Opinion
2d Juv. No. B232696
09-19-2011
In re JAZMINE and JUAN R., Persons Coming Under the Juvenile Court Law. SANTA BARBARA COUNTY CHILD PROTECTIVE SERVICES, Plaintiff and Respondent, v. VANESSA V., Defendant and Appellant.
Janette Freeman, under appointment by the Court of Appeal, for Defendant and Appellant. Dennis A. Marshall, County Counsel, County of Santa Barbara; Joel F. Block and Toni Lorien. Deputy County Counsels, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. J-1285786, J-1285787)
(Santa Barbara County)
Vanessa V. (mother) appeals from the judgment terminating parental rights to her twin children, Jazmine R. and Juan R. (the children), and ordering them to be placed for adoption. (Welf. & Inst. Code, § 366.26) The children are presently six years old. Mother contends that the juvenile court erroneously found inapplicable the exceptions to the termination of parental rights that apply where: (1) "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship," and (2) "[t]here would be substantial interference with a child's sibling relationship." (§ 366.26, subds. (c)(1)(B)(i) & (c)(1)(B)(v).) We affirm.
All statutory references are to the Welfare and Institutions Code.
Factual and Procedural Background
In an unpublished opinion filed on April 18, 2011, this court denied mother's petition for extraordinary writ relief from the juvenile court's order of December 21, 2010, terminating reunification services and setting the matter for a permanency planning hearing. (2d Civil No. 229733.) In the opinion, we summarized the relevant factual and procedural background through May 6, 2010:
"On December 26, 2008, Santa Barbara County Child Welfare Services (CWS) filed a dependency petition on behalf of the [then] three-year-old twins. (§ 300, subd. (b) & (g).) The petition alleged that mother and the children's father had failed to protect and provide for the support of the children due to physical abuse, chronic substance abuse, and on going [sic]domestic violence in the home.
"Father had a violent history that included battery, corporal injury to a spouse, and sex crimes against children. Before the petition was filed, father violated a restraining order and was incarcerated for domestic violence. Mother minimized the domestic violence and told the case worker that she would most likely continue her relationship with father. CWS reported that mother had a history of substance abuse and violent behavior and a criminal record for substance abuse, burglary, grand theft, receiving stolen property, shoplifting, battery, and domestic violence. Although the family participated in voluntary services in 2007, the services were not effective in preventing or eliminating the need for removal of the children.
"[In January 2009 the children were removed from the care and custody of their parents.] At a March 16, 2009 combined jurisdiction/disposition hearing, the trial court declared the children dependents of the court and ordered reunification services. Mother was ordered to undergo individual counseling to address safe parenting issues, complete a one-on-one parenting education program, attend twelve-step meetings, and submit to random drug tests twice a week.
"At the September 14, 2009 six-month review hearing, mother had received twelve months of family reunification services but still did not have suitable housing.
"The children were returned to mother and father at the twelve month review hearing on March 8, 2010. [But on May 5, 2010, the children were removed from the parents' home.]
"On May 7, 2010, a section 387 supplemental petition was filed alleging that [the children's] father sexually molested the children's half-sister [and mother's daughter], Moriah. Six-year-old Moriah reported that the children's father vaginally penetrated her with his finger, tongue, and penis during home visits. Moriah also reported that her half-brother, Juan, had orally copulated her. The supplemental petition alleged that mother, on May 5, 2010, admitted she was aware of the sexual abuse allegations but did not mention it to case worker Dawn Manalo during an April 30, 2010 home visit. CWS recommended that the children be removed, that family services be terminated, and that the trial court set the matter for a permanency planning hearing (§ 366.26).
"At a combined jurisdiction/disposition hearing, evidence was received that mother, on April 29, 2010, told Moriah's stepmother that Moriah was sexually acting out with Juan during overnight visits. Mother said that Moriah and Juan got in trouble for 'doing nasty stuff' and that mother had 'seen them doing this.' On Easter Sunday, three weeks earlier, Juan's twin sister Jazmine told mother that Moriah and Juan 'were under the covers' and Juan 'was licking Moriah's privates.'
"On May 6, 2010, case worker Manalo asked mother why she did not report the sexual abuse during the April 30, 2010 in-home visit. Mother replied, 'I don't know, I was nervous and concerned. . . . I'm sure you already knew.' "
On April 18, 2011, CWS filed a section 366.26 report. The report recommended that the parental rights of mother and father be terminated and that adoption be the permanent plan. The report disclosed the following information:
When Juan was returned to mother in March 2010, he "would hit, kick and scratch [her] for no apparent reason. . . . Since Juan . . . has returned to the home of his [foster parents], his behavior has markedly improved, although he still has aggressive tendencies and anger issues."
The same foster parents "have been caring for the children since they were placed in protective custody [in January 2009], with the exception of the two months the children were back at home." The foster parents "wish to provide the children with a stable and long-term home through adoption because they love the children and wish to keep them safe." The children "appear secure and relaxed and are developing appropriately in this happy family home." "The children took it upon themselves to begin calling the [foster parents] 'Mommy and Daddy' and refer to the [foster parents'] home as 'their home'."
"As the mother continues to reside with Moriah's abuser [the children's father] and has only recently stated that she is beginning to accept the abuse 'could have happened', the children would remain unsafe in her care. Additionally, the mother stated that her intentions were to move to the home of the maternal grandfather with her children, should they be returned to her care again in Family Maintenance, with the full knowledge that the maternal grandfather sexually abused the mother's half sister in her presence years ago. This calls the mother's judgment and ability to ever keep the children safe into grave concern."
The section 366.26 hearing was conducted on April 21, 2011. At the hearing mother testified as follows: Through December 2010, she saw the children once every week. After December 2010, she saw the children once every month. At the beginning of each visit, the children always embrace her. They refer to her as "Mommy." They sometimes cry when the visit ends. "Prior to the last couple of months, [the children] were asking [mother] all the time on the visits, 'When are we going to come live with you?' 'I want to live back at home with you.' I want to live with Mommy.' " About a month before the section 366.26 hearing, the children's father moved out of mother's home.
Mother further testified: Moriah is two years older than the children. Since October 2007 Moriah has lived with her father and not in mother's home. Moriah has not seen the children since May 2010, when the children were removed from mother's home. When the children were residing with mother, Moriah visited them every other weekend and on some holidays. At the beginning of each visit, the children "would be happy to see [Moriah and would] give her a hug. . . . But then they always end up having their sibling fights and arguments." The children "still love their sister" and "want to see her."
At the conclusion of the section 366.26 hearing, the juvenile court terminated the parental rights of both mother and father.
General Principles
"By the time of a section 366.26 hearing, the parent's interest in reunification is no longer an issue and the child's interest in a stable and permanent placement is paramount. [Citations.] . . . The child has a compelling right 'to [have] a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.' [Citation.] Adoption is the Legislature's first choice because it gives the child the best chance at such a commitment from a responsible caretaker. [Citations.]" (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)
"If the court finds that a child may not be returned to his or her parent 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 [several] specified exceptions. [Citations.]" (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The exceptions at issue here are set forth in two subdivisions of section 366.26: subdivision (c)(1)(B)(i), which applies if "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship," and subdivision (c)(1)(B)(v), which applies if "[t]here would be substantial interference with a child's sibling relationship." Mother had the burden of proving that these exceptions are applicable. ( Id. , at p. 826; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
Standard of Review
We review the juvenile court's determinations under the substantial evidence standard. (In re Naomi P. (2005) 132 Cal.App.4th 808, 824; In re Derek W., supra, 73 Cal.App.4th at p. 827; In re Autumn H. (1994) 27 Cal.App.4th 567, 575; contra, In re Jasmine D., supra, 78 Cal.App.4th at p. 1351 [reviewing court should apply abuse of discretion standard].) In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact.(In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) We view the evidence in the light most favorable to respondent (CWS), giving it the benefit of every reasonable inference and resolving all conflicts in its favor. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) "It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630.) "The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]" (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Beneficial Relationship Exception
CWS does not dispute that mother met the first prong of the beneficial relationship exception: that she "maintained regular visitation and contact with the child[ren]." (§ 366.26, subd. (c)(1)(B)(i).) (RB 25) Accordingly, we are concerned only with the second prong: that "the child[ren] would benefit from continuing the relationship." (Ibid.)
In In re Autumn H., supra, 27 Cal.App.4th at p. 575, the appellate court interpreted "the 'benefit from continuing the [parent/child] relationship' exception to mean the relationship 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 determining whether the exception applies, the juvenile court "balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (Ibid. ; see also In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425 ["Autumn H. teaches that the juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family"].) "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
Here, the juvenile court engaged in the required balancing test. The court declared: "[T]he question is, is the relationship so strong as to counter the preference for the adoption. The answer is, no, it's not. The adoption preference is not outweighed by the parental relationship that exists."
Substantial evidence supports the juvenile court's determination. Mother showed that she had a friendly or familiar relationship with the children. But "a parental relationship is necessary for the exception to apply, not merely a friendly or familiar one. [Citations.] . . . [A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child's need for a parent." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Mother did not show that her contact with the children had "continued or developed a significant, positive, emotional attachment from child to parent" so that the children would be greatly harmed if the relationship were terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
On the other hand, the children appear to have bonded with their foster parents, who want to adopt them. Except for the period from March to May 2010, the foster parents have been caring for the children since their removal from mother's home in January 2009, when they were three years old. "The children took it upon themselves to begin calling the [foster parents] 'Mommy and Daddy' and refer to the [foster parents'] home as 'their home'." Accordingly, "[t]his is not the extraordinary case where an adoption should have been foreclosed by the exception provided in section 366.26, subdivision (c)(1)(A) [now (c)(1)(B)(i)]." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1352.)
Sibling Relationship Exception
The sibling relationship exception applies if termination of parental rights would be detrimental to the child because "[t]here would be 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).)
Pursuant to the sibling relationship exception, "the court is directed first 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.]" (In re L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.) "To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship." ( Id. , at p. 952, fn. omitted.) If the court determines that there would be substantial interference with the sibling relationship, it must "balance the benefit of the child's relationship with his or her siblings against the benefit to the child of gaining a permanent home by adoption in the same manner the court balances the benefit of the child's continued relationship with the parent against the benefit to the child of gaining a permanent home by adoption when considering the section 366.26, subdivision (c)(1)(A) [now (c)(1)(B)(i)] exception." ( Id. , at p. 951.)
Here, the juvenile court determined that there would be no substantial interference with the children's sibling relationship because that relationship is not sufficiently significant to cause detriment to the children upon termination: "Is the sibling relationship so strong that it's going to cause detriment to the children if that sibling relationship is broken . . . ? . . . [T]he answer is no, I don't have any evidence of that. I have evidence that they have had a relationship, but . . . I don't have any evidence of detriment to them."
Substantial evidence supports the court's determination. The children do not have a close relationship with Moriah. Since October 2007, when the children were two years old, Moriah has lived with her father and not in mother's home. Moriah has not seen the children since May 2010, when the children were four years old. Before May 2010 Moriah visited the children every other weekend and on some holidays when the children resided with mother. The children did not reside with mother from January 2009 to March 2010, and Moriah's visits with the children were sporadic during this period. According to mother, Moriah's visits with the children "always end[ed] up [with] sibling fights and arguments." During the section 366.26 hearing, mother was asked, "Did the twins benefit from having an older sister because they could go to her and talk to her about what was going to be happening at school and did they talk about school and things like that?" Mother replied, "Not really because she lived with her Dad. I only had her every other weekend."
Moreover, the relationship between Juan and Moriah is problematic because of their sexual activity. The section 366.26 report states: "Due to the concerns regarding the sexual activity between half-sibling Moriah . . . and Juan . . . , there have been no recent visits between the children . . . ."
Disposition
The judgment terminating parental rights and ordering the children to be placed for adoption is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P.J.
PERREN, J.
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
Janette Freeman, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, County of Santa Barbara; Joel F. Block and Toni Lorien. Deputy County Counsels, for Respondent.