Opinion
A163236
02-17-2022
In re K.T., a Person Coming Under the Juvenile Court Law. v. A.H., Defendant and Appellant. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(San Francisco County Super. Ct. No. JD20-3179)
DESAUTELS, J. [*]
A.H. (Mother), the mother of 15-year-old M.T. and two-year-old K.T., appeals from the juvenile court's order terminating her parental rights as to K.T. She contends the sibling relationship exception to the legislative preference for adoption requires reversal. The contention is unsupported by the record, so we affirm.
BACKGROUND
A.H. and her family came to the attention of the San Francisco Human Services Agency (Agency) in July 2020, after Mother arrived at the emergency room with K.T., M.T., and another child in tow. Mother, who was homeless and had a preexisting heart condition, was admitted with a myocardial infarction, and tested positive for methamphetamine.
I. Petition, Jurisdiction and Disposition
The Agency filed a dependency petition alleging K.T., then seven months old, was at risk of harm because Mother's heart condition and both parents' substance abuse impeded her ability to care for the child; the parents had a history of domestic violence; and the alleged father (Father) was incarcerated with a history of past convictions. Of Mother's nine children, four had been adopted, and three other siblings or half siblings were dependents in permanent placements. M.T. had been removed from Mother's care after testing positive for cocaine at birth and placed in a legal guardianship with her grandfather, but had moved in with Mother and Father in May or June 2020 after her grandfather died. M.T. and K.T. were detained and placed together in the same foster home.
A supplemental petition filed in M.T.'s dependency case after her guardian's death was pending when the Agency filed K.T.'s initial petition.
The Agency's report for the jurisdiction and disposition hearing initially set for September 3, 2020, reviewed the family's extensive history of substance abuse, domestic violence, mental health issues, and unstable living situations. K.T. and M.T. were very attached each other. When the children were first placed in foster care K.T. exhibited stranger anxiety and only wanted M.T. to care for him, but he had since come to trust the foster mother. The children were doing well, and the foster mother was doing a "wonderful job with both."
The Agency initially recommended that reunification services be bypassed for Father but offered to Mother despite her extensive child welfare history and failure to reunify with her other children. (See Welf. & Inst. Code, § 361.5, subd. (b)(10)(A).) Mother had "cared for [K.T.] his entire life and she reentered [M.T.]'s life over the past year, making a connection with her. She has been cooperative and has started engaging in services," was able to verbalize the changes she needed to make to be successful, and expressed a desire to make those changes.
Further statutory citations are to the Welfare and Institutions Code.
That hope was short-lived. Mother soon missed two visits in a row, stopped responding to the social worker's efforts to reach her, missed multiple drug tests, and tested positive for amphetamines twice and marijuana once. She was extremely emotional in an interaction with the social worker, "exhibit[ed] unstable emotional and mental health," was "angry, irrational, yelling and cursing," and seemed to lack a rational grasp of what was happening. Father remained incarcerated with no known release date. In an October 13, 2020 addendum report, the Agency recommended bypassing services for both parents.
On December 21, 2020, following a contested jurisdiction and disposition hearing, the court declared K.T. to be a dependent child; continued his foster placement; bypassed reunification services for both parents; and set a permanency planning hearing under section 366.26. The parents were advised of their right to file a writ petition but neither did so.
II. Permanency Planning
On March 17, 2021, the Agency filed a report recommending that K.T. and M.T. remain in their foster placement and parental rights be terminated with a permanent plan of adoption. The Agency requested a three-month continuance because the prospective adoptive mother (the foster mother) had recently been hospitalized. The foster mother had a loving relationship with the children, was determined to meet their needs, and wanted to adopt both of them. The children had developed an attachment to her. M.T. wanted to be adopted by the foster mother and maintain a postadoption relationship with Mother, which the foster mother supported. M.T. was also deeply attached to her younger brother and wished to remain in the same home with him. K.T. was too young to verbalize a preference, but "all reports and observation notes on file . . . reflect that he appears to have a secure relationship" with the foster mother.
Her daughter, who is also a licensed foster parent, stepped in to care for the children while her mother was hospitalized.
On April 8, 2021, Mother filed a section 388 petition requesting reunification services and a transition plan from weekly video visits to more frequent in-person visitation. In support, she alleged the children had an established relationship with her; that she was in a structured residential program for women and was compliant with services; and that she had obtained housing and a restraining order against Father, her "trigger" for relapsing into substance abuse, and planned to stay away from him. Mother had entered the residential treatment program in December 2020 and had recently moved into a three-bedroom apartment. She said she had been sober since learning she was pregnant with K.T., attributing her positive test for methamphetamine at K.T.'s birth to Father slipping the drug into her drink; she asserted that she had tested negative and remained sober since she entered the residential program. The court set the petition to be heard on June 11, 2021, the same date as the permanency planning hearing.
The Agency opposed Mother's requests. Its combined opposition and addendum report disclosed that Mother missed a scheduled visit with the children on April 7 and then lied to the social worker, stating she had a conflicting cardiology appointment. The social worker verified that the appointment did not in fact conflict; moreover, Mother had failed to attend it.
Mother missed two additional visits in May and June and failed to respond to at least a dozen texts or calls from the social worker. Mother said she had not received the communications because she "had not figured everything out" on her new phone, but the social worker ascertained that Mother's new phone was in fact displaying his incoming messages. Mother also told the social worker that she and Father did not have each other's phone numbers, but, despite the no-contact restraining order, Father's name and number were in her new phone. Mother's text messages revealed ongoing communication with Father and referred to his recently visiting her apartment. Nonetheless, Mother continued to lie that "none of this was happening and that she and the father are not talking to one another." Finally, Mother had apparently not been taking her psychotropic medication for at least two weeks.
M.T. suffered an emotional and mental health crisis, resulting in a suicide attempt in late May. She had been admitted to the emergency room after taking an unknown number of acetaminophen pills; on release she was transferred to an adolescent behavioral health program. The foster mother remained committed to M.T. and wanted her returned to the foster home. The Agency also supported M.T.'s continued placement with the foster mother but wanted to provide "some immediate supports in order to help keep [her] safe." It therefore requested a 90-day continuance to focus on returning M.T. to stability before proceeding to her permanency planning.
Even though M.T. had been returned to the foster mother's care in early June, the court and counsel agreed it was in M.T.'s best interest to delay her hearing until September. The Agency represented its recommendation would either be legal guardianship or adoption, "should [M.T.], who is 14, and actually, I think soon to be 15, be interested in that."
However, as to K.T., the Agency asked to proceed with the scheduled June 11 permanency planning hearing. Neither parent appeared, although notice was proper, and both parents were represented by counsel. At the hearing, Mother's counsel withdrew her request for reunification services. The social worker's reports were admitted into evidence. He testified about mother's missed visits as well as M.T.'s attachment to K.T. and desire to remain in the same home. The two children had lived together for most of K.T.'s life, and M.T. had "probably been the most consistent person" in his life.
Mother had previously missed another one or two visits between December 2020 and March 2021, also reportedly due to conflicting medical appointments.
The foster mother remained firmly committed to M.T. The social worker had discussed permanency options for both children with M.T.'s therapist, who expressed no concerns about the effect on K.T. if he was adopted but guardianship was ordered for his sister. The efforts the social worker had made to connect M.T. and K.T. with their other siblings would continue even if parental rights were terminated. The Agency had approved the foster mother's home for adoption and was satisfied that she could provide legally and financially for K.T.
The juvenile court rejected Mother's arguments that the beneficial parental relationship exception and/or the sibling relationship exception to the adoption preference should apply to K.T.; found he was adoptable; and terminated parental rights with a permanent plan of adoption. Mother filed this timely appeal.
DISCUSSION
Mother's sole contention here is that the juvenile court erred when it declined to apply the sibling relationship exception to the preference for adoption pursuant to section 366.26, subdivision (c)(1)(B)(v). We disagree.
At the June 11, 2021 permanency planning hearing, Mother's attorney also argued that the parental benefit exception applied. Here, on appeal, the sibling exception is the only issue before us.
I. The Legal Framework
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) After a minor is found to be adoptable, "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. The specified statutory circumstances-actually, exceptions to the general rule that the court must choose adoption where possible-'must be considered in view of the legislative preference for adoption when reunification efforts have failed.' [Citation.] At this stage of the dependency proceedings, 'it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home.' [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (In re Celine R. (2003) 31 Cal.4th 45, 53.)
One statutory exception to the legislative preference for adoption occurs when terminating parental rights would be detrimental to the child because "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).)
The application of this exception "will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.) As such, the party opposing adoption has a "heavy burden" in showing the sibling relationship exception applies. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) "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." (In re L.Y.L (2002) 101 Cal.App.4th 942, 952, fn. omitted.)
Moreover, "even 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., supra, 101 Cal.App.4th at pp. 952-953.)
We review challenges to the trial court's ultimate decision under the substantial evidence or abuse of discretion standards. "We will apply the substantial evidence standard of review to evaluate the evidentiary showing with respect to factual issues, such as whether the child has a close and strong bond with a sibling (for the sibling relationship exception). [Citations.] However, a challenge to the trial court's determination of questions such as whether, given the existence of a sibling relationship, there is a compelling reason for determining that termination of parental rights would be detrimental to the child' "is a quintessentially discretionary determination."' [Citation.] We review such decisions for abuse of discretion," applying a high degree of deference to the trial court's determinations. (In re J.S. (2017) 10 Cal.App.5th 1071, 1080; see In re L.Y.L., supra, 101 Cal.App.4th at pp. 952-953.)
Although addressed solely to the parental benefit exception rather than the sibling relationship exception, this court also takes note of the reasoning in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), which applies "in situations where a child cannot be in a parent's custody but where severing the child's relationship with the parent, even when balanced against the benefits of a new adoptive home, would be harmful for the child." (Id. at p. 630.) The Court in Caden C. expressly declined to address "what it means for termination to be detrimental due to any of the other listed exceptions," noting that those inquiries "may well differ depending on the particular exception at issue." (Id. at p. 634, italics omitted.)
II. Application
Notwithstanding Mother's contentions on appeal, the trial court record demonstrates the sibling relationship exception to the preference for adoption is notably inapt in this case. "[I]it is not a foregone conclusion that terminating parental rights will substantially interfere with a sibling relationship, and the juvenile court must make this factual determination." (In re D.O. (2016) 247 Cal.App.4th 166, 175.)
While no party questioned the importance of K.T.'s attachment to his older sister, there was no showing that terminating parental rights as to K.T. would cause "substantial," if any, interference with that relationship. (See § 366.26, subd. (c)(1)(B)(v).) Rather, every indication was that both children would remain together in the home of the foster mother, who had cared for them for almost a year and was firmly committed to keeping them permanently in her home. Whether through adoption or legal guardianship, the Agency expressed its goal to permanently place M.T. with K.T. in the foster mother's home. M.T. shared that desire, and all indications suggested that the court would terminate parental rights and place M.T. accordingly at M.T.'s subsequent hearing date. In short, there was simply no evidence presented that freeing K.T. for adoption by the foster mother three months before his sister's case proceeded to permanency planning would interfere with their sibling relationship.
This sibling exception differs from the parental exception, which does not include a "substantial interference" element and where "courts must assume that terminating parental rights terminates the relationship." (Caden C., supra, 11 Cal.5th at p. 633; § 366.26, subd. (c)(1)(B)(v).)
That is almost certainly what happened. By order of January 14, 2022, we granted judicial notice of the fact that on September 27, 2021, the juvenile court terminated parental rights as to M.T. with a permanent plan of adoption.
For that reason, it is unnecessary for us to weigh the benefits to K.T. from maintaining the sibling relationship against the benefits to his health, development, and security to be gained by adoption. (See In re L.Y.L., supra, 101 Cal.App.4th at pp. 952-953.) In any event, it appears all but certain that K.T. will benefit from both. Moreover, even in the unlikely event M.T. were ultimately placed in a different home, there is no evidence that any resulting interference with K.T.'s and M.T.'s relationship would outweigh the benefits of adoption into a stable and loving home. K.T. is two years old and too young to speak for himself, but he has lived with M.T. for fewer than 18 months. Their sibling relationship, while positive, is very much in its formative stages. Under the circumstances, Mother has not satisfied her "heavy burden" of showing the sibling relationship exception applies. (In re Daniel H., supra, 99 Cal.App.4th at p. 813.)
DISPOSITION
The order terminating parental rights is affirmed.
WE CONCUR: Pollak, P.J., Streeter. J.
[*] Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.