Opinion
D051721
7-1-2008
In re JESUS R. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MARIA S., Defendant and Appellant. In re JESUS R. et al., Minors, on Habeas Corpus. D052635
Not to be Published
Maria S. appeals the judgment terminating her parental rights over Jesus R., Eduardo R., and J.R. She contends that the juvenile court erred by declining to apply two exceptions to termination: the beneficial relationship exception and the sibling relationship exception, the latter concerning the three boys relationships with one another and with their three older half brothers, Joe S., Abraham R., and Julio R. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A), (E).) We affirm the judgment.
All further 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.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
References to "the boys" and "the children" are to Jesus, Eduardo, and J.R. only.
Jesus, Eduardo, and J.R. have filed a joint petition for writ of habeas corpus in which they present evidence that their prospective adoptive placement has failed. They contend that the issues of general adoptability and their sibling relationships with each other were not litigated because they were placed together in a prospective adoptive home, and that the failure of that placement shows that they are not specifically adoptable. They request that this court reverse the judgment and remand the case for a new section 366.26 hearing.
This court requested that the parties comment on the courts proposal to take judicial notice of a minute order from proceedings that took place after the section 366.26 hearing, showing that after the failure of the prospective adoptive placement, the juvenile court ordered that adoption remain the permanent plan, and also ordered sibling visitation between the three boys and their older brothers. There were no objections to the proposal. We take judicial notice of the minute order and deny the petition as moot.
A copy of the March 14, 2008, minute order for J.R. was attached to this courts order requesting comments. Through inadvertence, copies of the minute orders for Jesus and Eduardo were not attached. The San Diego County Health and Human Services Agency (the Agency), the only party to comment, notes that the March 14 minute orders are the same as to all three children. The minute order shows that the childrens trial counsel attended the hearing.
In the writ proceeding, the parties request that we take judicial notice of the record in the appeal (In re Jesus R. et al., D051721). We grant the request.
I
BACKGROUND
In late 2003, Jesus, Eduardo, and J.R. visited Tijuana with Maria and the boys father, Saul M. After a car accident, Maria and Saul were arrested and the boys were detained in a Tijuana shelter. They remained in that shelter for at least 25 days with no contact or visits from Maria or Saul. In November, when Jesus was three and one-half years old, Eduardo was two and one-half years old, and J.R. was eight months old, the Agency filed dependency petitions alleging that Maria and Sauls whereabouts were unknown. Jesus was detained in Polinsky Childrens Center and Eduardo and J.R. were detained in a foster home. In late November, the boys were detained in the foster home of the A. family. The boys three older brothers—eight-and-one-half-year-old Joe, seven-and-one-half-year-old Abraham, and five-and-one-half-year-old Julio—were detained in another foster home.
In January 2004, the petitions were amended to replace the above allegations with allegations that Maria had a history of drug use, that she was in a substance abuse treatment program, and that she was unable to care for the children. The juvenile court entered true findings on the amended petitions. In March, the court ordered the boys placed in foster care. They remained in the A.s home.
In early 2005, Joe, Abraham, and Julio were placed with Maria. Jesus, Eduardo and J.R. joined them in early June. In August and September, Maria tested positive for methamphetamine. In late September, all six children were again detained in foster homes—Eduardo and J.R. together, and the other four boys in separate homes. In November, Jesus, Eduardo, and J.R. were placed in foster care. In June 2006, they were returned to the A.s home. In July 2007, Julio joined them. The permanent plans for Joe, Abraham, and Julio were another planned permanent living arrangement.
The section 366.26 hearing took place in September 2007. The Agency recommended that the court find Jesus, Eduardo, and J.R. adoptable. The recommendation was based on the A.s desire to adopt them, although the social worker also considered the boys ages and personal characteristics in assessing their adoptability. The court found the boys adoptable and that none of the exceptions to termination of parental rights applied. The court terminated parental rights and set a nonappearance post-permanency planning review hearing for March 14, 2008.
In early January 2008, the A. family notified the Agency that they had changed their minds and would not be adopting Jesus, Eduardo, and J.R. In early February, the three boys were moved to a new foster home. By the end of February, the social worker was considering placing them in a home that had an approved adoptive home study. On March 3, the social worker said that the family was interested in pursuing the placement and would meet the boys on March 5.
The Agencys counsel and the childrens trial counsel appeared at the March 14, 2008 hearing. The court found that the "permanent plan of [a]doption continues to be appropriate and is being complied with," and that "[t]he likely date by which [the Agency] will finalize the permanent plan is September 5, 2008." The court ordered sibling visitation between the three boys and their older siblings and gave the childrens trial counsel 30 days to set a special hearing.
II
THE APPEAL
A
The Court did not Err by Failing to Apply 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 taking into consideration "[t]he age of the child, the portion of the childs life spent in the parents custody, the `positive or `negative effect of interaction between parent and child, and the childs particular needs . . . ." (Id. at p. 576.) Examining the evidence in the light most favorable to the judgment, we conclude that there is substantial evidence to support the courts finding that Maria failed to meet her burden of showing a beneficial relationship. (Id. at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
Before Jesus, Eduardo, and J.R. were placed with Maria in June 2005, she generally maintained regular visitation and contact. After their second removal in September 2005, she rarely called and did not visit them until March 2006. While Maria was in a residential drug treatment program, she had four unsupervised visits beginning in November 2006. By January 2007, she had quit the program and visits were again supervised. She visited fairly regularly, but was usually late. From late December 2006 to late February 2007, she visited only twice. Between February and June 2007, she was late to every visit. She visited three times in July 2007, but after she missed three consecutive visits, the visitation center terminated its services.
At the time of the section 366.26 hearing, Jesus was eight and one-half years old, Eduardo was six and one-half years old, and J.R. was four and one-half years old. During the four-year pendency of this case, they were in Marias care for less than four months. At visits, Maria was affectionate and behaved fairly appropriately, but did not play a parental role. The boys appeared to enjoy visits with Maria and reciprocated her show of affection, but did not usually initiate contact with her and easily separated from her. When Maria failed to appear for visits, the children did not exhibit any distress. Following visits, the children were disobedient, acted out, fought among themselves, and had trouble sleeping. After Maria stopped visiting in July 2007, they were calm, and had no major behavioral problems. Maria was not able to give the boys the stability that they needed, and the social worker did not believe that there was a strong parent-child relationship.
The juvenile court did not err by failing to apply the beneficial relationship exception set forth in section 366.26, subdivision (c)(1)(A).
B
The Court did not Err by Failing to Apply the Sibling Relationship Exception
Section 366.26, subdivision (c)(1)(E) provides an exception to termination of parental rights if there would be substantial interference with the childs sibling relationship and the severance of that 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)(E).) 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, 101 Cal.App.4th at p. 951, citing In re Autumn H., supra, 27 Cal.App.4th at p. 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, as compared to the benefit of adoption. (§ 366.26, subd. (c)(1)(E).) Examining the evidence in the light most favorable to the judgment, we conclude that there is substantial evidence to support the juvenile courts finding that Maria did not meet her burden of proving that the sibling relationship exception applies in this case. (In re L. Y. L., supra, 101 Cal.App.4th at pp. 947, 952.)
At the inception of this case, Joe was eight and one-half years old, Abraham was seven and one-half years old, Julio was five and one-half years old, Jesus was three and one-half years old, Eduardo was two and one-half years old, and J.R. was eight months old. They all lived with Maria before this case began, and for less than four months during the pendency of this case. Common experiences during those times included neglect, exposure to drug use, and physical and verbal abuse by persons in Marias household.
In the two years before the section 366.26 hearing, Eduardo and J.R. always lived together, Jesus lived with them for more than a year, and Julio lived with the boys for short periods. Because Jesus, Eduardo, and J.R. were placed in the same prospective adoptive home, there was no indication that adoption would substantially interfere with their relationships with each other. While the boys adoptions might limit or terminate contact between the three of them and their brothers, Joe, Abraham, and Julio, and the boys enjoyed this contact, there is substantial evidence that the benefits of adoption outweigh any detriment that might occur as a result of limiting or terminating these relationships.
Studies to assess Jesuss, Eduardos, and J.R.s bonds with Joe and Abraham concluded that Jesuss and Eduardos bonds with them were mild; J.R.s bond with Abraham was "slightly stronger," and his bond with Joe was "stronger." According to the social worker, J.R. and Eduardo recognized Joe and Abraham as their brothers, but did not have a strong relationship with them. J.R. might seek out Joe and Abraham for help with a task, but did not demonstrate a need to be close to them and did not seem distressed when separated from them. Eduardo and Jesus felt more comfortable interacting with their younger brothers than with Joe and Abraham. Although the boys had no visits with Joe and Abraham in the two months before the section 366.26 hearing, there was no evidence that they suffered any detriment as a result.
Jesus, Eduardo, and J.R. expressed an interest in having Julio adopted with them. The social worker believed that the boys bond with Julio was stronger than their bond with Joe or Abraham. Nevertheless, Jesus, Eduardo, and J.R. were more concerned about where they were going to live than about their relationships with their older brothers. The social worker concluded that for J.R., the benefits of adoption outweighed the relationship he had with his older brothers and for Eduardo and Jesus, the benefits of adoption outweighed the relationship they had with Joe and Abraham.
The juvenile court did not err by failing to apply the sibling relationship exception set forth in section 366.26, subdivision (c)(1)(E).
III
THE PETITION
A
The Petition is Moot
In the petition, counsel for Jesus, Eduardo, and J.R. notes that their general adoptability and sibling relationships with each other were not litigated because they were placed with the A.s, who wished to adopt them at the time. Counsel does not oppose adoption for the boys, as long as they are adopted together. However, counsel contends that the failure of their placement shows that they are not specifically adoptable. She requests a new section 366.26 hearing at which the children can assert their interest in maintaining their relationships with each other. The Agency responds, inter alia, that the petition is moot because the boys are together in a new prospective adoptive home with a family who appears committed to adopting them as a sibling group. In her reply to the Agencys response, the boys counsel argues that none of the Agencys reports contain the required information concerning their specific adoptability—i.e., the prospective adoptive parents eligibility and commitment and the childrens relationships to them (§ 366.21, subd. (i)(1)(D), (E)). Counsel requests that this matter be remanded for a new hearing on the issue of adoptability.
The children were represented by trial counsel at the March 14, 2008 hearing. Counsel had the opportunity at that hearing to raise any issues that the childrens best interests warranted. Since adoption remains the permanent plan and the boys are placed together in the new prospective adoptive home, the petition is moot.
DISPOSITION
Judgment affirmed; petition denied.
WE CONCUR:
BENKE, Acting P. J.
McINTYRE, J.