Opinion
E067548
07-31-2017
In re R.A. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. M.S. et al., Defendants and Appellants.
Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant M.S. Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant R.A. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. SWJ1100418) OPINION APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Affirmed. Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant M.S. Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant R.A. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
M.S. and R.A., the parents of R.A. and P.A., appeal an order terminating their parental rights and selecting adoption as the children's permanent plan. Mother asserts that the juvenile court erred by failing to apply the parental relationship exception and/or the sibling relationship exception to adoption. Father also asserts the sibling relationship exception.
We will affirm the judgment.
HISTORY
Because the issues are limited, a summary case history suffices. Additional facts will be stated where relevant to the discussion of the legal issues raised by the parents.
M.S. is the mother of nine children. R.A. is the biological and presumed father of R.A. and P.A. and several of their siblings. The current dependency proceedings commenced on August 12, 2014, when a Welfare and Institutions Code section 300 petition was filed as to eight of the children. This appeal pertains only to R.A., who was then five years old, and P.A., who was then was four years old.
All further statutory citations refer to the Welfare and Institutions Code.
The petition alleged that the parents engaged in domestic violence in the children's presence and that both parents abused controlled substances, including methamphetamine, and as a result had a limited ability to provide the children with adequate care and supervision and created a detrimental home environment. It also alleged that both parents had a prior history with child protective services due to issues of substance abuse and neglect of the children, and that they had failed to benefit from prior services, in that they continued to neglect the children by abusing substances, exposing the children to acts of domestic violence, and had failed to provide adequate food, running water and electricity. Finally, the petition alleged that both parents used inappropriate physical discipline on the children, hitting them with a shoe, a belt and other objects, and that they called the children derogatory names, placing them at risk for physical and emotional harm.
The allegations of the petition were found true at a jurisdiction and disposition hearing held on October 10, 2014. The court denied services to either parent, finding, pursuant to section 361.5, subdivision (b)(13), that services were not in the children's best interest because the parents had failed to comply with prior case plans requiring them to engage in substance abuse treatments. It set a selection and implementation hearing pursuant to section 366.26.
Section 361.5, subdivision (b)(13), provides that services need not be offered if "the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible."
At the jurisdiction and disposition hearing, the court found that the eight children were a sibling group. They were not placed together at that time. The court ordered that the Riverside County Department of Public Social Services make diligent efforts to find a single placement for them. The department was unable to accomplish this. However, R.A. and P.A. were placed together in a foster home. After multiple placements, a prospective adoptive home was found for them.
By the time of the section 366.26 hearing on December 14, 2016, R.A. and P.A. had been in their prospective adoptive home for six months, beginning on June 11, 2016. When they were removed from their parents' custody, they had "severe tantrums that included yelling and screaming as well as assaultive and destructive behavior." These "behavioral challenges" had resulted in five placement changes in two years. By October 2016, both children's behavior had improved markedly. R.A. no longer had tantrums or acted out physically, and he had learned to "self-regulate." P.A. had made "huge gains," and his tantrums had greatly decreased. He was no longer assaultive or destructive. The social worker credited these gains to their finally having found a family that understands them. Both children were thriving. By December 2016, both children had "blossomed and stabilized," due to the prospective adoptive parents' "unconditional love, support, patience and commitment." By that time, both of them had ceased to have tantrums and had gained a great deal of self-confidence. Both felt good about their accomplishments. Both children told the social worker that they wanted to live with the prospective adoptive parents "forever" because they were nice to them, helped them with their homework and did fun family activities with them.
On December 14, 2016, parental rights were terminated.
The parents filed timely notices of appeal.
LEGAL ANALYSIS
Introduction and Standard of Review
"Adoption must be selected as the permanent plan for an adoptable child and parental rights terminated unless the 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. [¶] . . . [¶] (v) There would be substantial interference with a child's sibling relationship . . . .' (§ 366.26, subd. (c)(1)(B).)" (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).)
"'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.'" (In re Celine R. (2003) 31 Cal.4th 45, 53 (Celine R.).) Therefore, the statutory exceptions "'must be considered in view of the legislative preference for adoption when reunification efforts have failed.' [Citation.]" (Ibid.) Accordingly, "the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child." (Ibid., italics added.)
The parents assert that we must reverse the order terminating parental rights because substantial evidence does not support the juvenile court's finding that the exceptions do not apply. However, although the standard of review pertaining to the statutory exceptions is often couched in those terms, we do not actually review the juvenile court's factual findings to determine whether they are supported by substantial evidence. Rather, we must determine whether the evidence compelled a finding that the exception applies. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528; accord, Bailey J., supra, 189 Cal.App.4th at p. 1314.) The parent has the burden of proving the existence of a beneficial parental or sibling relationship. Accordingly, a court's rejection of the asserted exception constitutes a finding that the parent failed to meet that burden. When a party with the burden of proof appeals from such a finding, a reviewing court will reverse the judgment only if the "undisputed facts lead to only one conclusion," i.e., that application of the exception was compelled as a matter of law. (I.W., at p. 1528.) Accordingly, unless the undisputed facts established the existence of a beneficial parental or sibling relationship as a matter of law, a substantial evidence challenge to this component of the juvenile court's determination cannot succeed. (Bailey J., at p. 1314.)
"In 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. This follows because such 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. [Citations.] [¶] [W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (In re I.W., supra, 180 Cal.App.4th at p. 1528.)
The other component of both exceptions is the requirement that the juvenile court find that the existence of that relationship constitutes a "compelling reason for determining that termination would be detrimental." (§ 366.26, subd. (c)(1)(B), italics added.) A juvenile court finding that the relationship is a "compelling reason" for finding detriment to the child is a "quintessentially" discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption. (Bailey J., supra, 189 Cal.App.4th at p. 1315.) Accordingly, this component of the juvenile court's decision is reviewed for abuse of discretion. (Ibid.)
The Beneficial Parental Relationship Exception
The parental relationship exception has two prongs: that the parent maintained regular visitation and contact with the child and that the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) Mother asserts that she did visit regularly enough to maintain her bond with R.A. and P.A. The juvenile court did not base its rejection of the parental relationship exception on mother's spotty visitation, however, but rather on its conclusion that although mother did have a degree of bonding with the children, it did not rise to the level required for application of the exception. For that reason, we will accept, for purposes of discussion, that mother's visitation was, as she says, sufficient to maintain some degree of bonding with both children, and we will address mother's contentions concerning the court's finding that mother's bond with the children was not sufficient to warrant application of the exception.
Mother missed most of her visits with the children from August 22 through October 9, 2014, because she either arrived late or not at all to several scheduled visits and because she tested positive for methamphetamine immediately before some visits. The section 366.26 report filed on January 30, 2015, said that contact between the parents and the children was inconsistent. Mother visited inconsistently from March 3 through May 12, 2015. The social worker was unable to contact mother from June 1 through July 8, 2015. As of October 5, 2015, the social worker could not locate or contact mother, and mother's name was taken off the visitation calendar. Attempts to contact mother in October and November 2015 were unsuccessful. Mother resumed contact with the social worker after her enrollment in a residential program in late December 2015, and mother's next visit with the children was on January 28, 2016. She missed monthly visits in March and April 2016. She visited on June 3 and August 12, 2016. We see no information in the record concerning visits in September, October, November or December 2016. The section 366.26 hearing was held on December 14, 2016.
A parent asserting the parental relationship bond must prove that a positive parent-child bond exists, that it "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," and that severance of the relationship "would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) Mother contends that because a bonding study conducted shortly before the section 366.26 hearing concluded that she and each child shared a positive bond and that severing the bond would be detrimental to the children, the juvenile court's rejection of the study's conclusion renders the court's finding that detriment was not proven unsupported by substantial evidence. Restated to comply with the applicable standard of review as discussed above, her argument is, in effect, that the bonding study compelled the conclusion that the exception applied. We disagree that the bonding study compelled the court to find that the children would be "greatly harmed" (Autumn H., at p. 575) if mother's parental rights were terminated.
The bonding study was conducted on September 14, 2016, three months before the section 366.26 hearing. The examiner observed mother interacting with R.A. and P.A. separately on a single occasion. The examiner reported that mother and each child interacted affectionately. Both children said they wanted to see their mother more often, but P.A. did not seem sad when it was time to leave. R.A. did appear sad, and mother told the examiner that R.A. often said that he wanted to go home with her. R.A. also told the examiner that he often felt sad about not seeing his mother more often and that sometimes he cried when thinking about her. The examiner concluded that "it can be reasonably concluded that there is a strong positive bond" between mother and each of the children and that "it can be reasonably concluded" that "it is more likely than not" that each of the children would suffer unspecified detriment if the parent/child relationship were severed.
The bonding study was admitted into evidence at the section 366.26 hearing. The court found it unpersuasive, in part because the examiner did not describe how severance of the parental relationship would negatively affect either child. Mother argues, however, that the bonding study is not required to specify the particular detriment the child would suffer because the effects of the loss of a parental relationship on a child who is bonded to the parent are well-known. We disagree. The question of detriment depends upon factors as they affect the particular child in question: "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." (Autumn H., supra, 27 Cal.App.4th at pp. 575-576, italics added.) Accordingly, whether the child in question will suffer significant detriment from severance of a parental relationship depends upon facts specific to that child's situation.
Moreover, because mother must show that the evidence compelled the conclusion that the exception applies, the bonding study must do more than merely permit the inference that some unspecified detriment would result. On the contrary, in order to compel a finding that termination of parental rights would be detrimental to the child, the report must explain the detriment that would be expected to result and must present a compelling factual basis for that conclusion. Here, neither the bonding study by itself nor the totality of the evidence was of "'such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding [in the parent's favor].' [Citation.]" (In re I.W., supra, 180 Cal.App.4th at p. 1528.) At most, the evidence showed that the children would be "sad" if they could no longer see their mother. The preference for adoption is overcome only upon a showing that the child "would be greatly harmed" by deprivation of the relationship with the parent. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Being "sad" does not satisfy that criterion. Accordingly, the bonding study's conclusion that the children would be "sad" if parental rights were terminated does not compel a finding that the children would suffer "great harm" as a result of the termination.
Moreover, the juvenile court did not simply reject the bonding study as insufficient to meet mother's burden of proof. Rather, the court also contrasted the bonding study with the stipulated testimony of the two children. The parties stipulated that R.A. would testify that he wanted the prospective adoptive parents to be his mom and dad because "[t]hey are nice. They take us places. They let me do special things when I do good. They feed me healthy food, and they help me with my homework." R.A. said he would like his "mom to be his mom, but if she is not, it would make him a little sad." He said he would be okay if he lived with his mother, but he would be "very sad" if he could not live with the prospective adoptive parents. He wanted to continue visiting with his mother and sisters, but even if he saw them less or not at all, he still wanted to live with the prospective adoptive parents. The parties stipulated that P.A. would testify that he wanted to stay with the prospective adoptive parents and wanted them to be his parents because they "take us places. They are not drunk. They do not hit each other. They are very nice to me. They help me with my homework. They let us help cook dinner. [The prospective adoptive mother] reads me stories." He said that he wanted to see his mother and sisters and would be a little sad if he could not visit them, but he "would feel very bad" if he could not be with the prospective adoptive parents. The court described this testimony as "devastating" in terms of any possible conclusion that severing the parental relationship would cause significant detriment to either child. The court characterized it as a recognition by both children that they wanted a better life for themselves and a recognition that their life with their parents was one of "utter chaos."
Contrasted against the children's stipulated testimony, the bonding study falls far short of compelling the conclusion that terminating parental rights would cause significant detriment to either child. There was no other evidence that compelled such a conclusion. Accordingly, mother did not meet her factual burden. Because there was no showing that detriment sufficient to outweigh the benefits of adoption would result from termination of parental rights, the juvenile court did not abuse its discretion by finding the exception inapplicable based on the evidence before it. (Celine R., supra, 31 Cal.4th at p. 53.)
Mother also contends that the benefits of adoption do not outweigh the benefits of maintaining her bond with the children because guardianship would achieve the same goal as adoption, i.e., providing the children with a permanent home while at the same time preserving mother's bond with the children. The Legislature takes a different view, as discussed above, and we must consider the exceptions in light of the Legislature's expressed preference for adoption. (Celine R., supra, 31 Cal.4th at p. 53.)
The Sibling Relationship Exception
Section 366.26, subdivision (c)(1)(B)(v), provides 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, [(1)] whether the child was raised with a sibling in the same home, [(2)] whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and [(3)] 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." Under section 366.26, subdivision (c)(1)(B)(v), 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.) "If the court determines [that] 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." (Id. at p. 952.) The sibling bond exception is evaluated from the perspective of the child who is being considered for adoption, not the perspective of that child's siblings. (Celine R., supra, 31 Cal.4th at pp. 54-55.)
Both parents contend that substantial evidence does not support the juvenile court's finding that this exception does not apply. However, as stated above, in order to reverse on the basis of the sufficiency of the evidence, we must find that the evidence in support of the exception compels a finding that the exception does apply. (Bailey J., supra, 189 Cal.App.4th at p. 1314.) Here, neither the sibling bonding study admitted into evidence at the section 366.26 hearing nor the stipulated testimony of several of the children's siblings compels this result.
The sibling bonding study concluded that no detriment would be expected to result from interference with R.A.'s relationship with his sister R., or his relationship with his sister P., because he did not have a strong bond with either one. It concluded that P.A. did have a strong bond with his sister P. but did not have such a bond with R. The study concluded that it was more likely than not that P.A. and P. would suffer unspecified detriment "if they continued to live separately." As to R.A. and his sisters R. and P., and as to P.A. and his sister R., therefore, the sibling bonding study does not compel the conclusion that the exception applies. On the contrary, it supports only the conclusion that it does not apply. As to P.A. and P., the study also fails to compel the conclusion that the exception applies because it concludes that there would be detriment to P.A. if he and P. were unable to live together. There is no nexus between the siblings' inability to live together and the termination of parental rights. There is no basis in the record for concluding that if parental rights were not terminated and P.A. were placed in a guardianship or long-term foster care rather than adopted, he and P. would resume living together. Accordingly, it is not the termination of parental rights or the proposed adoption that would bring about the detriment.
The siblings' stipulated testimony also does not compel the conclusion that adoption would interfere with R.A. and P.A.'s sibling relationships, to their detriment. At the section 366.26 hearing, the parties stipulated that several of the siblings would testify as follows:
P. wanted to live with R.A. and P.A., or at least have visits with them, and she would be "very sad" if she could not do so.
A.S. was opposed to the adoption of R.A. and P.A. because it would devastate her family, and she would be "deeply saddened" not to see them and to be a part of a family with them.
B.S. understands that her brothers are happy, but she would not like it if they were adopted.
R. was afraid that if her brothers were adopted, she would not get to visit them anymore.
A.A. did not want her brothers adopted because even if the adoptive parents would let them visit with her, "they wouldn't be her brothers anymore."
The fact that the siblings would be sad if R.A. and P.A. were adopted does not compel a finding that either R.A. or P.A. would suffer detriment sufficient to outweigh the benefits either would obtain through adoption. (In re L.Y.L., supra, 101 Cal.App.4th at p. 952.) Accordingly, the siblings' testimony, either standing alone or in conjunction with the bonding study, is not sufficient to compel a finding that the exception applies. In the absence of such evidence, the juvenile court did not abuse its discretion by finding that the exception did not apply.
Because we are affirming the judgment, we need not address father's contention that if the judgment were reversed as to mother, it would necessarily have to be reversed as to him as well.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. SLOUGH
J.