Opinion
A151963
03-28-2018
In re J.O., et al., Persons Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. R.M., et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J16-00128, J16-00129, J16-00130, J16-00131)
R.M. (Mother) and L.J.O. (Father) appeal from an order terminating their parental rights to four of their children, J.O., I.O., L.O., and C.O. Mother also challenges the juvenile court's order denying her Welfare and Institutions Code section 388 petition to modify an order terminating her reunification services. Mother and Father allege the juvenile court lacked jurisdiction at the time it conducted the section 322.26 hearing, and the Contra Costa County Children & Family Services Bureau (Bureau) failed to provide adequate notice to comply with the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.). Mother further asserts the court erred by finding the children adoptable, declining to apply either the beneficial parent relationship or sibling relationship exceptions, and failing to consider the children's wishes. We disagree and affirm the order.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. BACKGROUND
In February 2016, the Bureau filed a petition pursuant to section 300, subdivisions (b) (failure to protect) and (j) (sibling abuse) to establish dependency jurisdiction over Mother and Father's four children based on allegations of domestic violence between Mother and Father and their physical abuse of the children's older half siblings, A.C. and M.A.
A.C. and M.A. are Mother's, not Father's, children. They are not subject to this appeal.
As to Father, the petition alleged he broke the family van's window with the children inside at Thanksgiving, and the children observed him punch Mother in the chest while she was holding the youngest child in her arms. As to Mother, the petition alleged she hit A.C. in the face with a closed fist. The same day, she grabbed him by his ankles and pulled his feet from under him, causing him to fall down stairs and injure his finger. The petition further alleged Mother had punched A.C. in the stomach, had failed to protect him from being punched and kicked by Father, and had failed to protect M.A. from being stepped on the stomach by Father until the child urinated on herself.
The detention report prepared by the Bureau described how the children had been exposed to domestic violence, and the older half siblings were afraid to return to Mother's care. When interviewed by a Bureau social worker, Mother denied harming her child but acknowledged Father's incidents of violence. Despite such violence, she refused to obtain a restraining order against Father as to J.O., I.O., L.O., or C.O. and instead asserted he was a good father. She also refused to check into a domestic violence shelter.
Mother then terminated contact with the Bureau, while maintaining contact with Father. The police were enlisted to locate Mother and the children. Once located, the Bureau detained the children. At the detention hearing, the juvenile court ordered the children be placed in foster care.
In March 2016, the Bureau filed an amended petition, alleging (1) Father had a chronic and pervasive drug addiction that limits his ability to parent his children, and (2) additional acts of physical abuse by Father against Mother and the children's sibling. Specifically, the petition alleged Father had choked Mother in front of the children, and Father punched and kicked M.A. and stepped on her stomach with such force the child wet herself. Mother and Father both pleaded no contest to the amended petition. A. Dispositional Decision
In its disposition report, the Bureau provided further details regarding the family's history of domestic violence, which were confirmed by interviews with A.C., M.A., and the maternal aunt. In addition, the children seemed " 'extremely parentified' " and appeared to have been left alone for long periods. The social worker noted Mother "is difficult to engage with therapeutically. She does not take responsibility for the situation she and the family are in." The social worker commented Mother "speaks around the topics and does not talk about the history truthfully," such as discounting her past drug use.
The report also recounts Mother's reunification efforts to date. Specifically, Mother was referred for drug testing in early March 2016, but failed to complete any testing. She left the women's shelter in April and would not disclose where she was residing. Father's mother, however, informed the Bureau Mother was residing with Father. Mother was not willing to enter a residential program, did not admit to Father's abuse of the children, and did not admit to drug addiction.
At the disposition hearing in May 2016, the court established jurisdiction over the children, adopted the recommendations of the Bureau, and ordered reunification services for Mother and Father.
In October 2016, the court initiated the six-month review hearing, which was continued twice. In its report prepared for the January 2017 review hearing, the Bureau recommended terminating services for Father due to lack of engagement with his case plan, but continuing services for Mother.
Despite recommending ongoing services, the Bureau opined returning the children to Mother would not be in their best interests. While Mother was doing well in treatment and complying with her case plan, she "has yet to secure stable housing" and needs "to stabilize herself in a clean and sober environment." The Bureau further noted, "The children are doing well and their needs are being met in their respective [foster] homes."
The report also detailed the current medical, educational, developmental, and mental/emotional status of each child. The report described I.O. as "developmentally on target" with "good gross and fine motor skills." She "likes school and playing with the other children," "excels in speaking," and "is respectful." While I.O. reported symptoms of depression and excessive worry, has difficulty following directions, and steals small items from the caregiver, her therapist has noted her "mood is improving[,] her feelings of sadness have decreased," "[t]here is less frequency of tantrums," and "[t]here has been improvement with following house rules."
J.O. also is "developmentally on target" and "loves playing outside with ride toys and balls." While he likes school, "excels in speaking and listening," and "is very respectful of adults," he exhibits aggressive behavior with his siblings and peers. Due to these struggles, he was referred for additional therapeutic services.
L.O. "has good gross and fine motor skills" and "likes playing with dolls and enjoys coloring." L.O. is receiving therapeutic services, which has help to reduce the number and duration of tantrums. L.O. is demonstrating more patience and is engaging in more positive interactions.
C.O. is a "happy baby," "affectionate, very social and likes being around people." She has bonded with her caregivers and L.O., who resides with her, and displays no mental health issues.
In a February 7, 2017 memorandum, the Bureau submitted additional information to the juvenile court regarding services offered to Mother and her participation therein. The memorandum recounted Mother's reluctance to obtain a restraining order and her failure to conduct any drug testing or remain in the women's shelter. The memorandum noted Mother entered an outpatient substance abuse treatment program, but only attended one support group meeting and one treatment group meeting and failed to complete the program. As of early August 2016, Mother had yet to take any drug tests and therapeutic services were terminated due to lack of attendance. However, in late August 2016, Mother entered a residential treatment program, which she completed. The Bureau commented that because of Mother's delay in achieving some sobriety, she has only recently begun addressing the domestic violence issues.
The Bureau's March 2017 status review report in advance of the 12-month review hearing recommended terminating reunification services for Mother. The court adopted this recommendation, due in part to Mother's lengthy delays in addressing her substance abuse and domestic violence issues. The court also expressed concern regarding Mother's failure to "demonstrate[] any insight into the pattern . . . of violence in this household, the extent of the violence, [and] what the damage has caused to her children." The court concluded there was insufficient evidence to justify extending services to 18 months, terminated reunification services, and set a permanency planning hearing. B. The June 28 and July 5 Hearings
Prior to the section 366.26 hearing (hereafter .26 hearing), Mother submitted a petition under section 388 to modify the court's order terminating services. Mother's section 388 petition argued she should be provided additional reunification services and expanded visitation due to her ongoing sobriety and maintenance of stable housing and employment. She further argued she consistently visited the children, and they are connected to her and wish to return to her care.
The Bureau submitted a status report recounting the domestic violence issues, as well as recent reports by the children regarding their exposure to the parents' sexual activity and use of pornography as a punishment. While the children continued to struggle with behavioral issues, the social worker reported meaningful improvements in their conduct. I.O.'s therapist reported improved mood and decreased tantrums. Her foster parents describe I.O. as " 'loving and caring towards everyone.' " Similarly, J.O.'s foster parent and social worker report many of his behaviors have improved recently, and he "seeks comfort and affection frequently from his current foster parent." L.O.'s tantrums are "much less" than when she first entered foster care, her social skills are improving, and she "ha[s] a close bond with her foster mother, whom she often calls 'mommy,' and seeks out for guidance and physical affection." C.O. is "very friendly, playful, and curious," and also has a close bond with her foster mother, "whom she calls 'mommy,' and frequently seeks out for guidance and physical affection."
The report also summarized the children's likelihood of adoption. The Bureau had "many families that are willing and able to adopt" C.O. and L.O., and a family has been selected. While no specific family has been identified for J.O. and I.O., the Bureau concluded they are "healthy, young, and have no developmental delays and are generally adoptable." The Bureau noted J.O. and I.O.'s current foster family is willing to commit to adopting I.O., but is still assessing whether they can commit to J.O. As a result, the Bureau asked to terminate parental rights as to C.O. and L.O., and for a 60-day continuance as to J.O. and I.O. to further assess their adoption situation.
The court held a two-day hearing to address Mother's section 388 petition and termination of parental rights under section 366.26. At the beginning of the hearing, the Bureau informed the court the prospective adoptive parents for C.O. and L.O. recently committed to adopting J.O. and I.O. if their current foster home does not adopt them. The Bureau thus requested the court terminate parental rights as to all four children.
Mother then testified regarding the progress she has made in addressing her substance abuse and domestic violence issues, including her recent completion of an outpatient treatment program and ongoing Narcotics Anonymous (NA) participation. She acknowledged the domestic violence to which her children were exposed, and commented, "I'm not that same person . . . . I can only make a difference today, make sure that my kids never have to see me go through that again and that my kids get the love that they deserve from me." Mother also submitted a number of letters attesting to the changes she made in her life.
On cross-examination, she was asked about the five worst things her children had seen. Mother responded: "Me being choked, me being beaten, those are the only things that they've seen. Us fighting. Those are the things that they've seen that they shouldn't see." She also acknowledged that she hit one of her older children, A.C., and bruised him. When asked whether she punched A.C. on another occasion, she denied punching him but stated, "My hand may have hurt him." She also denied pulling A.C.'s feet such that he fell and asserted her children never observed her and Father engaging in sexual activity.
The social worker, Anne Dimas, contradicted Mother's testimony and stated J.O., I.O., A.C., and M.A. reported observing Mother and Father engaging in sexual activity as well as having to watch pornography. Dimas also testified regarding the children's progress as described in the Bureau's report. For example, she stated J.O.'s behavior was improving, he had begun calling his foster mother "mom," and he viewed his foster parents as his parent figures. She also expanded upon the adoption possibilities set forth in the report. Dimas stated the children had luckily been in stable placements, and J.O. and I.O. would either be adopted by their current foster family or by the prospective adoptive parents for L.O. and C.O.
The court found Mother's testimony lacked credibility. The court noted Mother tended to focus on her own abuse rather than the children's experiences and deny the extent of their trauma, such as their exposure to sexual activity. While the court found "some sincerity to her process of recovery," it concluded continuing reunification services or prolonging permanency would not serve the children's best interests "given the state of the evidence here today[,] the toxicity of her relationship with [Father][, and] the fact that she still cannot come to grips with all that her children have endured, own it and address it in an honest way . . . . [¶] . . . These are young children who deserve some stability and a forever, safe home." The court terminated the parental rights and found by clear and convincing evidence the children would likely be adopted. Mother and Father timely appealed.
II. DISCUSSION
Mother and Father join in arguing the juvenile court lacked jurisdiction to terminate parental rights because the remittitur which related to the writ petitions issued after the termination order, and the court failed to comply with ICWA. Mother also contends the juvenile court abused its discretion in denying her section 388 petition. Finally, Mother argues the children are not adoptable, the parent and sibling relationship exceptions apply, and the court failed to consider the children's wishes. We address each argument in turn. A. Impact of Writ Petitions on Juvenile Court's Jurisdiction
1. Relevant Factual Background
Father and Mother filed writ petitions with this court on April 16 and 17, 2017, respectively. Their petitions challenged, in part, whether the court adequately addressed their ICWA notices and its order terminating reunification services. In an opinion filed on June 16, 2017, we conditionally granted Mother's and Father's petitions for the sole purpose of determining whether ICWA applies and whether proper ICWA notice was given. (R.M. v. Superior Court (Jun. 16, 2017, A150887) [nonpub. opn.] (R.M.).) The decision noted, "If the court has already determined proper notice was given and ICWA does not apply, the juvenile court shall conduct no further proceedings on the ICWA issue" and proceed with the current .26 hearing date.
We take judicial notice of our prior decision. (Evid. Code, § 452, subd. (d).)
The juvenile court, pursuant to our direction in R.M., supra, A150887, concluded it had already determined proper notice was given and ICWA did not apply. It then proceeded with the .26 hearing on June 28, and July 5, 2017. The juvenile court terminated parental rights on July 5, 2017. On July 18, 2017, after the court conducted the .26 hearing and terminated parental rights, we issued a remittitur with respect to the writ proceedings.
2. Analysis
On appeal, Mother and Father contend jurisdiction resided with the appellate court until the remittitur issued. And because the juvenile court conducted the .26 hearing prior to the issuance of the remittitur, they assert the court lacked jurisdiction to conduct the hearing or rule on the issues. We disagree.
In assessing whether the juvenile court was authorized to proceed with the .26 hearing, we find In re Brandy R. (2007) 150 Cal.App.4th 607 (Brandy) directly on point. In Brandy, the mother appealed from a postjudgment order under section 366.26 terminating her parental rights. (Brandy, at p. 609.) The mother argued the juvenile court lacked jurisdiction to conduct the .26 hearing until issuance of the remittitur following the appellate court's denial of her prior writ petition. (Brandy, at p. 609.) The Fourth Appellate District disagreed.
"As a general rule, under Code of Civil Procedure section 916, an appeal stays further proceedings in the trial court regarding matters embraced in or affected by the judgment or order from which the appeal is taken. But an appeal is not a writ proceeding. An appeal is taken by right; a writ is an extraordinary, discretionary remedy. We see no basis for interpreting Code of Civil Procedure section 916 as equating the two. The manifest distinction between writ review and appeal is particularly well illuminated in juvenile dependency proceedings by the provisions of section 366.26, subdivision (l), which conditions the right to appeal an order setting the .26 hearing on, inter alia, a summary denial of a timely petition for extraordinary writ review. Thus, the Legislature clearly knows the difference between an appeal and extraordinary writ review and easily could have included language to accommodate an automatic stay in writ proceedings, but it did not. Long-standing rules of statutory construction, as repeated in People ex rel. Allstate Insurance Co. v. Muhyeldin (2003) 112 Cal.App.4th 604, prohibit us from rewriting the statute by inserting words of our own: ' " '[I]t still remains true, as it always has, that there can be no intent in a statute not expressed in its words, and there can be no intent upon the part of the framers of such a statute which does not find expression in their words.' [Citations.] . . . 'Words may not be inserted in a statute under the guise of interpretation.' " ' " (Brandy, supra, 150 Cal.App.4th at pp. 609-610.)
In discussing how this difference impacts dependency proceedings, the appellate court noted: "California Rules of Court, rule 8.452([f]) . . . gives us—'the reviewing court'—discretion to stay the .26 hearing pending determination of the writ, but tells us we 'must require an exceptional showing of good cause' to justify the stay. This virtually compels the conclusion that the court had authority to go forward with the .26 hearing even though the remittitur had not issued from mother's writ proceeding. The mandate requiring 'an exceptional showing of good cause' for the stay a fortiori negates the application of an automatic stay.' " (Brandy, supra, 150 Cal.App.4th at p. 610.) To conclude otherwise would contravene the principle that a more specific and later-enacted statute, such as California Rule of Court, rule 8.452(f), should take precedence over a more general statute, such as Code of Civil Procedure section 916. (See State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 964 [specific and later-enacted statute creates limited exception to more general statute].)
Mother and Father fail to cite Brandy or any dependency cases involving a writ petition. Instead, they primarily rely upon In re Anna S. (2010) 180 Cal.App.4th 1489. However, that matter involved a prior appeal—not a writ petition. (See In re Anna S. (Mar. 13, 2009, D053800) [nonpub. opn.].) We thus find it distinguishable because California Rule of Court, rule 8.452(f) did not apply in that context.
We may appropriately cite a nonpublished decision "to explain the factual background of the case and not as legal authority." (Pacific Gas & Electric Co. v. City and County of San Francisco (2012) 206 Cal.App.4th 897, 907, fn. 10.)
We concur with the reasoning in Brandy and reach a similar conclusion. In light of the Supreme Court's "long recogni[tion] that providing children expeditious resolutions is a core concern of the entire dependency scheme," the Legislature's decision to allow juvenile courts to proceed despite a pending writ petition is entirely consistent therewith. (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 847, fn. 4.) Here, we did not issue a stay of the juvenile court proceedings while the prior writ petitions were pending before us. Accordingly, we conclude the juvenile court was entitled to proceed with the .26 hearing prior to issuance of the remittitur. B. ICWA
Even as to appeals, Code of Civil Procedure section 916 is subject to a number of statutory exceptions including section 917.7, which provides, in pertinent part: "The perfecting of an appeal shall not stay proceedings as to those provisions of a judgment or order which award, change, or otherwise affect the custody, including the right of visitation, of a minor child in any civil action, in an action filed under the Juvenile Court Law, or in a special proceeding . . . ."
Parents contend the court erred by failing to ensure sufficient ICWA notice was sent to the Poarch Band of Creek Indians (Poarch Band). They argue the children have sufficient blood quantum to qualify for membership and request remand "so that the Bureau can accurately determine if the children meet the eligibility standard."
1. Relevant Factual Background
Shortly after the section 300 petition was filed, Mother and Father filed forms indicating the children are or may be members of the Poarch Band. At the detention hearing, the court found the children may be Indian children and instructed the Bureau to provide tribal notice as required by law. ICWA packets were completed for each child and sent to the Poarch Band. The Poarch Band informed the Bureau in two separate letters J.O., I.O., L.O., and C.O. were neither enrolled nor eligible for enrollment.
On April 26, 2017, the court conducted a hearing with regard to ICWA. The court found the Bureau complied with the notice provisions of ICWA, the children were neither members nor eligible to enroll, and ICWA did not apply. Contrary to his position in this appeal, at that time Father agreed the children were neither enrolled nor eligible for enrollment.
2. Analysis
"ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency cases. [Citations.] ICWA defines an Indian child as any unmarried person who is under age 18 and is either (1) a member of an Indian tribe, or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe." (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538.)
"The United States Supreme Court has held that '[a] tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community.' (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 32.) The California Legislature has codified this principle: 'A determination by an Indian tribe that a child is or is not a member of or eligible for membership in that tribe, or testimony attesting to that status by a person authorized by the tribe to provide that determination, shall be conclusive.' (§ 224.3, subd. (e)(1).) The recently revised Guidelines for State Courts and Agencies in Indian Custody Proceedings (Guidelines) (80 Fed. Reg. 10146 et seq. (Feb. 25, 2015)) explain: [¶] 'B.3. Who makes the determination as to whether a child is a member of a tribe? [¶] (a) Only the Indian tribe(s) of which it is believed a biological parent or the child is a member or eligible for membership may make the determination whether the child is a member of the tribe(s), is eligible for membership in the tribe(s), or whether a biological parent of the child is a member of the tribe(s). [¶] (b) The determination by a tribe of whether a child is a member, is eligible for membership, or whether a biological parent is or is not a member of that tribe, is solely within the jurisdiction and authority of the tribe. [¶] (c) No other entity or person may authoritatively make the determination of whether a child is a member of the tribe or is eligible for membership in the tribe. [¶] . . . [¶] (d) The State court may not substitute its own determination regarding a child's membership or eligibility for membership in a tribe or tribes.' (Guidelines, § B.3.)" (In re K.P. (2015) 242 Cal.App.4th 1063, 1071-1072, fn. omitted.)
While Mother and Father dispute the outcome, they admit multiple letters from the Poarch Band confirmed the children were neither enrolled nor eligible for enrollment. Nor do they identify any information required by state or federal law that was omitted from the ICWA notices sent to the Poarch Band. " 'Each Indian tribe has sole authority to determine its membership criteria, and to decide who meets those criteria. [Citation.] . . .' [Citation.] 'The only relevant factor is whether the tribe verifies that the child is a member or eligible for membership.' " (In re K.P., supra, 242 Cal.App.4th at p. 1072.)
Here, the Poarch Band determined J.O., I.O., L.O., and C.O., "are not currently enrolled nor are the children eligible for enrollment with the POARCH CREEK INDIANS." In light of the tribe's express determination, it is inappropriate for us to second-guess the children's eligibility as Mother and Father suggest. We decline to do so. (See In re Kadence P. (2015) 241 Cal.App.4th 1376, 1387 & fn. 10 [" '[o]nly the Indian tribe(s) of which it is believed a biological parent or the child is a member or eligible for membership may make the determination whether the child is a member of the tribe(s) [or] is eligible for membership in the tribe(s). . . . The determination by a tribe of whether a child is a member [or] is eligible for membership . . . is solely within the jurisdiction and authority of the tribe"]; Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 32 [Indian tribe is final arbiter of its membership rights]; In re Francisco W. (2006) 139 Cal.App.4th 695, 702 ["The Indian tribe determines whether the child is an Indian child," and its determination is " ' "conclusive" ' "].) C. The Denial of the Section 388 Petition
Mother contends the juvenile court abused its discretion by denying her section 388 petition because she proved changed circumstances and further family reunification services would be in the children's best interests. Specifically, Mother argues domestic violence and drug use resulted in the children's dependency, and she has eliminated those issues from her life. In response, the Bureau contends Mother failed to demonstrate changed circumstances or that granting her petition would be in the children's best interests. We agree.
The parties dispute whether the factors outlined in In re Kimberly F. (1997) 56 Cal.App.4th 519 apply. We need not resolve this dispute because, even considering the Kimberly F. factors, we would conclude the juvenile court did not abuse its discretion in denying Mother's section 388 petition.
1. Standard of Review
"The juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstance or new evidence and that modification would promote the child's best interests." (In re Amber M. (2002) 103 Cal.App.4th 681, 685 (Amber M.).) "Thus, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child's best interests." (In re G.B. (2014) 227 Cal.App.4th 1147, 1157.) Courts consider "the seriousness of the problem leading to the dependency and the reason for its continuation; the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and the nature of the change of circumstance, the ease by which it could be achieved, and the reason it did not occur sooner." (Amber M., at p. 685.)
While a section 388 petition may be filed "at any time after the minor has been declared a dependent child of the juvenile court," after termination of services, the focus shifts from the parents' custodial interest to the child's need for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In Stephanie M., the court cautioned: " 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citations.] [¶] . . . [¶] After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child." (Ibid.)
" 'Whether a previously made order should be modified rests within the dependency court's discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established.' [Citation.] The denial of a section 388 motion rarely merits reversal as an abuse of discretion." (Amber M., supra, 103 Cal.App.4th at pp. 685-686.) With these legal standards and principles in mind, we turn to the merits of Mother's claim that the juvenile court erred in denying her section 388 petition.
2. Analysis
Mother's petition and her testimony at the section 388 hearing did indicate she was making positive changes in her life. Mother had completed a 90-day drug treatment program, was active in NA, and lived in a sober living facility. Mother also testified she saw a therapist weekly. She also attended a domestic violence support group and obtained employment and housing. She regularly visited her children.
Despite these positive changes, significant problems still remained. Mother was only beginning to believe her children regarding Father's physical abuse of them. She continued to make excuses for the numerous incidents of physical injuries sustained by minors' half sibling and denied her children observed Mother and Father engaging in sexual activity and drug use. She did not address the social worker's testimony that the children claimed they were forced to watch pornography as punishment. The Bureau also presented evidence indicating Mother continued to have ongoing contact with Father. The social worker testified Mother tended to omit important evidence that placed her in a bad light and did not believe Mother was being fully honest. The social worker did not believe Mother's relationship with Father would not continue and testified Mother is not trustworthy with the children.
The record also indicates the children have become deeply bonded with their foster parents and their behavioral issues are improving. J.O. refers to his foster mother as "mom" and informed his therapist he saw his current foster parents as his parent figures. Likewise, C.O. and L.O. are both strongly bonded with their foster parents and call their foster mother "mommy," and I.O. refers to her foster mother as both "auntie" and "mommy." Nor are such bonds surprising. At this stage in the proceedings, C.O. has resided for a longer period of time with the foster parents than with Mother, and L.O. has nearly done so.
In assessing whether the juvenile court abused its discretion in light of these facts, we find Amber M., supra, 103 Cal.App.4th 681 instructive. There, the appellate court upheld the juvenile court's denial of the mother's section 388 petition despite her completion of domestic violence and sexual abuse treatment and the residential portion of her substance abuse program, 372 days of sobriety, and the fact the children loved and missed her and called her "mom." (Amber M., at p. 686.) The court noted the mother was only on step three of her 12-step program, she had previously relapsed, the children had been out of her care for two years, and they were bonded with their grandparents with whom they were residing. (Ibid.) As a result, the court concluded the juvenile court did not abuse its discretion in denying the section 388 petition. (Amber M., at p. 687.)
The facts here are markedly similar to those in Amber M. While Mother has made progress, Mother is still early in her recovery, she has just begun step three of her 12-step program, the children had been out of her care for 18 months at the time of the .26 hearing, and they are bonded with their current foster families. In light of the above facts and the children's paramount need for " ' "permanency and stability" ' " (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505), we cannot conclude the court abused its discretion in denying Mother's petition. (See In re D.R. (2011) 193 Cal.App.4th 1494, 1512 ["The fact that the parent 'makes relatively last-minute (albeit genuine) changes' does not automatically tip the scale in the parent's favor."].) D. Termination of Parental Rights
"At a section 366.26 hearing the court is charged with determining a permanent plan of care for the child." (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Depending on the evidence presented at the hearing, the court is required to order one of several alternatives, including adoption, relative or non-relative legal guardianship, or long-term foster care. (§ 366.26, subd. (b)(1)-(7).) "Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.); In re D.M. (2012) 205 Cal.App.4th 283, 289 (D.M.).) " ' "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." ' " (D.M., at p. 290.)
Adoption necessarily involves terminating the biological parents' parental rights. (See Autumn H., supra, 27 Cal.App.4th at p. 574; D.M., supra, 205 Cal.App.4th at p. 290.) After the court determines by clear and convincing evidence a child is likely to be adopted, the burden shifts to the party opposing adoption to show terminating parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1)(B). (See In re C.F. (2011) 193 Cal.App.4th 549, 553.)
As the parties acknowledge, there is a split of authority concerning the appropriate standard for reviewing a ruling on adoptability or the applicability of a statutory exception to the termination of parental rights at a .26 hearing. (See In re K.P. (2012) 203 Cal.App.4th 614, 621-622 [abuse of discretion]; Autumn H., supra, 27 Cal.App.4th at p. 576 [substantial evidence]; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [hybrid combination of substantial evidence and abuse of discretion standards].) We need not weigh in on this debate as our conclusion is the same under any of these standards.
1. Adoptability
Mother argues insufficient evidence supports the juvenile court's finding that the children had a probability of adoption because of their mental health and behavioral issues. Mother further contends the children were not adoptable because they were part of a sibling group. We disagree.
"The issue of adoptability 'focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.' " (In re Jose C. (2010) 188 Cal.App.4th 147, 158.) "Hence, it is not necessary that the minor already be in a potential adoptive home . . . . [¶] Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)
Mother first argues the children are not generally adoptable, pointing to their behavioral issues. But no case requires a minor to be "problem-free" to be found generally adoptable. (See, e.g., In re Gabriel G. (2005) 134 Cal.App.4th 1428, 1431, 1438 [probability of adoption finding affirmed for minors, including three year old whose " 'violent and aggressive' " behavior resulted in his foster parent and two daycare facilities requesting his removal, where there was also evidence he was "healthy, developmentally on target in most areas, and . . . physically appealing"].) In In re A.A. (2008) 167 Cal.App.4th 1292, 1312, a case cited by Mother, the children had delayed language skills, were diagnosed with attachment disorder, and displayed aggressive behavior toward each other. The court found the children were likely to be adopted "[g]iven the children's positive attributes, the progress they were making in overcoming their behavioral and emotional problems, as well as the current and former caregivers' willingness to adopt them." (Ibid.)
Here, as in In re A.A., the children have many positive attributes and are making progress in their behavioral issues. With regard to J.O., there was evidence he was "developmentally on target" with good gross and fine motor skills. His teacher reports he is performing at grade level, excels in speaking and listening, and is "very respectful" of adults. Although he was diagnosed with adjustment disorder with mixed anxiety and depression and engaged in aggressive behavior, at the time of the .26 hearing he had made substantial progress and the frequency of his aggressive behaviors had substantially decreased. His teacher, foster parent, and social worker all noted many of J.O.'s negative behaviors have improved. The Bureau concluded J.O. was "healthy, young, and ha[s] no developmental delays and [is] generally adoptable."
Similarly, the evidence shows I.O. is "developmentally on target," "likes school and playing with the other children," "excels in speaking," has friends, and is respectful. She is described as " 'loving and caring towards everyone.' " Although I.O. suffered from depression and excessive worry, her therapist reported I.O.'s mood was improving, her feelings of sadness have decreased each week, and she has fewer tantrums. Her teacher has also reported her behavior at school has improved. The Bureau concluded I.O. was "healthy, young, and ha[s] no developmental delays and [is] generally adoptable."
L.O. and C.O. also are developmentally on target. L.O. "is engaging in more positive interactions." While she has more frequent and intense tantrums than other children her age, the number and intensity has significantly reduced while in foster care. C.O. is described as "a happy baby," "affectionate, very social," "very friendly, playful, and curious," and "likes being around people." She had no diagnosed mental health issues although she does have somewhat frequent tantrums. While L.O. and C.O. have some behavioral issues, the Bureau found both "healthy, young" and "adoptable." In addition, a prospective adoptive family is willing and committed to adopting L.O. and C.O.
Mother next contends the children are not adoptable because no adoptive family had been found for I.O. and J.O. and the Bureau failed to adequately assess the eligibility of the prospective adoptive parents for L.O. and C.O. We again disagree.
"To be considered adoptable, a minor need not be in a prospective adoptive home and there need not be a prospective adoptive parent ' "waiting in the wings." ' " (In re R.C. (2008) 169 Cal.App.4th 486, 491.) As noted above, J.O., I.O., L.O., and C.O. are generally adoptable. For children like these, "who [are] adoptable based on factors in addition to a caregiver's willingness to adopt, the suitability or availability of the caregiver to adopt is not a relevant inquiry. [Citations.] Rather, a caregiver's willingness to adopt serves as further evidence the minor is likely to be adopted within a reasonable time either by the caregiver 'or by some other family.' " (Id. at pp. 493-494, fn. omitted.) Accordingly, the existence of prospective adoptive families merely serves as additional support for the juvenile court's finding of adoptability. Here, a prospective adoptive family was selected for C.O. and L.O., and that family also committed to adopting J.O. and I.O. if their current foster family declines to do so. Any outstanding questions regarding which family may adopt I.O. and J.O. does not detract from the general finding of adoptability.
Lastly, Mother argues the adoptability finding is not supported by substantial evidence because it is founded upon the social worker's opinion of adoptability. We agree with Mother that a social worker's opinion, of itself, is not sufficient to support an adoptability finding. (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) But we do not view the record here as showing the juvenile court relied solely on the social worker's opinion that the children were adoptable. As evidenced above, the children have numerous positive attributes and are making progress in addressing their behavioral and emotional issues. They have prospective adoptive families. While there is certainly evidence illustrating the struggles these children will have overcoming the trauma they experienced, "The power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination of whether there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. [Citation.] All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. We may not reweigh or express an independent judgment on the evidence." (In re A.A., supra, 167 Cal.App.4th at p. 1313.) Substantial evidence supports the juvenile court's finding that the children are adoptable.
Mother also argues the children are not adoptable because they are part of a sibling group. But neither In re Brian P., supra, 99 Cal.App.4th 616, nor In re Valerie W. (2008) 162 Cal.App.4th 1, the only two cases she cites, suggest membership in a sibling group impacts a child's adoptability. (See In re Brian P., at p. 624 ["The issue of adoptability requires the court to focus on the child, and whether the child's age, physical condition, and emotional state make it difficult to find a person willing to adopt."]; In re Valerie W., at p. 13 [same].) Rather, the issue of siblings is addressed in part II.D.3., post.
2. Beneficial Parent Relationship Exception
Mother contends the juvenile court erred in failing to find the beneficial parental relationship exception precluded termination of her parental rights to the children. (§ 366.26, subd. (c)(1)(B)(i).)
The beneficial parental relationship exception applies when termination of parental rights would be detrimental to the child because "[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).) Assuming Mother's visitation satisfied the first prong of the exception, the next question is whether the relationship so benefitted the children that termination of parental rights would be detrimental. To establish this, Mother must demonstrate the relationship "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Autumn H., supra, 27 Cal.App.4th 567, 575; accord In re C.B. (2010) 190 Cal.App.4th 102, 124.) "[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." (Autumn H., at p. 575.) If the court finds the relationship with the parent does not benefit the child significantly enough to outweigh the Legislature's strong preference for adoption, the exception does not apply. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).)
In this instance, the juvenile court did not err in finding the beneficial parental relationship exception did not apply. Mother asserts she maintained regular visitation, these interactions were affectionate, and the children—particularly L.O. and C.O.—missed her and asked about living together. The evidence supports these contentions. The evidence also suggests, however, Mother failed in certain respects to demonstrate appropriate parenting skills, such as calling J.O. " 'lazy bully,' " telling L.O. she was " 'acting very different and ugly,' " expressing negativity about the foster situation, and making imprudent promises to the children regarding visitation and them returning to her care. She was often late for visits and failed to attend two visits. Moreover, the frequency of visitation had decreased by the time of the .26 hearing, and Mother never achieved unsupervised visitation during the reunification period.
The beneficial relationship exception requires more than a showing that the parent has maintained frequent and loving contact with the children, and that they share an emotional bond. (See, e.g., Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) A parent cannot "derail an adoption merely by showing the child would derive some benefit from continuing a relationship." (Jasmine D., at p. 1348.) Indeed, "continued interaction between the biological parent and child will almost always confer some benefit on the child." (In re Zachary G. (1999) 77 Cal.App.4th 799, 811; accord Autumn H., supra, 27 Cal.App.4th at p. 575.) Instead, Mother was required to show " 'exceptional circumstances' "—that the relationship promotes the wellbeing of the children to such a degree as to outweigh the well-being they would gain in a permanent home. (Jasmine D., at pp. 1348-1349.)
In the present case, the evidence falls short of that necessary to mandate application of the beneficial parental relationship exception. Nor do we agree this case is analogous to In re S.B. (2008) 164 Cal.App.4th 289 (S.B.). In S.B., a three-year-old child was removed from the custody of her father who had been her primary caregiver. (Id. at p. 293.) The father immediately acknowledged his drug use was untenable and fully complied with his case plan, remained drug free, and regularly visited his daughter three days a week. (Id. at p. 298.) Even after a year apart, when the visits ended, the child continued to become upset and wanted to leave with her father. (Ibid.) The appellate court reversed the termination of parental rights, finding substantial evidence to support application of the section 366.26, subdivision (c)(1)(B)(i) exception on the basis of an emotionally significant relationship arising from the frequent and loving visits between parent and child. (S.B., at pp. 298-299.)
We also note, since its publication, S.B. has been subject to considerable criticism, particularly for its suggestion the exception applies if the child will merely "derive[] some measure of benefit" from the parental relationship. (S.B., supra, 164 Cal.App.4th at p. 301.) The same court that decided S.B. has since repeatedly cautioned that S.B. must be "confined to its extraordinary facts." (In re C.F. (2011) 193 Cal.App.4th 549, 558; accord In Jason J. (2009) 175 Cal.App.4th 922, 937.) --------
Unlike S.B.'s father, who immediately acknowledged his problems and "complied with 'every aspect' of his case plan" (S.B., supra, 164 Cal.App.4th at p. 298), Mother here failed to meaningfully engage in her case plan for approximately seven months after the children were removed. For example, she initially refused to obtain a restraining order against Father, insisting he was a "good father," would not take responsibility for the situation, and minimized her drug use. She neither completed any drug testing nor the outpatient substance abuse treatment program during this period, therapeutic services were terminated due to her lack of attendance, and she left the women's shelter to resume residing with Father. While she has certainly taken steps since then to address these issues, Mother has not demonstrated an ability to provide the children, over the long term, with a stable, safe, and loving home environment. Moreover, Mother offers no evidence to suggest she still occupies a parental role in the children's lives. To the contrary, the evidence indicates the children look to their foster parents to fulfill their physical and emotional needs.
Although the evidence showed a bond between Mother and the children, it did not show a bond of such "strength and quality" that the juvenile court was compelled to conclude they would be "greatly harmed" by termination of parental rights. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Substantial evidence supports the juvenile court's holding that the beneficial parental relationship exception did not apply.
3. Sibling Relationship Exception
Mother also contends the juvenile court erred in failing to find the sibling relationship exception precluded termination of her parental rights. (§ 366.26, subd. (c)(1)(B)(v).) Without citing any evidence in the record, she contends the children are each other's " 'anchors' " and were "more than mere playmates."
The "sibling relationship" exception, codified in section 366.26, subdivision (c)(1)(B)(v), establishes an exception to terminating parental rights when the termination would result in "substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, [(1)] whether the child was raised with a sibling in the same home, [(2)] whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and [(3)] 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." (§ 366.26, subd. (c)(1)(B)(v); see In re Valerie A. (2007) 152 Cal.App.4th 987, 998.)
In determining whether the sibling relationship exception applies, the juvenile court "is directed first to determine whether terminating parental rights would substantially interfere with the sibling relationship . . . ." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952; see In re Daisy D. (2006) 144 Cal.App.4th 287, 293 ["The exception . . . applies only when adoption would result in 'substantial interference with a child's sibling relationship.' "].) "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." (In re L.Y.L., at p. 952, italics added.) "[T]he application of this exception will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount." (In re Valerie A., supra, 152 Cal.App.4th at p. 1014.)
While the exact plan for adoption is not finalized, in this case there is no concern that individual siblings would be spread among numerous families. Rather, there are two families involved: one of whom plans to adopt C.O. and L.O. and the other of whom is fostering the children's two older half siblings and J.O. and I.O. The sole question is—between the two families at issue—which family will adopt J.O. and I.O. Specifically, the social worker testified the prospective adoptive family for C.O. and L.O. were willing to adopt J.O. and I.O. if their current foster family is unable to do so. Not only would the children remain with other siblings, but the family interested in adopting C.O. and L.O. has expressly agreed to support ongoing contact between the siblings regardless of whether they adopt J.O. and I.O.
Mother questions whether an unenforceable commitment to maintaining sibling contact should be a factor in evaluating this exception. Courts, however, have frequently concluded "assurances of continued sibling visits are relevant" to determining whether the sibling relationship exception applies. (In re D.O. (2016) 247 Cal.App.4th 166, 175; see In re L.Y.L., supra, 101 Cal.App.4th at pp. 951-952; In re Valerie A., supra, 152 Cal.App.4th at p. 1014.) We find these cases persuasive. In D.O., the four children were detained and placed in pairs in two separate foster homes. (Id. at p. 169.) D.O. was subsequently moved to her paternal grandmother's home, though she continued to visit her siblings twice per month. (Id. at p. 170.) In evaluating whether to terminate parental rights, the court concluded the sibling exception did not apply because the caregivers were committed to maintaining sibling contact. (Id. at p. 172.) The court affirmed, noting while usually "it is the better practice for juvenile courts to also consider the expressly enumerated factors. . . . we conclude it was not error to depart from that practice here, where the record contains substantial evidence that would have allowed the juvenile court to otherwise reach the same conclusion by considering the expressly enumerated factors." (Id. at p. 176.)
Here, the juvenile court not only found a high likelihood of ongoing sibling contact, but it also concluded providing these children with stability and permanency outweighed the potential of any future lost sibling contact. The court expressed significant concern regarding the trauma experienced by these children, coupled with the lack of credibility in Mother's testimony regarding her dysfunctional relationship with Father. These concerns outweighed any potential loss of sibling contact.
We also note little evidence argues against the juvenile court's decision. While Mother contends permanently separating the children will result in trauma because they are each other's " 'anchors,' " she cites no evidence to support such claims. The only evidence Mother references is L.O.'s excitement to receive a photo album of her siblings, which the foster parents stated was " 'really helping.' " While the children undoubtedly feel affection for each other, nothing in the record suggests such a bond would outweigh the well-being they would gain from permanence and stability. In fact, counsel for the children supported the Bureau's recommendation to terminate parental rights, which directly counters Mother's argument. (See In re Celine R. (2003) 31 Cal.4th 45, 54-55 [sibling bond exception is evaluated from the perspective of the child who is being considered for adoption].) We conclude the juvenile court properly declined to apply this exception.
4. Failure to Consider Children's Wishes
Prior to entering an order terminating parental rights, courts are required to " 'consider the child's wishes to the extent ascertainable'. . . ." (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591; accord §366.26, subd. (h)(1).) Mother asserts the court did not comply with this mandate before terminating parental rights.
Mother failed to raise this issue at the .26 hearing, and the issue has therefore been forfeited. (See In re Amanda D. (1997) 55 Cal.App.4th 813, 819-820 ["[The father] raised no issue below that the juvenile court should have obtained the minors' testimony regarding their wishes for a permanent plan. [Citation.] He is precluded from presenting it here."]; In re S.B. (2004) 32 Cal.4th 1287, 1293 ["[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] [Fn. omitted.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.] [¶] Dependency matters are not exempt from this rule."].)
Even assuming the issue is not forfeited, we conclude the juvenile court considered the children's wishes at the .26 hearing. Evidence regarding the children's wishes "need not be in the form of direct testimony in court or chambers; it can be found in court reports prepared for the hearing." (In re Amanda D., supra, 55 Cal.App.4th at p. 820.) The court need not specifically ask the minor how he or she feels about ending the parental relationship. " '[I]n honoring [the minors'] human dignity . . . we should not carelessly impose upon them decisions which are heavy burdens even for those given the ultimate responsibility to decide. To ask children with whom they prefer to live or to ascertain what they wish through other evidence is one thing. To ask those children to choose whether they ever see their natural parent again or to give voice to approving that termination is a significantly different prospect. . . . [W]e conclude that in considering the child's expression of preferences, it is not required that the child specifically understand the proceeding is in the nature of a termination of parental rights.' " (Ibid., italics added by Amanda D.)
"What the court must strive to do is 'to explore the minor's feelings regarding his/her biological parents, foster parents, and prospective adoptive parents, if any, as well as his/her current living arrangements. . . . [A]n attempt should be made to obtain this information so that the court will have before it some evidence of the minor's feelings from which it can then infer his/her wishes regarding the issue confronting the court.' " (In re Amanda D., supra, 55 Cal.App.4th at p. 820.)
Here, contrary to Mother's assertions, there was evidence of the children's wishes in the reports submitted by the Bureau. For example, in the November 2016 status review report, the Bureau noted the children "are doing well" in their foster homes, and their moods and behaviors are improving. The report noted J.O. had an "extreme attachment" to his foster mother. The section 366.26 report noted the children refer to their foster mothers as "mommy" and look to their foster parents for comfort, affection, and guidance. The report further noted J.O. told Mother on various occasions he did not love her anymore. Similarly, at the .26 hearing the social worker testified J.O. informed his therapist he saw his current foster parents as his parent figures, and counsel for the children supported termination of parental rights.
Throughout the proceedings, the Bureau explored the thoughts and feelings of the children and reported that information to the juvenile court. This level of inquiry was appropriate to obtain information regarding the children's wishes and sufficient for purposes of complying with section 366.26, subdivision (h).
III. DISPOSITION
The juvenile court's order denying Mother's section 388 petition and terminating parental rights is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Banke, J.