Opinion
F043289.
10-15-2003
In re ANTHONY C. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JOSIE T., Defendant and Appellant.
Michael McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Phillip S. Cronin, County Counsel, and Howard K. Watkins, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Josie T. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her son, Anthony, and daughters, Alexis and Destiny. She contends the court abused its discretion by not finding termination would be detrimental to the children under alternative theories (& sect; 366.26, subds. (c)(1)(A) & (E)). On review, we disagree and will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In August 2001, the Fresno County Superior Court adjudged five-year-old Anthony, three-year-old Alexis, and two-year-old Destiny dependent children of the court and removed them from appellants custody. The preceding March respondent Fresno County Department of Children and Family Services ("the department") detained these three minors ("the children"), along with their older brothers who were 10 and 12 years old, based on reports of appellants abuse and neglect triggered by her drug abuse.
After more than 12 months of reunification services, appellant made sufficient progress that the court returned her two oldest sons to her care subject to family maintenance services. However, the court found that return of the children to their mothers care continued to pose a substantial risk of harm to them. There had been some problems when the mother had to supervise all five minors for just one hour during their weekly visits. The court consequently terminated reunification services for appellant, set a section 366.26 hearing to select and implement a permanent plan for them, and ordered a bonding study for appellant and the children.
Each of the children exhibited significant attachment and trauma-related issues requiring individualized weekly therapy. The youngest child, Destiny, and the mother were also participating together in attachment-based family therapy sessions once every other week. The mother was making slow but steady improvement in her relationship with Destiny.
The court-ordered bonding study revealed a relatively weak bond between appellant and the children. In particular, the relationship between appellant and Destiny reflected warmth and familiarity but approximated a relationship with an extended family member more than that of a mother/child relationship. The psychologist who conducted the study also noted that Destiny refused nurturance from appellant, a quality which was unusual in a child who is well bonded to a parent.
In anticipation of the section 366.26 hearing, the department prepared an assessment recommending that the court find the children adoptable and order parental rights terminated. Relevant to this appeal, the department reported visits between Destiny and appellant occurred weekly and were supervised. Destiny was also able to see her older brothers during the one-hour visits. She appeared to be growing more relaxed around them. Most recently, she had more interaction with them during their visit. Anthony and Alexis had not been attending the recent visits because they were acting out negatively after visitation and tended to demonstrate a lot of anger and defiance. For her part, appellant tried to engage Destiny into interacting with her but Destinys attention toward appellant was short-lived. She would turn around and focus on toys and her older brothers.
At the section 366.26 hearing, appellant testified in opposition to the departments adoption recommendation. She believed her children needed her and would be harmed if her rights were terminated. The minors counsel informed the court that the older brothers would like continued contact with the children but nonetheless agreed with the departments recommendation for adoption. Following argument on the matter, the court found the children adoptable and terminated parental rights, freeing them for adoption.
DISCUSSION
Appellant contends the court abused its discretion by not finding termination would be detrimental to Anthony, Alexis and Destiny on account of their relationships with their older brothers (§ 366.26, subd. (c)(1)(E)) and alternatively to Destiny because of her relationship with appellant (§ 366.26, subd. (c)(1)(A)). As discussed below, we find no merit in appellants contentions. The court properly exercised its discretion in rejecting her claims and terminating her parental rights.
Although section 366.26, subdivision (c)(1) acknowledges termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence but whether the juvenile court abused its discretion. (Id. at p. 1351.)
Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) A section 366.26 hearing is designed to protect childrens compelling rights to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. (In re Marilyn H., supra, 5 Cal.4th at p. 306.) If, as in this case, the children are likely to be adopted, adoption is the norm. Indeed, 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. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
A. Sibling Relationship Exception
Section 366.26, subdivision (c)(1)(E) provides an exception to termination of parental rights where termination would cause a substantial interference with a sibling relationship. (In re Erik P. (2002) 104 Cal.App.4th 395, 403.)
Section 366.26, subdivision (c)(1) provides in relevant part:
"If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21 or subdivision (b) of Section 366.22, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . A finding . . . under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights 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: [¶] . . . [¶]
"(E) There would be substantial interference with a childs 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 childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption."
"First a juvenile court must consider the nature and extent of the relationship, including, but not limited to, factors such as 1) whether the child was raised with a sibling in the same home, 2) whether the child shared significant common experiences, or 3) whether the child has existing close and strong bonds with a sibling. If the relationship exhibits some or all of these factors, the juvenile court must then go on to balance any benefit, emotional or otherwise, the child would obtain from ongoing contact with the sibling against the benefit of legal permanence the child would obtain through adoption. (§ 366.26, subd. (c)(1)(E).)" (In re Erik P., supra, 104 Cal.App.4th at p. 403.)
Appellant, having asserted this exception, had the burden of proof. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.)
Appellant relies on the fact that the children lived with their older brothers before their detention and thereafter shared weekly one-hour visits with one another. In her estimation, "this would obviously create a bond between them." Even accepting for the sake of argument appellants inference of an obvious bond, she failed to present any other evidence of the nature and extent of the childrens sibling relationship. Given this very meager record, the court did not abuse its discretion by rejecting appellants claim that termination would substantially interfere with the childrens sibling relationship.
She also claims the children wanted continued contact with their older brothers based on a remark made by minors counsel at the section 366.26 hearing. Having advised the court that the older boys did not object to the adoption but would like continued visits with the children, minors counsel added
" I dont feel its a conflict at this point to continue to represent all of the children primarily because the boys dont have a legal right to object to adoption but theyre in agreement with it."
According to appellant, counsels representation that there was no conflict of interest makes it clear that the children had the same point of view as their older brothers and wanted continued visitation, in essence a testament to a close and strong bond between the children and their older brothers. We strongly question the inference appellant draws from the remark quoted above. Counsels statement simply clarified there was no conflict of interest because the older brothers were in agreement with termination and adoption as a permanent plan for the children. In any event, we would remind appellant that on appeal all conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. We may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.)
Last, appellant claimed termination would interfere with the childrens relationship with their older brothers because the older boys were living with appellant thereby making visitation difficult and uncomfortable especially for the adoptive parents. At the least, we question appellants inference as speculative. More importantly, however, whether there could be future sibling contact if rights were terminated is not part of the test under section 366.26, subdivision (c)(1)(E). Indeed, as the state Supreme Court observed in In re Celine R., supra, 31 Cal.4th at page 440, if a court orders termination, it can encourage the adoptive parents in the appropriate case to agree to visits among the siblings, although it cannot compel visitation.
B. Continuing Parent-Child Relationship
Under section 366.26, subdivision (c)(1)(A), a court may decline to terminate parental rights if it finds a parent has maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.
"The existence of interaction between natural parent and child will always confer some incidental benefit to the child. Nevertheless, the exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575. . . .) A juvenile court must therefore: `balance[] the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. (Id. at p. 575.)" (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)
With these rules of law in mind, we have reviewed the record. With the exception of appellants own testimony which the court expressly found unpersuasive there was no evidence that Destiny would benefit from continued contact with appellant or, alternatively, would suffer any significant detriment if parental rights were terminated. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860 [issues of fact and credibility are matters for the trial court alone].)
DISPOSITION
The order terminating parental rights is affirmed.