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In re Kendra G.

California Court of Appeals, Second District, Second Division
Jul 2, 2008
No. B203930 (Cal. Ct. App. Jul. 2, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. CK51317. Marilyn Kading Martinez, Judge.

M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for Minors.


DOI TODD, Acting P. J.

Appellant Rosa W. (Mother) appeals from the order terminating her parental rights as to the child Kendra G. on the ground that substantial evidence did not support the juvenile court’s failure to apply the sibling relationship exception to termination codified in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(v). We affirm.

Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code. Effective January 1, 2008, the statutory exceptions to termination formerly in section 366.26, subdivision (c)(1)(A)–(F) have been renumbered as section 366.26, subdivision (c)(1)(B)(i)–(vi).

FACTUAL AND PROCEDURAL BACKGROUND

Facts Leading to the Order Setting a Permanency Planning Hearing.

In February 2004, we issued an unpublished decision denying Mother’s petition for extraordinary writ filed following the juvenile court’s order setting the matter for a hearing under section 366.26 (Opinion). (Rosa W. v. Superior Court (Feb. 6, 2004, B171675) [nonpub. opn.].) We quote the facts preceding that order from the Opinion, omitting several references to Fred G. (Father), as he stopped appearing during the middle of the proceedings and has not appealed from the order terminating his parental rights.

“Two-year-old Kendra and three-year-old R. were taken into custody on January 28, 2003 and the Department of Children and Family Services (DCFS) filed a dependency petition on their behalf. The petition alleged that Rosa W. had failed to provide Kendra and R. basic necessities of life, including shelter, and that Rosa W. was incarcerated. The accompanying DCFS detention report stated that a Pomona police officer had responded on January 28, 2003, to a call that the mother and children were homeless and the children were filthy. Rosa W. refused offers for shelter, struck the officer as he began to detain the children, and was arrested for resisting an officer and child endangerment. Rosa W. had been contacted by police the previous week and had refused referrals for shelter.

“Rosa W. and [Father] Fred G. appeared at the January 31, 2003 detention hearing. The court found Fred G. to be Kendra’s presumed father. [Fn. omitted.] Kendra and R. were placed in shelter care and petitioners were granted unmonitored visits at the children’s placement and monitored visits outside of placement. Visitation by anyone under the influence of drugs or alcohol was prohibited. The court ordered DCFS to provide bus passes and unspecified reunification services. It ordered petitioners to keep DCFS informed of their current addresses and telephone numbers.

“The DCFS jurisdictional report summarized an interview with Rosa W. in which she explained that she had been homeless for a year and a half and had been looking for housing. Rosa W. related that she spent the little money she received on temporary housing such as hotels and motels, and she had not been able to save enough to rent a place for herself and the children. She did not want to be in a shelter, and refused the social worker’s shelter referrals; she wanted a place of her own. Rosa W. originally had wanted the children placed with her adult son, but when it became apparent that he was not able to take them due to his own housing situation, she acquiesced to the children remaining in foster care until she was able to arrange suitable housing for herself and for them.

“Rosa W. told the social worker that her primary need was for housing, but that she also needed job referrals and transportation funds. The social worker recommended that Rosa W. participate in parenting and anger management classes, job training, counseling, and that she be psychologically evaluated. [¶] . . . [¶]

“Kendra and R. were placed in separate foster homes. [¶] Both parents appeared for a February 26, 2003 jurisdictional/dispositional hearing, and the parties stipulated to a March 11, 2003 mediation. . . . [¶] The mediation did not produce a resolution, but Rosa W. and the DCFS reached an agreement whereby the DCFS would reinterview her and specifically address counseling or shelter referrals it considered necessary for reunification. The court ordered the reinterview and also ordered DCFS to evaluate Lisa G. as a possible visitation monitor and foster mother for the children.

“DCFS filed an amended petition on the day of the mediation alleging jurisdiction under section 300, subdivision (b) [failure to protect] and 300, subdivision (g) [no provision for support]. The petition alleged that Rosa W. had failed to provide Kendra and R. with the basic necessities of life, including a stable home environment, and that she had refused offers of shelter. . . .

“In early April 2003 the foster family agency reported that during an unmonitored visit Rosa W. had swatted R. once on the buttocks, and that the foster mother had seen Rosa W. slap R. across the face during a visit a few weeks earlier. . . .

“The court sustained the amended petition on April 21, 2003. Although the minute order for the hearing states that the court ordered reunification services for both parents, the court-ordered case plan ordered individual counseling for Rosa W. and “deferred” a program for Fred G. The court granted Rosa W. monitored visits and Fred G. unmonitored visits at placement, prohibited visits by anyone under the influence of drugs and/or alcohol, and prohibited corporal punishment during visits. The court also ordered the parents to keep DCFS informed of their addresses and telephone numbers at all times and to verify a safe and stable lifestyle and housing. Both parents signed the court ordered plan.

“On September 11, 2003, DCFS filed an ex parte application requesting that parents’ visits be discontinued due to Rosa W.’s alleged assault on a child at the foster family agency on August 11, 2003, and Fred G.’s alleged intoxication when he appeared for a visit on July 21, 2003. DCFS requested that visitation be suspended until Rosa W. and Fred G. had undergone anger management and parenting classes, substance abuse treatment, and individual counseling, and until the parents’ therapists could confirm that the parents understood their behavior was harmful to the children.

“The ex parte application was supported by a report from the foster family agency that advised that Rosa W. and Fred G. appeared two hours early for a visit on August 11, 2003, seemed to be under the influence, and became confrontational after learning that Lisa G. was then visiting the children. Agency staff asked Rosa W. and Fred G. to leave until the time for their visit. Thereafter, Rosa W. walked back and forth in the parking lot, talking in an imaginary cell phone, and Fred G. came back in and fell into a deep 45-minute sleep. Ten minutes into the visit, Rosa W. walked angrily out when Kendra, following a scuffle with R., sought comfort from the social worker who was monitoring the visit. Rosa W. came back into the foster family agency some time later, as a foster mother and the foster mother’s 11-year-old daughter were leaving. Rosa W. then either shoved or hit the child, explaining later that the child had been in her way. The foster family social worker terminated the visit, Rosa W. refused to leave the premises and raged in the lobby, and the social worker called the police. Before the police arrived Fred G. reportedly attempted to persuade Rosa W. to leave the premises, screaming at her that she had no right to ‘hurt that girl,’ and repeatedly asking Rosa W. if ‘all of this’ was worth going to jail. Kendra whimpered in another room while Rosa W. could be heard yelling. When the police arrived they arrested Rosa W. [¶] . . . [¶]

“Notice of the September 11, 2003 ex parte hearing was served by mail September 3, 2003. Petitioners did not appear, and the court discontinued visits pending further orders. The court found that Rosa W. was belligerent at visits and Fred G. continued to be under the influence, in direct violation of prior court orders. The court set a six-month status review hearing on September 30, 2003.

“DCFS reported on September 30, 2003, that Fred G. was then incarcerated on charges of domestic violence against Rosa W. Rosa W. remained unemployed and was living in a shelter. She was facing an assault charge for the incident at the foster family agency. Until shortly before that time petitioners had refused referrals for court-ordered parenting classes and individual counseling. . . . Kendra and R. were said to have a ‘bonded relationship’ with their parents. Kendra had been moved to a new placement; she reportedly cried frequently and appeared to have been affected by the sudden separation from her family. The court ordered the children into therapy, continued all prior orders, and continued the case for a contested section 366.21, subdivision (e), hearing on October 21, 2003.

“On October 21, 2003, DCFS recommended termination of reunification services, the setting of a section 366.26 hearing, and continued suspension of visitation. The report summarized interviews with Rosa W. and Fred G. in early October. . . . Rosa W. said that she had been ‘testing,’ had not started parenting and anger management classes, and the social worker had given her another referral. Lisa G. had been visiting the children and had offered to take them into her home, with adoption a future possibility. [Fn. omitted.] At the hearing the court denied Rosa W.’s request for visitation, and continued the case.

“On November 24, 2003, DCFS reported that the social worker had met with Rosa W. three times in November 2003 to assist her in locating low or no cost community resources with which to comply with the court’s orders. It reported that the social worker had sent a ‘referral packet’ on November 18, 2003, to Fred G.’s last known address because Fred G. had not been in touch and there was no other way to contact him.

“On November 25, 2003, a contested section 366.21 hearing was held. DCFS’s documentary evidence was received without objection and the court took judicial notice of the prior findings and orders, particularly the first amended petition and the April 21, 2003 case plan.

“Rosa W. testified concerning her difficulties in finding no cost programs to fulfill her court ordered program. . . . Her sole source of income was $221 a month in general relief. The only reason she had not participated in programs was her inability to afford them. [¶] She had last visited with the children approximately four months earlier. Before visitation had been suspended she had visited once a week. At the last visit a young girl had bumped into her and she had bumped back, but not intentionally. She was arrested but charges were not filed. Prior to this incident there had been no problems with visits. She did not know how often she would visit if the court reinstated visits, because she was currently interviewing for employment. [¶] . . . [¶]

“During argument, petitioners requested an additional six months of reunification services and reinstatement of visits. Rosa W. and Fred G. argued that DCFS did not provide reasonable reunification services because the services were not tailored to the family’s unique situation—virtually no income, no home, no place to stay, and no transportation. They also contended that the social worker’s efforts had been too recent to be effective. [¶] . . . [¶]

“The children endorsed the DCFS recommendation that a section 366.26 hearing be set and a permanent plan be developed for them.

“The court found that further family reunification would not be in the children’s best interest, citing petitioners’ lack of a demonstrated willingness to improve their lives and their failure to remedy the transience and homelessness that had brought the children to the dependency court. The court found by a preponderance of the evidence that return of the children to their parents would place the children at risk of detriment, found by clear and convincing evidence that the DCFS had made reasonable efforts toward reunification, and set a section 366.26 hearing.” (Rosa W. v. Superior Court, supra, B171675.)

Facts Following the Order Setting a Permanency Planning Hearing.

Following our February 2004 denial of Mother’s and Father’s writ petitions, the Department submitted a section 366.26 report indicating that the paternal aunt with whom the children had recently been placed, Lisa G., was interested in a permanent plan of legal guardianship, not adoption. The children had each been in five placements since being detained; R. was participating in therapy to address behavioral problems and Kendra was attending play therapy with R. According to the social worker, Kendra was “a follower who likes to behave the way her ‘big brother’ behaves.”

On April 5, 2004, the social worker removed the children from Lisa G. because Lisa G. had been evicted and did not have suitable housing. Moreover, Lisa G. had failed to follow up with court-ordered therapy, preschool and other special needs of the children.

The Department’s next report in June 2004 outlined efforts to replace the children. Their first placement following removal from Lisa G. ended after approximately six weeks when R. attempted to choke Kendra. Thereafter, the children were placed separately; while Kendra adjusted well to her new environment, R. was again replaced after three weeks due to behavioral problems. Kendra’s foster mother expressed interest in adopting Kendra once her behavior stabilized, but she was not interested in adopting R. The June 23, 2004 section 366.26 hearing was continued for improper notice.

In its October 19, 2004 report, the Department indicated that both Kendra and R. had been replaced into “D” rate homes to provide them with appropriate services, and that they were stabilizing in their placements. Both children continued to exhibit behavioral problems. R. was diagnosed as having attention deficit hyperactive disorder and oppositional defiance disorder, in addition to exhibiting aggressive behaviors and developmental delays. Kendra also exhibited difficult behaviors, including temper tantrums, hyperactivity and constant disruption, which stemmed from diagnosed problems including reactive attachment disorder and posttraumatic stress disorder. The children visited with each other for two hours every week. Their behavior appeared to regress at the visits. The Department continued to make efforts to find an adoptive home. At the October 19, 2004 hearing, the juvenile court again continued the section 366.26 hearing, this time because adoptive parents had not been located. The juvenile court expressly acknowledged the difficulty of the Department’s task in finding adoptive parents given the children’s special needs.

Kendra began twice monthly play therapy sessions in November 2004. As part of her January 2005 report, Kendra’s therapist stated: “When asked about her brother [Kendra] indicates that sometimes she misses him but for the most part that he would hit her a lot and she is happy that she is not living with him. She enjoys his visits.” R.’s November 2004 psychological report similarly stated that R. “does not really talk about his sister or seeing her. He has had good visits with her, but after [he] saw her he was somewhat enuretic.” In its February 2005 report, the Department stated that it was still searching for adoptive homes for the children and that the social worker had met with a prospective adoptive family for R. with whom he would be placed on a trial basis. The children were visiting with each other approximately once per month.

In its next report, dated June 17, 2005, the Department indicated that the behavior of both children had stabilized. R. continued to participate in therapy and was taking prescribed psychotropic medications; Kendra was in preschool and continued to exhibit some temper tantrums and mild behavioral problems. While R.’s prospective adoptive family remained tentatively interested in going forward with the adoption process, an adoptive family had not been located for Kendra. At the June 2005 hearing, the juvenile court ordered, among other things, that the Department ensure the children were visiting each other at least twice monthly and that it provide a supplemental report for the next hearing addressing both the sibling visits and the possibility of placing the children together.

The Department’s next report in July 2005 indicated that the permanent plan for both children remained adoption and that the children had resumed visitation with each other on July 9, 2005. They enjoyed the visits and Kendra’s foster mother intended to comply with the prior court order of twice monthly visits. At the July 2005 hearing, the Department indicated that an adoptive family had been located for Kendra. In October 2005, the Department reported that Kendra had stabilized considerably and was visiting regularly with prospective adoptive parents. The prospective adoptive mother, Brenda C., worked at Kendra’s school and had formed a relationship with her. At the October 12, 2005 hearing, the juvenile court reiterated its prior order that the Department facilitate twice monthly visits between the children.

R.’s foster mother indicated in January 2006 that she was interested in a permanent plan of legal guardianship, not adoption. And, three weeks after Kendra was placed with Brenda C., she and her husband requested Kendra’s removal due to behavioral problems. At the January 20, 2006 hearing, the juvenile court ordered the children into a planned permanent living arrangement of long term foster care, but directed the Department to continue to search for an adoptive home and to consider whether the children could be placed together.

Six months later, the children remained in different foster homes, but had been visiting with each other regularly. They both continued to participate in therapy to address multiple behavioral issues, including poor impulse control; R. also continued to receive psychotropic medication. A prospective adoptive home had not yet been located. At the review hearing on July 27, 2006, the juvenile court directed the Department to continue to search for an adoptive home and to provide detailed information about its efforts to do so in the next report.

The children’s placements did not change during the next six-month period. The Department facilitated sibling visitation and the children enjoyed the visits. Kendra’s therapist reported that Kendra had stabilized and her behavior was age appropriate. In January 2007, Kendra’s former foster mother, Brenda C., contacted the Department to express her interest in adopting Kendra. Although the social worker urged the foster mother to consider adopting R. as well, Brenda C. indicated that she was only interested in adopting Kendra and believed that she now had the time and energy to devote to a successful adoption. At the January 25, 2007 hearing, counsel for the Department indicated that while the Department would generally make every effort to place siblings together, it appeared that a permanent plan of adoption could be achieved only by separating the children. In response to that concern, counsel for the children stated that while it would be “wonderful” if an adoptive home could be found for both children, she would advocate for the children to be adopted by different families in order to achieve stability for the children.

In July 2007, Mother filed a section 388 petition, requesting that the juvenile court modify the no-visitation order issued in November 2003 and permit her to visit the children.

On July 26, 2007, the Department reported that Kendra had moved back into the home of Brenda C. and her husband Steven C. at the end of June. They had applied to adopt Kendra and their adoptive home study was almost complete. Kendra’s therapist reported that Kendra had made great strides in her development since being replaced with the C.’s. They also expressed interest in possibly adopting R. and indicated that they intended to facilitate sibling visits both to improve the children’s relationship with each other and to get to know R. The C.’s had some difficulty scheduling visitation with R.’s caregiver, but the Department resolved to address that problem, as well as to continue to search for an adoptive home for R.

At the July 31, 2007 hearing, the juvenile court denied Mother’s section 388 petition, finding that Mother had not demonstrated that the requested change of order was in the children’s best interests. Counsel also indicated that while the C.’s remained committed to adopting Kendra, they could not make the same commitment with respect to R. They intended, nonetheless, to facilitate sibling visitation. The juvenile court set a section 366.26 hearing for Kendra and a review hearing for R.

For the November 20, 2007 hearing, the Department reported that the C.’s adoptive home study had been approved in August 2007 and the C.’s remained committed to providing Kendra with a permanent home. Kendra was thriving and happy in her home. An adoptive home had not been located for R.; one family indicated some interest in adopting R. but he had not yet begun visiting with them. R. had stabilized and was attached to his foster mother. In one report, the Department indicated that sibling visitation had been sporadic since August 2007; in another report, it stated the children had regular contact. Kendra stated that she enjoyed visiting with her brother and wanted to maintain a relationship with him.

The juvenile court held a contested section 366.26 hearing on November 20, 2007. Mother objected to the termination of parental rights as to Kendra on the ground it would be detrimental to R. for Kendra to be adopted when R. was not. The juvenile court found by clear and convincing evidence it was likely Kendra would be adopted and there was no evidence showing that termination of parental rights would be detrimental to Kendra. It further found by clear and convincing evidence it was unlikely that R. would be adopted and ordered a planned permanent living arrangement for him.

Mother appealed from the order terminating her parental rights.

DISCUSSION

“At a section 366.26 hearing, the juvenile court must select and implement a permanent plan for the dependent child. ‘Where there is no probability of reunification with a parent, adoption is the preferred permanent plan.’ [Citation.]” (In re Marina S. (2005) 132 Cal.App.4th 158, 164.) In order to terminate parental rights and select and implement adoption as the permanent plan at the section 366.26 hearing, the juvenile court must find by clear and convincing evidence that it is likely the child will be adopted. (§ 366.26, subds. (b)(1) & (c)(1); In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) The Department bears the burden of showing adoptability. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1560.) If the court finds the child is adoptable, findings made at previous status review hearings are sufficient to support the termination of parental rights unless the court finds the termination would be detrimental to the child under one of the six exceptions to termination listed under section 366.26, subdivision (c)(1)(B). “The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (In re Celine R. (2003) 31 Cal.4th 45, 53.)

Mother does not challenge the juvenile court’s finding that Kendra was adoptable. Instead, she asserts the juvenile court erred in terminating her parental rights because it should have applied one of the exceptions to termination—specifically, the sibling relationship exception codified in section 366.26, subdivision (c)(1)(B)(v). The sibling relationship exception applies when the court finds a compelling reason for determining that termination of parental rights would be detrimental to the child due to “substantial interference with the child’s sibling relationship, taking into consideration 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).)

“The parent bears the burden of showing that a sibling relationship exists and that its severance would be detrimental to the child. [Citation.] The existence of a relationship alone is not enough, but it must be ‘sufficiently significant’ to cause detriment on termination. [Citation.] If the court finds that there is a substantial detriment, it must ‘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 Jacob S. (2002) 104 Cal.App.4th 1011, 1017.) Thus, determining whether the exception applies is a two-step process. The court first determines whether terminating parental rights would substantially interfere with the sibling relationship. Then, if the court determines there would be substantial interference, it must weigh the child’s best interests in continuing the relationship against the benefits the child would enjoy in a permanent adoptive home. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951–952.)

The purpose of this exception is to preserve long-standing sibling relationships that serve as “anchors for dependent children whose lives are in turmoil.” (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) The sibling relationship exception includes “strong language creating a heavy burden for the party opposing adoption.” (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) The party claiming the exception to adoption has the burden of proof by a preponderance of the evidence. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) We review the record for substantial evidence to support the juvenile court’s determination as to whether the exception applies. (In re Jacob S., supra, 104 Cal.App.4th at p. 1017; In re Megan S. (2002) 104 Cal.App.4th 247, 250–251.)

At the section 366.26 hearing, Mother argued only that the sibling relationship exception should apply because of the effect of adoption on R. Counsel stated: “My client objects to having her parental rights terminated. She believes it is not in Kendra’s best interest to be adopted when her brother is not adopted. That they are siblings, and this would be very damaging to [R.].” But the sibling relationship exception is focused on the best interests of the child being considered for adoption, not the interests of that child’s siblings. “[T]he court may reject adoption under this sibling relationship provision only if it finds adoption would be detrimental to the child whose welfare is being considered. It may not prevent a child from being adopted solely because of the effect the adoption may have on a sibling.” (In re Celine R., supra, 31 Cal.4th at pp. 49–50.)

Notwithstanding Mother’s argument, the juvenile court properly considered Kendra’s bests interests, finding by clear and convincing evidence it was likely Kendra would be adopted and further stating: “Kendra has also some special needs. She’s had multiple problems. She is finally with a family who accepts her and loves her. I do not have evidence that it would be detrimental to terminate parental rights other than Mother’s statements. They are unsupported by any evidence, and there is no evidence that termination of parental rights would be detrimental to Kendra.”

Indeed, the record establishes that there was no evidence to support any exception to termination, including the sibling relationship exception, as the requirements of section 366.26, subdivision (c)(1)(B)(v) were not met. The children were not raised together in the same home. The Department removed them from Mother’s custody in January 2003 when Kendra was two years old and R. was three years old. Though they lived together briefly with Lisa G. in early 2004, they had not lived together since June 2004, when the Department placed them separately after R. attempted to choke Kendra. Moreover, though the children continued to visit one another, there was no evidence that they shared significant common experiences.

On appeal, Mother contends that the sibling relationship exception should have applied primarily because of the strong bond between the children. As evidence of this bond, Mother points to Kendra’s statements in one of the Department’s last reports that she enjoyed visiting with her brother and wanted to maintain a relationship with him. But the mere presence of a sibling relationship is insufficient to trigger the exception. Rather, “[t]o show a substantial interference with a sibling relationship the parent 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.)

Mother proffered no evidence that the relationship between Kendra and R. was so significant as to cause detriment to Kendra if the relationship ended. The record showed that Kendra and R. visited with each other throughout the proceedings—at times regularly and at times sporadically. Sometimes the visits went well and sometimes the children regressed and exhibited behavioral problems after the visits. While this evidence showed that the children had some connection and enjoyed visiting one another, it failed to demonstrate the existence of the significant sibling relationship contemplated by the statutory exception. (See In re L. Y. L., supra, 101 Cal.App.4th at p. 952 [evidence that child would be sad if relationship with sibling ended insufficient to show detriment].)

Turning to the final element of section 366.26, subdivision (c)(1)(B)(v)—whether ongoing contact with R. would be in Kendra’s best interest—there was no evidence suggesting that contact between the two would end with Kendra’s adoption. The Department reported that the C.’s recognized the importance of sibling ties and that they “stated that they do not have any objection to Kendra maintaining a relationship with her brother.” Thus, although Kendra’s adoption will necessarily effect a legal change in the siblings’ relationship, there was no evidence to show that any emotional connection between them would be weakened, let alone severed. (See In re Jacob S., supra, 104 Cal.App.4th at pp. 1018–1019 [no basis for application of sibling relationship exception where adoptive parents indicated they would help maintain ties among siblings].)

Because there was no evidence establishing a significant sibling relationship between Kendra and R., there was no need to reach the second prong of the sibling relationship exception and balance that relationship against the benefit of adoption. (See In re L. Y. L., supra, 101 Cal.App.4th at pp. 951–952.) But even if the juvenile court had engaged in such balancing, substantial evidence showed that the permanence and stability Kendra would achieve through adoption outweighed any benefit from her relationship with R. As the juvenile court observed at the section 366.26 hearing, Kendra had exhibited behavioral problems in the past which had led to multiple placements and, hence, her instability. But by the time of the section 366.26 hearing, the C.’s had made a commitment to Kendra to adopt her and make her a permanent part of their family. These circumstances are akin to those in In re L. Y. L., supra, 101 Cal.App.4th at page 953, where the court stated that “[v]aluing L. Y.’s continuing relationship with [her sibling] J. over adoption would deprive her of the ability to belong to a family, which is not in her best interests.”

The case on which Mother relies most heavily, In re Valerie A. (2007) 152 Cal.App.4th 987, involved a similar balancing of interests. There, although the appellate court determined that the juvenile court erred in excluding evidence of the children’s relationship with their half-sister, it concluded that the sibling relationship exception did not apply to preclude termination of parental rights. In balancing the sibling relationship against the benefits of adoption, the court stated: “Even though [the half-sister’s] interactions with the children were loving, affectionate, playful and nurturing, the court reasonably could determine the children’s long-term emotional interests, due to their ages and needs, were better served by the permanency of adoption rather than by continued sibling contact.” (Id. at p. 1013, fn. omitted.) The court further observed that, in general, the application of the sibling relationship “exception will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount.” (Id. at p. 1014.)

Here, substantial evidence supported the juvenile court’s determination that Kendra’s best interests would be served by adoption, particularly where her adoptive parents indicated a commitment to maintaining her relationship with R. There was no basis for the juvenile court to apply the section 366.26, subdivision (c)(1)(B)(v) sibling relationship exception to preclude the termination of Mother’s parental rights.

DISPOSITION

The order terminating Mother’s parental rights is affirmed.

We concur: ASHMANN-GERST, J., CHAVEZ, J.


Summaries of

In re Kendra G.

California Court of Appeals, Second District, Second Division
Jul 2, 2008
No. B203930 (Cal. Ct. App. Jul. 2, 2008)
Case details for

In re Kendra G.

Case Details

Full title:In re KENDRA G., et al., Persons Coming Under the Juvenile Court Law. LOS…

Court:California Court of Appeals, Second District, Second Division

Date published: Jul 2, 2008

Citations

No. B203930 (Cal. Ct. App. Jul. 2, 2008)