Opinion
G055606
04-20-2018
In re H.H. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. J.F., et al., Defendants and Appellants.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant J.F. Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant J.H. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputies 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DP026660-001, DP026661-001) OPINION Appeal from orders of the Superior Court of Orange County, Gassia Apkarian, Judge. Affirmed. Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant J.F. Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant J.H. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputies County Counsel, for Plaintiff and Respondent. No appearance for the Minors.
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J.F. (mother) and J.H. (father) (parents) appeal from the juvenile court's orders terminating their parental rights to H.H. and R.H. (the minors), and imposing a permanent restraining order enjoining parents from having contact with minors' caregiver and members of her household. (Welf. & Inst. Code, § 366.26; all further statutory references are to the Welfare and Institutions Code.)
Parents challenge the court's decision to not apply the section 366.26, subd. (c)(1)(B)(v) sibling bond exception, and the sufficiency of the evidence to support the issuance of a restraining order. We affirm.
FACTS AND PROCEDURAL HISTORY
1. Background
In late September 2015, mother, then 27 years old, gave birth to R.H. R.H. tested positive for methamphetamine, although tests revealed no drug-related abnormalities.
At first, mother said she used methamphetamine "one time" right before the birth. Later, she admitted struggling with methamphetamine abuse since she was about 14 years old. Mother also had prior misdemeanor convictions for battery and possession of methamphetamine.
Mother had three other children. Father, then 53 years old, was the progenitor of R.H., and 10-month-old, H.H., but 11-year-old Ju.F. and eight-year-old V.P. had two different fathers, neither of which had provided care, or support, for them. Ju.F., V.P., and H.H. had lived with their maternal great-grandmother, K.F., in Redondo Beach intermittently throughout their lives, but mother had taken the children for the summer.
Ju.F. and V.P. are not subjects of this appeal. We discuss them only as necessary to decide the issues raised by the parties.
2. Petition and Detention
Orange County Social Services Agency (SSA) took R.H. and H.H. into protective custody the day after R.H.'s birth. Five days later, SSA filed a dependency petition alleging mother and father had failed to protect H.H. and R.H., and their unresolved substance abuse, mental illness, and drug-related criminal histories, rendered them unable to provide regular care for the minors. (§ 300, subd. (b).)
According to the supporting documents, mother, Ju.F., and V.P., had been the subject of prior referrals to the Los Angeles County Department of Public Social Services and SSA. In 2010 and 2011, when V.P.'s father lived with mother, Los Angeles County received three reports he had emotionally abused V.P. and Ju.F., but the allegations were unsubstantiated.
In 2011, mother showed up intoxicated at K.F.'s home, which is where Ju.F. and V.P. lived at the time. Mother threatened to punch K.F. in the face, and she cut K.F.'s leg with a piece of broken glass.
In 2013, SSA substantiated allegations of general neglect of Ju.F. and V.P., and acts of domestic violence between V.P.'s father and mother.
At the time of the minors' detention, father lived in Lakewood with his sister and his then 13-year-old daughter from a previous relationship. Father admitted an addiction to pain pills, and heroin, but he claimed it was 10 years ago. He admitted one prior criminal conviction for theft in 2004. However, a criminal records search revealed father had been convicted of driving under the influence in 2008. Father denied any knowledge of mother's methamphetamine use.
At the September 30 detention hearing, parents denied the allegations of the petition, and the matter was set for a contested jurisdictional hearing. The court granted parents six hours of monitored visitation per week, and ordered them to submit to random drug testing. H.H., R.H., Ju.F., and V.P. were placed with K.F.
3. Jurisdiction and Disposition
Between the end of September and mid-November when the court conducted the jurisdictional hearing, the social worker gave parents service referrals and resources for both Orange County and Los Angeles County, but parents did nothing with those referrals. Parents failed to appear for interviews with their social worker, and they had never undergone drug testing.
Meanwhile, K.F. reported mother was making harassing phone calls, and sending profanity-laced texts. K.F. said mother had once upset Ju.F. and V.P. by saying she wished K.F. would drop dead. At the same time, father came to K.F.'s home without permission. While they stood in the driveway, father threatened to enter K.F.'s house in the middle of the night and get her while she slept. K.F. alleged father had also threatened her with a knife.
At the hearing, father submitted on the SSA reports. Mother pleaded no contest, and the court found a factual basis for her plea. The court found by a preponderance of the evidence the minors would suffer "serious physical harm or illness, as a result of the failure or inability of parents to care for them. (§ 300, subd. (b)).
The parties stipulated to removal of the minors from parents' custody, and to the terms and conditions of the parents' case plan. The case plan required parents to keep all appointments with their social worker, maintain contact with the social worker, attend the minors' medical appointments, obey all laws, engage in therapy, complete a parenting program, submit to random drug testing, complete a drug treatment program, and attend either Alcoholics, or Narcotics, Anonymous (AA/NA) meetings.
4. Six-Month Review
At the contested six-month review hearing, the social worker reported all four of mother's children continued to live with K.F. In addition, K.F.'s two adult children and her granddaughter lived in the home.
Meanwhile, parents were living in a series of motel rooms. They had not submitted to regular drug testing, or participated in any services, notwithstanding the social worker's multiple reminders and referrals. The social worker described parents participation with their case plan as "minimal."
In the social worker's opinion, "The prognosis for the parents is poor and the parents have not demonstrated they are maintaining their sobriety. The risk level of returning the children to the parents at this time is very high." The social worker recommended the court terminate reunification services and schedule a section 366.26 selection and implementation hearing.
After completing a permanent planning assessment, the social worker wrote H.H. and R.H., now 18 months and seven months, respectively, were "generally adoptable" with "many of the characteristics desired by our adoptive families."
Parents continued to enjoy six hours of monitored visitation per week, and they were fairly consistent and mostly appropriate. H.H. and R.H. responded positively to parents, and they liked to stay close to them. Ju.F. and V.P. tended to interact with each other, but they also enjoyed their younger siblings.
In August 2016, SSA arranged for a monitored visit at a park. At one point, father left the minors and went to his car. A passerby saw him "shooting up," and reported it to the police. Responding police officers arrested father for being under the influence of a controlled substance and possession of a burned methamphetamine pipe. In father's car, the officers found an open can of beer and a makeup bag that contained two used hypodermic needles and two, burned silver spoons.
The arresting officers told the visitation supervisor both parents were "higher than a kite," and they appeared to have fresh "track marks" on their arms. Later, mother admitted using methamphetamine and drinking alcohol prior to this visit.
When the six-month review hearing began in October, parents and the social worker testified.
The social worker's testimony mirrored the many SSA reports admitted into evidence. According to the reports, parents had made almost no effort to participate with their case plan. Despite regular face-to-face meetings, e-mails, and texts, parents would not engage with their social worker. The social worker gave mother numerous bus passes, and contacted several outpatient treatment facilities to determine which ones would accept county funds. She also worked with both parents to facilitate drug testing, and even housing, all to no avail.
The social worker said parents regularly visited H.H. and R.H., and with the one major exception described above, there had been no problems. The parents brought food and toys with them, and they interacted with the minors in an appropriate manner.
Mother testified she was trying to comply with her case plan, but she had transportation problems and difficulties connecting with services. For instance, mother said some of the referral information she received was out of date, and she had trouble contacting the social worker. Mother said she cooperated with SSA, and she regularly visited H.H. and R.H. Mother testified H.H. and R.H. were bonded to her and become sad when she leaves.
Mother reportedly took an online parenting class and attended AA meetings, but she did not provide verification of either. Mother admitted an addiction to alcohol, but she steadfastly denied being addicted to methamphetamine.
Father testified he had kept the social worker apprised of his whereabouts at all times. He denied having a drug problem, and he blamed the social worker for his failure to participate in drug testing, counseling, and drug treatment. Father said he had asked to have the case transferred to Los Angeles County, but the social worker had done nothing about it.
Like mother, father emphasized his consistent, and appropriate, visitation with the minors. He testified H.H. and R.H. were always excited to see him, and they asked to go home with "mamma and dada" at the end of their visits.
At the conclusion of the hearing, parents requested the immediate return of H.H. and R.H., or in the alternative, a court finding SSA had not provided reasonable services. The court found by a preponderance of the evidence that return of the minors to parents' care "would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (e)(1).)
In making this finding, the court focused on the parents' drug and alcohol addictions, and their seeming inability to address their addictions as directed in the case plan. The court believed the social worker's reports and testimony with respect to whether reasonable services had been provided to parents. (§ 366.21, subd. (e)(1).) The court found by clear and convincing evidence SSA provided reasonable services, and that parents did not regularly participate, or make substantial progress, with their case plans. (§ 366.21, subd. (e)(3).) The court determined there was no substantial probability H.H. and R.H. could be returned to the parents' custody within six months.
Furthermore, because H.H. and R.H. were under age three on the date of their removal from parental custody, the court terminated reunification services and scheduled a section 366.26 selection and implementation hearing pursuant to section 366.21, subdivision (e)(3).
Section 366.21, subdivision (e)(3) states, in pertinent part, "If the child was under three years of age on the date of the initial removal, or is a member of a sibling group described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5, and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child, who was under three years of age on the date of initial removal, or is a member of a sibling group described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5, may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing."
In the end, the court determined parents had spent 10 months doing almost nothing to comply with their case plan, except maintaining regular visitation. 5. Section 366.26 Selection and Implementation Hearing
In November 2016, a little over a year since the minors were taken into protective custody, and about a month after the six-month review hearing, the social worker cancelled father's visitation with H.H. and R.H. after she learned father had become both physically and verbally abusive with Ju.F. and V.P. The social worker reported father had a reputation for "escalating quickly at the [visitation] center." Thereafter, father was not allowed to visit all four children at the same time. Even so, parents continued to maintain regular visitation with H.H. and R.H., albeit they were frequently late and sometimes appeared to be under the influence.
One month later, mother walked into a Gardena hospital with a complaint of vaginal bleeding and announced, "My baby is dead . . . there's nothing you can do for him, just focus on me." Mother had not disclosed her recent pregnancy, and her baby girl was stillborn. Mother tested positive for methamphetamine.
At the same time, K.F. had been caring for H.H. and R.H. for over a year. The minors "appeared to be comfortable, happy, and [to] have healthy attachments to the family members." The social worker said they were thriving. K.F. was committed to adopting the minors, and the adult members of her household were undergoing background checks, and adoption studies.
According to a February 2017 report, the social worker opined adoption would be in H.H. and R.H.'s best interests, and she recommended terminating parents' parental rights.
The selection and implementation hearing began in mid-March. Parents missed the morning session of the first day, but they showed up around 2:00 p.m. that afternoon.
During their absence, the social worker testified H.H. and R.H. were adoptable due to their young ages, and the absence of significant health or behavioral concerns. Parents continued to have six hours of monitored visitation each week, but their frequent 30- to 40-minute tardiness required changes in their schedule, and SSA was having trouble finding monitors for makeup visits. Parents told the social worker they had trouble checking out of their Los Angeles County motel room and getting to Orange County on time.
The social worker also said parents interacted appropriately with the minors during visitation. They would "bring toys or activities," provide food, and "hug them, hold them, put them on their laps, [and] make them laugh." She testified H.H. and R.H. were bonded to their older siblings, Ju.F. and V.P.
The social worker attributed parents' failure to progress beyond monitored visitation on the failure to drug test, or show proof of attendance in a drug treatment program of any kind. Father had been arrested for drug-related crimes during one monitored visit, and mother appeared to be under the influence. Mother had recently given birth to a stillborn child under the influence of methamphetamine.
Father testified he visited the minors twice a week for three hours at a time. During these visits, he and mother played games with the minors, took them to the park, and prepared snacks for them. He said the minors are always excited to see him, and they are upset when the visit ends.
Father said he was amazed, to "find [himself] here over a year now." While he and mother were "not perfect," father said he did not believe they deserved to have their parental rights terminated. Father exclaimed, "I don't see what we've done. [¶] I have other kids. I'm 54 years old. [¶] I've never abused or neglected a child in my life. And here I am, everyone looking at me like I'm some kind of a monster." Father denied becoming physically aggressive with V.P., and described it as a minor incident, "stretched into something much larger[.]"
Father also complained he and mother had to come to court to find out what was going on because no one told them much. He had not known reunification services were stopped. He testified mother was "on the phone everyday trying to find out what's going on with her children, and she gets no answers."
In father's opinion, Ju.F., V.P., H.H., and R.H. were bonded to each other and parents. Father believed terminating his parental rights and separating the siblings would be detrimental to the minors. When asked if he loved the minors, father replied, "I love them to death."
Mother first complained the court had prevented her from calling witnesses to prove terminating her parental rights would be detrimental to H.H. and R.H. Mother said the only thing she wanted the court to know was that the dependency proceedings had been "wrong since the beginning," and everyone involved in the case had rejected and ignored her. Mother continued, "My kids' voices were enough to be heard, but no one listened. They just medicated, shut them up, and split them up. I have four kids that were supposed to be together. [¶] And you guys have violated my rights and [father's] rights. And that's all I have to say."
However, mother later testified H.H. and R.H. were bonded to her because of "the looks in their eyes when they come and they greet us." In addition, H.H. calls mother, "mama," and father, "dada." Mother explained her role during visitation: "we play at the park. We go for walks, we have our lunch."
Mother testified it would be detrimental to terminate her parental rights to H.H. and R.H., "because [her] children know [she's] their mother and [she's] been there for them." She explained, "For goodness sake, I carried them in my stomach for nine months. [¶] And . . . knowing that your mother or your father is out there in [the] world and you've known them, [they're] still alive and existing," and "no longer a part of your life[,]" would be a great detriment to the minors
Mother blamed the court for her predicament, stating, "this court has forced me to be an abuser, to be an abuser, because I have neglected my kids because of you guys. That's neglect in the purest form."
Parents requested a continuance to allow Ju.F. to testify about the detriment finding required under section 366.26, subdivision (c)(1)(B)(v)'s sibling bond exception. The court denied the request, stating, "I don't believe this child's testimony - - regardless of what he says . . . is relevant to the sibling exception." Nevertheless, the court continued the section 366.26 hearing to allow parents to question the visitation monitors under oath.
6. Temporary Restraining Order
In late April, after one of mother's monitored visits with Ju.F. and V.P. at a park near K.F.'s home, mother made an unscheduled visit at K.F.'s home. Mother said she wanted to see H.H. and R.H., and K.F. allowed her to. When K.F. told mother she needed to leave, H.H. started to cry. K.F. was holding and comforting H.H., but mother demanded to hold him and the two struggled for control over H.H. When mother could not get the upper hand, she "head butted" and "punched" K.F.
K.F.'s adult son and daughter physically restrained mother and persuaded her to leave. Ju.F. saw the altercation. K.F. reported the incident to the Redondo Beach Police Department the following morning, and she lost her front teeth as a result of mother's assault.
On May 22, SSA filed a request for restraining order to keep mother away from K.F., her adult children, granddaughter, residence, and cars based on the above incident. SSA also sought an order restraining father from any contact with the same named persons.
K.F. alleged father had threatened bodily harm in December 2015. In April 2017, father sent her the following text: "you have put your old ass hands on these kids for the last time and also [adult daughter] had been hurting my son [H.H.] and to you both house tenant or visitor if one more hair is touched on any child in the twisted abusive house everybody will know who I am and you will meet my craziest hommies I promised like a snake in [the] dark we will pay you a visit and then it's out of my hands so please respect me and mine like I did you and yours don't color the brains of 10/12 yr. olds that's childish you have them for the cash to keep the crazy train rollin along You have been very sloppy abusing little ones ri[ght] out in the open. Or as you said exposure. You been exposing your whole fucked rotten way of life calm down and sip some wine maybe take a zanax [sic]. You mite hurt someone you really love. . . . " K.F. said father's threats and texts made her cautious.
The court found good cause to issue a temporary restraining order and continued the section 366.26 hearing to June. 7. Section 366.26 Hearing
Mother had a new attorney by the time proceedings resumed, and the attorney moved for mistrial. The court found no basis for granting a mistrial, but continued the matter to allow counsel the opportunity to confer with her client and investigate some information mother just recently provided.
In September, the minors' counsel declared a conflict with respect to Ju.F. and V.P. This prompted a mistrial, and the court appointed separate counsel Ju.F. and V.P. The section 366.26 hearing, and the hearing on a permanent injunction, were continued to October.
From September to October, parents continued to regularly visit the minors. However, the social worker complained Ju.F. and V.P. were making unauthorized phone calls to their mother during transit to and from visitation, and the mother's voice caused H.H. and R.H. to cry and scream. According to the visitation monitors, mother responded to the unauthorized phone call rule by becoming confrontational and argumentative with staff.
The social worker reported parents had been difficult for the past few weeks. Mother was aggressive, and father was passive-aggressive. Although the visitation center's staff had attempted to work with parents, they did not seem to care. Their behavior had disrupted other clients, and it seemed to have a negative effect on Ju.F. and V.P.. 8. Second Section 366 .26 Hearing
The second section 366.26 hearing was carried out over several days in October. The court admitted the social worker's section 366.26 report and eight addendum reports.
Ju.F. had filed a section 388, subdivision (b) petition to testify about the sibling relationship. The court granted Ju.F.'s request, and the parties agreed to take his testimony out of order and outside parents' presence.
Due to technical difficulties, the court could not take testimony in chambers and parents were ordered to leave the courtroom for Ju.F.'s testimony. The court ordered them to appear the following morning, and arranged for there to be a readback of Ju.F.'s testimony then.
Ju.F. told the court he understood what terminating parents' parental rights would do to his legal relationship with his siblings, and he did not want them to be adopted. Ju.F. testified he gets up early to be with H.H. and R.H. before school, and he makes time to spend with them after school. He did not believe it would be good for them to be separated from him and V.P.
In addition, Ju.F. had concerns about K.F.'s care and supervision. Ju.F. said he had come home from school to find H.H. and R.H. outside without adult supervision. Ju.F. asserted K.F. punishes H.H. by putting soap in his mouth and spanking him. H.H. has started to use the F-word, and he cries when he is spanked. Plus, Ju.F. thought R.H. got special treatment while H.H. gets punished. Ju.F. also reported that K.F. and her adult children frequently talk about parents, and there are numerous arguments in the household.
Ju.F. said H.H. and R.H. are excited when mother and father arrive for their visits. The minors run to the door, giggle, and call them mama and dada. Mother brings food, games, and presents for the children, and she plays with all of them. According to Ju.F., H.H. tells mother he loves her, especially at the end of the visits. H.H. is sometimes sad at the end of the visits, but mother makes him feel better.
Ju.F. further reported that H.H. and R.H. are excited to see V.P. They play with him and tell him they love him. Ju.F. said V.P. moved out of K.F.'s home because the adults yelled at him and V.P. "got tired of it." Ju.F. said, "I just let them yell at me and I don't really express it afterwards."
Ju.F. said K.F. had once threatened to throw him out of the house. He also heard K.F. tell a friend she would adopt H.H. and R.H. and then send them to other relatives. Ju.F. feared he would not see H.H. and R.H. if that happened. Ju.F. told the court K.F. and his maternal grandmother do not get along, and if he lived with his maternal grandmother, his relationships with extended family members would be improved.
The next morning, parents failed to show up for a readback of Ju.F.'s testimony. When the hearing resumed in the afternoon, parents were not present and their attorneys moved for a continuance. Although the attorneys represented their clients were having transportation problems, the court found no good cause for a continuance
Later, father contacted the court during a break and requested a continuance, which was joined by mother and father's counsel. The court denied the motion. --------
When the hearing continued, K.F. testified. She first explained why V.P. had gone to live with his paternal grandfather. V.P. had been diagnosed with attention deficient/hyperactivity disorder, posttraumatic stress disorder, and allergies and asthma, all of which caused behavioral problems. K.F., an elderly woman, could not care for all four children with a baby.
As for Ju.F.'s concerns about her parenting, K.F. admitted putting toothpaste, not soap, in V.P.'s mouth as a form of punishment, but she testified she would stop if told to by the social worker. She denied spanking H.H., but admitted tapping him on the diaper. She also denied telling a friend she would give H.H. and R.H. to someone else if she adopted them.
K.F. expressed willingness to enter into a formal agreement to ensure H.H. and R.H. continued to visit Ju.F. and V.P. after the adoption. She also promised to take a vacation with all the children.
K.F. also explained the basis for the restraining order against mother. K.F. said mother had come into her house and refused to leave following a monitored visit at a nearby park. H.H. cried while K.F. was holding him. Mother refused to leave and demanded to hold him. K.F. said no, and mother head-butted K.F. in the nose and mouth. Her adult children intervened and mother left. K.F.'s front teeth fell out two days later.
Father's past verbal threat to come into her house during the night, and his subsequent threatening texts, made her cautious and worried.
The social worker testified H.H. and R.H. were generally adoptable. They had no physical disabilities or developmental delays. The social worker acknowledged the bond between the four siblings, and she believed continued contact was in their best interests. She believed V.P., the only sibling living outside K.F.'s home, would continue to visit his siblings if mother and father's parental rights were terminated. The social worker pointed to K.F's current efforts to facilitate sibling visits as a good indicator of her future behavior.
As for parents, the social worker agreed they regularly and consistently visited the minors, and the minors were excited to see them. Parents bring snacks, food, toys and activities for the visits. They change the minors' diapers and discipline them when needed. At the end of the visits, mother and father hug the minors and say, "I love you."
The social worker expressed concern about Ju.F.'s allegations about K.F.'s disciplinary methods, and watchfulness, but the social worker said she would investigate the claims and work with K.F. on improving her parenting skills. In the end, the social worker recommended termination of mother and father's parental rights, and adoption for the minors.
K.F.'s adoption home study had been completed, and the social worker had interviewed everyone in the household. There were no concerns regarding placement. In addition, the social worker did not believe H.H. and R.H.'s relationship with their older siblings outweighed the benefit of a permanent, adoptive home.
Ju.F.'s maternal grandmother testified all four of mother's children were well-bonded to each other, and they wanted to be together. She was concerned about the other adults in K.F.s household, and she accused K.F.'s daughter of drug use. Maternal grandmother said she had not raised these concerns earlier because she feared K.F. would no longer allow her to visit the minors.
The court admitted SSA's exhibits into evidence, and continued the hearing to the following day. 9. Continued Section 366 .26 Hearing
Parents failed to appear the following morning. Parents' attorneys requested a continuance to permit their client's to give tesitmony. The court found no good cause for a continuance, denied the request, and asked for the parties' arguments.
However, the court later reversed itself and agreed to allow mother and father to testify on their own behalf, if they appeared for the afternoon session. Parents did not appear that afternoon, and the court continued the matter to the following day.
The next morning, parents were not present when the court called their case. Their attorneys moved for a continuance. The court denied the motion, stating, "Yesterday the court granted one last opportunity for mom and dad to be present, and it has been confirmed that both of them were informed that they needed to be here today at 11:00 to allow them both one last opportunity to testify in this [section] 366.26 hearing. Given that they are not here again the court is going to proceed."
SSA argued H.H. and R.H. were generally adoptable, which made termination of parental rights unavoidable absent the application of a section 366.26, subdivision (c)(1) statutory exception. SSA asserted the parental bond, and the sibling bond exceptions, did not apply here. H.H. and R.H.'s counsel agreed.
Parents' attorneys argued the parental and sibling bond exceptions applied. As for the parental bond exception, parents pointed to their regular visitation and contact with the minors. They asserted the minors would benefit from a continued relationship with them. (§ 366.26, subd. (c)(1)(B)(i).)
Parents also argued adoption would substantially interfere with H.H. and R.H.'s sibling relationships, and the minors' best interests would be served by maintaining those sibling relationships. (§ 366.26, subd. (c)(1)(B)(v).)
Parents objected to the issuance of a permanent restraining order on grounds the incidents were atypical and remote.
10. Ruling
The court found by clear and convincing evidence H.H. and R.H. were "specifically and generally adoptable" for all the reasons given by the social worker.
As for the parental bond exception to the termination of parental rights, the court characterized mother and father's relationship with the minors as nonparental. The court stated, "[I]t is true that the parents do provide the children with attention, physical care, nourishment, comfort, affection during these visits. However, this is not a relationship that arises out of a day-to-day interaction or companionship or shared experiences. The only shared experience they have are these friendly visits in the park or at a controlled environment that the social workers have set up. [¶] At best the relationship between these two minors and the parents is one of a friendship."
The court also credited K.F. with helping to maintain what parental bond existed. The court said, "H[.H.] and R[.H.] have lived the majority of their lives, which is quite short, one is almost three, the other is about two, with [K.F.]. And it is perhaps thanks to the caretaker that these children do call their mom and dad mom and dad."
With respect to the sibling bond exception, the court acknowledged the depth of the bond between the four siblings. However, as the court noted, this strong bond had developed during a period when the minors were removed from mother and father's custody. Again, the court credited K.F. by stating, "And it is due to the caretaker's work in keeping these grandchildren together through the visits, it is credit to [K.F.] that his has all happened . . . ."
The court did not believe the minors' adoption would substantially interfere with their sibling bond, primarily because K.F. had already taken measures to ensure the siblings enjoyed regular visitation. But assuming otherwise, the court found the benefits of adoption to H.H. and R.H. outweighed the benefit of the sibling bond. The court concluded adoption was in the minors' best interests, and terminated mother and father's parental rights.
The court also found clear and convincing evidence supported the issuance of a permanent restraining order to enjoin mother and father from contacting K.F., her family, or her property. The court cited factors such as the serious physical injury mother caused, and the level of distress father's threats had caused K.F. The court also determined the other members of K.F.'s household, her adult children and grandchild, were at risk.
DISCUSSION
1. Sibling Bond Exception
Mother and father do not challenge the court's adoptability finding, or the court's ruling on the parental bond exception to the termination of their parental rights. Mother and father's sole challenge to the termination of their parental rights is the court's ruling on sibling bond exception.
"Under section 366.26, subdivision (c)(1)(B)(v), if the court finds the child will be adopted within a reasonable time, adoption must be ordered '"unless the court finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child" because "[t]here would be substantial interference with a child's sibling relationship . . . ."' [Citation.] The purpose of this exception is to preserve long-standing sibling relationships that serve as 'anchors for dependent children whose lives are in turmoil.' [Citation.] The sibling relationship exception contains 'strong language creating a heavy burden for the party opposing adoption.' [Citation.]" (In re Isaiah S. (2016) 5 Cal.App.5th 428, 437 (Isaiah S.).)
"The parent has the burden of proving the statutory exception applies. [Citations.]" (In re Elizabeth M. (2018) 19 Cal.App.5th 768, 781 (Elizabeth M.).) "Factors for the court to consider include the nature and extent of the sibling relationship, whether the siblings were raised in the same home, whether they share a close bond[,] and whether continued contact is in the child's best interests, as compared to the benefits of adoption. [Citation.] The court considers the best interests of the adoptive child, not the best interests of other siblings. [Citation.] We apply the substantial evidence standard of review to the court's factual findings regarding the applicability of the sibling relationship exception, 'and the abuse of discretion standard to the court's weighing of competing interests.' [Citation.]" (Isaiah S., supra, 5 Cal.App.5th at pp. 437-438.)
Here, no one disputes the beneficial sibling relationship H.H. and R.H. have with Ju.F. and V.P. Everyone agreed continued sibling visitation was important. However, the first thing to consider is whether terminating parental rights would substantially interfere with the sibling relationship. (In re D.O. (2016) 247 Cal.App.4th 166, 173-174; In re Elizabeth M., supra, 19 Cal.App.5th at p. 782.)
In this case, the juvenile court did not believe the termination of the parents' rights would cause a substantial interference with the siblings' relationship. The record supports this finding.
Ju.F. lived with H.H. and R.H., and there is no indication the situation would change with the termination of parents' parental rights. As noted, the court credited K.F. with preserving sibling contact during the pendency of the proceedings, and nothing indicated she would thwart sibling contact after adopting H.H. and R.H.
Parents asserted the court's rosy prognosis is not supported by the evidence, citing Ju.F. and the maternal grandmother's testimony. However, the court did not find the maternal grandmother to be a credible witness. And, while the court found J.F. credible, the court also realized there were complicated loyalties involved. We do not reweigh the court's credibility determinations. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Moreover, the ultimate question is whether adoption would be detrimental to H.H. and R.H., not to their older siblings. (In re Celine R. (2003) 31 Cal.4th 45, 55.)
In sum, we agree with the juvenile court's assessment of the situation. K.F. had been facilitating regular visitation between the four siblings throughout the pendency of the proceedings, and nothing suggested that would change with the termination of mother and father's parental rights. To the contrary, K.F. is willing to enter into a formal agreement for visitation. Parents fear K.F. will not facilitate sibling visitation once the adoption is final, but their fear is based on pure speculation. Speculation is not evidence. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633 [mere speculation or conjecture cannot support a finding].)
Nonetheless, even assuming the termination of parents' parental rights would result in a substantial interference with sibling visitation, the court must also weigh the child's best interest in continuing the sibling relationship against the benefits of adoption. (Isaiah S., supra, 5 Cal.App.5th at p. 438.) The court may not prevent adoption solely because it might cause detriment to a sibling. (Ibid.) The parent must show the benefit of continuing the sibling relationships was "sufficiently compelling to outweigh the benefit achieved by the permanency of adoption . . . . [Citations.]" (Elizabeth M. supra, 19 Cal.App.5th at p. 782.)
Here, H.H. and R.H. are indisputably adoptable, and there is a statutory preference for adoption under such circumstances. (§ 366.26.) H.H. and R.H. had been in the same relative placement with J.F. for over two years, and even after V.P. left her home, K.F. managed to arrange visitation for the siblings. SSA reported H.H. and R.H. were thriving in K.F.'s care, and the adoption assessment of K.F.'s home and family had been positive. Substantial evidence supports the court's finding the benefits of adoption outweighed any benefit there may be to the sibling relationship from maintaining parents' parental rights.
2. Restraining Order
As noted, the court issued a temporary restraining order prohibiting parents from contacting, annoying, or destroying K.F., her adult children and grandchild, home, or cars. Following the section 366.26 hearing, the court made the order permanent.
Parents challenge the sufficiency of the evidence to support the issuance of a permanent restraining order, and they challenge the inclusion of the other members of K.F.'s household in the order.
SSA first argues parents forfeited any challenge to the restraining order, but we disagree. Mother's appellate counsel joined "[all] relevant issues presented by co-father] . . . and adopt[ed] by reference all the briefing as permitted by California Rules of Court, rule 8.200(a)(5)." There was no forfeiture, but we find mother and father's arguments unpersuasive.
Section 213.5, subdivision (a) allows the juvenile court in a pending dependency to issue orders "'(1) enjoining any person from molesting, attacking, striking, sexually assaulting, stalking, or battering the child or any other child in the household; (2) excluding any person from the dwelling of the person who has care, custody, and control of the child; and (3) enjoining any person from behavior, including contacting, threatening, or disturbing the peace of the child, that the court determines is necessary to effectuate orders under paragraph (1) or (2). A court . . . may simultaneously issue an ex parte order enjoining any person from contacting, threatening, molesting, attacking, striking, sexually assaulting, stalking, battering, or disturbing the peace of any parent, legal guardian, or current caretaker' of the child." (In re Cassandra B. (2004) 125 Cal.App.4th 199, 210-211 (Cassandra B.).)
As a reviewing court, we view "the evidence in a light most favorable to the respondent, and indulge all legitimate and reasonable inferences to uphold the juvenile court's determination. If there is substantial evidence supporting the order, the court's issuance of the restraining order may not be disturbed. [Citation.]" (Cassandra B., supra, 125 Cal.App.4th at pp. 210-211.)
Viewing the record in the light most favorable to the court's order reveals ample evidence to support the issuance of a permanent restraining order to keep mother and father away from K.F. and the other members of her household. Mother had made harassing phone calls, and sent profanity-laced texts, to K.F. She head-butted and hit K.F., and she caused K.F. to lose her front teeth. K.F.'s adult children had to restrain mother during her attack, and there were minors in the house at the time. Mother's assault on K.F. demonstrated she had the potential to cause serious physical injury with little provocation, and her activities displayed an unpredictable rage.
Father began threatening K.F. within months of the minors' removal. At one point, he appeared at K.F.'s home and threatened to come back during the night and break into her home. Father denied threatening K.F. with a knife, but his credibility is questionable. In addition, father's April 2017 text message threatened not only K.F., but also named the other members of her household. These threats caused K.F. considerable concern.
Mother's assault occurred at K.F.'s home and her adult children intervened. Father had also appeared at K.F.'s home and explicitly threatened her and her adult children and grandchild. This is sufficient to establish the safety of K.F.'s entire family might be jeopardized if they were not included in the restraining order. (See In re N.L. (2015) 236 Cal.App.4th 1460, 1467.) Substantial evidence supports the court's issuance of a permanent restraining order enjoining mother and father from any contact with K.F., and the inclusion of the other members of K.F.'s household is necessary for their safety.
DISPOSITION
The orders are affirmed.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. ARONSON, J.