In re Gabriel B.
Filed 8/7/13 In re Gabriel B. CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
>
In re GABRIEL B., a Person Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. GABRIELA B., Defendant and Appellant. | D063710 (Super. Ct. No. NJ14200C) |
APPEAL from
a judgment of the Superior Court
of
County, Michael J. Imhoff, Commissioner. Affirmed.
Terence M.
Chucas, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Montgomery,
County Counsel, John E. Philips, Chief Deputy County Counsel and Erica R.
Cortez, Deputy County Counsel, for Plaintiff and Respondent.
Gabriela B.
appeals the judgment terminating her parental
rights to her two-and-one-half-year-old son, Gabriel B. She contends the court erred by declining to
apply the sibling relationship exception (Welf. & Inst. Code,
§ 366.26, subd. (c)(1)(B)(v))
name="_ftnref1" title="">[1]
to termination of parental rights. We
affirm.
BACKGROUND
In August
2009, the San Diego County Health and
Human Services Agency (the Agency) filed dependency petitions for
Gabriela's sons (together the siblings) Angel B., then nearly 10 years old, and
Fernando A., then five and one-half years old.
The petitions alleged domestic violence between Gabriela and the
siblings' father. In September, the
court made true findings on the petitions.
In June 2010, Gabriel was born.
In February 2011, at the siblings' 18-month review hearing, the court
ordered the siblings returned to Gabriela's care.
In August
2011, when Gabriel was one year old, the Agency filed a
following allegations: Gabriela had resumed
drinking alcohol to excess, exacerbating the risk of domestic violence; she was
in a new relationship with a man, and had a history of exposing the siblings to
domestic violence; and she had been leaving Gabriel and the siblings home
alone.
Gabriel was
detained in Polinsky Children's Center for a few days and then moved to a
foster home. The Agency filed a
the siblings, and they were detained in a different foster home.
In October
2011, the court made true findings on Gabriel's petition and ordered him placed
in foster care. At the six-month review
hearing in April 2012, the court set a section 366.26 hearing. In December, Gabriel was moved to the home of
an approved family that wished to adopt him.
That family had not decided whether it would be willing to care for the
siblings.
The section
366.26 hearing for Gabriel and the siblings was held in February 2013. The Agency recommended permanent plans of
adoption for Gabriel and Fernando, and another planned permanent living
arrangement for Angel.
name="_ftnref2" title="">[2] The Agency hoped to find an approved family
willing to accept the recommended permanent plans: adopt Gabriel and Fernando; and care for
Angel long-term. The siblings had a
strong bond with each other.
The court
terminated parental rights to two-and-one-half-year-old Gabriel. The court found there was a probability of
adoption for 14-year-old Angel and eight-year-old Fernando, but they were
difficult to place for adoption because they formed a sibling group. (§ 366.26, subd. (c)(3).) The court directed the Agency to search for
an adoptive home for Gabriel and the siblings together. The court set a further section 366.26
hearing for the siblings, to coincide with a postpermanency planning review
hearing for Gabriel.
DISCUSSION
The Agency
has filed a motion to augment the
appellate record with postjudgment evidence and to dismiss this appeal as
moot. The evidence consists of notices
the Agency filed in the juvenile court on April 29, 2013, stating it had found an adoptive home for
Gabriel and the siblings, and planned to move the siblings on April 8 and
Gabriel on April 10 to that home.
Gabriela opposes the motion, arguing it is untimely and citing the
general rule that judgments are reviewed according to the evidence that was
before the trial court. We grant the
augmentation motion, and take into account the fact Gabriel and the siblings
were moved into a prospective adoptive home in April. The new evidence does not render the appeal
moot, however; it merely suggests that termination may not substantially
interfere with the relationship between the siblings and Gabriel. We decline to dismiss the appeal.
If a child is
adoptable,
the court must terminate parental rights at the section 366.26 hearing unless
the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1).) Section 366.26, subdivision (c)(1)(B)(v),
provides an exception when termination would substantially interfere with the
child's relationship with sisters or brothers and the severance of the
relationship would be so detrimental to the child to outweigh the benefits of
adoption. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-953; § 366.26, subd.
(c)(1)(B)(v).) 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." (
567, 575.) Factors to be considered
include whether the children were raised in the same home; whether they shared
significant common experiences or have existing close and strong bonds; and
whether ongoing contact is in the child's best interests, including his or her
long-term emotional interests, as compared to the benefits of adoption. (§ 366.26,
subd. (c)(1)(B)(v).) "[T]he
application of this exception will be rare, particularly when the proceedings
concern young children whose needs for a competent, caring and stable parent
are paramount." (
987, 1014.)
Here, the
court found termination of parental rights would not substantially interfere
with Gabriel's relationship with the siblings and, in any case, the benefits he
would derive from adoption would outweigh any benefits from ongoing sibling
contact. Examining the evidence most
favorably to the judgment, we conclude substantial evidence supports the
finding. (In re L.Y.L., supra, 101 Cal.App.4th at pp. 947, 952.) Gabriel lived with the siblings for only six
months, between February and August 2011.
He did not live with them for the first eight months of his life, or
during the one and one-half years between the date of his detention and the
date of his section 366.26 hearing. The
Agency intended to find a single permanent placement for Gabriel and the
siblings, and during this case they had regular visits.
visits. When he saw them, he did not run
to greet them. He reacted to them as he
did to the social worker or any other friendly visitor. At the end of visits, Gabriel "just
[walked] away and . . . only sometimes [said]
bye." The social worker believed
Gabriel did not have a strong bond with the siblings.
Gabriela
argues the Agency's efforts to place Gabriel with the siblings, and the court's
order that the Agency find one adoptive home for all three boys, are
inconsistent with the Agency's assertion and the court's determination that the
sibling relationship exception did not apply.
There is no inconsistency. This
appeal concerns Gabriel only. The issue
is whether, if termination would substantially interfere with the sibling
relationship, detriment would befall Gabriel, not the siblings. (In re
Celine R. (2003) 31 Cal.4th 45, 54.)
The hearing in the juvenile court, however, concerned all three boys,
and the Agency and the court focused equally on possible detriment to all of
them. The Agency made a recommendation
and the court fashioned an order that took into account the interests of
Gabriel and the siblings.
DISPOSITION
The
judgment is affirmed.
McDONALD,
J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
name="_ftn1" title="">[1] All
further statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2]
At various times, each sibling
said he did not wish to be adopted.
