Opinion
F041954.
7-16-2003
In re AUSTIN M. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. TIFFANY M. et al., Defendants and Appellants.
Marin Williamson, under appointment by the Court of Appeal, for Defendant and Appellant. B.C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.
Minors Tiffany, Jessica and Kevin M. appeal from orders terminating parental rights (Welf. & Inst. Code, § 366.26) to their younger siblings, Austin and Candie. Appellants contend the court erred because there is a substantial relationship between them and the younger children such that termination would cause Austin and Candie to suffer detriment. On review, we disagree and will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
All five children came to the attention of and were detained by respondent Kern County Department of Human Services (the department) in the fall of 1999 after Tiffany, then age 12, reported their father repeatedly beat them. At that time, Jessica was age 10, Kevin age 9, Austin age 3 and Candie was approaching her second birthday. The department placed appellants with relatives while it placed Austin and Candie together in a foster home.
The Kern County Superior Court exercised its dependency jurisdiction over the children in November 1999 under section 300, subdivision (a) for physical abuse and subdivision (b) for failure to protect and later adjudged them dependent children. The department returned the children home twice for brief periods only to re-detain them due to on-going neglect. With each re-detention, appellants were placed in relative care while Austin and Candie returned to the same foster family. The children visited with each other apparently every other week.
As of May 2002, the childrens mother died and their father failed to comply with the courts service plan. Notably, part of the service plan was conjoint therapy for the parents and appellants. They made such poor progress in resolving their anger towards one another that Austin and Candie could not be included in the family therapy. The court in turn terminated reunification services, ordered appellants into long-term foster care with a maternal relative, and set a section 366.26 hearing to select and implement plan for Austin and Candie. By that time, their foster family had expressed a desire to adopt the two.
The court ultimately conducted the section 366.26 hearing in November 2002. In the interim, the department filed its assessment report recommending the court find Austin and Candie adoptable and order parental rights terminated. At the section 366.26 hearing, appellants urged the court to find termination of parental rights would be detrimental to Austin and Candie because of their sibling relationship with appellants ( § 366.26, subd. (c)(a)(E)). Appellants disputed the departments assessment that there did not appear to be a strong bond between the siblings and the benefits of legal permanence through adoption far outweighed the connection between appellants and their younger siblings. To that end, appellants and their father presented the testimony of several witnesses, including Austin then age 6, appellants Tiffany and Jessica, their relative caretaker, their father, two social workers and an aide who previously supervised visitation. In general, the testimony focused on the quality of the childrens visits.
At the conclusion of the hearing, the court rejected appellants claim of detriment and terminated parental rights.
DISCUSSION
Appellants contend there was insufficient evidence to support the courts conclusion that termination would not be detrimental to Austin and Candie. From appellants perspective, they established a substantial sibling relationship while the department failed to show that Austins and Candies foster family were unwilling to care for them under a plan of guardianship or long-term foster care. Under these circumstances, coupled with the fact that the childrens mother died a few months earlier, appellants argue it would be detrimental to Austin and Candie not to preserve their sibling relationship.
We disagree first as to the standard of review. When a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Although section 366.26, subdivision (c)(1) acknowledges that termination would be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (Id. at p. 1348.) Thus, the question is not one of substantial evidence. (Cf. In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; see Pack v. Kings County Human Services Agency (2001) 89 Cal.App.4th 821, 839.)
We disagree further with appellants analysis of the legal issue before the court and the showing they made. 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: [P] . . . [P]
"(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.)
The party asserting this exception, here appellants, has the burden of proof. (In re L.Y.L., supra, 101 Cal.App.4th at p. 952.)
In this case, the court could properly conclude that appellants did not sustain their burden. As alluded to above, appellants evidentiary showing generally dealt with the interaction that occurred between the five children during visits. There was conflicting evidence, however, regarding those visits, the level of interaction between the children, who initiated it, and the reactions of Austin and Candie at the end of visits. Those conflicts must be resolved on appeal in favor of respondent. (In re Laura F. (1983) 33 Cal.3d 826, 833, 191 Cal. Rptr. 464, 662 P.2d 922.)
Additionally, Tiffany did testify about family life before the children were removed in 1999, particularly about her role in helping her mother care for Austin and Candie. Nevertheless, Austin and Candie have lived at least half of their young lives separate and apart from appellants, such that the court did not have to find that Austin and Candie were raised with appellants or shared significant common experiences. Also, while Tiffany painted a rosy picture of domestic life, the court did not have to ignore the record. That record detailed the abuse and trauma to which the children were exposed in the home, the fact that the older children had not made progress in dealing with their anger, and the emotional problems Austin and Candie experienced.
Further, six-year-old Austin did testify he would like to continue seeing his older siblings. However, he also testified he would like to be adopted or be his foster parents child even though that could mean he would not see his older siblings again.
To the extent appellants claim the department failed to show that Austins and Candies foster family was unwilling to care for them under a plan of guardianship or long-term foster care, appellants overlook the point that it was their burden to show detriment. (In re L.Y.L., supra, 101 Cal.App.4th at p. 952.) If they wanted to establish that the foster family was willing to care for Austin and Candie without adopting them, then it was appellants burden to introduce such evidence and not the departments burden to show the foster family only wanted the children if it could adopt them.
We express no comment on whether such evidence would necessarily be relevant or even persuasive.
Last, the evidence of the mothers death several months earlier in addition to the other evidence presented did not compel a finding of detriment. While there was some evidence that the older children discussed the loss of their mother during a recent visit with Austin and Candie, appellants offered no evidence of what impact, if any, her death had on their younger siblings. Appellants would have us speculate on this point, something we will not do. (See In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, 867 P.2d 706 [inferences must be reasonably deduced from the facts].)
Given this state of the record coupled with the lack of evidence regarding either Austins or Candies long-term emotional interest, the court was not compelled to find termination would substantially interfere with Austins and Candies relationship with their older siblings. Thus, the court did not abuse its discretion in rejecting appellants claim of detriment. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
DISPOSITION
The orders terminating parental rights are affirmed.