Opinion
E067064
03-30-2017
In re J.M. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.C., Defendant and Appellant.
Donna P. Chirco, by appointment of the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J256842-47, J257861) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher Marshall, Judge. Affirmed. Donna P. Chirco, by appointment of the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Dawn M. Messer, Deputy County Counsel, for Plaintiff and Respondent.
In October 2014, six children (J.M., D.M., S.C., G.M., B.C., and B.M.), came to the attention of the San Bernardino Children and Family Services (CFS) following an incident in which mother's significant other, the father of the youngest child, fired shots in the back yard of the family residence, resulting in his arrest. CFS filed a dependency petition based on the shooting, with allegations relating to the filthy conditions of the house, which had no running water, as well as the parents' unsafe lifestyle (with a large marijuana grow in the back yard), excessive corporal punishment, and sexual abuse of the oldest daughter by the incarcerated stepfather.
An after-born child, M.M., was later removed from mother's custody, and new allegations of sexual abuse of the oldest daughter by her incarcerated stepfather, as well as excessive discipline, came to CFS's attention. Reunification services were provided to mother and the father of some of the children. After eighteen months of services, mother still lacked a stable residence, resulting in termination of services and, eventually, the termination of parental rights to five of the children who were in three different placements. Mother appeals.
On appeal, mother contends that the juvenile court erred in terminating her parental rights because (a) there existed a beneficial parent-child relationship with her children; (b) the court failed to consider the wishes of the children; and (c) adoption would interfere with sibling relationships. We affirm.
BACKGROUND
In October 2014, CFS responded to a report that J.M., Sr., father of J.M., Jr., age 2, had fired shots in the backyard. J.M., Sr., was arrested after police arrived and found him under the influence of methamphetamine and in possession of two guns. There were six children present when CFS arrived after the shooting: J.M., Jr., a boy, age 2; D.M., a girl, age 4; S.C., a boy, age 5; G.M., a girl, age 9; B.M., a girl, age 11; and B.C., a boy, age 12. The back yard of the residence comprised a large marijuana grow, which was licensed to a third party, and more pot was found in containers in an SUV parked in the front yard. The house was infested with roaches and lacked running water. A pit bull patrolled the property, although mother denied knowledge of either the dog (which B.C. indicated was the family's dog) or the pot. B.C.'s father died in 2005. The father of B.M., G.M., and S.C. could not be located. While investigating the shooting incident, B.M., disclosed she had been sexually abused by her stepfather, J.M., Sr., and had been physically abused and neglected by her mother.
A dependency petition was filed as to all six children, alleging various allegations of neglect, unsafe lifestyle, and failure to supervise (Welf. & Inst. Code, § 300, subd. (b)), sexual abuse of B.M. (§ 300, subd. (d)), and that the parents of all but J.M., Jr., had failed to make provisions for the children and the whereabouts of the parent were unknown. At the detention hearing, all six children were detained in the home of a paternal aunt. Subsequently, the petition was amended to include the allegations of sexual abuse and excessive punishment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
The minute order indicates the children were "removed" from the parents' custody at the detention hearing. However, prior to establishing jurisdiction, a court lacks authority to remove a child from parental custody. Instead, section 319 authorizes detention of the child at the initial hearing.
On November 17, 2014, mother executed a waiver of her trial rights, and submitted on the petition, based on the social worker's reports. The court made true findings as to most of the allegations pursuant to section 300, subdivision (b), but dismissed all of the allegations made pursuant to section 300, subdivision (d); the allegation pursuant to section 300, subdivision (g) was found true as to S.C., B.M., and G.M. only. All of the children were declared dependents of the court, custody was removed from the parents, and the children were ordered maintained in the home of their paternal aunt. The court approved the case plan and ordered the mother and the father of B.M., G.M. and S.C. to participate in reunification services. Services were denied for J.M., Sr., due to his incarceration of an undetermined length.
After the initial removal of the children, some of the siblings displayed troublesome behaviors. B.M. again disclosed sexual abuse by her stepfather, although after her initial report, the other children denied any sexual abuse or physical abuse. B.M. had undergone a temporary detention pursuant to section 5150, and her relative caretaker requested that B.M. be removed from her home. In the meantime, mother gave birth to M.M. in December 2014. B.M. also disclosed that mother had hit her at times, causing a nose bleed on one occasion.
Based on these allegations, the social worker decided it was necessary to take J. M., Jr. away from mother, and filed a subsequent petition pursuant to section 342 alleging the sexual abuse and corporal punishment. In addition, an original dependency petition was filed as to the infant M.M. M.M. was placed in the home of a non-relative extended family member. On January 28, 2015, mother again submitted on the basis of the reports, and the subsequent petition was found true. The proposed reunification plan was adopted and the mother was ordered to participate. As to the infant, mother also submitted on his petition, so the court sustained that petition, as well.
A few days after the date of the hearing on the subsequent petition, CFS filed a supplemental petition as to G.M. pursuant to section 387 because her caretaker (the paternal aunt) was no longer able to care for her due to her emotional and behavioral issues, which included assaultive behavior. G.M. was placed in an Intensive Treatment Foster Care Home. The court found that the prior disposition was ineffective in protecting the child, and that G.M. was a person described by section 387. On February 4, 2015, a section 387 petition was filed as to B.M., on the ground she was having serious emotional and behavioral issues, she had been committed previously pursuant to section 5150, and that her caretaker was also unable to handle her behavior. B.M. was placed in a Level 8 Group Home. The court made a true finding as to this petition.
A month later, another subsequent petition was filed pursuant to section 342, based on disclosures made by B.C., S.C., B.M. and G.M., regarding mother's inappropriate discipline. Apparently, mother had also struck both B.M. and B.C. with a belt. On April 6, 2015, the court made a true finding on this subsequent petition. The jurisdiction/dispositional report for the hearing on the section 342 petition also indicated that B.C. had also been subjected to a brief involuntary commitment pursuant to section 5150 after he disclosed that he heard voices that told him to hurt anyone around him.
In April 2015, the paternal aunt indicated she needed to focus on the mental health needs of B.C., and could no longer care for S.C., D.M. and J.M., Jr., so a section 387 petition was filed as to S.C., D.M., and J.M., Jr.
A six month Status Review Report filed in May 2015 indicated mother was participating in her reunification plan, was employed, and was living with her mother to save money for an apartment. Mother attended weekly visits with the children. At one visit, B.M. became hysterical and placed herself in jeopardy by running after the car in which her sister, G.M., was riding when leaving after the visit. The report indicated that S.C., D.M. and J.M., Jr., were placed together in a foster home and were doing well. B.C. was still placed with his paternal aunt, and had been diagnosed with schizophrenia, following a hospitalization. B.M. remained in a restrictive group home, and G.M. was having behavior problems that would mean another change of placement shortly. The mental health and behavioral issues of the older children prevented placing all the children together, because of the risk to the younger children. At the hearing on May 18, 2015, the court extended services for another six months, and authorized eight-hour unsupervised visits between the mother and the children.
The original minute order adopted the social worker's recommendation for visitation four times per week for four hours. However, the recommendation was a typographical error, so visitation was subsequently modified to eight hours, unsupervised.
The next review report was submitted in October 2015, prior to the 12-month hearing and recommended termination of reunification services. In the social worker's opinion, the prognosis was poor for reunification, despite the fact that mother had completed all the components of her case plan, because she had failed to obtain stable housing for herself and the children. Because the condition of housing was one of the reasons the children had been removed in the first place, the social worker was concerned that mother would not be able to maintain an adequate home for them. The social worker was also concerned about mother's inability to transport the children to school, medical appointments or to dental appointments.
The report indicated that B.M. and G.M. were receiving mental health treatment, including medications, and their behaviors had improved. Likewise, B.C.'s mental health was being addressed with a psychiatrist. J.M., Jr., S.C., and D.M. were placed in a foster where they had adjusted well and they were happy there. Mother had unsupervised visits with the children on a weekly basis. Mother picked up the children for visits but lacked a drivers' license. The social worker informed mother that if she used another family member to transport her or the children for visits, they would have to undergo criminal background checks. Mother did not turn in any paperwork for any third person to drive for mother.
In November 2015, G.M. was prescribed psychotropic medication to assist in improving her behavior. Around the same time, mother had a visit with the children, during which B.C. had an episode in which he became extremely anxious and disclosed that he heard the voices of his deceased father and a friend who had committed suicide telling him to harm his relative caretaker.
On November 30, 2015, M.M.'s SART (Screening, Assessment, Referral and Treatment, for children with emotional or behavioral issues, or autism spectrum disorder) therapist informed the social worker that she had concern about mother and the baby, M.M., because mother did not interact with the baby. The therapist noted that the child was clearly not bonded to mother and had a difficult time adjusting to mother when the foster mother was not around. The following week, mother missed a visit; when the foster mother called to see if mother would be making the visit, she learned mother had suffered a miscarriage, although no one was aware she was pregnant at the time. Mother also missed the visit scheduled for the following week, explaining she had hurt her knee. The children's caretaker indicated it was harder and harder to explain to the children why the mother did not show up for the visits.
On December 16, 2015, the court conducted the 12-month review hearing. The court found that mother had made progress in resolving the problems that led to the children's removal, and that reunification remained a substantial probability, so it extended reunification services for another six months. Mother had completed anger management and had started family therapy with the children. Mother still needed housing. Mother was granted unsupervised visitation for eight hours, one time per week. In the 18-month review report, the children reported that while visits were good overall, they were boring because their mother spent most of her time sleeping or talking on her phone during the visits.
In January 2016, B.C. did not want to go see his mother although he wanted to see his siblings; he had not seen his mother since December 2015. M.M., who was two years of age by the time of the section 366.26 report, cried every time he had to leave the foster mother's side in order to attend SART with her. The children were strongly attached to their caregivers
By May 2016, mother's interaction with the children at visits had not improved, although the children—with the exception of M.M.—were excited to see her. The three oldest children (B.C., B.M., and G.M.) were upset to learn that their mother was pregnant again. The oldest daughter, B.M., got the children involved with games, attended to M.M. when he cried, and tried to engage mother. In June 2016, mother again failed to interact with her children during visitation, and the visit more resembled a sibling visit than a parent-children visit.
For the 18-month review, a permanent plan of long-term foster care was recommended for mother's daughters, G.M. and B.M., and a permanent plan hearing was recommended for the other five siblings, with a goal of adoption. The two girls were adjusting well in their placements. S.C., J.M., Jr., and D.M. were still placed together in the same home, and had adjusted well. Mother had only visited the children seven times during this period and had cancelled three weekly visits. The children found the visits boring because mother either slept or talked on her phone. At the end of visits, B.M. and B.C. cried when their siblings left.
In April 2016, CFS submitted additional information to the court, reporting that at an unannounced visit to mother's residence on March 30, 2016, at 11:00 a.m., mother answered the door in her pajamas and would not allow the social worker to enter, claiming that the floors were being cleaned. Mother had missed an appointment with the social worker on March 28, 2016, despite the fact arrangements had been made to transport mother. The informational report also noted that B.C. was depressed and felt guilty that he and his siblings could not return home, because his mother had told him that the reason she could not afford adequate housing was that her funds had been reduced when the children were removed from her custody.
At the 18-month review hearing, the court found that mother had not completed family counseling, because M.M.'s SART services had been terminated due to mother's failure to attend. The court also determined that mother had not yet found housing and stable employment. The court terminated mother's reunification services and set a section 366.26 hearing for M.M., B.C., J.M., Jr., S.C. and D.M., while also ordering a plan of long term foster care for G.M. and B.M. The court also reduced mother's visitation to twice per month.
The section 366.26 report recommended termination of parental rights as to B.C., J.M., Jr., and D.M., S.C., and M.M. B.C. had begun to verbalize the trauma he experienced in mother's care and the anger he felt towards her, but had a difficult time being separated from his siblings, especially his brother. S.C. B.C.'s behavioral issues had improved under the care of his paternal aunt. J.M., Jr., D.M., and S.C. were strongly attached to their caregivers, and D.M. asked her foster mother if she could call the foster mother "mommy."
B.C. was placed in the home of a paternal aunt, while S.C., D.M. and J.M. Jr., were placed together in the home of non-relatives, and M.M. was placed in the home of his half-sibling's paternal aunt and uncle. M.M. referred to his caretakers as "Ma" and "Pa." The caretakers of S.C., D.M., and J.M., Jr., were elderly, and had health issues, but the caretakers had a backup plan with their adult children. The adult daughter of the caretakers and her partner were excitedly willing to adopt all the children, so the social worker recommended adoption of S.C., D.M., and J.M., Jr., by this couple.
During this time period, the children did not cry when they left after visiting with mother, and did not have any behavior issues after visits. Mother did not make an effort to engage the children during visits, so the social worker felt the children did not have a bond with her.
Prior to the section 366.26 hearing, separate minors' counsel was appointed to represent B.M. and G.M. because they were opposed to the adoption of their siblings. At the 366.26 hearing, counsel for S.C., D.M., J.M., Jr., B.C., and M.M. indicated that all five children agreed with adoption. The caregivers for all the children knew each other and were determined to keep the sibling relationships intact with continuing contact. After the close of evidence and arguments, the court found that S.C., D.M., J.M., Jr., B.C., and M.M. were adoptable and that there was no evidence of a beneficial parent-child relationship.
Mother appealed.
DISCUSSION
1. The Court Properly Determined that Terminating Parental Rights Would Not Be Detrimental to the Children.
Mother argues that she and the children had a strong bond that arose from birth and continued to develop and remain strong until the date of the section 366.26 hearing. Thus, mother argues that the parental bond exception should have been applied. We disagree.
Section 366.26, subdivision (c)(1), provides that if the court determines, based on the [adoption] assessment and any other relevant evidence, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption, unless one of several statutory exceptions applies. Once the court determines a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental under one of the exceptions listed in section 366.26, subdivision (c)(1)(B). (In re Zachary G. (1999) 77 Cal.App.4th 799, 809, citing In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) We must affirm a trial court's rejection of the exceptions if the ruling is supported by substantial evidence. (In re Zachary G., supra, at p. 809.)
One such exception applies when the court finds a compelling reason for determining that termination would be detrimental to the child because the 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).) This exception applies only when the relationship with a natural parent 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. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A parent's "frequent and loving contact" with the child was not enough to sustain a finding that the exception would apply, when the parents "had not occupied a parental role in relation to them at any time during their lives." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) The determination of whether a beneficial parent-child relationship exists is reviewed for substantial evidence. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
Application of the beneficial parent-child relationship exception consists of a two-prong analysis. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449-450.) The first prong inquires whether there has been regular visitation and contact between the parent and child. (Id. at p. 450.) The second asks whether there is a sufficiently strong bond between the parent and child that the child would suffer detriment from its termination. (Ibid.)
"The first prong is quantitative and relatively straightforward, asking whether visitation occurred regularly and often." (In re Grace P. (2017) 8 Cal.App.5th 605, 612.) It is not an inquiry into the quality of visitation; this prong simply evaluates whether the parent consistently had contact with the child. (In re I.R. (2014) 226 Cal.App.4th 201, 212 ["Regular visitation exists where the parents visit consistently and to the extent permitted by court orders."].)
The second prong involves a qualitative, more nuanced analysis, and cannot be assessed by merely looking at whether an event, i.e. visitation, occurred. (In re Grace P., supra, 8 Cal.App.5th at p. 613.) It requires a parent to prove that the bond between the parent and child is sufficiently strong that the child would suffer detriment from its termination. (In re Aaliyah R., supra, 136 Cal.App.4th at p. 450.)
A parent must also show that he or she occupies a "parental role," although it is not necessary for a parent to show day-to-day contact and interaction. (In re S.B. (2008) 164 Cal.App.4th 289, 299; In re Casey D. (1999) 70 Cal.App.4th 38, 51.) As the court observed in In re S.B., if that were the standard, the rule would swallow the exception. (In re S.B., supra, at p. 299.) Instead, the court determines whether the parent has maintained a parental relationship, or an emotionally significant relationship, with the child, through consistent contact and visitation. (Id. at pp. 298, 300-301.)
"To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466, citing In re Lorenzo C. (1997) 54 Cal.App.4th 1332, 1342.) "The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs." (In re Angel B., supra, 97 Cal.App.4th at p. 467, fn. omitted; see also, In re Bailey J., supra, 189 Cal.App.4th at p. 1315.)
In the present case, mother worked towards and achieved unsupervised visits with the children on a weekly basis, for eight hours, at the 12-month review stage. Subsequently, visitation became problematic because mother's driver's license was suspended, and she failed to obtain CFS approval for third parties to transport her or the children for visits. Her visits became less regular thereafter, so that by the time of the section 366.26 report, she had only visited the children seven times between December 20, 2015, and February 21, 2016. Had mother demonstrated greater motivation to improve her transportation situation, we might be able to find that she visited regularly. Here, mother was granted liberal visitation for extended periods of time and failed to take advantage of the visits.
Additionally, by the time of the 18-month review report, the children reported that while visits were good overall, they were boring because their mother spent most of her time sleeping or talking on her phone during the visits. In January 2016, B.C. did not want to go see his mother although he wanted to see his siblings, and he had not seen his mother since December 2015. As for M.M., who was two years of age by the time of the section 366.26 report, he cried every time he had to leave the foster mother's side in order to attend SART sessions with her. The children were strongly attached to their caregivers.
By May 2016, mother's interaction with the children at visits had not improved, although the children—with the exception of M.M.—were excited to see her. The three oldest children (B.C., B.M., and G.M.) were upset to learn that their mother was pregnant again. The oldest daughter, B.M., got the children involved with games, attended to M.M. when he cried, and tried to engage mother. In June 2016, mother again failed to interact with her children during visitation, and the visit more resembled a sibling visit than a parent-children visit.
Under these circumstances, we cannot say that mother's relationship with her children was one that promoted the well-being of the children to such a degree as to outweigh the wellbeing the children would gain in permanent homes with adoptive parents. Mother did not demonstrate the existence of a beneficial parent-child relationship of sufficient strength to overcome the preference for adoption.
2. The Court Appropriately Considered the Children's Wishes.
Mother argues that the order terminating her parental rights must be reversed because the court failed to consider the wishes of the children. We disagree.
Welfare and Institutions Code, section 366.26, subdivision (h)(1) provides that at all proceedings the court shall consider the wishes of the child to the extent ascertainable, prior to terminating parental rights. (In re Amanda D. (1997) 55 Cal.App.4th 813, 820.) The purpose for this provision is to explore the child's feelings through social worker's reports or testimony, from which the court can infer his or her wishes regarding the issues confronting the court. (In re Leo M. (1993) 19 Cal.App.4th 1583, 1592.)
Thus, even where children have expressed a wish to maintain contact with a parent, the court is required to act in the children's best interests. (In re C.B. (2010) 190 Cal.App.4th 102, 125.) In other words, a child's wishes are not determinative of his or her best interests. (In re In re Melissa S. (1986) 179 Cal.App.3d 1046, 1058.)
Mother argues that the record does not show that any of the children were ever interviewed and asked if they understood what adoption was or how it would affect their relationship with their mother or siblings. However, at the section 366.26 hearing, counsel for the minors stated she had met with the children in their different placements, and that "they are in accord with the recommendation." While it is true the social worker's reports omit specific information as to the children's views on adoption, the information provided in the reports supports the representations of counsel insofar as the children appeared strongly bonded and thriving with their respective caretakers. There was no error.
3. Termination of Parental Rights Would Not Interfere with Sibling Relationships.
Mother argues that the order terminating her parental rights to the children should be reversed because the order terminating parental rights would substantially interfere with the sibling relationship. We disagree.
As an exception to a finding of adoptability, termination of parental rights may be found to be detrimental to children where "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, 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).)
"When considering the sibling relationship exception, the concern is the best interests of the child being considered for adoption, not the interests of that child's siblings." (In re Naomi P. (2005) 132 Cal.App.4th 808, 822.) In other words, the siblings' relationship with the child to be adopted is not irrelevant. (Id., at p. 823.) Nevertheless, even if adoption would interfere with a strong sibling relationship, the court must weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. (In re L.Y.L (2002) 101 Cal.App.4th 942, 952-953.) Thus, the court may reject adoption under this sibling relationship provision only if it finds adoption would be detrimental to the child whose welfare is being considered. It may not prevent a child from being adopted solely because of the effect the adoption may have on a sibling. (In re Celine R. (2003) 31 Cal.4th 45, 49-50.) As with the other exceptions to the finding of adoptability the juvenile court examines the sibling bond exception in the context of the child's best interests. (In re Megan S. (2002) 104 Cal.App.4th 247, 253.)
Although it concerns the sibling relationship in general, the statute continually refers to that relationship's impact on the child being considered for adoption, not the impact on the sibling or anyone else. (§ 366.26, subd. (c)(1)(E).) The language focuses exclusively on the benefits and burdens to the adoptive child, not the other siblings, and the court must ultimately determine whether adoption would be detrimental to the adoptive child, not the siblings. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) "Nothing in the statute suggests the Legislature intended to permit a court to not choose an adoption that is in the adoptive child's best interest because of the possible effect the adoption may have on a sibling." (In re Celine R., supra, 31 Cal.4th at p. 54.)
Here, B.M. and G.M., who were in a permanent plan of long term foster care, opposed the adoption of their siblings. The five children who were to be adopted agreed with adoption. The record reveals that the children for whom adoption was selected as the permanent plan resided with caretakers committed to maintaining the sibling relationship. The best interests of the five adoptable children would be best served by adoption, and the stability it would provide. As our Supreme Court has held, the existence of a strong sibling bond may not prevent a child from being adopted solely because of the effect it may have on a sibling. (In re Celine R., supra, 31 Cal.4th at p. 50.) There is substantial evidence to support the trial court's finding that the sibling exception to adoptability was not established.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. SLOUGH
J.