Opinion
B301701
05-18-2020
In re B.M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DANIEL M., Defendant and Appellant.
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian & Associates, Arezoo Pichavi for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). (Los Angeles County Super. Ct. No. DK12955) APPEAL from orders of the Superior Court of Los Angeles County, Pete R. Navarro, Commissioner. Affirmed. Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian & Associates, Arezoo Pichavi for Plaintiff and Respondent.
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Daniel M. (father) appeals from the findings and order terminating his parental rights under Welfare and Institutions Code section 366.26 as to B.M. (minor). Father contends the court erred when it denied application of the sibling relationship exception to termination of parental rights under section 366.26, subdivision (c)(1)(B)(v). We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Father and H.M. (mother) are the parents of minor (born August 2011) and E.M.(born February 2013). In October 2015, as part of an earlier dependency proceeding, the juvenile court sustained petition allegations based on the parents' drug and alcohol abuse and domestic violence. The parents successfully reunified, and the court terminated jurisdiction in January 2017.
The children's mother is not a party to this appeal.
Mother has an older child, B.R., who is not the child of Daniel M. B.R. was the subject of a dependency case in Orange County in 2005, based on mother's substance abuse and mental health concerns. The case ended in 2006 with a termination order granting legal and physical custody to the older child's father, with mother having monitored visits.
In April 2017, the Department of Children and Family Services (Department) detained minor and E.M., placing them with maternal relatives, the Gs. Mr. G is mother's cousin. At the same time, the Gs' household included their four biological children between the ages of two and nine.
The basis for the current case is not directly relevant to the question on appeal. The children were detained again in May 2017, after mother called emergency services, who found father unresponsive after suspected drug use, and mother under the influence of alcohol. Emergency personnel found B.R., minor, and E.M. playing unsupervised in a separate bedroom. A separate person reported suspecting that mother had been driving under the influence of alcohol earlier that day, with the children in her car. The court ordered B.R. placed with his father, and minor and E.M. placed with the Gs. The court ultimately found true petition allegations based on mother and father's drug and alcohol abuse, domestic violence, and mother's mental and emotional problems.
Minor and E.M. adjusted well in their foster placement with the Gs, with no behavioral concerns noted in the Department's six-month review report. In its twelve-month review report, however, the Department described some new concerns with E.M.'s behavior. Although he had no behavioral issues at school, E.M. would become extremely upset at home when he was directed to follow rules or share toys with his cousins/foster siblings or his brother. He would sometimes have hours-long tantrums, hitting and spitting at Mrs. G when he would not get his way. Mrs. G would separate him from the other children to prevent him from hitting them. During these episodes, he would sometimes soil himself out of anger, even though he was toilet trained. His outbursts increased in frequency and severity right after visits with his parents, and his anger was often directed at Mrs. G. In late June 2018, Mrs. G enrolled E.M. in individual therapy, and was attending sessions with him. By late September, his tantrums had increased, so the therapist planned to increase the frequency of the therapy sessions from once to twice a week. In contrast, minor was a happy, intelligent child, with no concerning behaviors. He got along well with the other children in the home.
Both mother and father made efforts to comply with reunification services and visitation, but both relapsed into drug or alcohol use at various points. Ultimately, the court terminated reunification services for the parents in January 2019.
Sibling separation
In March 2019, the Gs requested E.M.'s removal because his angry outbursts made them concerned for the safety of the other children in the home. The Department placed E.M. with the Hs, longtime friends of the Gs who lived about a mile away. The boys saw each other on weekdays in school and on Sundays at church. The two families were committed to maintaining regular visitation between the brothers, including weekly playdates, and possibly sleepovers in the future.
At the May 7, 2019 permanency planning hearing under section 366.26, the Department asked for a 90-day continuance for E.M., but stated it was ready to proceed as to minor. Mother and father requested a bonding study to demonstrate minor's bond with parents. The court set the matter for a contest, but denied the request for a parental bonding study. The contested permanency planning hearing started on June 10, 2019, and the court heard testimony from minor, father, and Mrs. G about minor's relationship with his parents and his brother E.M. Minor testified that he missed E.M., he wished they still lived together, and he would be sad if their visits ended. Father testified that minor seemed let down, and that E.M. had moved out about a month and a half earlier. Mrs. G testified that they asked for E.M. to be removed from their home because he had extreme behavioral issues associated with reactive attachment disorder. Because they have four young biological children in the home, it was beyond their capacity to help E.M. E.M. was placed with family friends, the Hs, who the Gs have known for almost 20 years. Both families were supportive of visits between E.M. and minor. The Gs wanted to adopt minor and were supportive of continuing contact between minor and E.M., and contact with the parents as well. After considering the testimony and argument about the sibling relationship exception, the court commented that there was "clearly a bond" between the brothers, but wanted to give more thought to the impact on that bond if minor were adopted. The court took the matter under submission. At a later hearing on July 9, 2019, the court appointed an expert to evaluate and report on the bond between E.M. and minor, over the Department's objection.
According to the Department's July 9, 2019 report, minor continued to do well with the Gs. He appeared to be attached to the Gs and wanted to be adopted by them. The Gs wanted to pursue adoption of minor. E.M. was adjusting well at his new placement with the H's, and his tantrum behaviors had ended. When he would become angry or frustrated, he was able to verbalize his feelings, and calm himself down. He was also responsive to verbal redirection and explanations of consequences coming from Mrs. H. E.M. said he was happy to be the youngest child in the H's home and wanted to continue living with them. The Hs were not pursuing permanency for E.M., so the Department was seeking to identify and match E.M. with a potential adoptive family. He continued therapy and was also seen by Connie Hornyak, a specialist in reactive attachment disorder. Hornyak explained that E.M. had never attached to the Gs, likely because he continued to hope he would return to his biological parents and because he was overstimulated in a home with six children between the ages of two and nine, where the Gs had high expectations for the children's behavior. E.M. had adjusted well with the Hs, who have a 16-year-old and an 11-year old living at home. He was no longer urinating or defecating in inappropriate places to express his anger; nor was he intentionally destroying property. Hornyak recommended that E.M. remain in treatment for at least 12 to 18 months once he was in an adoptive home.
Bonding study
The bonding study was submitted to the court in October 2019. The expert, Dr. Kaser-Boyd, interviewed and evaluated minor and E.M., separately and together. She also interviewed Mrs. G and Mrs. H, and reviewed the Department's reports and Hornyak's letters. Summarizing the case background, Kaser-Boyd noted that Hornyak "ultimately recommended that [E.M.] be in a home where he is an only child, so that the parents could provide him with the time, energy, and resources that he needs." Hornyak also noted that while it was normally best to place siblings together, this was not in E.M.'s best interests, due to his needs. According to Kaser-Boyd's report, minor and Mrs. G understood that E.M. did not want to live with the Gs. It made minor sad, but he wanted to stay with the Gs, and did not want to move to a different home where he and E.M. could live together. Mrs. G. said the Gs had tried very hard to keep the two boys together, but E.M. did not want the Gs to adopt him, even if that meant leaving his brother. Mrs. G also confirmed that minor would rather stay with the Gs than move into another home with E.M. E.M. had difficulty expressing his feelings, but based on drawing activities, Kaser-Boyd observed that E.M. was drawn to the concepts of violence and death, although he may not fully understand them. She also noted that E.M. may have undiagnosed attention deficit and hyperactivity disorder. Regarding the siblings' relationship, Kaser-Boyd observed that their relationship was close, but that minor sometimes found it difficult to deal with E.M.'s behavior. Mrs. H reported that E.M. was doing well in their home, although he had a high need to be in control and was working on attachment issues. He was very intelligent, and often drew violent scenes, like dinosaurs fighting and volcanoes exploding. E.M. wanted to be adopted by the Hs, but Mr. H was not motivated to do so, for personal, career-related reasons.
Kaser-Boyd's opinion was that minor was bonded with his foster family. Minor and E.M. also had a bonded relationship, but minor occasionally found it challenging to deal with E.M.'s behavior, and minor was not interested in moving to a third home that could take both of them. Dr. Kaser-Boyd expressed concern about the impact that another move could have on E.M., but also noted that both boys are fine with the arrangement of seeing each other once a week or a bit more.
On October 15, 2019, the juvenile court heard arguments from counsel, and admitted the bonding study into evidence. The Department and minor's counsel argued that the benefits of permanency prevailed over the sibling relationship, while the parents' attorneys asked the court to order a legal guardianship to protect the sibling relationship. The court found minor adoptable and held that no statutory exception applied.
DISCUSSION
Sibling relationship exception and standard of review
"At a section 366.26 hearing, the juvenile court selects and implements a permanent plan for the dependent child." (In re Noah G. (2016) 247 Cal.App.4th 1292, 1299 (Noah G.).) At that stage of the proceedings, the preferred plan is adoption. (In re Breanna S. (2017) 8 Cal.App.5th 636, 645 (Breanna S.).) "First, the court determines whether there is clear and convincing evidence the child is likely to be adopted within a reasonable time. [Citations.] Then, if the court finds by clear and convincing evidence the child is likely to be adopted, the statute mandates judicial termination of parental rights unless the parent opposing termination can demonstrate one of the enumerated statutory exceptions applies." (Id. at pp. 645-646.)
Section 366.26, subdivision (c)(1)(B)(v) provides an exception to the adoption preference when the juvenile court finds that termination of parental rights would be detrimental to the adoptive child because "'[t]here 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.' [Citation.]" (In re Celine R. (2003) 31 Cal.4th 45, 54.) The sibling relationship exception is rarely used, especially in cases involving younger children where the importance of stability and permanency takes precedence. (See In re D.O. (2016) 247 Cal.App.4th 166, 173-174 (D.O.); see also In re L. Y. L. (2002) 101 Cal.App.4th 942, 951-952.)
In assessing whether the sibling relationship exception applies, a juvenile court must first determine whether a termination of parental rights would cause a "substantial interference with a child's sibling relationship." (§ 366.26, subd. (c)(1)(B)(v); D.O., supra, 247 Cal.App.4th at p. 174.) Only after the court has determined that the termination of parental rights will interfere with the sibling relationship, must the court then "'weigh the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption.' [Citation.]" (D.O., supra, at p. 174; see § 366.26, subd. (c)(1)(B)(v) [directing juvenile court to consider "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"].)
It is not enough to establish the existence of the relationship; instead, the party seeking to avoid termination of parental rights bears the burden of proving that termination would substantially interfere in the sibling relationship. (D.O., supra, 247 Cal.App.4th at p. 175 & fn. 4 ["it is not a foregone conclusion that terminating parental rights will substantially interfere with a sibling relationship"].) If the trial court determines that the termination of parental rights will substantially interfere with the adoptive child's sibling relationship, it must "weigh the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption. [Citation.]" (In re L. Y. L., supra, 101 Cal.App.4th at p. 952.)
"When the juvenile court finds the parent has not established the existence of the requisite beneficial relationship, our review is limited to determining whether the evidence compels a finding in favor of the parent on this issue as a matter of law." (In re Elizabeth M. (2018) 19 Cal.App.5th 768, 782; see In re Breanna S., supra, 8 Cal.App.5th at p. 647.) "When the juvenile court concludes the benefit to the child derived from preserving the sibling relationship is not sufficiently compelling to outweigh the benefit achieved by the permanency of adoption, we review that determination for abuse of discretion." (In re Elizabeth M., at p. 782; In re J.S. (2017) 10 Cal.App.5th 1071, 1080.)
Court's denial of sibling relationship exception
Here, the juvenile court acknowledged that minor and E.M. shared a substantial sibling bond. There is no argument to the contrary, as the Department itself acknowledges on appeal. The question then, is whether a termination of parental rights as to minor would cause a substantial interference in his sibling relationship with E.M.—despite his adoptive family's commitment to continuing visits between the brothers. The focus here is whether adoption would be detrimental to minor, not E.M. (In re Celine R., supra, 31 Cal.4th at p. 54.)
Father argues that there is no record evidence that the Department had either found a prospective adoptive family for E.M. that would agree to post-adoptive contact between the siblings or established that as an important criterion in its search for E.M.'s adoptive family. Father contends that in the absence of such evidence, the court's denial of the exception was unfounded. However, father's argument ignores the fact that it was his burden to prove substantial interference, not the Department's burden to prove the absence of such interference. (D.O., supra, 247 Cal.App.4th at p. 176 [parent or other party seeking application of the exception must establish substantial interference].)
Father does not and cannot explain how the termination of his parental rights as to minor will substantially interfere in the sibling relationship between minor and E.M. The Gs have consistently supported continued contact between the brothers, and father does not argue otherwise. So even after minor is adopted—an outcome that is favored under dependency law—there is no evidence that his legal permanency will interfere with his relationship with E.M. Depriving minor of permanency by placing him under legal guardianship rather than permitting adoption does not, in any way that we can see, reduce the risk that E.M. will be placed with a different family that may or may not be willing to continue visitation between the brothers. Thus, terminating parental rights as to minor does not substantially interfere with the sibling relationship between minor and E.M., and the court did not err in finding inapplicable the statutory exception under section 366.26, subdivision (c)(1)(B)(v).
DISPOSITION
The order terminating parental rights as to Brolin M. is affirmed.
MOOR, J. We concur:
RUBIN, P.J.
BAKER, J.