In re Ar. J.

 

 

 

Filed 1/27/14  In re Ar. J.
CA2/7

 

 

 

>NOT TO BE PUBLISHED IN THE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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION SEVEN

 

 
>

In re AR. J. et al., Persons Coming Under the Juvenile Court Law.	B249171
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,               Plaintiff and Respondent,               v.   ROBERTA J.,               Defendant and Appellant.	(Los Angeles County       Super. Ct. No. CK88159)

 

 

                        APPEAL
from an order of the Superior Court of Los
Angeles County, Jacqueline H. Lewis, Juvenile Court Referee.  Affirmed.

                        Anne
E. Fragasso, under appointment by the Court of Appeal, for Defendant and
Appellant.

                        John
F. Krattli, County Counsel, James M.
Owens, Assistant County Counsel, and Kim Nemoy, Senior Deputy County Counsel,
for Plaintiff and Respondent.

_________________________

            Roberta
J. (Mother) has four children,
A.S. (born 2002), Mario, (born 2003) Ar. J. (born 2006) and Au. J.(born 2009).  All of them had different fathers, and none of
the fathers are parties to this appeal.  Mario
lives out of state with his father and was not a party to these
proceedings.  Mother appeals from an
order of the juvenile court on May 8, 2013, terminating her href="http://www.fearnotlaw.com/">parental rights as to Ar. J. and Au. J.  We affirm the order of the juvenile court.

FACTUAL AND PROCEDURAL BACKGROUND

            The
Los Angeles County Department of href="http://www.sandiegohealthdirectory.com/">Children and Family Services
(DCFS) filed a petition on June 7, 2011, pursuant to href="http://www.mcmillanlaw.us/">Welfare and Institutions Code section
300,href="#_ftn1" name="_ftnref1" title="">[1] with respect to A.S., Ar.
J. and Au. J., alleging that Mother had physically abused the children and
medically neglected them (subds. (a) and (b)), failed to provide for them
(subd. (g)) and placed their siblings at risk of physical abuse (subd. (j)).  At the time, A.S. was nine, Ar. J. was five
and Au. J. was 18 months old.  Ar. J. had
been diagnosed with ADHD.  After DCFS unsuccessfully
attempted to place the three girls together, A.S. and Ar. J. were placed in one
foster home and Au. J. was placed in another.

            An
aunt and a godmother were investigated for placement.

            On
August 15,
2011, an adjudication hearing was held.  The petition was amended and Mother waived
trial rights and pled no contest to the amended petition.  The court sustained the allegations as to
subdivisions (b) and (g), as amended. 
The sustained allegations were that Mother had inappropriately
disciplined the children by striking them; Mother had left them in the care of an
unrelated adult during which time Ar. J. had sustained a burn to her chest;
Mother uses marijuana which affects her ability to supervise and care for the
children; Mother had been diagnosed with bi-polar disorder and depression but
did not take her medication or maintain mental health management, interfering
with her ability to care for the children; and the children’s fathers failed to
provide for their daughters and their whereabouts were unknown.

            A
contested disposition hearing was set for October 11, 2011.  During this time, Ar. J.
was placed in three different homes.  On September 12, 2011, she was placed in the licensed foster home of Felicia M.

            Au.
J. was placed in the home of Brenda D. on June 2, 2011.  This was her only placement since detention.  Brenda D.’s home was a two-bedroom, one-bathroom
apartment.  The social worker reported Au.
J. had her own bedroom that was filled with age-appropriate furniture and
toys.  Everyone in the home spoke English
and Brenda D. was observed to be attuned to Au. J.’s needs and wants while
enforcing age appropriate rules and discipline.  Brenda D. had an adult daughter who sometimes
cared for Au. J.

            On
October 11th, maternal grandmother, Ellen M., filed a section 388 petition
requesting legal guardianship of the children. 
On November 15th, the court denied the section 388 petition.

            On
February 3, 2012, the court held a disposition hearing.  It ordered all three girls removed from
Mother’s custody.  A.S. was released to
her father’s custody and jurisdiction as to her was terminated.  The court ordered reunification services for
Mother and monitored visitation, with no discretion to liberalize.  A section 366.21, subdivision (e) hearing was
set for September
6, 2012.

            In
August 2012, the social worker reported Ar. J. was doing well with her foster
parent Felicia M.  She was having
difficulties in kindergarten but was now taking psychotropic medication and was
receiving therapy.  The  caregiver was willing to become a legal
guardian.  Au. J. was also bonded with
her foster parent, Brenda D.  She called
her “Aunty “ or “Mommy.”  She was
developmentally on target with no behavioral issues.  Brenda D. was willing to adopt Au. J.  Ar. J. did not visit with Au. J. because of
Felicia M.’s work schedule. 

            Mother
had not been in compliance with the case plan. 
She had not followed up with her mental health referral by failing to
take prescribed medications.  She was
disruptive during group counseling, so she was only enrolled in individual
counseling but was not attending her scheduled sessions.

            Mother
was enrolled in random drug and alcohol testing but had 9 “no shows.”  She has submitted 10 urinalysis tests during
2012, all with negative results.  Mother
had been arrested three times during 2012. 
She was convicted of battery against a spouse or cohabitant.  Mother had not been consistent with
visits.  At a birthday party for Ar. J.,
law enforcement arrived to arrest Mother. 
Au. J.’s foster mother reported that Mother slashed the tires of a woman
who came to drop off a present for Ar. J. 
Ar. J.’s foster mother reported that Mother’s visits went well and no
behavioral problems were reported after the visits.

            Mother
was inconsistent with visits to Au. J. and rude to her foster mother.  The foster family social worker observed a
lack of attachment between Au. J. and Mother.

            At
the September
6, 2012 hearing, the court terminated
reunification services for Mother and set a section 366.26 hearing for January 3, 2013.  In January 2013, the social
worker reported that Mother no longer visited the children but had called them
sporadically.

            At
the January 3rd hearing, the court received the DCFS reports and ordered
additional reports.  That hearing was
continued until May 6, 2013. 

            On
April 3, 2013, the social worker wrote in a report that Ar. J.’s foster mother,
Felicia M., had expressed her desire to maintain custody and follow through
with the adoption home study process. 
The social worker gave her the home study packet and explained the home
study process to her.  Felicia M. is a
divorced 47-year-old woman with two adult children who do not live in the
home.  She had been an employee of a
nearby city for over 14 years.  She had
another foster child who did not wish to be adopted.  Felicia M.’s 4-bedroom, 2-bathroom home was
clean and nicely furnished, and the children had clean clothes and ample food.  When the social worker was discussing the
adoption home study process with Felicia, Ar. J. appeared attached to Felicia,
and moved about the home freely.  There
were six previous referrals for Felicia M. as a foster parent, but all of them
were determined to be either inconclusive or unfounded.  Felicia M. believed she had an approved home
study on file with DCFS, and the social worker said she would request it.  

            A
maternal great aunt, who was also a candidate for an adoptive parent, indicated
she no longer desired to adopt Ar. J. 

            Brenda
D. had another female foster child in addition to Au. J.  She had an approved home study on file that was
being updated for Au. J.  The home was
nicely furnished, child-friendly and had ample food supplies.  Au. J. and the other foster child insisted on
dressing alike, so Brenda D. purchased two of every clothing item for
them.  Brenda D. was also planning on
adopting the other foster child.  Brenda
D. did not want to adopt Ar. J.

            The
social worker reported that Felicia M. and Brenda D. were working together to
make sure Au. J. and Ar. J. had continued contact.

            At
the section 366.26 hearing which commenced on May 6, 2013,
Mother testified.  She said she visits Ar.
J. on Sundays for approximately 2 hours and visits Au. J. on Fridays for
approximately one hour.  They both jump
on her and ask her when they are coming home. 
She testified Au. J. asks about A.S. and Ar. J. and why they can’t talk
to their sister.  Both try to follow her
out at the end of the visits.  Ar. J.
“just wants to come home.  She misses her
sisters.  She really doesn’t understand
why they’re separated.  So she cries.  She calls me. 
She constantly cries.”  She also
stated, Au. J. “just wants to come home. 
All she wants is her sisters.  She
doesn’t understand why she has to realize that it’s two mommies.”

            At
the continued hearing on May 8, 2013, Ar. J., then seven
years old, testified in chambers.  The
court commissioner and the children’s counsel asked her several questions to
determine whether she knew the difference between the truth and a lie.  It was apparent from several questions, such
as the color of her dress, Ar. J. could not distinguish between what was the
truth and what was a lie.  Upon
questioning by Mother’s counsel, Ar. J. said she last saw Mother when she was
six years old, and talks to her on the phone. 
She asks Mother if she can call her sisters.  When questioned, she said she would like to
visit with her sisters and Mother more. 
She said she wanted to live with her “foster auntie” until she sees her “real
mom” and wishes she could live with Mother. 
She thought adoption was “fun.”  But
when asked “And would you be sad if you couldn’t see your mom anymore?”  she said “I don’t know.”  When asked if she would be sad if she
couldn’t see her sisters any more, she said “Nope.”

            The
court found by clear and convincing evidence, that both Ar. J. and Au. J. were
adoptable.  It found it would be
detrimental for the children to be returned to Mother.  It did not find any exceptions to adoption
applied.  It found Mother had not
maintained regular and consistent visits with the children nor was the relationship
between Mother and the children such that it would outweigh the benefit to the
children of stable and permanent homes. 
It stated, “And while the home studies are not completed, the Court
doesn’t see any impediments to the completion of those home studies and,
therefore, no impediment to the adoptions. . . .  [Ar. J.]’s testimony was actually very telling
in regards to, frankly, her ambivalence in regards to visitation, or further
visitation, and even in regards to the relationship of the siblings.”  It terminated Mother’s parental rights and
designated the girls’ current caretakers as prospective adoptive parents.  Mother filed an appeal from these
orders. 

            Minute
orders from the dependency court show that after the briefs were filed on
appeal, the matter was called for a hearing on November 6, 2013 .  The court found that the
placement of Ar. J. and Au. J. was necessary and appropriate, the permanent
plan of adoption and a specific goal of adoption were appropriate and ordered
as a permanent plan, and the matter was continued until May 7, 2014, for a review of the permanent plan.  DCFS was to ensure that regular sibling
visitation would occur at least twice monthly. 


DISCUSSION

            1. 
Sibling exception to Adoption

            Mother
contends the juvenile court erred in finding the sibling relationship exception
to adoption did not apply.

            At
a section 366.26 hearing, the court must select and implement a permanent plan
for a dependent child.  Where there is no
probability of reunification with a parent, adoption is the preferred permanent
plan.  (In re Celine R. (2003) 31 Cal.4th 45, 61.)  The express purpose of a section 366.26
hearing is “to provide stable, permanent homes” for dependent children.  (§ 366.26, subd. (b).)  Once reunification efforts have been found
unsuccessful, the state has a “compelling” interest in “providing stable,
permanent homes for children who have been removed from parental custody” and
the court then must concentrate its efforts “on the child's placement and
well-being, rather than on a parent's challenge to a custody order.”  (In re
Marilyn H. (1993) 5 Cal.4th 295, 307.)  When the court finds by clear and convincing
evidence the child is likely to be adopted, the statute requires the court to
terminate parental rights unless the parent opposing termination can
demonstrate one of six enumerated exceptions applies.  (§ 366.26, subd. (c)(1)(B); >In re Matthew C. (1993) 6 Cal.4th 386,
392.)

            One
of those exceptions is the sibling relationship exception, found in section
366.26, subdivision (c)(1)(B)(v).  The
purpose of the sibling exception is to preserve longstanding 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.)  â€œ[T]he concern is the best interests of the
child being considered for adoption, not the interests of that child’s
siblings.”  (In re Naomi P. (2005) 132 Cal.App.4th 808, 822; In re Celine R., supra,
31 Cal.4th at pp. 49-50.)

            A parent asserting the sibling
exception bears the burden of demonstrating the existence of a strong sibling
relationship, and showing its severance would be detrimental to the child for
whom a permanent plan of adoption is being considered.     (In
re L.Y.L. (2002) 101 Cal.App.4th 942, 952.)

            Application of this exception
requires a two-step analysis.  First, the
juvenile court must determine whether terminating parental rights would
substantially interfere with a sibling relationship, evaluating the nature and
extent of the relationship, including whether the children were raised in the
same home, share significant common experiences, and have close and strong
bonds.  Second, if the court concludes
termination of parental rights would substantially interfere with a sibling
relationship, it must then weigh the child’s interest in continuing the sibling
relationship against the benefit the child would gain from adoption.  (§ 366.26, subd. (c)(1)(B)(v); >In re L. Y. L., supra, 101 Cal.App.4th at pp. 951-952.)

            The mere existence of a positive
sibling relationship does not trigger the exception.  â€œMany 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.”  (>In re L. Y. L., supra, 101 Cal.App.4th
at p. 952.)  The juvenile court must “balance
the beneficial interest of the child in maintaining the sibling relationship,
which might leave the child in a tenuous guardianship or foster home placement,
against the sense of security and belonging adoption and a new home would
confer.  [Citation.]”  (Id.
at p. 951; see also In re Jacob S.
(2002) 104 Cal.App.4th 1011, 1017, disapproved on another point in >In re S.B. (2009) 46 Cal.4th 529.)  Because adoption is the Legislature’s strongly
preferred permanent plan for children for whom reunification is no longer
possible, the significant benefits of adoption may outweigh even a substantial
detriment.  (In re Jacob S., supra, 104 Cal.App.4th at p. 1018.)

            On
appeal, we review the factual decision of whether a significant sibling
relationship exists for substantial evidence. 
The juvenile court’s decision of whether termination of that
relationship would be detrimental to the child is reviewed under the abuse of
discretion standard.  (>In re K.P. (2012) 203 Cal.App.4th 614,
621-622, citing In re Bailey J.
(2010) 189 Cal.App.4th 1308, 1314-1315.)

            The
juvenile court found Ar. J. and Au. J. to be adoptable, and although the court
concluded that a relationship existed among the children, the court concluded
that the sibling exception did not apply.

            Substantial
evidence supports the juvenile court’s determination that a significant sibling
relationship did not exist.  Prior to the
filing of the petition, Ar. J. and Au. J. had only lived together for the first
18 months of Au. J.’s life.  After the
petition was filed, they were placed in separate homes and were separated for
the next 23 months.  Given their young age and the relatively brief period they
lived together, Au. J. and Ar. J. did not have the type of relationship this exception
was designed to protect.  Despite
Mother’s testimony, there was no evidence that the relationship between Ar. J.
and Au. J. was particularly close or strong. 
Although Ar. J. testified she would like to visit her sisters more, she
said she would not be sad if she could not see them.

            Ar.
J. and Au. J. had spent approximately two years in their foster homes, homes
the social workers characterized as caring and appropriate.  Felicia M. was equipped to handle Ar. J.’s
special needs.  Felicia M. and Brenda D.,
the prospective adoptive parents, reported a willingness to permit continued
visitation with the siblings.  

            Even
if we were to assume that the evidence was sufficient to establish a detriment
to either girl from the termination of parental rights, the balance of the
sibling relationship versus the benefits of adoption clearly tilts in favor of
the adoptions.  The girls had thrived for
almost two years in the home of their foster mothers, who were prepared to
adopt each of them.  They attended to their
medical, physical, emotional, and psychological needs.  Failing to terminate parental rights would
have deprived Au. J. and Ar. J. of the permanent homes that their caregivers
were prepared to provide to them.  Their
immediate needs are stability and permanence.  (See In
re Valerie A. (2007) 152 Cal.App.4th 987, 1014 [“the application of [the
sibling] exception will be rare, particularly when the proceedings concern young
children whose needs for a competent, caring and stable parent are paramount”].)
 We do not question the siblings’ love
for each other, young as they are, and assume their foster mothers will make
every effort to maintain those relationships.  Indeed, as the court recognized, both proposed
placements  have proved eager to maintain
the children’s connection with their siblings.

            A closely bonded relationship
between siblings may, in rare cases, constitute sufficient reason to preclude
the termination of parental rights of an otherwise adoptable child.  The evidence in the record does not show this
is that rare case of a significant and strong sibling bond sufficient to defeat
the termination of parental rights.  Ar.
J. has never spent any substantial period of her life living with Au. J.  Mother has not demonstrated that the children
shared significant common experiences or have close and strong bonds.  While the minors have some connection and know
of each other’s existence, we are not convinced termination of parental rights
will substantially interfere with these relationships.  Even if termination of parental rights will
effect a change in the siblings’ relationship, the juvenile court did not abuse
its discretion in concluding that the benefits the children will surely reap in
a secure, stable home with a loving and supportive adoptive family vastly
outweigh maintaining a “legal” sibling relationship.  The juvenile court properly concluded the
sibling relationship exception did not apply.

            2. 
Absence of Completed Home Studies

            Mother
contends the court should not have terminated her parental rights before the
adoptive home studies had been completed.

            A
court may terminate parental rights even if an adoption home study has not been
completed.  (In re Marina S. (2005) 132 Cal.App.4th 158, 166.)  Section 366.26, subdivision (c)(1) provides
in pertinent part: “The fact that the child is not yet placed in a preadoptive
home nor with a relative or foster family who is prepared to adopt the child,
shall not constitute a basis for the court to conclude that it is not likely
the child will be adopted.”

            At
this hearing, the question the juvenile court had to determine was whether the
girls were likely to be adopted within a reasonable time.  The question of whether the adoptive parents
were suitable is left for the subsequent adoption proceeding.  (In re
Scott M. (1993) 13 Cal.App.4th 839, 844.) 
In addition, the court had before it the social worker’s report
indicating that both foster mothers had completed prior home studies and both
had other foster children.  The
observations of the social worker about the homes also indicated that nothing
was amiss but the prior home studies would be verified.

            Mother
relies on In re >Salvador> M. (2005) 133 Cal.App.4th 1415. 
In Salvador M., the home study
had not been completed at the time of the section 366.26 hearing but had been
completed by the time the case was considered on appeal.  The issue regarding the home study thus
became moot.  (Id. at p. 1422.)  While the >Salvador M. court stated in dicta that
it would have been better procedure to have continued the hearing until the
home study was approved, it did not hold that a juvenile court abuses its
discretion when it refuses to continue a section 366.26 hearing to permit an
adoption home study to be completed.  (>Ibid.)

            On
these facts, the court was not required to have completed home studies before
making its order.

 

DISPOSITION

 

            The
order of the juvenile court terminating Mother’s parental rights as to Ar. J.
and Au. J. is affirmed.

 

 

 

                                                                                                                        WOODS,
J.

 

We
concur:

 

 

 

                        PERLUSS, P. J.

 

 

 

                        ZELON, J.