Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County No. J066035, of Ventura, Tari L. Cody, Judge
Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.
Noel A. Klebaum, County Counsel, Oliver G. Hess, Assistant County Counsel, for Plaintiff and Respondent.
PERREN, J.
D.C. (mother) appeals the juvenile court order declaring that her daughter P. is adoptable and terminating her parental rights. (Welf. & Inst. Code, § 366.26, subd. (c)(1).) She contends that the sibling and parental relationship exceptions to adoption (§ 366.26, subds. (c)(1)(A) & (c)(1)(E)) preclude the termination of her parental rights. We affirm.
Further statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
P. was born in July 2002. On May 31, 2005, she was examined at the hospital emergency room and found to have a torn hymen and other physical injuries consistent with a sexual assault. On June 2, 2005, the San Bernardino County Department of Children's Services (DCS) filed a juvenile dependency petition as to P. alleging failure to protect, sexual abuse, and no provision for support (§ 300, subds. (b), (d) & (g)). The petition further alleged that both parents had a history of substance abuse that interfered with their ability to protect and support P., and that father either molested P. or failed to protect her from molestation while she was in his custody and care. P.'s maternal aunt Elizabeth K. (aunt), who brought P. to the hospital, reported the following to DCS: Mother, who was homeless and wanted on a no bail warrant, was "coming down" from drugs when she dropped off P. at aunt's house at 4:00 in the morning on May 31st. Mother had just picked up P. from the home of father's girlfriend because a neighbor told her P. was being physically and sexually abused. After mother took a shower and had something to eat, she left.
P.'s father, Bob C., was awarded sole custody of the child in 2004. He is not a party to this appeal.
Neither parent attended the June 3, 2005, detention hearing, at which the juvenile court ordered P. detained and placed her with aunt. Father and his attorney were present at the jurisdiction and disposition hearing held on June 23, 2005. Father filed declarations and other documents disputing the allegations in the section 300 petition, and requested a jury trial which was set for August 3, 2005. Mother, who was located in the Ventura County jail awaiting transfer to prison, first appeared through her attorney at the pretrial conference held on July 22.
Trial commenced on October 11, 2005, and concluded on November 16. The evidence presented at trial established, among other things, that parents were habitual drug abusers with multiple drug-related convictions. Although father claimed he had not used drugs for seven to nine years, he tested positive for methamphetamine during a random test conducted on August 30, 2005. Mother also had two other children, neither of whom was living with her. Mother was the subject of several child welfare referrals from 2003 to 2005. Her youngest son, M.M., was born approximately a year and a half earlier while mother was in prison.
At the conclusion of the trial, the court sustained multiple counts of the section 300 petition and continued P.'s placement with aunt. Parents were ordered to participate in family reunification services, and the six-month review hearing was set for March 16, 2006. Because both parents were currently living in Ventura County, the case was transferred to the Ventura County Juvenile Court. At an interim review hearing on January 9, 2006, respondent Ventura County Human Services Agency (HSA) reported that P. had been placed in temporary foster care on December 8, 2005. Both parents requested that relatives be considered for placement. At the conclusion of the hearing, the juvenile court advanced the six-month review hearing to March 6, 2006, and gave HSA discretion to place P. with a suitable relative.
On March 6, 2006, HSA reported that P. had been placed with extended family members in Fillmore (the prospective adoptive parents). Regarding mother, HSA reported that she had continued using drugs since her release on parole and had only visited P. once, although she had spoken to her on the telephone. HSA also reported that mother's attorney stated that mother had visited P. every week since she was released in October 2006, and the visits were "going well." The social worker subsequently clarified that mother had visited P. every week since February 15, and that during those visits P. "appear[ed] to be very comfortable and bonded with her mother." At the conclusion of the hearing, the court extended reunification services for an additional six months and set the 12-month review hearing for August 21, 2006. At that hearing, HSA recommended that reunification services be terminated, and the matter was set for trial.
At the contested hearing on October 18, 2006, mother admitted (1) that she had failed to drug test or participate in treatment, (2) that she had relapsed on marijuana and methamphetamine, (3) that she was unemployed and lacked a stable residence, and (4) that she had not visited P. since the beginning of the current six-month reunification period. Mother asked the court to place P. with her maternal grandfather, who was the legal guardian of P.'s half brother M.M., or back with aunt. Mother testified that she feared the prospective adoptive parents would allow father to resume custody of P., as she claimed they had with regard to P.'s paternal half sister S. It was undisputed that father had not visited P. and had failed to participate in his reunification plan. At the conclusion of the hearing, the court terminated reunification services and set the section 366.26 hearing for February 5, 2007. The court subsequently continued the matter pursuant to the request of P.'s attorney that HSA consider placing her with the maternal grandfather in a legal guardianship.
On March 6, 2007, the maternal grandfather filed a request for de facto parent status and a section 388 petition requesting that P. be placed with him. On April 2, 2007, the court denied both requests and set the continued section 366.26 hearing for April 27, 2007.
At the April 27 hearing, HSA reported that P. had strongly bonded with her prospective adoptive family, with whom she had been living since February 2006, and that the prospective adoptive parents were committed to adoption and "love [P.] and treat her as if she was their own child." The social worker reported that "[t]he prospective adoptive parents met when they were in high school and have been married for 28 years. They have a total of eight children who are supportive of the adoption. . . . The five children that continue living in the home are ages 22, 17, 16, 15, and 13. All the children help in caring for [P.] and interact positively with her." P. was "thriving in the prospective adoptive home" and the social worker "observed her interacting affectionately with the family." Regarding visitation, HSA reported that it shall "cease upon termination of parental rights. The prospective adoptive parents do not wish to enter into a Post Adoption Contract Agreement regarding visitation."
The social worker testified at the hearing that while M.M. had been visiting P. with mother since November 2006, their sibling relationship was not significant when those visits commenced and it was not clear whether P. even recognized M.M. as her brother. The social worker also testified that she was aware of only one time when P.'s other half brother B. had attended mother's visits. The HSA visitation supervisor testified that while P.'s relationship with M.M. had developed in the course of their visits and that P. now identified M.M. as her brother, the relationship was not "close."
Mother testified to her belief that P. had "a very strong bond" and a "significant relationship" with both M.M. and B. According to mother, B. "was the first thing that [P.] attached herself to when she was a baby as she got a little older" and "[t]hen it became baby [M.M.]." Aunt testified that P. recognized her as her aunt and also recognized other family members, including M.M. and B. Aunt believed that P. and M.M. had "a normal, brother-sister relationship" and that the loss of that relationship would be significant. The maternal grandfather also testified, reiterating his interest in being P.'s legal guardian. He recounted his observations of his visits with P. and M.M., and stated "I don’t think [P.] would ever get over it" if the sibling relationship were not continued.
P.'s attorney, who had also represented M.M. in the family law proceedings involving his removal, urged the court to "establish a permanent plan less than adoption that would allow the legal relationship between these two children to continue. [¶] . . . I'm not sure it's the exact legal decision, but I think it's the right decision." Counsel continued: "I think for [P.] to lose contact with the maternal side of this family will, at some point in her life, be detrimental. . . . And the only way I see to get there is through [M.M.]." Counsel also lamented that "there is no other legislatively-created exception that would allow us to consider not terminating parental rights because of the child's relationship with the aunt." Counsel for HSA responded that the sibling relationship exception to adoption did not apply because "to the extent that there's a relationship, it has largely been established during the recent visits."
At the conclusion of the hearing, the court found that P. was adoptable and that the parental and sibling relationship exceptions to adoption did not apply. Accordingly, the court terminated parental rights and ordered adoption as P.'s permanent plan.
DISCUSSION
I.
Section 366.26, Subdivision (c)(1)(E)
Mother contends the juvenile court erred in terminating her parental rights to P. because the evidence is insufficient to sustain the court's findings that the sibling relationship exception to adoption did not apply. (§ 366.26, subd. (c)(1)(E).) We disagree.
The sibling relationship exception to adoption requires a finding that termination of parental rights would cause "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).) This "'. . . strong language creat[es] a heavy burden for the party opposing adoption. . . .' [Citation.]" (In re Celine R. (2003) 31 Cal.4th 45, 61.) "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.)
Mother failed to meet her heavy burden of proving that P.'s relationship with either M.M. or B. precluded her adoption. Most significant is mother's failure to demonstrate that P. had any meaningful relationship with either sibling prior to her removal, much less one that was substantial enough to compel a finding that adoption was not in P.'s best interests. The relationship between P. and her siblings simply "is not the type of sibling relationship the section 366.26, subdivision (c)(1)(E) exception was enacted to protect. In enacting this exception, the legislature was concerned with preserving long-standing relationships between siblings which serve as anchors for dependent children whose lives are in turmoil." (In re Erik P. (2002) 104 Cal.App.4th 395, 404, italics added.)
M.M. was born in prison when P. was only a year old. For the first four months of his life, M.M. lived with his aunt. It is unclear where P. was living at that point. From January 2004 until her removal in June 2005, P. was living with father, while M.M. was living with someone else. At the section 366.26 hearing on April 27, 2006, the social worker testified it was unclear whether P. even recognized M.M. as her brother at that time. While the visitation supervisor stated that P.'s relationship with M.M. had developed and that P. now identified M.M. as her brother, the relationship was not a "close" one. Moreover, mother's attorney acknowledged that P.'s limited visitation with the maternal family rendered it impossible "to gauge whether, in fact, [P.] would have such a significant relationship with [M.M.] or not to try to preserve the sibling [exception]." As for B., the social worker testified that she was aware of only one time when P. had seen him during one of mother's visits. When asked to evaluate the extent of the relationship, the social worker responded, "I don't believe there is a relationship." Mother claims that she and other family members "presented a much clearer and more detailed picture of the relationship between [P.] and her brothers." The court was not required to accept the anecdotal and self-serving testimony of mother, aunt and the maternal grandfather, all of which was directed at preserving the family's relationship with P.
In rejecting application of the sibling relationship exception, the court reasoned: "When the children are this young and have essentially never lived together and, for the most part, it appears their relationship has been created during the visitation time, I don't think that that exception has been proved." The law plainly supports this conclusion. (In re Erik P., supra, 104 Cal.App.4th at p. 404.)
II.
Section 366.26, Subdivision (c)(1)(A)
Mother also contends the evidence is insufficient to sustain the court's finding that the parental relationship exception to adoption did not apply. That exception provides that parental rights regarding an adoptable child will not be terminated where the court finds "a compelling reason" that termination would be "detrimental to the child" because the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).) In determining whether the parent has met his or her burden of proving that this exception applies, "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 Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Mother plainly failed to meet her burden of proving that the parental relationship exception applied. Mother's trial attorney conceded she had not maintained regular visitation with P., as contemplated by section 366.26, subdivision (c)(1)(A), and the evidence compels that conclusion. In the report filed for the 12-month review hearing on October 18, 2006, HSA stated that mother had not visited P. or spoken to her on the telephone for over five months. Mother subsequently admitted as much in her testimony. Because mother failed to maintain regular visitation and contact with P., her argument that the child would benefit from continuing the relationship is irrelevant.
To the extent mother urges us to consider P.'s relationship with mother's entire family in evaluating whether adoption is precluded by the sibling and parental relationship exceptions enumerated in section 366.26, subdivisions (c)(1)(A) and (c)(1)(E), she lacks standing to assert the interests of other family members in preserving their relationships with the child. (In re Devin M. (1997) 58 Cal.App.4th 1538, 1541.) In any event, "[t]he Legislature has provided five exceptions to terminating parental rights, and a general exception for the best interests of the child is not among them. Whether such an exception should exist is a question for the Legislature, not this court. [Citation.] The juvenile court was not required to consider best interests separately from analyzing whether any of the section 366.26, subdivision (c)(1) exceptions exist." (In re Carl R. (2005) 128 Cal.App.4th 1051, 1070-1071; see also In re Jasmine T. (1999) 73 Cal.App.4th 209, 213 ["'Family preservation ceases to be of overriding concern if a dependent child cannot be safely returned to parental custody and the juvenile court terminates reunification services . . .'"].) While mother refers to a pending assembly bill to amend section 366.26 by providing an exception to adoption where a relative caregiver who has custody of the child is willing and able to act as the child's legal guardian, removal of the child would be detrimental, we do not follow laws that have not yet, and may never be, enacted.
The judgment (order terminating parental rights) is affirmed.
We concur: YEGAN, Acting P.J, COFFEE, J.