Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Los Angeles County Superior Court. No. CK60243, D. Zeke Zeidler, Judge. Affirmed.
Leslie A. Barry, under appointment by the Court of Appeal, for Appellant E.R.
Daniel G. Rooney, under appointment by the Court of Appeal, for Appellant W.P.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Senior Associate County Counsel, for Respondent.
BIGELOW, J.
The consolidated appeals before us today involve mother’s challenges to orders of the dependency court terminating her parental rights over her three children, and father’s challenges to orders of the dependency court terminating his parental rights over one of the three children. We affirm the dependency court’s orders.
FACTS
The Family Lines
E.R. is the mother of A.R., born in December 1996. The whereabouts of A.R.’s alleged father is unknown, and he is not involved in this appeal.
E.R. and, father, W.P., are the parents of M.R., born in January 2003. Father has been incarcerated in state prison since at least 2005; he is scheduled for release in June 2012.
E.R. and R.H., deceased, are the parents of R.H., Jr., born in July 2005.
The Dependency Proceedings
On August 9, 2005, mother and R.H. became involved in a physical altercation which ended with mother stabbing and killing R.H. Police arrested mother at the scene, and A.R., M.R., and R.H., Jr., who had been present in the home during the killing, were taken into protective custody. Mother was later convicted of the voluntary manslaughter of R.H., and sentenced to the state prison women’s facility in Chowchilla.
On August 12, 2005, the Department of Children and Family Services (DCFS) filed a petition (Welf. & Inst. Code, § 300) on behalf of the three children. The petition alleged that mother had been arrested for R.H.’s murder, that mother’s conduct posed a danger to her children’s health and safety, and that mother’s incarceration rendered her incapable of supervising or protecting her children. (Id., subds. (a) & (b).) On the same day, the dependency court ordered A.R., M.R. and R.H., Jr., to be detained, and, in September 2005, all three children were placed together in a foster home. On October 21, 2005, the dependency court entered jurisdictional and dispositional orders, including a case plan providing for reunification services for mother, but not for father. In February 2006, all three children were placed with L.R.J., a maternal relative.
All further section references are to the Welfare and Institutions Code.
On November 20, 2006, the dependency court found that reasonable reunification services had been provided to mother, that mother was in partial compliance with her case plan, and that there was no likelihood that her children could be returned to her custody by the upcoming 18-month review date. The court entered orders terminating mother’s reunification services, and set the case for a permanent plan selection and implementation hearing in April 2007.
In December 2006, DCFS reported to the dependency court that L.R.J. suffered from a serious medical condition, and that her husband had indicated that he needed to take care of her, and that he would not be able to care both for her and the three children. In January 2007, DCFS recommended that it was in the children’s best interest to find another placement. At the same time, DCFS filed written information regarding a Child Safety Conference held earlier that month during which L.R.J.’s twin sister, L.V.J., had advised DCFS that she and her husband would consider adopting all three children. Another report indicated that the children were living with L.V.J. and her husband in Anaheim. Meanwhile, DCFS also continued investigating other options, including an Interstate Compact for the Placement of Children with a paternal aunt in Florida.
In May 2007, DCFS reported that all three children were thriving in the home of L.V.J. and her husband. The children’s paternal aunt also was interested in caring for the children, but had not yet come out to visit them. According to L.V.J., the children had telephone contact with mother –– who remained incarcerated in prison –– once a week, and had exchanged letters with mother.
In September 2007, DCFS submitted a report which indicated the children had “enjoyed their summer by going to theme parks and spending time together as a family [with L.V.J. and her husband].” The children had “developed a healthy attachment to the family and appear[ed] very bonded.” They had not had any physical contact with mother during the reporting period because she remained in state prison.
In March 2008, DCFS reported that L.V.J. and her husband had advised the case social worker that they were no longer interested in a legal guardianship or adoption, and that a Team Decision Making meeting had been held, where L.V.J.’s aunt, P.H., stated she was interested in adopting all three of the children. P.H. and the children knew each other, and had visited regularly. DCFS had begun an evaluation of P.H.’s home. The children were moved to P.H.’s home in June 2008.
In July 2008, DCFS reported that mother was still incarcerated, and the children had not had any physical contact with her, and that the children “continued to adjust” in P.H.’s home. The dependency court continued the matter to October 2008 in order to allow DCFS time to assess P.H. for adoption. In October, the court continued the section 366.26 hearing to November.
On November 14, 2008, the date set for the section 366.26 hearing, mother filed a section 388 petition asking the dependency court to reinstate family reunification services for her and all three of her children. The court set mother’s petition for hearing on January 15, 2009, and continued the section 366.26 hearing to the same date. Mother was released from prison on January 14, 2009.
On January 15, 2009, DCFS submitted a report on mother’s 388 petition. DCFS recommended that the dependency court not modify its prior orders because it was not in the children’s best interest to return them to mother’s custody. A.R. and M.R. had both expressed to DCFS that they did not want to return home with mother. A.R. had refused any contact with mother, and had stated that she was not ready to reconcile with mother. The children were concerned about their stability and also had stated they did not want to visit the maternal grandmother because of the negative things she said to them. The children had a healthy attachment to P.H., and the adoption home study had been approved.
At the section 366.26 hearing on January 15, 2009, the children’s attorney agreed with DCFS’s recommendations. The court read and considered the section 388 petition, and heard argument from all counsel. The court denied the petition without prejudice to the filing of a further petition, and continued the section 366.26 hearing to March 2009.
At the time of the section 366.26 hearing on March 10, 2009, A.R. testified about her understanding and feelings on being adopted by P.H. A.R.’s testimony is more fully discussed below. Father also addressed the court without taking the stand, and without taking an oath, and objected to placing M.R. with someone who was not a member of his family.
Mother’s counsel argued that it was unclear what A.R. was thinking in terms of adoption, but that she wanted to see her mother. Although mother’s counsel conceded that visits could “theoretically” occur with adoption, she argued that the preferable result would be application of the “beneficial relationship” exception to adoption under section 366.26, subdivision (c)(1)(B)(i). Both mother and father objected to termination of their parental rights.
The children’s counsel argued that A.R. understood adoption, and had stated she wanted to be adopted. The exception to adoption for a child’s objection (see § 366.26, subd. (c)(1)(B)(ii)), did not apply, argued the children’s counsel, because A.R. had not objected. The court found that A.R. understood the meaning of adoption, and that she had clearly stated she was “okay” with being adopted, and that she did not want “there to ever be a chance of her going back.” The court additionally found that the parents had not had regular and consistent visits, and therefore, had not fulfilled a parental role. The court found by clear and convincing evidence that return to the parents would be detrimental, that the children were adoptable, and terminated parental rights.
DISCUSSION
I. Mother’s Appeal
A. The Dependency Court’s Decision to Free A.R. for Adoption Was Proper
Mother contends the dependency court’s orders terminating her parental rights over her three children –– A.R., M.R. and R.H., Jr., –– must be reversed because (1) A.R. objected to being adopted by P.H. as her permanent plan, and because (2) A.R., M.R., and R.H., Jr., are a “bonded sibling group,” meaning that, if A.R. is not freed for adoption, then M.R. and R.H., Jr., should not be adopted either. In short, mother argues all three of her children should be kept together, unadopted. We find no ground for reversing the dependency court’s orders.
1. A.R.’s Testimony
Mother’s contention that A.R. objected to adoption is not supported by the record. Conversely, substantial evidence supports the dependency court’s conclusion that A.R. did not object to adoption. This was A.R.’s testimony at the section 366.26 hearing:
“THE COURT: [A.R., do] you know why we’re here today?
“[A.R.]: Because this is the big day where we decide if I go home or could I get adopted.
“THE COURT: Okay. If you go with [P.H.], what does that mean?
“[A.R.]: I am getting adopted.
“THE COURT: Okay. [¶] What does adoption mean?
“[A.R.]: Adoption means when your parents don’t have their rights to get you back and the person who is going to adopt you changes your name and you can never go back with your parents.
“THE COURT: Once you’re adopted, who is your parent?
“[A.R.]: The parent who adopts you.
“THE COURT: Okay. [¶] Ever seen your birth certificate before?
“[A.R.]: Yes. My name is spelled wrong.
“THE COURT: I love this spelling on the birth certificate, but I also like the way you spell it. [¶] Is this your birth certificate right here?
“[A.R.]: Yes, that is.
“THE COURT: You understand that if you’re adopted you’re going to get a new birth certificate instead of right here, instead of saying [E.R.] as your mom, it’s going to have your new mom’s name; you understand that?
“[A.R.]: Yes.
“THE COURT: Okay. [¶] How do you feel about being adopted?
“[A.R.]: I feel fine with it, but it’s just that I would like to see my mom still.
“THE COURT: [Counsel for the children].
“[CHILDREN’S COUNSEL]: I have nothing.
“THE COURT: [Counsel for mother].
“[MOTHER’S COUNSEL]:... [A.R.,] I really just do have one question and to try and understand your last answer, do you oppose being adopted by [P.H.]? [¶]... [¶]
“THE COURT: You understand oppose? Are you against being adopted... ?
“[A.R.]: No.
“THE COURT: Okay. I will ask you another question, if — you said you want to be adopted, you’re okay — you said you’re okay with it, but you want to keep seeing your mom. If getting adopted meant that you were never going to see your mom again, would you say okay to being adopted? [¶] Let me clarify, if it means you were not going to see her again until you were the one who got to make decisions, until you were 18, 19, 20 years old, would you still be okay with it?
“[A.R.]: Kind of.
“THE COURT: What do you mean by that?
“[A.R.]: Means that — really it means that I really do want to see her, but I just don’t want to live with her because I am afraid that she is not going to have a stable home like I was when I was growing up.”
2. Analysis
The testimony given by A.R. does not show that she objected to being adopted by P.H. A.R.’s testimony constitutes substantial evidence supporting the dependency court’s findings that A.R. understood the meaning of adoption, and the ramifications of adoption, and that she did not object to adoption. The trial court properly explored A.R.’s feelings about adoption. (In re Amanda D. (1997) 55 Cal.App.4th 813, 820.) Conversely, A.R.’s testimony does not support –– as a matter of law –– the lone conclusion that she objected to adoption.
Mother’s argument that her case is different from In re Christopher L. (2006) 143 Cal.App.4th 1326 (Christopher L.), in which Division One of the Fourth District Court of Appeal found a child had not “unequivocally objected” to adoption, is not persuasive. In Christopher L., the dependent child testified as follows:
“Q: ‘If you could stay living with your aunt and uncle but your mom could stay your legal mom, would you want that?’
“A: ‘Don’t matter.’
“Q: ‘Okay. What do you mean by it wouldn’t matter?’
“A. ‘I would just prefer being adopted.’
“Q. ‘Okay. Would you want to be adopted if it meant that if there was a chance you couldn’t ever see your mom again?’
“A. ‘No, because I would like to see my mom again.’
“Q. ‘Did the social worker tell you that if you were adopted there is a chance that you might never see your mom again?’
“A. ‘No.’
“Q. ‘Would you want to be adopted if you couldn’t see your mom again?’
“A. ‘No.’
“On cross-examination, Christopher was asked whether he would be happy or sad if the court ordered he be adopted by his aunt and uncle. Christopher answered he would be happy and he was ‘okay’ with the prospect of living in the custody of his relative caregivers until he was an adult. He expressed that he felt safe and comfortable in their care.” (Christopher L., supra, 143 Cal.App.4th at p. 1332.)
In addressing whether the child’s testimony constituted an objection to adoption, the Court of Appeal noted that each of the child’s answers should not be considered in a “vacuum,” and that its review of the dependency court’s conclusions was “deferential.” (Christopher L., supra, 143 Cal.App.4th at p. 1335, citing In re Basilio T. (1992) 4 Cal.App.4th 155, 168.) The court then ruled that the child’s expressed wishes to continue seeing his mother did not conflict with finding that he favored adoption, and did not undermine his wish to be adopted. In the end, concluded the Court of Appeal, the dependency court’s determination of the child’s state of mind with respect to adoption –– i.e., that he wanted to be adopted and did not object to adoption –– was supported by the evidence. (Ibid.)
We see no meaningful or legal distinction between A.R.’s testimony in the current case, and the child’s testimony in Christopher L. If anything, the facts of this case more strongly support a finding that A.R. did not object to adoption. Here, A.R. never said she did not want to be adopted if it meant she would not see her mother again. Instead, she only said she would be “kind of” okay with adoption if she never saw her mother again. The dependency court’s conclusion that A.R. favored adoption is supported by A.R.’s testimony, and we may not substitute our own assessment of A.R.’s state of mind in place of the dependency court’s assessment.
B. The Dependency Court Properly Decided to Free M.R. and R.H., Jr., for Adoption
Mother contends the dependency court should not have freed M.R. and R.H., Jr., for adoption because A.R. should not have been freed for adoption. Mother’s argument fails for two main reasons. First, we have rejected mother’s contention that A.R. should not have been freed for adoption because she objected to being adopted. Second, assuming A.R. should not have been freed for adoption, such a situation would not necessarily defeat M.R.’s and R.H., Jr.’s adoption.
Assuming that A.R. had, in fact, objected to adoption, and assuming further that the dependency court’s orders pertaining to her adoption should be reversed, we do not agree with mother that the court erred by ordering adoption as permanent case plans for M.R. and R.H., Jr. The dependency statutes provide that the court shall terminate parental rights at a permanent plan selection and implementation hearing, in favor of adoption, unless one of several circumstances apply, including “[t]here would be substantial interference with a child’s sibling relationship[s]....” (See § 366.26, subd. (c)(1)(B)(v).) We decline to reverse the dependency court’s orders in the case before us today because mother has not persuaded us that such “substantial interference” with her children’s relationships is a foregone conclusion. Mother has not pointed us to evidence which suggests, as a matter of law, that different case plans among her three children would necessarily interfere with their “bonded sibling group.” As DCFS has noted in its respondent’s brief, there is no evidence in the record to support the conclusion that adoption as the permanent case plan for M.R. and R.H., Jr., would necessarily preclude them from continuing to live in the same home as A.R., and we decline to accept mother’s implicit suggestion that an adopted child and a nonadopted child are inherently placed in different positions which negate the possibility of maintaining a bond. We find, therefore, that reversal of the permanent case plan pertaining to M.R. and R.H., Jr., is not justified by the record and arguments put before us in this case.
II. Father’s Appeal
If we understand the essential thrust of father’s appeal correctly, he contends all three children involved in this case –– A.R., M.R. and R.H., Jr., –– should be kept together, and should not be adopted by P.H., meaning the dependency court’s orders terminating father’s and mother’s collective parental rights cannot stand, meaning his parental rights over M.R. cannot stand. Toward that end, father contends the dependency court’s orders terminating mother’s and father’s parental rights must be reversed because mother’s oldest child, A.R., objected to adoption as her permanent plan. Assuming that father has any standing to object to any orders regarding the adoption of A.R. or R.H., Jr., neither of whom is father’s child, we reject father’s challenge to the dependency court’s adoption findings and orders and for the same reasons explained above in addressing mother’s appeal.
First, the record simply does not support father’s assertion that A.R. objected to being adopted by P.H. Second, assuming the dependency court erroneously terminated mother’s parental rights over A.R., and over R.H., Jr., father is incorrect that the court’s decision to terminate his parental rights over M.R. must be reversed in order to keep all three children together. Father’s arguments rely on a similar “sibling bond” theme as was presented in mother’s appeal, and, for the reasons expressed in addressing and rejecting mother’s appeal above, we reject father’s overlaying arguments.
DISPOSITION
The dependency court’s orders are affirmed.
We concur: FLIER, Acting P. J., BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.