Opinion
H036608 H036609
10-31-2011
In re J.M., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. V .M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz County Super. Ct. No. DP001299)
(Santa Cruz County Super. Ct. No. DP001820)
In re M.S., a Person Coming Under the Juvenile Court Law.
SANTA CLARA COUNTY
DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent,
v.
V.M., Defendant and Appellant.
Appellant V.M. is the mother of seven children, six of whom became subjects of juvenile court jurisdiction due primarily to her ongoing drug problems. After she had been drug-free for the better part of two years, she brought a petition to modify outstanding orders as to her two youngest children in order to obtain further reunification services and, as to the youngest child, forestall termination of her parental rights. The trial court concluded that although she had made commendable progress on several fronts, she lacked the requisite parenting skills to ensure that the requested relief would be in the children's best interests. The court denied the petitions for modification and ordered her rights terminated as to the youngest child. She challenges these orders on appeal. We conclude that the orders are supported by substantial evidence and do not constitute an abuse of discretion. Accordingly, we will affirm.
BACKGROUND
Beginning in 1988, V.M. had seven children by seven different fathers over a period of 18 years. For most if not all of that time she was struggling with drug and other problems that brought her and the children to the attention of child welfare authorities at least 30 times. Her drug problems continued until January 2009, when she began a period of sobriety which continued through the proceedings here under review.
The present appeal concerns her two youngest children, J.M. and M.S. J.M. was born in April 2004. He first became the subject of a juvenile court proceeding in July 2006, when the Santa Cruz County Human Services Agency (now the Santa Cruz County Human Services Department) (Department) filed a petition as to him and five siblings because V.M. had been arrested by Capitola police for shoplifting, child endangerment, and possession of methamphetamine. The court found the allegations of the petition true and declared J.M. to be a person described in Welfare and Institutions Code section 300, subdivision (b). The court adopted the recommended case plan, which was to leave the children in V.M.'s care while requiring her to engage in counseling, parenting education, drug treatment, and weekly drug testing.
In January 2007 the Department was prepared to recommend that the court "dismiss dependency" in the matter. However, it amended its recommendation the next month in light of "new information" to the effect that V.M. had "tested positive for methamphetamine and . . . denied the use of such." The Department filed a supplemental report indicating that V.M. had "admitted to a relapse" but had been "testing . . . twice a week with no further positive tests." An investigation of the home disclosed "no immediate risks to the children."
In December 2007 the Department filed supplemental petitions seeking the removal of J.M. and three older siblings from V.M.'s home. Though not included in the present record, an original petition was apparently filed at this time also seeking the removal of M.S., who had been born in September, 2006. The petitions were triggered by a police officer's observation of V.M. in her home holding a glass pipe of the type used for smoking methamphetamine. A drug treatment counselor opined that she "appeared resistant to continuing her outpatient treatment" and that her behavior was "that of someone who is currently using."
The earliest pleading in this record seeking an adjudication of dependency as to M.S. is the petition filed February 2, 2009. Although it is designated an "original" petition, later reports describe it as a "supplemental" petition and recite that the "initial jurisdiction finding" and "initial disposition order" were made as to M.S. in December 2007.
Police reportedly made this observation when they escorted one of the older children home pursuant to his suspension or expulsion from school.
The court ordered the children placed into protective custody. After two weeks in an emergency foster home, M.S. was placed with V.M. in an inpatient drug and alcohol treatment program. J.M. was placed in foster care "with a potential of being reunified with his mother in treatment if this appears to not conflict with [her] recovery." The three older children were placed with a cousin of V.M. The Department recommended that "family maintenance be offered to [V.M.] for [M.S.] provided that she stay in treatment." After mediation the Department recommended that J.M. also be returned to V.M.'s care, "with Family Maintenance services provided to the family." The court adopted this recommendation.
In June 2008 the three older children began an extended home visit with V.M., and by August of that year the Department was recommending that all of the children remain in her home and that the family receive family maintenance services. By that time J.M. was reported to be exhibiting problems with "tenacity and physical aggression," including tendencies to "hit[] his mother as well as strangers and throw[] tantrums to get his way." The social worker also reported concerns about M.S., noting that J.M. had "modeled physical aggression" for him and that M.S. "also hits." J.M.'s counselor was "trying to build rapport" with V.M. "so that she can more effectively coach her with how to intervene with [his] behaviors."
By January 2009 the Department was again prepared to recommend dismissal. On February 2, however, the Department filed supplemental petitions alleging that deputies conducting a probation search of V.M.'s home on January 29 had found "deplorable" conditions there, "with rotting and spoiled food, dirty diapers and broken glass on the floor and clutter about the home." Three adults in the home—V.M., her mother, and a maternal uncle of the children—were under the influence of, or tested positive for, methamphetamine. The court ordered both J.M. and M.S., as well as the three older siblings, detained and placed into foster or relative care. J.M. and M.S. were placed together in the home of their mother's first cousin, sometimes referred to as an aunt.
On February 18, 2009, V.M. admitted that "she had relapsed on methamphetamine" and seemed to exhibit a new level of remorse and resolve that "quite encouraged" the social worker.
On March 26, 2009, the court sustained the allegations of the supplemental petition as to J.M. and, apparently, the three older siblings. The court also sustained the petition as to M.S., found him to be a dependent child, and directed that reunification services commence. The court adopted the Department's recommended case plan, which required, among other things, that V.M. secure a legal source of income, obtain safe housing, take specified steps to address her drug use issues, and "engage in counseling services to enhance her capacity to safely parent her children."
In April 2009 M.S. underwent a medical examination which disclosed "[a]n array of previously untreated medical and developmental needs . . . , including anemia, vision problems, flat feet, tooth decay and speech delay."
In anticipation of a six-month review hearing set for October 8, 2009, the social worker recommended "that Family Reunification services end to the mother . . . and that a permanent plan be established for [J.M.] and [M.S]." At that time both boys were under the care of the maternal cousin, who was considering offering a permanent home for them. V.M. reported being drug-free for 217 days, but her contacts with the boys seemed upsetting to them, as exemplified by an occasion when she arranged a surreptitious overnight visit and made J.M. "pinkie-swear not to tell anyone about the visit," then minimized the emotional effect of this conduct on him. J.M. continued to exhibit "intense tantrums" and M.S. too showed a tendency to "act[] out when he gets frustrated," including "tantrums." The social worker opined that V.M.'s "recent secret-keeping, concerns about the children's emotional response to unsupervised visits, and [V.M.'s] long history of relapses and criminal involvement would place her children at risk of abuse and neglect if they were returned to her care at this time." The worker reported herself "unable to state that there is a significant likelihood that [V.M.] can demonstrate, within the next six months, her capacity to safely provide long-term parenting for [J.M.] and [M.S.]. These two young children . . . require a stable, permanent plan in which their special needs can be met." The accompanying proposed case plan identified adoption as the goal for both children.
After a contested six-month review hearing on November 30, 2009, the court adopted the Department's recommendations, finding that a return of the children to V.M. would be detrimental and that she had "failed to make substantive progress in the time allowed." The court's minute order stated that it "would favor legal guardianship over adoption in this matter to allow mother to continue to work toward reunification on her own." The court ordered reunification services terminated and scheduled a selection and implementation hearing under Welfare and Institutions Code section 366.26 (366.26 hearing) for March 25, 2010.
At the March 25 hearing the Department recommended "a long term plan of Planned Permanent Living Arrangement with the goal of Adoption." The two boys were still in the care of the maternal cousin and her husband, but the couple had "decided that they can no longer be a permanent placement for the children." According to the court-appointed advocate, that placement was expected to end with the school year. She reported that according to the cousin-caregiver, a sister of the man ultimately found to be M.S.'s biological father—i.e., M.S.'s paternal aunt—had offered to adopt the children.
On April 30, 2010, the two boys were placed with the paternal aunt, "a registered nurse with some mental health training." After about a month, she concluded that "the amount of time and attention it took to manage the children's behavior and special needs was more than she could handle." She reported that J.M. was "abusive" towards M.S., and opined that "the children's special needs were so significant that they would each do better, and be able to thrive if they lived in separate homes and had more individual one on one attention, rather than having to always compete with each another." On June 30, 2010, J.M. was moved to a "fost/adopt placement" which would provide "more services for [him] including a social worker . . . who is in almost daily contact with the foster parents," as well as an "aide . . . who provides extra tutoring and recreation." M.S. remained with his aunt.
On July 9, 2010, V.M. filed requests under Welfare and Institutions Code section section 388 (388 petitions) to change the existing planning orders as to both children by commencing family reunification services between them and V.M. She presented evidence that she was gainfully employed, had secured appropriate housing, and had successfully completed various programs. The court-appointed special advocate for the two boys opposed the request because in contrast to their siblings, who had been "raised in foster homes," they were supposed to be on a "Fast Track" to an early permanent disposition. She reported that M.S.'s caregivers had "told [her] on numerous occasions that they want to adopt him and raise him as one of their own children." Although J.M. had only been with his current caregivers for a month, they had told her "on numerous occasions" that they "want to adopt him." Despite his " 'nuclear' meltdowns," she reported, she had "never seen them falter in their commitment or love for [him]."
V.M. withdrew these petitions as to J.M. and M.S. However the court apparently granted similar petitions as to the older siblings, who were returned to her care in August 2010.
In anticipation of the post-permanency planning hearing on September 9, 2010, the social worker reported that the termination of the boys' joint placement with the maternal cousin had been a "devastating loss" to them, and especially to J.M., for whom the cousin had "a [special] affection." J.M. continued to exhibit a tendency to "regress[] to the emotional state of an 18 month old" when "dysregulated" by fear, anger, discomfort, or anxiety. M.S., in contrast, was "making steady progress in his current placement" with his paternal aunt. He still had tantrums, but of far less severity than when the placement commenced. A former tendency toward hyperactivity had also abated to the point where he was "able to relax and focus and be involved in an activity for 15 to 20 minutes at a time." The aunt reported that when the boys had both lived with her, "they would feed on each other's negative, aggressive and acting out behaviors." She felt that M.S. had "improved since he and [J.M.] are living in separate homes."
According to the Department's report, visitations between V.M. and the two boys did not reflect a healthy parent-child relationship. She was "not able to set boundaries" for them, with the result that they were "out of control on and off." They also acted like children of a much younger age. The social worker opined that returning them to her "would not only jeopardize her sobriety but also negatively impact her ability to parent" the other three children, who were now in her care. In addition, she wrote, "[i]t would be detrimental to the emotional well-being of [J.M.] and [M.S] to be returned to her care at this time."
The special advocate reported that M.S. was no longer asking her about V.M., as he had when the advocate first met him. She had heard him call his foster parents "mommy" and "daddy." She saw substantial improvement in M.S., which she credited to the foster mother's "exceptional parenting." She expressed support for "setting a 366.26 hearing to begin moving forward with a plan of adoption" for M.S. As to J.M., she reported that he did not appear to particularly miss his mother and was reportedly "quite difficult to deal with after the phone calls" with her. Nor did he show signs of missing his older siblings, though he did appear to miss M.S. However J.M.'s behavioral difficulties were taking their toll on his current foster parents, one of whom told the special advocate they were no longer "100%." In early September, J.M. was placed in the home of another caregiver to provide respite for his current foster parents and an opportunity to reassess, apparently, their suitability as adoptive parents. Ultimately he remained with the new caregiver.
The advocate reported that this statement followed a particular "melt down[]," apparently referring to what the social worker called the "most extreme" of J.M's tantrums. On August 7, 2010, an attempt to put him to bed had triggered "a raging tantrum that lasted for many hours, including kicking, hitting furniture and personal items with a broom, yelling, crying, wailing, well into the wee hours of the morning. . . . [T]he police were called, as it appeared he was completely out of control, and might need hospitalization for his own protection. As soon as the officer arrived, [J.M.] collected himself, stated 'I love it here . . . there's nothing wrong here', sitting down and acting rationally." However, "[i]mmediately following the officer's departure he returned to the wild tantrumming and screaming, including going out into the street in the middle of the night."
At the hearing of September 9, 2010, the court found as to J.M. that there was a compelling reason not to consider termination of parental rights because he was "not a proper subject for adoption and has no one willing to accept legal guardianship." A new selection and implementation hearing was scheduled for September 8, 2011.
As to M.S., the court ordered a second section 366.26 hearing for the purpose, in the words of a later report, of allowing the court to consider placing M.S. for adoption with his paternal aunt and her husband. The hearing was originally scheduled for December 23. In anticipation of it the social worker reported that M.S. continued to refer to his foster parents as "mom and dad" and that his "hyperactivity, temper tantrums, hitting, whining and arguing" had "improved greatly" since his foster mother had taken time off from work to attend to him. The worker reported that M.S. had frequent visits with J.M. and that the two boys appeared to have "a better relationship . . . now that they are not competing for attention and [J.M.] is not abusive toward [M.S.]." According to the foster mother, J.M. was "the only person that [M.S.] asks about during the week."
At the December 23 hearing V.M. expressed opposition to the change in plan as to M.S. and stated her intention to file section 388 petitions as to one or both boys. The court scheduled the matter for a contested section 366.26 hearing. On January 10, V.M. filed motions under section 388 to vacate the section 366.26 hearing date as to M.S. and to order reunification services as to both children. The court ordered a hearing on these motions to coincide with the section 366.26 hearing.
V.M.'s petitions triggered a "staffing" by the Department, apparently meaning a staff meeting to discuss M.S.'s case, at which "the Department's position" was concluded to be "that [it] would not be in [M.S.]'s best interest to reengage in Family Reunification services with [V.M.] at this time, as there has not been sufficient progress of change in circumstances, and the level of attachment between [M.S.] and his mother compared to that of his caregivers does not warrant a change in his recommended permanent plan of adoption." This view was apparently shared by a therapist who had been "seeing [the] family," and who reportedly told the social worker in January 2011 that M.S. was attached to the foster parent, happy and doing well in her care, and that "[i]t would not be in his best interest for him to move with his mom."
As for J.M., a social worker reported "[t]he Department's position" that "it would not be in the minor's best interest to reengage in Family Reunification Services." After alluding to J.M.'s many changes in placement, the worker wrote, "[J.M.] needs a lot of structure in his home environment in order to feel safe, and if he does not receive the structure, his behavior spirals out of control quickly. Currently, [J.M.] is in a placement that provides him with a loving, nurturing parent . . . who [J.M.] sees as an authority figure and who he respects and trusts." The foster parent, she continued, "has had fifty-three foster children over the years and has adopted five children." He shared his home with his sister, a teacher, who "co-parents with him." These caregivers "have extensive experience in providing therapeutic placements for children with [J.M.]'s type of behaviors." Under their influence, she wrote, J.M. was "becoming socialized." The foster parent said that "he may consider guardianship or adoption in the future. His first goal has been to see if he could effectively parent [J.M.]."
The worker also described her perceptions of J.M.'s interactions with V.M.: "While he clearly likes seeing her and gives her a hug when they meet, he often becomes demanding, loud, ungrateful (nothing is good enough) and disrespectful. He regresses into dynamics where he screams and bullies to get his needs met. He does not interact with his Mother as if she is a parental authority figure. He seems to associate [V.M. with] a time in his life where there was lots of chaos and overwhelm. [The foster parent] has attempted to mentor [V.M.] at one point, suggesting that she terminate a visit and return the next day to 'not let [J.M.] get away with' his disrespectful behaviors. [V.M.] was unable to take this redirection, a further cause for concern to the undersigned."
At the February 4 hearing, the court received into evidence various reports and documents. V.M.'s attorney made an offer of proof, which was accepted without objection as evidence, concerning the observations of the children's adult sister at monthly sibling visits. The court ruled that while it did find changed circumstances in V.M.'s sobriety, employment, and community activities, it did not find that a change in existing orders would serve the children's best interests, particularly because it did not see evidence that she had solved the "parenting piece" of the picture, which was critical in light of the children's special needs and their history of unstable placements. Accordingly, the court denied the section 388 motions. As to M.S., it continued the matter to February 7, 2011, "to begin the Contested 366.26 Hearing." At that time the matter was again continued to permit counsel for the father to consult with his absent client. (See fn. 4, ante.) The court also entered into the record a stipulation and finding that the evidence received at the hearing on the section 388 motions would "pertain[] to the 366.26 hearing also." The matter was continued to February 16, where it was to "proceed on argument only."
The court first made a finding of parentage as to M.S.'s biological father, while rejecting a request that he be deemed a presumed parent. He was then excused, at his request, from the hearing. He declined to be transported to subsequent hearings.
"[I]f [R.G.], the adult sister of [M.S.] and [J.M.] . . . were to testify she would have said to the Court that she visits [M.S.] and [J.M.] regularly once a month together with her younger brothers and sisters . . . . That all siblings enjoy the visits. That [J.M.] and [M.S.] play with their three-year-old niece and that they have recently met the two-month-old nephew. During the visits all siblings play together, talk and hug a lot."
On February 16, V.M. was absent because she had to attend a hearing the next day concerning the older siblings, and she could not miss both days from work. Her attorney argued that termination of her parental rights as to M.S. would be detrimental because it would disrupt an ongoing beneficial relationship between them (see Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)), and an ongoing relationship between M.S. and his older siblings (id., subd. (c)(1)(B)(v)). The court ruled that the parent-child relationship exception did not apply because "the benefits that [M.S.] is receiving at this point come from the security and stability of his foster family." The court also found the sibling relationship exception inapplicable, in that the benefits of M.S.'s relationship with J.M. could not by themselves outweigh the benefits of adoption and some of the interactions between M.S. and J.M., as well as M.S. and the older siblings, were "problematic." The court adopted the Department's recommendations, making adoption the permanent plan, and terminated, as to M.S., the parental rights of V.M., the biological father, and "all other unknown or alleged fathers." The court ordered continued visitation between M.S. and J.M.
V.M. promptly filed notices of appeal in both cases, challenging the denial of her section 388 petition in each and the order terminating her parental rights as to M.S. The orders are appealable. (In re Aaron R. (2005) 130 Cal.App.4th 697, 702-703 [denial of modification order]; In re X.V. (2005) 132 Cal.App.4th 794, 800 [order terminating rights]; see Welf. & Inst. Code, § 395, subd. (a)(1).)
DISCUSSION
I. Denial of 388 Motions
A. Introduction
Section 388 permits parents and others to petition the juvenile court, "upon grounds of change of circumstance or new evidence," to "change, modify, or set aside any order of court previously made." (§ 388. subd. (a).) The court is to conduct a hearing on the petition "[i]f it appears that the best interests of the child may be promoted by the proposed change of order." (Id., subd. (d).) A parent invoking the statute bears a twofold burden of showing " ' "a legitimate change of circumstances" ' and "that undoing the prior order would be in the best interest of the child." (In re S.J. (2008) 167 Cal.App.4th 953, 969.)
The question whether to grant a section 388 petition is addressed in the first instance to "the sound discretion of the juvenile court." (In re S.J., supra, 167 Cal.App.4th at pp. 959-960.) The question before a reviewing court is whether the record discloses "a clear abuse of discretion." (Id. at p. 960.) Here the trial court rejected the requested modifications, as to both boys, because it found neither of the statutory requirements fully satisfied. First, while acknowledging that V.M. had shown a change in circumstances, the court did not find sufficient change in the circumstance that most concerned it, which was "the parenting role and whether or not that has changed." Second, the court found that, for this and other reasons, the requested modifications would not be in the boys' best interests.
As to J.M., the court noted a third basis for denying the petition: The only relief sought as to him was a resumption of reunification services, and there was no evidence of any services that could be provided to V.M. beyond those she had already received or was receiving. The point was raised at the hearing on the 388 motions by counsel for the children, who argued that "that there really are not any additional services that can be provided to [V.M.] that haven't already been done, or that are already in progress without court orders, such as [the current caregiver] mentoring her." In explaining its reasoning a few minutes later, the court said that it "agree[d] with Minor's Counsel" on this point and asked rhetorically, "What services could be ordered?" The record suggests none.
We detect no deficiency in the court's reasoning.
B. Changed Circumstances
V.M. insists that she established a change of circumstances. That assertion was accepted by the trial court, albeit with an important qualification. The court noted that V.M. had made "dramatic changes" by "turn[ing] around her drug use and turn[ing] around her life in so many ways." The court commended her for great advances in sobriety, employment, community involvement, and housing. Indeed the court expressly found "a change of circumstance . . . in her drug use."
But the court also found that there had not been a sufficient change in what it considered, at that point, the most crucial of the children's needs. As the court put it, "[W]hat I don't have in change of circumstances is the parenting piece. And that was a critical piece for this Court." This was a concern, the court said, that had led it to terminate reunification services in the first place, and one that had "historically . . . been expressed directly to mom." The court described questioning V.M. at an earlier hearing about a heart murmur one of the children had been found to have. A reference to that condition in a report, the court recalled, had led it to ask, "[D]idn't she follow up on that. When she read that, did she talk to anybody on that? Did she explore that? Did she do anything to follow up? And sadly she said no. [¶] So at that hearing one of the themes and the reason why the Court was not comfortable with her continuing her services and continuing with reunification was the lack of that parenting role and the lack of leadership in and interest in her children's medical and dental needs. Because the children had such extreme neglect of those dental and medical needs when they were infants and children early in their development, they're still early in their development, but even earlier, that's why I asked those questions. Because I wanted to know to what degree was mom driving the train. To what degree was she following up. To what degree was she involved."
A December 2010 report stated that at the time of his initial placement, M.S. "had an array of untreated medical and developmental needs including anemia, vision problems, flat feet, tooth decay and speech delay."
The court was not satisfied with the answers as revealed by the record. It observed that V.M. still did not seem to have involved herself in "advocating" for the children with medical and dental providers to the degree the court would hope to see in a fully engaged and committed parent. The court noted that when M.S. underwent sedation for dental work, V.M. failed to do any "follow-up; the calls to the doctor to make sure that everything was okay, was anything unusual, how long was he under, what was his response when he came out, how did he react to the sedation, was there any aftermath of the sedation, did he have any problems in those days following, was there any follow-up necessary for the caps which were extensive in such a young child's mouth." The court said it "was looking for that type of interest and advocacy." Similarly, it noted V.M.'s failure to involve herself in a psychological examination of J.M., which the court had ordered in an effort "to figure out what is going on with him, because his behaviors were so extreme and so detrimental to his own safety and . . . well-being." V.M., the court observed, had been "so relieved when I ordered that exam, but what I would have expected is that [she] would have been following up, calling, what's going on, what are they going to do . . . . It didn't seem that she was advocating."
The court also expressed concerns about V.M.'s seeming inability to manage the boys' behavior or make any concerted effort to do so, as well as an apparent reluctance to adopt parenting strategies that might be in their best interests though emotionally taxing for her. These concerns appear well justified. A social worker summarized the early visits, in part, as follows: "Usually the minor disobeyed his mother on such issues as: not taking off his shoes, leaving the park or swings without permission, fighting with his brother, he did not stop the screaming and yelling when he did not get his way, if he wanted a snack or . . . a certain toy . . . [or] to be carried around in her arms. The mother usually gave into his behavior and demands as she could not divert his behavior. The mother was given training and instruction by the supervising social worker on how to deal with these difficult situations and the mother tried to follow the suggestions," but without success.
"For example, during a visit in July 2009, the mother was unable to control the minor's behavior as he ran around the visiting room, jumped on furniture and dumped toys out. When the mother tried to calm him down he would cry, yell and run around some more. Later on, the minor had a temper tantrum because he wanted a certain toy from a vending machine, and another temper tantrum when she gave [J.M] his piece of pizza at [J.M's] demand. On the way home, [M.S.] demanded that his mother carry him back to the residential program from the park (which she did). When it was [J.M's] turn to be carried, [M.S.] began attacking [J.M] and pulling his hair. So the mother tried to carry both minors back to the program."
Two ongoing themes in the reports of visits were that V.M. brought the children gifts, and the children resorted to pouting, hitting, or other forms of inappropriate behavior to seek ends they desired or to express dissatisfaction. The special advocate opined that V.M. "use[d] gifts as a way to win [J.M.] over" and that he "look[ed] at living with [her] as a way to get things." After the visits M.S. often exhibited troubling behaviors toward his foster parent, including "yelling at her, bossing her around[,] . . . call[ing] her a bitch because she would not let [him] do what he wanted to do," and "talk[ing] to her in baby talk." V.M. made no apparent attempt to address these problems and, for all the record shows, was not particularly motivated to do so. The social worker reported that J.M.'s caregiver had "attempted to mentor" V.M. on one occasion by "suggesting that she terminate a visit and return the next day to 'not let [J.M.] get away with' his disrespectful behaviors." V.M. "was unable to take this redirection," which the worker found "a further cause for concern." The court commented on this incident, noting that V.M. had become a mere "collaborative parent" as to J.M., whose current caregiver had "stepped in as the primary parent." Yet when he made suggestions to her, such as "when he disrespects you, you pack up the gifts and go and say I'll come back tomorrow," it was "too difficult for mom yet."
One log entry stated that at the end of a visit in October 2010 the social worker asked V.M. to "help with the transition by telling the boys to do well in school and home." V.M. replied "that it was her visit and she was going to want she wanted to do." She did, however, "tell [M.S.] to behave."
V.M. acknowledges the court's expressed concerns but takes issue with their sufficiency to sustain the denial of the 388 petition. She refers to evidence that she had talked to the social worker about the psychological evaluation, "was scheduled to attend
V.M.'s counselor initially formed a contrasting impression, reporting that she "was attentive to her children and created structure for them during the visits." Later, however, he "noted that the mother had a 'hard time setting limits' " with the two boys during visits. [J.M.'s] dentist appointment until it was changed and she was not told of the change, regularly talked to his therapist, and regularly talked to the social worker and the foster father about J.M.'s school and general well being." But the trial court acknowledged all this. It found that V.M. was not exhibiting or attempting to exercise the level of involvement that would show her commitment to devote the attention these two troubled children were likely to require. The problem, as the court saw it, was exacerbated by the other heavy demands placed on her. The court noted that she had "her hands full with her teens," whose presence in the home presented additional challenges as far as the two youngest boys were concerned. Indeed, having the two boys in the same home posed a risk to their healthy development, because "the two of them vie for her attention, vie for the resources."
We can find no fault in the trial court's finding that V.M. had failed to demonstrate a sufficient change in circumstances to warrant modification of the existing orders.
C. Best Interests
The denial of the 388 petitions is independently sustainable if the record supports the trial court's finding that the proposed modifications were not in the best interests of the two children. Both parties adopt the analytical framework for this question set forth in In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-531 (Kimberly F.), where the court identified three factors bearing on the determination of a child's best interests in the context of a section 388 petition seeking the child's return. The court summarized these factors as follows: "(1) [T]he seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (Id. at p. 532.) V.M. argues that these factors weigh in her favor because (1) "[t]he problem that led to dependency, was mother's drug use"; (2) J.M. had strong bonds with his mother and other family members, and had only a weak bond with his current caregiver, since the latter "was not currently interested in legal guardianship or adoption"; and (3) V.M.'s drug use "had been resolved."
This argument greatly oversimplifies the questions faced by the trial court. The "problem that led to the dependency" was not simply V.M.'s ingestion of controlled substances—a matter, by itself, for the criminal courts—but, as a social worker described it, V.M.'s "long history of substance abuse, criminal activity and of neglecting her children.'" (Italics added.) The special advocate described the underlying cause of the dependency without even mentioning drugs; to her the case originated in "general neglect" and the failure of earlier orders to "maintain[] [the children's] safety." And indeed the first petition naming J.M. was based upon his being in V.M.'s company when she was arrested for shoplifting, child endangerment, and possession of methamphetamine. His last removal from her physical custody occurred in February 2009, after deputies conducting a probation search found "deplorable" conditions in her home, "with rotting and spoiled food, dirty diapers and broken glass on the floor and clutter about the home." M.S. was initially removed on account of V.M.'s open possession of drug paraphernalia and ensuing acknowledgment that she had relapsed into drug use, but he was quickly returned to her care, where he remained until the "deplorable" conditions were found in February 2009. Thus, while drug use undoubtedly contributed to the removal orders and may have been their ultimate cause in some sense, it was V.M.'s neglect and endangerment of the children, not the use of controlled substances in itself, that created the necessity for juvenile court intervention.
More importantly, Kimberly F. cannot properly be understood to blind the court to the ongoing effects of an original or primary cause of dependency, where those repercussions continue to bear critically upon the best interests of the child. A dramatic example is provided in the severe behavioral problems J.M. was already exhibiting by the time he was removed from V.M.'s care—problems that made him an extraordinarily difficult child to effectively parent, and that required extraordinary skill and commitment on the part of anyone who hoped to help him surmount those problems. M.S. too showed signs of developmental delays in the emotional area, easily regressing into age-inappropriate or antisocial behaviors. Each child thus had special needs placing extraordinary demands on any adult who might hope to play an effective parental role. At the same time, V.M. seemed reluctant, if not unwilling or unable, to meet those demands, in part perhaps because she had her hands full with three older children, who themselves demanded special attention.
Nothing remotely like this was presented in Kimberly F., supra, 56 Cal.App.4th 519, where two children had been removed from the mother's care solely because of a dirty home. The mother ultimately corrected that problem and filed a section 388 petition seeking additional services. The juvenile court denied the petition and terminated parental rights, relying partly on a psychologist's negative assessment of her personality. (Id. at p. 523, see 525-526.) The reviewing court held this to constitute an abuse of discretion. (Id. at p. 532.) The facts uniformly favored the mother in that (1) the problem necessitating the children's removal—poor housekeeping—had been eliminated; (2) the manifest reason for the problem was not the mother's supposed personality deficiencies but the necessity having to care for two older children, one of whom suffered from AIDS; (3) an "undisputedly strong bond" existed between the mother and the children; and (4) the children were bonded to each other as siblings. (Id. at pp. 532-533.) The court also noted that "the children's ties to the mother [were] strong relative to those of their current caretakers" (id. at p. 522, italics original), and that the children were "equivocal (at best) about being adopted" by the latter (id. at p. 526). The court observed that the uncleanness of the home had been the only factor justifying the children's continued placement outside the home, such that there was "no question that [the children] would have been returned" it the home had been cleaned up before the termination of reunification services. (Id. at p. 527.) Given these facts, denial of the 388 motion could not be justified on the basis of a social worker's observation of "some clutter and extension cords," or on the "unflattering labels" applied by the psychologist to the mother's personality. (Id. at p. 532.)
Here, in contrast, V.M.'s sobriety alone would not have necessitated the children's return to her, at least once their special needs and her seeming inability to adequately address them were identified as concerns. It was those factors, in large part, that led the court to terminate reunification services in the first place, and there was no indication that they had been ameliorated by the time the court ruled on the 388 petitions.
Nor was the trial court obliged to find in V.M.'s favor on "the strength of relative bonds between the dependent children to both parent and caretakers." (Kimberly F., supra, 56 Cal.App.4th at p. 532.) As to M.S., the special advocate reported that he had "a strong bond with his new family in large part due to the commitment of the aunt/caregiver who took a leave of absence from her nursing job in order to bond with [M.S.]." He was "part of the family" and called his foster parents "mommy" and "daddy." His foster mother reported that he "was not prompted" to do this but "just began to do so on his own." In contrast, he called V.M. by her first name and "ha[d] to be reminded to call her 'Mommy.' " There was no direct evidence that he ever said he missed her, even though she and other family members prompted him to express such feelings. On the contrary, he did not even ask about her during the week, or about any siblings except J.M. The social workers' opinion was that M.S. had only a "visiting relationship" with V.M.
Presumably the quoted phrase is intended to refer to the strength of the child-parent bond relative to that of the child-caregiver bond.
However the social worker reported in September 2010 that due to problems stemming from disrupted attachment, "[b]oth boys will call caretakers mom and dad immediately. [M.S.] said he has five dads and [J.M.] said he has a hundred dads." M.S. was reported in December 2010 to have stated that he had "two mommies: [V.M.]/mom and 'this mom' pointing to the caretaker and one 'dad' (caretaker)." By January 2011 he was saying that "before he had 10 dads and now he has one dad."
M.S.'s caregiver expressed concern about telephone calls in which V.M. said to M.S., "You miss me don't you," and in which she "also put[] other family members on the phone who say similar things." The same caregiver reported that when she had both boys, V.M. would similarly say to J.M., "Oh you miss me, sweetie; oh I know you miss your brother," which appeared to trigger aggressive behavior by J.M. after the call.
As to J.M., V.M. seeks to minimize the strength and importance of his relationship to his caregiver by asserting that "there did not appear to be a bond since the foster father was not currently interested in seeking legal guardianship or adoption." This of course is a non sequitur. It is predicated on a report by the children's special advocate that the caregiver was "not willing to adopt." But the stated reason for this reluctance was that one of the caregiver's five previous adoptees had "recently gotten himself into some trouble," causing the caregiver to "realiz[e] that he has personal financial responsibility for adopted children or for children for whom he is a guardian." This explanation supported a finding that his reluctance was not the product of a lack of commitment, and other evidence indicated that he was in fact committed, to a long-term caretaking relationship with J.M. He was reported very early in J.M.'s placement as "want[ing] [J.M.] to stay" and "want[ing] the chance to help him mature to his own developmental level." A few weeks later the caregiver reportedly "want[ed] to keep him." By February 2011 he had told the special advocate "on multiple occasions that '[J.M.'s] placement with him is long term.' " The social worker described the caregiver as "a loving, nurturing parent" who provided J.M. with the "authority figure" and "clear structure" he needed, along with "support and respect." She also reported that the caregiver and J.M. "seem to truly like each other." Indeed the caregiver continued to tell a social worker that he "may consider guardianship or adoption in the future."
V.M. emphasizes the statement in Kimberly F., supra, 56 Cal.App.4th at page 528, that "section 388 really is an 'escape mechanism' when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights." (Italics in original.) The court opined that some such check was necessary to protect the statutory scheme against challenge as an unconstitutional infringement on parents' fundamental rights. (Id. at p. 528.) Viewed in isolation this would suggest—and V.M. would have us take it to mean—that a parent is categorically entitled to resume the reunification process upon a showing that she has "complete[d] a reformation" prior to an order terminating parental rights. But this language cannot be read in isolation. The court went to acknowledge that that the pivotal question remains whether the proposed modification serves the child's best interests. (Id. at p. 529 ["The parent must show that the undoing of the prior order would be in the best interests of the child."]; see In re D.R. (2011) 193 Cal.App.4th 1494, 1512, quoting In re Marilyn H. (1993) 5 Cal.4th 295, 309 ["For a parent 'to revive the reunification issue,' the parent must prove that circumstances have changed such that reunification is in the child's best interest."].) The case therefore cannot be understood to mean that a parent becomes entitled to resume reunification services merely because he or she has, at long last, corrected a condition that may be seen as the root cause of the family's original problems. Insofar as that condition generated other threats to the child's best interests— as it did here in the form of delays in emotional development, behavioral problems, and special medical needs—it is legitimate to require that those needs to be adequately addressed before a resumption in reunification services becomes appropriate, notwithstanding that the parent has corrected a problem that was an ultimate original source of the family's troubles.
These principles are borne out by In re Stephanie M. (1994) 7 Cal.4th 295 (Stephanie M.), which more nearly resembles this case than does Kimberly F. In Stephanie M. an abused child's grandmother brought a section 388 petition seeking placement of the child with her. A social worker testified that the child was "extremely emotionally fragile and in need of stability" and that the grandmother was "passive" and had not acknowledged the parents' responsibility for the abuse. (Id. at p. 307.) A psychologist testified that "the child's primary bond was to the foster mother, and that to sever this bond would damage the child." (Ibid.) The foster mother testified that after visits to the grandmother the child exhibited "adverse emotional reactions to the visits, including toileting accidents, biting, fantasy injuries and sleep disturbance." (Ibid.) Other evidence cast doubt on the grandmother's ability, given her passive character, "to provide the special psychological support that the child would need, [and] to protect the child from further harm from her parents." (Id. at p. 308.) The trial court denied the section 388 petition and eventually terminated parental rights. (Ibid.) The Court of Appeal reversed, finding that the trial court abused its discretion by, among other things, "failing to accord sufficient weight to the statutory preference for placement with relatives" and "elevating a concern with the child's bond to her foster parents over a concern with the interest of the grandmother and extended family in preserving the familial bond." (Id. at p. 319.)
The Supreme Court reversed the judgment of the Court of Appeal. (Stephanie M. supra, 7 Cal.4th at p. 319.) It concluded that regardless of the preference for relative placement, the question before the juvenile court had been "whether a change of placement was in the best interest of the child." (Id. at p. 321.) The juvenile court did not abuse its discretion or misapply the statute when, after considering the grandmother's home and finding it suitable, it nonetheless reached "the considered judgment . . . that a change of placement was not in the child's best interest, in view of her fragile emotional state and her successful and enduring bond with the foster parents." (Id. at p. 321.)
Thus, even where a parent has "completed a reform[]" (Kimberly F., supra, 56 Cal.App.4th at p. 528), the best interests of the child may preclude a resumption of reunification services. Two "vital" factors that can weigh against return to a parent are "the strength of a child's bond to his or her present caretakers, and the length of time a child has been in the dependency system in relationship to the parental bond." (Id. at p. 531.) The Supreme Court has counseled that while a child's best interests may not be injured by the "transitory problem" of "situational" distress from severance of a temporary bond with foster parents, "courts may place great weight on evidence that after a substantial period in foster care, the severing of a bond with the foster parents will cause long-term, serious emotional damage to the child." (In re Jasmon O. (1994) 8 Cal.4th 398, 418-419.) "[W]hen a child has been placed in foster care because of parental neglect or incapacity, after an extended period of foster care, it is within the court's discretion to decide that a child's interest in stability has come to outweigh the natural parent's interest in the care, custody and companionship of the child." (Id. at p. 419.)
In Kimberly F., supra, 56 Cal.App.4th 519, the mother "had maintained a very close bond" with the removed children, who "would come running to greet" her and a sibling at the beginning of visits. (Id. at p. 526.) Indeed there was enough evidence of a "strong" parent-child to support an argument by the mother, which the court did not reach, that it compelled a finding of detriment so as to preclude termination of parental rights under Welfare and Institutions Code section 366.26, subdivision (c)(1)(A). (Id. at p. 526.) At the same time, the children were "equivocal (at best) about being adopted" by their current caretakers, a paternal aunt and uncle. (Id. at p. 526.)
Here too the court concluded, after a thorough review of the evidence and record, that a change of placement would not be in J.M.'s best interests, due in major part to his unique and considerable needs and her seeming inability to address them. Further, while there was no doubt that he retained a connection to his mother and siblings, the court quite properly found that the most important adult in his life was his caregiver. Nothing in V.M.'s presentation on appeal convinces us that this was an abuse of discretion.
The special advocate wrote that J.M.'s current caregiver could "handle [him] like no one else." She went on to write, "While the caregiver has a very good relationship with [J.M.]'s mother, he has told me on three separate occasions that he does not think it would be a good idea for [J.M.] to return to her. This is mostly based on the fact that she cannot even handle him for a one hour visit. At Christmas she brought [J.M.] a ton of gifts including a Wii (he is 6 years old) and after he opened them he immediately started to yell at her and disrespect her. The caregiver advised that she pack the toys, etc up and come back, but she just cried apparently afraid to make [J.M.] mad. She does not have the skills to deal with [J.M.] 24/7 especially with the needs of the three other teenagers she has at home."
V.M. also seems to suggest that the trial court was required to return J.M. to her care unless it found compelling reasons not to. She cites Welfare and Institutions Code section 366.3, subdivision (h), which provides that at a six-month review hearing for a child placed in long-term foster care, "the court shall consider all permanency planning options for the child including whether the child should be returned to the home of the parent, placed for adoption, or . . . appointed a legal guardian, or, if compelling reasons exist for finding that none of the foregoing options are in the best interest of the child, whether the child should be placed in another planned permanent living arrangement." But the order under review is the denial of a section 388 petition, not a status-review order. Nor did the petition request an immediate return of J.M. to V.M.'s custody. Had those issues been tendered we would be required to presume, in support of the judgment, that the trial court made all findings necessary to support its ruling, including, if needed, that the reasons for the court's order, most of which we have described, were "compelling."
V.M.'s argument to the contrary is unpersuasive. She acknowledges the trial court's finding that J.M. required "one-on-one" care, which she was unable to provide, but dismisses this concern by noting that "the foster father had other children in his home also." In context, however, the court was not saying that J.M. needed to be raised apart from other children but that he benefited from not sharing a caregiver with his siblings. The court stated that V.M. had "her hands full with her teens," who "influence the little ones," not always in a healthy way. Even for the two youngest children to be together had disadvantages, as they showed a tendency in V.M.'s presence to "vie for her attention, vie for the resources."
On a visit in September 2010, a teenage brother gave J.M. an original drawing depicting one man shooting another in the head.
No abuse of discretion appears in the denial of the section 388 petitions.
II. Termination of Parental Rights as to M.S.
A. Introduction
In challenging the order terminating her rights as to M.S., V.M. first asserts that this was error because "her section 388 petition should have been granted" as to him. We have rejected the quoted premise in the previous section. We must therefore reject any argument based upon it.
V.M. also contends that the court should have ruled that the case comes within two exceptions to the statutory preference or presumption in favor of terminating parental rights as to an adoptable child as to whom reunification services have been terminated. Specifically, she invokes the parent-child relationship exception (§ 366.26, subd. (c)(1)(B)(i)), and the sibling relationship exception (§ 366.26, subd. (c)(1)(B)(v)). We will discuss these exceptions in turn after briefly reviewing the setting in which that analysis must take place.
As pertinent here, section 366.26 provides that where the court finds a child is adoptable after reunification services have been terminated, it "shall terminate parental rights and order the child placed for adoption" unless the case comes within an enumerated exception. It is the parent's burden " 'to show that the termination of parental rights would be detrimental to the child under one of the exceptions. [Citation.]' [Citations.] 'The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.' [Citation.]" (In re C.B. (2010) 190 Cal.App.4th 102, 122 (C.B.), fn. omitted.)
Section 366.26, subdivision (c)(1), provides, "If the court determines . . . that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . Under these circumstances, the court shall terminate parental rights unless either of the following applies: [¶] . . . [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. [¶] . . . [¶] (v) There 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."
V.M. asserts that when a trial court rules that a parent has failed to establish an exception, that ruling is evaluated on appeal under the substantial evidence standard of review. This is only partly correct. As this court has recognized, the substantial evidence standard applies to the trial court's determination of issues of fact, but the fundamental question is whether the trial court has abused its discretion. (In re C.B., supra, 190 Cal.App.4th at p. 123.) In applying this standard, " 'the trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.' " (Ibid., quoting Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.)
B. Parent-Child Relationship
The parent-child relationship exception permits the court to preserve parental rights where the child's relationship to the parent is so beneficial to the child that the detriment from severing it furnishes a "compelling reason" not to terminate parental rights. For this exception to apply, it must appear that " '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 re C.B., supra, 190 Cal.App.4th at p. 124, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Here the trial court manifestly found that V.M. had failed to carry her burden of establishing that the benefit of preserving M.S.'s relationship with her would outweigh the benefit of terminating her parental rights and giving M.S. a permanent home with his current caregiver. To show that this was error, V.M. would have to establish that it rested on an erroneous legal premise, that it was arbitrary and capricious, or that the evidence before the trial court compelled a finding, as a matter of law, that the benefits to M.S. of preserving his relationship with V.M. preponderated over the benefits of adoption by his caregiver.
V.M. appears to contend that the trial court erred by finding the exception inapplicable on the ground that she did not "occupy a parental role" as to M.S. V.M. characterizes the caselaw on this subject as having evolved in her favor. She describes In re Autumn H. (1994) 27 Cal.App.4th 567, and In re Beatrice M. (1994) 29 Cal.App.4th 1411, as having "initially set high standards for parents to overcome regarding the parent/child relationship exception," including the implication "that the parent and child contact had to amount to a parental role." She then suggests that this standard was relaxed in In re S.B. (2008) 164 Cal.App.4th 289, which she describes as holding that "section 366.26, subdivision (c) (1) (B) (i), does not require that the child has a primary attachment to a parent, or day-to-day contact."
In In re C.B., supra, 190 Cal.App.4th at page 126, this court explicitly embraced the requirement that the parent " 'show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.)' (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.)" This does not require "day-to-day contact and interaction" (ibid., quoting In re Casey D. (1999) 70 Cal.App.4th 38, 51), but it does require an attachment of sufficient substance that the detriment of severing it would outweigh the benefits of adoption. Thus the evidence in C.B. supported a finding of a "substantial, positive emotional parent-child attachment despite the lack of day-to-day contact." (C.B., supra, at p. 126.) The trial court there had "observed that the children were 'of an age where they are intellectually and emotionally aware of whom their parents are.' It stated: 'The Court had [the] opportunity to observe the children in the presence of their parents, and there is no doubt that the children love their parents and would choose to be with their parents if at all possible. It was clear to the Court, by the eye contact and the smiles, that the children were happy to be sitting in the same room as the parents. The Court heard the children testify that they would be "mad" and "sad" if they were not able to have contact with their mother . . . .' " (Ibid. at p. 126.) However, the trial court had also found that " 'these parents have very little to offer these children except for the loving connection that currently exists between them.' " (Ibid.)
The trial court in C.B. erred when it "injected an improper factor into the weighing process, namely, the prospective adoptive parents' willingness to allow the children to have continued contact with mother." (C.B., supra, 190 Cal.App.4th at p. 128.) We held that a trial court cannot, after finding that the conditions for the parent-child relationship exception are satisfied, go on to "terminate parental rights based upon an unenforceable expectation that the prospective adoptive parents will voluntarily permit future contact between the child and a biological parent." (Ibid.) We reversed "to allow the court to reconsider, under the proper legal standard, whether the evidence establishes that the parent-child relationship exception applies." (Id. at p. 129)
Here the trial court placed no apparent reliance on the possibility of continued contact between V.M. and M.S. Nor does the record suggest that the trial court might have found that the factual predicate for the parent-child relationship exception was present. It rejected the exception on the stated ground that M.S.'s relationship with his birth mother was a mixed blessing at best and that his relationship to his prospective adopted family was far more beneficial and important than the preservation of his relationship to V.M.
The court said, "Although [M.S.] . . . does at time look forward to seeing his Mother, he doesn't consistently have positive visits. They are, I think at times, chaotic. The fact that Mother visits with other siblings, older siblings, grandma, adult children, as well, [M.S.] isn't able to have the one-on-one quality time with mom, and isn't able to truly have a beneficial visit inasmuch as the fallout after the visits are profound.
"After the visits [M.S.] is whiny, he's clingy at times, he has nightmares. He is very emotional. He also comes back and at one point called his foster mother a bitch, because that's what he learned from . . . the 17-year-old teen in the household. And he also tantrums. I know that there was a recent visit where he had a tantrum over a skateboard and then basically it took all evening to calm him down. So he is still not able to regulate his emotions and confusion over his connection with his mother and his family.
"Therefore, I'm finding that it is not beneficial under the parental beneficial exception to maintain that parent/child relationship, because I believe the benefits that [M.S.] is receiving at this point come from the security and stability of his foster family."
Nor does this case bear any material resemblance to In re S.B., supra, 164 Cal.App.4th 289. The evidence there showed that the child had "a consistent and positive relationship" with her father, although she "looked to her [maternal] grandmother," with whom she had been placed, "for security, safety, guidance and parenting." (Id. at p. 295.) The author of a bonding study opined that the father-daughter relationship "vacillated between parental and peer-like." (Id. at p. 296.) At least one social worker acknowledged that severance of the relationship would be detrimental to the daughter, but opined that the grandparents intended to continue the father's visits. (Ibid.) The trial court found that the father "had frequent and loving visits with S.B. and had 'an emotionally significant relationship' with her." (Id. at p. 298.) However it found no evidence that the father's "relationship with S.B. was parental in nature" or that its termination "would be greatly detrimental" to her. (Id. at p. 296.)
The reviewing court found that the trial court erred in refusing to find a parent-child relationship. The evidence clearly showed such a relationship prior to the child's removal from the father's custody, and also showed that he "continued the significant parent-child relationship despite the lack of day-to-day contact with S.B. after she was removed from his care." (In re S.B., supra, 164 Cal.App.4th at p. 299.) The court expressly rejected a contention that the parent-child relationship exception "does not apply unless the child has a 'primary attachment' to the parent." (Ibid.) The court also rejected any suggestion that an "unenforceable promise of future visitation" could sustain the refusal to apply the exception. (Id. at p. 300.) The trial court there had further erred by failing to comply with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.). (In re S.B, supra, 164 Cal.App.4th at pp. 301-303.)
Here the trial court did not find a "consistent and positive relationship" between V.M. and M.S. Nor did it find that a parent-child relationship actually existed. Instead it found a relationship of decidedly mixed benefits, with sometimes negative consequences for M.S.'s emotional wellbeing.
No error appears in the trial court's finding that V.M. had not carried her burden of establishing the applicability of the parent-child relationship exception.
C. Sibling Relationship
V.M. argues that the trial court should have refused to terminate her parental rights as to M.S. on the ground that termination would inflict a detriment upon M.S. by substantially interfering with his relationship with J.M. She makes no real attempt to argue that the evidence before the trial court compelled it to find the sibling relationship exception applicable. She refers to evidence of a bond between the two boys, but a sibling bond by itself does not overcome the statutory preference for adoption. (See In re C.B., supra, 190 Cal.App.4th at p. 129, quoting In re Celine R. (2003) 31 Cal.4th 45, 61 [" '[E]ven 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.' "].) There was evidence that M.S. benefited from not living in the same home with J.M. and having to compete with him for parental attention. Some of M.S.'s behavioral difficulties were thought to be "modeled" on J.M.'s more severe ones.
Indeed V.M. does not suggest that M.S. would benefit from actually living with J.M. Her argument is devoted almost entirely to the manner in which the sibling relationship question was presented to the court. She notes that M.S.'s attorney was not present at the 366.26 hearing but relied on county counsel—otherwise representing the Department—to present her views concerning visitation between the two boys. Based on this fact, V.M. asserts that "the sibling exception was not fully addressed because . . . M.S. . . . was represented by county counsel instead of his own attorney." This is a non sequitur; there is no reason to suppose the issue would have been any more thoroughly aired if counsel for M.S. had been present. His attorney obviously did not oppose termination of parental rights or she would have at least made her opposition known. Her position, as conveyed by county counsel, assumed that V.M.'s parental rights would be terminated, but sought an order continuing the existing pattern of sibling visits pending finalization of M.S.'s adoption. Nor is there any reason to suppose that her absence hindered V.M. in urging the sibling exception on her own behalf, as her attorney did.
No error appears in the termination of V.M.'s parental rights.
DISPOSITION
The orders appealed from are affirmed.
_________________
RUSHING, P.J.
WE CONCUR:
______________________
PREMO, J.
_______________
ELIA, J.