Opinion
A166905
09-29-2023
In re A.K., a Person Coming Under the Juvenile Court Law. v. N.M., Defendant and Appellant. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. JD02769702
BROWN, P.J.
Following this court's reversal of the juvenile court's order terminating the parental rights of N.M. (mother) as to her child, A.K. (the minor), at a hearing under Welfare and Institutions Code section 366.26, the juvenile court held another hearing and again terminated mother's parental rights. Mother appeals once more, arguing (1) the juvenile court should have granted her request for parent and sibling bonding studies, (2) the Alameda County Social Services Agency (agency) failed to establish by clear and convincing evidence that the minor would be adopted, (3) mother established the beneficial relationship exception to adoption, and (4) mother established the sibling relationship exception to adoption. We find no merit in mother's arguments and will affirm.
Subsequent undesignated statutory citations are to the Welfare and Institutions Code.
As the parties are already familiar with the factual and procedural history of the case and this opinion does not warrant publication, we need not recite the background in detail here. (People v. Garcia (2002) 97 Cal.App.4th 847, 851.)
I. Legal background
"At the section 366.26 hearing, the question before the court is decidedly not whether the parent may resume custody of the child. [Citations.] In fact, it is not permissible to order reunification at the section 366.26 hearing.
[Citations.] . . . [¶] Instead, the goal at the section 366.26 hearing is 'specifically . . . to select and implement a permanent plan for the child.'" (In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) If reunification services have been terminated and the juvenile court finds by clear and convincing evidence that the child is adoptable, "then the court shall terminate parental rights to allow for adoption." (Ibid.) "But if the parent shows that termination would be detrimental to the child for at least one specifically enumerated reason, the court should decline to terminate parental rights and select another permanent plan." (Id. at pp. 630-631.) "[W]hen a parent establishes that one of the exceptions applies, adoption or termination is not 'in the best interest of the child.'" (Id. at p. 631.)
Two of these exceptions are at issue here, the beneficial relationship and sibling relationship exceptions. A "parent asserting the parental benefit exception must show, by a preponderance of the evidence, three things. The parent must show regular visitation and contact with the child, taking into account the extent of visitation permitted. Moreover, the parent must show that the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship. And the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (Caden C., supra, 11 Cal.5th at p. 636.)
The sibling relationship exception, set forth at section 366.26, subdivision (c)(1)(B)(v), is similar to the beneficial relationship exception. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951.) "Reflecting the Legislature's preference for adoption when possible, the 'sibling relationship exception . . . only applies when the juvenile court determines that there is a "compelling reason" for concluding that the termination of parental rights would be "detrimental" to the child due to "substantial interference" with a sibling relationship.' [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption." (In re Celine R. (2003) 31 Cal.4th 45, 61.) A juvenile court assessing the significance of the sibling relationship must consider "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); In re L.Y.L., at p. 952 [applying former statute with different subdivision numbering]; Stats. 2007, ch. 565, § 4 [renumbering relevant subdivision without substantive change].)
II. Bonding Study
As we explained in our most recent decision in this case, a juvenile court may appoint an expert to study the strength and nature of the relationship between a minor and the minor's parents or siblings. (In re A.K. (Mar. 22, 2022, A162558) [nonpub. opn.]; Evid. Code, § 730; Cal. Juvenile Dependency Practice (Cont.Ed.Bar 2020) § 8.33.) Expert psychologists conducting these bonding studies will often be an important source of information about the psychological importance of the parental or sibling relationships for the child, especially when young, less articulate children are involved. (Caden C., supra, 11 Cal.5th at pp. 632-633 [beneficial parental relationship]; In re Jacob S. (2002) 104 Cal.App.4th 1011, 1018 [sibling relationship], disapproved of on other grounds by In re S.B. (2009) 46 Cal.4th 529.) Our Supreme Court recently stated that "[t]rial courts should seriously consider, where requested and appropriate, allowing for a bonding study or other relevant expert testimony." (Caden C., at p. 633, fn. 4.) However, as mother recognizes, it remains true that "[t]here is no requirement in statutory or case law that a court must secure a bonding study as a condition precedent" to terminating parental rights. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.) "The applicable standard of review is whether, under all the evidence viewed in a light most favorable to the juvenile court's action, the juvenile court could have reasonably refrained from ordering a bonding study." (Id. at p. 1341.)
The juvenile court explained that it denied mother's request for a bonding study because it did not find a study would be helpful for assessing the minor's relationship with mother or the child's siblings. The court stated that the four years of reports in the record constituted a thorough and extraordinary documentation of the minor's life and relationship with mother and his siblings. The court also recalled the testimony of the social worker and the minor's brother from the prior section 366.26 hearing.
The juvenile court did not err. The juvenile court was quite right that the voluminous record in this case contains numerous, detailed reports of the minor's relationship with mother and the siblings over the course of the minor's years-long dependency. The agency's report for the section 366.26 hearing contains over 15 pages of summaries of the visits that took place before the prior termination of mother's parental rights that we reversed. It also contained another six and a half pages describing the visits that occurred after the reversal of the prior termination. These reports, as well as the social worker's testimony at the most recent section 366.26 hearing and the reports and testimony over the preceding years, provided an ample basis on which to evaluate the minor's relationship with mother and the siblings.
Mother asserts the agency never asked the minor what he thought of adoption or whether he wanted to continue seeing mother or his siblings. However, in a section concerning the minor's statement about proposed guardianship and adoption, the agency reported the minor's statement that he wanted to reside with his caregivers. It would have been preferable if the agency had described whether it tried to explain the difference between guardianship and adoption, to demonstrate whether the minor's statement was all he could articulate or whether the agency only asked him about his placement. But even assuming a more detailed statement from the minor specifically about adoption and guardianship was required despite his young age, the lack of such a statement is not significant given the wealth of other evidence in the record concerning the minor's relationship with mother and his siblings. (In re Michael G. (2012) 203 Cal.App.4th 580, 591 [deficiencies in report were harmless in context of entire record].)
Mother also states that only the foster mother, not the minor, told the social worker that the minor did not want to visit his family. She compares this case to In re M.V. (2023) 87 Cal.App.5th 1155, 1174, 1182, which held that a juvenile court abused its discretion when it failed to order a supplemental bonding study after receiving a nonresponsive initial study. In re M.V. relied in part on the fact that the significance of the child's relationship with the parents was not clear from the record, since the record contained little information that had been obtained independent of the parents and potential caregiver, each of whom had a stake in the outcome. (Id. at pp. 1161, 1180.)
While mother is correct that some of the evidence in the reports came from the minor's foster mother who wanted to adopt him, some of the information in the reports came from mother and the bulk of the visit reports, especially for the visits later in the dependency, came from direct observations by social workers. Most recently, the agency supervised and reported on all of the visits after the prior appeal. A social worker observed in particular the minor's reluctance to get out of the car at visits, standoffish behavior towards mother, and desire to end the visits early, so the agency's conclusions about the minor's desire to visit, as well as his overall feelings about adoption and continued contact with mother and the siblings, did not rely exclusively or even primarily on the foster mother's assessment of his feelings.
Mother argues that without a bonding study, the minor's behavior on which the agency relied to conclude the minor did not have a significant positive emotional attachment to her is legally meaningless. She hypothesizes that the minor's nervousness and desire to have his foster mother accompany him when meeting the family in person again in July 2022 after more than a year apart was normal and could have come from having previously been bonded and then believing that the family abandoned him. Mother maintains that the minor had a positive relationship with mother and the siblings and enjoyed the visits. She challenges the agency's report that the minor was angry and overwhelmed during visits by noting that the minor had acted aggressively with peers and once hit his foster mother. Mother concludes that angry and overwhelmed behavior is normal for the minor.
A bonding study may be useful when conflicting inferences arising from the evidence are equally plausible, but that is not the case here. Mother admits that her betrayal theory is speculative, and there is little corroboration for any of her theories and a great deal of contrary evidence. When the minor saw mother and the siblings via video and mother in person before the July 2022 in person visit, he seemed emotionally detached and curious, not angry or betrayed. The minor viewed the siblings with curiosity and did not view them as his brothers or sister, calling them "the kids" and referring to his foster mother's children as his brothers. During one visit with the siblings, the minor told his sister, "Your mom went to the car," demonstrating the emotional distance he felt from both mother and his siblings. The minor enjoyed playing with mother and the siblings at some visits, but he had no difficulty ending the visits and never appeared to view mother and the siblings as anything more than playmates. The minor is also not normally angry.
Mother says the juvenile court put the cart before the horse when it considered the evidence of the minor's relationships before deciding whether a bonding study would be helpful. But the juvenile court had to consider the other evidence to determine whether a study was needed to clarify anything. This does not mean the juvenile court prejudged the merits of the beneficial or sibling relationship exceptions. (In re Eli B. (2022) 73 Cal.App.5th 1061, 1075, fn. 7 [juvenile court's oral comments cannot be used to impeach final order because court may change its ruling until the ruling is reduced to writing and becomes final].)
The agency noted that the minor behaved dramatically differently at home than he did during one visit at which he seemed angry. His difficulties at school appear to stem more from impulsivity and hyperactivity than an angry disposition. Given this state of the evidence, the juvenile court could reasonably decide that a bonding study was unnecessary.
III. Adoptability
As we explained in our prior opinion, "[a]t a section 366.26 hearing, '[t]he juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time.' (In re Carl R. (2005) 128 Cal.App.4th 1051, 1060.) 'The adoptability issue at a section 366.26 hearing focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt.' (In re A.A. (2008) 167 Cal.App.4th 1292, 1311.) 'The likelihood of adoptability may be satisfied by a showing that a child is generally adoptable, that is, independent of whether there is a prospective adoptive family"' "waiting in the wings." '" [Citation.] . . . [¶] 'On review, we determine whether the record contains substantial evidence from which the juvenile court could find clear and convincing evidence the child was likely to be adopted within a reasonable time.' (In re Michael G.[, supra,] 203 Cal.App.4th [at p.] 589; see Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011 ['When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true'].)" (In re A.K., supra, A162558.) "The appellate court does not reweigh the evidence, evaluate the credibility of witnesses or indulge in inferences contrary to the findings of the trial court. [Citations.] The substantial evidence standard of review is generally considered the most difficult standard of review to meet, as it should be, because it is not the function of the reviewing court to determine the facts." (In re Michael G., at p. 589.)
Mother first contends the juvenile court erred because the agency's most recent section 366.26 report did not comply with statutory requirements in various respects, arguing it lacked a statement from the minor about adoption, a description of the minor's contact with his extended family, a description of his relationships with his siblings, an evaluation of the foster mother as the minor's prospective adoptive parent, or an analysis of the minor's likelihood of being adopted if her parental rights were terminated. Mother did not object in the juvenile court to the sufficiency of the report, so mother forfeited this argument. (In re A.A., supra, 167 Cal.App.4th at p. 1317.)
Mother fails to demonstrate her counsel's failure to object below violated her statutory and constitutional rights to effective assistance of counsel. The record does not show that there was no satisfactory explanation for her counsel's failure to object. (In re Daniel H. (2002) 99 Cal.App.4th 804, 812 [constitutional right and statutory right under section 317.5 are substantially the same]; In re S.D. (2002) 99 Cal.App.4th 1068, 1077 [claim of ineffective assistance of counsel may be raised on appeal, rather than petition for writ of habeas corpus, in the rare case when" 'there simply could be no satisfactory explanation' for trial counsel's action or inaction"].) Deficiencies in a report go to the weight of the evidence and will only impair the basis of a court's decision to terminate parental rights if sufficiently egregious. (In re Crystal J. (1993) 12 Cal.App.4th 407, 413.) Mother's counsel could have rationally concluded that an objection would serve no purpose because of the wealth of detail in the record describing the minor, his physical and emotional health, and his interactions with mother. Moreover, the strength of the record here, as discussed post, makes the failure to object not prejudicial. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1668 [violation of statutory right to effective assistance of counsel requires proof of prejudice by Watson standard of a reasonable probability of a more favorable result].)
Mother separately argues substantial evidence does not support the juvenile court's adoptability finding. Contrary to the agency's argument, mother did not need to object below to preserve this challenge. Because the agency has the burden of proving adoptability, a party may always contest the sufficiency of evidence of adoptability on appeal. (In re A.A., supra, 167 Cal.App.4th at p. 1317.) However, this challenge fails on the merits because the record supports the juvenile court's adoptability finding.
At the hearing, the juvenile court stated simply that it found the minor adoptable, without specifying whether it relied on general adoptability, specific adoptability, or both. But the court said the agency's assessment, as described by the hearing testimony and the agency's reports, supported its finding. The testimony and reports both concluded the minor was generally adoptable, so it is reasonable to conclude that the juvenile court found the same.
The agency's most recent section 366.26 report is the most relevant. It described the minor as a happy, energetic, and affectionate child, all traits that would naturally endear him to any adoptive family. The report stated that the minor had not been diagnosed with any medical, developmental, or mental/emotional issues that would interfere or impede with his ability to be adopted.
The minor maintained diagnoses for moderate asthma, acid reflux, feeding difficulty, and premature pubarche. The asthma and acid reflux were well managed with medication. His elevated hormone levels related to his premature pubarche were decreasing over time and he had not been diagnosed with any genetic syndrome. The minor's feeding difficulties persisted but his health had significantly improved. He was maintaining adequate weight for his age and height, in part because his foster mother created games to encourage him to eat, such as by saying he should eat quickly like his favorite movie or video game character.
The minor enjoyed running, playing on play structures and slides, throwing balls, playing with toys, watching cartoons, and socializing with his caregivers and other adults. The minor had been able to function in a familial environment and was a wellloved member of the proposed adoptive parents' home.
Academically, the minor's school assessed him as needing an individualized education plan (IEP) and having a speech or language impairment because he had below average receptive and expressive language skills and difficulty focusing for extended periods of time. The school also noted that the minor's hyperactivity/impulsivity, executive functioning and language skills impacted his involvement and progress in the general curriculum. The minor's IEP proposed to address his difficulties with a mix of speech/language support and specialized instruction in and out of the classroom.
In short, according to the agency, the minor was physically healthy despite his medical conditions and exhibiting normal development with the assistance of services.
The social worker who testified at the hearing reiterated these points. The agency's most recent adoption assessment concluded the minor is adoptable. The social worker explained that its adoption assessment looked at the minor's physical health, his medical fragility, his development and behaviors, how he was doing in school, services he was receiving, his current caregivers, and visitation with his parents and relatives. His physical health had improved, and his conditions were no longer as intensive and did not present any challenges or hinderances to his adoption. Finally and most significantly, after discussing whether the minor's caregivers were willing and able to adopt him, the social worker stated unequivocally that if the minor's caregivers were not able to adopt the minor, the agency would still believe that he was adoptable.
This evidence constitutes more than sufficient evidence of the minor's general adoptability. While a social worker's opinion on its own may not be sufficient to support a finding of adoptability (In re Brian P. (2002) 99 Cal.App.4th 616, 624), the agency's report and the social worker's testimony provided considerable factual support for the agency's assessment, especially relating to the dramatic improvement in his medical condition that gave rise to the dependency. Given that "[t]he 'likely to be adopted' standard is a low threshold" (In re J.W. (2018) 26 Cal.App.5th 263, 267), the evidence of the minor's favorable disposition, improved medical condition, and proven track record of doing well with his foster family are substantial evidence supporting the juvenile court's ruling.
Mother emphasizes that the minor still needed to drink cans of nutritional supplement and sometimes took hours to eat a meal. Mother also highlights the minor's need for an IEP, impulsive behavior and difficulty following directions, and incidents of hitting other students and needing to be watched for other students' safety. Of course, under the substantial evidence standard, we must uphold the juvenile court's factual finding if substantial evidence supports it," 'even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.'" (Caden C., supra, 11 Cal.5th at p. 640.) Moreover, "[v]ery few children in the dependency system are without problems," and, as mother admits, [d]isability is not a bar to adoptability." (In re J.W., supra, 26 Cal.App.5th at pp. 265, 268.) The minor's behaviors and needs are challenges that a prospective adoptive parent would need to handle, but they are not so daunting as to make it unreasonable for the juvenile court to conclude that the minor cleared the "low threshold" of being likely to be adopted in a reasonable time. (In re J.W., supra, 26 Cal.App.5th at p. 267.)
Because the record supports the juvenile court's finding that the minor was generally adoptable, we need not address mother's specific adoptability argument that there was a legal impediment to the foster mother's ability to adopt the minor. We also cannot consider the parties' recent notice that the minor was removed from the care of his prospective adoptive foster mother because of physical abuse. Because the minor was generally adoptable and his adoptability did not depend entirely on his foster mother's willingness to adopt him, the elimination of the foster mother as a potential adoptive home does not undermine the foundation of the juvenile court's order or pose a substantial risk that the minor will become a legal orphan. (Cf. In re B.D. (2019) 35 Cal.App.5th 803, 816-818.) Accordingly, this is not one of the rare and compelling cases in which an appellate court may consider postjudgment evidence that was not before the juvenile court. (In re Zeth S. (2003) 31 Cal.4th 396,400.)
IV. Beneficial relationship
Mother next challenges the juvenile court's finding that she failed to establish that the beneficial relationship exception applied. As noted ante, to avoid the termination of her parental rights under the beneficial relationship exception, mother needed to show, by a preponderance of the evidence, (1) regular visitation and contact with the child, (2) that the minor had a substantial, positive, emotional attachment to her, and (3) that terminating the attachment would be detrimental to the minor even when balanced against the countervailing benefit of a new, adoptive home. (Caden C., supra, 11 Cal.5th at p. 636.) We review for substantial evidence a juvenile court's determination on the first and second elements. (Id. at pp. 639-640.) We likewise review for substantial evidence the factual determinations underlying the juvenile court's balancing of the detriment from the loss of the relationship against the benefits of placement in an adoptive home, but we review for abuse of discretion the ultimate decision of "whether termination of parental rights would be detrimental to the child due to the child's relationship with his parent." (Id. at p. 640.) These standards are essentially identical for practical purposes, however, since the hybrid standard of review "simply embodies the principle that '[t]he statutory scheme does not authorize a reviewing court to substitute its own judgment as to what is in the child's best interests for the trial court's determination in that regard, reached pursuant to the statutory scheme's comprehensive and controlling provisions.'" (Id. at p. 641.)
The agency contends mother did not argue in the juvenile court that the exception applied, suggesting that she forfeited this argument . However, mother moved for a bonding study to establish the exception and she signaled her intent to invoke the exception on her witness list filed in advance of the hearing. The agency elicited testimony from the social worker concerning the exception and, like the minor, argued against it. The juvenile court also addressed the exception and found it did not apply. In these circumstances, we deem the purposes of the forfeiture rule fulfilled and conclude mother did not forfeit the issue. (Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 548 [forfeiture rule exists to avoid unfairness to trial court and opposing litigants].)
The first element requires a court to consider "whether 'parents visit consistently,' taking into account 'the extent permitted by court orders.'" (Caden C., supra, 11 Cal.5th at p. 632.) At the section 366.26 hearing, the agency conceded and the juvenile court found that mother visited consistently, so she established this element.
On the second element, whether the child has a substantial positive attachment to the parent, a court considers "a slew of factors, such as '[t]he 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.'" (Caden C., supra, 11 Cal.5th at p. 632 .) Courts also often consider "how children feel about, interact with, look to, or talk about their parents," which is an inquiry that "properly focuses the inquiry on the child, even as courts must remain mindful that rarely do '[p]arent-child relationships' conform to an entirely consistent pattern." (Ibid.)
The juvenile court found the evidence did not demonstrate that the minor had a substantial, emotional, and positive relationship with mother. Substantial evidence supports this finding. As mother admits, the minor was six years old and had spent only a year in her custody, even shorter than the 17 months the juvenile court generously estimated. The minor's interactions with mother also had a neutral to negative impact on him. He seemed nervous and anxious before some of the most recent visits and either wanted to end the visits early or seemed happy to leave them. The minor appeared stressed and angry in several visits. After one visit, the minor looked like he would vomit and needed help relaxing to avoid it. The next day, he was cranky and tired, vomited his breakfast, and would not eat his lunch.
The minor's feelings about mother, interactions with her, and talk about her further support the juvenile court's ruling. (Caden C., supra, 11 Cal.5th at p. 632 .) The minor did not generally initiate interactions with mother and would instead run off and do what he wanted, leaving mother to follow after him. He did not seem sad when visits ended, did not ask to have visits last longer, and did not say goodbye unless prompted. Although he was generally very talkative, the minor did not reciprocate mother's physical displays of affection. He did not warmly receive her hugs or kisses, pulling away or wiping them off. When asked whether he wanted a hug or kiss, he said no. He offered a high five instead of a hug to mother at one of the visits. These behaviors were not the result of the cessation of visits during the prior appeal, as he acted similarly in earlier visits. The only difference was that he was better able to express himself in the most recent visits because he was older, and seemed less interested in playing and happier when visits ended. Finally, and perhaps most significantly, the minor did not view mother as his mother, since, as noted ante, he told one of his siblings at one point, "Your mom went to the car." We recognize Caden C.'s admonition that parent-child relationships rarely conform to a consistent pattern (ibid.), but the minor's behaviors during visits do not show that he would benefit from continuing his relationship with mother.
Because mother failed to establish the second element of the exception, we need not discuss in detail the evidence relevant to the third element, that the termination of the minor's relationship with her would be detrimental to him. (In re Katherine J. (2022) 75 Cal.App.5th 303, 322, fn. 10.) However, we will note briefly that the record supports the juvenile court's ruling on this element as well. The third element concerns "just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home." (Caden C., supra, 11 Cal.5th at p. 634.)
Even assuming that mother proved her relationship with the minor was beneficial to him, the juvenile court could reasonably conclude that the harm of terminating it would not outweigh the benefit of an adoptive home. At its best, before the first termination of mother's parental rights, the minor's relationship with mother was one of playmates, having fun with different activities and toys. This is not the type of relationship the exception is designed to protect. (In re J.D. (2021) 70 Cal.App.5th 833, 864-865.) The juvenile court therefore did not abuse its discretion in concluding the benefit of a permanent adoptive home far outweighed the harm from terminating such a relationship. (In re Katherine J., supra, 75 Cal.App.5th at pp. 321-322 [fun, playful interactions conferred only incidental benefit to child].)
Citing In re J.D., supra, 70 Cal.App.5th at pages 868-869, mother argues the agency could always have considered guardianship as an alternative to adoption and faults the agency and the court for relying on improper reasons to select adoption as the minor's permanent plan. In re J.D. remarked that guardianship was always an alternative to adoption because compelling facts should have suggested to the agency that the beneficial relationship exception potentially applied. (Ibid.) Because there are no such compelling facts here, the juvenile court did not err in selecting adoption as the minor's plan, regardless of what other reasons the agency may have had for favoring it.
Mother finds proof of the harm to the minor of terminating her parental rights in the minor's behavior after visits with her were suspended during the appeal from the first termination of her parental rights. Mother highlights in particular his aggressive behavior with peers at school, impulsivity, and difficulty following directions, as documented in his IEP. The minor was not in school before the prior termination of parental rights, so his behavior before and afterwards is not directly comparable. Besides, before the prior termination of mother's parental rights, the minor was receiving services for trauma-related symptoms of kicking, pushing, and throwing objects when separated from his foster mother. The minor's latest actions are thus more of a continuation than a departure from his prior behavior. To the extent his recent behavior is any worse, the juvenile court could have easily concluded it was a result of him getting older and being placed in more challenging environments. There is no indication that the minor was acting out because of the cessation of visits with mother.
V. Sibling relationship
In her final challenge, mother contends substantial evidence does not support the juvenile court's ruling that she failed to establish the sibling relationship exception. "[T]he 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.) An assessment of the significance of a sibling relationship turns on "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); In re L.Y.L., supra, 101 Cal.App.4th at p. 952.)" '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 D.O. (2016) 247 Cal.App.4th 166, 173-174, italics omitted.) "[W]e apply the substantial evidence standard to the juvenile court's underlying factual determinations, and the abuse of discretion standard to the court's weighing of competing interests." (Id. at p. 174.)
The juvenile court found the evidence did not show that any these factors supported the application of the sibling relationship exception, and we concur in the juvenile court's assessment. The minor spent only 12 months in mother's home with the siblings and did not live with them after he was about 18 months old. Given this history, it was virtually impossible for the minor to share with his siblings any common experiences that he would remember or form a significant bond with them, and the record shows he did not.
During the first visit after the prior appeal, a video visit, the minor was not aware he had birth siblings and referred to his foster mother's sons as his brothers. When mother brought them into the video, he looked at them curiously and did not say anything. When the minor saw the siblings at an in-person visit, he looked overwhelmed and did not want to get out of the car. Mother had to introduce them by name, and the minor just ran off to play, leaving the siblings to follow in his wake. The minor repeatedly referred to his siblings as "the kids" and at one point told his sister, "Your mom went to the car," indicating that he did not view the siblings as his relatives. The minor was not affectionate with the siblings and did not engage and ask them questions. These behaviors undermine mother's assertion that the minor has a close, strong bond with his siblings such that ongoing contact-rather than the permanency of adoption-is in his best interests.
Mother cites the siblings' visits with the minor earlier in the dependency, pointing in particular to the testimony of one of his brothers at the first section 366.26 hearing in which the brother described playing with the minor and the minor crying and stretching out his arms when the brother had to leave. The juvenile court remembered the brother's testimony as well, but that is not helpful to mother. At that hearing, the court questioned the brother's credibility and remarked that it seemed he had been coached in what to say. The minor did warm up to the siblings and play with them in the last visits, as mother notes. But given the other evidence of the minor's reluctance to engage and failure to treat the siblings as relatives, the juvenile court could reasonably construe the evidence mother cites as demonstrating only that a six-year-old boy would appreciate the attention of much older children chasing him around a playground.
Mother complains that the agency did not allow the siblings to attend enough visits earlier in this case prior to the initial termination of parental rights. She argues the juvenile court could therefore have assessed the minor's relationship with the siblings based on his interactions with them before the dependency arose or early in the dependency. (In re Valerie A., supra, 152 Cal.App.4th at pp. 1009-1010.) That approach still does not assist mother because the minor, due to his age when he was first removed from mother's home, never had a significant relationship with his siblings in the first place. In short, mother may be correct that the minor had as close a relationship with the siblings as could be expected under the circumstances of this dependency. But that does not mean the juvenile court abused its discretion in finding the benefit of permanent adoption outweighed the minor's interest in continuing his sibling relationships or that the minor's sibling relationships rise to the level necessary to make this one of the rare cases warranting application of the sibling relationship exception.
DISPOSITION
The juvenile court's order is affirmed.
I CONCUR: GOLDMAN, J.
STREETER, J., Dissenting
Based on some of the comments made by the trial court at the section 366.26 hearing - the court agreed with County Counsel's argument that our remand was a "set up," given the tight decision making timeline imposed by the statutory scheme - I am not convinced the court meaningfully engaged in the kind of assessment that our directive to reconsider the section 366.26 issues In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) required.
I find it particularly troubling that the trial court once again elected not to order a bonding study. The Supreme Court urged the use of such studies in Caden C., and we underscored that advice in our prior opinion. Nonetheless, on remand, the trial court decided to press ahead, apparently confident in its ability to evaluate the psychology of this six-year old without expert assistance. I think that was misguided.
For an older child who is able to articulate preferences and emotions clearly, there may be less need for a bonding study than there was here. But for a child this young, such a study was bound to add new perspectives that were not obvious. Layer on top of that the cultural issues that were in play - mother, an Afghan who speaks Dari, testified through an interpreter and often spoke to minor during visits in Dari - and I do not think the denial of mother's renewed request for a bonding study was a reasonable exercise of discretion.
There is also the fact that, although the trial court was unaware of this at the section 366.26 hearing, the minor was suffering physical abuse at the hands of his foster family and has now been removed from that placement. At the time of the section 366.26 hearing, what the court knew about this now failed placement was that the minor had adjusted well to it and that his foster parents had expressed a willingness to adopt him. Now he may be at risk of becoming a legal orphan.
The majority is unwilling to take the circumstances of the minor's removal from his former foster family into account under the rule of Zeth S. But County Counsel, who advises us that the minor has now been placed in foster care with a maternal greatuncle and a maternal great-aunt, acknowledges that we may consider the changed foster placement in determining whether we can grant effective relief.
On this record, I think it is pointless, even detrimental to the minor, to affirm a parental rights termination decision that was made on a state of facts that we now know was false on a highly material issue. Whether the issue is adoptability, step two under Caden C. (the existence of a bond), or step three under Caden C. (weighing the detriment of severance versus the benefit of permanence), I see no reason why the termination decision that has been made ought to remain in place. This decision is too thoroughly interconnected with other issues that must now be revisited for it to stand.
Although the case is now in a very different posture than it was in when the court made its section 366.26 ruling, there is effective relief that we can still grant: We should hold that the failure to order a bonding study was an abuse of discretion and vacate the termination decision on that ground. If we leave the decision in place, it will remain binding as law of the case and will undermine the accuracy of the decision making that must take place in the case going forward, now that a permanent placement for the minor is once again up in the air.