Opinion
E066887
03-10-2017
In re B.R. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.R. et al., Defendants and Appellants.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant J.R. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant Ja.R. Jean-Rene Basle, County Counsel, Dawn M. Messer, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J253048 & J253049) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant J.R. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant Ja.R. Jean-Rene Basle, County Counsel, Dawn M. Messer, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant J.R. (Father) is the father of N.R. (a female born November 2011) and B.R. (a male born June 2013) as well as five other children (collectively, the children). Defendant and appellant Ja.R. (Sister; a female born October 1998) is the oldest of the children. Father and Sister contend that the juvenile dependency court erred in (1) denying Sister's Welfare and Institutions Code section 388 petition; and (2) failing to find the sibling relationship exception under section 366.26, subdivision (c)(1)(B)(v), applicable to the termination of parental rights. For the reasons set forth below, we affirm the trial court's orders.
The other four children are J.R.J., a male born May 2001; E.R., a male born 2007; D.R., a female born 2008; and J.R., a male born 2009. They are not parties to this appeal.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL HISTORY
A. DETENTION
Plaintiff and respondent San Bernardino County Children and Family Services (CFS) received three referrals in January 2014 regarding the family, which included allegations (1) of domestic violence, physical abuse to Sister by M.A. (Mother), alcohol and substance abuse by Mother; (2) that the children did not have enough food to eat; (3) that Mother took the children to a "known drug house" in Rialto; (4) that the children were not enrolled in school; and (5) that the children were barricaded in the home. When a social worker went to their home, it was dirty and unkempt with very little food for everyone; the children were dirty and did not have clean clothing.
Mother is not a party to this appeal.
The family had recent CFS cases, including a family maintenance plan in 2011. Moreover, a half sister was in permanent placement after a juvenile dependency case from 2011 through 2014, when the Father and Mother (collectively, parents) failed to reunify with her due to not caring for her medical needs and severe neglect. Additionally, there were other referrals from 1992 through 2010, Mother had two DUI convictions in 2010, and J.R. had a battery conviction from 1994.
CFS filed section 300 petitions, pursuant to subdivisions (a) and (j), on January 31, 2014. On February 3, 2014, the juvenile court found a prima facie case for detention of the children.
B. JURISDICTION/DISPOSITION
In the jurisdiction/disposition report filed February 24, 2014, CFS recommended that parents be provided with family reunification services. The children were placed in four different homes, but the children saw each other once a week during visits. Sister and J.R.J. were interviewed. They reported that Mother stayed home with them; Father was not living with the family.
Sister was placed in one home; E.R. and J.R. were placed in a second home; B.R. was placed with J.R.J. in a third home; and N.R. was placed with D.R. in a fourth home. --------
On March 13, 2014, parents each filed a Waiver of Rights (Form JV-190); the juvenile court sustained the section 300 petitions and ordered reunification services.
On July 28, 2014, the juvenile court approved unsupervised visits for parents, to include overnight visits and weekends by approved packet. On August 12, 2014, the court ordered visits to be unsupervised but only ordered overnights or weekends with prior court approval. The social worker was ordered to resubmit an amended packet with modified visitation orders.
C. SIX-MONTH REVIEW
In the six-month status review report filed September 8, 2014, CFS recommended a 60-day trial visit in parents' home with family maintenance services if the trial period was successful. Sister was residing with parents; the other children remained in their foster care placement. Father attended scheduled appointments, was consistent with visits and improved his relationship with the children. There were concerns regarding parents' ability to maintain stable housing as they had moved four times within the past six months. The children were adapting well in their placements. Particularly, N.R. was well bonded with her caregiver, and she looked to the caregiver for comfort and support.
At the October 20, 2014, six-month review hearing, the children were returned to Father's custody under a family maintenance plan. Mother was offered reunification services as she cleared up an outstanding warrant, and the juvenile court authorized Mother to receive family maintenance services upon approval packet. On November 21, 2014, the juvenile court returned custody of the children to Mother as well as Father under a family maintenance plan.
D. 12-MONTH REVIEW
In the 12-month status review report filed April 16, 2015, CFS recommended the children remain with parents, and their juvenile dependency cases continue. The family still struggled to maintain their residence. The school district was citing Mother for low school attendance for J.R.J., Sister, and E.R. Parents also missed or cancelled sessions involving Wraparound services. Sister was assertive, outspoken, and a defender of her siblings. CFS was concerned for the family's future and their ability to remain together.
At the April 20, 2015, 12-month review hearing, the juvenile court maintained the children with parents under a family maintenance plan.
E. SECTION 342/387 PETITION
On July 14, 2015, the family was evicted from their home for failing to pay their rent. Mother reported that Father was not in the home and would be gone for days. The children said they were hungry. B.R. and N.R. (collectively, Minors) did not have clean diapers. On August 12, 2015, Sister called the social worker stressed because she was left alone with the younger children; she asked for help as to what to do with her siblings, who were crying in the background.
On August 17, 2015, CFS filed a section 342/387 petition alleging that parents failed to protect the children, and were unable to provide the basic necessities of life for the children such as food, clothing and shelter.
On August 18 2015, the juvenile court detained the children. Minors were placed together with D.R. and Sister.
Pursuant to the jurisdictional/dispositional report filed September 3, 2015, CFS recommended terminating family reunification services, and the children receiving permanency planning services under PPLA. CFS opined that parents had not benefitted from services, and it would be detrimental for the children to remain in their care. The children remained in their current placement. On September 22, 2015, the juvenile court sustained the allegations in the petitions and terminated reunification services.
In the March 22, 2016, section 366.3 status review report, CFS recommended a section 366.26 hearing be set with a permanent plan of adoption for Minors, and guardianship for the older siblings. Minors remained with their prospective adoptive parents; Sister had been placed in a group home in Riverside County approximately three months prior. Sister would be 18 years old the following year, and she was eager to return to her family home. Minors were bonded with their prospective adoptive parents.
At the March 22, 2016, hearing, Sister was in attendance and informed the court that she was not in agreement with Minors being adopted. Sister preferred that Minors be adopted by a family member because she "would be able to see them and see them grow up." The court noted that it would be up to the adoptive parents to determine visitation with Sister but did note that it was not necessarily true that Sister would not be able to see Minors after adoption. The juvenile court found that it would be in the best interest of Minors to consider the termination of parental rights and a section 366.26 hearing was set. Subsequently, counsel for the children declared a conflict and separate counsel was appointed for Minors.
F. SISTER'S SECTION 388 PETITION AND SECTION 366.26 HEARING
In the section 366.26 report filed July 18, 2016, CFS recommended terminating parental rights and that a permanent plan of adoption be implemented for Minors. B.R. had been residing with the prospective adoptive parents since September 22, 2015, and N.R. had been placed with them since October 7, 2015. Minors were bonded to the prospective adoptive parents, and they looked to them for comfort. The prospective adoptive parents were willing to allow relationships with parents and siblings as long as parents remained stable.
On July 13, 2016, Sister filed a section 388 petition claiming that she and her siblings had a relationship with Minors; she asked that the court not consider adoption for them. The juvenile court ordered a hearing on the section 388 petition for the same date as the section 366.26 hearing. Parents each filed section 388 petitions requesting unmonitored visits and return to their care. Father's section 388 petition was denied; the court ordered a hearing on Mother's petition the same date as the section 366.26 hearing.
In the response to Mother's section 388 petition, filed on August 25, 2016, CFS noted that Mother reported she does not have control over the children and finds it difficult to meet their needs during visits because she was pregnant. Mother gave birth on August 20, 2016. Mother admitted that her bond with Minors was minimal. Mother reported that Minors ask for "'momma (foster mom)'" during visits, and when the foster mother arrives, Minors look to the foster mom for comfort and support.
The social worker also reported that CFS was initially concerned that the sibling bond would be compromised if Minors were adopted. However, it was noted that Minors have spent more time with their foster family than their biological family. CFS stated that Minors have demonstrated a benefit from having stability and structure with the foster family, and CFS opined that a bigger detriment would occur if Minors lost their permanency placement.
On August 25, 2016, the juvenile court denied Mother's section 388 petition finding that it failed to state a change of circumstances, and was not in the children's best interests.
On September 7, 2016, at the combined section 366.26 hearing and hearing on Sister's section 388 petition, Sister testified that she and her siblings regularly visited, sometimes up to 16 hours per week. Minors had never participated in overnight visits with their siblings. Sister stated that she would play with her two younger siblings, watch television, eat, go to the park, and do other activities with them. Minors told Sister that they loved her and the other siblings as well. Sister believed that it was beneficial for her younger siblings to have a relationship with her and the other siblings because they have a strong bond, and she would not be able to see them grow up. Sister has never been her younger siblings' primary caregiver. She admitted the prospective adoptive parents told her that she would be allowed to continue seeing Minors after the adoption. Sister, however, did not trust the prospective adoptive parents. She noted that they had started to change their behavior by missing sibling visits and being less friendly at drop-offs.
After hearing arguments, the juvenile court noted that it believed that there was a degree of bonding between the siblings. However, the court found that the benefits of permanence through adoption outweighed the ongoing contact between the siblings. Accordingly, the court declined to apply the sibling exception to adoption, terminated parental rights, and selected adoption as the permanent plan for Minors.
G. NOTICE OF APPEAL
On September 8, 2016, Father filed his notice of appeal; on September 22, 2016, Sister filed her notice of appeal.
DISCUSSION
A. THE JUVENILE COURT PROPERLY FOUND THAT THE BENEFICIAL EXCEPTION TO ADOPTION DID NOT APPLY
Father and Sister contend that the juvenile court erred in refusing to apply the sibling beneficial relationship exception under section 366.26, subdivision (c)(1)(B)(v).
1. APPLICABLE LAW
At a section 366.26 permanency planning hearing, the juvenile court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Permanent plans include adoption, guardianship, and long-term foster care. (In re S.B. (2008) 164 Cal.App.4th 289, 296.) Adoption involves terminating the legal rights of the child's natural parents, but guardianship and long-term foster care leave parental rights intact. (In re Autumn H. (1994) 27 Cal.App.4th 567, 574.) "'Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child.'" (In re Celine R. (2003) 31 Cal.4th 45, 53.) Adoption, where possible, is the preferred permanent plan. (Autumn H., at p. 573.)
"Adoption must be selected as the permanent plan for an adoptable child and parental rights terminated unless the court finds 'a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [. . .] (v) There would be substantial interference with a child's sibling relationship . . . .' (§ 366.26, subd. (c)(1)(B).) '[T]he burden is on the party seeking to establish the existence of one of the section 366.26, subdivision (c)(1) exceptions to produce that evidence.'" (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).)
"The sibling relationship exception applies where the juvenile court finds that 'substantial interference with a child's sibling relationship' is a 'compelling reason' to conclude that adoption would be detrimental to the child. In making this determination, the court should take into consideration 'the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption.' (§ 366.26, subd. (c)(1)(B)(v).)" (Bailey J., supra, 189 Cal.App.4th at p. 1317.) The mere existence of a sibling relationship is not enough to apply the exception; the relationship must be "sufficiently significant" to cause detriment upon its termination; otherwise, there is "no substantial interference" with the sibling relationship. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952 (L.Y.L.).)
2. STANDARD OF REVIEW
Appellate courts have traditionally applied either the substantial evidence test or the abuse of discretion test in considering challenges to juvenile court determinations of whether one or more of the statutory exceptions to adoption preference applies. (In re Scott B. (2010) 188 Cal.App.4th 452, 469.) There is little, if any, practical difference between the two. (Ibid.) As explained in In re Jasmine D. (2000) 78 Cal.App.4th 1339: "'[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only "'if [it] find[s] that . . . no judge could reasonably have made the order that he did.'"'" (Id. at p. 1351.)
More recently, courts have applied a composite standard of review, recognizing that the determination whether an adoption exception applies entails both factual and discretionary determinations. (Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315 [substantial evidence standard applies to court's factual determination whether a beneficial relationship exists, and abuse of discretion standard applies to court's discretionary determination whether there is a compelling reason to apply the exception]; accord, In re K.P. (2012) 203 Cal.App.4th 614, 621-622; In re J.C. (2014) 226 Cal.App.4th 503, 530-531.)
3. ANALYSIS
In this case, the record shows why the sibling bond exception does not apply. As provided ante, Minors were removed from their family at a very young age; N.R. was two years old and B.R. was seven months old. They had lived with their current prospective adoptive family for almost one year by the time of the section 366.26 hearing. While the siblings had visited together regularly since removal from parents' care, Minors had never participated in overnight visits with their older siblings. Although the children had a bond, it was not "sufficiently significant" to cause detriment upon its termination. (L.Y.L., supra, 101 Cal.App.4th at p. 952.)
Moreover, when considering the sibling bond exception, the juvenile court may consider the prospective adoptive parents' intent to maintain contact between the children. (In re Daisy D. (2006) 144 Cal.App.4th 287, 293; In re Salvador M. (2005) 133 Cal.App.4th 1415, 1422.) In this case, the prospective adoptive parents were committed to ongoing sibling visitation as demonstrated by their facilitation of sibling visits during the case. Sister's claims to the contrary are not supported by the record. However, even if the prospective adoptive parents would somehow interfere with visitations between the siblings, "even if a sibling relationship exists that is so strong that its severance would cause the child detriment, the court then weighs the benefit to the child of continuing the sibling relationship against the benefit to the child adoption would provide." (L.Y.L., supra, 101 Cal.App.4th. at pp. 952-953.)
Here, nobody disputes that Minors are bonded with Sister. At the hearing, Minors' counsel agreed with Sister's counsel "that there are unusual circumstances here because there's a great deal of contact, or greater than the average contact with the birth family. [¶] And I sympathize with the older siblings. I listened to [Sister] yesterday." Minors' counsel, however, recommended adoption for Minors because of the need for stability and the strong bond they had developed with the prospective adoptive family. Counsel noted: "My clients have been in the prospective adoptive home for a year now. They're bonded not only with the immediate prospective adoptive family, but with extended family, including grandparents, uncles, aunts, and cousins. These are all people that are important to these children. [¶] The children are with their adoptive family every day, all day long, with the exception of the Saturday visits. And their physical and emotional dates [sic] are met by the prospective adoptive family, but [N.R.] has some developmental delays, which makes her closer in age, I guess, developmentally to [B.R.]."
After hearing all the testimony and arguments from counsel, the juvenile court noted that the siblings had a bond. However, the court found "that the ongoing contact would be something that is compared to the permanence from adoption, would not be in [Minors'] best interest[s], and that adoption, given its permanence, given its stability to [Minors], would outweigh that ongoing contact." The court, however, acknowledged that it did not have evidence that any ongoing contact would be stopped with adoption. The court went on to note that "given the Legislature's preference for adoption when possible, that there is a significant burden placed on the party that opposes adoption. And there needs to be evidence that it will be detrimental to the children due to substantial interference with the sibling relationship. And the Court does not find that there's been evidence that establishes that here." The court found that "it would be better for [Minors] to be able to receive the benefit of a permanent home through adoption."
In sum, the evidence shows that the best interests and long term emotional interests of Minors are better served by adoption. (§ 366.26, subd. (c)(1)(B)(v).) They have bonded with the caregiver, calling her mom. Minors' biological mother acknowledged that the children ask for "momma," their foster mother, during visits. Moreover, when the foster mother arrives, Minors quickly look to her for comfort and support. To impose a less permanent plan upon Minors, such as legal guardianship, would expose Minors to many more years of foster care and possible placement changes. Here, Minors had a chance at joining a loving and permanent home where they were already loved and accepted. After parental rights are terminated, the objective is permanence and stability, best advanced through adoption. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Therefore, the court reasonably determined there was no compelling reason to apply the sibling relationship exception.
B. THE JUVENILE COURT PROPERLY DENIED SISTER'S SECTION 388 PETITION
Sister, with Father joining, claims that the court abused its discretion in denying her section 388 petition.
"Section 388 allows a person having an interest in a dependent child of the court to petition the court for a hearing to change, modify, or set aside any previous order on the grounds of change of circumstance or new evidence." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) "'[S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence' is required." (Ibid.) It "shall set forth in concise language any change of circumstance or new evidence that is alleged to require the change of order or termination of jurisdiction." (§ 388, subd. (a).) Under section 388, subdivision (b), a sibling has the right to file a petition to assert the sibling relationship when a permanency plan for the adoptive child is considered. The sibling must show that the proposed order is in the best interest of the adoptive child. (§ 388, subd. (b)(4)(A)-(D).)
"We review the juvenile court's summary denial of a section 388 petition for abuse of discretion." (In re Anthony W., supra, 87 Cal.App.4th at p. 250; see also In re Marcos G. (2010) 182 Cal.App.4th 369, 382.) A section 388 petition is addressed to the sound discretion of the juvenile court, and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
In arguing that the juvenile court erred in denying her section 388 petition, Sister's arguments mirror those argued by Father regarding application of the sibling relationship exception. As discussed in detail ante, although the siblings shared a bond, it was still in Minors' best interests to have the security and stability of an adoptive family, especially in light of their young ages. In fact, the social worker noted that Minors had already demonstrated a benefit from having stability and structure. Not surprisingly, Minors were already bonded with the prospective adoptive parents.
Therefore, the juvenile court found that the benefit of permanence through adoption outweighed the ongoing contact between the siblings, and denied Sister's section 388 petition. The trial court's denial of the petition was not an abuse of discretion.
DISPOSITION
The trial court's orders (1) finding that the sibling beneficial relationship exception under section 366.26, subdivision (c)(1)(B)(v) did not apply; and (2) denying Sister's section 388 petition are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: HOLLENHORST
Acting. P. J. SLOUGH
J.