Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK65472 Jan G. Levine, Judge.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Timothy M. O’Crowley, Deputy County Counsel, for Plaintiff and Respondent..
CHAVEZ J.
Appellant H.C., Sr. (father) appeals from the juvenile court’s order terminating his parental rights over minors H.C. (born in May 2004) and N.Q. (born in September 2006). We affirm the juvenile court’s order.
BACKGROUND
1. Detention and Section 300 Petition
In September 2006, newborn N.Q. and his mother, E.Q. (mother), both tested positive for methamphetamine. On October 1, 2006, the Department of Children and Family Services (the Department) received a referral alleging general neglect of N.Q. and at risk sibling abuse of H.C., C.F., and A.F. Mother admitted using methamphetamine while pregnant with N.Q. because she was depressed and believed that father was cheating on her. She told the social worker that father was at times verbally abusive toward her. She also said that she did not feel comfortable leaving the children with father.
H.C. and N.Q. are the only minors who are the subjects of this appeal.
Mother had a history of drug use. N.Q.’s older sibling, H.C., was born with a positive toxicology screen for cocaine, and from July 2004 to September 2005, mother had participated in a voluntary family maintenance program during which she completed an out-patient substance abuse program, counseling, and random drug testing. The Department had also received a previous referral in May 2006, alleging general neglect of H.C. by mother and at risk sibling abuse of C.F. and A.F. Those allegations were substantiated.
In October 2006, father, mother, and the Department agreed to a voluntary family maintenance plan. Mother agreed to enroll in an in-patient drug treatment program and to participate in domestic violence counseling, parenting classes, and random drug testing. Father agreed to participate in domestic violence counseling, parenting classes, and random drug testing. Mother entered an in-patient drug treatment program but left the program after only a few days. Minors were thereafter placed in foster care, and their sibling C.F. was placed with a maternal aunt.
On October 23, 2006, the Department filed a petition under Welfare and Institutions Code section 300, subdivision (b), alleging that both mother and N.Q. had positive toxicology screens for methamphetamine, and that mother’s illicit drug use interfered with her ability to provide minors with regular care and supervision and endangered the children’s physical and emotional health and safety. The petition further alleged that father had failed to take action to protect the children.
All further statutory references are to the Welfare and Institutions Code.
At the detention hearing held on October 23, 2006, the juvenile court found father to be the presumed father of H.C. and N.Q. The juvenile court further found a prima facie case for detaining minors. The court ordered that minors remain in shelter care until father’s home could be evaluated but authorized the Department to release minors to father if the results of the evaluation were positive.
2. Jurisdiction and Disposition
At the time of the November 20, 2006 jurisdiction/disposition report, minors were placed with father and C.F. was placed with a maternal aunt. The Department’s social worker interviewed mother on November 8, 2006. Mother told the social worker that she began using drugs when she was in her twenties. She became addicted to marijuana, and was arrested for possession and ordered to complete a drug treatment program. After mother completed the drug program, she stopped using marijuana but began using methamphetamine. Mother admitted using methamphetamine on the day she went into labor with N.Q., but insisted that was the only time she used drugs during the pregnancy. Mother said that she and father sometimes have arguments, but denied any domestic violence.
In a separate interview, father told the Department social worker that he knew of mother’s past drug use but denied knowing that mother was currently abusing drugs. Father said that mother had behaved normally throughout her pregnancy but that she behaved oddly on the day she went into labor. Father denied any domestic violence in his relationship with mother.
At the November 20, 2006 jurisdiction/disposition hearing, the juvenile court found allegations concerning mother’s drug use and father’s failure to protect the children from mother’s conduct to be true, and sustained the allegations of the amended petition. Minors were placed with father, who was ordered to complete a parent education course. A maternal aunt agreed to provide father with paid childcare assistance. Sibling C.F. was placed with a different maternal aunt.
3. Section 342 Petition
On January 16, 2007, the Department detained minors from father’s custody and filed a petition under section 342, alleging that father had left minors with a maternal aunt for several days and failed to make an appropriate plan for their ongoing care and supervision. The maternal aunt reported that father was leaving the children with her for days at a time and failed to pay her for childcare services or to reimburse her for formula and diapers. The maternal aunt said that father did not have minors with him on Christmas day and that the children received no gifts or visits from him. Both mother and the maternal aunt stated that father questioned his paternity of N.Q. Father had also failed to keep N.Q.’s immunizations current and to schedule and keep medical appointments for the child.
Father admitted not taking N.Q. to doctor visits because he thought the maternal aunt was responsible for doing so. He also admitted questioning his paternity with regard to N.Q. Father agreed that it would be in minors’ best interest if they remained in the care of their maternal aunt. He signed a safety plan in which he agreed to have both N.Q. and H.C. placed with the maternal aunt.
At the January 16, 2007 hearing on the section 342 petition, father indicated that he did not object to the removal of minors from his custody but requested unmonitored visits with them. The juvenile court ordered minors placed with their maternal aunt and granted father unmonitored visits.
In its jurisdiction/disposition report on the section 342 petition, the Department reported that father had a criminal record that included a 1998 arrest for corporal injury of a spouse that resulted in a conviction for battery, and a 2001 conviction for theft. In an interview with the Department social worker, father admitted leaving the children with their maternal aunt from Christmas to New Year’s without telling the aunt that he intended to leave minors with her during that week and without calling to check on the children during that time period. Father acknowledged that he had acted irresponsibly. When asked whether he felt the children could be returned to him, father replied that he preferred to leave them in the maternal aunt’s care so that he could help mother complete her court ordered programs so mother could regain custody of the children. Father had not yet enrolled in his court ordered parenting program. He visited regularly with minors on Sundays for three hours, and usually took them to the park to play and have lunch.
Mother told the Department’s social worker that father was immature and could not care for the children. She expressed concern for minors’ safety and said that they should remain in the care of their maternal aunt. The maternal aunt reported that father was inconsistent in his payments for her childcare services and in providing for the children’s basic needs while they were in her care.
At the hearing on the section 342 petition, the juvenile court found the allegations of the petition to be true, and removed the children from father’s custody.
4. Review Proceedings
In a status review report dated May 21, 2007, the Department reported that minors were now placed with their maternal grandmother. Sibling C.F. had initially been placed with the maternal grandmother as well, but had been removed from the home because he was defiant and ran away. After being replaced in a group home, and then running away from that home several times, C.F. was then placed with his father, C.F., Sr.
Mother and father were living together in a one bedroom apartment. Mother had partially complied with her case plan. She had dropped out of her drug treatment program in early February 2007 but had since enrolled in another treatment program. Father had been attending parenting classes since March 19, 2007, but had not yet completed the program. Father and mother told the Department social worker that they wanted minors to remain placed with the maternal grandmother until both parents completed their court ordered programs.
Father had regular unmonitored visits with the children every Sunday. The maternal grandmother reported that H.C. was excited about the visits.
At a May 21, 2007 status review hearing, father’s counsel advised the juvenile court that father had completed his court ordered parenting program, but that father understood that minors could not be returned to his custody so long as he continued to live with mother. The juvenile court ordered minors to remain placed with their maternal grandmother and ordered continued family reunification services for both parents.
In a status review report dated November 19, 2007, the Department reported that sibling C.F. was now living with mother and that minors remained placed with their maternal grandmother. Mother and father continued to live together, but their relationship was strained. Mother wanted to move out of the apartment she shared with father but had nowhere to go. According to mother, father ignored N.Q. and interacted only with H.C. In addition, mother was having difficulty with C.F., who had been suspended from school and who ran away from home. Mother was also pregnant with another child.
Father had completed his court ordered parenting program and visited the children at least three times a week on a consistent basis. During visits, father sometimes left N.Q. at home with the maternal grandmother and took only H.C. with him. Father stated that he does not like to take N.Q. because the child is too much work and because father does not like to carry a baby who cannot walk. The Department social worker observed that while H.C. appeared to be bonded with father, there was minimal bonding between father and N.Q.
At the November 19, 2007 review hearing, the juvenile court ordered that minors remain in their current placement and ordered continued reunification services for both parents.
In April 2008, the Department reported that minors’ maternal grandmother was willing to adopt them in the event their parents were unable to reunify with them. A home study had been approved for the maternal grandmother. N.Q. appeared to be developmentally on target, but H.C. was displaying speech delays and was to be referred for a speech evaluation and assessment.
Father visited regularly with minors, but continued to demonstrate a preference for H.C. over N.Q. Father and mother continued to live together, but father’s involvement with other women was putting a strain on the couple’s relationship. In addition, father was refusing to provide monetary support for mother, who had given birth to another child, J.C., in February 2008. C.F., who was living in the same home with mother and father, was reacting by refusing to attend school, by using and selling drugs, and by stealing from mother.
In May 2008, the Department reported that mother had sought psychiatric help and was hospitalized for 72 hours. Mother was diagnosed with depression and was prescribed Prozac. Mother and father were receiving counseling in an effort to resolve the conflicts in their relationship and home environment. The parents’ therapist told the Department social worker that mother and father had many issues to resolve before minors could be returned to them. The Department recommended that H.C. and N.Q. remain placed with their maternal grandmother and that family reunification services be terminated for both parents.
At a hearing on May 27, 2008, the juvenile court found father to be in partial compliance with his case plan. The court further found that reasonable efforts had been made to enable the children’s safe return to their parents, but that continued jurisdiction was necessary because returning the children to their parents would place them at substantial risk of harm. The court terminated family reunification services for both parents and ordered the Department to provide permanent placement services.
5. Section 366.26 Proceedings
In its September 29, 2008 section 366.26 report, the Department reported that minors were emotionally bonded with their maternal grandmother, with whom they had been living since April 11, 2007, and who was willing to adopt them. Visits between minors and their parents had been sporadic. Both parents frequently cancelled visits or failed to show up. Some of the visits were disrupted because of arguments between mother and father. The matter was set for a contested section 366.26 hearing.
On October 24 and 27, 2008, both parents filed separate section 388 petitions seeking to reinstate their respective family reunification services The juvenile court denied both petitions.
In November 2008, the Department reported that the maternal grandmother continued to care for N.Q. and H.C. Minors were bonded to their grandmother and showed their affection for her. The maternal grandmother had taken steps to address H.C.’s speech delays by having him assessed and enrolled in a speech therapy program. Father was making more of an effort to visit with the children but still occasionally missed visits. At a November 24, 2008 hearing, the juvenile court found permanent placement with the maternal grandmother, with the goal of adoption to be the appropriate permanent plan.
In December 2008, the Department reported that it had interviewed C.F. regarding the adoption of his siblings H.C. and N.Q. At the time of the interview, C.F. was detained at a juvenile detention camp. C.F. said he did not want H.C. and N.Q. to be adopted because he felt his mother was being treated unfairly. He further stated his belief that the maternal grandmother lied about the frequency of mother’s visits with minors. C.F. acknowledged, however, that if mother could not reunify with H.C. and N.Q., they would be better off in their maternal grandmother’s care.
Father had enrolled in a domestic violence program in late September 2008 and had completed nine sessions and missed two. A progress report from father’s counselor stated that father had participated in 9 of out 16 classes and was “participating well.” Father had also been consistent in his visits with minors.
On August 15, 2008, minor J.C. was detained because father and mother were arguing and behaving erratically. At a team decision meeting held that same day, father said that mother had attempted to run him over. The Department concluded that father’s behavior demonstrated that he was unable to protect the children from mother, continued to engage in arguments with her, and attempted to cover up for her.
The Department filed a section 300 petition with respect to J.C., who was subsequently removed from father’s and mother’s custody and placed with the maternal grandmother.
A contested section 366.26 hearing was held on December 16, 2008. C.F. testified at the hearing that he wanted H.C. and N.Q. to be returned to father and mother rather than be adopted by the maternal grandmother. He expressed concern that he would not be permitted to see his siblings if they were adopted by the maternal grandmother because he did not get along with the grandmother. C.F. said he felt “very close” to H.C. and N.Q., and that he played with them and helped care for them during visits with mother. At the conclusion of C.F.’s testimony, the matter was continued.
After C.F.’s testimony was concluded, the juvenile court terminated dependency jurisdiction over C.F. because he had been declared a ward of the juvenile court pursuant to section 602.
At the continued section 366.26 hearing on January 28, 2009, the juvenile court heard argument from the parties and then found minors to be adoptable. The juvenile court further found that none of the parties had met their burden of establishing that the exceptions to terminating parental rights under section 366.26, subdivisions (c)(1)(B)(i) and (v) applied. The court then ordered the termination of father’s and mother’s parental rights. Father appeals from that order.
DISCUSSION
I. Standard of Review
In reviewing a trial court’s determination on the applicability of statutory exceptions to terminating parental rights, appellate courts have applied both the substantial evidence standard and the abuse of discretion standard. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) “The practical differences between the two standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling.... Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he [or she] did.’... ”’ [Citations.] However, the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since [subdivision (c)(1)(B) of] the statute now requires the juvenile court to find a ‘compelling reason for determining that termination would be detrimental to the child.’ [Citation.] That is a quintessentially discretionary determination. The juvenile court’s opportunity to observe the witnesses and generally get ‘the feel of the case’ warrants a high degree of appellate court deference. [Citation.]” (Ibid.)
II. The Parental Relationship Exception
Father contends the juvenile court erred by concluding that the parental relationship exception to terminating parental rights set forth in section 366.26, subdivision (c)(1)(B)(i) did not apply. Section 366.26, subdivision (c)(1)(B)(i) provides an exception to terminating parental rights when “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” The parent bears the burden of proving the applicability of the exception. (In re L. Y.L. (2002) 101 Cal.App.4th 942, 953-955.)
“When contesting termination of parental rights under the statutory exception that the parent has maintained regular visitation with the child and the child will benefit from continuing the relationship, the parent has the burden of showing either that (1) continuation of the parent-child relationship will promote 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 [citation] or (2) termination of the parental relationship would be detrimental to the child. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) “The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “[T]he exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.)
To establish the applicability of the exception, a parent must show more than “‘frequent and loving contact’ [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.] Rather, the parents must show that they occupy ‘a parental role’ in the child’s life. [Citation.]” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) “[A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child’s need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
Father did not meet his burden of showing that he occupied a parental role in his children’s lives. When minors were initially placed with him, father failed to fulfill his responsibilities as a parent. He failed to schedule medical examinations for N.Q. because he thought the children’s maternal aunt was responsible for doing so. He left minors in the care of their maternal aunt for days at a time, without explanation and without calling to check on them. He failed to provide the maternal aunt with sufficient formula or diapers for the children, and at times failed to reimburse her for their care. He expressed the opinion that the children were better off in the care of their maternal aunt.
After minors were removed from his custody, father visited them once a week but sometimes refused to take N.Q. along, claiming it was too much work to carry and care for a baby. He also questioned his paternity of N.Q. and demonstrated a preference for H.C. The Department’s social worker observed minimal bonding between father and N.Q. By September 2008, father’s visits became sporadic. He often cancelled visits or failed to show up. Some visits were disrupted by arguments between mother and father.
In contrast, the maternal grandmother has assumed the parental role in the children’s lives. She has provided for the children’s needs, addressing H.C.’s speech delay problems by having him assessed and arranging for speech therapy. She has ensured that the children have regular medical and dental examinations and that their immunizations are current. The children are emotionally bonded with her, and she is willing to adopt them.
Substantial evidence supports the juvenile court’s determination that the parental exception to terminating father’s parental rights did not apply. The juvenile court did not abuse its discretion by terminating father’s parental rights.
III. Sibling Exception to Terminating Parental Rights
Father also failed to establish the applicability of the sibling exception to terminating parental rights under section 366.26, subdivision (c)(1)(B)(v). Under that section, the juvenile 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, 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).) “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. [Citation.]” (In re L. Y. L., supra, 101 Cal.App.4th at p. 952.)
To show a substantial interference with a sibling relationship, the person opposing the termination of parental rights “must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship.” (In re L. Y. L., supra, 101 Cal.App.4th at p. 952, fn. omitted.)
Father did not meet his burden of establishing a significant sibling relationship between minors and C.F. The record shows that minors and C.F. were not raised together in the same home. Although H.C. and C.F. lived in mother’s home for approximately two years, by the time of the section 366.26 hearing, they had lived apart from one another for an equal amount of time. C.F. and N.Q. have not lived in the same home, apart from a brief period when C.F. lived with his siblings in their maternal grandmother’s home.
Minors have not shared any significant common experiences with C.F., who is a ward of the juvenile court pursuant to section 602 and who has struggled with his own drug abuse problems. C.F. has also defied his parents, grandmother, and teachers, and failed to avail himself of services provided by the Department.
Substantial evidence supports the juvenile court’s finding that minors did not share a significant sibling relationship with C.F.
DISPOSITION
The order terminating father’s parental rights is affirmed.
We concur: DOI TODD Acting P. J., ASHMANN-GERST, J.