Opinion
NOT TO BE PUBLISHED.
APPEAL from an order of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge, Super. Ct. No. CK60088.
Leslie A. Barry, 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, for Plaintiff and Respondent.
CROSKEY, J.
In this dependency case (Welf. & Inst. Code, § 300 et seq.), L.D., the mother of the subject minor children, (Mother), appeals from an order of the dependency court that terminated her parental rights over two of the minors, Marco D. (Marco, born August 2002) and Fernando D. (Fernando, born July 2003). Mother contends the “sibling relationship” exception to termination of parental rights applies to the relationship between Marco and Fernando and their three sisters and therefore it was error to terminate Mother’s parental rights over the two boys. We find the appellate record support’s the trial court’s determination that the sibling relationship exception is not applicable to Marco and Fernando. Therefore, we will affirm the termination order.
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.
BACKGROUND OF THE CASE
1. Detention of the Children
Mother’s five minor children came to the attention of the Los Angeles County Department of Children and Family Services (the Department) on Monday, July 25, 2005, when a friend of the family called the Department to report that Mother had been absent from the family home since Friday, July 22, 2005. Besides Marco and Fernando, Mother’s children include Karen R. (Karen, born December 1994), Kathleen R. (Kathleen, born June 1996), and E. D., (E., born September 1999). When they were detained by the Department from their home, Karen was ten years old, Kathleen was nine, E. was five, and Marco and Fernando were both two.
A section 300 petition was filed on July 28, 2005, alleging that on numerous occasions, Mother left the children alone and also failed to provide for their basic necessities of life. The Department’s detention report states the children spent the night of Friday, July 22, 2005 alone because the above mentioned family friend had not been able to accommodate Mother’s request that the friend stay with the five children while Mother went to Las Vegas. One of Mother’s acquaintances, Neomi, a seventeen-year-old with two children of her own, agreed to watch the minors when Mother called her. Neomi stated Mother represented to her that she need only watch the children on Saturday, the 23rd because Mother would return in one day, but when Mother did not return on Sunday, Neomi stayed on.
When the social worker arrived at the home on Monday, the 25th, Neomi was still there and no one knew where Mother was. Neomi reported she found Mother’s home in a mess, there were no clean clothes for any of the children, and she had to give Fernando one of her own baby bottles. Mother did not contact the Department social worker until 5:47 p.m. Monday evening. Mother told the social worker she had called the family friend on Saturday and asked her to check on the children and the friend had agreed to do so. Mother also told the worker that after she finished work on Saturday, she went to a party with her friends and did not call to check on the children.
Mother was 29 years old at that time. She had already participated in voluntary services from February through August 2004 to address issues of general neglect. There was also a substantiated referral in November 2002 regarding emotional abuse of the four oldest children. Karen, the oldest child, told the social worker that Mother usually leaves the home on Friday and comes back on Saturday, Karen and Kathleen are left alone at home, and Mother takes the three younger children to a babysitter. At the detention hearing, Karen told the minors’ attorney that it was not her responsibility to care for her siblings and she is like their second mother, but she does like her siblings and she does like taking care of them.
On July 28, 2005, the court found cause to detain the minors and ordered the Department to refer the matter to family preservation. The Department was given discretion to release the children to Mother or any non-related extended family member, and ordered to provide family reunification services and hold a family group decision making meeting. Mother was given unmonitored day visits not to exceed four hours.
2. Initial Interim Review Reports
By the time of the August 29, 2005 pretrial resolution conference, the social worker had re-interviewed Karen and Kathleen regarding Mother’s absences from the home. Karen stated that once or twice a month Mother leaves on Friday evenings to go dancing or to work, and she comes back home sometime between 3:00 a.m. and 8:00 a.m. Mother leaves the three youngest children with a babysitter when that happens. Kathleen also stated Mother goes dancing.
Karen stated she sometimes becomes stressed because she is given the responsibility of caring for her siblings, including cooking in the microwave oven. She stated Mother relies on her to change the diapers of the younger children, feed and clothe them, and do other things that are needed for the younger children. Karen stated: “I’m desperate. It’s too many kids to take care of.” Karen told Mother on the telephone at the foster home that it is too much responsibility for her. Mother admitted she leaves Karen in charge when she goes out on errands. Mother’s excuse for leaving the children at home on the weekend before they were detained by the Department was that she was “very stressed” and “just felt like going away.” Mother also reported that the children’s father physically and emotionally abused her, but did not abuse the minors. The social worker observed that the children love Mother very much, and that the minor Karen is the mother figure in the family and the other minors are very bonded with their sister.
The children’s father is not involved in this appeal. Our references herein to him are solely for background information purposes.
Mother reported that she would soon have to leave the home she and the children had been living in because it was being sold. They were living in a room in someone else’s home. The social worker’s report states that family preservation services could not be provided until the children are returned to Mother’s home, and that could not occur at least until Mother secured new housing. A family group decision making meeting was scheduled for August 23, 2005, but Mother failed to attend the meeting even though several messages were left at her contact phone number to advise her of the meeting. Mother told the Department investigator she had not received the messages.
The court continued the pretrial resolution conference twice. The court ordered the Department to ensure that Mother has visits twice a week with the minors, provide for therapy for Karen and Kathleen, report on the rescheduled family group decision making meeting, and evaluate Mother’s current residence for overnight visits with the minors.
The Department’s September 28, 2005 interim review report states Mother was visiting the minors each week for about four hours. On September 12, 2005, the children had been replaced to another foster home and were still living together. The family group decision making meeting produced an agreement that the minors would remain in foster care, the Department would provide family reunification services, and Mother’s new living arrangement (renting a room in a new house) was not appropriate for the minors. Further, Mother would participate in and complete parenting education and participate in domestic violence counseling, and the minors would participate in play therapy to address case issues. Funds would be assessed for assisting Mother with reunification and a bus pass provided for her.
The Department recommended that Mother attend counseling and parenting classes prior to the Department making a recommendation concerning whether the children should be returned to her care. The report also notes that Mother had previously attended parenting classes. The Department stated Mother needs to develop an adequate child care plan for when she is working, and it recommended that the children remain in their current placement and be declared dependents of the court.
3. The Amended Petitions
On October 14, 2005, the Department filed a first amended petition. Like the original petition, the amended petition alleged that Mother leaves the minors at home alone without adult supervision and the basic necessities of life. It also alleged that the father (1) engaged in violent confrontations with Mother in the presence of the children, including slapping and hitting Mother in the face with his hand, pulling her hair, and hitting her rib cage area with the butt of a rifle, (2) called Mother derogatory names in the children’s presence and threatened Mother that if she ever called the police he would make her disappear, and (3) had a criminal arrest in August 1998 and a conviction for willful cruelty to a child and inflicting corporal injury to a spouse/cohabitant.
The record shows this father actually has two convictions for corporal injury to a spouse/cohabitant, one in 1998 and the other in 2003, as well as a 2001 conviction for possession of a firearm and a 1990 conviction for receiving known stolen property. Because of the January 2003 conviction against the father for abusing Mother, a protective order was issued in February 2003 for Mother and the minors.
In its October 2005 interim review report, the Department recommended that evaluation of weekend visits for Mother should be delayed until she commenced parenting classes and domestic violence counseling. The report states Mother and the father admitted that the father had physically and verbally abused Mother and been convicted for the physical abuse. Mother and Karen reported additional domestic abuse, including the father kicking Mother with his construction boots and punching her in the face and choking her, and Karen stated the abuse had occurred almost every day. On one occasion when Karen attempted to call the police because of the father’s domestic violence, the father hung up the phone and then proceeded to hit the minor on the back. Then he took off his belt and hit Karen all over her body with the belt until he was tired of hitting her, and her body was bruised and red. Karen stated she was six or seven years old at the time. She affirmed that the father threatened to kill Mother and bury her if she called the police. Kathleen also affirmed that there was domestic violence.
The interim review report for the November 23, 2005 pretrial resolution conference states that Mother had regularly visited the minors and the visits went well. She was enrolled in domestic violence counseling and parenting classes. Karen and Kathleen were attending weekly individual counseling. The Department again recommended that the five children be declared dependents and remain in their current placement.
The Department filed a second amended petition. That amended petition realleges Mother’s habit of leaving the children in the care of Karen. It adds an allegation that the father physically abused Karen by striking her with his hands and striking her throughout her body with his belt and Mother failed to protect the child. The second amended complaint did not reallege Father’s domestic violence against Mother, and so at the pretrial resolution conference hearing on November 23, 2005, the Department informed the court that it would withdraw the second amended petition because it failed to include that allegation. The court continued the hearing to December 7, 2005 for the filing of a new second amended petition. The new second amended petition includes allegations regarding the father’s physical abuse of Karen and Mother’s failure to protect the minor from his abuse, the father’s conviction of cruelty to a child and domestic abuse against a spouse/cohabitant, and Mother’s repeated endangerment of the children by leaving them at home without adult supervision and without plans for their basic necessities of life.
The December 2005 interim review report states that due to conflicts between the minors and their foster mother, on December 1, 2005, the three girls were replaced to another foster home and the two boys were replaced to a separate foster home. Mother continued to regularly visit the minors and the visits were going well. Mother and the children told the social worker they wished to spend Christmas together. On December 7, 2005, the court set a mediation for December 28, 2005.
A third amended petition was filed on December 8, 2005. The following allegations in the new petition were sustained at the December 28, 2005 mediation hearing: Mother’s repeated endangerment of the children by leaving them at home without adult supervision and without plans for their basic necessities of life; the father’s physical abuse of Karen by striking her with his hands and his belt; the father’s long-term (1984-2002) violent confrontations with Mother, his verbal abuse of her, and his threats to make her disappear if she called the police, all done in the presence of the children; and the father’s conviction for cruelty to a child and infliction of bodily injury on a spouse/cohabitant. The court adjudicated the children to be persons coming within the jurisdiction of the court under section 300.
At the disposition hearing held on January 20, 2006, the court declared the children dependents of the court, took custody from their parents, and ordered family reunification services. For her case plan, Mother was ordered to attend and complete Department approved programs of domestic violence counseling, parent education, individual counseling to address case issues, and family counseling if recommended. Unmonitored day visits for Mother were ordered, conditioned on her compliance with her case plan, and the Department was given permission to liberalize visitation.
4. The Section 366.21, Subdivision (e) Six-Month Review Hearings
The Department’s report for the March 27, 2006 section 366.21, subdivision (e) six-month review hearing states the children remained in their respective foster homes. Although no behavior problems at school were reported, the three girls were reported to fight with each other a lot at their foster home, and Kathleen was defiant and disrespectful to everyone in the home and used foul language. Despite those problems, the social worker observed that the girls appeared to be happy in the foster home and well cared for. The girls were in weekly therapy and reported that they liked the sessions. The social worker reported having lengthy conversations with Karen to encourage her to enjoy her childhood and not worry about the care of her siblings and Mother’s progress. The girls were visiting their brothers weekly. The boys were also reported to appear to be happy in their foster home and well cared for, but Fernando was reported to be very hyperactive, impulsive, and had taken to hitting and spitting when he is angry, including spitting in the face of anyone who upsets him, and spitting on the floor and table. He was also cursing and lying. Marco also was having behavior problems and was hyperactive and impulsive, but his negative behavior was not as severe as Fernando’s and unlike Fernando, Marco responded to discipline like verbal reprimands, time-outs and positive reinforcement. A referral to the regional center was made for the boys to address mental health and emotional issues.
Mother’s unmonitored visits were changed to monitored visits at the end of January 2006 when disturbing reports about her surfaced. The minor E. broke her elbow during a visit with Mother at a park, but Mother failed to seek medical care for the child even though she was in so much pain she was vomiting. Mother simply returned the minor to the foster home and the foster mother took her to the hospital. The girls’ foster mother reported that Mother curses and uses vulgar language in front of the minors. Both the girls’ and the boys’ foster mothers reported Mother has the minor Karen arrange visits between Mother and the boys by calling the boys’ foster mother. Mother was also having Karen ask the foster mothers for money for Mother, and Mother was taking the girls’ allowances during her visits with them. The boys told their foster mother that on one visit, Mother pulled their hair and hit them on the mouth. Mother admitted to having Karen ask the foster mothers for money and arrange visits for her with the boys. She also admitted to using profanity at visits and hitting Marco on the mouth, but denied pulling his hair. After her visits were changed to monitored, Mother did not make an attempt to schedule visits with the children.
Mother had moved from her residence and failed to provide the social worker with a new address and telephone number. The social worker was able to make contact with Mother when the social worker was visiting the girls at their foster home and Mother called there. Mother agreed to come to the Department office on January 25, 2006, but she failed to keep the appointment and did not call to reschedule. The social worker was able to reschedule the meeting for February 1, 2006, but again Mother did not kept the appointment. Mother called the social worker and stated she would come to the Department office on February 7, 2006, but again failed to keep the appointment. Finally, she came to the office on February 9, 2006, without having an appointment, and told the social worker she had missed the appointments because she was working. She stated she did not have a stable place to live and was staying with various friends, but she did not provide the social worker with a contact address or phone number. Her appearance was disheveled.
At that February 9, 2006 meeting with the social worker, Mother stated she was in full compliance with attending counseling, and parenting and domestic violence classes, and was attending them at Centro Desarollo Familiar. However, later in the day when the social worker spoke with the director of that facility, he gave a different analysis of Mother’s compliance. He stated she had not been compliant with any of those programs. She had enrolled in parenting classes in November 2005, and had attended those classes once in November and twice in December 2005, and also twice in January 2006. She had also enrolled in domestic violence classes in November 2005 and attended one class in January 2006. She had been assigned to a therapist but failed to attend any sessions. The director agreed to let Mother receive services at the facility for free.
In mid-February 2006, the facility wrote to the social worker with information that Mother was now in compliance with the counseling, parenting and domestic violence classes. Then in mid-March 2006, the facility wrote that Mother had attended 10 parenting classes and needed to attend four more to complete the program, and that since mid-February 2006 when she started her individual therapy, she had been attending weekly sessions, was cooperative and participated, and expressed a willingness to comply with court orders and reunify with the minors. The letter stated that completion of therapy would be in six months.
The March 27, 2006 six-month review hearing was continued to May 15, 2006 for an additional report and an update on a regional center referral. A speech therapy evaluation was ordered for Fernando and play therapy for both boys. By May 15, 2006, the boys had been replaced to another foster home. Replacement came in early April 2006 when their foster mother indicated they needed to be removed from her home because of their behavior problems, which the foster mother felt were a negative influence on the other children in her home. The boys were replaced to a home where there are no other children so that the new foster mother could provide them with more individual attention.
The new foster mother reported no serious behavior problems and the boys were doing well in her home. Mother had not visited the children in over a month and she had declined several invitations to attend the children’s sibling visits. A referral for play therapy for the boys was pending, as was the regional center referral which had to be resubmitted to a new service area when the boys were replaced. Adoption assessments for all five children, which were completed in September 2005, had been submitted to the adoption liaison but had not returned to the social worker.
At the May 15, 2006 six-month review hearing, the court terminated the parents’ reunification services as to Marco and Fernando because (1) the parents had not regularly participated in and made substantial progress in their case plans, (2) there was no likelihood of returning the boys to their care in the next period of review, (3) Fernando was under the age of three on the date of the initial removal, and (4) Marco is a member of Fernando’s sibling group and was removed from parental custody at the same time as Marco. (§ 366.21, subd. (e).) Mother’s reunification services as to the girls were continued but the father’s were terminated. Permanent placement services were ordered for the boys. The matter was continued to September 27, 2006 for a section 366.21, subdivision (f) 12-month review hearing for all five of the children and a section 366.26 hearing for Marco and Fernando.
5. The Twelve-Month Review Hearings
The Department’s section 366.26 report for the September 27, 2006 section 366.21, subdivision (f) hearing shows the boys remained in the foster home to which they were replaced in April 2006 and the placement was stable. The report states the boys appeared to be reaching their developmental milestones. They had begun weekly therapy, and were not clients of the regional center. Fernando was aggressive at times, including being aggressive with Marco, and was having difficulty following directions, but he was also described by the foster mother as loving and affectionate. Their visits with their sisters continued and were bi-weekly. The boys enjoyed the visits and appeared to be bonded with the girls. The reports states Mother had been “somewhat consistent” during the prior six months about keeping her weekly two-hour visits with the boys, but had still missed “numerous visits” with them. The quality of her visits was reported to be poor at times, with Mother not being very affectionate with the boys and they not appearing to be bonded with her. The foster mother was monitoring the visits. Two days before the September 27, 2006 hearing, Marco told the social worker he did not want to see Mother any more, and when he said it, he called Mother by her first name.
The social worker opined that adopting the boys to the same home was the most appropriate plan for them because they have never been apart and they are bonded with each other. Their foster mother was not interested in adopting them, however an adoptions applicant worker was assigned to the case, and a family had indicated an interest in the boys. The social worker recommended that the section 366.26 hearing be continued to allow the Department more time to locate a prospective adoptive family.
On September 27, 2006, the children’s section 366.21, subdivision (f) twelve-month review hearing was continued to November 2006, and the boys’ section 366.26 hearing was continued to January 2007. A November 2006 interim report shows that on October 25, 2006, the boys were replaced to a prospective adoptive home that has a foster care license. The report indicates the boys were replaced “rather abruptly” after their foster mother reported that Marco was touching, and attempting to kiss, Fernando’s genitals. The report states such behavior had not been reported before, and Fernando was afraid to sleep in the same room with Marco. The boys were given separate bedrooms at the prospective adoptive home and no further incidents were reported. The report states Mother’s visits with the children continued to be sporadic, and sometimes she would not show up for visits with the girls or she would arrive hours late. Karen reported that the boys’ former foster mother suggested to her, at a sibling visit on October 21, 2006, that she (Karen) threaten suicide if the boys were placed in an adoptive home. The report does not state that Karen indicated she was opposed to the boys being adopted.
Also, because Mother had reported in September 2006 that she had entered into another domestic relationship that involves violence, the social worker suggested to her that even though she had completed a 26-session domestic violence program, she should enroll in another domestic violence program. Mother agreed to that plan. According to the Department’s report, the facility where Mother had completed domestic violence classes was also of the opinion that Mother should continue to address domestic violence issues. Although Mother appeared at the new agency on October 5, 2006 for an intake appointment, she did not attend her first class until October 30, 2006. She explained to the Department social worker that she had just been too lazy to begin classes earlier because she was adjusting to a new work schedule.
Mother had also moved to another residence and was renting a bedroom with a private bathroom in a house where a family of six lives. The social worker found the bedroom to be small but neat, and confirmed that Mother has access to the family’s kitchen. Mother reported she has steady employment and would purchase bunk beds for the girls. Because Mother was not in compliance with visitation, the social worker recommended that her unmonitored day visits continue and overnight visits not be ordered until Mother demonstrates she can have regular day visits and has acquired beds for the girls. It was also recommended that the number of Mother’s visits with the boys be reduced so as to make an easier transition to no visits after the prospective adoption takes place.
At the November 9, 2006 review hearing, the court ordered the Department to arrange play therapy for the boys forthwith and arrange a regional center evaluation for them. The hearing was then continued to November 13, 2006. At the November 13 hearing, Mother testified in support of the home of parent order she was seeking. She stated she had purchased bunk beds which were going to be delivered, and she was working a job where the employer would arrange her schedule to fit the children’s school program and she would have weekends off. (However, she also stated her new work hours would be from 6:00 a.m. to 2:30 p.m.) She had been employed at this job for two months. She stated that except for once when she chanced to see him on the street, in the prior six months she had not seen the man who had committed domestic violence against her. She stated she had learned from her domestic violence classes to keep from entering into such relationships and she was enrolled in additional classes. Asked about her housing, she enumerated four places she had lived within the past 13 months, including her then-present address.
The court continued reunification services for Mother for the girls, ordered unmonitored day visits at least twice a month with the boys and weekly overnight visits with the girls, both conditioned on Mother actively participating in individual counseling to address domestic violence issues. The Department was ordered to ensure at least weekly sibling visitation, and to enroll Mother in low or no cost Spanish speaking individual counseling to address domestic violence. The court indicated that at the January 22, 2007 hearing, it would consider return of any or all of the minors to her care.
6. The Final Hearings
The Department’s section 366.26 report for the January 22, 2007 hearing states the boys were attending preschool and doing well there although Fernando was not as well behaved as Marco. Marco was learning to use a computer and both boys had learned to speak “a lot of English” since being placed in their preadoptive home. Both boys were learning the alphabet and Marco was able to recognize all 26 letters. Replacement to the preadoptive home meant a change of therapist, and their new therapist concluded the boys no longer needed counseling.
The boys were having bi-weekly visits with their sisters and appeared bonded to them. At a sibling visit on January 4, 2007, the boys gave the girls Christmas gifts that the preadoptive parents had purchased for Marco and Fernando to give their sisters. The girls were surprised at how much English the boys had learned and how well cared for they were. Karen told the social worker she was happy that her brothers were doing so well and that they seemed happy. The girls had an opportunity to meet and interact with one of the prospective adoptive parents.
Since coming to their preadoptive home in late October 2006, the boys had not had any visits with Mother. The first scheduled visit was cancelled by the social worker because county counsel was concerned there was an error in the court’s November 13, 2006 minute order regarding visitation. The next two attempts at visitation were cancelled because the social worker could not reach Mother to confirm them. Mother later reported her cell telephone had been disconnected. The social worker had no other means of reaching Mother because Mother had not provided an alternative phone number or a legitimate address. The preadoptive parents reported that prior to the third scheduled visit, the boys appeared anxious about having to visit with Mother, cried the entire night prior to the scheduled visitation day and repeatedly stated they did not want to visit Mother. Both boys also told the social worker they do not wish to visit Mother.
The report states the boys appeared to be very bonded to the preadoptive parents, are loving and affectionate with them, and comfortable and happy in their presence. The social worker observed that the boys are more obedient and fight less with each other and the preadoptive parents use appropriate methods of discipline and are loving and patient with the boys. The boys share a bedroom and have two dogs whom they are learning to interact with. The social worker recommended that the parents’ parental rights be terminated and adoption move forward.
By the January 22, 2007 hearing, Mother had moved again and was living in a three-room apartment with a woman and the woman’s husband. She had moved there December 1, 2006 but had not informed the social worker of her new address until January 19, 2007 because she had “not been able to talk to her.” The court continued the girls’ review hearing to February 14, 2007 to permit the Department to evaluate Mother’s new home, and continued the boy’s section 366.26 hearing to May 10, 2007. Over the Department’s objection, the court permitted monitored visits between the boys and Mother on at least a weekly basis.
Each of the three girls was eventually returned to Mother’s care under a home of parent order under Department supervision—Kathleen on July 24, E. on August 20, and Karen on September 24, 2007.
Despite the January 22, 2007 order that Mother’s visits with the boys be monitored, the minute order from that hearing did not reflect the requirement of monitoring. The Department’s report for the May 10, 2007 hearing states the boys were having unmonitored visits with their sisters at least twice a month in the social worker’s office and Mother was present for most of those visits. She was also having her own unmonitored visits with the boys. Her additional visits occurred at the Department office or at a McDonalds. The report states that at the visits between the siblings, the children seem happy in each other’s presence and the boys are particularly happy to see Karen, who is very affectionate with them.
The report also states the boys were receptive to Mother’s attention but they appeared anxious at the end of the visits. Moreover, the boys’ behavior and emotional health began to regress shortly after they began having regular visits with Mother (which apparently commenced in March 2007). They began to exhibit behaviors that had ceased when they went to their preadoptive home. Fernando began crying at night from fear of the dark and refused to sleep with the light turned off. Previous caretakers had reported the boys had nightmares, and the nightmares continued nearly every night when the boys first arrived at their preadoptive home but had gradually decreased to approximately once a week. However, after Mother’s visits became regular, the nightmares markedly increased in frequency. Fernando, who had been potty trained, began wetting himself, including wetting himself at school five times in the month prior to the May 10, 2007 hearing. Also, Fernando’s behavior at preschool had regressed to where it was when he first enrolled there such that he was fighting with other children and refused to follow directions. Both boys would cry and physically cling to the preadoptive parent who dropped them off at preschool in the morning, and show fear he would not return for them. The boys’ negative behavior was the worst in the days following their visits with Mother. On May 8, 2007, Fernando told the preadoptive parent that Mother told him he has to live with her, and Marco stated Mother told him he has to live with her and the preadoptive parents are mean.
Additionally, during the 15 minutes that the social worker monitored the boys between when they are dropped off at the Department office and when Mother begins her visits with them, the boys would become very anxious when the preadoptive parent left them, and they repeatedly asked him if he would be waiting for them after their visit with Mother. The boys were also hyperactive and uncontrollable during that 15-minute period. The social worker stated that when she interviewed the boys, they repeatedly asked if they will be allowed to remain in their preadoptive home, and they state they are happy there.
The boys were evaluated in an adoption program at UCLA that is part of the Department’s adoption process and designed to assist prospective adoptive parents with the problems of the children they adopt, particularly mental health, emotional, and developmental problems. The boys had been receiving services at UCLA since October 2006 when they were placed in their preadoptive home. The UCLA assessment team was concerned about the boys’ well being and at a meeting they suggested that the boys’ visits with Mother be terminated or at least reduced in number so that the boys have time to stabilize between visits. The team felt that Marco’s anxiety was “clinically significant,” and they opined that Fernando had many signs of ADHD although he was too young to receive that diagnosis. The preadoptive parents were referred to the Early Intervention Program at Children’s Hospital for children who have suffered early childhood trauma or abuse.
At the May 10, 2007 section 366.26 hearing, the court reduced Mother’s visits with the boys to twice a month and ordered that they be monitored. The matter was continued to September 24 for notice to the father. At the September 24 hearing, Mother testified that when she has visited the boys, the girls have also been at those visits, and that was both when the children were in their respective foster/preadoptive homes, and after the girls were returned to her care under the home of parent orders. She stated the boys are happy to see their sisters, especially Karen who is very affectionate with them, and the children interact with each other as brothers and sisters do. During the visits, Mother and the children play and Mother brings the children something from McDonalds or from her home. She tries to hug the boys but they are a little distant from her, which she feels is normal because they do not see her very often. Mother believes it is important for the boys to remain in contact with herself and their sisters because she loves them and the boys grew up with their sisters and they are all a family.
After Mother’s testimony, the court and the attorneys addressed the question whether the “sibling relationship” exception to termination of parental rights applies to this case. At the time of the hearing, the sibling relationship exception was found in section 366.26, subdivision (c)(1)(E). That exception states that if the court finds by clear and convincing evidence that it is likely a child will be adopted, the court should nevertheless not terminate parental rights and not order the child placed for adoption if the court “finds a compelling reason for determining that termination would be detrimental to the child” because “[t]here would be substantial interference with a 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.”
The sibling relationship exception to termination of parental rights is now found in section 366.26, subdivision (c)(1)(B)(v).
In making its determination on the applicability of the (c)(1)(E) exception, the court observed that Fernando had lived apart from his sisters for half of his life and Marco had lived apart from the girls for two-fifths of his life. The court found that the minors, at that point in time, did not have such a common upbringing and experience that it would outweigh the benefit the boys would obtain from being adopted, and it is in the boys’ best interest to move forward with adoption and experience permanence in their lives. On that basis, the parents’ parental rights to Fernando and Marco were terminated. Thereafter, Mother filed this timely appeal to contest termination of her rights.
DISCUSSION
1. Standard of Review
In reviewing a trial court’s determination on the applicability of statutory exceptions to termination of parental rights, appellate courts have utilized both the substantial evidence test and the abuse of discretion test. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) The Jasmine D. court observed that “[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 court’s action, no judge could reasonably have made the order that he [or she] did.’ . . . ” ’ [Citations.] However, the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since the statute now requires the juvenile court to find a ‘compelling reason for determining that termination would be detrimental to the child.’ [Citation.] That is a quintessentially discretionary determination. The juvenile court’s opportunity to observe the witnesses and generally get ‘the feel of the case’ warrants a high degree of appellate court deference. [Citation.]” (Ibid.)
2. Application of the Standard of Review
Where possible, adoption remains the Legislature’s first choice for a permanent plan for minor children in dependency cases. Statutory exceptions to adoption, such as the sibling relationship exception which Mother asserts should be applied in this case to Marco and Fernando, “ ‘merely permit the court, in exceptional circumstances [cite] to chose an option other than the norm, which remains adoption.’ [Citation.] [¶] When considering the sibling relationship exception, the concern is 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.’ [Citation.]” (In re Naomi P. (2005) 132 Cal.App.4th 808, 822.)
Nevertheless, a sibling’s relationship with the child who is at issue in the section 366.26 hearing is not irrelevant. “ ‘Certainly, evidence of the sibling’s relationship with the child and, if the sibling is articulate, perhaps of the sibling’s views of that relationship, might be relevant as indirect evidence of the effect the adoption may have on the adoptive child. A nonadoptive sibling’s 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.’ [Citation.]” (In re Naomi P., supra, 132 Cal.App.4th at p. 823.) “Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless 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. [Citation.]” (Ibid, italics added.)
Certainly the evidence in this case shows that Fernando and Marco were bonded with their sisters, particularly Karen who has been like a mother to them, and the boys enjoy their visits with the girls. However, even though the boys were not shy about making their desires known to the social worker, there is no evidence that either boy voiced resistance to being separated from the girls, either when they were separated from the girls to different nonadoptive homes in December 2005, nor when they were replaced to their preadoptive home. Nor is there evidence the girls voiced such resistance when they were separated from their brothers in December 2005.
At a sibling visit in January 2007, Karen told the social worker she was happy that her brothers were doing so well in their preadoptive placement. The girls had an opportunity to meet and interact with one of the prospective adoptive parents. Even when Karen reported that the boys’ former foster mother had suggested to Karen that she threaten the Department with suicide if there was a plan for the boys to be adopted, Karen did not indicate that she did not want them to be adopted. The first opinion of the girls regarding separation from their brothers came at the September 2007 section 366.26 hearing when Karen’s attorney stated that “the girls have expressed they wish to maintain contact with their brothers.” That wish is consistent with the children being bonded with each other. But by itself it does not rise to the level of sibling relationship that is necessary for application of the sibling relationship exception.
Further, the boys had spent nearly two years living apart from their sisters, which the trial court noted was a significant portion of both boys’ lives. Thus, although Fernando and Marco were raised for two and three years, respectively, with the girls in Mother’s home, and although the five children spent another four months together in foster care homes, the boys’ common experiences with their sisters were limited by their youth.
Mother cites to In re Erik P. (2002) 104 Cal.App.4th 395, 404 where the court observed that the sibling relationship exception to adoption is meant to preserve “long-standing relationships between siblings which serve as anchors for dependent children whose lives are in turmoil,” and maintaining sibling relationships can be critically important to children separated from their home and parents. However, the record in this case is quite clear that Marco and Fernando’s preadoptive home and parents have become their anchor, and the boys have made it clear that they do not want to be separated from that anchor.
The evidence shows that once the boys began living in their preadoptive home, they (1) made significant progress in school, both academically and socially, (2) made significant progress in their ability to behavior properly towards each other, and (3) appeared to be very bonded to the preadoptive parents and were loving and affectionate with them. Their replacement to the preadoptive home was of substantial benefit to them.
Additionally, the evidence shows that after they were replaced to their preadoptive home, the boys became distressed at the thought that they might be taken from that home, and they told both the preadoptive parents and the social worker that they did not care to visit with Mother. When Mother’s contacts with them became more regular, the boys’ behavior regressed. Regression included having a marked frequency in the number of nights they would have nightmares; crying and clinging to the preadoptive parent who drops them off at preschool and worrying he would not return for them; worrying that the preadoptive parent who brings them to visits with Mother would not be there for them when the visits are over; and being uncontrollable during the 15 minutes preceding their visits with Mother, and anxious at the end of the visits. Moreover, Fernando had regressed in his toilet training and was wetting himself, and he was afraid to sleep with the light out. The boys’ regressive behavior was at its worst in the days following their visits with Mother. It is clear that the boys need the stability of knowing they can have a permanent home with the preadoptive parents.
Based on this evidence, we find that the record support’s the trial court’s determination that the sibling relationship exception to termination of parental rights does not apply to Marco and Fernando because adoption would not be detrimental to the boys since as between adoption and continued contacts with their sisters, it is adoption that is in the best interests of the boys. We do not agree with Mother’s contention that the trial court should have rejected adoption in favor of “a permanent home with legal guardians where their need for stability could be met and they could retain their sibling relationships.” Adoption is the Legislature’s first choice of a permanent plan “ ‘ “because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.” ’ [Citation] ‘ “Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child.” [Citation.]’ ” (In re Naomi P., supra, 132 Cal.App.4th at p. 822.)
Whether we apply substantial evidence or abuse of discretion as a standard of review, there is no cause to reverse the termination of Mother’s parental rights to Fernando and Marco.
DISPOSITION
The order terminating Mother’s parental rights is affirmed.
We Concur: KLEIN, P. J., KITCHING, J.