In re Christian C.
Filed 8/8/12 In re Christian C. CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
In re
CHRISTIAN C., a Person Coming Under the Juvenile Court Law.
NAPA
COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
SARA V.,
Defendant and Appellant.
A134713
(Napa
County
Super. Ct.
No. JV16395)
Sara
V. (mother) appeals an order of February
15, 2012, following a permanency planning hearing for nine-year-old
son Christian C., that terminated her parental rights and chose adoption for
the boy. She claims erroneous rejection
of the sibling relationship exception to adoption (Welf. & Inst. Code,
§ 366.26, subd. (c)(1)(B)(v)),
but we uphold the ruling and affirm the order.
Background
violence led to the April 2010 filing of this case, but the main issue
before us is not mother’s efforts to reunify, but Christian’s relationship with
half-brother Julio O., who is nearly nine years his senior. Mother had custody of Julio at Christian’s
birth in August 2003, but had no ongoing relationship or support from Julio’s
father. Christian’s father lived with
mother and the boys but left when Christian was three years old, the
relationship soured by domestic abuse and mother’s drinking. The father’s parental rights were also
terminated below, but he does not appeal.
From
ages three to five (2007 to 2009),
Christian and Julio lived with a maternal grandmother in Los
Angeles while mother was in residential treatment for
alcoholism and depression, and it was suspected (by all but mother) that the
grandmother’s boyfriend physically and sexually abused Christian during this
time. Both brothers would report the
physical abuse, and sexualized behavior by Christian suggested his sexual
abuse.
Mother
retrieved the children in April 2009 and settled in Calistoga, where the Napa
County Department of Health and Human Services (department) responded to a
report of the molestation by referring the family to voluntary services. Despite intensive services offered over the
next 12 months, the children remained at risk.
Christian had attention deficit hyperactivity disorder (ADHD) but was
not regularly given prescribed medications for ADHD and insomnia, and poor
academic work and escalating misconduct led to his school recommending that he
repeat the first grade. Mother continued
her alcohol abuse and maintained a combative relationship with an unstable and
alcoholic housemate, Cornelia Vasquez, who drank and fought with mother, and
once threatened suicide in the presence of the boys. Over the course of a year before the
department intervened with this dependency case, there were four referrals for
abuse, neglect, or caretaker absence.
The
years of instability and neglect left both boys “parentalized,” meaning that,
because they felt anxious about the future and their needs being met, each took
on a role reversal, trying beyond his years and maturity to compensate for
mother’s deficiencies. For 15-year-old
Julio this included taking care of Christian on his own, growing frustrated at
the younger child’s misbehavior, and even fighting with him so that Christian
came to see Julio as “mean.” Christian,
just six years old, worried about mother, and felt he had to help her with her
problems. His misbehavior and anger
control also worsened. Household
instability mounted toward the end of that year, and mother was arrested and
hospitalized in February 2010 for alcohol abuse after she “blacked out” and ran
outside naked. Christian’s father was
helping out by driving Christian to and from school and spending some time with
Christian, but this would not last.
An
original petition, filed by the department on April 1, 2010, alleged mother’s
failure to protect Christian (§ 300, subd. (b)) based on 14 allegations
surrounding the recent spate of drinking, domestic violence, and neglect. Julio was the subject of a related petition
that is not in our record. Neither child
was removed, and after all allegations were sustained, jurisdiction was
declared with dispositions of in-home placement for both boys, under a family
maintenance plan.
The
formal intervention did not stem the instability, and the department filed a
supplemental petition (§ 387) in late August 2010, as to Christian only,
seeking a more restrictive placement.
This followed reports of Julio injuring Christian while babysitting him,
Julio protesting against having babysitting responsibility, mother routinely
leaving him in charge of Christian (particularly after Cornelia left following
a fight with mother that the boys witnessed), and Christian not getting his
medications and being suspended from school for choking another child. Christian, now seven years old, was detained
in foster care, and the court sustained the petition, continued foster care,
and granted reunification services at an uncontested hearing in late September
2010.
Christian’s
father was granted services and visits but was now in custody on a probation
violation and facing felony charges for selling and transporting drugs near a
school. He had supervised visits with
Christian for the first two months following the dispositional hearing, but
then was convicted, incurred an immigration hold, and did not see Christian
again after a transfer to state prison to begin serving a five-year term.
Mother’s
initial progress was promising, and her services were extended at a six-month
review in March 2011. Just weeks
afterwards, however, came a relapse in treatment that triggered a precipitous
regression. She was arrested and charged
in early May for domestic violence inflicted against Cornelia V. during a night
of drinking, and Julio was placed in foster care with Christian. The arrest led to mother’s transfer to the
United States Immigration and Customs Enforcement. Upon release a month later, mother resumed
drinking and, by the time of a 12-month review in early October 2011, was
denying her problems, discharged from another treatment program, and falsifying
attendance for 12-step-program meetings.
The court terminated reunification services and set a plan selection hearing
for Christian, now eight years old.
Christian
remained in the foster care of Paul and Nina P. for the 18 months between his
removal and a plan hearing on February 15, 2012, and he made progress described
as “greatly improved,” “excellent,” “tremendous,” and
“ ‘amazing.’ ” The P.’s were
experienced educators with the patience and maturity to deal with Christian’s
special needs. They provided him with
consistent rules and limits, a loving and structured home, medical and
psychiatric support, homework support, and music and sports activities. Christian stabilized on his medications and
made a good emotional adjustment, his misbehaviors “greatly decreased at home
and at school.” He went from an
aggressive and disruptive first grader working “far below grade level,” with
poor attention skills, to a second-grade child excited about school, performing
at grade level in all subject areas, good at reading, math and science, and
with outside interests and no reported misconduct. He completed a summer enrichment program to
prepare for second grade, had a “loving and affectionate relationship” with the
P.’s, and ceased being clingy when they left him. He slept well, felt safe, and was calmer,
happy, and less worried—“like a very different kid.” While no longer anxious about his own
welfare, he did continue to worry about mother.
For example, the bilingual boy wanted to teach mother some English,
having heard from her that her poor English skills meant that she could lose
her job.
The
boys’ relationship also improved. While
the prior pressures of caring for Christian had evoked frustration, abuse and
anger from Julio, and resulting apprehension from Christian, Julio was
surprised to find that he missed Christian after Christian was removed to
foster care. Also mending their “very
troubled relationship” were four months that the boys spent together in the
foster home after mother’s incarceration.
Having Julio in the home had been the foster parents’ idea, concerned
for Julio and his importance to Christian after reading about mother’s
arrest. The P.’s made Julio part of
their family, and the boys, free of the former pressures, grew closer and
seemed to love one another. Christian,
who had once regarded Julio as “mean” to him, now said Julio was “nice” and said
he wanted to see Julio.
Julio
left the foster home after four months to live with an aunt and uncle in Napa,
wanting to live with family and to attend high school there. He did not seek visits with Christian for
several months afterward and, now 17 years old, reported that he had been busy
reconnecting with family and friends. He
did seek visits in November 2011 and, while authorized to have more, had
them only twice a month. Christian did
not seek more frequent visits, and his behavior, as the visits decreased, did
not show adverse effects.
Meanwhile,
the P.’s wanted to adopt, and a state adoption assessment based in part on time
spent with the adoptive family, found Christian to lack developmental problems
and have a strong relationship with the P.’s, and that they were committed to
adoption. The assessment also observed
that Julio could have stayed in the home and been adopted by the P.’s, but
chose instead to live with his relatives.
“Christian,” it found, “has made an excellent adjustment to his foster
placement and he and his foster parents have grown to love each other and share
a close and affectionate relationship.
The foster parents have demonstrated an ability to meet [his] emotional,
mental health and behavioral needs.
Christian has blossomed under their care and he is doing well in school,
loves to read, sing in his school choir and play football.” The assessment urged adoption and terminating
parental rights as in his best interests because “Christian’s need for
permanency outweighs all other considerations in this matter. Christian is only 8 years old and has
suffered from years of neglect and instability.
It is vital for [him] to have the consistent love and support of
caregivers who can adequately meet his needs, and which is necessary for him to
grow and develop into a healthy and well adjusted adult.”
One
issue explored at the plan hearing was whether adoption might end all contact
between the brothers, a prospect that evidently moved Julio to contest the
adoption plan. Statutory provisions
authorize an agreement for post-adoption contact between birth relatives and a
child if found to be in the child’s best interests (Fam. Code, § 8616.5), and the P.’s did want continued
contact and had expressed a willingness to have it, measuring Christian’s best
interests as dependent on Julio’s behavior and level of continuing interest in
his brother. Nevertheless, while
adoptive parents’ ability to change their minds left no way to guarantee
continued contact, the P.’s had already shown a commitment to continuing
contact by taking Julio into their home while mother was incarcerated, and
social worker Lauren Harris was confident from her discussions with the P.’s
that there would be contact. Also, if
contact were to cease after adoption, there is a procedure whereby, at age 18,
each sibling could seek contact through the state adoptions agency, and contact
would resume if mutually desired.
Julio
testified at the hearing, recounting his long relationship with Christian since
infancy, tearfully expressing his love for Christian, sense of mutual love,
that Christian meant “the whole world” to him, and that he did not want to
“lose” Christian or have Christian lose contact with his relatives and Hispanic
heritage. Their mother is Guatemalan, and
their fathers Nicaraguan and Mexican, while the P.’s are not Hispanic, and
Julio worried that Christian was losing his Spanish language ability. He also wanted Christian to meet and get to
know a son his sister in Los Angeles was carrying, who would make them both
uncles. Julio, now 17 years old and due
to graduate from high school in 2014, also testified that he wanted to “get the
chance to be able to adopt” Christian.
Julio said that his plans upon graduating were to stay in Napa, get a
part-time job and continue with his studies.
Harris,
who authored the plan hearing report, testified that Christian’s need for
permanence outweighed all other considerations, “not discounting the
relationship that he . . . has with his brother or that he loves his
brother or that his brother loves him[.]”
She saw his best interests being served even 40 years hence, when the
foster parents might be gone, because he would “internalize that security and
safety over time” and be better equipped “to go out and navigate the
world.” She called “conjecture” the risk
of him being isolated with only a brother left.
To the contrary, she felt: “[T]he
risk of him not having permanence increases the likelihood of him being that
lonely person that only has one person in his life, and that he has his foster
parents that will adopt him and their extended family. And the family that he builds for himself,
. . . whether he goes out, has intimate relationship[s] and has
children of his own.” She also saw
“irony” in that the boys had a “very troubled relationship” during the time
Julio was forced prematurely to take care of Christian due to mother’s alcohol
abuse and domestic violence, while the foster parents had “very much
understood” that Christian was “part of another family.” They had reached out to mother to facilitate
visits and then, once they had a relationship with him, reached out to Julio
when he was in need after mother’s arrest, when Christian was worried about his
brother, and that this enabled the brothers to develop an improved
relationship. She had met with the
Christian and the family in the home, and understood that he wanted to continue
seeing Julio and mother, that Julio felt very close to his brother, and that
Christian wanted to meet his nephew (due in three months). “[T]he whole irony,” she explained, “is that
this family understands the bigger concept of adoption. That it’s not a child they birthed and
raised, that he’s also, you know, part of another family.”
As
for concern about Christian losing his cultural background, Harris
reasoned: “I think just the loss of
the language isn’t necessarily an indicator.
There’s lo[t]s of children who grow up in the United States with parents
of Hispanic origin . . . who don’t speak their native tongue. I think that the foster parents are aware of
the cultural difference and, and will make efforts to incorporate that into
their life. [¶] I know
that Christian’s elementary school is 75 percent Hispanic, and that most
of his friends are Hispanic. That now
that he’s no longer an English language learner he’s going to be taking Spanish
classes at school.”
Harris
also questioned how available Julio would be for Christian: “Julio’s at an age [nearly 18 years old]
where he’s developmentally going to be appropriately doing what he wants to
do. And, you know, he was with Christian
in a foster home and . . . he chose to go and live with
relatives. He wanted to be back in Napa. He wanted to be with his friends. The door was open for him, to have lots
. . . more contact and be able to visit Christian with [the] foster
parents, spend weekends up there. [¶] He didn’t
exercise that during the initial months that he was placed back in Napa with
his aunt and uncle. And when I really, I
asked him about that he was like, oh, I was really busy with friends. And he’s very focused on what he needs to be
focused on right now. He has told me
when he turns 18 he is either going to go live with mom or live with his sister
in Los Angeles. He keeps talking about
going to Los Angeles. [¶] So
how much can he really be there for Christian[][
is getting older, might go off to school.
Might get a job somewhere. I
might not see him that often. So that’s
the thing to consider, as well. Julio is
going to . . . make decisions as a young adult that are based on his
self-interest. [¶] So it’s
not like he’s going to be there seeing his brother on an ongoing basis. He may move to LA and not see his brother
very often. No matter where Christian
is. And again, what Christian needs is
that stable, loving, secure, consistent environment so that he can grow up to
be a healthy and productive young adult.”
The
court, in ruling to terminate parental rights, first acknowledged Julio’s
concerns and observed that, while everyone hoped the brothers’ relationship
would continue, an adoption decision could not rest on that assumption. Then the court next turned to the notion of
Julio adopting Christian, an idea arising late in the hearing, and found it to
be an unreasonable basis for ruling:
“[T]hat is, at a minimum, speculative.
And probably just looked at with [a] cold eye of those in this position,
it is just unlikely that an 18 year old can provide a home, or steady job, or
experience, or any of the other attributes we look for in adoptive parents
. . . . , that that would happen.
The
court then segued into weighing the sibling relationship against the benefit of
permanence, and reasoned: “[Rejecting
adoption] would mean Christian would be in our juvenile dependency system for a
long, long time. And . . . it
is quite likely that the P[.’s] would say, well, if we can’t adopt Christian,
we want to adopt a child, so we are going to find a child we can adopt. They may decide they might not, but they
might decide that Christian should live elsewhere. And there’s no assurance that Christian would
have a steady, permanent, continuous, loving, supportive home without making
this decision [for adoption]. [¶] And
that is . . . with the understanding that any time parental
right[s are] terminated and any time a relationship with a family member is put
into question, there is detriment. But
the detriment in this case is vastly, vastly outweighed by the care and
progress that [the P.’s] made with Christian.
[¶] There’s
been no doubt [they] have done a wonderful job in dealing with a child who
suffered grave trauma, which resulted in severe behavioral problems. As many other prospective adoptive parents
would say, he’s too much for us. But
they, clearly [have] persevered.
Christian is . . . in a safe warm place that he will thrive in
and that has to be the basis for the decision.”
Discussion
The
law is perhaps best stated in a decision discussing the sibling relationship
exception along with the related parental relationship exception. “Adoption must be selected as the permanent
plan for an adoptable child and parental rights terminated unless 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
. . . .’ (§ 366.26,
subd. (c)(1)(B).) ‘[T]he burden is
on the party seeking to establish the existence of one of the section 366.26, subdivision
(c)(1) exceptions to produce that evidence.’
[Citation.]” (
1308, 1314 (Bailey J.).)
“[Two]
standards of review come into play in evaluating a challenge to a juvenile
court’s determination as to whether [either] exception to adoption applies in a
particular case. Since the proponent of
the exception bears the burden of producing evidence of the existence of a
beneficial parental or sibling relationship, which is a factual issue, the
substantial evidence standard of review is the appropriate one to apply to this
component of the juvenile court’s determination. Thus, . . . a challenge to a
juvenile court’s finding that there is no beneficial relationship amounts to a
contention that the ‘undisputed facts lead to only one conclusion.’ [Citation.]
. . . .
“The
same is not true as to the other component . . . . [A] finding that the relationship is a ‘
to the child is based on the facts
but is not primarily a factual issue. It
is, instead, a ‘quintessentially’ discretionary decision, which calls for the
juvenile court to determine the importance
of the relation-ship in terms of the detrimental impact that its severance can
be expected to have on the child and to weigh that against the benefit to the
child of adoption. [Citation.] Because this component of the juvenile
court’s decision is discretionary, the abuse of discretion standard of review
applies.” (Bailey J., supra,
189 Cal.App.4th at pp. 1314-1315; accord, In re K.P. (2012) 203 Cal.App.4th 614, 622 [adopting the
Factors
guiding the sibling relationship exception are “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); Bailey J.,
p. 1317.)
Mother
does not challenge the court’s reasoning that Julio could not likely offer a
proper adoptive home anytime soon, or the social worker’s reasoning that
Christian’s Hispanic friends and schoolmates made it unlikely that he would to
lose his cultural identity by using English over Spanish, or by having
non-Hispanic adoptive parents. Arguably,
the cultural identity of prospective adoptive parents is, in any event, more
appropriately considered in selecting which prospective adoptive parents are
chosen, rather than in deciding whether the benefits of adoption outweigh those
of ensuring a sibling relationship. We
are cited no authority on that point, but in any event, mother’s arguments are,
rather, that the record shows a significant sibling relationship and that this
justified foregoing the permanence of adoption.
It
does not appear that the court had serious doubt that there was a relationship
marked by significant common experiences, living together, and strong
bonds. There is substantial evidence
from which the court could conclude that Julio’s professed bond to Christian
was not quite as strongly reciprocated, for while Christian certainly wanted to
keep seeing Julio, he was secure and well adapted with his caregivers and showed
no long term adverse effects from diminished sibling contact after Julio moved
out of the home. His remarks to Harris
also show considerable maturity in realizing that Julio could and would, as he
reached adulthood, take opportunities available to him that could lessen their
contact. The court could also find some
negative potential in the boys’ relationship, given evidence of how strained it
had been before Christian was removed to foster care. But it does appear, on ample evidence, that
the court found a beneficial relationship that, other circumstances being different, might outweigh the benefits of
adoption. The difficult question—and the
one subject to our deferential review for abuse of discretion—was whether that
relationship warranted rejecting adoption.
We
see no abuse of discretion in opting for adoption. The permanence and stability of adoption are
powerful benefits in any case, but especially powerful here, where the child,
just a year and a half earlier, had been on the precipice of emotional and
developmental disaster due to years of neglect and instability. The court had to bear in mind that the
seemingly well adjusted and stable child Christian turned out to be, in fact
had continuing special needs from years of neglect and trauma. He had been wonderfully transformed by 18
months of uninterrupted and consistent care.
To deny permanence to this child, in favor of guaranteeing a continued
relationship with a brother who could not fill that need, risked losing the
gains made and leaving Christian with a relationship, but few other resources
for molding an emotional identity essential to long range growth and
maturation. The court’s remarks reflect
those concerns, and no abuse of discretion appears on this record.
Disposition
The
order is affirmed.
_________________________
Kline,
P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
Welfare and Institutions Code.
at the time of mother’s arrest had been approached about having Christian
placed with them, but declined. The aunt
felt that they could not meet Christian’s needs.
