Opinion
B204470
10-29-2008
In re J.G. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.G., Defendant and Appellant.
Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Deputy County Counsel, for Plaintiff and Respondent.
Not to be Published
Father, R.G., appeals from a judgment terminating parental rights, and freeing for adoption, three of his children: J.G.2 (C2), M.G. (C3) and U.G. (C5) (sometimes collectively the children). Father argues the juvenile court should have found the sibling relationship exception applied to preclude termination of parental rights because the children maintained a relationship with their sibling, D.G. (C4). We hold the court properly terminated parental rights as the children themselves no longer wished to visit with C4, who remained in long-term foster care. We therefore affirm the courts order.
Father and mother have five children — a daughter and four sons. Although the order at issue terminated parental rights over only the daughter and two sons (C2, C3 and C5), this dependency proceeding originally was commenced for all five children. When the court entered the order in question, their oldest son J.G. (C1) was an adult of 18, their daughter C2 was 16 and the younger boys 13 (C3), 11 (C4) and 9 (C5).
Mother is not a party to this appeal. The juvenile court granted father legal and physical custody over C1 in 2005, terminating its jurisdiction over him. Accordingly, we mention mother and C1 only as relevant to the discussion.
FACTS AND PROCEDURAL HISTORY
The Los Angeles County Department of Children and Family Services (Department) filed a Welfare and Institutions Code section 300 petition for all of fathers five children in August 2004, after mother called a hotline to report that father was sexually and emotionally abusing his younger sons (C3, C4 and C5). The three boys disclosed that father was touching them on their private parts. Their sister, C2, confirmed seeing father touch the boys inappropriately. C2 said when mother objected to this conduct, father would reply the boys were his and he could do anything he pleased with them.
All further statutory references are to the Welfare and Institutions Code.
Father denied the allegations and told the social worker mother was suffering a mental breakdown. Father said mother was making bizarre statements, such as father was not her husband, her husband was dead and the spirit of a dead man had taken over her husbands body. Several neighbors confirmed mother was acting strangely and making bizarre statements about her husband.
The juvenile court allowed C1 to remain in fathers custody. The remaining children were taken into care, and the court directed that they receive age-appropriate counseling. The court also ordered the Department to exercise its best efforts to place all children except C1 together and to allow them to call each other daily.
C2 and C5 were placed in one foster home and C3 and C4 in another. Father maintained weekly contact with C4 and C5, but C2 and C3 refused to have any contact with father. Later, at the suggestion of the minors counsel, the placement was switched so that the daughter and second oldest son, C2 and C3, were placed together, while the youngest boys, C4 and C5, were with each other.
A clinical and forensic neuropsychologist evaluated the family in November 2004. He reported that mother displayed significant psychiatric symptoms, including paranoid schizophrenia and delusional beliefs. He believed she had indoctrinated her children to make false allegations against father as a result of her condition. He concluded the childrens claims of sexual molestation were not credible. The neuropsychologist recommended family therapy to reunite the minors with father. Based on the experts findings, the Department recommended that the minors participate in individual therapy as well as conjoint counseling with father.
The children commenced therapy, and C3s therapist reported that C3 met the criteria for a diagnosis of adjustment disorder (with anxiety). The therapist felt conjoint therapy between C3 and father was "contraindicated at this time." C4s therapist reported that the child had been diagnosed with adjustment disorder unspecified and had symptoms of selective mutism. She stated C4 disclosed that father hit him with a belt, touched his penis and threw mother down on the bed. C4 refused to see father, saying father had threatened him at their last visit. C4s therapist thought conjoint therapy with father was "premature." The same therapist reported that C5 had a history of sexual abuse and was diagnosed with an adjustment disorder unspecified. The therapist stated that C5 suffered from enuresis (incontinence) and engaged in inappropriate sexual play. C5 volunteered to his therapist that father hit him with a belt, touched his penis and threw mother down on the bed. C5 adamantly refused to see father claiming father had threatened him also during their last visit.
Based upon a mediated agreement, the juvenile court sustained amended allegations that (1) there was a "severe family dysfunction" between the parents creating a detrimental environment, including mother and the childrens allegations that father had touched his younger sons C3, C4 and C5 on their penises, causing pain, which could not be corroborated; and (2) mother demonstrated emotional problems, which periodically limited her ability to provide regular care for her children, and was diagnosed with symptoms of paranoid schizophrenia.
The minors counsel informed the court the three younger boys were not ready to be returned to father as they feared father would touch them inappropriately. His daughter, C2, simply stated that she did not want to be placed with father. In lieu of setting a contested disposition hearing, fathers counsel requested a progress report to address whether the younger children could be returned to fathers custody. The court ordered monitored visits for father and individual therapy for the four younger children as well as conjoint therapy with father.
For a six-month status review in March 2005, the Department reported the four children were doing well in their foster homes and had participated in individual therapy as well as conjoint therapy with father. They repeatedly told the social worker they did not want to return to father due to his touching the boys on their "private parts." C1, the oldest son, visited with his younger siblings but asserted they did not have a sibling relationship. C1 seldom talked during the visits and spent the time amusing himself with games on his cell phone.
For the 12-month status review in September 2005, the Department reported to the juvenile court that father and his children were consistently participating in conjoint family therapy and father had twice weekly monitored visits. A social worker observed no visible sign of any emotion between father and his four younger children. They did not greet father as he entered the visiting room, did not interact or communicate with him during visits and left the room without saying a word to him when visits came to an end. The four children continued to assert that father was not telling the truth and they did not want to live with him due to the inappropriate touching.
As of December 2005, C2, C3 and C4 were together in a new placement while C5 remained with the same foster parents. The juvenile court expressed concern over the four childrens continuing fear that father would touch the boys inappropriately. Father had yet to acknowledge his role in the matters that brought his children into court.
By February 2006, the Department was recommending termination of reunification services because the four children were refusing to return to fathers care. In March 2006, the family therapist advised that father had pleaded with the children to give him a chance to show he had changed and was not the same person he was before. C2 and C3 did not want to give father the opportunity, and C5 stated he wanted to live with his sister C2. However, C4 did not know if he wished to reunify with father and was in conflict with his siblings.
In April 2006, C4 was removed from the R. home, where he had been placed with C2 and C3. C4 was making inappropriate sexual comments and, in separate incidents, had assaulted his foster father and his younger brother C5, who was then visiting the R. home. The foster father believed C4 posed a threat to the safety of others in the home.
At a continued 18-month hearing held in May 2006, father submitted to termination of his reunification services with his four younger children, stating he did not wish to put them through a trial. The juvenile court accepted fathers concession, terminated the parents reunification services, and set the matter for a contested section 366.26 selection and implementation hearing. The court ordered a psychiatric evaluation for C4.
As noted, the juvenile court terminated its jurisdiction over C1 in 2005.
As of September 2006, C2, C3 and C5 were doing well with their foster families. The foster parents for C2 and C3 wished to provide them a legal guardianship, and C5s foster parents also were willing to be his legal guardians. The court ordered a progress report on C4s status and continued the selection and implementation hearing for the three other children to March 2007.
The R.s, caregivers for C2 and C3, expressed a desire to adopt C2, C3 and C5. All three children stated they did not wish to return to father but wished to be placed together. In March 2007, the juvenile court ordered that C4 be allowed to have telephone contact with his siblings. The R.s had developed a close bond with C2 and C3, as well as with C5, whom they had come to know from his visits with his siblings. By this time, C2, C3 and C5 were all placed together in the R.s home. Both C2 and C3 told the social worker they wanted to be adopted, and C5 stated he wanted to be with his sister and brother.
C4 was in a new foster home, having misbehaved at his former home. The children saw C4 twice a week, but C4s foster mother observed that they frequently left C4 out of their play and conversation during the visits. The juvenile court appointed new and separate counsel to represent C2, C3 and C5 and new and separate counsel to represent C4 because of a potential conflict of interest.
In May 2007, father filed a section 388 petition requesting that C4 and C5 be returned to his custody. Father declared that C4 and C5 wished to reunify with him and C4 was exhibiting emotional and behavioral problems because of multiple placements. A social worker interviewed all four children about returning to fathers home. C2, C3 and C5 said they did not wish to return. C4 was now unsure whether father had touched him in that mother told him the man who touched him was not his real father. C4 was willing to give father a chance because he felt his paternal grandmother would not allow father to touch him inappropriately. The Department informed the juvenile court it was not possible to reunify C4 with his three siblings as the R.s were unwilling to allow C4 back into their home in light of his past behavior. C4 maintained contact with his siblings during conjoint family therapy and by calling C5, the only one of the children still willing to speak with C4.
About July 2007, father at last admitted touching his younger boys penises and apologized to his children. However, C2, C3 and C5 still wanted to be adopted. Only C4 stated he wanted to live with father, saying he would wrestle father to the ground if father tried to touch him. A social worker talked to C2 and C3 about visiting C4. C2 refused to do so, saying C4 was too young, but C3 and C5 said they were willing to visit C4. The R.s agreed the children could maintain contact with C4 so long as they were interested in visiting him.
An adoptive home study was approved for the R. home and C2, C3 and C5 declared their preference for adoption. C2 and C3 expressed no interest in visiting C4, and C5 stated he no longer wished to do so.
At the section 366.26 hearing held for the children in November 2007, C4s counsel conceded C4 had not been with his siblings for a while. She argued, however, that it would be detrimental for the children to terminate their relationship with C4. Fathers counsel joined with C4s counsel in arguing the sibling relationship exception should prevent termination of parental rights; she acknowledged the parental relationship exception to termination did not apply.
The juvenile court denied fathers section 388 petition as to C2, C3 and C5, finding it would not be in the childrens best interest to grant the petition. The court also found by clear and convincing evidence that the children were adoptable and likely to be adopted. However, the court found C4 had not resided with his siblings for a "significant period of time," and ruled the sibling relationship exception, as well as the parental relationship exception, did not apply. (See § 366.26, subd. (c)(1)(B)(i), (v).) The court entered an order terminating parental rights over C2, C3 and C5. Father timely appealed this order.
The parental relationship and the sibling relationship exceptions formerly appeared at subdivision (c)(1)(A) and (E) of section 366.26, but now appear as subdivision (c)(1)(B)(i) and (v) effective January 1, 2008.
The court granted fathers section 388 petition as to C4 and allowed father an additional six months of reunification services to attempt to reunify with C4.
DISCUSSION
Father argues the juvenile court erred by refusing to apply the sibling relationship exception to termination of parental rights under section 366.26, subdivision (c)(1)(B)(v). We disagree.
At the section 366.26 hearing, the juvenile court is required to select a permanent plan for a child under its jurisdiction. When, as here, there is no probability of reunification with a parent, adoption is the preferred permanent plan. (In re Edward R. (1993) 12 Cal.App.4th 116, 122; In re Heather B. (1992) 9 Cal.App.4th 535, 546.) To select adoption, the juvenile court must find by clear and convincing evidence that the minor will likely be adopted if parental rights are terminated. (§ 366.26, subd. (c)(1).) If so, the juvenile court shall terminate parental rights unless it finds that an exception enumerated in section 366.26 applies. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.)
Section 366.26 provides an exception to termination of parental rights if the court finds "compelling reason" for determining it would be detrimental to the child because of a substantial interference with a childs sibling relationship. In making this determination, the court looks at the nature and extent of the relationship, considering, among other things, "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." (§ 366.26, subd. (c)(1)(B)(v).) If adoption would interfere with a strong sibling relationship, the court must weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952-953.) Only in rare instances will the sibling relationship be sufficiently strong to outweigh the benefit of adoption. (See In re Daisy D. (2006) 144 Cal.App.4th 287, 293.)
It is the parents burden to show that an exception applies. (In re Valerie A. (2007) 152 Cal.App.4th 987, 997; In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.)
In the present case, although the children and C4 had lived together in the past and shared significant common experiences, no close or strong bonds existed between the children and their sibling, who had not lived with them for some time. Although they saw C4 during twice weekly visits, C2, C3 and C5 primarily interacted with each other. C2 and C3 had no interest in maintaining a relationship with C4, and C5 was the only one willing to talk to him on the telephone. Even then, the relationship was not an ideal one, C4 having assaulted C5, causing C4 to be removed from the prospective adoptive parents home. More seriously, C4 had a desire to return to father and maintain their relationship, while C2, C3 and C5 did not in view of his past conduct. C2, C3 and C5 wanted no more to do with father, but C4 was willing to "wrestle . . . father to the floor" should father attempt to touch him inappropriately again.
The court found clear and convincing evidence that C2, C3 and C5 were adoptable and were likely to be adopted. Indeed, the three children had the opportunity to stay together in a loving home.
Moreover, the termination of parental rights need not cut off all ties with C4, because the R.s were willing to have the three children continue to visit with C4 as long as they wish to do so.
Under all the circumstances, the juvenile court did not err in terminating parental rights.
DISPOSITION
The order terminating parental rights is affirmed.
We concur:
RUBIN, Acting P. J.
BIGELOW, J.