care and custody.” (In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1808.) As a general rule, “[t]he court must proceed by section 366.26, subdivision (c)(1) and terminate parental rights if clear and convincing evidence shows that it is likely that the minor will be adopted.” (Ibid.)
There are several exceptions to this general rule, two of which mother and father contend apply here. The juvenile court shall not terminate parental rights if it “finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:
“(i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.
“[¶]... [¶]
“(v) 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.” (§ 366.26, subd. (c)(1)(B).)
We review a juvenile court’s order terminating parental rights under the substantial evidence standard. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576; contra In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [applying abuse of discretion standard].) In determining whether there is substantial evidence, “we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
Mother and father do not dispute the juvenile court’s finding that Tyler was adoptable. Rather, they contend that the section 366.26, subdivision. (c)(1)(B)(i) and section 366.26, subdivision (c)(1)(B)(v) exceptions apply.
a. The Parent Benefit Exception (§ 366.26, subd. (c)(1)(B)(i))
The juvenile court found that father did not maintain regular and consistent contact with Tyler. There was substantial evidence to support this finding. At the June 20, 2011, hearing, father stated that because he was not working, for the past month he visited Tyler twice a week. However, he also admitted that in the previous five months, when he worked regularly, he had only visited Tyler five or six times. Because father did not maintain regular visitation and contact with Tyler, the parent benefit exception does not apply to him.
The juvenile court found that although mother maintained regular visitation and contact, the benefit to Tyler of continuing a relationship with mother was outweighed by the benefit of a permanent adoption. The court correctly balanced the positive and negative effects of adoption on Tyler’s life in determining whether to terminate mother’s parental rights.
Mother missed her last four visits with Tyler. She claims she missed the visits because she mistakenly believed her visitations privileges were terminated.
“In the context of the dependency scheme prescribed by the Legislature, we interpret 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 other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.
“Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.
“At the time the court makes its determination, the parent and child have been in the dependency process for 12 months or longer, during which time the nature and extent of the particular relationship should be apparent. Social workers, interim caretakers and health professionals will have observed the parent and child interact and provided information to the court. The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.” (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
Here, mother and Tyler clearly had a significant bond. Tyler was with mother for almost the first two years of his life. For the next three years, he continued to visit her on a fairly consistent basis. The evidence, however, does not indicate there was an extremely strong bond. By the time of the section 366.26 hearing, Tyler had lived more than half of his life away from mother, including almost all of the years he could remember. According to the prospective adoptive father, Tyler was closer to his siblings and grandmother than he was to mother. Further, mother’s ability to be a positive influence on Tyler continued to be hampered by her long-term substance abuse problems. There is nothing in the record indicating she had truly overcome these problems by the time of section 366.26 hearing.
Moreover, there was substantial evidence that the benefits of continuing Tyler’s relationship with mother did not outweigh the benefits the child would gain in a permanent home with the prospective adoptive father. In a period of less than two years Tyler had lived in six different homes. Mother conceded that so many placements had caused Tyler “trauma.” There was evidence that Tyler had adjusted well to the home of his prospective adoptive father and that his new caretaker was an experienced and competent parent. Under these circumstances, we cannot hold that the parent benefit exception applies as a matter of law.
b. Sibling Benefit Exception (§ 366.26, subd. (c)(1)(B)(v))
In applying the section 366.26, subdivision (c)(1)(B)(v) 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.” (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951 (L.Y.L.).)
Here, the bond between Tyler and his brothers was significant but not extremely strong. Except for the first 22 months of his life, Tyler had never lived with his brothers. And when he did live with them, he was too young to have any meaningful common experiences that he could remember.
We also take into account the prospective adoptive father’s demonstrated willingness to maintain a relationship between Tyler and his brothers even after Tyler is adopted. Mother and father correctly point out that the prospective adoptive father will not be legally required to maintain this relationship after their parental rights are terminated. However, the benefit of legally maintaining Tyler’s relationship with his brothers is outweighed by the benefit of establishing a permanent home for Tyler by allowing him to be adopted.
Mother argues the test for applying the sibling benefit exception as articulated by L.Y.L. is “faulty” and renders the exception illusory. We disagree. The reasoning and holding of L.Y.L. is sound in our view, and we adopt it.
Under L.Y.L. and the plain language of section 366.26, subdivision (c)(1)(B)(v), the sibling benefit exception does not apply in this case.
2. The Juvenile Court’s Decision to Not Appoint Separate Counsel for Tyler’s Siblings is Not Grounds for Reversal
At the section 366.26 hearing on June 20, 2011, all three children were represented by a single appointed lawyer. Mother contends that the juvenile court’s “failure” to appoint separate counsel for Christian and Jagger was reversible error. Father joins in that argument. This argument was forfeited, however, because neither mother nor father raised the issue in the juvenile court. Moreover, to the extent anyone was aggrieved by the juvenile court’s decision to appoint a single lawyer to represent all three children rather than give each of them separate counsel, it was the children. Mother therefore has no standing to raise the issue.
DISPOSITION
The juvenile court’s order dated June 20, 2011, is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.