Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden, Judge, Super. Ct. Nos. 508850, 508851, 508852, 508853, 508854
Mario DeSolenni, under appointment by the Court of Appeal, for Defendant and Appellant.
Michael H. Krausnick, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
Before Wiseman, A.P.J., Levy, J., and Cornell, J.
OPINION
Rachel C. appeals from orders terminating her parental rights (Welf. & Inst. Code, § 366.26) to her five daughters and sons. She contends the court erroneously sustained an objection in her questioning of her eldest child and abused its discretion by not finding the sibling relationship exception applicable. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In December 2005, appellant’s husband attempted suicide by shooting himself in the home he shared with appellant and their five children. The children, who ranged in age from three months to ten years, were in the house at the time; indeed, the father shot himself in the presence of the couple’s four-year-old daughter and appellant. This incident led authorities to discover: there were a number of loaded weapons within the children’s reach; the home was filthy and contained little edible food; the parents had a ten-year history of domestic violence including incidents which the children witnessed when the father would threaten to kill appellant and hold a gun to her head; and there was ongoing substance abuse by both parents.
As a result, Stanislaus County Community Services Agency (agency) detained the children and initiated the underlying dependency proceedings. The agency was able to quickly place all five children with their maternal grandmother. Thereafter, in January 2006, the Stanislaus County Superior Court exercised its dependency jurisdiction over the children (§ 300, subd. (b)), adjudged them dependents, and removed them from parental custody subject to reunification services for each parent.
In her briefs to this court, appellant erroneously refers to the relative as the paternal grandmother. To appellate counsel’s credit, some of the later social worker reports misidentify the grandmother and later still her daughter as paternal relatives.
Over the following six months, neither parent made significant progress in resolving the problems that led to the children’s removal. Appellant made some progress but was “in clear denial” and gained limited insight in what was best for her children’s safety and well being. The father was incarcerated for a majority of the time and, once released, demonstrated an apathetic attitude in terms of his case plan.
By the six-month review stage, the agency recommended the court terminate reunification services for both parents and set a hearing to select and implement a permanent plan for the children. The agency claimed the children formed a sibling group, relying on the fact that the youngest sibling was less than three years old when she was initially removed, and all of them were removed from parental custody at the same time. These facts, coupled with the parents’ lack of progress, would warrant terminating services at the six-month stage. (§ 366.21, subd. (e).)
Section 366.21, subdivision (e) provides in this respect:
Meanwhile, in April 2006, the agency moved appellant’s two sons to her sister’s home. Caring for all five children, as well as two other grandchildren for whom she served as legal guardian, had overwhelmed the grandmother. Although the maternal aunt and her husband expressed a willingness to accept placement of all five children, they would need to secure larger housing to satisfy licensing requirements. Also, there was no other relative who could take all five children. Because the grandmother and aunt lived within miles of one another and were very close as well as the fact that the extended family wanted the children to remain with family, the agency decided to place the boys with the aunt and allow the girls to continue to reside with their grandmother.
The boys’ change in placement led to a continuance of the six-month review hearing in order for the agency to document its position that the children remained a sibling group. In an addendum report filed in August 2006, the agency reported first the facts underlying the change in placement. It went on to report:
“The children are very close with one another. They have a strong bond. The unfortunate extensive trauma that they have suffered together has made their sibling bond even stronger. The extended family was very concerned that the undersigned might place the children in a foster home in order to keep them together. During [an April] meeting [the maternal aunt and uncle] requested that the boys be placed in their home while the girls continue to reside with [the grandmother]. This would allow [the maternal aunt and uncle] to continue to reside in their home so placement could be made immediately but allow the children to continue frequent contact and maintain their strong sibling bond. As stated above, [the maternal aunt and uncle] and [the grandmother] live within miles of one another and are very close. [The grandmother] is [the maternal aunt’s] mother. They have a strong mother daughter relationship. They see each other many times a week. The result of this meeting was that the children would be separated but continue placement with [maternal] relatives and maintain their sibling bond through frequent contact.
“The children have more than weekly contact with one another. They often see each other daily. Sometimes, the girls spend the night at [the maternal aunt and uncle’s] and other times the boys spend the night with the girls with [the grandmother]. Sometimes, only one will spend the night at a time. Their contact is very frequent. They continue to have a strong and close bond. Even though [the eldest child, 10-year old M.] is separated from her brothers, she still feels responsible for them and though all parties have attempted to help [M.] with her parentified views regarding her siblings, she continues to want this role. The undersigned has witnessed how close she is to her siblings as well as her parentified relationship with all of [her] siblings including her brothers who are placed separately. During visits, she is consistently telling her parents about both boys and what she feels is right and or wrong in their care with their aunt and uncle. She mothers her sisters and brothers constantly, to the point that [the grandmother] has often had to redirect her. It is clear that the children are close and that placement apart from each other has not hindered in any way their sibling bond. The undersigned strongly believes that this is because the siblings have frequent contact with each other as well as the fact that their respective caregivers are so emotionally close i.e., strong mother daughter relationship. There is a strong risk of detriment if the children do not maintain their sibling ties. Fortunately, because the children are placed with [maternal] relatives and that they live so close together and see each other so frequently, there is no risk of them not maintaining their close sibling bond. Both homes are adoptive placements in that if reunification is not possible [the grandmother] is willing to adopt [the girls] and [the maternal aunt and uncle] would adopt [the two boys].
“The undersigned has asked the children about their wishes. Of course all of them want to return home to both their mother and father however if this is not possible, they are happy where they are. They want to be with family though, they wish they could all be together. [M.] has confirmed that she gets to see her brothers frequently and is very happy and grateful that they all live so close. She trusts that this will continue if they are to be adopted.
“The undersigned believes that the best interest of these children is to continue to view and treat them as a sibling unit. They are emotionally very close and the close physical proximity continues to strengthen their bond. If we treated the children differently because of their separate placements, the children would suffer. For all intents and purposes the children remain one large sibling group in two separate placements. Considering the children as separate sibling groups for the purpose of granting additional services to the parents for the boys could conceivably jeopardize the close sibling connection the five currently enjoy.”
The children’s attorney also filed a declaration with the court relevant to the factors in section 366.21, subdivision (e). In it, she reported what she perceived to be a strong sibling bond between all five children despite the separate placements. Counsel also urged the court to maintain sibling ties.
Having considered this additional evidence, the court in August 2006 made the requisite findings to continue the children’s dependencies, terminate reunification efforts, and set a section 366.26 hearing to select and implement permanent plans for each child. Although the court calendared the hearing for November 2006, it did not conduct the section 366.26 hearing until late May 2007. In advance of the original hearing date, the agency prepared a report in which it recommended that the court find each of the children adoptable and terminate parental rights.
Relevant to this appeal, the agency reported the children maintained at least weekly contact with one another and frequently spent the night together. They rotated their overnight visits between the grandmother’s and the aunt’s homes. Also, it was “virtually certain that the current caregivers [would] adopt the children in their respective homes.” The agency identified the grandmother as well as the aunt and uncle as prospective adoptive parents and included a favorable preliminary assessment of each adult. The relatives appeared fully committed to providing the children in their care with permanency through adoption. All five children were doing well in their respective placements.
The agency further reported the children’s statements regarding placement and their prospective adoption. The youngest child was too young to offer a meaningful statement. The other children expressed a preference to be with their parents but were happy in their current homes. Especially important to them was the fact they lived in close proximity to and constantly saw one another.
At the section 366.26 hearing, counsel for the agency submitted the case on the reports previously filed. Only one witness, the oldest child, M., was called to testify.
Parents’ counsel elicited from M. that she understood the meaning of adoption and would be sad her “whole life” if she could not see her brothers or her parents anymore. She would feel “okay” if the court could make a different plan where she could stay where she was and not be adopted. M.’s attorney elicited that the child saw her brothers usually at her aunt’s house “every couple days.” She trusted both her grandmother and her aunt to make decisions for her. She thought they wanted to do the best for her and her brothers and would do their best to keep her and her brothers together in terms of frequent contact.
M. also testified she had no reason to believe she would be prevented from having contact with her brothers. She would rather be with her parents. However, because that was not possible, she wished to be adopted by her grandmother.
On redirect examination, appellant’s counsel revisited whether M. understood there were permanent plan options aside from adoption in which she could stay with her grandmother and not lose her relationship with her mother. M. initially replied “Yes” later answered “No” and later still replied “Yes” to three additional queries. Appellant’s counsel then re-asked M. if she could have “[her] own choice, would you prefer to be adopted by your grandmother or would you prefer that the Court make an order where you could stay with your grandmother and still have visits with your mother?” Both M.’s attorney and county counsel objected on grounds which the court overruled. The court then asked M. directly “Do you understand the question? Kind of?” M. replied “Yeah.” The court responded “ Okay. Sounds like then objection sustained because there -- it seems like she doesn’t really understand the question.” Appellant’s counsel refused to rephrase her question.
In closing arguments, parents’ counsel asked the court to find termination would be detrimental to the children either because of the strength of their parent/child relationship (§ 366.26, subd. (c)(1)(A)) or the interference termination might have on the sibling relationship (§ 366.26, subd. (c)(1)(E)). Upon the parties’ submission, the court found the children adoptable. It also determined neither of the argued exceptions to termination applied. The court thereafter terminated parental rights.
DISCUSSION
I. Evidentiary Ruling
Appellant contends the court should not have sustained the objection to her counsel’s questioning of M. regarding her preferred permanent plan. Notably, appellant does not directly criticize the court for determining that M. did not understand the question. This is not surprising given the child’s previous inconsistent answers and the trial court’s opportunity to observe the child and determine the meaning of her “Yeah” response. Moreover, the court in no way prevented counsel from rephrasing her question.
Appellant instead argues that had M. been given the opportunity to express her opinion, she may well have preferred guardianship which in turn might have persuaded the court not to choose adoption as the permanent plan. Thus, it appears appellant is actually disputing whether the court considered M.’s wishes, as required under section 366.26, subdivision (h)(1).
Appellant’s contention is meritless. First, the agency’s reports clearly reveal the child had mixed feelings. On one hand, she wanted to return to her parents’ care. On the other, she was happy in her grandmother’s home. Of utmost concern to her, though, was maintaining a relationship with all of her siblings. Second, appellant overlooks her attorney’s direct examination of M. Counsel asked M. how she would feel if the court could make a different plan where she could stay where she was and not be adopted. M. replied “okay.” She also testified if she could not return to her parents, she would like to be adopted.
In any event, appellant’s essential claim that the court might have chosen legal guardianship over adoption for all the children had M. responded to the question ignores the law. M.’s preference, even if it was for legal guardianship, would not have tipped the scale in favor of such a decision by the court. The court was bound to terminate parental rights unless the parents could establish a compelling reason for finding termination would be detrimental. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Counsel’s questioning in this regard related to whether the exception for a continued parent/child relationship (§ 366.26, subd. (c)(1)(A)) applied. However, a child’s preference, by itself, does not amount to a showing of detriment. (Cf. § 366.26, subd. (c)(1)B) if the child were 12 years of age or older.) Here, the parents failed to introduce any evidence that their relationship with M., let alone the rest of the children, promoted the children’s well-being to such a degree that it outweighed the well-being they would gain in a permanent, adoptive home. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
II. Detriment Claim
Because the children were likely to be adopted, the law required the court to terminate parental rights, unless one of the specifically designated circumstances, set forth in section 366.26, subdivision (c)(1), provided a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Appellant and the father bore the evidentiary burden of showing termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
On appeal, we review the juvenile court decision in this regard for abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Having completed that review, as summarized above, we conclude the juvenile court did not abuse its discretion in their claim that termination would substantially interfere with the sibling relationship.
For the so-called sibling relationship exception in section 366.26, subdivision (c)(1)(E) to apply, a court must find:
“There 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.”
As the California Supreme Court explained in In re Celine R., supra, 31 Cal.4th at page 61:
“the ‘sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a “compelling reason” for concluding that the termination of parental rights would be “detrimental” to the child due to “substantial interference” with a sibling relationship.’ (In re Daniel H. [(2002)] 99 Cal.App.4th [804,] 813, quoting § 366.26, subd. (c)(1).)”
As in the trial court, appellant argues in support of a substantial interference determination. She relies on the evidence introduced at the six-month review stage that the children formed a “sibling group” and the agency’s plan for the grandmother to adopt her daughters while the aunt would adopt her sons. As appellant sees it, there is no guarantee that differences will not arise between the relatives in the future which could sever the siblings’ ties. Although there is no dispute that maintaining sibling ties was in these children’s best interests, we conclude the trial court did not err under the facts of this case.
The fact that different relatives would adopt the children did not amount substantial interference under the rather unique circumstances of this case. The relatives who were mother and daughter were very close, both logistically and emotionally, and demonstrated over the course of the proceedings a commitment to maintaining sibling ties through the children’s constant contact and frequent overnight visits. We conclude appellant’s “no guarantee” argument is nothing more than speculation (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1422) and does not satisfy her heavy burden under the law. Indeed, even she admits there was “no evidence” the children’s relationships would cease upon termination.
In conclusion, the trial court did not abuse its discretion by rejecting the parents’ argument that termination would substantially interfere with the sibling relationship.
DISPOSITION
The orders terminating parental rights are affirmed.
“If the child was under the age of three years on the date of the initial removal, or is a member of a sibling group described in paragraph (3) of subdivision (a) of Section 361.5, and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. . . .
“For the purpose of placing and maintaining a sibling group together in a permanent home, the court, in making its determination to schedule a hearing pursuant to Section 366.26 for some or all members of a sibling group, as described in paragraph (3) of subdivision (a) of Section 361.5, shall review and consider the social worker's report and recommendations. Factors the report shall address, and the court shall consider, may include, but need not be limited to, whether the sibling group was removed from parental care as a group, the closeness and strength of the sibling bond, the ages of the siblings, the appropriateness of maintaining the sibling group together, the detriment to the child if sibling ties are not maintained, the likelihood of finding a permanent home for the sibling group, whether the sibling group is currently placed together in a preadoptive home or has a concurrent plan goal of legal permanency in the same home, the wishes of each child whose age and physical and emotional condition permits a meaningful response, and the best interest of each child in the sibling group. The court shall specify the factual basis for its finding that it is in the best interest of each child to schedule a hearing pursuant to Section 366.26 in 120 days for some or all of the members of the sibling group.”
Section 361.5, subdivision (a)(3) adds that child welfare services, when ordered, shall be provided as follows:
“(3) For the purpose of placing and maintaining a sibling group together in a permanent home should reunification efforts fail, for a child in a sibling group whose members were removed from parental custody at the same time, and in which one member of the sibling group was under the age of three years on the date of initial removal from the physical custody of his or her parent or guardian, court-ordered services to some or all of the sibling group may be limited to a period of six months from the date the child entered foster care. For the purposes of this paragraph, ‘a sibling group’ shall mean two or more children who are related to each other as full or half-siblings.”