Opinion
E041747
5-2-2007
In re KOBI M., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Plaintiff and Respondent, v. KEISHA P., Defendant and Appellant.
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant. Ruth E. Stringer, Acting County Counsel, and P. Joanne Fenton, Deputy County Counsel, for Plaintiff and Respondent. Jennifer Mack, under appointment by the Court of Appeal, for Minor.
NOT TO BE PUBLISHED
Keisha P. (mother) seeks reversal of an order terminating her parental rights to her daughter, Kobi M., arguing the juvenile court abused its discretion in refusing to apply the "sibling relationship exception" set forth in Welfare and Institutions Code section 366.26, subdivision (c)(1)(E). We reject her contention and affirm.
Further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
In March 2005, Kobi (born July 2004) and her half siblings, Dale P. (born February 1988), Eric B. (born April 1993), S.B. (born May 1996), and K.B. (born April 1997), were removed from mothers custody. Dale P. was detained with a relative, while the four younger siblings were placed in foster care. A juvenile dependency petition filed a few days later alleged that mother had a substance abuse problem and had also allowed her live-in boyfriend, Shakell M. (Kobis alleged father), to physically discipline the children with a belt. At the jurisdictional/dispositional hearing on April 26, 2005, all five children were declared dependents of the court and mother was ordered to participate in reunification services.
Kobis alleged father, Shakell M., and her half-siblings are not parties to this appeal.
Thereafter, mother made little progress in her attempts at reunification. By the time of the 12-month review hearing on May 23, 2006, she had failed to complete a drug treatment program and a parenting course, and had also failed to furnish evidence she was attending Narcotics Anonymous meetings. As a result, the court terminated her reunification services and scheduled a permanency hearing for September 20, 2006.
On the day set for the hearing, mother filed a petition pursuant to section 388. Utilizing a form JV-180 Request to Change Court Order, she asked the court to modify its previous order, terminating reunification services and scheduling a permanency hearing. She alleged that Kobis best interests would be served by returning home because she had a relationship with K.B., who was currently residing at home, as well as with S.B., who for six months had been in the same placement as Kobi and would probably be returning home soon. She believed it was in the girls best interests to be reunited as a sibling group.
The court set the matter for hearing on October 18, 2006, but indicated that it would not take evidence and instead would make a decision based upon the papers filed. A written response was submitted on behalf of the Department of Childrens Services (DCS). In essence, it was the opinion of the social worker that, even if mother would be able to care for her older children, the older siblings "can express their problems and needs to their mother and other adults," whereas "Kobi is too young to articulate her problems and needs, and as yet, [mother] has not demonstrated her ability to independently and appropriately meet the needs of the older children." After considering the contents of the petition and the response, the court found that it was not in Kobis best interests to grant the relief sought and thus denied the petition.
Meanwhile, as part of an adoption assessment prepared in September of 2006, the social worker reported that Kobi was living in the same foster home as S.B., and that K.B. and Eric were in separate foster placements. According to the social worker, Kobis siblings had a bond with one another, and Kobi was said to get along well with S.B.. The social worker added that S.B. was "happy" that Kobi was to be adopted and was hoping to also be adopted by the prospective adoptive mother, Ms. S. The social worker reported that while Ms. S. recognized the importance of maintaining the relationship between the children, Ms. S. had indicated that continuing the relationship would depend upon "the outcome of improved and appropriate behaviors by the siblings." Kobi and Ms. S. reportedly had a strong bond; Ms. S. referred to Kobi as her "best friend," and said she "cant imagine life without [Kobi]."
In an addendum report prepared the following month, the social worker wrote that since S.B. had been placed in the same foster home as Kobi five months earlier, "a substantial and/or exceptional bond has not developed between them." She explained that S.B.s relationship with Kobi was no different than with the other foster children in that home. As for K.B., she had left that home after being there for only one month, and Eric had never been there. In fact, Kobis three siblings had not been with her for any extended period since their removal from mother 15 months earlier. Additionally, noting that K.B. had been removed from Kobis foster home due to aggressive behavior towards other children, the social worker was concerned that K.B.s behaviors posed a risk to Kobis safety.
The contested permanency hearing eventually proceeded on November 7, 2006. Kobi was represented by counsel; her three minor siblings were all represented by another attorney. At the outset, mothers counsel informed the court that she intended to call all four siblings as witnesses, as well as her client.
Dale P., who was then 18 years old, was the first to testify. He last visited Kobi six months earlier. However, he had lived with her for a few months when she was a baby, during which time he changed her diaper, played with her, took care of her, and put her to sleep. He did not want her to be adopted. He loves and misses her and wants her to live with him. He said it would not be okay if he never saw her again.
Before testimony from the other three siblings proceeded, the court, acting upon information furnished by the deputy county counsel, asked the childrens maternal grandmother to exit the courtroom. The deputy county counsel had indicated "[i]t came to the [social] workers attention that [the grandmother] has spoken to the child K.B. regarding the case and regarding her testimony and that that information was then passed on to Eric and S.B. so we dont believe that grandmothers presence in the courtroom will facilitate an accurate testimony from the children." According to the social worker, "the specific statement from the grandmother is that she had told one of the children that they needed to testify in court to get Kobi back."
Eric B., age 13, then testified that he had not spent much time with Kobi, either living with her or visiting with her. When he did live with her, he walked her around outside and pushed her in the stroller. They played around together and tickled each other. He also helped feed her and change her diaper. He loves her and misses her. He too said it would not be okay if he never saw her again. He wants her to live with him. He does not want her to get adopted. Since March 2005 he had seen her more than 10 times.
S.B., age 10, testified that for eight months she and Kobi had been living in the same home, where they share a room. She and Kobi play together, play with each others hair, ride bikes and scooters in the backyard, and play with dolls. She loves Kobi and likes having her around. She would be sad if she never saw Kobi again. She does not want Kobi to be adopted and hopes that some day she and Kobi will again live with mother. She likes living with Ms. S., who she said is sometimes nice to Kobi.
Nine-year-old K.B. testified that she too loves Kobi and likes living with her. She misses her when they are not together and wants her to come home. She would be sad if she never saw her again "because shes [her] little sister." She does not want Kobi to be adopted because she loves her and would miss her. She believes that if Kobi is adopted she will never see her again.
Finally, mother testified that the children always ask her, "does Kobi get to come home." She noted that S.B. and Kobi had been together for seven months when they lived with her, and have been together eight months where they are now.
Having read and considered the social workers report and assessments offered into evidence, and having heard and considered the testimony of the witnesses and the argument from counsel, the court concluded that the sibling relationship exception did not apply. Acknowledging that "[t]he issue is the best interest of the child being considered for adoption, not the best interest of the sibling," the court stated: "I have no doubt that these siblings to various degrees love little Kobi. The question is does their relationship support a denial of the termination of parental rights for a child that is clearly adoptable. The sibling relationship exception was designed to preserve long standing relationships between siblings that serve as anchors for children whose lives are in turmoil, not designed to apply to children who were removed from the home as newborns or young children."
The court continued: "Although it is clear to me that there will be sadness and a sense of loss of the older children, the evidence is just overwhelming of the difficulties that Kobi has had in placement with older siblings. There have been multiple placements of the B[.] siblings due to behavioral issues. There was a non-related extended family member caretaker that the children were placed with initially. Kobi was there for a very short time before she was placed with a relative caretaker from whom she was later removed at the relatives request. When the other siblings were placed with Kobi they had to be removed for a series of reasons, some of which included some substantial acting out occurrences and aggressive behaviors towards other children including Kobi. [¶] I think the evidence is very clear that the benefits to Kobi of permanence in the adoptive relationship substantially outweigh any loss that will be suffered from an interference with the sibling relationship . . . ."
The court then ordered parental rights as to Kobi be terminated and a permanent plan of adoption be implemented.
DISCUSSION
When the juvenile court finds by clear and convincing evidence that the child is likely to be adopted, the court must terminate parental rights and order the child placed for adoption "unless it `finds a compelling reason for determining that termination would be detrimental to the child due to one or more of specified circumstances." (In re Celine R. (2003) 31 Cal.4th 45, 49.) The parent opposing termination has the burden of showing that termination would be detrimental to the minor under one of the specified statutory exceptions. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 949; In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) The exception relevant here is the sibling relationship exception, which applies when the detriment results from a "substantial interference with a childs 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 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)(E).)
Furthermore, because "the language focuses exclusively on the benefits and burdens to the adoptive child, not the other siblings[,] [t]he court is specifically directed to consider the best interests of the adoptive child, not the siblings, and must ultimately determine whether adoption would be detrimental to the adoptive child, not the siblings." (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.)
In deciding this issue, we apply the substantial evidence standard of review. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017.) Under this standard, an appellate court must affirm the juvenile courts order if there is evidence that is reasonable, credible, and of solid value to support the order (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080), and the evidence must be considered "in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference, and resolving all conflicts in support of the order." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
We recognize that some courts, in reviewing a juvenile courts ruling on whether an exception applies to termination of parental rights, have applied the abuse of discretion standard. (See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [applying parental benefit exception is a "quintessentially discretionary determination"].) However, "[t]he practical differences between the two standards of review are not significant. `[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only "`if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. . . ." [Citations.]" (Ibid.)
"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 childs best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption. [Citation.]" (In re Jacob S., supra, 104 Cal.App.4th at pp. 1016-1017.)
Thus, making a determination as to whether the sibling relationship exception applies is a two-step process. The court first determines whether terminating parental rights would substantially interfere with the sibling relationship, considering the nature and extent of the relationship, whether the children were raised together, and significant common experiences or existing close and strong bonds. Then, if the court determines that there would be a substantial interference, it must weight the childs best interest in continuing the relationship against the benefits the child would enjoy in a permanent adoptive home. (In re L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.) Here, as we now explain, we need not reach the second step.
In challenging the sufficiency of the evidence to support the courts finding, mother contends the court relied on court reports indicating that the siblings were indifferent to Kobi, ostensibly due to limited visitation. This, she maintains, was the fault of DCS, which controlled the childrens destiny. She cites In re S.M. (2004) 118 Cal.App.4th 1108, 1122, where a father sought reversal of an order terminating his parental rights on the ground the trial court failed to ensure visitation between his daughter and her half-brother, thereby limiting his ability to argue that the sibling relationship exception applied. The argument failed in that case and it fails here as well.
The sibling relationship exception was enacted to preserve long-standing relationships between siblings (In re Erik P. (2002) 104 Cal.App.4th 395, 404), not to preserve what is nothing more than a brief relationship between siblings. The juvenile court recognized this when it rejected mothers argument: "The sibling relationship exception was designed to preserve long standing relationship[s] between siblings that serve as anchors for children whose lives are in turmoil, not designed to apply to children who were removed from the home as newborns or young children."
The relationship between Kobi and her siblings can hardly be described as long-standing. Kobi was an infant when she was removed from the home. Since that time, she has had occasional visits with Dale, Eric and K.B., and, of course, has been in the same foster home as S.B. for some time. However, there is no evidence that the children have a relationship of the type the Legislature seeks to protect. Contrary to mothers position, neither the court nor DCS had any obligation to develop a relationship between siblings which did not exist at the time the petition was filed. (See In re S.M., supra, 118 Cal.App.4th at p. 1122.) As articulated by the court in In re S.M: "Although we recognize that visitation is an essential component of maintaining a bond between siblings and limiting visits might impact the parents ability to establish the section 366.26, subdivision (c)(1)(E) exception to termination of parental rights, there is no requirement to provide visitation to create a bond that does not exist." (Id. at p. 1123.) In any event, attempts were made in the present case to comply with section 16002—but behavioral problems stood in the way of keeping the children in the same home.
Section 16002, subdivision (a) states: "It is the intent of the Legislature to maintain the continuity of the family unit, and ensure the preservation and strengthening of the childs family ties by ensuring that when siblings have been removed from their home, either as a group on one occurrence or individually on separate occurrences, the siblings will be placed in foster care together, unless it has been determined that placement together is not in the best interest of one or more siblings."
Moreover, pointing to the childrens testimony, mother insists the fact Kobis siblings say they do not want her to be adopted was enough to support a finding that the children shared a substantial bond. She contends the siblings obviously felt strongly enough about Kobi to come to court and testify that they love Kobi and want her to remain part of their family. We cannot agree. Notwithstanding the fact it is questionable whether the children were sincere in what they had to say, the fact remains that it is Kobi that matters—not her siblings. In that regard, there is simply no evidence that Kobi felt close to her siblings to the extent that she would rather give up a chance for a stable adoptive home than lose any relationship she may have had with them.
This is not to say that testimony from siblings is irrelevant. "Certainly, evidence of the siblings relationship with the child and, if the sibling is articulate, perhaps of the siblings views of that relationship, might be relevant as indirect evidence of the effect the adoption may have on the adoptive child. A nonadoptive siblings emotional resistance towards the proposed adoption may also implicate the interests of the adoptive child. In an appropriate case, the court should carefully consider all evidence regarding the sibling relationship as it relates to possible detriment to the adoptive child. But the ultimate question is whether adoption would be detrimental to the adoptive child, not someone else. This conclusion does not mean that the court must totally disregard the interests of the sibling or the significance of the sibling relationship when it orders adoption. When appropriate, the court can encourage the adoptive parents to agree to visits among the siblings although . . . it cannot require them to do so. [Citations.]" (In re Celine R., supra, 31 Cal.4th at p. 55.)
In sum, substantial evidence supports the juvenile courts determination that the sibling relationship exception did not apply.
DISPOSITION
The order terminating parental rights is affirmed.
We concur:
McKINSTER, Acting P. J.
RICHLI, J.