Opinion
D061034 Super. Ct. No. EJ3002A
05-11-2012
In re D.S., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed.
M.C. appeals a juvenile court judgment terminating her parental rights over her daughter, D.M., and selecting adoption as the preferred permanent plan. (Welf. & Inst. Code, § 366.26.) M.C. challenges the sufficiency of the evidence to support the court's findings that the beneficial parent-child relationship and sibling relationship exceptions to the adoption preference are inapplicable. (§ 366.26, subd. (c)(1)(B)(i) & (v).) We affirm the judgment.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
To avoid repetition, we address the specific facts pertaining to the beneficial parent-child relationship and sibling relationship exceptions below in our discussion section.
In August 2008, the San Diego County Health and Human Services Agency (the Agency) removed D.S., then seven years of age, and her brother, Devon S., then six years of age, from the custody of M.C. and their father, Milton S. Devon had complained consistently to a social worker that Milton "put a stick up his butt, causing him pain and bleeding." D.S. is developmentally delayed and has been diagnosed with autism spectrum. D.S. had complained to the maternal grandmother of pain in her vaginal area, and said, "Daddy put a hole down there."
M.C. did not believe Milton sexually abused either child, and she was unwilling to have him move out of the home. In September 2008, the Agency filed a petition on Devon's behalf under section 300, subdivision (d), and a petition on D.S.'s behalf under section 300, subdivision (j), based on alleged sexual abuse of Devon.
At the contested adjudication and disposition hearing held in February 2009, the court made a true finding and sustained the petition. In its report for the hearing, the Agency noted it had repeatedly tried to contact the parents, but they were out of touch. To the Agency's knowledge, they were not participating in reunification services other than supervised visitation once or twice a week.
In a previous appeal, the parents challenged the sufficiency of the evidence to support the court's true finding on the sexual abuse allegations pertaining to Devon, and M.C.'s unwillingness or inability to protect D.S. from harm. (In re Devon S. (Sept. 30, 2009, D054562) [nonpub. opn.].) Given the procedural posture of this appeal, we need not repeat the facts of the earlier appeal.
When these proceedings began, the parents were unmarried. In May 2009, however, they married. That month the children were placed with the maternal great- grandmother, Ruth A.
The contested six-month review hearing was held in September 2009. The parents were participating in some services and had consistently visited the children. Milton, however, had been discharged from therapy "due to his refusal to take any responsibility for his actions . . . ." He was not "accepted for services at the sexual abuse offenders group because he denies that he engaged in any sexual abuse." Further, despite "16 weeks in [a] sexual abuse [nonoffending] parents group, the mother still [made] excuses why her son has consistently stated his father put a stick up his butt." M.C. continued to believe the abuse allegations were untrue, and did not "accept responsibility for not protecting her children from abuse." The court ordered continued services, and authorized M.C.'s unsupervised visits at Ruth's home with another adult present.
The 12-month review hearing was held in January 2010. The Agency recommended the termination of reunification services. The parents continued to deny any sexual abuse occurred. They still lived together and M.C. refused to have Milton leave home or discontinue her relationship with him. M.C. had threatened the social worker with physical harm. The court terminated reunification services and scheduled a permanency planning hearing under section 366.26. The court continued the children's placement with Ruth.
In February 2010, however, the Agency placed the children in a foster home because Ruth had allowed Milton to have unsupervised visitation, Devon was struggling with sexual reactive behavior and Ruth failed to ensure he received therapy. The Agency filed a supplemental petition for D.S under section 387 and, in April, the court made a true finding and continued the children in foster care.
Milton appealed the judgment and we affirmed it. (In re D.S. (Oct. 20, 2010, D057239) [nonpub. opn.].)
The Agency's April 2010 assessment report states both parents continued to deny any sexual abuse occurred, and M.C. remained with Milton. The parents "continue[d] to tell Devon that the abuse never happened and that he needs to tell the truth to the Judge or that he'll go to jail." Devon reported that Ruth had threatened him with jail if he continued to report sexual abuse, and Ruth and Milton blamed him for his and D.S.'s removal from the home.
The Agency assessed both D.S. and Devon as adoptable despite their sexual abuse backgrounds and her delays. The Agency, however, noted they would be difficult to place. In an addendum report, the Agency recommended permanent plans of guardianship for both children in their current foster home, with their foster mother T.T. The family had not ruled out adoption, but was only willing to enter into a guardianship until the children stabilized.
At an August 2010 hearing, the parents withdrew their request for a contested section 366.26 hearing. The court found D.S. adoptable, but ordered a permanent plan of guardianship. It allowed M.C. supervised visitation, but discontinued visitation for Milton based on its deleterious effect on D.S.
A second section 366.26 hearing was held in October 2011, and M.C. contested the matter. D.S.'s foster family now wanted to adopt her, and the Agency recommended adoption as the new permanent plan. M.C. testified she now believed sexual abuse had
occurred. She had filed for legal separation from Milton in August. The court found by clear and convincing evidence that D.S. is adoptable and none of the statutory exceptions to adoption is applicable. It terminated parental rights and found adoption is in her best interests.
In 2009, M.C. admitted she lied to two therapists when she said Milton had moved out of the home.
For Devon, the Agency recommended another Planned Permanent Living Arrangement. T.T. had given notice she could no longer provide for Devon's special needs because of his "continued sexualized behaviors." The Agency found it no longer proper to place the children together. The court adopted the recommendation.
DISCUSSION
I
Beneficial Parent-Child Relationship Exception
M.C. challenges the sufficiency of the evidence to support the juvenile court's finding the beneficial parent-child relationship to the adoption preference is inapplicable. "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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).)
Adoption is the Legislature's preferred permanent plan. (Autumn H., supra, 27 Cal.App.4th at p. 573.) At a section 366.26 hearing, the court must terminate parental rights and free the child for adoption if it determines by clear and convincing evidence the child is adoptable within a reasonable time, and the parents have not shown that termination of parental rights would be detrimental to the child under any of the statutory exceptions to adoption found in 366.26, subdivision (c)(1)(B)(i) through (vi). (In re Asia L. (2003) 107 Cal.App.4th 498, 510.) The beneficial parent-child relationship exception applies if termination of parental rights would be detrimental to the child because the "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).)
Substantial evidence supports the court's finding M.C. did not satisfy the first prong of the test. M.C.'s visitation was consistent until August 2010 when the court ordered a guardianship for D.S. In the following year, however, she visited her daughter only four or five times. The Agency reported that M.C. "will go months without a single visit or asking for a visit," and M.C. testified that was true. She spoke with the guardians on the phone without asking for a visit, even though visitation was at their discretion and they imposed no limitation. M.C. told the guardians she did not want to visit until she had the money to take D.S. somewhere fun like Chuck E. Cheese's.
The court rejected M.C.'s claim that the guardians interfered with her visitation. The court determined "steady visitation was available to mother," but she did not avail herself of it. We agree with the court's assessment that visitation roughly every two months during the year preceding the final section 366.26 hearing is not "regular visitation" within the meaning of the statute.
M.C. attempts to attribute her lack of visitation to the court's supposed reduction of visitation to once a month when it ordered the guardianship at the first section 366.26 hearing on August 9, 2010. The court's minute order states M.C. was "to have reasonable visitation with the time, place, manner, frequency, and length of visitation to be determined by the guardian(s) in the best interest of the child." The social worker wrote in a June 2011 report that sometime before the guardianship was ordered, she decreased visitation to once a month because of the deleterious effect biweekly visitation had on D.S. At any rate, M.C.'s point is not well-taken since she did not even exercise monthly visitation.
While the above discussion is dispositive, we briefly address the second prong of the test. The evidence amply supports the court's ruling, and indeed, M.C.'s challenge borders on the frivolous. To show a beneficial parent-child relationship, a parent must show more than frequent and loving contact or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interactions, companionship and shared experiences." (Autumn H., supra, 27 Cal.App.4th at p. 575; see also In re Casey D. (1999) 70 Cal.App.4th 38, 51 [we clarified that given the limitations of visitation, day-to-day contact is not necessarily required].) 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." (In re Casey D., at p. 50.)
M.C. asserts she and D.S. are strongly bonded. M.C., however, conceded she lacked a significant bond with D.S. The following exchange took place during her direct testimony at the October 2011 section 366.26 hearing:
"Q. Do you feel that you have a strong bond with [D.S.]?The following exchange took place during cross-examination:
"A. No, I don't. My bond is not as strong as I would like it to be."
"Q. And you said that you wish that you would have a stronger bond with [D.S.].
"A. Yes.
"Q. How long has it been since she's lived with you?
"A. Since 2008.
Q. And has it been since then that you have been unable to develop a bond?
"A. Yes."
As would be expected, the court determined that "mother does not as of today have a parent-child bond with [D.S.]" M.C. testified she wanted a continuing relationship with D.S. because, "I need to bond with her. I need more bonding with her, and I need to know . . . how to work with her more by being austic [sic]. I am learning more about autism and work with her." (Italics added.) The court pointed out that its evaluation turned on what was in D.C.'s best interests.
Moreover, the evidence shows D.S. and her guardians are bonded. The court observed, "[D.S.] very much wants to be in a permanent plan in this home. She considers her current caregivers her parents. She would like permanency." The court also noted that D.S. had "progressed greatly" in her home, and, "I am impressed [by] seeing the caregiver on the stand and observing her demeanor that she loves the child like she's her own. [¶] She had exuded more motherly pride [in D.S.'s] accomplishments in the last year than I have seen in this court in a long time."
The proper choice in this case was readily apparent. The stability and permanence of adoption far outweigh a continuing parent-child relationship in which the bond was minimal by the time of the section 366.26 hearing. M.C. dwells on a closer relationship that may have existed in the past.
II
Sibling Relationship Exception
M.C. also challenges the sufficiency of the evidence to support the court's finding the sibling relationship exception to the adoption preference is inapplicable. The section 366.26, subdivision (c)(1)(B)(v) exception 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."
In In re L.Y.L. (2002) 101 Cal.App.4th 942, 952 this court held: "To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship." To determine the significance of the sibling relationship, we consider the factors set forth in section 336.26, subdivision (c)(1)(B)(v). "[E]ven if a sibling relationship exists that is so strong that its severance would cause the child detriment, the court then weighs the benefit to the child of continuing the sibling relationship against the benefit to the child adoption would provide." (In re L.Y.L., at pp. 952-953.)
Here, the social worker and the court recognized a bond between the children. The Agency concedes "it is reasonable to conclude they shared significant common experiences and a strong bond."
As to potential detriment, the social worker testified that D.S.'s guardians and Devon's caretakers had become friends, and both families intended to foster sibling visitation. The social worker explained, however, that any possible lack of visitation would not affect her recommendation. She explained that D.S. "is fine in a stable and loving home. She would be upset that she may not be able to see Devon. It wouldn't outweigh the benefits of her being able to stay in her home." Further, Devon had exhibited sexualized behavior toward D.S. She disclosed to a teacher that more than once Devon pulled her pants down and "placed things in her bottom, such as a pencil or crayon." Her therapist reported that D.S. "continues to disclose that both her brother and her birth father had touched her in her private areas." When Devon was placed with her at her guardians' home, she became withdrawn, had an increase in bed-wetting and a lack of appetite. While, as M.C. points out, Devon's conduct does not rule out the continuance of a sibling relationship, the court properly considered it in determining any detriment to D.S. As the court found, future visitation "would have to be in a supervised, carefully controlled setting."
The court determined that while D.S. may be sad without visitation, she "has clearly proved herself to be resilient when . . . her situation has changed." The court found to a "very extraordinary degree" that adoption outweighed the benefit of ensured visitation with Devon and the potential of "lifelong court supervision." Again, substantial evidence supports the court's ruling. The court could reasonably find a lack of detriment, and in any event, that the permanence and stability of adoption into a home D.S. longed for outweighed continued sibling visitation.
M.C. cites no evidence to support her assertion "that maintenance of the sibling relationship is vital to [D.S.'s] long-term emotional well-being." M.C. cites evidence of the children's bond, but that, in and of itself, does not establish detriment or that continuance of the sibling relationship outweighs the benefits of adoption. We disagree with M.C.'s assertion the court should have found D.S. is just as well off in a guardianship. "Unlike adoption, other permanency options are not equivalent to the security of a permanent home." (In re Dakota H. (2005) 132 Cal.App.4th 212, 231.) " 'A guardianship is "not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature." [Citation.]' " (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1156.)
We need not address or distinguish the several opinions on which M.C. relies, because our holdings are based strictly on the sufficiency of the particular evidence in this case.
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DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR: McDONALD, J. IRION, J.