Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. EJ3150B-C, David B. Oberholtzer, Judge.
NARES, J.
M.N. appeals the judgment terminating her parental rights to her daughters, A.N. and A.H. (together, the children). M.N. contends the juvenile court erred by declining to apply the beneficial relationship and sibling relationship exceptions (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i), (v)) to termination of parental rights. We affirm.
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND
As a child, M.N. was a juvenile court dependent because her father, James N., molested her. As an adult, M.N. received services through the Regional Center to address her developmental delays. In October 2007 the San Diego County Health and Human Services Agency (the Agency) opened a voluntary case plan for M.N. due to allegations of neglect, physical abuse and sexual abuse of her one-and-one-half-year-old daughter, M.N.N. As part of the plan M.N. agreed that her boyfriend, sex offender Eugene H., would have no contact with M.N.N. A.N. was born in December 2007. The voluntary plan was closed in June 2008 as "time limit exceeded" with "minimal participation" by M.N.
Eugene is the father of A.N. and A.H. His sex offense did not involve a child.
A.H. was born April 2009. In April or June M.N. began a second voluntary plan. On October 2, a social worker made an unannounced visit to M.N.'s home and found James and Eugene alone with A.N.M.N. lied to the Agency about the incident and promised she would have no contact with Eugene. On October 3, M.N., Eugene and the children were seen together at a park.
M.N. later acknowledged that James had been living in her home for approximately one week before the social worker found him. M.N. believed Eugene did not pose a risk to her or the children.
On October 8, 2009, when A.N. was one and one-half years old and A.H. was less than six months old, the Agency filed dependency petitions alleging M.N. had left A.N. in James's care. A.N. was detained in the home of a nonrelative extended family member (NREFM). A.H. was detained in a foster home, and then in the home of a different NREFM. In January 2010, the juvenile court entered true findings on the petitions and ordered the children removed from parental custody. In May A.H. was moved to a confidential way-station home. In July she was returned to the home of the NREFM. At the six-month review hearing in October, the court set a section 366.26 hearing.
On January 7, 2011, the Agency filed section 387 supplemental petitions. The petitions alleged the NREFM with whom A.N. was placed had failed to facilitate sibling contact and was unwilling to become A.H.'s caregiver, and the NREFM with whom A.H. was placed had asked for A.H. to be removed so she could be placed in a prospective adoptive home with A.N. At a team decision making meeting on January 10, A.H.'s caregiver said she wished to adopt A.H. The same day, the court granted the Agency's request to dismiss the section 387 petitions and, with the agreement of all parties, ordered weekly two-hour sibling visits, separate and apart from M.N.'s visits. On January 18, A.H.'s caregiver told the Agency she was no longer able or willing to care for A.H. On January 25, A.H. was moved to a prospective adoptive home. A.N. remained with the NREFM, who wished to adopt her.
A.H.'s caregivers had decided not to adopt A.H. because M.N. came to their home expecting visits and called day and night demanding visits.
The section 366.26 hearing took place in July 2011.
THE BENEFICIAL RELATIONSHIP EXCEPTION
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, 80-81.) 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." (§ 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.) If terminating parental rights "would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome...." (Ibid. at p. 575) The existence of a beneficial 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 (ibid.), we conclude substantial evidence supports the juvenile court's findings. The court found that M.N. had maintained regular visitation and contact, but her relationship with the children was one of a friendly visitor, not a parent; the children viewed their caregivers as parents; and the benefits the children would derive from adoption outweighed the benefits they would derive from maintaining their relationship with M.N.
M.N. does not contest the adoptability finding.
The Agency's trial counsel conceded M.N.'s visits were consistent overall, although there were periods of inconsistency. The Agency's appellate counsel concedes M.N. maintained regular visitation.
At the time of the section 366.26 hearing, the children had been out of M.N.'s care for more than one and one-half years. Three-and-one-half-year-old A.N. had not lived with M.N. since she was two years old and two-year-old A.H. had not lived with M.N. since she was six months old. A.N. remained in the home of the NREFM, where she had lived for most of the case, and the NREFM wished to adopt her. A.N. knew M.N. was her mother, but said she had "two moms." A.N. called her caregivers "mom" and "dad" and called her placement "home." A.N. was very attached to the caregivers. A.H. had developed an attachment to her prospective adoptive parents and was doing extremely well in their home. She called her caregiver "mommy" and did not recognize M.N. as her mother.
Even before the children were removed from M.N.'s care, family members and friends provided most of their care.
M.N.'s visits were supervised for almost the entire case. The Regional Center provided supervision for some of the visits, and its report was more favorable to M.N. than the Agency's reports. In the juvenile court, M.N.'s counsel argued the Regional Center had supervised more visits than the Agency, and the Agency's reports contained "secondhand information from the Regional Center worker." The court accepted M.N.'s argument that the Regional Center's report should carry more weight than the Agency's reports, and found the Regional Center's report was "more direct and more matter of fact." The court also found, however, that the preparers of the Agency's reports were skilled in assessing parent-child relationships, and the Regional Center's report supported the finding that there was not a parent-child relationship.
A review of the Regional Center's report shows that the Regional Center supervisor was actively involved in helping M.N. care for the children. For example, before one visit the supervisor helped negotiate with A.H.'s daycare provider for the loan of a child car seat. After another visit, the supervisor reported that when the children asked for snacks, "[M.N.] and I took them to Quiznos" and then "[M.N.] and I took them to wash their hands." After another visit the supervisor stated "we went... to buy some diapers and wipes for [A.H.]." It is unclear whether these actions were initiated by M.N. or by the supervisor. The Regional Center also reported M.N. began receiving family support services before M.N.N.'s birth, and during the period M.N. received services she "maintained her children's medical appointments and met their basic needs consistently." According to the detention report, however, when M.N.N. was a baby, relatives provided the necessary supplies, and in March 2009, M.N. locked the children in her apartment while she went to the store.
M.N. points to reports prepared by another supervisor from the Crisis House Family Visitation Center. In many respects those reports are favorable to M.N. They state M.N. played a parental role, demonstrated knowledge of child development, responded appropriately to the children, put the children's needs ahead of her own and showed empathy for the children "consistently" or "some of the time." The reports also state, however, that the children did not "display age appropriate care/concern" for M.N., did not go to her for comfort and separated from her easily.
M.N. also cites a letter from a therapist at Incredible Families, a program of supervised visits and parenting instruction in which M.N. participated in early 2010. According to the letter, during visits M.N. applied the parenting skills she had learned, was attentive to the children's needs, kept the children safe and demonstrated affection and empathy. The letter was admitted at the six-month review hearing. At that hearing, the court found M.N. did not have the ability to keep the children away from dangerous persons and there would be a substantial risk of detriment if the children were returned to her care.
During visits, the children were usually affectionate with M.N. and enjoyed playing with her. M.N. used age-appropriate toys and language and was attentive to and affectionate with the children, but had trouble managing them and keeping them engaged. M.N. sometimes provided food and clothing at visits, but until June 2011 did not provide diapers or wipes for A.H. Often the children had to be told to ask M.N. for help, not the social worker. Despite repeated directions, M.N. continued to make inappropriate promises to the children. At the close of visits, the children usually separated easily from M.N. Although M.N. loved the children, the relationship did not promote the children's "well-being... to such a degree as to outweigh the well-being [they] would gain" by being adopted and remaining in the stable, secure homes where all of their needs were being met. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
At one visit, M.N. asked A.N. for a kiss. A.N. refused and ran from the room.
For example, M.N. brought her dog to a visit and told the children they would play with the dog more when they returned home.
At times, it seemed the children did not want visits to end. On a few occasions, A.N. cried when it was time to leave a visit, and in March 2011, A.N. cried for M.N. after one visit.
THE SIBLING RELATIONSHIP EXCEPTION
Section 366.26, subdivision (c)(1)(B)(v), provides an exception to termination of parental rights when 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 in determining whether this exception applies 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 his or her long-term emotional interests, as compared to the benefit of adoption. (§ 366.26, subd. (c)(1)(B)(v).) "[T]he application of this exception will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.) Examining the evidence in the light most favorable to the judgment, we conclude substantial evidence supports the finding that M.N. did not meet her burden of proving the exception. (In re L.Y.L., supra, at pp. 947, 952.)
These were young children; A.N. was three and one-half years old and A.H. was two years old. They had lived together for just a few months, between A.H.'s birth and the children's detention. They visited M.N. together and, with the help of their caregivers and relatives, shared holidays and birthdays. Thus, the children developed a bond. In November 2010, the social worker reported "it would be more detrimental for [A.N.] to be cut off from her sibling [A.H.]" than to be moved from her placement with the NREFM and the children "deserve the opportunity to live in the same home...." At that time, A.N.'s caregiver was not facilitating sibling contact outside of M.N.'s visits with the children, and A.H.'s caregiver had decided not to adopt A.H.
By January 2011, A.H. had been moved to a prospective adoptive home. The NREFM with whom A.N. resided was willing to form a relationship with A.H.'s prospective adoptive parents so the children could maintain their bond. By late June, A.N.'s and A.H.'s caregivers had developed a relationship with each other, and visited each other one to three times a week. As noted above, the children were in homes that offered permanency, and were attached to their caregivers.
There is substantial evidence that even if termination of parental rights were to substantially interfere with the sibling relationship, severance of the relationship would not be so detrimental to the children as to outweigh the sense of security and other benefits of adoption.
M.N. complains that the court relied on its unsupported opinion that the children would not remember shared experiences due to their youth. The court also found, however, that those experiences were "pretty superficial" and stated it did not "know if those memories are deeply embedded somewhere...." Given this context, we reject M.N.'s complaint.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.