From Casetext: Smarter Legal Research

In re A.J.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 18, 2012
D059770 (Cal. Ct. App. Jan. 18, 2012)

Opinion

D059770 Super. Ct. No. NJ13980

01-18-2012

In re A.J., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Petitioner and Respondent, v. VICTOR J. et al., Objectors 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

APPEALS from an order of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Order affirmed.

Victor J. and Autumn J. (together, the parents) appeal a juvenile court order terminating parental rights to their daughter, A.J. They contend the court erred by finding the sibling relationship exception to termination of parental rights and adoption did not apply. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(v), undesignated statutory references are to this code.) We reject their contentions and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Autumn gave birth to A.J. in early February 2010. The San Diego County Health and Human Services Agency (the Agency) filed a dependency petition on her behalf alleging that Autumn had a mental illness that placed A.J. at risk for physical harm. The petition listed David J., Autumn's husband, as A.J.'s father. The Agency detained A.J. in the foster home of John and Dana R. two days after her birth.

The status review report revealed that Autumn had six other children that were dependents of the juvenile court and had been placed with, David, their father. Autumn declined to name A.J.'s father or did not know his identity. She guessed that David was the father and denied it was Victor, her ex-boyfriend and known gang member, even though she and Victor had contact as late as July 2009.

At the jurisdictional and dispositional hearing held in late February 2010, the juvenile court made a true finding on the Agency's petition, sustained the petition, declared A.J. a dependent and placed her in foster care with John and Dana. It also ordered reunification services for Autumn. In late July 2010, Autumn met with a social worker and told her that Victor was A.J.'s father. Autumn, however, did not know Victor's location.

In September 2010, the Agency officially informed the court that it located Victor and asked to set a special hearing. A paternity test revealed Victor was A.J.'s biological father and the court made a biological paternity finding. A November 2010 addendum report prepared by the Agency summarized Victor's criminal history and indicated that he had been incarcerated since July 2009. The report indicated that the Agency was opposed to providing services to Victor and reiterated the Agency's recommendation that Autumn's services be terminated and a section 366.26 hearing scheduled.

At the contested six-month review hearing in December 2010, the juvenile court found by clear and convincing evidence that Victor did not qualify for Kelsey S. status as an unwed father who promptly came forward and demonstrated a full commitment to his parental responsibilities, and that it was not in A.J.'s best interests for Victor to have reunification services. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 838.) It found that Autumn had not made substantive progress with the provisions of her case plan, and terminated her reunification services. It also denied Victor's request for a court order that paternal relatives be evaluated as possible placements for A.J., finding that the relative placement preference did not apply because A.J. did not need a new placement and the reunification period had ended.

In a writ petition to this court, Victor argued that he was denied due process of law because the Agency did not make diligent efforts to locate him and provide him with timely notice of the proceedings. He also asserted that the court improperly denied him Kelsey S. status, and erred when it declined to order evaluation of the paternal great-aunt's home. We denied the petition. (Victor J. v. Superior Court (April 11, 2011, D058750) [nonpub. opn.] (the Prior Writ Opinion).)

In February 2011, Victor filed a section 388 petition alleging that the Agency had not made reasonable efforts to notice him of the dependency proceedings. The court denied the petition. Victor and A.J. appealed. We rejected their contentions and affirmed the order. (Victor J. v. Superior Court (Dec. 13, 2011, D059473) [nonpub. opn.].)

At the contested section 366.26 hearing in May 2011, social worker Sarah Ulrich testified that A.J. had eight siblings or half-siblings. Six of them lived with David who was not interested in permitting contact with A.J. The other two siblings, Zechariah and Victoria, were in the care of their paternal great-aunt, Francesca. Autumn gave birth to Zechariah in January 2011 and he is the subject of an open dependency case. Although A.J. had visited Victoria and Zechariah and her relationship with them was developing, Ulrich did not believe these relationships outweighed what A.J. would gain by being adopted. After considering the evidence and the argument of counsel, the court found that A.J. was likely to be adopted within a reasonable amount of time and that none of the exceptions to termination of parental rights applied. Accordingly, it terminated Victor's and Autumn's parental rights and referred A.J. to the Agency for adoptive placement.

DISCUSSION

Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parent's burden to show that termination of parental rights would be detrimental to the child because of a specified statutory exception to termination of parental rights and adoption. (Id. at p. 574.) The sibling relationship exception to terminating parental rights applies when the juvenile court finds termination of parental rights 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. (§ 366.26, subd. (c)(1)(B)(v); In re L. Y. L. (2002) 101 Cal.App.4th 942, 951-952 (L. Y. L.).) The purpose of this exception is to preserve long-standing sibling relationships that serve as "anchors for dependent children whose lives are in turmoil." (In re Erik P. (2002) 104 Cal.App.4th 395, 404.)

Factors to be considered in determining whether this exception applies include: (1) whether the siblings were raised in the same home; (2) whether they shared significant common experiences or have existing close and strong bonds; and (3) 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.)

We review a juvenile court order declining to apply an exception to termination of parental rights and adoption for substantial evidence. (L. Y. L., supra, 101 Cal.App.4th at p. 947.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. (Ibid.) Rather, we draw all reasonable inferences in support of the juvenile court's findings, consider the record most favorably to the juvenile court's order, and will affirm the order if it is supported by substantial evidence even if other evidence supports a contrary conclusion. (Ibid.)

The parents contend the juvenile court erred in finding that the sibling relationship exception did not apply to render termination of parental rights detrimental to A.J. because A.J. had a beneficial sibling relationship with Victoria and Zechariah which precluded the termination of parental rights. (§ 366.26, subd. (c)(1)(B)(v).) We disagree.

A.J. is about 23 months old and has lived with her foster parents since shortly after her birth. Victoria is about seven years old and Zechariah is about 11 months old. A.J. has had "some contact" with these siblings, but is only in the beginning stages of developing a relationship with them. Thus, there is no evidence that A.J. shared a close or strong bond with them or shared any significant common experiences. Although Victor argues the three children share the "common experience" of once being a dependent of the juvenile court, given the young age of these children and the little time they have spent together, this fact carries little weight. Victor also asserts that the Agency's prior noticing error prevented A.J. from developing a stronger bond with Victoria and Zechariah. However, in the Prior Writ Opinion, we found no due process violation in noticing Victor.

In view of A.J.'s circumstances, her age, and the ages of Victoria and Zechariah, the record supports the juvenile court's conclusion that A.J.'s long-term emotional interest would be better promoted by adoption then by maintaining the sibling relationships. (§ 366.26, subd. (c)(1)(B)(v).)

Finally, Autumn vigorously argues that the sibling relationship exception should have applied to A.J.'s six other half-siblings and that the Agency failed to comply with court orders for sibling visitation. The record, however, fails to support these assertions. Rather, the record shows these children are no longer dependents of the juvenile court and their father did not want to continue contact with A.J. Under these circumstances, there was little the Agency could do to facilitate contact.

Accordingly, substantial evidence supports the juvenile court's finding that the benefit to A.J. of continuing the sibling relationships was outweighed by the benefits she would realize through adoption.

DISPOSITION

The order is affirmed.

_________________

MCINTYRE, J.

WE CONCUR:

_________________

NARES, Acting P. J.

_________________

MCDONALD, J.


Summaries of

In re A.J.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 18, 2012
D059770 (Cal. Ct. App. Jan. 18, 2012)
Case details for

In re A.J.

Case Details

Full title:In re A.J., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 18, 2012

Citations

D059770 (Cal. Ct. App. Jan. 18, 2012)