Opinion
A102311
10-29-2003
In re JEFFREY C., JR., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY BUREAU OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. TRISTA C., Defendant and Appellant.
This appeal has been taken from an order that terminated appellants parental rights and specified a permanent plan of adoption for her son Jeffrey. Appellant complains of the trial courts refusal to invoke the parental relationship exception to adoption, and failure to consider evidence of detriment to the minor due to interference with his sibling relationship. We find that the exceptions to adoption for parental and sibling relationships are not supported by the evidence, and affirm the judgment.
To maintain anonymity and for the sake of convenience we will refer to the parties by their first names only.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In accordance with a mediation agreement, at a jurisdictional hearing on November 27, 2001, appellant admitted allegations in an amended petition (Welf. & Inst. Code, § 300, subd. (b)), that her ongoing substance abuse impaired her ability to adequately care for her son Jeffrey, who was then two years old. Jeffrey was declared a dependent child and removed from appellants custody to foster care. Appellant was directed to participate in out-patient drug treatment, random drug testing, a parenting class, domestic violence counseling, provide safe housing for the child, and engage in regular supervised visitation with the child.
All further statutory references are to the Welfare and Institutions Code.
The report submitted by the social worker for the dispositional hearing on January 17, 2002, declared that appellant and Jeffreys "presumed father" participated in weekly visitation with Jeffrey, and the child was "very attached" to his mother and father. He was "always pleased to see his mother and father," and cried following the visits. Visitation with Jeffreys "half-sibling" Nicholas was also approved.
The minor actually had two presumed fathers: the man who lived with appellant when the child was born, and the man who was married to appellant when the child was born. Neither of the presumed fathers is a party to this appeal.
Appellant maintained a "steady job," but did not comply with the requirements of her case plan to submit to drug testing, "stabilize her living situation," or participate in treatment for her "long history of drug abuse" and drug offenses. According to the report, the "only consistent" element of appellants plan that she accomplished was weekly visitation with her son, despite her "history of losing her four other children." The report recommended that Jeffrey remain in foster care and appellant receive reunification services.
Jeffreys four half-siblings had been placed for adoption or guardianship in "various homes."
At the conclusion of the dispositional hearing, Jeffrey was adjudged a dependent child, removed from appellants custody, and placed in foster care under respondents supervision. The reunification services recommended in the social workers report were adopted and imposed by the court. Appellant was ordered to participate in counseling, and granted visitation with the child for one hour per week.
The status review report for the six-month review hearing recommended that the court terminate reunification services and set a section 366.26 hearing. The report stated that appellant had "not met the objectives of her case plan." She had been recently arrested on an outstanding warrant for child endangerment and being under the influence of substances. She failed to attend an outpatient or residential drug program, and "refused to drug test." She also continued to reside in the same cluttered home which had "been found unacceptable" for her child, and made no effort to find appropriate housing. She attended "several parenting classes" and was "consistent in her weekly visits with her son." The report indicated that "[t]here was an abundance of affection between" appellant and Jeffrey. Jeffrey "demonstrated his attachment" to appellant during visits. However, appellants failure to comply with any of the requirements of her case plan made return of the child to her custody and care detrimental to him.
Appellant failed to appear at the contested six-month review hearing on July 15, 2002. At the hearing an update to the report was received that noted appellants continued failure to comply with reunification services despite additional referrals for substance abuse treatment, drug testing and parenting instruction, and failure to appear for a scheduled appointment with the social worker. Respondent again recommended termination of reunification services and a section 366.26 hearing to establish a permanent plan for Jeffrey. A recommendation was also made to limit visitation to once a month while reunification services were terminated.
Limited testimony was presented at the six-month review hearing. A social worker reiterated that appellant was repeatedly reminded of the need to enter a substance abuse treatment program, but failed to do so. The social worker also testified that during visits Jeffrey and appellant expressed affection for each other, and the child appeared to enjoy the visits. Jeffrey appeared sad when the visits with appellant ended. Appellant was "very consistent" with her visits. On at least one occasion Jeffreys "maternal half-brother" Nicholas accompanied appellant on a visit, and the "boys were happy to be together." During visits with his mother before May of 2002, Jeffrey was heard to express the view that he did not want to be sent back to his foster parents, but thereafter the "transitions" became "easier for Jeffrey." He seemed amenable to returning to his foster home after visits with appellant. Testimony was also adduced that appellant attended several parenting classes and maintained employment. At the conclusion of the hearing, the court terminated reunification services and set a section 366.26 hearing. The court declined to reduce appellants visitation as requested by respondent, based upon a finding that the visits were "positive" for Jeffrey.
According to the section 366.26 report, by September of 2002, Jeffrey had slapped appellant in the face, hit her on the arm and leg, spat at her, and tried to stab her in the face with an object during visits. He stated to appellant that he "missed" his foster parents during visits in September and October. At a hearing on October 30, 2002, visitation with appellant was reduced to once a month due to Jeffreys aggressive behavior.
Subsequently, the discovery was made that Jefferys foster parents neglected and may have physically abused him. Jeffrey was removed from the home and placed in an "emergency foster home" on December 4, 2002. The report theorized that Jeffreys treatment in his foster home may have adversely affected his behavior with appellant during recent visits. At a subsequent visit with appellant, Jeffrey displayed "no aggression," and was affectionate toward her. The report stated that Jeffrey "seemed conflicted about his loyalty to his mother, and at times was aggressive toward her, although his attachment to her has not essentially wavered."
Jeffrey also continued to visit with Nicholas. The report recommended that the "ongoing sibling relationship should continue through the childrens caretakers," independent of appellant.
Appellant continued to refrain from any treatment for her drug abuse, notwithstanding the advice of the social worker that she "had little time left." She also continued to maintain her residence in "the same housing situation" previously found "unacceptable for children." The social worker offered the opinion in the report that appellant was not "in a position to provide Jeffrey a home that is stable and free of the chaos of a drug-oriented lifestyle," and recommended termination of her parental rights.
In the report Jeffrey was described as a "sweet, polite and pleasant child," who, given his "young age and good health," would not be difficult to place. In fact, a "prospective concurrent family" visited with Jeffrey and indicated an interest in adopting him. The adoptive family "offered to maintain ongoing contact with Jeffreys half-brother Nicholas." Adoption was recommended as the permanent plan for Jeffrey.
After appellants request for a bonding study was denied as unnecessary, and the court received a report from Jeffreys therapist with a current psychological diagnosis, the contested section 366.26 hearing was held on March 17, 2003. Jeffreys "current caretakers" appeared at the hearing to explain his progress in their home and reiterate their commitment to adopt him. Appellant did not present any evidence, but asserted that her "bond" with Jeffrey established the "exception" to adoption under section 366.26, subdivision (c)(1)(A). The court found that Jeffrey "is adoptable," and appellant had not offered "sufficient evidence" to prove he "would benefit from continuing . . . with a parent-child relationship." Termination of appellants parental rights and a permanent plan of adoption was ordered. This appeal followed.
DISCUSSION
I. The Parental Relationship Exception to Adoption .
Appellant argues that the "juvenile court erred in concluding that the exception to adoption set forth in section 366.26, subdivision (c)(1)(A) did not apply in this case." To support her claim that the parental relationship exception to adoption was established, appellant points out that she "regularly and consistently visited with Jeffrey throughout the dependency process," and the reports repeatedly referred to "an abundance of affection between the two" during those visits.
At the 366.26 hearing the court was mandated to select and implement one of four alternatives for the permanent plan: " `termination of parental rights and adoption; identification of adoption as the plan but without immediate termination of parental rights; guardianship[,] or long-term foster care. [Citation.]" (In re Jessie G. (1997) 58 Cal.App.4th 1, 6.) "Adoption, if possible, is the preferred plan for such children. However, the court is to choose the disposition best for the child." (In re Tamneisha S. (1997) 58 Cal.App.4th 798, 804; see also In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)
"If the court finds a minor cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the minor under one of five specified exceptions." (In re L. Y. L., supra, 101 Cal.App.4th 942, 947.) The parent then has the burden to show termination would be detrimental to the minor under one of the "specified exceptions. [Citation.] In the absence of evidence termination would be detrimental to the minor under one of these exceptions, the court `shall terminate parental rights . . . . [Citations.]" (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; see also Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249; In re Shaundra L. (1995) 33 Cal.App.4th 303, 307.) The "exceptions to adoption provided in section 366.26, subdivision (c)(1) are a final check to ensure termination of parental rights is in the best interests of the minor and is the least detrimental alternative." (In re Tabatha G., supra, at p. 1165.) "[A]bsent evidence termination is detrimental under one of the exceptions, the statute mandates the court terminate parental rights." (In re Jessie G., supra, 58 Cal.App.4th 1, 6.) "The specified statutory circumstances — actually, exceptions to the general rule that the court must choose adoption where possible — `must be considered in view of the legislative preference for adoption when reunification efforts have failed. [Citation.]" (In re Celine R. (2003) 31 Cal.4th 45, 53, italics omitted.)
The parental relationship "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 Amber M. (2002) 103 Cal.App.4th 681, 689, quoting from In re Autumn H. (1994) 27 Cal.App.4th 567, 575; see also In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) "To overcome the preference for adoption and avoid termination of the natural parents 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." (In re Angel B. (2002) 97 Cal.App.4th 454, 466, italics omitted.)
"The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the childs life spent in the parents custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the childs particular needs. [Citation.] While the exact nature of the kind of parent/child relationship which must exist to trigger the application of the statutory exception to terminating parental rights is not defined in the statute, the relationship must be such that the child would suffer detriment from its termination." (In re Angel B., supra, 97 Cal.App.4th 454, 467, fn. omitted.)
The trial court did not abuse its discretion by declining to find a section 366.26, subdivision (c)(1)(A) exception to adoption in the present case under the governing standards. While appellant maintained regular visitation with Jeffrey, and affection was exhibited during her visits with him, we are not convinced that the evidence shows the kind of daily nurturing parental bond necessary to invoke the exception to adoption. (In re Jamie R. (2001) 90 Cal.App.4th 766, 774; In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Further, the record thoroughly supports the trial courts finding that a beneficial relationship did not exist. Appellant failed to demonstrate that she successfully confronted her long-term substance abuse and glaring parental deficiencies. She did not even attempt to participate in drug abuse therapy as required by her case plan. The evidence supports the conclusion of the social worker that appellant was not prepared to offer Jeffrey a beneficial parental bond and stable lifestyle. Finally, Jeffreys relationship with appellant, even if affectionate and beneficial to him, did not outweigh the well-being he would gain in a permanent home with new, adoptive parents. (See In re Amber M., supra, 103 Cal.App.4th 681, 689.) "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 childs need for a parent." (In re Angel B., supra, 97 Cal.App.4th 454, 466.) Therefore, the trial court did not err by refusing to foreclose adoption pursuant to the parental relationship exception. (In re Jamie R., supra, at pp. 773-774; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1352; In re Amanda D. (1997) 55 Cal.App.4th 813, 821-822.)
II. The Sibling Relationship Exception to Adoption .
We proceed to the complaint by appellant first presented in this appeal that the juvenile court failed to consider the sibling relationship exception to adoption pursuant to section 366.26, subdivision (c )(1)(E). She claims "there is no question that ongoing contact between Jeffrey and Nicholas was in Jeffreys best interest," as reflected by the social workers report, and therefore the court "erred by not considering whether adoption outweighed the benefit of maintaining the sibling relationship."
Respondent submits that appellant waived any consideration of the sibling relationship exception on appeal by failing to raise it as an issue in the trial court. Despite appellants failure to specifically request consideration of the sibling relationship exception at trial, we proceed to the substance of the issue for two reasons: First, in recognition of the rule articulated in some cases that no objection may be necessary to preserve a claim of failure of proof to support a finding of adoptability at a contested dependency hearing; and second, to demonstrate that trial counsel was not ineffective for failing to argue the subdivision (c)(1)(E) exception to adoption. (See In re Brian P. (2002) 99 Cal.App.4th 616, 622-623; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1153-1154; People v. Stanfill (1999) 76 Cal.App.4th 1137, 1145-1146; Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 748, fn. 5.)
Subdivision (c)(1)(E) was added to section 366.26 effective January 2002 "to include a fifth enumerated exception to the adoption requirement relating to sibling relationships. Thus, adoption shall now be ordered `unless the court finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child because `[t]here would be substantial interference with a childs sibling relationship . . . . [Citation.]" (In re Daniel H. (2002) 99 Cal.App.4th 804, 811; see also Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1426, fn. 4; In re L. Y. L., supra, 101 Cal.App.4th 942, 947-948.) "This new exception now permits the court to consider the sibling relationship in deciding whether a compelling reason exists to choose something other than adoption." (In re Celine R., supra, 31 Cal.4th 45, 54.)
The subdivision (c)(1)(E) exception provides that "if the parent makes a sufficient evidentiary showing (see In re Tamika T. (2002) 97 Cal.App.4th 1114, 1119-1120 ), the court must consider the nature and extent of the sibling 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 childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption. [Citation.]" (In re L. Y. L., supra, 101 Cal.App.4th 942, 951.) "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. (§ 366.26, subd. (c)(1)(E).) If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the childs best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption." (Id., at pp. 951-952.)
We must again consider the exception provided in section 366.26, subdivision (c)(1)(E) "in view of the legislative preference for adoption when reunification efforts have failed." (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1348.) The "exceptional nature of all the circumstances identified in section 366.26, subdivision (c)(1)" is indicated by the requirement that the court find not only the existence of one of the listed circumstances, "but also that it provide `a compelling reason for determining that termination would be detrimental to the child. (Stats. 1998, ch. 1054, § 36.6.)" (Id., at p. 1349.)
Looking first at the nature and extent of the sibling relationship, the evidence before the court at the section 366.26 hearing did not demonstrate that Jeffrey and his half-brother Nicholas shared any significant common experiences and had an existing strong bond with one another. They lived apart, and at least according to the record before us, visited only occasionally. Nothing indicates to us that Jeffrey articulated a strong attachment to Nicholas. A friendship may be indicated, but not an intense sibling bond. The prospective adoptive parents also voiced a commitment to "maintain ongoing contact" between the two boys, as recommended by the social worker in the report. While any informal promise to facilitate continuance of a sibling relationship may not possess the force of a binding legal contract or court order, evidence that all of the interested parties were willing to protect the sibling connection carries weight in determining whether a substantial interference will result within the meaning of subdivision (c)(1)(E). Nothing in the record proves that a strong sibling relationship was appreciably threatened by the adoption order. (In re L. Y. L., supra, 101 Cal.App.4th 942, 952.)
Moreover, "even if a sibling relationship exists that is so strong that its severance would cause the child detriment, the court then weighs the benefit to the child of continuing the sibling relationship against the benefit to the child adoption would provide." (In re L. Y. L., supra, 101 Cal.App.4th 942, 952-953.) "The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables," including the age of the child, the portion of the childs life spent with the sibling, "the `positive or `negative effect of interaction" between the siblings, "and the childs particular needs." (In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) Here, the benefits conferred upon Jeffrey by adoption are great; both the risk and extent of impact upon Jeffrey of separation of the boys is comparatively minimal.
We conclude that the trial court did not err by terminating parental rights and ordering adoption as a permanent plan. (Ibid.)
Accordingly, the judgment is affirmed.
We concur: Stein, Acting P. J., Margulies, J.