Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Valerie Skeba, Referee. Los Angeles County Super. Ct. No. CK62293
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Associate County Counsel, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
INTRODUCTION
J.S. (Mother) appeals from an order of the juvenile court terminating her parental rights to her son, C.C. Mother argues that the court should have found that both the beneficial parent/child relationship and the sibling relationship exceptions applied, and precluded termination of parental rights. We disagree, and therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In late January 2006, Mother was arrested and charged with possession of illegal drugs. C.C. (born in September 2003), and his two older siblings, his brother, J.C. (born in 2000), and his sister, S.B. (born in 1996), were briefly placed in the care of a maternal aunt.
Mother pled no contest to one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and one count of child endangerment (Pen. Code, § 273A, subd. (b).) She received credit for time served in custody, and five years of formal probation.
C.C. is the only minor involved in this appeal. His alleged father is not a party to this appeal.
In February 2006, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition under Welfare and Institutions Code section 300 regarding the three children. The juvenile court ordered the children detained.
All undesignated statutory references are to the Welfare and Institutions Code.
In March 2006, DCFS reported that C.C. and his brother were living together in a foster home, and his sister had been released to her biological father. The juvenile court held a jurisdiction and disposition hearing on March 20, 2006. The court sustained allegations in the section 300 petition that Mother had a history of substance abuse and was a frequent user of controlled substances; Mother had kept illegal drugs in her home and vehicle within reach of the children. Mother had failed to take C.C. to receive Regional Center Services for his speech delay problems, and missed several of his medical appointments. The court found the children to be persons described by section 300, subdivisions (b) and (j), and declared them to be dependents of the juvenile court. DCFS was ordered to provide reunification services, including drug rehabilitation with random drug testing, parent education, and individual counseling for Mother.
C.C., then 31 months old, was evaluated by a physical therapist, who reported that he suffered from gross motor difficulties and possible sensory integration deficits. The therapist recommended physical therapy intervention. His speech and language abilities were assessed, and the resulting report indicated he had severe delays in receptive and expressive language. The school district’s assessment report indicated that C.C. would need to participate in special education programs and other services.
DCFS’s report for the six-month review hearing (§ 366.21, subd. (e)), prepared in October 2006, stated that Mother had visited infrequently with the children. Mother had attended six sessions of a parenting course, but she had not enrolled in individual counseling or drug rehabilitation, or participated in random drug testing as ordered by the court. An additional report prepared in November 2006 stated that Mother told the social worker that she did not need psychological counseling, she did not have a drug problem, and she did not need drug counseling. Mother behaved erratically during the meeting; she was unable to sit still and was hyper-verbal. The foster family agency worker reported that Mother was very difficult to work with and refused to commit to a visitation schedule.
The court found that Mother was not in compliance with the case plan, and that continued jurisdiction was required as to C.C. and his brother.
The court terminated jurisdiction as to C.C.’s older sister, who remained in her father’s custody.
In February 2007, DCFS reported that Mother had not complied with the court orders for counseling, drug rehabilitation, and drug testing. Her visits with the children continued to be inconsistent and infrequent. She had visited four times during the reporting period, and was frequently late for visits. The boys had been placed in a new foster home. C.C. had made significant progress in his physical coordination and speech, and seemed to be thriving in his new placement. His brother, however, was having severe behavioral problems. He got angry at his foster mother and attempted to cut her with a knife, and had physically attacked other children on numerous occasions, including C.C. He was briefly hospitalized in a psychiatric facility and evaluated, and was prescribed psychotropic medication. The psychiatric team recommended placement in a residential facility so he could be assessed further and more closely supervised.
By the following month, C.C.’s brother had been placed in a residential facility. The social worker reported that C.C.’s personality had blossomed since being placed in his current caregiver’s home in October 2006. C.C’s foster mother was interested in legal guardianship if Mother was unable to reunify with C.C. DCFS recommended termination of reunification services as to both children.
On March 6, 2007, the court held a 12-month review hearing (§ 366.21, subd. (f)). The court terminated Mother’s reunification services, and scheduled the matter for a section 366.26 hearing in late June 2007. DCFS was ordered to facilitate sibling visits between C.C. and his brother, at least once per month.
DCFS’s report for the June 2007 permanency planning hearing stated that Mother had visited the children about three times in the previous 10 months. She had made plans to visit with them, but would then cancel or simply fail to come to visits. Mother told the social worker she was leaving town for a few days, but was gone for a couple of months. She had been back in Los Angeles for two weeks as of the date of the report, but had not scheduled a visit with the children.
DCFS recommended that C.C. be adopted by his foster mother, and she had expressed her willingness to adopt him. The social worker had spoken to several members of C.C.’s extended family, and they all agreed that C.C. should remain in his current placement and be adopted by his caregiver. Meanwhile, his older brother remained in a residential facility, although a maternal uncle had expressed interest in caring for him. A report from the Regional Center at which C.C. received services stated that he suffered from mild mental retardation and asthma, and had balance problems that caused him to trip and fall. As of April 2007, C.C.’s foster mother reported that Mother had not visited C.C. in six months.
The court held a permanency planning hearing on June 28, 2007. The matter was continued for four months to allow for completion of the home study for C.C.’s prospective adoptive parent, his foster mother.
In a report dated October 2007, DCFS noted that C.C.’s foster mother was born in 1941. She had one sister who lived nearby, and six adult children, all but one of whom resided in California. The foster mother stated that she and C.C. were very attached to one another, and that she was fully committed to caring for him. She said that he felt comfortable only when she was by his side, and the social worker agreed that he was very dependent on his foster mother’s presence in order to feel safe and secure. C.C.’s older brother had been placed in the maternal uncle’s home, and his behavior appeared to be improving. The brother was sad that C.C. could not live with him, but the maternal uncle was unable to provide a home for C.C. due to his need for specialized care. The maternal uncle stated that he believed C.C. was in a good placement. The social worker had facilitated some visitation between the brothers. Mother had not visited with C.C. during the reporting period.
At the permanency planning hearing in October 2007, the court ordered the matter continued to permit completion of the due diligence report as to C.C.’s father. The court ordered that sibling visits were to take place not less than twice per month. Mother was permitted to have weekly visits with C.C. at the social worker’s office.
DCFS reported in April 2008 that Mother had begun visiting C.C. monthly or sometimes twice per month, and she acted appropriately during visits. C.C. was “somewhat interested” in the visits, but did not appear to be bonded to Mother. He did not seem to be distressed to leave at the end of visits, and he appeared happy to return to his foster mother. C.C. did not demonstrate any emotion regarding his separation from his older brother. C.C. acknowledged his brother’s presence during sibling visits, but his interactions with his brother were “extremely limited.” C.C.’s brother attempted to interact, but C.C. was unable to reciprocate appropriately. Due to continuing difficulties with serving notice on C.C.’s father, the section 366.26 hearing was continued to August 2008.
Prior to the August 2008 hearing, a section 388 petition was filed on behalf of C.C.’s brother, requesting that he and his counsel be allowed to appear and be heard at the section 366.26 hearing regarding C.C. The brother requested that the court not terminate parental rights as to C.C. so they could maintain a sibling relationship. C.C.’s foster mother had declined to enter into a post-adoption visitation agreement with the brother’s caregiver, the maternal uncle. However, C.C.’s foster mother assured the social worker that she was not opposed to post-adoption visits. The foster mother wrote a letter to the court explaining that she would never do anything to stop C.C. and his brother from visiting. She reminded the court that she had also cared for C.C.’s brother for almost one year, and cared deeply for him. She was simply unable to attend the permanency planning mediation meeting due to scheduling difficulties, and because she did not think it was necessary, as she had tried to make clear to everyone that she supported sibling visits. The court granted C.C.’s brother’s request to be allowed to participate in C.C.’s section 366.26 hearing.
DCFS reported for the August 2008 hearing that C.C.’s foster mother had entered into a post-adoption sibling visitation agreement. The quality of the sibling visits had improved. C.C. was happy and talkative during visits, but did not seem upset when separated from his brother and Mother at the end of visits. He often asked to go home to his foster mother during visits. Mother was frequently up to 45 minutes late for the hour-long visits, but the social worker often allowed her to visit for a full hour. During the hearing, C.C.’s counsel pointed out to the court that C.C.’s foster mother had children and grandchildren in the area who considered C.C., as well as the nine-year-old boy the foster mother had previously adopted, to be part of their family. Counsel presented to the court a book the foster mother had made containing pictures of C.C. and her extended family, by which she intended to demonstrate that C.C. was an integral member of her close-knit family. C.C.’s counsel indicated that she was satisfied that C.C. would not be in jeopardy if the foster mother were unable to care for him for any reason.
After several additional continuances, the section 366.26 hearing for C.C. was finally held in February 2009 (about two years after reunification services had been terminated, and three years after the children were initially detained from Mother). Mother had visited with C.C. only once in the previous six months. C.C.’s visits with his brother had also essentially ceased because his caregiver, the maternal uncle, was unable or unwilling to schedule visits. The brothers had one sibling visit, in November 2008, during which they did not interact with one another. C.C.’s foster mother had been fully cooperative with scheduling and in transporting C.C. to the visits, but Mother and C.C.’s brother failed to attend the visits.
The social worker stated in the DCFS report dated January 22, 2009, that C.C. did not ask for Mother; when distressed or uncomfortable, he asked for his prospective adoptive mother. The prospective adoptive mother had demonstrated that she was able to fully meet C.C.’s specialized needs and obtain for him the services he required. The social worker opined that C.C. was less likely to be significantly impacted by Mother’s behavior and lack of visitation due to his developmental delays.
At the section 366.26 hearing on February 13, 2009, Mother testified that C.C. was removed from her care when he was 16 months old. She admitted that her last visit with him had been before his birthday in September 2008.
The court found that Mother had not visited C.C. regularly, and had not formed a parental relationship with him. The court noted that it had attempted to promote the sibling relationship by ordering visitation, but the maternal uncle had not cooperated with efforts to arrange visits. The court also found that a sibling relationship did not exist between C.C. and his brother such that terminating parental rights would result in detriment to C.C. The court noted that C.C.’s foster mother had signed a contract agreeing to post-adoption sibling visitation. The court found that C.C. was adoptable, and terminated parental rights.
This timely appeal followed.
DISCUSSION
I. The Beneficial Parental Relationship Exception to Termination of Parental Rights Does Not Apply Here
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1). One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when the parents “have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The phrase “benefit from continuing the relationship” refers to a parent/child relationship that “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances 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 parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) It is the parent’s burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
Here, Mother concedes that she was unable to visit regularly with C.C. The record indicates that she visited him only rarely. The record also shows that C.C. and Mother did not develop a bonded parent/child relationship. C.C. was strongly attached to his prospective adoptive mother, who had fully committed to caring for him, and proved herself to be exceptionally well-suited to the task. In short, Mother has not met her burden to show either prong of the beneficial relationship exception: regular visitation, or benefit to C.C. from continuation of the relationship with Mother.
Mother instead contends that it would be in C.C.’s best interest not to terminate her parental rights because of the prospective foster mother’s relatively advanced age (she is 68). She argues that he needs family members to be part of his life, as a back-up for his elderly foster mother. According to Mother, “the potential long-term benefit that the mother can offer the minor over time weighed against the potential detriment to the minor militate against termination of parental rights.” We disagree.
The record makes clear that adoption by C.C.’s foster mother will provide him with the permanence and stability of having a loving, dedicated, and effective mother, and he will also have an extended family network to care for him. In contrast, Mother’s relatives were unable or unwilling to care for C.C. In fact, several of them observed to the social worker that C.C.’s placement with his foster mother was advantageous. We find no error in the court’s rejection of the beneficial parental relationship exception to terminating parental rights.
II. The Sibling Relationship Exception to Termination of Parental Rights Does Not Apply Here
Mother also argues that the court erred in terminating her parental rights because it would be detrimental to C.C. to legally terminate his relationship with his older brother. We find no error.
The juvenile court may decline to establish adoption as the permanent plan for a dependent child if “[t]here would be substantial interference with a child’s 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 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); see also In re Celine R., supra, 31 Cal.4th 45.) This exception permits the court to consider the sibling relationship in deciding whether a compelling reason exists to choose a permanent plan other than adoption.
Any benefits from maintaining a sibling relationship between C.C. and his brother were far outweighed by the benefits of C.C. being placed in a permanent adoptive home. While his brother wished to maintain their sibling bond, and may have benefited from doing so, the sibling relation exception statute “continually refers to that relationship’s impact on the child being considered for adoption, not the impact on the sibling or anyone else. [Citation.] ‘[T]he language focuses exclusively on the benefits and burdens to the adoptive child, not the other siblings. The court is specifically directed to consider the best interests of the adoptive child, not the siblings, and must ultimately determine whether adoption would be detrimental to the adoptive child, not the siblings.’ [Citation.] Nothing in the statute suggests the Legislature intended to permit a court to not choose an adoption that is in the adoptive child’s best interest because of the possible effect the adoption may have on a sibling.” (In re Celine R., supra, 31 Cal.4th at p. 54. See also In re Daniel H. (2002) 99 Cal.App.4th 804, 813.)
Here, it was unquestionably in C.C.’s best interests to be placed in a permanent, stable adoptive home, even if it meant severing his legal relationship with his brother. He did not display any emotional attachment to his biological brother. Indeed, he was strongly bonded to the nine-year-old boy his foster mother had previously adopted. C.C.’s adoption by his foster mother would also create a legal relationship with the boy C.C. already considers his brother. We readily conclude the court did not err in terminating parental rights.
DISPOSITION
The order is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.