Opinion
NOT TO BE PUBLISHED
Roger Picquet, Judge, Superior Court County of San Luis Obispo, Super. Ct. No. JV41577
Anne F. Fragasso, under appointment by the Court of Appeal, for Appellant.
No appearance for Respondent.
James B. Lindholm, Jr., County Counsel, County of San Luis Obispo and Leslie H. Kraut, Deputy County Counsel, for Real Party in Interest.
YEGAN, J.
S.F. appeals from a juvenile court order terminating parental rights to her daughter N.F. and establishing adoption as the permanent plan. (Welf. & Inst. Code, § 366.26.) Appellant argues that the parental relationship and sibling relationship exceptions to adoption preclude termination of her parental rights. (§ 366.26, subds. (c)(1)(A) & (c)(1)(E).) We affirm.
All statutory references are to the Welfare and Institutions Code.
Facts and Procedural History
N.F. (age three) and her five year old brother Spencer F. were detained September 3, 2003 after appellant admitted herself to a psychiatric hospital. The family had been referred to the Department of Social Services (DSS) on prior occasions for homelessness, for mental health problems, for drug and alcohol consumption in the home, and for leaving N. unattended and not getting her medical treatment for a second degree burn.
DSS filed a third amended petition alleging that appellant was unable to care for and protect the minors due to mental health and substance abuse problems. (§ 300, subd. (b).) It was alleged that appellant had a long term substance abuse problem, had recently used methamphetamine, was psychiatrically hospitalized on prior occasions after the father/husband left her in 2000, and was at risk of losing her housing and utility service.
The father was living in Oklahoma and had not seen the children for two years.
Doctor Bonnie Taylor, a psychiatrist at Behavioral Health Services, was treating Spencer for Pervasive Developmental Delay and Attention Deficit Disorder. Doctor Taylor reported that Spencer was making "phenomenal" progress after one month of foster care and recommended that he remain in foster care to facilitate a gradual reunification/transition due to appellant's fragile mental health.
On October 27, 2003, the trial court sustained the petition, declared the minors dependents of the court, and ordered that Spencer temporarily remain in foster care. N. was placed with appellant and family maintenance services were ordered.
In April 2004, DSS reported that N. was molested by an 18 year old babysitter while under appellant's care. DSS was concerned because appellant left N. with a person who had not been cleared and failed to report the incident to the case worker.
On December 2, 2004, a supplemental petition (§ 387) was filed stating that appellant had been arrested on a warrant and that appellant placed the children in an inappropriate home and initially refused to disclose their whereabouts. The trial court removed the children from appellant's care and ordered visitation.
In a January 21, 2005 amended supplemental petition, DSS alleged that appellant was not following her case plan or meeting the children's needs.
At the 18 month review hearing, evidence was received that appellant had not followed through on her case plan and that N. was displaying negative behavior after unsupervised visits. While in appellant's care, the children missed school, N. was not going to therapy, and appellant was canceling and not showing up for medical appointments. A Tri-Counties Regional Center case manager recommended that Spencer not be returned to appellant. A similar recommendation was made by N.'s therapist. The children had been placed in foster care four times since 2002. Three placements were due to appellant's mental health problems and the fourth placement was due to appellant's arrest. Each time the children re-entered foster care it was a difficult adjustment.
In a December 2005 report, the case worker reported: "Over the past 2+ years, [appellant] has successfully, again and again, argued for the continuation of services and the re-placement of her children in her home. When this social worker accepted this assignment, for the second time, this worker believed that [appellant] could take care of [N]. and meet her needs. That belief was wrong and once again, [N.] has had to suffer the trauma of removal from her mother, her school and her community. Ms. Connolley, Ph.D. [s]tated to this worker . . . that to continue to expect [appellant] to do what she is incapable of doing is cruel. This worker concurs."
The trial court terminated reunification services on December 27, 2005, and a year later, conducted a section 366.26 hearing and found that N. was adoptable. The court found that N.'s brother, Spencer, was not adoptable due to a developmental delay and mental disability, and selected guardianship as the permanent plan. DSS was directed, if reasonably possible and appropriate, to provide appellant limited visitation. The trial court also directed DSS to provide N. and Spencer every reasonable and appropriate opportunity to maintain an active sibling relationship.
The court found that "the special and unique needs of Spencer require that he be given every opportunity to maximize his potential as an individual and that this would be dramatically compromised, and perhaps result in permanent and irreversible damage, should he be removed from his current placement."
Adoptability
Appellant argues that the evidence does not support the finding that N. is likely to be adopted. On review, we consider the evidence in the light most favorable to the judgment. (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) In determining whether a child is likely to be adopted, the trial court focuses on the child and whether her age, physical condition, and emotional state make it difficult to find a person willing to adopt. (§ 366.22, subd. (b)(3); In re Josue G., supra, 106 Cal.App.4th at p. 733.)
The evidence shows that N. was adoptable. While in foster care she was taken off medication, attended school regularly, and got along with her peers. The foster parents and case worker described N. as charming and fun to be around.
Although N. had to be placed with new foster parents, she continued to be adoptable a year later. At the section 366.26 hearing, counsel for appellant described N. as "a delightful little girl who does not seem to have any sort of problems."
Substantial evidence supports the finding that N. was likely to be adopted.
Parent-Child Relationship Exception
Section 366.26, subdivision (c)(1)(A) provides that parental rights may not be terminated where a parent has maintained regular contact and visitation with the minor and the minor would benefit from continuing the relationship. This exception to adoption applies if severing the parent and child relationship would deprive the child of "a substantial, positive emotional attachment such that the child would be greatly harmed. . . ." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The parent has the burden of showing that the parent-child relationship promotes the well being of the child to such as degree that it outweighs the well-being the child would gain in a permanent home with adoptive parents. (See e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
Here a parent-child bond existed but it was not positive or beneficial. Appellant vacillated between regular visits and long unexplained absences that were detrimental to N. Appellant did not see N. from February to June 2006, made a few scheduled visits, and then dropped out of contact. Appellant did not request a visit in August 2006, missed scheduled visits that fall, and failed to show for a Christmas visit after N. and Spencer made gifts for their mother. It had a negative impact on N. as reflected in the case worker's report.
N. also exhibited negative behavior while under appellant's care. A therapist reported that "[N.] is being set up, through her home environment and her mother's behavior, to fail . . . [which] can be prevented if [N.] receives the medical and educational services she has a fundamental right to receive."
Unlike In re Brandon C. (1999) 71 Cal.App.4th 1530, appellant did not maintain consistent and regular contact with N. Nor were the on again-off again visits beneficial. The case worker reported that N. "worries about her mother and feels some responsibility for her. While she cares for her mother, her behavior during and after [a] visit conformed my impression that she is ready to move on and just wants to know her mother is all right. It would be easiest for [N.] to settle in for good if her mother was able to be in some appropriate contact with [N.], so that she could relax knowing her mother was okay." The case worker recommended that future visits be limited to three supervised visits a year and only if appellant requested visits and provided assurance that she would make the visits and function in a healthy way.
Appellant's contact and relationship with N. "bears no resemblance to the sort of consistent, daily nurturing that marks a parental relationship." (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The evidence clearly supports the finding that the beneficial parental relationship exception does not apply.
"[A]doption should be ordered unless exceptional circumstances exist, one of those exceptional circumstances being the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the child's need for a stable and permanent home that would come with adoption. That showing [is] difficult to make in the situation, such as the one here, where the parents have essentially never . . . advanced beyond supervised visitation. The difficulty is due to the factual circumstances of the parents in failing to reunify and establish a parental, rather than caretaker or friendly visitor relationship with the child." (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
Sibling Relationship Exception
Appellant next contends that the sibling relationship exception precludes termination of parental rights. (§ 366.26, subd. (c)(1)(E).) On this issue, appellant bears a "heavy burden" of proof. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) "To show a substantial interference with a sibling relationship, the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952, fn. omitted.)
Doctor Jeanne Sterling, a pediatric psychologist, observed a sibling bond even though N. and Spencer lived in separate foster homes for more than 18 months. Spencer was mildly retarded, had special needs, and thriving in a Tri-Counties Regional Center home. His foster mother was skilled in caring for him but lacked the time and energy to care for both N. and Spencer. N. and Spencer were placed together on a trial basis, but it only seemed to reinforce negative behavior patterns. Doctor Sterling opined that N.'s individual development took precedence, that adoption was in N.'s best interest, and that sibling visitation on a monthly basis would alleviate any loss N. or Spencer might feel if N. was adopted.
The trial court reasonably concluded that the sibling relationship was a positive one but did not outweigh the permanency and stability of adoption for N. "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 exception 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 Hector A. (2005) 125 Cal.App.4th 783, 791, citing In re Celine R. (2003) 31 Cal.4th 45, 49-50.)
The evidence here supports the finding that the sibling relationship exception does not apply and that adoption is in N.'s best interests.
The judgment (order terminating parental rights and selecting adoption as the permanent plan) is affirmed.
We concur: GILBERT, P.J., COFFEE, J.