Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Ct. No. J517130, Laura J. Birkmeyer, Judge.
HUFFMAN, J.
Father Joseph O. and mother D.M. appeal the judgment terminating their parental rights to Jasmine O. D.M. contends the court erred by not applying the beneficial and sibling relationship exceptions (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i), (v)) to termination of parental rights. Joseph contends the court erred by not applying the former exception. D.M. and Joseph join in each other's contentions. We affirm.
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND
In June 2008 the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for Jasmine. The petition alleged Joseph had sexually abused Jasmine's then five-year-old half sister, Alejandra M. At the time the petition was filed Jasmine was nearly one and one-half years old. The court entered a true finding on the petition.
D.M. is Alejandra's mother; Joseph is not Alejandra's father.
When Alejandra disclosed the molestation, Jasmine was in the hospital undergoing unrelated kidney surgery. Jasmine was detained in the hospital for one day then moved to a foster home. In April 2009 Jasmine and Alejandra were placed in the same foster home. Alejandra moved to a new foster home in May 2009 and Jasmine joined her there in June. In October Alejandra began a 60-day trial visit with her father. Alejandra remained in her father's home and her dependency case was closed in September 2010. Jasmine remained in her foster home and her foster parent wished to adopt her.
In March 2010 the court terminated reunification services and set a section 366.26 hearing for Jasmine. In November the court terminated parental rights.
THE BENEFICIAL RELATIONSHIP EXCEPTION
If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One exception exists if "[t]he [parent has] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) 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 considering "[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.) Examining the evidence in the light most favorable to the judgment, we conclude that substantial evidence supports the court's findings that Joseph and D.M. maintained regular visitation and contact, and Jasmine was bonded with them, but the benefits to Jasmine of maintaining that bond were outweighed by the benefits of adoption. (Id. at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
D.M. and Joseph do not contest the juvenile court's finding that Jasmine was adoptable.
Jasmine lived with Joseph and D.M. until she was one year old. At the time of the section 366.26 hearing, Jasmine was three and one-half years old. She had been out of Joseph and D.M.'s care for nearly two and one-half years and had lived in the same foster home for nearly one and one-half years.
Joseph never acknowledged he had molested Alejandra. His visits with Jasmine were always supervised. D.M. initially believed Alejandra was lying about the molestation, but later acknowledged she had failed to protect Alejandra. In 2009 D.M. was allowed unsupervised and overnight visitation. A short time later, D.M.'s visits reverted to supervised status because she took Jasmine to see Joseph and allowed Jasmine to spend the night at Joseph's house.
D.M. and Joseph brought food and games to the visits, were attentive to Jasmine and interacted appropriately and positively with her. Jasmine and D.M. were affectionate and expressed love for each other, as did Jasmine and Joseph. Jasmine was bonded to D.M., referred to her as "mommy, " and even said Joseph was her "mommy." At the close of visits, Jasmine separated easily from Joseph and usually separated easily from D.M.
Jasmine was thriving in her foster home. She had formed a bond with her foster parent, and their relationship was just as affectionate and positive as Jasmine's relationship with Joseph and D.M. Jasmine called the foster parent "mommy" and frequently told her "I love you."
The social worker testified that ending contact with D.M. and Joseph would not be detrimental to Jasmine. The social worker believed that adoption was in Jasmine's best interests and would give Jasmine stability, consistency and permanency and allow her to develop her identity, self-esteem and self-confidence. The juvenile court expressly found the social worker credible, noting that the social worker acknowledged D.M.'s positive characteristics and Jasmine's bond with D.M. We accept this credibility finding. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228; cf. In re Amber M. (2002) 103 Cal.App.4th 681, 690 [the social worker, the only one of several experts who believed that there was not a beneficial relationship, "provided no more than a perfunctory evaluation of Mother's relationship to the children...."].)
There is substantial evidence that while Jasmine had a bond with Joseph and D.M., the bond was not strong enough to outweigh the well-being Jasmine would gain in an adoptive home, and Jasmine would not be greatly harmed by the severance of her relationships with Joseph and D.M. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Joseph and D.M. cite In re S.B. (2008) 164 Cal.App.4th 289, in which this court concluded the juvenile court erred by declining to apply the beneficial relationship exception. (Id. at p. 301.) In that case, the child continued to display a strong attachment to the appellant father after her removal (id. at pp. 298-301), they "had an emotionally significant relationship" (id. at p. 298) and the father visited consistently (id. at pp. 293-294, 298, 300), empathized with his child, recognized her needs (id. at p. 294) and placed her needs above his own (id. at p. 298). Unlike Joseph and D.M., the father in In re S.B. "complied with 'every aspect' of his case plan." (Id. at p. 298.) Furthermore, "[t]he S.B. opinion must be viewed in light of its particular facts. It does not, of course, stand for the proposition that a termination order is subject to reversal whenever there is 'some measure of benefit' in continued contact between parent and child." (In re Jason J. (2009) 175 Cal.App.4th 922, 937.)
THE SIBLING RELATIONSHIP EXCEPTION
Section 366.26 provides an exception to termination of parental rights when termination would substantially interfere with the child's sibling relationship and the severance of the relationship would be so detrimental to the child as to outweigh the benefits of adoption. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-953; § 366.26, subd. (c)(1)(B)(v).) The juvenile court must "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., supra, at p. 951, citing In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Factors to be considered in determining whether this exception applies include: (1) whether the siblings were raised in the same home; (2) whether they shared significant common experiences or have existing close and strong bonds; and (3) whether ongoing contact is in the child's best interests, including his or her long-term emotional interests, as compared to the benefit of adoption. (§ 366.26, subd. (c)(1)(B)(v).) "[T]he application of this exception will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.) Examining the evidence in the light most favorable to the judgment, we conclude substantial evidence supports the finding that Joseph and D.M. did not meet their burden of proving the exception. (In re L.Y.L., supra, at pp. 947, 952.)
Jasmine was nearly one and one-half years old when this case began and Alejandra was almost six years old. By the time of the section 366.26 hearing, Jasmine was three and one-half years old and Alejandra was eight years old.
Jasmine had lived apart from Alejandra more than she had lived with Alejandra. Before this case began, Jasmine and Alejandra lived together, although Alejandra was in school on weekdays and at her father's home on weekends. During the pendency of this case, Jasmine and Alejandra lived together for about six months. After Alejandra was placed with her father, she and Jasmine visited each other. If Joseph and D.M.'s parental rights to Jasmine had remained intact, Jasmine would not have been placed with Alejandra.
D.M. testified that Jasmine and Alejandra had a loving relationship. Before the inception of this case, Jasmine and Alejandra slept in the same room and shared meals and holidays. The social worker testified that Jasmine and Alejandra had a friendly relationship, and Jasmine referred to Alejandra as her sister, but they were not bonded. Jasmine's court appointed special advocate believed that Jasmine's strongest relationship was with Alejandra, but still recommended termination of parental rights.
There is substantial evidence that even if termination of parental rights were to substantially interfere with the sibling relationship, severance of the relationship would not be so detrimental to Jasmine as to outweigh the benefits of adoption.
The social worker believed sibling contact would continue after parental rights were terminated.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.