Opinion
B234622
01-26-2012
In re RUBEN B. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. RUBY R., Defendant and Appellant.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Peter Ferrera, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK63816)
APPEAL from an order of the Superior Court of Los Angeles County. Terry T. Truong, Referee. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
The juvenile court terminated mother Ruby R.'s parental rights over three of her children, Ruben B., E. B., and Jose B. On appeal, mother contends the trial court erred in failing to apply the beneficial parent-child relationship exception to termination of parental rights or the sibling relationship exception. We affirm the trial court order.
Mother is also known as Morena B. Both names appear in the record.
FACTUAL AND PROCEDURAL BACKGROUND
Mother's six children first came to the attention of the Los Angeles Department of Children and Family Services (DCFS) in June 2006. Police officers took the children into custody after the maternal grandmother reported mother had left them alone. At the time, Patricia G. (15), Evelyn G. (10), Luz G. (8), Ruben B. (6), Elsie B. (4), and Jose B. (1), all lived with mother in a one-room converted garage. The home had an empty refrigerator, no furniture except two couches, stagnant water under a sink, and trash and clothing strewn about. In an area considered the bathroom, there was a nonworking toilet containing human waste. The children were unkempt and had a foul body odor; the home also emitted a foul smell. There were chickens in the house. Patricia was described as autistic and suffering from severe developmental disabilities. Evelyn had an untreated cavity and resulting tooth decay.
DCFS detained all of the children. Ruben, E., and Jose were placed in one foster home, Evelyn and Luz were placed in another, and Patricia was placed by herself. In a jurisdiction and disposition report, Evelyn, Luz, Ruben, and E. reported that the maternal grandmother hit the children and mother. All of the children except Patricia had lice. The father of Evelyn, Luz, Ruben, E., and Jose lived in Madera, California. Father informed DCFS that he was 70 years old and suffered chronic illnesses that prevented him from caring for himself independently.
Father died in 2009.
In July 2006, the juvenile court sustained a dependency petition and asserted jurisdiction over all of the children pursuant to Welfare and Institutions Code section 300, subdivision (b). The court sustained allegations that mother failed to protect the children by leaving them home without adult supervision, allowing the children to live in an unsanitary home, and by failing to seek timely dental treatment for Evelyn. The court also sustained allegations that the maternal grandmother struck mother and Luz, thereby placing all of the children at risk of physical and emotional harm. The court ordered mother to have unmonitored visits with Evelyn, Luz, Ruben, and E., and monitored visits with Jose.
All further statutory references are to the Welfare and Institutions Code.
Over the next year and four months, mother partially complied with the case plan. She visited the children, but not without incident. On several occasions, she scheduled a visit but failed to show up, or arrived extremely late. Ruben, E., and Jose also visited their older sisters, although the record does not indicate how frequently these visits took place. Mother did not secure stable housing, employment, or other sources of income. She at times had inappropriate interactions with Evelyn and Luz. The court ordered a psychological evaluation of mother. The resulting report stated mother had "mild mental retardation."
In November 2007, the juvenile court concluded mother had made only minimal progress in alleviating the causes of the dependency and the removal of the children. The court terminated reunification services and set a hearing to select a permanency plan for the children pursuant to section 366.26. Over the next two years, the case continued. Mother continued to visit all of the children, although she was at times inconsistent. The oldest sibling, Patricia, turned 18. The juvenile court terminated its jurisdiction over her. DCFS did not find caretakers willing to adopt Ruben, E., and Jose. In 2008, DCFS placed Luz in a group home due to her aggressive and oppositional behavior.
In October 2009, DCFS recommended mother have another opportunity to reunify with her children. DCFS reported that mother had been receiving assistance from the Regional Center since April 2009. Mother had also secured employment and applied for government housing assistance. She had complied with the case plan and was willing to participate in a family preservation program. Ruben, E., Jose, and Luz wished to return to mother's care. The juvenile court found there was a compelling reason for determining a section 366.26 hearing was not in the children's best interest because they were not proper subjects for adoption and no one was willing to accept legal guardianship. The court ordered the goal for Luz and her three younger siblings would be to return to mother's home.
Evelyn wanted to continue living with her foster mother. At this time Ruben, E., and Jose's foster mother was interested in adopting them.
In 2010, mother continued to visit her children, albeit inconsistently. The younger children also visited Evelyn and Luz. For approximately two weeks in May 2010, Luz was placed in the same foster home as Ruben, E., and Jose. DCFS removed Luz from the placement because she was fighting with her siblings, and she attempted to have sex with a 14-year-old boy who was also at the foster home.
In September 2010, Luz ran away from her placement. Although she was later found, she repeatedly ran away in the months that followed. In the last DCFS report containing information about Luz that was included in the record—an April 2011 status review report—Luz remained AWOL. There is no indication the children had contact with Luz while she was AWOL.
In October 2010, DCFS reported that mother's visits with Ruben, E., and Jose were inconsistent, and "mother disrupted the children's placement and created a lot of anxiety and disturbed the children emotionally. Therefore, the visits were stop[ped] until the children were stabilized emotionally." DCFS also reported mother gave Ruben a cell phone without his foster parent's permission, advised Ruben, E., and Jose not to follow the foster home's rules, and called the DCFS hotline and falsely reported that the foster mother was physically abusing and neglecting the children. The foster mother reported the children exhibited negative behavior after mother's visits. Mother had threatened the DCFS social worker, moved several times, and did not have appropriate living arrangements for children. The juvenile court ordered DCFS to initiate an adoptive home study for Ruben, E., and Jose, and set another section 366.26 hearing. The court also ordered that mother was to have monitored visitation with the children in the DCFS office.
In February 2011, DCFS reported mother's visits with Ruben, E., and Jose were still inconsistent. Mother had moved to Madera County. She missed scheduled visits, including one planned for Ruben's birthday. Evelyn briefly ran away from her placement, causing a break in her visits with her younger siblings. Ruben and E. informed DCFS that if they could not return to mother's care, they wanted to stay with their prospective adoptive mother and be adopted. By April 2011, mother still did not have stable housing.
On June 27, 2011, the juvenile court held a contested section 366.26 hearing regarding Ruben, E., and Jose. Mother's social worker from the Life Steps Foundation testified on her behalf. The social worker was present during eight of mother's visits with the children. She recalled that during the visits, the children were happy to see mother and their infant brother, Freddy. Mother took food and clothes to the children and bought them meals. During visits, mother asked the children about school and told them to behave in their placements. The children were sad at the end of the visits and asked when mother would be taking them home.
This was only the second time there was any mention of Freddy in the proceedings. In April 2011, mother filed a section 388 petition arguing changed circumstances, in part because she had held custody of Freddy for one year and three months (since his birth), and was able to care for him properly with assistance from the Regional Center and other sources. However, mother withdrew the petition before the court issued a ruling.
Ruben and E. also testified. Ruben said he had last seen Luz when she was living at his foster home, over one year earlier. He had last seen Evelyn two months before the hearing. He saw Freddy during visits with his mother. Ruben indicated he likes Evelyn "100 percent" because she is his sister, and he would have liked to visit with her more often. Ruben testified he would be sad if he could not see Evelyn anymore. He also testified that if he could not return to his mother he wanted his foster parents to adopt him. He said the meaning of adoption was explained to him. However, no one had talked with him about how his relationship with Evelyn would change if he were adopted. Ruben further testified he understood that he could stay with his foster parent, even if he did not return to mother and was not adopted. He stated he still would prefer to be adopted.
E. testified she likes having Luz as a sister because Luz protects her and makes her feel good. She would be sad to never see Luz again, "[b]ecause she's my sister and I like her. I love her so much." E. said she felt "[g]reat" or "[a]wesome" about Evelyn being her sister. E. played with her older sisters when with them. She described playing with Evelyn as different than playing with other friends because Evelyn is her sister, and she is not afraid that Evelyn "will do anything to [her]." E. would feel sad to lose Evelyn as a sister. She said no one had explained that being adopted could mean never seeing Evelyn again, and the idea made her feel sad.
The juvenile court sustained objections to evidence about Ruben's and E.'s relationship with Freddy. The court explained: "There is no way I can make my decision when I don't have any information on Freddy's relationship with the children. Aside from what you're sifting today, I have no other information on Freddy. I'm not about to find a sibling exception on a child I have no jurisdiction over, on a child I have no information on, aside from the testimony today."
Mother argued two exceptions to termination of parental rights applied, the sibling relationship exception under section 366.26, subdivision (c)(1)(B)(v), and the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(B)(i). The juvenile court rejected mother's arguments and terminated her parental rights. Regarding the sibling exception, the court noted:
"I do not find that the children were essentially raised with Evelyn or Luz in this case. As I indicated, I don't have sufficient information on Freddy to make any sort of a . . . sibling exception finding on him because he has never been under the court's jurisdiction. [¶] I do not find that the children shared significant common experiences or [have] existing close and strong bonds with the siblings. I recognize they all know their siblings. They all know their sisters. They all know their older sister, who's no longer under this court's jurisdiction. However, they have not lived with
their siblings for quite some time. [¶] I also note they have not been able to visit with Luz or Evelyn because the two girls have been AWOL. For Luz, that AWOL time has been a lot longer than Evelyn. Visitation has not been able to be put in place because of Evelyn and Luz's AWOL'ing. . . . [¶] . . . [¶] I cannot find, given the little information I have of the relationship between Evelyn and Luz and Ruben, E. and Jose, that the relationship would have any long-term emotional interest or that there would be a significant loss in that relationship if I were to terminate the mother's parental rights."
Mother timely appealed.
DISCUSSION
I. Substantial Evidence Supported the Juvenile Court's Decision that No Statutory Exceptions to Termination of Parental Rights Applied
Mother argues the juvenile court should not have terminated her parental rights because the beneficial parent-child relationship and sibling relationship exceptions to termination of parental rights applied. With respect to the sibling relationship exception, mother contends the juvenile court erred in failing to consider evidence of Ruben's and E.'s relationship with their infant half brother, Freddy, and the evidence supported the exception as it applied to the relationship Ruben, E., and Jose had with their sisters Evelyn and Luz. Although we agree the juvenile court should have allowed mother to present evidence regarding the children's relationship with Freddy, we conclude the error was harmless. We disagree with mother's other arguments.
A. Legal Principles Applicable to Both Exceptions
Under section 366.26, subdivision (c)(1), the juvenile court must terminate parental rights if it finds by clear and convincing evidence it is likely the child will be adopted. However, the court will not terminate parental rights if it determines doing so would be detrimental to the child based on one of several statutory exceptions. (§ 366.26, subd. (c)(1)(B).) The party challenging termination of parental rights bears the burden of proving that one or more of the statutory exceptions applies. (In re C.F. (2011) 193 Cal.App.4th 549, 553 (C.F.); In re I.W. (2009) 180 Cal.App.4th 1517, 1527; In re Valerie A. (2006) 139 Cal.App.4th 1519, 1523 (Valerie A.).)
We review the juvenile court's findings under section 366.26, subdivision (c)(1)(B) for substantial evidence. (C.F., supra, 193 Cal.App.4th at p. 553; In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333-1334.) " 'On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.' [Citation.]" (C.F., at p. 553.) "Because a parent's claim to . . . an exception [to termination of parental rights] is evaluated in light of the Legislature's preference for adoption, it is only in exceptional circumstances that a court will choose a permanent plan other than adoption." (In re Scott B. (2010) 188 Cal.App.4th 452, 469.)
At least one court has applied an abuse of discretion standard of review when considering a juvenile court's finding under section 366.26, subdivision (c)(1)(B). However in that case, In re Jasmine D. (2000) 78 Cal.App.4th 1339, the court noted the practical differences between the two standards are not significant in that both require deference to the juvenile court's findings. (Id. at p. 1351.) We apply the substantial evidence test in this case, but under either standard of review we would affirm the juvenile court order. (See In re C.B. (2010) 190 Cal.App.4th 102, 122-123; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [applying substantial evidence standard of review to juvenile court factual findings, but abuse of discretion review to juvenile court finding that parental or sibling relationship is a compelling reason for finding detriment to child under section 366.26, subdivision (c)(1)(B)].)
B. The Beneficial Parent-child Relationship Exception
Mother contends the "beneficial parent-child relationship exception" under section 366.26, subdivision (c)(1)(B)(i) applied to this case. To establish the exception, mother had to prove termination of parental rights would be detrimental to the children because (1) she maintained regular visitation and contact with them, and (2) the children would benefit from continuing their relationship with her. (§ 366.26, subd. (c)(1)(B)(i).) The parties disagree on whether there was substantial evidence showing mother failed to maintain regular visitation with the children. Mother further asserts that to the extent her visitation was irregular, DCFS was to blame for repeatedly and unilaterally changing the juvenile court's visitation orders, and respondent is therefore estopped from arguing her visits were not regular. We need not resolve this issue. Assuming mother maintained regular visitation with the children, there was still substantial evidence that she did not meet the second prong of the beneficial parent-child relationship exception.
Under section 366.26, subdivision (c)(1)(B), once the court has determined a dependent child is likely to be adopted, the court shall terminate parental rights unless "[t]he court 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."
The second prong of the exception requires that the parent prove "the relationship [with the parent] 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575; see also In re Jason J. (2009) 175 Cal.App.4th 922, 936 (Jason J.).) The court considers factors such as " '(1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of the interaction between the parent and the child, and (4) the child's particular needs.' " (In re Helen W. (2007) 150 Cal.App.4th 71, 81, quoting In re Angel B. (2002) 97 Cal.App.4th 454, 467.)
"A parent must show more than frequent and loving contact or pleasant visits. [Citation.] 'Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from the day-to-day interaction, companionship and shared experiences.' [Citation.] The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.] Further, to establish the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show the child would suffer detriment if his or her relationship with the parent were terminated." (C.F., supra, 193 Cal.App.4th at p. 555, fn. omitted.)
Ruben, E., and Jose were ages six, four, and one, respectively, when DCFS removed them from mother's custody. The children spent the next five years in foster care. By the section 366.26 hearing, E. and Jose had spent more time away from mother than with her, and Ruben had spent almost as much time in foster care as he had in mother's home. There was evidence that the children enjoyed and looked forward to mother's visits. But there was scant evidence mother occupied a parental role in their lives, resulting in significant, positive emotional attachments. In the first several years of the dependency, DCFS reported that Jose appeared to have no attachment to mother and refused to leave his foster mother during mother's visits. In 2008, DCFS reported that the children, with the exception of E., hesitated to hug and talk to mother. Later reports indicated only that the children enjoyed mother's visits, and Ruben and E. wanted to return to her care, or were anxious about whether they would return.
Moreover, throughout the dependency, foster parents were the adults who managed the children's academic issues such as tutoring, and taught the children about "living skills" such as hygiene and organization. Mother was sometimes inconsistent about visiting and missed important occasions, such as Ruben's birthday, despite telling the children she would be present. In 2008, DCFS reported that mother whispered to the children during monitored visits despite being told this was inappropriate. On one occasion, when the foster mother told the monitor Jose could say "apple," and the monitor asked Jose to say "apple," mother repeatedly complained the monitor was abusing Jose. Further, in late 2010, mother told the children not to follow the rules at their foster home and falsely reported the children were being abused in their placement. In 2011, DCFS reported that mother made promises to the children she failed to meet, such as a promise to bring them a birthday cake, or to visit. DCFS indicated mother's failure to keep those promises made the children frustrated and sad. There was substantial evidence mother did not play a positive parental role in the children's lives.
On appeal, mother points to a therapist's evaluation of the children in March 2008 to support her argument that Ruben and E. would suffer detriment if her parental rights are terminated. In the 2008 report, the therapist noted Ruben was having difficulty with the separation "from his biological family," and that he was angry and stuttered when agitated. The therapist further observed that E. had made progress but was still "very much affected" by the separation from her parents. The therapist noted E. was having difficulty following house rules and getting along with others in the foster home.
Yet, by June 2011, DCFS reported Ruben and E. "express a desire to live with their birth mother but can also state that if they do not return to their mother that they would like to remain in the home of their current caregiver and be adopted. They understand that if they are adopted they will not be able to live with their birth mother. . . . [¶] The children were placed in their current home on 9/21/09. They have adjusted well and are attached to their caregiver. Ruben and [E.] are both able to express themselves positively about their caregiver and state that she is a good mom." This report suggests that over the length of the dependency, Ruben and E. may still have preferred to live with mother, but they had also adapted to living without her. Moreover, Ruben testified that he understood he could continue living with his current caregiver, even if he was not adopted. He said he still would prefer to be adopted. Sufficient evidence supported the juvenile court's determination that Ruben, E., and Jose would not suffer detriment if their relationship with mother was terminated. In addition, while Ruben and E. preferred to live with mother and enjoyed visits with her, the record lacked evidence indicating their relationship with mother promoted their well-being to such a degree that it outweighed the benefit they would gain in a permanent, stable home with adoptive parents.
In the same report, the DCFS social worker noted that Jose was unable to make a meaningful statement.
" 'A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent.' [Citation.]" (Jason J., supra, 175 Cal.App.4th at p. 937.) The trial court did not err in finding the beneficial parent-child relationship exception did not apply.
C. The Sibling Relationship Exception
i. Evelyn and Luz
Mother contends the trial court also erred in concluding the sibling relationship exception did not apply to preserve the children's relationship with Evelyn and Luz. We disagree.
Under section 366.26, subdivision (c)(1)(B)(v), the court may find an exception to termination of parental rights 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." "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. (2002) 101 Cal.App.4th 942, 952 (L.Y.L.).)
Substantial evidence supported the trial court's finding that the exception did not apply here. We begin our analysis with Jose. Jose was only one year old when the children were removed from mother's custody. Evelyn and Luz were immediately separated from their younger siblings. Jose was not to any significant extent raised in the same home as Evelyn and Luz, and there was no evidence he had strong or close bonds with them.
Ruben and E. lived with Evelyn and Luz for several years prior to the dependency, and both had a relationship with their older sisters. E. in particular described a bond with her older sisters. However, even the time Ruben and E. spent living in the same home with Evelyn and Luz was relatively brief. Ruben and E. characterized Evelyn and Luz as playmates. The two groups of siblings visited each other throughout the dependency, including overnight, but they had not lived together for any length of time in five years. Ruben and E. testified that they liked or loved Evelyn and Luz, and would be sad not to see them anymore. However, this is not a case in which the evidence established the two sibling groups lived together for a long time, the siblings helped each other get through difficult times, or the siblings confided in one another and assumed leadership roles. (See L.Y.L., supra, 101 Cal.App.4th at p. 952; In re Jacob S. (2002) 104 Cal.App.4th 1011, 1018-1019 (Jacob S.), disapproved of on another point by In re S.B. (2009) 46 Cal.4th 529, 537, fn. 5.)
There was also evidence that, at least with respect to Luz, a continued relationship was not in her younger siblings' best interest. When Luz was temporarily placed in the children's foster home in 2010, DCFS reported that she had a negative effect on Ruben's and E.'s behavior. E. copied Luz and "talked back," was rude, and refused to follow directions. Ruben's behavior also apparently suffered, as DCFS noted it improved after Luz left. By the time of the June 2011 hearing, 13-year-old Luz had been AWOL for long periods, admitted illegal drug use, and was engaging in sexual relationships with men. DCFS reported she had run away from more than 20 placements and was hospitalized over six times because of suicidal ideation. Luz apparently did not see her younger siblings while she was AWOL. At the section 366.26 hearing, Ruben testified he had last seen Luz when she was temporarily placed in his foster home, over one year earlier. DCFS removed Luz from that home in part because she was fighting with her younger siblings. This evidence did not suggest that applying the sibling relationship exception as to Luz would do much to preserve her relationship with her younger siblings, or that the benefits of continuing the children's relationship with her would outweigh the benefits of adoption. (L.Y.L., supra, 101 Cal.App.4th at p. 953.)
DCFS attributed the positive change in Ruben's behavior to both Luz's departure and a break from Ruben's visits with mother.
Although the evidence did not indicate Evelyn had a similar effect on the children, or that her brief AWOL period involved behavior as destructive as that of Luz, it was not clear that applying the sibling relationship exception in Ruben, E., and Jose's case would preserve their relationship with Evelyn. Evelyn did not want to live with mother. In February and April 2011, DCFS reported that Evelyn—then 14 years old—wanted to be adopted by her maternal aunt. Given Evelyn's stated desire for permanence, her relationship with her younger siblings might be severed because of her own adoption. Even if Ruben and E. had a strong, positive bond with Evelyn, substantial evidence still supported the juvenile court's conclusion that the benefit of the relationship between Evelyn and the children did not outweigh the benefit the children would receive from stability and permanence in an adoptive home. (Jacob S., supra, 104 Cal.App.4th at pp. 1018-1019 [despite strong bond between siblings, detriment of termination was outweighed by benefits of adoption].)
ii. Freddy
Mother also attempted to introduce evidence of Ruben's and E.'s relationship with their infant half brother, Freddy. The juvenile court sustained objections to most of the proffered testimony. We agree this was error, but find it was harmless.
The juvenile court allowed the social worker testifying on mother's behalf to offer her observations of the children's interactions with Freddy. But when mother's counsel attempted to elicit testimony from Ruben and E. about their relationship with Freddy, the court sustained opposing counsels' objections to the testimony. The court indicated it would not find the sibling exception applied with respect to a child not under the court's jurisdiction, and about whom the court had no information aside from evidence offered at that day's hearing. This was error. The sibling exception may apply even though one sibling is not a dependent of the court. For example, in Valerie A., the appellate court found the juvenile court erred in ruling a nondependent older half sister was not the dependent children's sibling for purposes of the exception. (Valerie A., supra, 139 Cal.App.4th at p. 1521.) In this case, the juvenile court did not need to have jurisdiction over Freddy to determine whether the sibling relationship exception applied to the children's relationship with him. Further, while the absence of evidence in the record about Freddy would have been a relevant factor in the court's consideration of whether the exception applied, it was not a legitimate reason to exclude evidence about the children's relationship with Freddy at the section 366.26 hearing.
However, unlike the court in Valerie A., we find the juvenile court's error in this case harmless. On appeal, mother primarily argues the juvenile court's order requires reversal to avoid "the unintended consequence of affirming the juvenile court's belief that non-dependent siblings are not relevant to this exception to adoption." However, "[t]he California Constitution prohibits a court from setting aside a judgment unless the error has resulted in a 'miscarriage of justice.' (Cal. Const., art. VI, § 13.)" (In re Celine R. (2003) 31 Cal.4th 45, 59-60.) Our high court has "interpreted that language as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error," including in dependency matters. (Id. at p. 60.)
Under this standard, the juvenile court's error was not a miscarriage of justice requiring reversal. The juvenile court allowed mother to present some testimony about Freddy. What evidence there is in the record makes it abundantly clear that even had the juvenile court allowed mother to present additional evidence of the relationship between Freddy and the children, the outcome would have remained the same. Freddy was not yet 18 months old at the time of the section 366.26 hearing, and he was in mother's custody. The children saw him during their supervised visits with mother. They had never lived with Freddy, as they had already been in foster care for several years by the time he was born. (Cf. Valerie A., supra, 139 Cal.App.4th at p. 1524 [dependent toddlers had lived with their half sister for a number of months before removal from mother; appellate court remanded for consideration of sibling relationship exception].) Ruben, E., and Jose saw Freddy when they had visits with mother, but their visits with mother were inconsistent. Their common experiences or bond with Freddy could only be extremely limited at best. Freddy was too young to be much of a playmate for Ruben, E., and Jose, who were 11, 9, and 6 years old respectively. Ruben, E., and Jose also had not had the opportunity to serve as Freddy's caretaker, leader, companion, or other significant presence in his life.
On the other hand, Ruben, E., and Jose had already been in foster care for five years and stood to gain significantly from the legal permanence they would receive from adoption. Since the trial court concluded the sibling relationship exception did not apply to the children's relationship with Evelyn and Luz, whom they had known all of their lives, it is not reasonably probable that the trial court would have found the sibling exception applied in connection with their necessarily limited relationship with Freddy.
DISPOSITION
The juvenile court's order is affirmed.
BIGELOW, P. J. We concur:
RUBIN, J.
GRIMES, J.