Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Stanislaus County No. 515471, Nancy B. Williamsen, Commissioner.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Poochigian, J.
D.M. (father) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) as to his daughter, D. He contends there was insufficient evidence to support the court’s rejection of his arguments that termination would be detrimental to D. He also joins in the mother’s appeal from the termination order (In re D.M.; F058206). On review, we affirm here and have affirmed in the mother’s appeal.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
A. Proceedings in Santa Clara County.
In June 2007, when D. was 14 months old, the Santa Clara County Department of Children and Family Services (the Department) placed her and her 14-year-old sister G. in protective custody and initiated dependency proceedings in Santa Clara County due to their parents’ absence. The family of four had been staying in a relative’s home. However, the parents left the home without informing anyone or making arrangements for their daughters and had not returned. The relative with whom the family had stayed was unwilling to care for the girls under these conditions.
The parents frequently left D. in the care of her teenage sister G. such that D. saw G. as her “mom.” The parents left home often in the middle of the night without informing G. and did not return until late the next morning. G. was late for school two to three times a week because there was no available caretaker for D.
Meanwhile, D. was sick and in need of medical care. In addition to an upper respiratory infection and vomiting, D. had a fractured tibia and fibula. The parents had not followed through by obtaining appropriate medical care for her.
In addition, each parent was currently abusing drugs, including methamphetamines and marijuana, and had done so in the girls’ presence. There were pending under-the-influence criminal charges since 2004 against the mother. Father who had a 15-year-old history of drug abuse, also had a criminal history, including but not limited to alcohol-related convictions.
Further, the parents had a history of domestic violence in the presence of the children. Father was emotionally, financially and physically abusive to the mother. In January 2007, he along with the paternal grandparents, threw the mother and the children out of the paternal grandparents’ out-of-state home, without warm clothes and finances.
Both parents were also physically and emotionally abusive over the years towards G. She refused to return to the parents’ care for fear of ongoing physical and emotional abuse. She was also fearful for D.’s safety.
In August 2007, the Santa Clara County Superior Court exercised its dependency jurisdiction under section 300, subdivision (b), based on the foregoing facts and pursuant to the parents’ submission. Even then and despite their submission, the parents minimized their neglect, substance abuse and domestic violence issues, both to social workers and the court. The court also adjudged both children dependents and removed them from parental custody subject to family reunification services.
1. Reunification Efforts.
During the first six months following the court’s dispositional hearing, the parents made some progress toward completing their case plans. Although the couple had not begun court-ordered family therapy, the mother was otherwise participating in all available services. Father, however, was not. In fact, he lied about why he was not participating in a year-long batterer’s treatment program and failed to regularly attend AA meetings as ordered. The mother also gave birth in February 2008 to a son whom the Department apparently did not detain.
Following a successful mediation, the court in March 2008 returned D. to the parents’ care under a plan of family maintenance. The court also exercised its dependency jurisdiction over the couple’s son but allowed him to remain in the couple’s custody with family maintenance services. The court, however, continued teenager G.’s out of home placement with reunification services for the parents. Before the hearing, G. had voiced her desire for time in family therapy before returning home. She believed her parents would do well in the beginning but as soon as there was no court, she would go back to caring for D. and not attending school. At the hearing, G. stated she would rather go home. However, the court preferred that she and the parents start therapy first and make some progress.
By the next status review hearing in August 2008, G. had returned to the parents’ home. The parents, however, had yet to complete their court-ordered case plans or make additional progress. They also had no motivation to complete them since the children were home with them. There was a high risk of relapse if the parents did not complete their programs. Nevertheless, the Department recommended and the court ordered six additional months of family maintenance services.
2. Parents’ Relapse and D.’s Redetention.
In the coming months, the parents did in fact relapse and resumed abusing methamphetamine and alcohol. They also stopped participating in court-ordered services. G., who was upset with her parents and thought they were abusing drugs and alcohol again, ran away from home for five days. Remarkably, the parents failed to report her absence and when questioned by a social worker during this period reported disingenuously that everything was fine. They were also evicted for failure to pay rent and reportedly living in Modesto.
Consequently in December 2008, the Department placed the three children in protective custody and filed a supplemental petition (§ 387) for a more restrictive placement. While proceedings on the supplemental petition were pending, the parents denied having a drug or alcohol problem or even using drugs, despite positive drug tests, and minimized the reasons for their children’s removal. In their view, the court would dismiss the supplemental petition as “all a mistake.” The parents were also very resistant to giving the social worker information about relatives or friends who could be considered for placement of the children. The parents apparently believed the children would be returned to their care.
It was the Department’s recommendation that the court remove the children from parental custody and, in D.’s and G.’s case, deny the parents further reunification services as well as set a section 366.26 hearing to select and implement a permanent plan. Although it was evident to the Department’s social worker that the parents loved their children and the children loved them, the family’s affection for one another was not enough to protect the children from harm. The social worker was hopeful the parents would participate in planning their daughters’ placement so that they could maintain a positive relationship with their daughters throughout their lives.
Reunification services were recommended in the case of the couple’s son as he had not been previously removed from parental custody.
At a February 2009 hearing, the court found the allegations of the supplemental petition true, removed the children from parental custody and, in D.’s and G.’s case, denied the parents further reunification services as well as set a section 366.26 hearing to select and implement a permanent plan. Father and the mother were served with notice of their right to seek writ review of the court’s decision. There is no record that either parent sought writ relief in the Sixth Appellate District.
3. Placement in Stanislaus County and Transfer Out Hearing.
That same day, the children were placed in the Stanislaus County home of their maternal grandfather and his wife (maternal grandparents). Although D. and her younger brother adapted well to the new placement and appeared to be thriving in their relatives’ care, the move was not as easy for 16-year-old G. She and the maternal grandparents faced some expected difficulties; but nevertheless, the maternal grandparents voiced their love and commitment to G.
In March 2009, the court transferred out the dependency cases for both D. and her younger brother from Santa Clara to Stanislaus County. The court did not do the same in G.’s case. She attended the hearing and, both personally and through her attorney, stated she did not want her case transferred as well as she did not want to stay in the maternal grandparents’ home. She knew they cared about her but she was unhappy. She and the maternal grandparents apparently argued because G. could not live within the adults’ guidelines. She had also been suspended from school that week. G. preferred to go to the children’s shelter in Santa Clara County because she was unhappy rather than return after the hearing with the maternal grandparents. They did not tell her to go. If she wished to behave, then she was welcomed in their home. If she did not want to be there, that was going to cause trouble. The court granted G.’s request, by not transferring her case and ordering her into the local children’s shelter.
The court consequently vacated its section 366.26 hearing date for D.
G. was later placed in a Stanislaus County foster home.
B. Proceedings in Stanislaus County.
In April 2009, the Stanislaus County Superior Court accepted the transfer of D.’s and her younger brother’s dependencies. Although the parents continued to receive reunification services in connection with their son’s dependency over the next four months, they failed to stay engaged in those services and make substantial progress. Instead, they denied their own admissions of drug abuse as well as having any problems and receiving referrals. They also made excuses for not participating in services. Considering the large amount of evidence that contradicted everything the parents said, the court eventually determined neither parent was “very credible.”
Meanwhile in May 2009, the court set a section 366.26 hearing for D. and gave the parents notice of their writ remedy. Neither parent sought writ review in this court.
1. Section 366.26 Report.
In advance of the section 366.26 hearing, the Stanislaus County Community Services Agency (Agency) prepared a “366.26 WIC Report” in which it recommended the court find three-year-old D. adoptable and order termination of parental rights. The report also included a status review of reunification efforts regarding D.’s younger brother.
D.’s caregivers, the maternal grandparents, were committed to adopting her and were in the process of completing their home study packet. They were also open to appropriate, post-adoption contact with the extended biological family, including the parents. The maternal grandparents were not interested in a formal visitation agreement.
Father had contacted Agency social workers in June 2009 and reported the maternal grandparents did not want to adopt. The social workers responded by contacting the maternal grandparents who assured the Agency that they did want to adopt. They reported nevertheless they had been receiving calls from mother asking them to tell the social workers they (the maternal grandparents) did not want to adopt. Following a June 23rd visit, Father met with Agency social workers and voiced an opinion that his sister or his parents should have been D.’s adoptive placement.
The Department previously denied his sister placement and the paternal grandparents had requested only visits.
Meanwhile, D., along with her younger brother, had ongoing twice-a-month visits with the parents and sister. After apparently the June 23rd visit, D.’s behavior immediately deteriorated according to the maternal grandparents. They were concerned that something upsetting or inappropriate might have been said to D. during the visits.
The mother was also reportedly contacting the maternal grandparents demanding a meeting with them, father and his parents. The paternal grandfather called the maternal grandparents as well informing them they should sign paperwork indicating that D. was to reside with the paternal grandparents. The upcoming section 366.26 hearing appeared to have put tremendous strain on the family.
On Friday, July 30, 2009, the court terminated reunification services for the parents with regard to D.’s younger brother and set a section 366.26 hearing for him. It was at this hearing the court expressly found the parents were not credible.
2. Section 366.26 Evidentiary Hearing.
The following Monday, August 3, 2009, the court conducted its section 366.26 hearing in D.’s dependency. The Agency submitted the matter on its previous report. The mother, father, G., and the paternal grandparents each testified in support of the parents’ position that their rights should not be terminated.
The mother testified she had been D.’s primary caregiver from her birth in 2006 until D. was detained in June 2007. It was the mother who fed, bathed, diapered and played with D. After D.’s removal, the mother consistently visited on a twice-weekly basis with her. D. returned to the mother’s care between March and December 2008. During this time, the mother resumed providing primary care to D. Father also helped take care of D. She was “daddy’s little girl.”
According to the mother, D. referred to her as “Mom” and appeared comfortable at visitation. Sometimes D. cried during the visits and sought out her father. She would say to him “make it go away.” The mother believed D. knew when it was almost time for her to leave because “she would close up like a clam sometimes.” In the mother’s opinion, it was difficult for D. to leave their visits. The mother added the end of a visit was difficult for “all of us.”
The mother also testified about D.’s relationship with G. and her younger brother. D. had nicknames for both of them and seemed happy when she was with them. D. was also very loveable with her siblings. The mother was concerned her children would be unable to see one another. This was a big concern of her because in her view they were such a close family. The mother also claimed D. and G. had not been in contact at all since G. went to live in a different foster home.
G. testified D. was so close to the mother that G. did not think her sister should be adopted. D. was so happy to see the parents during visits and did not want to leave. Not that D. said anything, but G. could just feel it and could tell leaving bothered her sister.
G. also described her relationship with D. as very close. According to G., in her other foster home, D. did not want anyone else but her (G.). So, G. had to take care of her sister. G. testified she left her maternal grandparents’ home because she previously had the parental role. G. believed D. recognized as “a little more” than a sister. D. also said she loved G. all the time.
G. feared not seeing her sister if she were adopted. It was not that she would be unable to see D. Rather, G. testified, she did not have the best relationship with the maternal grandparents and she knew it would be very hard. Since all three children were removed from the parents’ home in December 2008, G. had been visiting her siblings at the same time the parents did, twice a month. Having those visits was the most important thing to G. G. added “the only reason why I don’t do things that I used to, all the bad stuff, is because of her, because of my brother and sister.”
G. also testified that before she and D. were first removed in Santa Clara, the mother acted like D.’s mom, taking care of her, feeding her and diapering her. Father did also. G. described herself then as “little still.” G. remembered being together as a family and going to the park. D. also displayed affection for father and seemed physically very close to him during visits.
On cross-examination, G. acknowledged that before they entered foster care, she provided a lot of care for D. who then called her “Mommy” sometimes. However, she denied being in charge of taking care of D. Food was not really a problem. She did get D. dressed though when their parents were on drugs. G. denied their parents had been on drugs “quite a bit of [the] time.” G. also denied ever having to take care of D. because the mother left D. home alone.
D.’s paternal grandfather testified next. D., the parents, and G. had lived with him and his wife out of state during the first year of D.’s life. During that time, he personally observed the mother taking care of D. When D. began to speak, she called mother “Mom” or “Mommy.” He also observed that the two sisters had a playful relationship. D. seemed happy when she was with each of her parents and G. In the preceding five months, the paternal grandfather attended two visits and observed that D. was happy to see all of her family. He denied G. provided a lot of the care for her sister when they lived in his home. G. was going to school at the time. He also denied that G. was frequently late for school because there was no one to care for D.
Father testified he assisted in caring for D. during the first year of her life. In his view, it would not be fair to say that G. was a substitute parent. She was instead a very close sister to D. When D. returned to his home in 2008, father again cared for her. He described his relationship with D. as “very close.” During visits, D. seemed happy to see him and was affectionate. He too thought she was sad at the end of their visits. She would say to him “I don’t want to leave.” D. also had a close relationship with the mother.
Father disagreed with the adoption recommendation because it would hurt his family. He “most definitely” thought it would hurt D. because they would not see her as much. He also thought she would miss him and already did miss him. At visits, he heard D. say she missed him, the mother and G. He thought adoption would also hurt D.’s relationship with her older sister because they would not see each other as often or be as close as they were.
The paternal grandmother testified along the same lines as her husband that, during the year D. and her family lived with them, the parents took care of D. G. was a big sister and very close to D. The witness also described D. as excited and very happy to see her parents during the two visits she attended since the case had been transferred to Stanislaus County. The paternal grandmother testified that at a July visit, she witnessed D. cry at the visit’s end. D. told her father she did not “want to go back.”
Following closing arguments, the court found D. adoptable and terminated parental rights. Despite the parents’ claim that termination would be detrimental because they had a beneficial relationship with D., the court found there was no evidence D. would benefit from continuing the relationship to such a degree that it would outweigh the benefit to her of being adopted. The court also did not find the sibling relationship exception applied. The court noted the 13-year age difference between D. and her sister. Because D. had been a baby for most of the time the two sisters lived together, the court could not find that they shared significant common experiences. The court also did not find there was sufficient evidence to show that ongoing contact was in D.’s best interests so as to outweigh the benefit of permanency she would gain through adoption.
DISCUSSION
I. There was No Showing that Termination would be Detrimental to D.
Father contends there was insufficient evidence to support findings that D. would not benefit from maintaining a relationship with him and termination would not substantially interfere with D.’s sibling relationship. He claims it cannot be said that adoption substantially outweighed the benefit to D. of maintaining these relationships. In so arguing, father erroneously attempts to alter the provisions of section 366.26 and shift the burden of proof while ignoring the lack of any affirmative showing that termination would be detrimental to D.
Section 366.26, subdivision (c)(1)(B), acknowledges termination may be detrimental to a dependent child under specifically-designated and compelling circumstances. (In re Celine R. (2003) 31 Cal.4th 45, 53.) One of those circumstances is when a parent has maintained regular visitation and contact and the child would benefit from continuing the relationship to such a degree that the child would be greatly harmed by termination. (§ 366.26, subd. (c)(1)(B)(i); In re Autumn H. (1994) 27 Cal.App.4th 567, 575; “beneficial relationship exception.”) Another of those exceptional circumstances is where termination would cause a substantial interference with the sibling relationship. If so, the trial court must consider the nature of the sibling relationship and to 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)(B)(v); see In re L.Y.L (2002) 101 Cal.App.4th 942, 949; “sibling relationship exception.”) These are the exceptions father, as well as D.’s mother, argued at the section 366.26 hearing.
A finding that termination would not be detrimental, however, is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347.) The statutory presumption is that termination and permanency through adoption is in the child’s best interests and therefore not detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997)54 Cal.App.4th 1330, 1343-1344.) A party opposed to termination rather bears the burden of showing that termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
Consequently, when a court rejects a detriment claim and terminates parental rights, the appellate issue is not whether substantial evidence exists to support the court’s rejection of the detriment claim. The issue for the reviewing court is instead whether the juvenile court abused its discretion in rejecting the detriment claim. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) For this to happen, the proof offered would have to be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
Thus, we reject outright father’s claims that there was insufficient evidence to support findings that termination would not be detrimental to D. To the extent he contends his and the mother’s showing entitled them to a finding of detriment, we conclude, having reviewed the record as summarized above and discussed below, the trial court did not abuse its discretion in rejecting their claims.
A. Beneficial Relationship Exception.
Courts examine the beneficial relationship exception on a case-by-case basis, taking into account the many variables which affect a parent/child bond. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) “The age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.” (Ibid.)
For the exception to apply, however, the law 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. [, supra, ] 27 Cal.App.4th [at p.] 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 parent’s rights are not terminated.’ (Id. at p. 575.)” (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)
In this case, the court properly concluded there was no evidence D. would benefit from continuing the relationship to such a degree that it would outweigh the benefit to her of being adopted. It is undisputed that the parents maintained regular visitation and contact with D. over the course of her dependency. There was also evidence D. knew who her parents were, enjoyed her visits with them, and was loving and affectionate towards them. Such proof, however, is not enough. Because contact between parent and child generally confers some benefit on a child, the parent must demonstrate more than pleasant visits or frequent and loving contact. (In re L.Y.L., supra, 101 Cal.App.4th at pp. 953-954.)
There was simply no evidence, let alone uncontradicted and unimpeached proof, that D. would be greatly harmed if she could no longer see either of her parents. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.) To the extent the parents and their witnesses testified that D. did not want to leave or appeared sad or even cried at the end of their visits, such testimony did not compel a finding that termination would be detrimental to her.
We also note the parents’ lack of credibility with the court. Indeed, the appellate record is very striking in terms of the parents’ historical lack of candor and insight regarding their circumstances, abuse issues, and relationships with their children. In addition, all of the witnesses’ testimony - regarding the nature of the parents’ relationship with D. prior to her 2007 detention - was in such stark contrast to the jurisdictional facts found true in 2007 as to raise serious questions about their credibility at the section 366.26 hearing. This may have properly led the court to give little or no weight overall to their testimony. In any event, evidence that a child is physically close to a parent during visitation, does not want a happy visit to come to a close, and may be sad as a result does not compel a finding that the child’s relationship with the parent is so beneficial that it outweighs the benefit of adoption. (In Re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)
B. The Sibling Relationship Exception.
Section 366.26, subdivision (c)(1)(B)(v), provides that a court may find termination would be detrimental to 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).)
In this case, the court explained because D. had been a baby for most of the time that D. and G. lived together, it could not find that they shared significant common experiences. It noted in the process the 13-year age difference between the sisters. Father criticizes the court’s observation as a conclusion the sisters could not have anything in common and the sibling relationship envisioned by the statute could not have existed. We do not share father’s interpretation of the court’s remarks.
The court essentially explained it was not going to infer the sisters shared significant common experiences from the time the sisters lived together because for most of that time D. had been a baby. We note in this regard that neither parent had introduced any evidence that the sisters in fact shared significant common experiences as required under the statute.
In any event, the court also determined it did not find there was sufficient evidence to show that ongoing contact was in D.’s best interests so as to outweigh the benefit of permanency she would gain through adoption. We agree. Indeed, we conclude, notwithstanding the evidence of D.’s relationship with G., there was no evidence that ongoing contact was in D.’s best interest, including her long-term emotional interest, as compared to the benefit of legal permanence through adoption. (§ 366.26, subd. (c)(1)(B)(v).)
It may well be that ongoing contact would be in her sister G.’s best interests. However, the court may reject adoption under the sibling relationship exception only if it finds adoption would be detrimental to the child whose welfare is being considered. (In re Celine R., supra, 31 Cal.4th at pp. 49-50.) In this case, that child would be D., not her younger sister. The court may not prevent a child from being adopted solely because of the effect the adoption may have on a sibling. (Ibid.)
Finally, any interference in the relationship between the sisters appears attributable to G.’s decision she was unhappy in the maternal grandparents’ home and no longer wished to live there. There was no evidence that the maternal grandparents did not want the sisters to maintain a relationship or would prohibit them from visiting one another. Indeed, G. acknowledged in her own testimony it was not that she would be unable to see D. Rather, G. anticipated she would find it very hard because she did not think she had the best relationship with the maternal grandparents. That is a far cry from termination substantially interfering with D.’s relationship with G.
DISPOSITION
The order terminating parental rights is affirmed.