Opinion
No. F058654.
4-26-2010
In re V.J. et. al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. L.M., Defendant and Appellant.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Theresa A. Goldner, County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
OPINION
Before Wiseman, Acting P.J., Levy, J., and Dawson, J.
L.M. (mother) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to two of her children. She contends the court erred by not finding termination would be detrimental to the children either due to the childrens relationship with older siblings or the childrens relationship with her. On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In March 2008, respondent Kern County Department of Human Services (department) detained then six-year-old V. and three-month-old M. (the children) after mother was arrested and incarcerated on drug-related charges. Over time, the Kern County Superior Court exercised dependency jurisdiction over the children and their siblings, removed them from parental custody and ordered reunification services for mother. The children and their siblings were meanwhile placed with their maternal grandmother (grandmother). Due to her incarcerated status, mother visited with all of her children once a month.
The childrens three half sisters were also detained. One was eventually returned to the custody of her father. The two other siblings (the siblings) were adolescents and their cases were on a different procedural path from the childrens due to the participation of the siblings father in the proceedings.
In November 2008, the court convened a six-month review hearing. Mother waived her appearance and her attorney submitted on the departments recommendation to terminate her reunification services. The court in turn set a section 366.26 hearing to select and implement a permanent plan for the children. The court continued reunification efforts for the father of the siblings.
In February 2009, only weeks before the originally scheduled section 366.26 hearing, the department placed the children with their maternal aunt (aunt). Their grandmother was no longer willing to adopt them. She believed her physical limitations prevented her from adequately caring for M.
In addition, V. reported she was happy about the move because the siblings frequently hit her. The siblings also had a history of running away from foster homes and taking V. with them. Consequently, it was not in the childrens best interests to live with their grandmother and siblings at the time. Nevertheless, the aunt and grandmother had a close relationship and the children would continue to have contact with the siblings. Neither child had a significant relationship with the biological parents.
At the section 366.26 hearing held in March 2009, the court found: termination of parental rights would not be detrimental to the children; the children had a probability for adoption but were difficult to place for adoption; and there were no prospective adoptive homes available. (§ 366.26, subd. (c)(3).) The court identified adoption as the permanent goal, ordered efforts be made to locate an adoptive home for the children within 180 days, and set a further hearing for late August 2009. (§ 366.26, subd. (b)(3).)
Mother did not appeal the courts March 2009 decision. Despite the lull in permanency planning for the children, the following transpired during the six-month interim.
In April 2009, the siblings were removed from the grandmothers care and placed in a group home. The grandmother moved out of state.
As of May 2009, the aunt had expressed a commitment to adopting the children. That same month an attorney appointed to represent both the children and their siblings declared a conflict. The court in turn relieved counsel and appointed one attorney for the children and another attorney for the siblings.
At a June 2009 hearing, the court both denied a petition brought by mother to regain custody of all her children and terminated reunification services for the siblings father. Because the siblings, by then teenagers, were not adoptable, the court did not set a section 366.26 hearing in their cases. Rather, it selected a planned permanent living arrangement as the appropriate permanent plan for them.
In July 2009, the siblings counsel filed a petition, pursuant to section 388, in the childrens cases. The siblings asked the court for a relationship with the children and to not terminate mothers parental rights to the children so that they could continue to have sibling contact. The siblings allegedly "believe[d], that due to family dynamics, they will not be allowed to visit [the children] if they are adopted by [their aunt]." Counsel for the siblings claimed a permanent plan other than adoption would be better for the children because they would have the opportunity to be in a stable home with a relative while being allowed to see the siblings. The court set the petition for hearing to be held in conjunction with the childrens further hearing under section 366.26.
In advance of the combined hearing, the childrens social worker filed additional reports with the court. The reports included an update on the childrens circumstances and a positive assessment of the aunt as the childrens prospective adoptive parent. The social worker also reported the children continued to visit with their older siblings. In March, one of the siblings reported she could not be in the same room with the other sibling because they hit each other. V. reported as well that she was afraid of the siblings because they hit her.
The social worker further reported that the children continued to have telephone contact with their grandmother even though she had moved out of state. They also participated in many family activities. The aunt expressed her commitment to adopting the children and supported having continued contact with the siblings after parental rights were terminated and adoption was finalized.
At the August 2009 hearing, the siblings counsel made, and the court accepted, the following offer of proof. If called to testify, both siblings would state they lived as a sibling group with the children when they were placed with their grandmother. Prior to that, they had sporadic contact with M., the youngest child. Until they were detained in 2008, when V. was approximately six years old, the siblings lived with V. her entire life. They had a very good relationship with V., which they were asking the court to maintain. During their visits, V. ran to greet them. She played with them and was very aware that they were her sisters. She hugged and kissed them during the visits. V. said she loved the siblings at every visit and cried at the end of the visits. They would also testify they did not believe their aunt would ever let them see V. and M.
With that, the siblings attorney submitted. Mother joined in the siblings section 388 petition. County counsel on behalf of the department asked the court to deny the petition. Absent some additional evidence, all of the information indicated that the aunt would be willing to continue the sibling relationship.
County counsel claimed there was some ongoing tension with mother. While this comment was not evidence (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11), it was consistent with testimony mother gave in June 2009 when she stated her belief that it was not in the childrens best interest to stay where they were, i.e., with their aunt.
Rather than rule on the siblings section 388 petition at that point, the court chose to proceed with the section 366.26 hearing. Mothers attorney had already informed the court that mother wanted V. to testify. The childrens attorney asked that V. testify outside of at least mothers presence. V. was uncomfortable and afraid that testifying in front of mother would impact her (V.s) testimony. In the end, because there appeared to be "sort of different factions," the court asked the siblings as well as the mother to wait outside the courtroom while V. took the stand.
V. testified she liked living with the maternal aunt and wanted to remain. She called her aunt "Mom" and wanted her aunt to be her mother. V. saw both the siblings and mother at visits. She liked visiting the siblings. She wanted to visit with mother "a little bit." However, she did not want to live with mother. She wanted to see the siblings "a little bit more." If she had a visit with mother but without her sisters, she was "a little bit" sad when the visit was over.
If V. never got to see mother again, it would upset her "a little bit." It would upset V. more if she could never see the siblings again. If she could, V. could call her mother once a day and the siblings twice a day.
When V. previously lived in her mothers home, the siblings sometimes took care of her. They were the ones who made her breakfast and dinner. They tucked her in at night and read her stories. However, the siblings frequently hit her then.
V. did not want to live with the siblings because "theyll do bad stuff ... like, run away again and, like, other stuff." She was scared of them.
After V. testified and mother and the siblings returned to the courtroom, mothers attorney made an offer of proof as well. If called to testify, mother would state V. appeared excited about visiting with mother and clung to mother at the end of visits. She often asked mother during visits when she was going to get to go home with her. With counsels consent, the court also accepted mothers offer of proof as well. The matter was then submitted.
The court announced it found V.s testimony exceptional and that it was of assistance to the court. Having considered all the evidence before it, the court denied the section 388 petition. It also found the children were adoptable and terminated parental rights. In addition, sibling visitation which occurred one hour a week would continue.
DISCUSSION
I. Impact of the Courts March 2009 Finding that Termination would not be Detrimental to the Children
Mother contends the trial court erred by not finding termination would be detrimental at least to her daughter, V., because they shared a beneficial parent/child relationship (§ 366.26, subd. (c)(1)(A)). In her briefing, however, mother ignores the courts March 2009 finding at the original section 366.26 hearing that termination would not be detrimental to the children (§ 366.26, subd. (c)(3)). According to the undisputed evidence at the time, neither child had a significant relationship with the biological parents. At most, there were pleasant visits. The courts finding was appealable (In re S.B. (2009) 46 Cal.4th 529, 537), but as previously mentioned, mother did not appeal the courts March 2009 decision.
In light of its no detriment finding in March 2009, the court was not required to revisit the issue at the further section 366.26 in August 2009 hearing unless circumstances had changed or new evidence emerged since then. (In re A.G. (2008) 161 Cal.App.4th 664, 671, citing §§ 385 & 388.) Mother overlooks the absence of any new evidence regarding any potential detriment to V. based on their relationship. At most, there was mothers offer of proof. Yet, it was in direct conflict with V.s testimony to which the court gave particular weight. Under these circumstances, we conclude the court did not abuse its discretion to the extent it rejected mothers claim.
II. Sibling Relationship
Mother also argues that the court erred by not finding that termination would substantially interfere with the childrens relationship with their siblings under section 366.26, subdivision (c)(1)(E). Once again, mother overlooks, at her peril, the procedural posture of the proceedings and the evidence before the court.
The statutory presumption is that termination and permanency through adoption is in the childs best interests and therefore not detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344.) Added to that there already was a determination, as previously discussed, that termination would not be detrimental to the children. Section 366.26, subdivision (c)(1)(B) acknowledges, nevertheless, that termination may be detrimental to a dependent child under specifically-designated and compelling circumstances, including when it would substantially interfere with a sibling relationship under section 366.26, subdivision (c)(1)(E). (In re Celine R. (2003) 31 Cal.4th 45, 53.) A party opposed to termination bears the burden of showing that termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
Consequently, when a court rejects a detriment claim and terminates parental rights, the appellate issue is not whether substantial evidence exists to support the courts rejection of the detriment claim. The issue for the reviewing court is instead whether the court abused its discretion in rejecting the detriment claim. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) For this to happen, the proof offered would have to be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
When the court expressly found in March 2009 that termination would not be detrimental, the children were no longer placed with the siblings and that the separate placement was in the childrens best interests. Nevertheless, the siblings continued to live with the grandmother who shared a close relationship with her daughter, the aunt. Under these circumstances, the children would continue to have contact with the siblings.
The siblings placement changed thereafter to a group home. Thus, their circumstances had changed since the March 2009 no detriment finding. It is not their circumstances or interests, however, on which the court needed to focus at the section 366.26 hearing. (In re Celine R., supra, 31 Cal.4th at p. 54 [the sibling relationship exception permits the trial court to consider possible detriment to the child being considered for adoption, but not a sibling of that child].) According to their offer of proof, the siblings also believed their aunt would never let them see the children. However, the siblings offered no evidence to support their belief. Meanwhile, according to the social workers report, the aunt supported the children having continued contact with the siblings after parental rights were terminated and adoption was finalized. Under these circumstances, the court properly could have found that circumstances had not sufficiently changed since it made its March 2009 no detriment finding.
In any event, the evidence regarding the quality of the childrens relationship with the siblings did not compel a finding that a permanent plan short of adoption was in the childrens best interests. (In re I.W. supra, 180 Cal.App.4th at p. 1528.) There was virtually no evidence of any relationship between M. and the siblings. As for V. and the siblings, there was conflicting evidence regarding the quality of their relationship. True, V. testified she would like to see her siblings, but she also testified she was afraid of them and that they previously harmed her.
Last, we observe with interest that although mother has challenged the courts decision, the siblings have not. We would hope the siblings have discovered their fear was unfounded and appropriate contact between the children and the siblings will continue.
DISPOSITION
The order terminating parental rights is affirmed.