Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Ct. No. CK72581, David R. Fields, Judge.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Jacklyn K. Louie, Principal Deputy County Counsel.
EPSTEIN, P. J.
This appeal concerns Frank G., the youngest of mother’s six children detained by the Department of Children and Family Services when found alone in a motel room in the middle of the night with access to rock cocaine. The other children are not involved in this appeal. Mother A.P. appeals from the court’s order terminating her parental rights to Frank. She challenges the court’s finding that the parent-child and sibling relationship exceptions to adoption did not apply. We find substantial evidence to support the court’s order and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Frank was two months old when law enforcement officers found him and five siblings (ages 3 to 12 years old) alone in a motel room at 2:00 a.m. Rock cocaine was found in mother’s purse in the room. When mother and Frank’s father returned at 3:00 a.m., a plastic bag with residue of rock cocaine was found during a search of Frank’s father. The officers arrested mother for possession of drugs and Frank’s father for child endangerment. The children were taken into protective custody and the eldest five were placed in foster care. The social worker observed blood in Frank’s stool and he was hospitalized for an infection.
Frank’s father apparently also fathered A.G., but not the other children. Two other men were the fathers of the half-siblings. None of the fathers is a party to this appeal.
The Department of Children and Family Services (the Department) filed a petition on April 14, 2008 alleging that the minors came within Welfare and Institutions Code section 300. Mother had a history of three substantiated referrals to the Department since 1998. She and her children received family maintenance services from July 14, 2005 to May 2, 2006. Another son of mother, Mark S., was receiving permanent placement services under a legal guardianship in Merced County.
Statutory references are to the Welfare and Institutions Code.
Mother and Frank’s father waived trial and submitted on the amended petition. The court sustained four counts of the petition relevant to Frank G. as amended. The children were declared dependents of the court under section 300, subdivisions (a), (b), and (j). The court found by clear and convincing evidence that, as to mother, there was a substantial danger to the childrens’ physical health, safety and emotional well-being if they were returned home to her. Two of the children were released to their father (not Frank’s father). Frank and the remaining children were detained and placed in separate foster homes. Mother was ordered to have monitored visits, and family reunification services including drug rehabilitation with random testing, parenting classes, and individual counseling. The Department was given discretion to liberalize mother’s monitored visitation.
Frank was initially placed in the home of Ms. T., and in September 2008 Frank was placed in the home of his paternal aunt where he did well. Mother suffered a nervous breakdown one week before completing a 90-day rehabilitation program and was hospitalized until October 6, 2008. As of November 12, 2008, mother had not yet enrolled in outpatient services, parenting education classes, and individual counseling. She had randomly tested negative for drugs while in the rehabilitation program. Mother had three visits with Frank and some of his siblings in May, July, and August of 2008. Visitation was suspended while mother received in-patient mental health care. The Department recommended that mother be offered an additional six months of family reunification services. On November 12, 2008, the juvenile court found mother in partial compliance with her program and services were ordered to continue through May 13, 2009.
Mother’s compliance with her program improved in early 2009. The Department allowed her to have unmonitored visits. Mother was in a residential treatment program receiving mental health services and participating in parenting education and individual counseling. She had tested negative for drugs. Frank was thriving in the home of his aunt and his developmental, medical, emotional, and basic needs were being met. He had regular contact and visitation with paternal relatives and siblings. Mother’s unmonitored day visits with Frank and his siblings D.C. and A.G. were liberalized to unmonitored overnight visits in late March 2009 for every other Saturday. On alternate weekends, mother visited the children at their respective placements. The caregiver for Frank reported that he did not demonstrate any behaviors causing concern after visits.
In light of mother’s progress, the Department suggested that the children gradually be returned to the home of the mother at intervals, beginning with D.C., with family preservation services to be provided. The court adopted that suggestion as its order, ordering D.C. returned to mother at her residential treatment facility.
By mid-2009, mother’s circumstances had deteriorated. She was terminated from her residential treatment facility when she and D.C. were disruptive. An investigation was conducted regarding allegations of child abuse against D.C. and he was hospitalized due to concern he could harm himself as a result of negative interactions with mother. As of the July 20, 2009 interim review report, mother and D.C. had been living together at a motel for six weeks with no permanent living arrangement. The Department was attempting to locate housing. These developments set back the timelines for returning the remaining three children, including Frank, to mother.
Mother had positive drug tests in July, August, September, and October 2009. Mother attributed this to a relapse, but said she was still committed to remaining sober for her children and had attended parenting classes and participated in family preservation services. She was in full compliance with parenting education and individual counseling. Mother continued to have unmonitored overnight visits with A.G. and Frank on weekends. The children exhibited appropriate behavior after these visits. The Department recommended that reunification services for mother with Frank, A.G., and J.A. be terminated and that a section 366.26 hearing be held to select and implement a permanent plan. In October 2009, mother continued to struggle with housing. She was then in transitional housing available to her and her children for only five months. Frank remained placed with his paternal aunt to whom he had a significant attachment. She made the child available for regular visits with mother and assisted in maintaining family relationships.
A contested 18-month hearing was held on December 10, 2009. Mother testified that she wanted all her children returned to her custody. She testified that her boyfriend of nearly a year was not left alone with the children, did not spend the night, and had not submitted to Live Scan. She was trying to find affordable permanent housing. The Department said it could not recommend returning Frank and his two siblings to mother’s custody. It noted that although mother was in her third rehabilitation program, she testified that she did not currently have a problem with substance abuse. There was a concern that returning the three other children would jeopardize D.C.’s placement with mother and her recovery. Since mother had been given 18 months of services, the Department could not recommend continued reunification services and felt it best to terminate reunification services and set a permanency planning hearing under section 366.26.
Counsel for the children agreed with the Department’s recommendation. He noted mother’s difficulty with having D.C. in her custody, and raised the concern that she would be overwhelmed if the other children were placed with her. Counsel for the children referred to the October 2009 report in which mother had explained her drug relapse was caused by stress related to the return of D.C. to her custody. He was also concerned about mother’s unstable housing situation.
The juvenile court found by a preponderance of the evidence that return of Frank and his siblings to mother’s custody would be detrimental. Reunification services as to Frank, A.G., and J.A. were terminated. All visitation orders were maintained in full force and effect. The court expressed hope that mother would resolve the issues with her boyfriend’s contact with the children, obtain permanent housing, and continue to test clean for drugs. If she did so, the court suggested her counsel file a section 388 petition, but observed that mother was “just not quite ready here.” A section 366.26 hearing was set.
Frank was removed from the home of his paternal aunt at her request on January 4, 2010 and placed with Ms. T. with whom he originally had been placed. The paternal aunt cited the strain of being his primary caregiver and the lack of family support. She had failed to complete the paperwork and interviews for an adoptive home study. Frank was very upset by the move, but after two months developed a secure attachment to the current caregiver, Ms. T. He was thriving in her home. She expressed an interest in adopting him, but an adoption study had not been completed. Ms. T. has three biological children and three foster children. She had a very high level of family support, including her mother and stepfather who were trainers in a program for the Department. Adoption was identified as the permanent plan for Frank. Mother had not visited Frank since February 2010. The Department recommended that parental rights as to Frank be terminated for both mother and father and adoption selected as the permanent plan for him.
At the hearing on April 15, 2010, counsel for mother asked for a continuance because mother was newly incarcerated and counsel needed an opportunity to speak with her client. Mother and her boyfriend had been arrested and charged with robbery. The hearing was continued to June 10, 2010.
The adoption home study for Ms. T., Frank’s caregiver, was approved in April 2010. Father filed a section 388 petition asking the court to vacate the section 366.26 hearing and return Frank to him. Frank’s paternal aunt (who had cared for Frank earlier) was requesting placement with her and a permanent plan of legal guardianship. An issue concerning prior abuse reports regarding Ms. T. was resolved and the Department agreed with the approval of her home as an adoptive home for Frank.
A report for the June 10, 2010 hearing stated that mother’s visits had been inconsistent and as a result Frank had not established significant bonding with mother. Ms. T. was willing to encourage and facilitate ongoing sibling contact because she believed it was in Frank’s best interest to know his family of origin. The Department recommended termination of parental rights and a permanent plan of adoption as in the best interest of Frank.
The juvenile court ordered additional visitation for Frank with his siblings A.G. and D.C. Ms. T. was willing to facilitate visits, but the paternal relatives had not visited Frank since May 2010. Since jurisdiction over A.G. had been terminated, the Department was unable to interview her or facilitate visitation between her and Frank. D.C.’s continuing unstable mental health and placements had hindered visitation with Frank. Frank had not demonstrated a significant attachment to D.C. and visits had been infrequent and sporadic. The paternal aunt who formerly served as caregiver for Frank had been arrested and charged with narcotics sales.
The interim review report for June 30, 2010 stated that Frank was thriving in the home of Ms. T. She remained committed to adopting him and to facilitating ongoing contact between Frank and his siblings and other relatives so long as his safety was not put at risk. The Department determined that the option for reunification with mother was not appropriate due to mother’s persistent mental health and substance abuse issues. She had not been able to provide a safe and stable home environment. The report said that there was no significant bond between Frank and siblings D.C. or A.G. “that would be sufficient enough of a reason to prevent placement in a permanent plan of adoption.” Since Ms. T. was willing to facilitate sibling and relative visits, the Department concluded that the limited sibling bond would be nurtured by the current caregiver. The paternal aunt was no longer considered an appropriate placement for Frank because of her failure to provide him stable placement, her recent involvement in criminal activities, and her unsafe associations with active gang members. The Department recommended that parental rights be terminated and that Frank be placed for adoption.
The contested section 366.26 hearing took place on July 27 and 28, 2010. Mother testified about her unmonitored weekend visits with Frank and his siblings in 2008. She said visitation stopped in February 2010 because she was moving and had no place for him to visit. She also had limited telephone access. Mother was incarcerated from April 2010 until June 30, 2010. She had two visits after her release and played with Frank. He was happy to see her and cried when the visit ended. She said she felt she and Frank had a bond, and that he knew his siblings. Frank had more visits with A.G. than with D.C. because they lived on the same property during the time Frank was placed with his aunt. Father testified that after he was released from incarceration on May 14, 2010, Frank and A.G. had seen each other every weekend.
Mother’s attorney argued that her parental rights should not be terminated because the parent-child and sibling relationship exceptions applied. She also argued the Department failed to investigate family members identified by mother as possible placements for Frank when he was removed from the home of his paternal aunt. Counsel for Frank expressed concerns about Frank’s placement in the home of Ms. T. in light of the prior child abuse referrals. All but one of these referrals were found unsubstantiated. As to the one substantiated claim, possession of a gun by Ms. T.’s husband, the evidence was that she immediately left him and took the children with her.
Counsel for Frank also expressed concern about the number of children in Ms. T.’s care. He also argued that the parents did not qualify under the parent–child exception to termination of parental rights. He contended that the relationship between the children did not rise to the level required for the sibling exception to termination of parental rights.
The trial court terminated mother’s parental rights. It found the parent-child relationship exception did not apply because mother had not played a parental role in Frank’s life to outweigh the benefit he would get from an adoptive home. The court noted that mother’s visits since February 2010 had been few and far between, in part because she was incarcerated. Frank, who was two and one-half years old at the time of the hearing, had spent only the first two months of his life living with mother. The court also found the sibling exception did not apply, noting that for the previous six months there had been little relationship between the siblings. The court noted that Frank had spent a total of 10 to 11 months in the home of Ms. T. and was thriving. The court rejected the argument that her home was unsuitable because of the number of children in the home, noting that the issue at the section 366.26 hearing was Frank’s adoptability. It found by clear and convincing evidence that Frank is adoptable. Mother’s timely appeal followed.
DISCUSSION
I
Mother argues that both the parental relationship and sibling bond exceptions to termination of parental rights under section 366.26 apply and that the juvenile court erred in determining otherwise.
“Adoption must be selected as the permanent plan for an adoptable child and parental rights terminated 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: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. [¶]... [¶] (v) There would be substantial interference with a child’s sibling relationship....’ (§ 366.26, subd. (c)(1)(B).) ‘[T]he burden is on the party seeking to establish the existence of one of the section 366.26, subdivision (c)(1) exceptions to produce that evidence.’ [Citation.]” (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).)
The court in Bailey J. acknowledged a split of authority as to whether the abuse of discretion or substantial evidence standard applies to review of a juvenile court ruling rejecting a claim that an exception to adoption applied. It reconciled the jurisprudence, concluding: “In our view, both standards of review come into play in evaluating a challenge to a juvenile court’s determination as to whether the parental or sibling relationship exception to adoption applies in a particular case. Since the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental or sibling relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court’s determination. Thus, as this court noted in In re I.W. (2009) 180 Cal.App.4th 1517, a challenge to a juvenile court’s finding that there is no beneficial relationship amounts to a contention that the ‘undisputed facts lead to only one conclusion.’ (In re I.W., at p. 1529.) Unless the undisputed facts established the existence of a beneficial parental or sibling relationship, a substantial evidence challenge to this component of the juvenile court’s determination cannot succeed.” (Id. at p. 1314.)
The Bailey J. court concluded that the abuse of discretion standard applies to review of a juvenile court’s mandatory finding as to whether a parental or sibling relationship constitutes a “compelling reason for determining that termination would be detrimental” (189 Cal.App.4th at p. 1315, quoting § 366.26, subd. (c)(1)(B).) We adopt the approach of the court in Bailey J.
II
Mother argues the trial court erred in concluding that parental relationship with Frank did not outweigh the benefits of adoption for him.
“To overcome the preference for adoption and avoid termination of the natural parent’s rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need for a parent. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 466)
The court in Angel B. identified factors to be considered in determining whether a parental relationship is so important and beneficial to a dependent child that an exception to the preference for adoption as a permanent plan is demonstrated: “(1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs. [Citation.]” (In re Angel B., supra, 97 Cal.App.4th at p. 467, fn. omitted.) “Evidence of ‘frequent and loving contact’ is not sufficient to establish the existence of a beneficial parental relationship. [Citation.]” (Bailey J., supra, 189 Cal.App.4th at pp. 1315-1316.) Courts have acknowledged that some incidental benefit to the child is conferred by interaction between a natural parent and child. (Id. at p. 1315.) But “‘[t]he exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.’” (Ibid.)
Mother relies on evidence of her relationship developed with Frank during the period in 2009 when her visits were liberalized to unmonitored, and then overnight visits every other weekend. She recognizes that when D.C. was returned to her custody and she was forced to leave her rehabilitation program, plans to reunify the family “collapsed.” By early 2010, mother lost her housing and then was incarcerated from April to June. She resumed visits upon her release, and testified that Frank was excited to see her.
The Department points out that Frank lived with mother for only the first two months of his life, then was detained. In 2008, mother visited the children only once a month between May and August, when her therapeutic center suspended visits. Mother had unmonitored day and then weekend visits through most of 2009. But the situation worsened when mother had positive drug tests in July through October 2009 during a relapse. In the months leading up to the section 366.26 hearing in 2010, mother visited only once or twice, in part because of her unstable housing situation and in part due to her incarceration.
In re Brandon C. (1999) 71 Cal.App.4th 1530, cited by mother, is distinguishable. In that case, the mother had visited the children every week for three years except when she was out of state. The caregiver grandmother testified that the children looked forward to their mother’s visits and had a good relationship with her. In the grandmother’s opinion, termination of the relationship with the parents would not be in the childrens’ best interests because of their good relationships. (Id. at p. 1533.) Here, mother did not have the same consistent visitation. Nor was there evidence by any other witness that termination of parental rights would not be in Frank’s best interest.
In re Amber M. (2002) 103 Cal.App.4th 681, another case cited by mother, is also distinguishable. In that case, a psychologist who conducted a bonding study of mother’s relationship with the oldest dependent child, who was seven years old, concluded that there was a primary maternal relationship and that terminating it would be detrimental to the child who had spent most of her life in her mother’s custody. A court appointed special advocate (CASA) testified that another child loved and missed the mother, and recommended against adoption because of this bond. The child’s therapist also testified that the relationship between this child and the mother was very important and positive, but recommended that the child remain placed with his grandparents with whom he was bonded. (Id. at pp. 689-690.)
The evidence regarding Frank’s relationship here does not rise to this standard. Frank was only two months old when removed from his mother’s custody. He had unmonitored visitation with her for much of 2009, during which time mother fed and bathed him as well as played with him. But then mother’s visitation became sporadic, in part because of her incarceration in 2010. Their loving contact during visits was not sufficient to show the requisite beneficial parental relationship which benefited Frank. Substantial evidence supports the juvenile court’s finding that Mother did not carry her burden of demonstrating a significant, positive emotional attachment between herself and Frank warranting application of the exception. (Bailey J., supra, 189 Cal.App.4th at p. 1315.)
III
Mother also argues that the sibling relationship exception to adoption as the permanent plan applies. “The sibling relationship exception applies where the juvenile court finds that ‘substantial interference with a child’s sibling relationship’ is a ‘compelling reason’ to conclude that adoption would be detrimental to the child. In making this determination, the court should take 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).)” (Bailey J., supra, 189 Cal.App.4th at p. 1317.)
Frank has one biological sibling, A.G., who was 5 when the section 366.26 hearing was held. His half-siblings include D.C. (age 13) and J.A. (age 15). From September 2008 to early January 2010, Frank and A.G. were placed with relatives who lived adjacent to each other. They spent significant time together. D.C. was in other placements, but shared unmonitored visitations with mother, Frank, and A.G. when allowed starting in early 2009. Mother claims Frank had a significant relationship with each of these siblings within the meaning of section 366.26, subdivision (c)(1)(B)(v).
Half-sibling J.A. was placed in northern California and visited less frequently. She told the social worker that she did not really know Frank because of the lack of interaction between them since his birth. Mother acknowledges that the relationship between Frank and J.A. was weak. She also concedes Frank had no qualifying relationship with his half-siblings Jacqueline and A.P., who were placed with their biological father in Las Vegas.
Mother argues that a strong sibling bond was formed before visitation became sporadic in January 2010 with Frank’s return to placement with Ms. T. She contends that we should consider his relationship with A.G. and D.C. as an indicator of possible detriment to Frank because of his young age. While Frank was not fluent at age two and one-half, his brother D.C. and sister A.G. expressed emotional distress when parted from Frank. Both A.G. and D.C. asked about Frank when visiting mother. According to mother, once Frank was placed with Ms. T. again in 2010, he had visits with A.G. but not D.C.
“‘Under section 366.26, subdivision (c)(1)(E), the court is directed first to determine whether terminating parental rights would substantially interfere with the sibling relationship by evaluating the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds. [Citation.] If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the child’s best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption.’ (In re L. Y. L. [(2002)] 101 Cal.App.4th [942, ] 951–952.)” (In re Hector A. (2005) 125 Cal.App.4th 783, 794.)
The Department argues that mother failed to demonstrate the necessary sibling relationship. It contends there was no evidence of existing close bonds or shared common experiences between the siblings, citing evidence that Frank had seen little of his siblings in the six months before the termination of parental rights. Frank was only two and one-half years old at the time of the section 366.26 hearing. He had not lived in the same home with his siblings since he was two months old. He had extensive contact with A.G. before he turned two years old, but sporadic contact thereafter. Since jurisdiction over A.G. was terminated on May 21, 2010, the Department stated it had no authority to interview her. There is little evidence regarding her relationship with Frank.
Frank’s relationship with D.C. was limited by D.C.’s aggressive behavior in foster care, including concealing knives. The Department was waiting for D.C.’s mental health and placement to stabilize before facilitating visitation with Frank. It concluded that based on the social worker’s past interaction with Frank, he did not “demonstrate evidence of a significant attachment with sibling [D.C.]. Frank has not maintained the same residence with [D.C.] since the initial detention. During Frank’s placement with paternal relatives, he had infrequent and sporadic visitation [with D.C.] as the paternal relatives did not facilitate visits.”
Substantial evidence supports the court’s finding that there had been little relationship between Frank and his siblings for the six months prior to the section 366.26 hearing. On this record, a significant relationship was not demonstrated. (Bailey J., supra, 189 Cal.App.4th at p. 1318 [in light of paucity of evidence of sibling relationship, juvenile court not obligated to find a significant relationship].) While there was some evidence that A.G. and D.C. valued their relationship with Frank, there was no evidence to establish that his attachment to them was equally strong. Under these circumstances, the evidence did not compel a finding that there was a sibling relationship beneficial to Frank; accordingly, the sibling relationship exception did not apply. (Ibid.) On this record, particularly in light of D.C.’s continuing serious mental health issues, we cannot conclude the juvenile court abused its discretion in concluding the relationship between Frank and either D.C. or A.G. did not constitute compelling evidence that adoption would be detrimental to Frank. (Ibid.)
DISPOSITION
The order terminating mother’s parental rights to Frank is affirmed.
We concur: MANELLA, J.SUZUKAWA, J.