Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK 66032, Emily A. Stevens, Judge.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Senior Associate County Counsel, for Plaintiff and Respondent.
WOODS, J.
P.G., the mother of minors D., A., Mario and Diana, appeals from the order terminating her parental rights as to A., Mario and Diana. D. is not a party to this appeal. Appellant contends no substantial evidence supported the juvenile court’s finding the sibling relationship exception to termination did not apply. We affirm.
FACTUAL AND PROCEDURAL SYNOPSIS
I. Detention
A. The Petitions
On December 13, 2006, the Los Angeles County Department of Children and Family Services (Department) filed a Welfare and Institutions Code section 300 petition of behalf of the four children of appellant and father Mario L. The petition alleged that on about December 10, Diego, a three-year-old child, was seriously injured while in the care of appellant and father. The original petition was dismissed and an amended petition was filed when Diego subsequently died.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
B. December Report
The children were placed in protective custody by the police department on December 10 after Diego had been taken to the hospital earlier in the day with head trauma and the parents had been arrested. The parents were booked under Penal Code section 273d (great bodily injury to a minor).
On December 10, a children’s social worker (CSW) went to the hospital where Diego was being treated. The CSW was advised that Diego, who had suffered blunt head trauma, was brain dead and had a “‘Do Not Resuscitate’” order. Diego had bruises at different stages of healing on his lips, eye and head, and over his entire body. Diego had a skull fracture on the right side of his head as well as bite marks on his leg which looked like the bite marks of a child. Diego appeared to be seriously malnourished and physically abused.
Appellant stated Diego was the son of her sister who had abandoned him at a neighbor’s house in Mexico. Appellant brought Diego to Los Angeles for a better life. Diego had lived with the family since January 2006. The parents gave different stories to police officers and the CSW regarding their whereabouts during the morning on which Diego was taken to the hospital; they said they were home, but in different rooms; they also said they were at the store. The parents stated they did not know how Diego received the injuries to his head. D. said she had seen her father push Diego, but she did not know how he got hurt. Initially, the four children were placed in the same foster home. The foster mother said the first night the children were with her, A. had severe nightmares and was talking in her sleep. A. made statements that she wanted to tell the truth and that someone had pushed Diego. D. woke up and told the foster mother not to listen to A. because Diego fell.
The children were robust, clean and appeared healthy; they were well bonded and seemed to protect one another at all costs. D. was a parental figure who directed the other children. The report indicated it was clear there might be things the children had not told police or the CSW.
At the hearing, the court detained the children and ordered monitored visits. The court held an arraignment hearing on January 8, 2007, at which the parents were advised and provided with counsel.
II. Jurisdiction
A. Reports
According to the coroner’s report, Diego died on December 16, 2006. Diego had been killed by being thrown or slammed against a hard surface, with impact to the right back of his head causing a fatal depressed skull fracture, subdural hematoma, and traumatic brain injury. In addition, Diego had recent broken bones, bite marks, a punch to the abdomen, skin abrasions, and a blow to the mouth. Diego had been brutalized in the past with whips marks, cigarette burns and other trauma going back weeks to months. There might be older head injuries as well. Diego had suffered from severe neglect and medical neglect, giving rise to chronic malnutrition and growth failure. Diego’s death was listed as “homicide: Child abuse.”
The February 2007 jurisdiction/disposition report stated D. and A. were in the foster home of Dolores M., and the two younger children were in the foster home of Elizabeth R. The report indicated that Diego had been found unconscious on the floor at the parents’ home at 10 a.m., on December 10. Appellant told the paramedics the children were jumping up and down on the bed in the bedroom with the door closed and she and father were watching television in the other room. D. walked out and told them there was something wrong with Diego. The parents found Diego lying on the floor and twitching.
D. stated she was home and her parents were at the store when she went into the bedroom to check on the children and found Diego lying on the floor without moving. Diego vomited and looked as if he could not breathe. The day before, father got mad at Diego for not picking up his Legos and pushed Diego. Diego fell and hit his neck on an open drawer. The parents denied hurting Diego.
D. and A. stated father and appellant hit all of them (including Diego, but not Diana who was too young) with a hanger if they did not listen. The parents denied hitting the children with a hanger and said they only spanked the children softly on the buttocks.
Diego weighed 40 pounds when he first came to the United States; by the time of his death, he weighed almost half of that amount. The report concluded Diego had been severely deprived of food and the extended family failed to recognize Diego was being abused and neglected and failed to protect him.
According to the supplemental March report, it was clear the parents had committed a horrific crime by abusing Diego to such a degree as to cause his death. The forensic report stated Diego died from severe trauma to his head and the injury happened in the parents’ home. There were also many other marks on Diego, and his severe low weight and other aspects of his condition indicated ongoing, long-term abuse of the child. D. reported appellant and father hit her daily with a hanger and a belt and with their hands. D. feared her parents to the point of keeping quiet while her siblings were being hit. The children were shaken by what they had experienced in their home and attempted to evade questions and appeared fearful of talking openly about what had happened to Diego.
In April, the court was informed D. and A. had been placed in the home of their paternal great aunt, Rosa F., and Mario and Diana had been placed in the home of their paternal aunt Leticia R. All four children were adjusting well.
B. Hearing
Following waivers by the parents, the court proceeded by way of In re Malinda S. (1990) 51 Cal.3d 368, 383-384 and sustained the petition as amended. The court found father physically abused D., A. and Mario by striking them with a plastic hanger and with his hands and appellant did nothing to protect them. The court found Diego’s death was the result of physical abuse received while living in the home of the parents and was under their care and supervision. The court found that appellant’s explanation for Diego’s injuries was inconsistent with his injuries and that Diego’s death and injuries would not ordinarily have occurred except as the result of deliberate, unreasonable or neglectful acts by the parents. The court found the severe physical abuse of Diego and his subsequent death created a detrimental home environment for the children.
The court removed the children from the care and custody of the parents and placed them with the Department.
II. Reunification Services
In the May 2007 supplemental report, the Department noted the children had telephone contact with their parents for an hour every Tuesday. The CSW who monitored the calls reported the contact was positive. The detective assigned to the parents’ criminal case requested visits not be scheduled until after the first criminal proceeding, which was set for July 23.
The CSW had initiated the adoption assessment for the children and identified aunt Leticia and her husband as prospective adoptive parents. Leticia and her husband continued to be interested in adopting the four children if reunification failed. The relative home of great aunt Rosa had been kinship approved as had Leticia’s home. Leticia said she would look for a bigger apartment to accommodate the children as soon as she received funding.
The report noted the abuse suffered by Diego had been witnessed by the other children. D. stated Diego was hit more than the other children and he was the only child who slept on the floor and ate from the floor. The parents did not like Diego. If the parents saw Diego eating, they would hit him. The children had some behaviors consistent with experiencing aggressive behavior in the home such as defiance and moodiness. D. and A. fought constantly in a way that was too aggressive for their age; they punched each other with their fists and threw each other against the wall. A. pinched herself. D. said she used profanity and hit when she was frustrated. Mario had a speech delay the parents had ignored. Diana was mildly mentally delayed. Mario and Diana ate until they felt sick. The CSW opined that because of the treatment of the children and Diego’s death, the children might have serious emotional traumas that would have to be addressed for a long time.
At the hearing, pursuant to section 361.5, subdivision (b)(4), the court ordered the parents were not to receive reunification services.
III. Section 366.26
A. Reports
The August report indicated the children had been evaluated and A. and Mario had speech delays. Diana was developmentally delayed. Aunt Rosa stated D. got angry very easily, lied and was violent toward others. D. resorted to pushing and punching A. if A. did not go along with what D. wanted. D. lied about her homework and stole money from her aunt’s purse. D. and A. bullied the aunt’s son. D. got upset and pushed another cousin to the floor and hurt him. At dinner a few weeks earlier, A. disclosed in front of everyone that D. was the one who threw Diego to the floor on the day he died. At that moment, D. looked at A. in a threatening and angry way and told her to shut up. A. stopped talking. Aunt Rosa feared D.’s impetuous reactions and wanted the children to get help. Aunt Rosa tried to give the children lots of love and attention, but she hoped their replacement with aunt Leticia would happen soon.
Mario and Diana appeared to be emotionally stable. Initially, Diana was very aggressive and regularly hit, kicked and slapped her brother and pulled his hair without apparent motive. Mario had also been very aggressive at the beginning of placement. Aunt Rosa had trained D. and A. to clean their room and get over the habit of using foul language. Aunt Leticia said Mario and Diana had adapted well to placement.
The children had weekly telephone calls with the parents. The calls were positive and consistent, and the conversations were appropriate. The maternal grandparents visited the children at Department offices.
The current plan was for all four children to be adopted by aunt Leticia and her husband. The aunt and uncle, who had known the children their entire life and had regular contact with them, understood adoption and what their responsibilities would be if they adopted the children. The aunt and uncle were committed to adoption. The CSW had not had the opportunity to interview the children about their feelings about adoption or guardianship. The parents remained incarcerated.
Aunt Rosa was concerned that D. continued to behave aggressively when she did not get her way and threatened the other children in the house with violence and gave them hateful looks, which made the children feel afraid to be in the house. During an outing to the supermarket, D. pushed a cousin to the floor. When aunt Rosa reprimanded D., D. looked at her with a smile on her face. A. had more positive behavior than she did at first. Aunt Leticia did not report any negative behavior by Mario and Diana. The Department was especially concerned about D. who exhibited so much anger and had a strong controlling personality very much like that of her parents. The Department thought D. might need extensive and long-term therapeutic services to overcome the “negative learning behavior” and the effects of the brutality she had witnessed in the home. Aunt Leticia took Mario and Diana to see D. and A. three or four times a week. Reportedly, D. and A. loved aunt Leticia very much. Aunt Leticia had stopped working to care for the children.
Previously, D. had expressed no desire to be adopted and only wanted to go back to her parents. In July, D. stated she did not object to moving to aunt Leticia’s house and agreed to be adopted by aunt Leticia. A. wanted to be adopted by aunt Leticia.
The September report stated the adoptive home study for aunt Leticia and her husband had been approved for A., Mario and Diana. The study did not include D. whose behaviors were of concern. D. was participating in individual counseling to address her aggressive behavior and to ensure she would not be a safety threat to her siblings. The Department was monitoring her progress, and once it was determined her aggressive behavior had been addressed, the goal was to complete a home study update for aunt Leticia and her husband to also adopt D. Once additional funding was approved, aunt Leticia and her husband would seek a home that was large enough for all of the children.
D. had participated in three counseling sessions. D.’s therapist indicated that initially aunt Rosa was concerned about D.’s behavior toward the other children in the house, but that concern stopped within the first month after D. started therapy as D.’s behavior toward her siblings had stopped. The therapist felt it was “okay” for D. to remain in aunt Rosa’s home until funding became available. The Department’s plan was to place all of the children with Leticia without overwhelming her. The Department wanted more time for the transition of D. to make certain D. did not present a problem which could sabotage the adoption of the younger children.
B. The Hearing
The Department requested the court to go forward with the hearing for the three younger children, but continue the hearing on D. arguing it did not want to place D. in aunt Leticia’s home when her presence could destabilize the younger children. Counsel for the children requested the court terminate parental rights only for the three younger children as there were some issues with D. The court stated: “The current home cannot take her in at this time. There would be issues regarding destabilizing that home. There are no other prospective adoptive parents. And I think that given the issues the child is having, I’m going to continue that for a few months because she would be difficult to place if she could not be placed in this home.”
Counsel for father stated father agreed with his sister adopting the children. Angela Swan, appellant’s counsel, stated appellant was not in agreement with the termination of parental rights as to the three younger children because appellant said she had nothing to do with the death of Diego and expected to be exonerated or acquitted and to regain custody of her children. Swan further argued the children were a sibling group and it was unknown what would happen to D. Swan asked the court to continue the hearing to the next court date of February 8, 2008, to determine if the relatives were committed to adopting D. as well or were going to wait until she stabilized to take her in. Swan asserted termination of parental rights was premature as there was no guarantee the prospective adoptive parents would get the funding to get a larger home; she requested the court to wait until February 8 to determine if the relatives had a larger home to accommodate all the children. The Department argued all the children were adoptable as the adoptive parents were willing to take in all four children as soon as possible and the plan for D. was still adoption. The Department argued there was no substantial interference with the sibling relationship because the children were all placed with relatives on the same side of the family and the relatives maintained contact and the desire to ensure continued sibling contact.
The court found the sibling exception to termination of parental rights did not apply because the children would remain connected. The court found it likely the children would be adopted and terminated parental rights as to the three younger children.
Appellant filed a timely notice of appeal from the order terminating her parental rights.
Subsequent to appellant’s notice of appeal, this court granted the Department’s motion to take additional evidence. (See In re Salvador M. (2005) 133 Cal.App.4th 1415, 1421-1422.) Included in the motion, was the Department report dated February 8, 2008. The report stated that D. had been placed with the prospective adoptive parents (Leticia and her husband). D. saw her therapist on a weekly basis, and her therapist opined that there appeared to be no current “risk or harm towards the children by [D.]”
When this court granted the motion to take additional evidence, we ordered the Department to provide a status report regarding the section 366.26 hearing scheduled for April 7, 2008. Consequently, the Department filed another motion to take additional evidence and attached the supplemental report for the April 7 hearing and the minute order from the April 7 hearing. As appellant filed no opposition and the additional evidence was submitted at our request, we grant the motion. The report indicated that D. remained placed with the prospective adoptive parents, the permanent plan was still for adoption, the adoptive home study for D. had been approved, D. continued to participate in therapy and was making moderate progress toward her treatment goals, and D. had established positive relationships with the people in her prospective adoptive home. The minute order reflects the court terminated appellant’s parental rights over D.
DISCUSSION
Appellant contends no substantial evidence supported the court’s finding the sibling exception did not apply. (See In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) Appellant reasons that because it was unknown whether D. would be able to be placed with her younger siblings, the likelihood the three younger children would suffer detriment if they lost their relationship with their sister was great. The burden of proving the exception applied was on appellant. (See In re Megan S. (2002) 104 Cal.App.4th 247, 252.)
“Section 366.26, subdivision (c)(1)(E) provides that if the parent makes a sufficient evidentiary showing, the court must consider the nature and extent of the sibling 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.’” (Citation omitted.) (In re L. Y. L., supra, 101 Cal.App.4th at p. 951.)
Effective January 1, 2008, section 366.26 was amended, and the sibling exception was relettered as subdivision (c)(1)(B)(v).
The court further explained: “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. . . . [¶] 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.” (Fn. omitted.) (In re L. Y. L., supra, 101 Cal.App.4th at pp. 952-953.) In addition, given the legislative preference for adoption, the statutory exceptions permit the court to choose an option other than adoption only in exceptional circumstances. (In re Celine R. (2003) 31 Cal.4th 45, 53; In re Daisy D. (2006) 144 Cal.App.4th 287, 293 [the author of the legislation adding the sibling relationship exception anticipated its use would be rare].)
Appellant argues this case is different from other cases in which courts refused to apply the sibling exception because the children had not lived together long enough to establish a sibling relationship. (See e.g. In re Valerie H. (2007) 152 Cal.App.4th 987, 1010 [the three siblings had lived together for only seven months]; In re Erik P. (2002) 104 Cal.App.4th 395, 404 [two brothers had lived together for only two months]; In re Daniel H. (2002) 99 Cal.App.4th 804, 813 [the brother had lived with his sisters for the first six to eight months of his life].)
The record shows the four children were raised in the same house, shared common experiences and had a close relationship with and were well bonded to one another when they lived with their parents. They were described as protecting one another at all costs. D. acted in a parental role to the three younger children. Although in different placements, the siblings visited with each other three or four times a week. On the other hand, part of their shared experiences was witnessing the abuse and death of Diego and being hit by their parents. The existence of a sibling bond is not the decisive issue in this case. The issues are whether severance of the sibling bond would be detrimental to the younger children and whether maintaining ongoing contact with D. was in the best interests of the younger children.
Contrasting In re Salvador M., supra, 133 Cal.App.4th 1415 and noting adoptions fail, appellant asserts the sibling relationship exception should have been applied because there were no guarantees on placement in this case. In Salvador, a baby was placed for adoption with maternal grandparents who were the legal guardians for his older brother. The mother argued there was no guarantee the grandparents would pass the adoptive home study, but the court found the sibling exception did not apply as there would be no interference with the sibling relationship because the agency had submitted credible augmented evidence the grandparents had passed the home study. (Id., at pp. 1419-1422.)
The crux of appellant’s argument is that it did not appear D. was likely to be placed with the others in the near future and adoption of the three younger children might result in the severance of their relationship with D. forever. Noting the children might not be able to resume any relationship with their parents, appellant reasons that D. was the only vestige of the nuclear family left and therefore taking away that relationship would not serve the best interests of the three younger children. The three younger children were part of that nuclear family.
As evidentiary support, appellant cites the indications in the Department reports regarding the concerns that D. might be a threat to the other children and that she had significant emotional problems which might never be resolved. Appellant, who claims the court erred in assuming D. would be placed with the others in the near future, goes on to speculate D. might be charged in the death of Diego or even be placed in a group home or other institutional setting. As appellant acknowledges, the plan was for D. to be placed with aunt Leticia and her husband when it was safe to do so. The plan was to do so gradually so as not to overwhelm aunt Leticia.
The additional evidence shows D. was placed in the same house with the three younger children. Even if any of appellant’s predictions come true and D. is removed from the aunt’s house due to her problems, i.e., if she is a threat to the younger children, those problems are the reason as to why it would be detrimental to the younger children to maintain the sibling relationship with D. rather than allowing them to benefit from the stability of an adoptive home with a relative. If D. is a threat to the younger children, then she cannot be considered the link to normalcy the sibling relationship exception is intended to preserve. (See In re Erik P., supra, 104 Cal.App.4th at p. 404.)
In essence, as she did in the trial court, appellant’s argument addresses why it would benefit D. to not terminate parental rights. However, “the sibling relationship exception permits the trial court to consider possible detriment to the child being considered for adoption, but not the sibling of that child.” (In re Celine R., supra, 31 Cal.4th at p. 54.) If the younger children would not be safe due to D.’s problems, then it would be detrimental for them and not in their best interests to maintain their relationship with her rather than allowing them to be adopted by Aunt Leticia. It is not the termination of parental rights which will sever the sibling relationship but D.’s behavior. Thus, substantial evidence supported the finding the sibling exception did not apply.
DISPOSITION
The order is affirmed.
We concur: PERLUSS, P.J. ZELON, J.