Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. Nos. 59422 & 71075
Margulies, J.
I. INTRODUCTION
Two young children, Nicholas K. and Shawna K., were placed in foster care as a result of neglect arising from the substance abuse of their mother, appellant Sharon K. (Mother). Their father, appellant James H. (Father), had similar problems. Over the course of the initial 18 months, the parents maintained intermittent contact with the children while Mother underwent unsuccessful treatment. Eventually, reunification services were terminated for both parents, and the children were placed in separate foster homes. After the children thrived over the course of the next year and their foster parents proved willing to adopt them, the juvenile court terminated parental rights. We affirm that decision.
II. BACKGROUND
On February 7, 2003, the San Mateo County Human Services Agency (Agency) filed petitions under Welfare and Institutions Code section 300, subdivision (b), with respect to the children, alleging that Mother, who has a history of substance abuse, was found heavily intoxicated in a filthy and chaotic home. Nicholas, then age 8, was diagnosed as suffering from attention deficit hyperactivity disorder and borderline mental retardation. Shawna, then age 7, had no organic deficits, but psychological evaluation found emotional problems created by her difficult background.
All statutory references are to the Welfare and Institutions Code.
At the time of the jurisdictional hearing, both children were adjusting well to their temporary placements. Father had been permitted weekly one-hour visits, for which he was frequently late. Neither child demonstrated particular affection for him. Because Mother was participating in alcohol treatment, her visits were fewer. Both children described examples of neglect and violence growing out of their parents’ substance abuse. The court sustained the petitions, found the children to be dependents of the court, and ordered out of home placement.
Father struggled with substance abuse throughout the dependency period. He had previously played little active role in his children’s lives, and the possibility of their residing with him was never seriously considered by the Agency and was opposed by Nicholas and Shawna. Because the issue raised by Father on this appeal does not depend upon his personal conduct, we will not further describe events relating to Father in this statement of background facts.
Because of repeated continuances granted by the court, this child dependency process was considerably drawn out. The six-month hearing, which by statute was to occur six months after the dispositional hearing (§ 366, subd. (a)(1)), or by November 11, 2003, was not completed until February 24, 2004. By that time, Mother had been in and out and back into substance abuse treatment programs. Both parents were, however, complying with the services program and maintaining visitation schedules when possible. Shawna was reported to be doing very well, but Nicholas had been suspended from school twice as a result of significant and continuing behavioral problems. The children had been placed together in a foster home, and were doing well in each other’s company. At this point, all family members and the Agency were focused on reuniting Mother and her children, recognizing the close bonds among them. The 12-month hearing was timely held one month later, with circumstances essentially unchanged, although Nicholas’s behavior problems were improving.
In May 2004, the children were placed back with Mother in a transitional housing program. The experiment failed, however, when Mother began drinking again, and the children were returned to foster care. Unlike their previous period in foster care, Nicholas and Shawna were eventually placed apart from each other, in different foster homes.
A psychological evaluation of the children conducted in September 2004, concluded that both children “have been severely impaired in their potential” by their chaotic home life. Regarding their bond with Mother, the psychologist noted, “Shawna and Nicky look to their mother as their primary attachment figure, [but] their attachment to her is insecure and conflicted, due to her alcoholism and attendant impairments in parenting.” With respect to their mutual bond, the psychologist wrote that “when they are together they trigger each other’s post-traumatic responses. In a one-on-one interaction with the undersigned, they were much less impulsive and out-of-control than they were during their conjoint session together. . . . [¶] . . . [¶] . . . Tragic as it is, the risk of joint placement for these children, because of their mutual acting out and post-traumatic re-enactments when they are together, may outweigh the benefit of maintaining their sibling bond. Nicky is much more likely to continue his pattern of disrupting placements, [while] Shawna has the potential for forming secure attachments and adjusting in a permanent placement.”
Over the course of the next year, the court repeatedly deferred making a final decision as to the disposition of the children, deferring the 18-month hearing eight times before concluding the process in September 2005. Throughout this year-long period, the children were living separately. Mother initially lost contact with the children after her relapse. For several additional months, she struggled with substance abuse until successfully completing a six-month residential treatment program toward the end of the period. By the time of the final hearing, however, she was not complying with the after care program recommended by the treatment program.
By that time, the children had been in foster care since February 2003—a period of 31 months. During the year-long period of deferred 18-month review hearings, they developed strong attachments with their respective foster parents. Visits with Mother and Father were sometimes troubled and caused particular stress to Nicholas, who reverted to former negative behavior patterns on days when the visits were scheduled. Shawna also showed less enthusiasm for family visits. By the end of the one-year period, such visits had been reduced to two hours weekly for Mother. The children also became accustomed to their separation from each other. Because of stresses created by the relationship, Shawna, particularly, was relieved at times to be kept separate from her brother.
At the final 18-month hearing, the court terminated reunification services to the parents and scheduled a permanency hearing pursuant to section 366.26.
The section 366.26 hearing was not held until May 22, 2006, over three years after the children were first removed from Mother’s care. By that time, Shawna had developed a strong, affectionate relationship with her foster mother, a capable caretaker who wanted to adopt Shawna. Shawna’s reaction to the suggestion that she might not be returned to Mother’s care was muted. The therapist who was working with Shawna believed that no harm would come from a termination of parental rights and that Shawna’s need for the stability offered by an adoption outweighed her attachment to Mother. Similarly, Nicholas’s foster mother was willing to adopt him, despite his development and behavioral problems. The foster mother had proven devoted to Nicholas and had made extraordinary efforts on his behalf. The therapist working with Nicholas reported that he was “ambivalent” about his biological parents and rarely spoke about them, and he displayed no disappointment when told he might be taken from Mother permanently.
On occasion, the two foster mothers brought the children together for joint outings. Too much exposure to each other, however, brought out “the very worst” in the children. They continued to trigger each other’s anxieties, developed during their life with Mother. Shawna would fall into a familiar parental role with Nicholas, while Nicholas would become disruptive. For Shawna, particularly, it was a relief to be free of the responsibility of caring for Nicholas.
While both children enjoyed their visits with Mother, a testifying psychologist believed that the permanence and stability offered by the foster families outweighed their attachments to Mother and each other, particularly since the conditions of their early life had left them at risk for serious emotional problems. This was true even if the children’s relationship with Mother was severed altogether as a result of the adoptions. There was substantial additional evidence of the pair’s success in their separate foster homes, despite the reduced contact with Mother.
The juvenile court terminated parental rights, finding clear and convincing evidence that the children were adoptable by their willing foster mothers. Although the court encouraged the foster mothers to continue contact between Nicholas and Shawna, the court concluded that the separate adoptive arrangements were preferable even if there was no further contact between the two. As the court explained its reasoning, “It would be an insult to these children’s future to hold back permanence in the hope that ongoing visitation with mother or with one another was so important that it could serve as a roadblock to them having a future and a stable life. [¶] So even assuming that these foster mothers turn around and say, ‘No. You will never see your parent again. You will never see your sibling again,’ permanency and adoption is still the only plan and the best plan for Shawna and for Nicholas. [¶] [The examining psychologist’s] testimony was incredibly persuasive. These children thrived during the one juncture where they were separated out. The proof, as we say, is in the pudding. When one traces all five volumes of their sojourn, that is the timeframe in which they blossomed the most. [¶] . . . [¶] [Even if they were never to see their biological family again,] I have no doubt whatsoever but that adoption by their current adoptive families is in their best interests and the only way to safeguard and nurture the progress that these amazing children have made . . . . [¶] . . . [¶] . . . We all know in this room that guardianship is not as permanent as adoption[,] [t]hat a guardian does not have the same legal status as an adoptive parent who, at some point, once those papers are signed, ceases to be an adoptive parent and becomes instead a parent. [¶] And that’s what we need for these children in this case.”
III. DISCUSSION
Father contends that the juvenile court erred in terminating his parental rights because the termination would substantially interfere with the children’s relationship with each other. (§ 366.26, subd. (c)(1)(E).) Mother joins in this claim, asserting as well that the juvenile court’s termination of her parental rights was in error because the children would benefit from a continuing relationship with her. (§ 366.26, subd. (c)(1)(A).)
A. Relationship with Mother
“ ‘At a hearing under section 366.26, the court is required to select and implement a permanent plan for a dependent child. Where there is no probability of reunification with a parent, adoption is the preferred permanent plan. [Citations.] In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated. [Citation.] The parent then has the burden to show termination would be detrimental to the minor under one of [six] specified exceptions. (§ 366.26, subd. (c)(1)(A)–([F]).) In the absence of evidence termination would be detrimental to the minor under one of these exceptions, the court ‘shall terminate parental rights . . . .’ (§ 366.26, subd. (c)(1), italics added; [citation].)’ [Citation.]” (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1153.)
Under the express of language of the first exception of subdivision (c)(1) of section 366.26, the termination of reunification services to a parent is declared a “sufficient basis” for termination of parental rights “unless the court finds a compelling reason for determining that termination would be detrimental to the child due to . . . the following circumstances: [¶] (A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) Under this exception, the parent bears the burden of showing not only that the requisite regular visitation and beneficial relationship exist, but also that termination of parental rights would be “detrimental” to the children as a result. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) We review the juvenile court’s decision under an abuse of discretion standard. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)
Satisfying this exception requires more than a showing that the child will benefit from maintenance of the parental relationship. “ ‘Interaction between the natural parent and child will always confer some incidental benefit to the child.’ ” (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) “A child who is determined to be a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may benefit the child to some degree but does not meet the child’s need for a parent.” (In re Aaliyah R., supra, 136 Cal.App.4th at p. 449.) Instead, the parent must show that “ ‘the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.’ ” (In re Casey D., at p. 50, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
It is clear that Nicholas and Shawna love Mother and feel protective toward her. Given the circumstances, they naturally felt reluctant to abandon her and wanted to maintain some relationship. Satisfying the parental relationship exception, however, requires more: a bond so strong that it outweighs the benefits that a stable adoptive home can provide. There is little or no evidence of that type of bond here. Despite their love for Mother, the children were not reluctant to be adopted. Their mental health and behavior improved dramatically during their year of stable foster care, a change attributable solely to the new circumstances. The experts who observed the pair were unanimous in concluding that the benefits of a stable adoptive home outweighed any benefit that maintaining their relationships with Mother might provide. The examining psychologist affirmed that this would be true even if the adoptive parents severed all further contact with Mother. Given this evidence, the juvenile court did not abuse its discretion in concluding that the relationship with Mother did not “ ‘promote[] the well-being of the child to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents.’ ” (In re Casey D., supra, 70 Cal.App.4th at p. 50.)
Mother argues that “[e]veryone agreed that the children benefit from contact with [M]other and that they would be emotionally harmed if the contact were terminated.” While this is true, it is insufficient to satisfy the exception. The question was not whether the children would be harmed by termination of contact with their mother. The question was whether requiring that contact to be maintained is so important to the children’s well-being that it outweighs the benefits to be gained through adoption. “It is a balancing test.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 231.) For the reasons stated above, the juvenile court acted well within its discretion in concluding that the balancing test weighed in favor of the palpable benefits of a stable home.
B. Relationship with Each Other
Under the express of language of the fifth exception of subdivision (c)(1) of section 366.26, a parent must show that there is “a compelling reason for determining that termination would be detrimental to the child due to . . . the following circumstances: [¶] . . . [¶] (E) 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.” (§ 366.26, subd. (c)(1)(E).) The parents again bear the burden of showing not only that the requisite sibling relationship exists, but also that termination of parental rights would be “detrimental” to the children as a result of its impact on that relationship. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) We again review the juvenile court’s decision under an abuse of discretion standard. (In re Aaliyah R., supra, 136 Cal.App.4th at p. 449.)
Like the parental exception, this exception requires the juvenile court “to balance the benefit of the child’s relationship with his or her siblings against the benefit to the child of gaining a permanent home by adoption.” (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951.) “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. . . . [¶] Moreover, even if a sibling relationship exists that is so strong that its severance would cause the child detriment, the court then weighs the benefit to the child of continuing the sibling relationship against the benefit to the child adoption would provide. ” (Id. at pp. 952–953; see In re Celine R. (2003)31 Cal.4th 45, 61.)
The adoption does pose at least a theoretical threat to the relationship between Nicholas and Shawna, since there is no guarantee their adoptive mothers will maintain contact between them. That relationship, however, has not been wholly healthy for either sibling. In the crucible created by their unstable home life with Mother, a strong bond was formed, but it was a bond that was stressful for Shawna, if not for both children. While the two enjoyed seeing each other, extended contact brought out unhealthy behavior in both—Shawna’s need to act as parent for Nicholas and Nicholas’s need to act out. Particularly in light of the equivocal nature of the relationship between the children, it was again unanimously agreed by the experts that the benefits of adoption outweighed the risks to that bond and the detriment they might suffer from severance of the bond. There was no abuse of discretion in the juvenile court’s conclusion that the risk of detriment from interference with the sibling relationship did not outweigh the benefits to be gained through adoption. (See, e.g., In re Jacob S. (2002) 104 Cal.App.4th 1011, 1018.)
In arguing for the application of this exception, Father highlights the harm that will result if the bond between the two siblings is permanently severed, while disregarding the balancing necessary under subdivision (c)(1)(E) of section 366.26. For the reasons discussed above, the benefits of an adoptive household for both children are so great that they easily outweigh the emotional harm of a severance of the sibling bond, were that to occur. It is worth noting, however, that the two adoptive parents are acquainted and expressed an intent to maintain the relationship. There is no necessary reason why adoption will substantially interfere with the bond between them.
Father also argues that the trial court could have opted for a guardianship rather than adoption in order to further the sibling bond. There is no guarantee, however, that guardianships would have promoted the sibling bond to any greater degree than adoption. Further, section 366.26, subdivision (c) strongly favors adoption, making that alternative mandatory unless the requirements of the exception are met. Having found the exceptions unsatisfied, the juvenile court was not required to consider the “lesser” alternative of guardianship.
IV. DISPOSITION
The orders of the juvenile court are affirmed.
We concur: Marchiano, P.J., Stein, J.