Opinion
G046474
07-17-2012
In re I.H. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. MARIA C., Defendant and Appellant.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. DP009941 & DP009942)
OPINION
Appeal from an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
Defendant Maria C. (mother) appeals from an order terminating her parental rights to now 10-and-a-half I.H. and now almost 9-year-old D.H. (boys). She claims the court should have applied the sibling relationship exception (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(v); all further statutory references are to this code) to termination. We disagree and affirm.
FACTS
The boys, along with their two half-sisters (older sister and younger sister; collectively the children), were detained in March 2004 when I.H. was two and D.H. was seven months; older sister was nine and younger sister was five. The next month the children were declared dependents. Reunification services were provided to mother and Hector H. (father) for about 18 months, during which time the children were together in either Orangewood Children's Home or foster homes. The relationship among the children had its ups and downs. Younger sister got along with the boys but sometimes was mean to them. Older sister was happy to play with her brothers but was bossy at times.
In July 2005, at the end of the 18-month review period, the court ordered a 60-day trial visitation with parents and thereafter the children were placed with parents with continued supervision by Orange County Social Services Agency (SSA). During this period older sister physically and verbally abused the boys, and younger sister wanted nothing to do with D.H. The parents fought, and SSA characterized the family as being "extremely dysfunctional."
In March 2006 father moved out, taking the boys with him, while the girls stayed with mother. The family often visited on weekends, and father and the boys regularly spent the night a few times each week, despite the prohibition against it. During the visits the girls did not treat the boys well, saying things such as, "'get out of our house. You have your own home. Get out of here.'" Older sister did not believe the boys were part of her family because they were the sons of father, whom she disliked. She was not happy when father brought the boys to the house.
Neither parent wanted the girls living with them. The therapist treating the girls believed father was more important to mother than were the girls and father wanted to live with mother and the boys only. He characterized the parents as "conniving and liars" "with their own agenda," speaking of the girls negatively and asking how they could be removed. Mother repeatedly emphasized that, in contrast with the girls, she did not want the boys taken from her.
After father drove while intoxicated with mother and the boys in the car, in August 2006 SSA took the children back into custody and filed a supplemental petition. In the detention report father reported he needed to protect the boys from the girls because they hate their brothers.
Later that month the boys and younger sister were placed in a foster home; older sister did not want to live with them and went to a different home. About this time older sister reported father had been sexually abusing her when they lived together. Younger sister later reported the same. The next year father went to Mexico, apparently to avoid prosecution, and has not contacted SSA or the children since then.
Shortly after being placed with the foster parents, the foster mother observed the children engaged in sexualized conduct. The first day she saw I.H. face down in the bathtub with D.H. behind "'humping him.'" Once I.H. "rubb[ed] his bottom against [D.H.]'s front private parts." Another time foster mother found younger sister in I.H.'s room with the door locked; she did not unlock and open the door for some time. I.H. reported younger sister told him they were play[ing] "'mommy and daddy,'" then removed his pants and began "[b]ouncing" on top of him.
In October 2006 the three children went to another foster home and stayed for four years. Although these parents considered guardianship and adoption they finally decided against it based on their own age and for fear they would be unable to handle the three children in their teenage years.
The sexual acting out continued. Younger sister kissed her foster mother on the lips with an open mouth. Once younger sister rubbed her bare bottom on I.H.'s head. Another time she tried to French kiss D.H., and he often tried to grab her breasts. The foster mother worried younger sister's conduct might be a bad influence on D.H. His sexualized conduct increased. He publicly exposed his genitals, feigned having sex with I.H., and, having pulled down his pants, pretended to have sex with a pillow.
The three children got along relatively well. When they played younger sister frequently was physically or verbally offensive, sometimes using "hurtful language." In addition she often was bossy and hit the boys if they disobeyed her. Further, she and D.H. "picked on" I.H. The two boys were close to each other but were not as attached to younger sister. Although I.H. "sp[oke] positively" of younger sister, D.H. did not. During this period the four children visited with each other and mother. The children generally enjoyed the visits and the boys seemed close to older sister.
In school the boys performed below their grade levels and I.H. had speech and language difficulties. Despite foster mother working with the boys they did not improve.
It was determined on several occasions that the three children were adoptable although difficult to place because members of a sibling group, and no adoptive parents were found for the three of them. A few families inquired about adopting the boys only.
In September 2010 SSA placed the boys with prospective adoptive parents. Although the boys were anxious and confused at the beginning of the placement, they adjusted well and now consider themselves a family, sometimes calling their caretakers "'dad'" and "' papa.'" Their sexualized conduct has substantially tapered off and they show love and affection to the two men, have significantly improved in school, and are "thriving."
Monthly visits with mother and the girls continued. The boys were happy to see younger sister, but D.H. often did not want to go and did not participate. The prospective adoptive parents were committed to continued visitation as long as it was "safe and healthy" and based on what the boys needed, and due to their commitment they did not want to sign a contract to that effect.
Despite their attachment to the caretakers the boys were somewhat anxious about the permanency of this home, wondering whether they might be moved again. I.H. was upset that he might never see his mother or the girls again, until he understood that would not be the case, at which time his anxiety abated.
At the permanency hearing, I.H., then nine years old, testified he loved and trusted the prospective adoptive parents, called them "dad" or "papa," and wanted to be adopted. He considered his brother, sisters, and mother the most important people to him. He loved his sisters and enjoyed the visits where they played and talked. He also stated he would be sadder to never see his sisters again than to never see the caretakers. He was unsure about whether he wanted to live in a "forever home" if he could never see mother or the girls. He testified on the one hand that if he had the choice he would pick his brother and sisters and on the other that he would chose the prospective adoptive parents and have the opportunity to visit mother and his sisters.
Eight-year-old D.H. testified he did not know who were the most important people in his life, whether he loved his prospective adoptive parents or liked living with them, or who he loved. After being asked several times he ultimately said he loved I.H. and his sisters, and they, with the caretakers, were his family. He loved his sisters, liked to play with them and would be sad if he never saw them again. In answering the question who he would choose to live with, he said he did not know, then said by himself and finally agreed it would be his sisters.
The boys' therapist testified I.H. was confused and anxious about the meaning of adoption or its consequences but said he wanted to live with the prospective adoptive parents.
Before the conclusion of the hearing the court ordered a bonding study. Dr. Geraldo Canul reported his belief the children had a positive bond with each other and termination of contact would constitute "a significant loss," so that it would be beneficial to continue it. But most important is "a long-term placement with caring/loving caretakers," outweighing even visitation with sisters.
The court found neither the sibling relationship nor any other exception to section 366.26, subdivision (c)(1) had been proven. Specifically, it relied on the statutory factors to find termination of parental rights would cause no "substantial interference with the sibling relationship . . . ."
The court stated it had carefully considered the testimony of the boys and "specifically" "considered the[ir] wishes." It noted the boys spoke of sadness, not detriment, in describing how they would feel if they could never see their sisters, and pointed out that the "ability [of children] to express the subtle nuances of emotion . . . has limits." In addition to the boys' testimony, the court also relied on the written reports to understand their feelings.
As to the sibling relationship the court noted that, although it was not an issue, the strongest bond was between I.H. and D.H. It considered the boys' numerous placements and also found persuasive the fact the prospective adoptive parents would maintain contact with the sisters. The court stated the boys' emotional, physical and mental health had improved since placement with adoptive parents, who were meeting the children's needs.
DISCUSSION
Once the court decides under section 366.26 a child is likely to be adopted, it "shall terminate parental rights and order the child placed for adoption" (§ 366.26, subd. (c)(1)) unless it "determin[es] that termination would be detrimental to the child due to one" of the statutory exceptions (§ 366.26, subd. (c)(1)(B)). One exception is where "[t]here would be substantial interference with a child's sibling relationship." (§ 366.26, subd. (c)(1)(B)(v)). Mother has the burden to prove this exception. (In re Megan S. (2002) 104 Cal.App.4th 247, 252.)
Specifically, she must prove a strong sibling relationship, which, if severed, would cause the child detriment. (In re. L.Y.L. (2002) 101 Cal.App.4th 942, 952.) Factors for the court to consider in determining if there is a strong sibling bond include "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 . . . ." (§ 366.26, subd. (c)(1)(B)(v).)
If mother proves a substantial sibling bond and that severing it would harm the child, "[t]he court must [then] balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer. [Citation.]" (In re L.Y.L., supra, 101 Cal.App.4th at p. 951.)
There is a split of authority on whether the standard of review is substantial evidence or abuse of discretion. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 and cases cited therein.) Bailey J. considered both standards and adopted an analysis we find persuasive. Because mother has the burden of proof as to the existence of the sibling relationship exception, a question of fact, we review this for substantial evidence (ibid.), which we consider in the light most favorable to the decision (In re D.M. (2012) 205 Cal.App.4th 283, 293). As to the court's decision whether the sibling relationship is a "compelling reason for determining that termination would be detrimental" (§ 366.26, subd. (c)(1)(B)), because the court exercises its discretion, we use an abuse of discretion standard (In re Bailey J., supra, 189 Cal.App.4th at p. 1315).
Mother argues she proved both statutory elements. Because we hold the court correctly found the benefit of adoption outweighed continuing the sibling relationship, we need not discuss the first element. Assuming there is a strong bond between the boys and sisters and that severing it would be detrimental, mother has not met her burden to show the court abused its discretion by ruling the benefits of adoption outweigh retaining the bond by selecting long-term guardianship.
As a preliminary matter, we note there is no substantial evidence the relationships between the boys and their sisters will necessarily stop upon adoption. In fact the opposite is true. The prospective adoptive parents have said they would allow further visits so long as in the best interests of the boys. A similar situation was present in In re Jacob S. (2002) 104 Cal.App.4th 1011, disapproved on another ground in In re S.B. (2009) 46 Cal.4th 529, 537, fn. 5. There the court assumed there would be substantial detriment to the children if the relationship with other siblings was severed but upheld the trial court's determination the benefits of adoption outweighed it. (In re Jocob S., supra, at pp. 1018-1019.) In part, this was because the prospective adoptive parents were willing to have the children maintain contact with their siblings. (Id. at p. 1019.)
That the prospective adoptive parents here did not want to sign a post-adoption contract for continuing sibling contact under section 366.29, a factor on which mother heavily relies, is not persuasive. It is irrelevant that under the statute the adoptive parents may terminate such contract merely by giving 10 days' notice. (§ 366.29, subd. (b).) Nothing requires a contract and none was present in Jacob S. Further, their reluctance to sign an agreement does not mean the prospective adoptive parents had no valid reason to refuse. It is pure speculation to read into this the conclusion they "lack . . . commitment toward preserving the sibling relationships" or the implied suspicion they mean to terminate visitation once the adoption is finalized. They stated they were committed to preserving contact and the trial court, not this court, evaluates credibility. (In re D.M., supra, 205 Cal.App.4th at p. 293.)
Likewise, that the sisters do not live together, making arranging visitation more complicated, does not mean visits will be terminated. Again, this is pure speculation. Finally, the prospective adoptive parents' decision not to agree to such an order is evidence the court considered and discounted. As stated above, we do not reweigh that or consider credibility.
As to weighing the benefits of maintaining the sibling relationship versus adoption, the court's decision was well within the bounds of discretion. Because adoption is far and away the "first choice" of the Legislature, the section 366.26, subdivision (c)(1)(B)(v) exception can be applied only '"in exceptional circumstances.' [Citations.]" (In re Naomi P. (2005) 132 Cal.App.4th 808, 822, italics omitted.) In support of her claim those circumstances are present mother relies on three factors.
First, she claims the court did not consider the boys' "relatively advanced ages," eight and nine. But that fact weighs in favor of adoption. In considering this same issue the L.Y.L. court noted that without adoption the child would be deprived of a permanent home. "As an older child she might not be considered adoptable if the [social services agency] sought to terminate parental rights at a later time." (In re L.Y.L., supra, 101 Cal.App.4th at p. 953.) The cases mother cites in support of her argument do not deal with a sibling bond exception.
In the same way, the court's reliance on the boys' multiple placements, nine in all, supports adoption, rather than the contrary as mother claims. The court pointed out the "lack of permanency," stating the boys "have had too many placements" that have led to untoward "consequences in the[ir] emotional li[ves]." Although the court did note the boys' attachment to younger sister, it does not outweigh the security the boys will experience upon having a permanent home, especially in view of the fact they will still be able to maintain contact with their sisters. With adoption, the boys will be secure and not have to be faced with any more placements.
Finally, mother criticizes the weight the court gave to Dr. Canul's opinion adoption was preferable to maintaining the sibling relationship, complaining Canul did not explain why this was the case.
But as the court found, the health of the children, emotionally, mentally, and physically, had improved since they began living with the prospective adoptive parents for more than a year. The prospective parents nurtured and loved the boys, who called them "Papa" and "Dad." They enrolled I.H. in special academic programs where he made substantial progress. D.H.'s teachers noted how the men had helped his scholastic development. And, importantly, there had been a substantial decrease in the children's sexualized behavior.
The fact Canul concluded the benefits of adoption outweighed even the bond between the two brothers is irrelevant. First, as mother acknowledges, that was not an issue. Moreover, the court considered and rejected this conclusion, evidencing that it exercised its discretion.
DISPOSITION
The order is affirmed.
RYLAARSDAM, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.