Opinion
E069700
06-15-2018
In re J.S., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.S. et al., Defendant and Appellant.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant J.K. Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant J.S. Michelle D. Blakemore, County Counsel, and Adam E. Ebright, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. J259403) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant J.K. Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant J.S. Michelle D. Blakemore, County Counsel, and Adam E. Ebright, Deputy County Counsel, for Plaintiff and Respondent.
On April 5, 2017, in an opinion on an appeal from an order terminating the parental rights of defendants and appellants, J.S. (Father) and J.K. (Mother) (collectively Parents), we ordered the matter reversed for a limited evidentiary hearing on the issue of the applicability of the sibling relationship exception. On December 5, 2017, the juvenile court held a hearing on the issue of the applicability of the sibling relationship exception, found that it did not apply, and reinstated its order terminating Parents' parental rights as to J.S. (Minor), born in June 2014. On appeal, Parents contend the juvenile court erred in finding the exception inapplicable. We affirm.
By order dated January 9, 2018, we incorporated the record in Parents' prior appeal, case No. E067122, into the record in the instant case.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 18, 2014, Merced County Human Services Agency (the Merced Department) received a referral alleging Minor tested positive for amphetamines at birth; Mother had tested positive for amphetamines a month earlier; and Father tested positive for methamphetamines on June 19, 2014. The Merced Department filed a juvenile dependency petition alleging domestic violence incidents and substance abuse issues against both Parents.
At the jurisdictional and dispositional hearing held on September 11, 2014, the juvenile court adopted the findings in the Merced Department's report, sustained the allegations, removed Minor, placed Minor with the maternal grandmother, and ordered reunification services for Parents. On December 11, 2014, the court transferred the matter to San Bernardino County.
In the six-month review report filed on March 9, 2015, the social worker recommended the court return Minor to Parents' custody. Initial visitation had been set at one-hour weekly, supervised. Visitation was later expanded to three hours weekly and then to all day and overnight visits. The maternal grandmother became incapable of caring for Minor and he was returned to Parents' custody on March 3, 2015. At the hearing on March 11, 2015, the court formally returned Minor to Parents' custody under voluntary family maintenance services. The court transferred the matter to San Bernardino County. San Bernardino County accepted the transfer on April 2, 2015.
The proceedings were still occurring in Merced County. For no apparent reason, the court's transfer order had not been implemented.
On September 16, 2015, Minor filed a Welfare and Institutions Code section 388 petition requesting removal from Parents' custody. Minor's counsel noted that Parents had engaged in several incidents of domestic violence in Minor's presence. Minor attached evidence consisting of four police dispatch reports reflecting calls to Parents' residences between February 4 and June 29, 2015; the report dated April 27, 2015, reflected that Father reported Mother beat him; the report dated June 29, 2015, reflected Father hit Mother in the face. Minor's counsel asserted it would be in Minor's best interest not to be exposed to continued incidents of domestic violence. On September 18, 2015, personnel from plaintiff and respondent, San Bernardino County Children and Family Services (CFS), filed a response recommending the court deny the petition. On September 22, 2015, the juvenile court denied Minor's section 388 petition ordering that custody of Minor remain with Parents with voluntary family maintenance services.
All further statutory references are to the Welfare and Institutions Code.
In a detention report dated February 22, 2016, the social worker noted that Minor had been detained on February 18, 2016. On February 22, 2016, CFS personnel filed a supplemental juvenile dependency petition alleging substance abuse and domestic violence problems. On February 23, 2016, the juvenile court again detained Minor.
On March 24, 2016, the juvenile court found the allegations in the supplemental petition true, sustained the petition, removed Minor from Parents' custody, terminated Parents' reunification services, and set the section 366.26 hearing. Parents filed notices of intent to file petitions for extraordinary writs. This court dismissed the petitions for Parents' failure to timely file the writ petitions. In the section 366.26 report filed on September 16, 2016, the social worker recommended that the court terminate Parents' parental rights. Minor had been placed with the paternal grandmother (PGM) on June 24, 2016.
At the section 366.26 hearing on October 26, 2016, Mother's counsel asked if Mother had any other children. Mother responded that she did. Counsel asked if any were living with her. Mother responded that her middle, eight-year-old son lived with her. Counsel for CFS objected on the basis of relevance. The court observed: "I'm not sure why this is relevant . . . ." Mother's attorney argued: "Well, he does have a relationship, essentially, with the maternal family, including his full siblings. I feel that it gives a bigger picture of—a better picture of the relationship that he has, that it's just not simply with Mother, it's with the entire family." The court replied: "Except the only consideration that we have today is the relationship with the [M]other and the [F]ather. So that is the relationship that is the one required to have the scrutiny for a [section] [366].26 [hearing]." The court terminated Parents' parental rights.
On appeal, Mother contended the court violated her due process rights by preventing her from testifying regarding Minor's relationship with his sibling; hence, effectively negating any evidentiary basis she might have had for arguing the applicability of the sibling relationship exception to termination of parental rights. In an opinion filed April 5, 2017, we agreed, holding that the juvenile court's prohibition against further questioning regarding Minor's bond with his sibling eliminated any evidentiary basis for Mother to argue the sibling relationship exception applied. We remanded the matter for a limited evidentiary hearing on the issue of the applicability of the sibling relationship exception at which Parents would be permitted to testify regarding the quality of any relationship between Minor and any of his siblings.
In an additional information to the court filed on November 16, 2017, the social worker informed the court that Parents had neither contacted CFS at all during the previous year regarding visitation between Minor and Parents nor between he and any of his siblings. The social worker noted that Mother had children who were not in her custody at the time of Minor's removal. The social worker observed that Minor's sibling, J.R., may have been in Mother's custody at some point during Minor's case, but Mother had never requested visitation between J.R. and Minor and the social worker was not aware of any visitation which had occurred between them. The PGM reported that Minor did "not have a bond with the siblings, as he [had] not been in [a] home with the other children." J.R. would attend some of the court-ordered visits between Minor and Parents; however, the PGM observed "no visible bond between the children, as [Minor] was not aware of who[] [J.R.] was." The social worker noted Minor had been placed with the PGM since June 24, 2016, was clearly bonded with her, and a change in placement would be detrimental to Minor.
During a hearing the month before, Father's counsel noted Parents had not visited with Minor in a year.
At a later hearing, it was made clear that J.R. was the only sibling with whom Parents intended to establish Minor had a relationship. In an additional information to the court filed on December 5, 2017, the social worker explained that J.R. had the same Mother, but not the same father as Minor. A Merced County investigation beginning on January 24, 2017, led to the issuance of orders placing J.R. in the exclusive custody of his father and prohibiting visitation with Mother unless supervised by J.R's father. J.R.'s father reported that the dependency case as to J.R. had been closed as of March 2017; J.R.'s father indicated J.R. had not lived consistently with Mother; he had lived with her for approximately a month in March 2017, but had not lived with her since because the Merced Department had terminated her visitation with him around that time.
The social worker concluded: "The children have not had substantial contact to have a sibling bond. The children have not had visitation, according to [the] caregiver the children have not had any contact since he has been in her placement for a year and a half." The social worker recommended the court terminate Parents' parental rights.
At the hearing on the sibling relationship exception held on December 5, 2017, Mother's counsel informed the court Mother would be unable to testify due to her medical condition. Father testified that during the period of time Minor had been removed from Parents' custody, returned to their custody, and re-removed from their custody, J.R. had been living with his father. The siblings had no contact with each other between July 2014 and March 2015. Between March 2015 and February 2016, when Minor was returned to Mother's custody, the siblings saw each other every other weekend. From February 2016, when Minor was re-removed from Mother's custody and J.R. began living with Parents, through October 2016, the siblings visited each other every Wednesday. The siblings would visit each other every other week, two hours at a time; the visits first occurred at the Merced Department, but later took place at the park; J.R. had joined Parents during their supervised visits with Minor.
In our prior opinion, we noted the record reflected that Mother had been undergoing treatment for breast and/or brain cancer.
Father's testimony conflicted in that he later testified the siblings saw one another every weekend between September 2015 and February 2016.
At no point did Minor and J.R. live together; however, J.R. would visit with Minor while spending nights and weekends at Parents' residence. Father testified J.R. currently lived with his father. The siblings are six years apart in age.
The court noted that J.R. was then eight years old; however, Father testified J.R. was then nine years old.
Minor recognized J.R., ran to him when he saw him, was excited to see him, played with him, and sought his affection. Minor knew J.R. was his brother. The siblings had not visited in "about a year and a month." J.R. still tears up when asking after Minor. Minor would tear up at the end of visits with J.R. They have "a real close bond." Father believed it would be detrimental to sever that bond.
The juvenile court found "there is not a relationship that is sufficiently significant to cause detriment upon its termination." The court observed the entirety of their relationship consisted of a year and seven months of visits, the most consistent of which consisted of a period of five months of overnight and weekend visits. The court noted the siblings never lived together and had not visited with one another in over a year. The court found the permanence afforded Minor by adoption outweighed any benefit of maintaining the sibling relationship. The court reinstated the order terminating Parents' parental rights.
II. DISCUSSION
Mother contends the court erred in declining to apply the sibling relationship exception to termination of parental rights. Father joins Mother's argument. We disagree.
"Reflecting the Legislature's preference for adoption when possible, the 'sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a "compelling reason" for concluding that the termination of parental rights would be "detrimental" to the child due to "substantial interference" with a sibling relationship.' [Citation.] 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.) Parents have the burden of establishing the applicability of the exception. (See In re Megan S. (2002) 104 Cal.App.4th 247, 252.)
In reviewing challenges to a trial court's decision as to the applicability of these exceptions, we will employ the substantial evidence or abuse of discretion standards of review depending on the nature of the challenge. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.) We will apply the substantial evidence standard of review to evaluate the evidentiary showing with respect to factual issues, such as whether the child has a close and strong bond with a sibling (for the sibling relationship exception). (Id. at p. 1314; § 366.26, subd. (c)(1)(B)(i), (v).) However, a challenge to the trial court's determination of questions, such as whether, given the existence of a sibling relationship, there is a compelling reason for determining that termination of parental rights would be detrimental to the child "'is a quintessentially discretionary determination.'" (In re Scott B. (2010) 188 Cal.App.4th 452, 469.) We review such decisions for abuse of discretion. (Ibid.)
In the dependency context, both standards call for a high degree of appellate court deference. (In re Scott B., supra, 188 Cal.App.4th at p. 469; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) "[T]he ultimate question is whether adoption would be detrimental to the adoptive child, not someone else." (In re Celine R., supra, 31 Cal.4th at p. 55.) "'The author of the legislation adding the sibling relationship exception anticipated that "use of the new exception 'will likely be rare,'" meaning "that the child's relationship with his or her siblings would rarely be sufficiently strong to outweigh the benefits of adoption."' [Citations.]" (In re D.O. (2016) 247 Cal.App.4th 166, 174.)
The juvenile court acted within its discretion in determining that, given the relationship between the siblings, there was no showing that a severance of that relationship would be detrimental to Minor. Here, Minor did not meet J.R. until Minor was nine months old when Minor was returned to the custody of Parents. Father testified that between that time in March 2015 and February 2016, when Minor was removed from Parents' custody again, the siblings visited with one another every or every other week, including some overnight and weekend visits. However, this amounted to a total of only 11 months. Although Father testified the siblings were playful, affectionate, and bonded, it is notable that during this period, when the most frequent and lengthy visits occurred, Minor was only between the ages of nine and 20 months old while J.R. was around five to seven years old.
The juvenile court obviously credited Father's testimony over the evidence in the social worker's reports that the siblings had little or no relationship with one another. We are bound by the juvenile court's credibility determinations. (In re A.B. (2014) 225 Cal.App.4th 1358, 1363 ["'[I]ssues of fact and credibility are questions for the trier of fact.'"].) --------
After the juvenile court removed Minor from Parents' custody a second time, visitation between the siblings occurred only once a week for two hours during Parents' supervised visitation with Minor. The siblings had never lived with one another. They had not seen each other since October 2016, when Parents last visited with Minor, over 13 months earlier. Thus, in all, at the time of the hearing, the siblings had engaged in visitation with one another over the course of only 19 months of Minor's 41-month life.
When considered in context with the relationship between Minor and the PGM, there was no apparent detriment to Minor from terminating Parents' parental rights. Minor had been placed with the PGM on June 24, 2016, nearly a year and a half before the order terminating Parents' parental rights. Minor referred to the PGM as "mom." The social worker observed a clear attachment between Minor and the PGM. The PGM "continues to work on building a strong and secure attachment with [Minor] by meeting his needs and providing him with structure, love, and nurturing." She had known Minor since his birth. The PGM wanted to adopt Minor because "'[h]e is my grandson and he deserves to have a good life; he needs to be safe and in a safe, loving environment, and I feel I can give him what he needs.'" In the report filed on November 16, 2017, the social worker indicated Minor "is well adjusted and thriving in his current placement." Parents failed their burden of showing a compelling reason for concluding that termination of parental rights would be detrimental to the Minor due to substantial interference with his relationship with J.R. such that it outweighed the stability and permanence Minor would receive through adoption by the PGM.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.