Opinion
D059651 Super. Ct. No. J512740E
09-28-2011
In re S.P., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MELISSA P. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed.
Melissa P. and Blair H. appeal the judgment terminating their parental rights to S.P. They contend the juvenile court erred by declining to apply the beneficial relationship exception to termination of parental rights (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)). Melissa also contends the juvenile court erred by declining to apply the sibling relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B) (v)), and Blair joins in that contention. We determine the contentions to be without merit and affirm.
All further statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL BACKGROUND
Between March 1999 and February 2001, Melissa's five oldest children became juvenile court dependents as a result of her long history of methamphetamine use. Melissa failed to comply with drug treatment in all five dependency cases. Between May 2002 and April 2007, each of the five children either aged out of the juvenile system or was adopted.
One of the five children was Melissa's niece. The record states that Melissa failed to reunify with the niece and "[j]urisdiction was terminated for [the niece] . . . when her adoption was finalized." Because the reunification process applies only to a parent or guardian (§ 361.5, subd. (a)), we presume Melissa was previously the adoptive parent or the guardian of the niece. Blair is not the father of these five children.
While Melissa was in a drug treatment program she met Blair, who also had a history of substance abuse. S.P. was born in June 2004.
In March 2008 Melissa admitted using methamphetamine while S.P. was asleep on the sofa next to her. Melissa also admitted smoking marijuana. She tested positive for both drugs.
In March 2008 the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition based on the above facts. S.P., who was almost four years old, was detained in a foster home. In April she was moved to the home of a maternal aunt and the court made a true finding on the petition. In May the detention with the aunt became a placement.
In March 2009 S.P. began a 60-day trial visit with Melissa. At the 12-month review hearing in April the court ordered S.P. placed with Melissa, and in October the court ordered S.P. placed with both Melissa and Blair.
In July 2010 the Agency filed a supplemental petition (§ 387) alleging Melissa admitted drinking alcohol and using methamphetamine on at least two occasions and Blair tested positive for alcohol and methamphetamine. S.P. was detained in a foster home. In August she was again detained with the maternal aunt. In September that detention became a placement and the court set a section 366.26 hearing. In April 2011 the court terminated Melissa's and Blair's parental rights to S.P.
I
The Court Did Not Err by Failing to Apply the
Beneficial Relationship Exception to Termination of Parental Rights
If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One such exception exists if "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship" with the parents. (§ 366.26, subd. (c)(1)(B)(i).) A beneficial relationship is one that "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.) The existence of this relationship is determined by "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Id. at p. 576.) Examining the evidence in the light most favorable to the judgment, we conclude that although Melissa and Blair maintained regular visitation and contact, they failed to meet their burden of establishing the beneficial relationship exception to termination of parental rights. (Id at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
Melissa and Blair do not challenge the adoptability finding.
The court stated that "for a lengthy period of time" and "in the long[ ]haul" Melissa and Blair maintained regular visitation and contact. The court found that visitation and contact had been less regular over the previous two or three months, but gave Melissa and Blair "the benefit of the doubt" on this point.
At the time of the section 366.26 hearing, S.P. was almost seven years old. She had been out of Melissa's care for a total of one year nine months, and out of Blair's care for a total of two years four months. S.P. had lived with the maternal aunt for a total of nearly one year seven months. The maternal aunt wished to adopt S.P. S.P. was becoming accustomed to living with her aunt and was settling into a routine. S.P. wanted to be adopted, but wanted to continue visiting Melissa.
Over the course of this case, Melissa and Blair had lengthy, frequent visits with S.P. At times, the visits were unsupervised. S.P. was happy to see Melissa and Blair; visits were positive; and Melissa and Blair filled parental roles during visits. S.P. had a close relationship with Melissa and Blair and clearly loved them. Although Melissa and Blair loved S.P., because of their repeated relapses of substance abuse, they could not provide the stable, loving and safe home she needed. Thus, the Agency arranged for S.P. to resume psychotherapy to address her feelings of grief and loss that resulted from not being able to go home to Melissa and Blair, as she wished to do.
Melissa and Blair have extensive histories of substance abuse, participation in multiple residential and outpatient treatment programs with numerous periods of sobriety, but subsequent relapses. The parents neglected S.P. and exposed her to their substance abuse and domestic violence. As a result, S.P. suffered from depression, anxiety, low self esteem, and had difficulty trusting adults. S.P. successfully dealt with those issues in psychotherapy and understood that Melissa and Blair were unable to function as her parents. Blair refused to accept responsibility for the dependency case and did not understand why S.P. could not live with him. Melissa said she might be ready for S.P.'s return "in ten years."
Melissa relies on In re Scott B. (2010) 188 Cal.App.4th 452, in which the reviewing court concluded the juvenile court erred by declining to apply the beneficial relationship exception. (Id. at pp. 455, 471-473.) That case is distinguishable. There, the child had lived with the appellant mother for nearly all his life. (Id. at p. 471.) The mother provided the child stability, and adoption might have destabilized his "precarious emotional state." (Id. at p. 472.) Here, on the other hand, Melissa's and Blair's inability to remain sober deprived S.P. of stability. S.P. had been in multiple placements, had been removed from Melissa's custody twice and had been in foster care for approximately half her life. Adoption would provide her the security, stability and permanence she needed.
Substantial evidence supports the juvenile court's conclusions that (1) the benefits of adoption outweighed the benefits S.P. would derive from continuing the parent-child relationship; and (2) S.P.'s emotional attachment to Melissa and Blair, while positive, was not substantial enough that S.P. would be greatly harmed by severing the relationship.
II
The Court Did Not Err by Failing to Apply
the Sibling Relationship Exception to Termination of Parental Rights
Section 366.26, subdivision (c)(1)(B)(v) provides an exception to termination of parental rights if termination would substantially interfere with the child's sibling relationship and the severance of the relationship would be so detrimental to the child as to outweigh the benefits of adoption. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951-953.) The juvenile court must "balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer." (In re L. Y. L., supra, at p. 951, citing In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Factors to be considered include whether the siblings were raised in the same home; whether they shared significant common experiences or have existing close and strong bonds; and whether ongoing contact is in the child's best interests, including her long-term emotional interest, as compared to the benefit of adoption. (§ 366.26, subd. (c)(1)(B)(v).)
Melissa contends the juvenile court erred by declining to apply the sibling relationship exception to S.P.'s relationship with Melissa's five oldest children. Blair joins in the contention. Neither Melissa nor Blair raised this issue in the juvenile court. Thus, they have forfeited their right to raise the issue on appeal. (In re Erik P. (2002) 104 Cal.App.4th 395, 403.) "The application of any of the exceptions enumerated in section 366.26, subdivision (c)(1) depends entirely on a detailed analysis of the relevant facts by the juvenile court. [Citations.] If a parent fails to raise one of the exceptions at the hearing, not only does this deprive the juvenile court of the ability to evaluate the critical facts and make the necessary findings, but it also deprives this court of a sufficient factual record from which to conclude whether the trial court's determination is supported by substantial evidence. [Citation.] Allowing the [parent] to raise the exception for the first time on appeal would be inconsistent with this court's role of reviewing orders terminating parental rights for the sufficiency of the evidence." (Id. at pp. 402-403.)
The fact that three of Melissa's five older children had been adopted by others would not preclude application of the exception. (In re Valerie A. (2006) 139 Cal.App.4th 1519.) The remaining two children became adults before S.P.'s dependency petition was filed.
Melissa also complains the Agency did not show that it complied with the juvenile court's orders for sibling visitation, and the section 366.26 report did not mention sibling relationships or visitation. She did not raise these arguments in the juvenile court.
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Because Melissa and Blair failed to raise the sibling relationship exception in the juvenile court, the court did not evaluate the relevant facts. Thus, we are "deprive[d] . . . of a sufficient factual record from which to conclude whether the trial court's determination is supported by substantial evidence." (In re Erik P., supra, 104 Cal.App.4th at p. 403.) The record on appeal contains virtually no evidence regarding any relationship S.P. may have had with Melissa's other children. On this record, we can deduce only that S.P. was not raised in the same home as Melissa's niece and one other of the five children, who were both adopted by others before S.P. was born. There is no evidence that termination of parental rights would substantially interfere with any sibling relationship.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR:
NARES, Acting P. J.
HALLER, J.