Opinion
B233023
10-26-2011
In re GISELLE C., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MARIA C., Defendant and Appellant.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK12324)
APPEAL from an order of the Superior Court of Los Angeles County. Daniel Zeke Zeidler, Judge. Affirmed.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
Maria C. (Mother) appeals from the April 26, 2011 juvenile court order terminating her parental rights over minor Giselle C. pursuant to Welfare and Institutions Code section 366.26. Mother contends that the parent-child relationship and sibling relationship exception to termination of parental rights applies and legal guardianship should be selected as the permanent plan. We disagree because Mother failed to show that Giselle would suffer detriment from the severance of the parent-child relationship and sibling relationship such that it would outweigh the benefits she would receive from the stability and permanence of adoption. We conclude that adoption was the appropriate permanent plan for Giselle and affirm the order of the juvenile court.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
Prior appellate proceedings
Mother has a lengthy child welfare history and has lost custody of her four other children as a result of substance abuse. The procedural and factual background leading up to the placement of R. C., born in 1990, and the adoptions of Michelle C., born in 2000, Hector C., born in 2003, and Stephanie C., born in 2004, has been well documented in the five previous opinions issued by us. R. was placed into long-term foster care in 2003. Mother's parental rights were terminated with respect to Michelle in 2002, Hector in 2005, and Stephanie in 2007.
We have issued five opinions regarding Mother's child welfare history (In re Michelle C. (Feb. 28, 2003, B160811) [nonpub. opn.]; Maria C. v. Superior Court (Mar. 30, 2004, B172280) [nonpub. opn.]; Maria C. v. Superior Court (Aug. 29, 2005, B184229) [nonpub. opn.]; In re Hector C. (Feb. 27, 2006, B183228) [nonpub. opn.]; and In re Giselle C. (Feb. 17, 2011, B225322) [nonpub. opn.]). The background is derived from In re Hector C. and our most recent opinion, In re Giselle C.
We take judicial notice of the record filed in In re Stephanie C., B200384. (Evid. Code, §§ 452, 459.)
On March 2, 2000, R. and Michelle were declared dependents of the juvenile court after Michelle was born with cocaine in her system. The Department of Children and Family Services (DCFS) provided family reunification services to Mother as ordered by the juvenile court, and the minors were ordered returned to her custody on August 31, 2000. On October 11, 2000, Mother was arrested for disturbing the peace and being under the influence of alcohol. DCFS filed a supplemental petition, which was sustained by the juvenile court. The juvenile court returned the minors to Mother's custody at the permanency hearing on August 23, 2001, after she completed various parenting and drug programs. On September 5, 2001, less than two weeks later, Mother was arrested for spousal battery and disturbing the peace. At the time of her arrest, Mother was under the influence of alcohol. The juvenile court sustained the supplemental petition filed by DCFS, denied Mother further reunification services, and ordered permanent placement services.
Although DCFS reported the minors were very bonded to Mother, who was affectionate and loving toward them during visitation, it recommended legal guardianship for R. and adoption for Michelle. At the selection and implementation hearing on August 14, 2002, the juvenile court ordered legal guardianship for R. and terminated Mother's parental rights as to Michelle. On Mother's appeal from the juvenile court's order terminating her parental rights with respect to Michelle, we affirmed the juvenile court's order. (See In re Hector C., supra, B183228 at p. 8.) Michelle was adopted and R. was ordered placed in long-term foster care.
Hector, born in October 2003, was detained after Mother tested positive for cocaine at his birth. Mother enrolled in a drug treatment program, but missed a drug test and stopped testing altogether after six weeks. DCFS recommended against providing reunification services to Mother. The juvenile court sustained a petition filed under section 300, subdivision (b) (serious physical harm) and subdivision (j) (abuse of sibling), denied reunification services, and set a selection and implementation hearing. We denied Mother's subsequent writ petition challenging the juvenile court's jurisdictional findings and denial of reunification services. (See In re Hector C., supra, B183228 at p. 11.)
Stephanie was born in October 2004, while Mother resided at Los Angeles Restoration Church, an unlicensed drug rehabilitation facility. DCFS received a referral after Stephanie was hospitalized with pneumonia and other infections on February 1, 2005. On February 4, 2005, the juvenile court granted Mother's section 388 petition in part, permitting her to have liberalized contact with Hector and R. On February 10, 2005, DCFS reported that Mother had been leaving Stephanie alone for extended periods, sometimes overnight, in violation of the drug rehabilitation facility's rules. On February 17, 2005, Mother signed a voluntary maintenance contract and agreed to participate in various counseling and education programs. Stephanie remained hospitalized until March 4, 2005, after which she was placed in foster care. On March 31, 2005, Mother tested positive for cocaine. DCFS reported that Mother had not enrolled in a drug program and was resistant to providing the counselor with information necessary for enrollment. The juvenile court denied Mother's second section 388 petition seeking extended visitation with R. and Hector.
In May 2005, the juvenile court sustained an amended section 300 petition with respect to Stephanie, denied family reunification services, and set a selection and implementation hearing. We denied Mother's subsequent writ petition challenging the juvenile court's order. (See In re Hector C., supra, B183228 at p. 15.) The juvenile court also terminated Mother's parental rights over Hector and freed him for adoption in May 2005. On Mother's appeal from the juvenile court's order terminating her parental rights over Hector, we affirmed the juvenile court's order. (In re Hector C., supra, B183228 at p. 22.) Mother's parental rights over Stephanie were terminated in 2007, and Mother abandoned her subsequent appeal (B200384).
Giselle was born in March 2008. On April 9, 2009, DCFS filed a petition pursuant to section 300, subdivision (b) (failure to protect) and subdivision (j) (abuse of sibling), alleging that on March 30, 2009, Mother had placed Giselle at risk by driving under the influence of alcohol while Giselle was a passenger in the vehicle. The petition alleged that on March 30, 2009, Mother was arrested for driving under the influence of alcohol and child endangerment and that she had a nine-year history of drug and alcohol abuse and was a current abuser of alcohol. The petition alleged that Giselle's siblings Stephanie, Hector, R., and Michelle had received permanent placement services due to Mother's "illicit drug use."
On June 4, 2009, the juvenile court sustained the section 300 petition. The juvenile court declared Giselle a dependent of the court and denied Mother reunification services under section 361.5, subdivision (b)(10) and (11). The court ordered monitored visits for Mother. On October 1, 2009, the court held a selection and implementation hearing. DCFS recommended adoption as the permanent plan. DCFS reported that Giselle was strongly bonded to R., with whom she had been placed, but that R. had asked that Giselle be re-placed because R. had broken up with her fiance and was temporarily residing with an uncle. At the contested section 366.26 hearing on January 4, 2010, DCFS reported that on October 7, 2009, Giselle had been placed in the home of Adriana M., who had adopted Giselle's brother, Hector. The juvenile court continued the contested hearing to March 30, 2010.
Section 361.5, subdivision (b) provides in pertinent part: "Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian. [¶] (11) That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent."
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On March 8, 2010, Mother filed her first petition under section 388 requesting reunification services, home of mother order, unmonitored visits, and extended visits in Mother's home. The juvenile court set the petition for hearing on March 30, 2010. On March 30, 2010, DCFS reported that Mother visited Giselle on Fridays or Saturdays for two hours, Giselle enjoyed the visits, and Giselle was very close to Mother and sometimes cried when the visit was over. DCFS also reported that Giselle was very bonded to Adriana, was doing very well in Adriana's home, and Adriana continued to meet Giselle's medical, developmental, and emotional needs. DCFS recommended adoption continue to be the permanent plan for Giselle. DCFS submitted two last minute informations for the court recommending that Mother's section 388 petition be denied, informing the court that Adriana had expressed doubts about going forward with the adoption of Giselle, due to Adriana's commitments to the teenage children currently in her home, and informing the court that DCFS was currently completing an adoption home study for Mr. and Mrs. P., who had adopted Michelle and Stephanie and were interested in adopting Giselle.
On March 30, 2010, the juvenile court denied Mother's first petition, and continued the contested section 366.26 hearing to May 27, 2010. Less than two months later, on May 27, 2010, Mother filed a second petition requesting reunification services pursuant to section 388. The second petition appeared to be, in large part, a duplicate of the first petition. On May 27, 2010, the juvenile court denied the second petition ex parte, ordered the matter set for a contested section 366.26 hearing on July 26, 2010, and ordered DCFS to initiate a new adoptive home study on R. and a supplemental report regarding efforts to identify relatives for placement. Mother subsequently appealed from the court's order denying her second section 388 petition, which we affirmed on February 17, 2011 (B225322).
On July 26, 2010, DCFS reported that Adriana was willing to move forward with adopting Giselle because she had been able to resolve some health problems. Adriana was not interested in co-adopting with R., but was committed to allowing contact between Giselle and R. R. told DCFS that she agreed that Adriana should adopt Giselle. On July 13, 2010, DCFS opened an adoption home study for Adriana, which was approved on April 21, 2011. DCFS reported that Adriana had been involved with Giselle from the time Giselle was born; Giselle and Adriana were closely bonded; Giselle called Adriana "'mama'"; Adriana had demonstrated that she was able to care for Giselle and to meet all of her medical, developmental, and emotional needs; and Giselle had done well in her placement with Adriana. On February18, 2011, DCFS reported that a December 2, 2010 referral alleging general neglect by Adriana and sexual abuse between two children in her home was closed as unfounded. DCFS also reported that an allegation of physical abuse by Adriana was closed as inconclusive. DCFS reported that although Adriana had admitted that she had swung a belt at the children on one occasion, no prior concerns had ever arisen about Adriana's parenting skills, and she was required to attend additional training. DCFS reported that Giselle had monitored visitation with Mother that took place on "Fridays or Saturday[s] for two hours" and "on weekends.
On April 26, 2011, the juvenile court held the contested section 366.26 hearing. R. testified that from the time Giselle was detained, R. had spent every weekend with her. R. stated that Giselle was always excited to see her and called her "'[R.]'" R. stated that she drove Giselle to Mother's home on weekends and acted as Mother's monitor. Giselle and R. stayed at Mother's home from breakfast through dinnertime. She described the relationship between Giselle and Mother as very close. She stated that Giselle knew Mother was her mother and called her "Mommy." She testified that Giselle treated Mother differently from how she treated R., because "she knows that's her mom." R. testified that she believed Giselle would be emotionally affected if Mother were not allowed to continue the relationship. R. testified that she was fine with Adriana's request to reduce the number of overnight weekend visits Giselle had with R. if Adriana adopted Giselle. R. also stated that if Mother's parental rights were terminated she might sleep over at Adriana's home so that Giselle would be more comfortable, and "it's not so confusing as it is right now." She also testified that Adriana, whom she also referred to as "mom," did not want Mother to maintain contact with Giselle, and she was fine with that. R. had been able to comply with that arrangement when Adriana had adopted Hector. R. concluded her testimony by stating, "I really don't know how the whole situation is going to end with the case. [Giselle] does stay there for [Hector's] sake and for her sake. That's the most comfortable scenario, I think."
Mother testified that she had been visiting Giselle two or three times a week from the time she was removed from her custody on April 9, 2009. During their visits, Mother had taken Giselle to the park, to restaurants, to play, and to the bathroom. Mother testified that when Giselle fell down or had a problem, she ran to Mother because "she knows that I am her mother." She stated that Giselle called her "mama" or "mommy." She described her relationship with Giselle as a mother and daughter relationship and testified that Giselle cried when she left Mother.
The juvenile court determined that the benefits of adoption outweighed the sibling relationship because R. had an adult, rather than a same-age sibling relationship with Giselle. The court noted that R. and Giselle were not growing up in the same household together. The juvenile court also determined that the benefits of adoption outweighed the parental relationship between Giselle and Mother because while Mother had maintained regular visitation and contact and had "somewhat of a parental and/or — emphasis on 'or' relationship," the relationship did not outweigh the benefit of permanence and adoption. The court noted that Mother had failed to reunify with Giselle's siblings; Giselle was growing up in a home with another sibling; Giselle viewed Adriana as her mother; Adriana has provided day-to-day nurturing for Giselle and has met her needs; and Mother has not provided for Giselle's needs on the same level as Adriana. The court determined that Giselle was adoptable and terminated Mother's parental rights on April 26, 2011.
Mother filed an appeal from the juvenile court order terminating her parental rights.
DISCUSSION
A. Mother did not show that the parent-child relationship exception to termination of parental rights applied
Mother contends that the parental relationship exception to termination of parental rights applied because Mother's relationship with Giselle is so significant that it established a compelling reason to apply the exception and select legal guardianship as the permanent plan. We disagree.
Once the juvenile court has determined by clear and convincing evidence "that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption." (§ 366.26, subd. (c)(1).) "Adoption, where possible, is the permanent plan preferred by the Legislature. [Citations.] 'Only if adoption is not possible, or if there are countervailing circumstances, or if it is not in the child's best interests are other, less permanent plans, such as guardianship or long-term foster care considered.' [Citation.]" (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574.) If the court finds a compelling reason for determining that termination would be detrimental to the minor, the court shall not terminate parental rights but shall order legal guardianship or long-term foster care for the minor. (§ 366.26, subd. (c)(4)(A).) Section 366.26, subdivision (c)(1)(B) sets forth six circumstances where the court may forgo adoption and retain parental rights. One of the reasons is if "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
The parental relationship must be more than "'frequent and loving contact.'" (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424.) "[T]he 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., supra, 27 Cal.App.4th at p. 575.) "The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs are some of the variables which logically affect a parent/child bond." (Id. at pp. 575-576 [substantial evidence supported the juvenile court's order terminating parental rights where relationship was one of friendship, and termination of relationship would not be detrimental to the minor, who had been a dependent for three quarters of her young life and needed a stable, permanent home].)
We review the juvenile court's determination of whether the parent-child exception to termination of parental rights exists under the sufficiency of the evidence standard. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) "'"When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts [in the evidence and in reasonable inferences from the evidence] are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.]"' [Citation.] While substantial evidence may consist of inferences, such inferences must rest on the evidence; inferences that are the result of speculation or conjecture cannot support a finding. [Citation.]" (In re Precious D. (2010) 189 Cal.App.4th 1251, 1258-1259.)
We conclude Mother failed to show that that the benefit to Giselle from continuing the relationship with Mother outweighed the benefits she would receive from the permanence of being adopted. The evidence showed that Mother had visited Giselle regularly from the time she was detained and, as the court noted, there was "somewhat" of a parental relationship between Giselle and Mother. And both Mother and R. testified that Giselle knew that Mother was her mother, called Mother "mommy," had a very close relationship to Mother, and cried when she left Mother. But R. testified that the "most comfortable scenario" would be for Giselle to live with Hector at Adriana's home. And at the time parental rights were terminated Giselle had been detained from Mother's care for two out of the three years of Giselle's life and was thriving in Adriana's care. Further, the evidence showed that Adriana and Giselle were closely bonded; Giselle called Adriana "mama"; Adriana had been involved with Giselle from the time Giselle was born; Adriana had demonstrated that she is able to care for Giselle and to meet all of her medical, developmental, and emotional needs; and Giselle has done well in her placement with Adriana. We conclude that Mother failed to show that termination of parental rights would result in a detriment that would outweigh Giselle's need for a permanent, stable home.
Nevertheless, Mother urges that although she was not in a position to care for Giselle on a full-time basis, she acted fully in a parental role during her day-long visits, and therefore the strong, positive parental relationship between Giselle and Mother provided a compelling reason to apply the exception and select the plan short of adoption, citing In re Brandon C. (1999) 71 Cal.App.4th 1530. In In re Brandon C., the appellate court concluded that the juvenile court's order of legal guardianship was supported by substantial evidence. In that case, the mother had completed her drug rehabilitation program, her random drug tests had been negative, her housing and employment had been stable for many months, and the juvenile court "obviously credited the testimony from both mother and grandmother that there was a close bond between mother and the boys, and that a continuation of contact would be beneficial to the children." (Id. at p. 1537.) Here, on the other hand, Mother did not complete her programs and substantial evidence supports the juvenile court's determination that Mother had only "somewhat" of a parental relationship with Giselle. Nor are we persuaded by Mother's citation to In re S.B. (2008) 164 Cal.App.4th 289, where the father complied with every aspect of his case plan, a bonding study revealed a potential for harm if the parental relationship were severed, the father and the minor had an "'emotionally significant relationship'" (id. at p. 298); the minor tried to leave with the father when visits were over; the minor initiated physical contact with father; the minor loved the father and wanted the relationship to continue; the minor stated she wanted to live with the father; and the evidence supported "the conclusion [the father] continued the significant parent-child relationship despite the lack of day-to-day contact with [the minor] after she was removed from his care." (Id. at p. 299.) Here, Mother did not comply with every aspect of her case plan and no bonding studies were introduced into evidence. Although Mother relies heavily on R.'s testimony that Giselle was attached to Mother and would be affected emotionally if Mother's parental rights were terminated, the juvenile court acted well within its discretion in weighing issues of fact and credibility in determining that the parental exception did not apply.
We are not persuaded by Mother's argument that the allegation of physical abuse against Adriana that was closed as inconclusive "raises serious concerns for Giselle's long-term well-being once dependency supervision is withdrawn, and supports the continuation of Mother's unwavering, loving interaction through a plan of legal guardianship." Mother's argument is purely speculative and based on a one-time incident that was closed as inconclusive.
We conclude that Mother failed to show that the parent-child relationship exception to termination of parental rights applied.
B. Mother failed to show that the sibling relationship exception to termination of parental rights applied
Mother contends that the sibling exception to termination of parental rights applied because Giselle's bond with R. is exceptional. We disagree.
Section 366.26, subd. (c)(1)(B)(v) provides that the juvenile court may choose not to terminate parental rights over an adoptable child if it finds a compelling reason for determining that termination would be detrimental to the child because: "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."
"Under section 366.26, subdivision [(c)(1)(B)(v)], the court is directed first to determine whether terminating parental rights would substantially interfere with the sibling relationship by evaluating the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds. (§ 366.26, subd. [(c)(1)(B)(v)].) If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption. (§ 366.26, subd. [(c)(1)(B)(v)].) [¶] 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. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship." (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951-952, fn. omitted.)
The record supports the juvenile court's conclusion that the benefits of adoption outweighed any detriment to Giselle due to interference with her relationship with R. Mother contends that R.'s relationship with Giselle is exceptional because she assisted Mother with prenatal care, was present when Giselle was born, fostered Giselle for four or five months after Giselle was detained, and spent much time caring for Giselle while she was fostered at Adriana's house. But, as the court noted, R. is an adult, living in a household separate from Giselle. R. and Giselle are not siblings close in age and currently being raised together in the same home. By contrast, at Adriana's home, Giselle would be raised with her brother, Hector, who is only four and one-half years older than her. And R. also testified that the "most comfortable scenario" would be for Giselle to live with Hector at Adriana's home. Further, R. testified that she has maintained contact with Hector in his placement with Adriana, whom she referred to as "mom," and that she would also be able to maintain contact with Giselle. She also stated that she would be fine with reducing the number of Giselle's weekend overnight visits and that she might sleep over at Adriana's home so that Giselle would be more comfortable. Therefore, Mother's argument that there would be a significant reduction in Giselle's contact with R. is not supported by the evidence. And as previously noted, the evidence also showed that Giselle is closely bonded to Adriana and calls her "mama" and that Adriana has provided for all of Giselle's emotional, medical, and developmental needs in a stable home environment. Thus, the evidence of any detriment caused by interference with the sibling relationship was minimal to nonexistent compared to the advantage of adoption to Giselle.
We conclude that Mother failed to show that the sibling relationship exception to termination of parental rights applied.
DISPOSITION
The juvenile court's April 26, 2011 order terminating parental rights is affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J. We concur: ROTHSCHILD, J. CHANEY, J.