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In re J.E.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 12, 2012
E053718 (Cal. Ct. App. Jan. 12, 2012)

Opinion

E053718 Super.Ct.No. RIJ113170

01-12-2012

In re J.E., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. A.E. et al., Defendants and Appellants.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant C.M. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant A.E. Pamela J. Walls, County Counsel, and Ann M. Deckert, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant C.M.

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant A.E.

Pamela J. Walls, County Counsel, and Ann M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

A.E. (Father) and C.M. (Mother) appeal after the termination of their parental rights to J.E. at a Welfare and Institutions Code section 366.26 hearing. Mother claims on appeal as follows: (1) the juvenile court erred by failing to apply the parental benefit exception of section 366.26, subdivision (c)(1)(B)(i); (2) the juvenile court erred by failing to find that the sibling exception to adoption pursuant to section 366.26, subdivision (c)(1)(B)(v) applied to the instant case; and (3) the juvenile court abused its discretion by denying Mother's section 388 petition because she established a material change of circumstances and proved the modification would be in J.E.'s best interests.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

Mother also joins in Father's issues raised in his opening brief.

Father essentially joins in the issues raised by Mother on appeal, providing additional argument that the sibling exception should have been applied by the juvenile court.

I


PROCEDURAL AND FACTUAL BACKGROUND

A. Detention

On June 17, 2010, six-year-old J.E., daughter of Mother and Father, and four-year-old C.H., a child of Mother and R.H., were detained by the Riverside County Department of Public Social Services (the Department).

C.H. is not a subject of the instant appeal. Any reference to C.H. is merely for purposes of whether the sibling exception applied in this case.

On June 8, 2010, a report was received by the Department that Mother and R.H. had engaged in domestic violence in front of C.H. R.H. had pulled Mother to the ground, pulled her hair, and kicked her in the knee. When police arrived, the home was found to be dirty, and C.H. was dirty and unkempt. According to the dentention report, Mother "appear[ed] to be a tweaker," but she denied she took drugs.

A social worker from the Department made an unannounced visit to the home on June 14, 2010. J.E. and C.H. were in the driveway. They both appeared unkempt and dirty. C.H. reported she had seen R.H. pull Mother's hair. Mother admitted that R.H. had pulled her hair, but assured the social worker that he had moved out of the house. Mother admitted using marijuana three weeks prior to the social worker's visit. Mother refused a saliva drug test even after the social worker accused her of being under the influence of a controlled substance. While the social worker was speaking with Mother, both J.E. and C.H. continually asked if they were going to be taken from Mother. When the social worker gave notice to Mother that she would have to attend a detention hearing, J.E. urinated in her pants. It was determined that since there was no immediate threat to the girls' safety, an out-of-custody petition would be filed.

Father (who admitted that he was J.E.'s father) was incarcerated at the time for a theft conviction. Father was to be released on March 5, 2011, and had "every intention" of taking care of J.E. Mother stated that R.H. was the biological father of C.H., but he could not be located.

This was not the first time J.E. and C.H. had been detained. On October 9, 2006, when J.E. was three years old, the Department received a referral alleging general neglect. J.E. had been found wandering around the apartment complex where she and Mother lived wearing only a shirt. The same report was made on October 18, 2006, and J.E. was detained. On both occasions, J.E. was in the care of her grandfather, R.E.

Mother contacted the Department regarding the removal of J.E. Mother told the Department that she also was the mother of C.H. with R.H., and that she had two older children who were being adopted through the Department. C.H. was also detained. The dependency was terminated on February 27, 2008, due to Mother's compliance with her case plan.

Prior to 2006, numerous referrals had been received regarding C.H. and J.E. being dirty and unkempt, Mother using drugs, and lack of supervision. Mother had received services before from the Department and other social service agencies and had benefitted from them at the time, but then relapsed.

On June 17, 2010, the Department filed section 300 petitions against Mother, Father, and R.H. for J.E. and C.H., alleging a failure to protect and provide (§ 300, subds. (b), (g)) due to R.H. and Mother being engaged in domestic violence in the presence of C.H.; Mother's and R.H.'s history of substance abuse; Mother, Father, and R.H. had a history of contact with the Department; and Father was currently incarcerated and could not provide J.E. with adequate food, clothing, and shelter. J.E. and C.H. were still in Mother's care and the Department recommended that family maintenance services be provided to Mother, and visitation be ordered for Father and R.H.

On June 18, 2010, at the detention hearing, the juvenile court inquired of Mother whether she had been using methamphetamine prior to the social worker visiting her home. Mother acknowledged that she had recently been using methamphetamine. The juvenile court found a prima facie case and ordered the children detained, and changed custody to the Department.

B. Jurisdiction/Disposition

In a jurisdictional/dispositional report filed on July 14, 2010, the Department recommended that reunification services be granted to Mother, Father, and R.H. According to the report, new information had been obtained that J.E. may have been molested. There had been no contact between R.H. and the Department.

Mother advised the Department that she had an older son who lived with his paternal grandmother. She had an older daughter who had been adopted through a private, closed adoption. Mother had lost another daughter in a family law court who now lived with her paternal grandmother in Oklahoma.

The report also detailed the previous detention cases regarding J.E. and C.H. In a report to the Department in 2009, it was reported that Mother had left J.E. with a man who had touched her while showing her pornographic movies. The referral was closed when Mother denied the allegations and J.E. and C.H. did not disclose any abuse. Other referrals were initiated because C.H. had broken her leg and arm when playing with J.E. because of lack of supervision. Mother was also reported to be using drugs. It was determined the referrals were unfounded when J.E. and C.H. denied any abuse by Mother and Mother passed a drug test.

J.E. was interviewed and reported that R.H. and Mother fought in her presence. Mother left their home sometimes for several days. They were left in the care of their great-grandfather, S.E. She and C.H. slept in the bedroom with him. J.E. accused the other girls in her current foster home of making her touch her private parts. When asked if she had been abused by any adults, J.E. just covered her face.

C.H. was also interviewed and reported that she had observed Mother and R.H. fighting. C.H. claimed that J.E. touched her on her vagina and bottom. J.E. continued to do this to C.H. even though C.H. told her to stop.

Mother was also interviewed. She and R.H. had fought because he cheated on her. Mother admitted to using marijuana and methamphetamine a few hours prior to the interview and used them both daily. A saliva drug test confirmed she was under the influence of methamphetamine. Mother reported that she had been sexually abused as a child by a brother and her uncles. When she was 16 years old, her father tried to kiss her and she left home. Mother got pregnant with her first child while in high school. Her children all had different fathers. She did not complete high school and had been unemployed for one year.

Mother began using methamphetamine when she was 16 years old (she was currently 36) and had used it off and on since then, sometimes on a daily basis. She used drugs in order to cope with life. Father had been incarcerated most of J.E.'s life. During visits with Mother, J.E. was very emotional. Mother had not participated in any services.

An addendum report was prepared on September 1, 2010. The Department at this time recommended that family reunification services be denied to Mother and Father (pursuant to § 361.5, subd. (b)(13), (b)(12), respectively) and that the allegations in the petition be found true. It was recommended that R.H. be offered reunification services with C.H.

An additional addendum report was filed on October 8, 2010. J.E. had been moved to another foster home away from C.H. because of the allegations of sexualized behaviors exhibited by J.E. J.E. was visited at her current foster placement. She appeared happy and healthy. The foster mother reported J.E. was having trouble with encopresis. J.E. had told foster mother that she did not always feel that she was going to have a bowel movement and sometimes had accidents. Such behavior was common in children who had been sexually abused.

C.H. remained in the original placement.

J.E. wrote a note and drew a picture of what was described as R.E. touching her privates. It showed a girl screaming and a male figure smiling, standing over the girl. J.E. admitted that she had been exposed to adult male nudity in the home and forced to look at pornographic magazines. J.E. was in counseling.

Mother oftentimes used her telephone during visits instead of visiting with J.E. and C.H. Mother enrolled in an outpatient treatment program and was on a waiting list for inpatient treatment, but Mother had discharged herself from the program after four sessions. Mother did not pursue any other substance abuse programs. She tested clean on two occasions. Mother may have known about the sexual abuse of J.E. and appeared to have done nothing to protect her. Father refused to be transported to the contested jurisdictional hearing because it would add time to his sentence.

A contested jurisdictional/dispositional hearing was conducted on October 28, 2010. Mother was present at the hearing; R.H. and Father were not present. The parties submitted on the documents filed by the Department. Mother objected to the denial of reunification services. The juvenile court found the allegations under section 300, subdivisions (b) and (g) of the petition true for both J.E. and C.H. Reunification services were denied to Mother and Father but granted to R.H. for C.H. The matter was set for a section 366.26 hearing for J.E. Mother was advised of her right to file a writ as to the decision to deny reunification services, but failed to do so.

C. Report for Section 366.26 Hearing

On April 14, 2011, the Department filed a section 366.26 report and 366.3 postpermanency plan review report. The Department was recommending adoption of J.E. by the current foster home.

Mother was unemployed and did not have stable housing. Mother and R.H. appeared to still have some relationship, which caused concern since there was a history of domestic violence. Mother had been diagnosed with bipolar disorder and was taking medication.

Father had been released from prison. There was one visitation between J.E. and Father. J.E. reported being "'scared and feeling funny'" at the visit. J.E. told Father, "'I don't even know you.'" Father was living with R.E. and S.E. He was unemployed. S.E. did not believe J.E.'s accusations, stating that all foster kids claim they are abused.

J.E. was meeting her age appropriate developmental milestones. She was in therapy. J.E. had expressed at therapy that she was nervous about seeing Mother. J.E. disclosed during therapy sessions the details of the sexual abuse by R.E. When she was six years old, he touched her private parts and caused a rash. A police report had been filed regarding the incident. Further, J.E. reported that Mother and R.H. engaged in sexual relations in front of her. Mother admitted that she and R.H. had sex in the same room with J.E., but there was a curtain around the bed. Mother felt this was appropriate behavior.

J.E. and C.H. enjoyed time together and there was a plan to transition C.H. into the placement with J.E. and have them adopted together. J.E.'s therapist felt that continued therapy could alleviate any inappropriate behavior by J.E. The foster mother was equipped to handle this situation and was willing to adopt J.E. and C.H. J.E. was very bonded to the adoptive mother. The adoptive mother was willing to facilitate visitation between J.E. and Mother, although J.E. sometimes indicated that she did not want to visit Mother after the adoption.

During visitation between J.E., Mother and C.H., Mother had to be directed not to talk about the dependency case with J.E. Before and after the visits, J.E. would vomit, have diarrhea and was highly nervous and anxious. She also had nightmares after the visits. J.E. had expressed to one social worker that she was worried that Mother would cause a scene in front of the adoptive mother. J.E. also stated to the Department that she no longer wanted to visit with Mother because she did "'disgusting stuff'" and used drugs.

Father wanted to visit with J.E. and asked to bring S.E. The social worker told Father he should come alone to the first visit. Despite this directive, Father brought S.E. to the visit and J.E. was visibly upset. J.E. eventually visited with S.E. only (Father said he had the flu) and he kept discussing R.E. The visit had to be terminated.

In an addendum report filed on April 22, 2011, it was reported that evaluation of the adoptive mother had been completed and that she would provide a safe and secure environment for J.E. J.E. loved her adoptive mother.

D. Section 388 Petition and Section 366.26 Hearing

Mother filed a section 388 petition on April 28, 2011. Mother claimed to have been drug free on her recent tests. Further, she was progressing well in her Family Preservation Court (FPC) plan, which included counseling and drug testing. Mother sought to be granted reunification services with J.E. and C.H.

The Department responded that the section 388 petition should be denied. The Department outlined recent visitations between Mother and J.E., at which Mother had brought R.H. Mother and R.H. left J.E. during the visits to talk to each other and smoke cigarettes. J.E. continued to have nightmares after these visits and would sometimes defecate in her pants. J.E. had a visitation with Father and she did not want to be there. Father left early. J.E. defecated in her pants that night.

J.E. and C.H. stayed together at the adoptive mother's home every weekend. C.H. expressed that she wanted to live with J.E. and the adoptive mother.

Mother indicated that she was living with her uncle, but this could not be confirmed by the Department. Mother was having success in her substance abuse treatment, but Mother had a history of short periods of sobriety and relapses. Mother continued to defy the Department's admonition that she not speak about the case with J.E. during their visits.

On May 23, 2011, a hearing was conducted as to continued reunification services to R.H. for C.H. Such services were continued to August 15, 2011. The section 388 petition that had been filed by Mother for C.H. was withdrawn.

The section 388 petition and the contested section 366.26 hearing was also conducted. The section 388 petition was denied. The juvenile court terminated the parental rights of Mother and Father and J.E. was freed for adoption. The details of the hearings will be addressed in more detail, post. Mother and Father filed an appeal from the termination of parental rights for J.E. only.

II


SECTION 388 PETITION

We address this claim first since if it is meritorious, we need not address the other issues.

Mother contends the juvenile court erred by refusing to grant her section 388 petition.

A. Additional Factual Background

At the section 388 hearing, the Department submitted on the reports filed and asked that the juvenile court deny the section 388 petition. Mother's counsel presented the testimony of one of the social workers, Maureen O'Brien, who admitted that Mother was doing well at FPC and was clean of drugs. O'Brien admitted that J.E. changed her mind as to whether she wanted to see or be with Mother, or with the adoptive mother. J.E. wanted to live with C.H., and the goal of the Department was to have them adopted together. O'Brien noted that Mother continued at visitation to discuss the case with J.E. even though she was admonished not to discuss it. Mother remained unemployed and her current living situation had not been evaluated. J.E. and the adoptive mother had a loving relationship. They laughed a lot, and there was a bond.

Melissa Myers handled the assessment of the adoptive mother. The adoptive mother was willing to have informal visits between J.E. and Mother after the adoption. When the adoptive mother was young, she had some issues with drugs, but had no current problems. The adoptive mother had a conviction for reckless driving due to alcohol five years prior to this case.

Dena Blackwood had been Mother's substance abuse counselor since September 2010. Blackwood testified that Mother was doing an "excellent" job with her sobriety. Blackwood believed that Mother was committed to a drug-free lifestyle. After Mother completed a one-year program, there would be no further services.

Mother's counsel argued that the section 388 petition should be granted and Mother should be given services. Mother was doing exceptionally well in her sobriety and had changed to a drug-free lifestyle. J.E. had told the social worker just two weeks prior that she wanted to return to Mother. J.E. had only been with the adoptive mother for two months. Mother's counsel recommended that J.E. needed more counseling to determine who she wanted to live with.

The Department and J.E.'s counsel asked that the section 388 petition be denied. Father argued that Mother had met both prongs of granting a section 388 petition and that services should be given to her.

The juvenile court noted that it had read the pertinent reports filed by the Department and had considered the in-court testimony. The juvenile court ruled that Mother was doing well in her drug program, but recognized that she had been addicted to drugs for 20 years and that she was only in the process of becoming sober. It found her circumstances were changing but had not changed as she was still in treatment. It concluded that the first prong of the test for the section 388 motion requiring changed circumstances had not been met. It then addressed the second prong. "Regarding best interest: The court finds that this child desperately needs permanence and stability. It would not be in the best interest of the child to grant [M]other services. The court finds the second prong is not satisfied either." The section 388 petition was denied.

B. Analysis

"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. [Citation.]" (Ibid.)It "shall set forth in concise language any change of circumstance or new evidence that are alleged to require the change of order or termination of jurisdiction." (§ 388, subd. (a).) "'There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.]'" (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079, 1081 [Fourth Dist., Div. Two] [summary denial of § 388 petition was proper where there was no showing of how the children's best interests would be served by depriving them of a permanent stable home in exchange for an uncertain future].)

"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.) 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, 318-319.) Here, the juvenile court could have summarily denied the section 388 petition on the moving papers alone. It afforded Mother the opportunity to submit additional evidence, but none of that evidence supported granting the section 388 petition.

Here, Mother waited until months after J.E. was detained to enroll in a substance abuse program. Although she was doing well in the program, she had not completed the program. Moreover, she had a 20-year history of becoming sober and then having relapses. Mother was still in some sort of relationship with R.H. and there was no evidence that they were addressing the domestic violence. Moreover, Mother had done nothing to address the sexual abuse suffered by J.E. Mother had no stable employment or housing. Although Mother was commended by the juvenile court for her progress in getting off drugs, it was clear Mother was still in the process of changing and failed to show sufficient evidence of her changed circumstances.

Moreover, it clearly was not in J.E.'s best interest that the dependency process be continued. Mother had C.H. and J.E. removed from her custody because she engaged in domestic violence in front of them. While C.H. and J.E. were initially in her custody, the Department had to take custody because she admitted to using methamphetamine prior to the initial court hearing. She also showed up to an interview at the Department high on methamphetamine. Mother had brief periods of sobriety in order to get her children back in the past, but then relapsed. She had a 20-year history of using drugs. Mother had already lost all of her other children. Mother suffered from a serious drug addiction and had been investigated by the Department numerous times.

Moreover, Mother's care of J.E. was deplorable. J.E. had been found in the past wandering around an apartment complex, dirty and barely clothed. J.E. had been left with R.E., who sexually abused her, and Mother did nothing to protect her. J.E. was a nervous wreck before and after her visits with Mother, defecating in her pants and having nightmares that she was going to be taken away after the visits. Mother did not have stable housing or employment. J.E. clearly was an emotionally scarred little girl who throughout her life had been faced with being taken away from her Mother, and when she was in the custody of her Mother, she witnessed Mother taking drugs, having sex in front of her, and then being left in the hands of a relative who sexually abused her. Mother could not care for J.E. and it was not in J.E.'s best interests to be returned to her care.

J.E. was happy and healthy in the adoptive mother's home. She was in therapy and was adjusting well. J.E. desperately needed this stable and secure home. "After termination of services, the focus shifts from the parent's custodial interest to the child's need for permanency and stability. [Citation.]" (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.) The juvenile court did not abuse its discretion by denying the section 388 petition.

III


SIBLING EXCEPTION

Both Father and Mother contend the juvenile court erred by failing to find that the sibling exception in section 366.26, subdivision (c)(1)(B)(v) applied. Mother and Father contend there was a strong bond between C.H. and J.E. that outweighed any permanency and stability that adoption could provide to J.E., and that since C.H. was continuing with reunification services, the decision to terminate parental rights was premature.

A. Additional Factual Background

After the juvenile court denied Mother's section 388 petition, it considered whether to terminate Mother's and Father's parental rights. The Department submitted on its reports. Mother's counsel argued that legal guardianship was more appropriate due to Mother's bond with J.E. Legal guardianship would allow Mother to complete her drug program. Mother also argued that the beneficial parental exception applied since there was a strong bond between J.E. and Mother. Further, the sibling exception applied as J.E. and C.H. had a strong bond. Since C.H. was still possibly reuniting with R.H., it was premature to terminate the parental rights of Mother. If R.H. was given custody of C.H., it would irreparably harm this sibling bond. Father joined Mother's arguments.

The Department argued for termination. J.E. was bonded with the adoptive mother and was in need of stability. As for the sibling exception, the juvenile court must look at what is best for J.E., which was a need for permanency. J.E.'s counsel joined in the request to terminate parental rights. It was in J.E.'s best interests to have a stable and permanent home. The adoptive mother was willing to sustain a relationship between the siblings.

The juvenile court terminated the parental rights of Mother and Father, summarily finding that none of the exceptions in section 366.26 were applicable in this case.

B. Analysis

At the section 366.26 hearing, the sole issue "'is whether there is clear and convincing evidence that the child is adoptable.' [Citations.]" (In re Josue G. (2003) 106 Cal.App.4th 725, 733; see § 366.26, subd. (c).) "Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds that termination of parental rights would be detrimental to the child under one of the seven exceptions set forth in section 366.26, subdivision (c)(1)(A) and (c)(1)(B)(i) through (v). (See In re Jamie R. (2001) 90 Cal.App.4th 766, 773.)

Section 366.26, subdivision (c)(1)(B)(v) provides an exception to the termination of parental rights if the court finds a compelling reason for determining that termination would be detrimental to the child due to a "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, 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).)

The juvenile court undertakes a two-step analysis in evaluating the applicability of the sibling relationship exception. First, the court is directed "to determine whether terminating parental rights would substantially interfere with the sibling relationship by evaluating the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds. [Citation.] If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952.) "[T]he 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.)

"Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless 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. [Citation.]" (In re Celine R. (2003) 31 Cal.4th 45, 61.) We review the court's finding on this issue for substantial evidence. (In re L.Y.L., supra, 101 Cal.App.4th at p. 953.)

The juvenile court here summarily denied that the exception applied. It is not clear if it concluded that J.E. and C.H. did not have a significant bond, or if it concluded that C.H. and J.E. would be adopted together so there would be no interference with the sibling relationship. There was some concern about the girls being together due to J.E. touching C.H. Further, the adoptive mother was willing to adopt C.H. and, at the time of J.E.'s section 366.26 hearing, R.H. was not completing services for C.H. Nonetheless, the evidence establishes that J.E.'s need for a permanent, stable home outweighed any sibling relationship.

Father and Mother emphasize the bond between J.E. and C.H. and ignore that J.E. suffered from severe trauma based on sexual abuse and exposure to Mother's drug abuse. As outlined, ante, Mother's care of J.E. was essentially nonexistent. Father was incarcerated J.E.'s entire life. J.E. was subjected to sexual abuse and suffered severe emotional trauma due to her experience. J.E. was concerned each time that she had a visit with Mother. Mother insisted that she was going to get her back in her custody. J.E. had nightmares that people were taking her away and she oftentimes defecated on herself when she returned from visitation with Mother and Father.

Continuing the dependency to see if C.H. was going to be adopted by the same adoptive mother would cause more trauma to J.E. J.E. needed a stable and permanent home immediately in order to begin the healing process. Although there is no doubt there was a strong bond between J.E. and C.H., the juvenile court, in finding Mother's and Father's parental rights to J.E. should be terminated, protected J.E.'s best interests.

Father and Mother both rely upon In re B.D. (2008) 159 Cal.App.4th 1218, 1223 and In re Salvador M. (2005) 133 Cal.App.4th 1415, 1417 (Salvador) for the proposition that since C.H. was continuing with services and had an alternative plan from J.E., the juvenile court was required to continue J.E.'s section 366.26 hearing to determine whether C.H.'s permanent plan would interfere with the sibling relationship.

In the case of In re B.D., supra, 159 Cal.App.4th 1218, five children, who all suffered from varying degrees of mental retardation, were taken from the mother due to domestic violence in the home. (Id. at pp. 1222-1223.) Visitation between the five children and the mother was productive and there was a loving bond between the children and the mother. However, she was unable to adequately care for all of them. (Id. at pp. 1224-1225.) It was recommended that all of the children be adopted together, but at the time of termination of parental rights, the process had not been completed. The juvenile court, nonetheless, terminated the mother's parental rights. (Ibid.) On appeal, relying on the decision in Salvador, the appellate court concluded that the dependency proceeding should have been continued in order to find an adoptive home for all five children before terminating parental rights. (Id. at p. 1236.) The court allowed for the submission of additional reports of proceedings occurring after the termination of parental rights (showing they were all adopted together) to establish harmless error. (Id. at pp. 1227, 1236-1237.)

In Salvador, the minor was taken from the mother due to her drug use. The minor was placed with his other sibling in the maternal grandmother's home. (Salvador, supra, 133 Cal.App.4th at pp. 1417-1418.) The mother was unable to stay free from drugs and a section 366.26 hearing was set. (Id. at p. 1418.) At the section 366.26 hearing, the juvenile court stated that the minor and his sibling had a strong bond and they should be placed together. Although the grandmother had not been approved for adoption of both siblings, parental rights were terminated. (Salvador, at p. 1419.) The appellate court concluded that the juvenile court should have continued the section 366.26 hearing until the adoption of both siblings was approved. (Salvador, at p. 1422.) However, under the unique circumstances of the case, it allowed augmentation of the record to show that the siblings had been placed in the same adoptive home to show any error was harmless. (Id. at pp. 1421-1422.)

Here, after both opening briefs had been filed, the Department filed a request for judicial notice. The Department requested that this court take judicial notice of a 12-month status review report and a minute order dated September 19, 2011, setting a section 366.26 hearing, that pertained only to proceedings involving C.H. and conducted after the appeal was filed in this case. In their reply briefs, both Mother and Father object to the postjudgment evidence as the evidence does not establish a final placement decision for C.H.

The above cases are distinguishable and no postjudgment evidence is necessary as we have found that the benefit for J.E. of the permanence of adoption outweighs the sibling relationship. In both B.D. and Salvador, there was no evidence that continuing the dependency proceeding would harm the minors involved. On the other hand, here, J.E. suffered nightmares and vomited and had diarrhea after visitation with Mother and Father. Continuing the dependency here would have been improper. If C.H. and J.E. ended up in the same home, this only increased the benefit to J.E. We therefore deny the request for judicial notice as it is unnecessary.

Based on the foregoing, the juvenile court's decision to immediately terminate parental rights and not apply the sibling exception was supported by substantial evidence.

IV


BENEFICIAL PARENT RELATIONSHIP EXCEPTION

Mother argues that the beneficial parent exception of section 366.26, subdivision (c)(1)(B)(i) applied since she and J.E. shared a significant bond.

Although Father joins in this argument, it is clear that Father had no bond with J.E. that would support the exception applied to him and J.E.
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The parental benefit or "beneficial relationship" exception is set forth in section 366.26, subdivision (c)(1)(B)(i). The exception applies where "'[t]he parents . . . have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.'" (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The parent has the burden of proving that the exception applies. (Ibid.) "The parent must do more than demonstrate 'frequent and loving contact[,]' [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a 'parental role' in the child's life." (Id. at p. 827.) "In other words, for the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 468.)

Mother argues that she and J.E. had a significant bond since she had raised her for six years of her life. Further, J.E. had expressed her desire to return to Mother's care just two weeks prior to the termination hearing.

The record does support that Mother maintained consistent visitation with J.E. throughout the proceedings. However, those visits were not beneficial to J.E. We have exhaustively discussed the circumstances of this case, ante. It is clear that J.E. was a conflicted, seriously emotional, and disturbed girl. She had been sexually abused by her grandfather, had been ill-supervised by her Mother when she was younger, her Father had been in prison most of her life, she had witnessed sexual activity at a young age, and clearly suffered the effects of all this stress as evidenced by her encopresis. Mother did not occupy a parental role in J.E.'s life and had done nothing to show that she could take care of J.E.

The adoptive mother was loving and caring and provided a stable home for J.E. She engaged J.E. in extracurricular activities, had a steady job, and a commitment to J.E. She also insisted that she would maintain the relationship between J.E. and C.H. The juvenile court properly concluded that the parental benefit exception did not apply in this case.

V


DISPOSITION

The juvenile court's orders are affirmed in their entirety.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.
We concur:

KING

J.

CODRINGTON

J.


Summaries of

In re J.E.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 12, 2012
E053718 (Cal. Ct. App. Jan. 12, 2012)
Case details for

In re J.E.

Case Details

Full title:In re J.E., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 12, 2012

Citations

E053718 (Cal. Ct. App. Jan. 12, 2012)

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