Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. EJ2755A-B Gary M. Bubis, Judge.
NARES, J.
Ebony S. and Patrick N. appeal the judgment terminating their parental rights over their daughter, E.N., and Ebony appeals the judgment terminating her parental rights over her daughter, E.S. Ebony and Patrick contend the juvenile court erred by declining to apply the beneficial parent-child relationship exception to termination (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A)) as to Ebony and both children, and as to Patrick and E.N. Ebony and Patrick also contend the San Diego County Health and Human Services Agency (the Agency) failed to preserve E.S.'s and E.N.'s relationship, and thus is precluded from denying the existence of the sibling relationship exception (§ 366.26, subd. (c)(1)(E)). We affirm.
Statutory references are to the Welfare and Institutions Code. Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52, pp. 4999-5000.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
BACKGROUND
In May 2006 when E.S. was 21 months old and E.N. was nearly three months old, the Agency filed dependency petitions because Ebony admitted using marijuana in April and while pregnant with both children, E.N. had a positive toxicology for marijuana at birth, the police smelled marijuana in the home when E.N. was present, and Patrick had failed and was unable to protect E.N.
E.N.'s petition also contained an allegation of domestic violence, which the court dismissed at the jurisdictional hearing.
E.S. was detained with maternal aunt,Nicole J., with whom she lived for six months, and E.N. was detained in a foster home. In June 2006 E.N. was moved to another foster home. This foster home and the aunt's home later became placements. Nicole wished to adopt E.S., but was unable to adopt E.N., and in April 2007 E.N. was moved to a prospective adoptive home. The section 366.26 hearing took place in July.
THE BENEFICIAL RELATIONSHIP EXCEPTION
Section 366.26, subdivision (c)(1) allows termination of parental rights upon clear and convincing evidence of adoptability. An exception exists if "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).) A beneficial relationship is one 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The existence of this relationship is determined by "[t]he 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. . . ." (Id. at p. 576.) We examine the evidence in the light most favorable to the judgment to determine whether substantial evidence supports the finding the parents met their burden of showing a beneficial relationship. (Id. at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
At times, Ebony maintained regular visitation with the children, at other times she did not. The record does not reveal any visits between Ebony and E.S. after February 20, 2007. After a March 7 visit, Ebony did not visit E.N. again until April 12, then after an April 19 visit, did not visit or call to inquire about E.N. until July 12. Initially, Patrick visited E.N. regularly but did not see her for three months between December 2006 and February 2007. By the time of the hearing, Patrick had not seen E.N. for two or three months and had not called to ask about her for two months.
At the time of the section 366.26 hearing, E.S. was nearly three years old. She had been out of Ebony's custody for at least one year eight months, and was bonded to Nicole, with whom she had lived for that period. While E.S. called Ebony "mommy" and enjoyed seeing her, E.S. parted from her without becoming upset, and Ebony led an unstable life and continued to have problems with law enforcement. Adoptions social worker Lizann Camacho believed Ebony and E.S. did not have a parent-child relationship, the benefits E.S. would obtain from adoption outweighed the benefit she derived from her relationship with Ebony, and it was in E.S.'s best interest to grow up in Nicole's safe, stable, and nurturing home.
Ebony argues Camacho was not in a position to assess her relationship with E.S. because she saw them together only once, and admitted she needed to observe four to six visits to determine whether there was a beneficial relationship. Camacho did testify she needed to observe approximately four to six visits — usually, approximately four — to form an opinion about the parent-child relationship and she had observed one visit between Ebony and E.S. Camacho's report, however, states she also observed two visits with Ebony and both children, and one visit with both parents and both children. Thus, Camacho observed Ebony and E.S. together a total of four times. Additionally, Camacho reviewed the report of former social worker Andria Flores, who observed two visits between Ebony and E.S.
At the time of the section 366.26 hearing, E.N. was nearly one and one-half years old. She had been out of her parents' custody for almost one year two months. She had been in her prospective adoptive home for nearly three months, and was thriving there and bonding to her caregivers. According to Camacho, the home provided her with love, stability, and safety; it was in her best interests to continue living there; and the benefits she would obtain from adoption outweighed her biological ties with her parents. Patrick was patient, kind, and affectionate with E.N., and appropriately monitored her activities during visits, and she eventually became comfortable with him. She separated from him easily, however, and did not view him as her father. Ebony did not always behave appropriately during visits with E.N., and E.N. did not warm up to her easily but separated from her easily.
The juvenile court did not err by failing to apply section 366.26, subdivision (c)(1)(A).
THE SIBLING RELATIONSHIP EXCEPTION
When E.N. was born in February 2006, E.S. was one and one-half years old and living with Nicole. E.N. and E.S. never lived together. Between November 8 and December 20 they saw each other four times during visits with Ebony and Patrick, and once while waiting for Ebony who was late for a visit. At the January 2007 six-month review hearing, the court ordered "sibling visitation . . . shall occur." The last time E.S. and E.N. saw each other, however, was at the December visit or, as Patrick claimed, sometime in 2007.
Camacho testified she gave Nicole the telephone numbers of E.N.'s caregivers, but there were no sibling visits because Nicole did not arrange them. Camacho never observed a visit between E.S. and E.N. and because they never lived together, Camacho did not believe this would have helped her evaluate their relationship. Camacho concluded they did not have a bonded sibling relationship.
Ebony testified that at one visit E.S. asked where her baby sister was. Patrick testified he saw E.S. and E.N. together at two visits, every time he saw E.S. she asked where E.N. was. E.S. pronounced E.N.'s name, referred to E.N. as her little sister, retrieved her bottle when it fell, and played with her.
The Agency argues Ebony and Patrick forfeited the right to raise the lack of sibling visitation by failing to do so below. We disagree. The Agency does not explain how Ebony and Patrick were supposed to know whether sibling visits were occurring, and the record does not show they were aware of the lack of visits. E.S. and E.N. were too young to volunteer this information, and in any case, parents should not have to question their children regarding such matters. There was no forfeiture.
It was the Agency's responsibility to facilitate sibling visits. It failed to meet this responsibility, and proffers no legally plausible excuse. Giving one caregiver's telephone number to the other caretaker falls woefully short of the required "diligent effort . . . to develop and maintain sibling relationships [and] provide for ongoing and frequent interaction among siblings . . . ." (§ 16002, subd. (b).)
Nevertheless, under the circumstances of this case, there was no reversible error. The application of section 366.26, subdivision (c)(1)(E) requires the juvenile court to "balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer." (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951, citing In re Autumn H., supra, 27 Cal.App.4th 567, 575.) Factors to be considered include whether the siblings were raised in the same home, whether they shared significant common experiences or have existing close and strong bonds, and whether ongoing contact is in their best interests, including their long-term emotional interest. (§ 366.26, subd. (c)(1)(E).) Here, sibling visitation would not have altered the fact that E.S. and E.N. never lived together. In view of the fact they never lived together, and in view of their ages, visitation could not have created significant common experiences or close and strong bonds such that their interests in ongoing contact would have outweighed the benefits of adoption.
DISPOSITION
Judgment affirmed.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.