In re H.P.
Filed 6/12/13 In re H.P. CA1/2
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re H.P., et al, Persons Coming Under the
Juvenile Court Law.
SONOMA COUNTY HUMAN SERVICES DEPARTMENT,
Plaintiff
and Respondent,
v.
JASMINE R.,
Defendant and
Appellant.
A136476
(Sonoma County
Super. Ct. No.
2880/3264-DEP)
Jasmine
R. (appellant) appeals from the juvenile court’s order, made pursuant to
Welfare and Institutions Code section 366.26,
terminating parental rights with
respect to her children, half-siblings H.P. (now 12) and T.K. (now four). Appellant contends (1) the juvenile
court abused its discretion when it denied her section 388 petition seeking
return of the children to her care or, in the alternative, (2) the court
improperly terminated parental rights after finding that the beneficial
parent-child relationship and sibling relationship exceptions to adoption did
not apply. We shall affirm the juvenile
court’s order.
On
May 2, 2008, the
County Human Services Department (Department) filed an original petition
alleging that H.P. (then seven) came within the provisions of section 300,
subdivisions (b) and (c), in that appellant had a history of substance abuse and
domestic violence and had exposed H.P. to violent incidents, thereby placing
her at substantial risk of physical
and emotional harm and serious emotional damage.
In a
jurisdiction/disposition report filed on June 4, 2008, the social worker reported
that H.P. remained in the home with appellant; David K., her presumed father;
and her maternal grandfather. H.P. had
been born with a positive toxicology for methamphetamine, and appellant had
used drugs and alcohol for the first four years of H.P.’s life. H.P. had witnessed several instances of
domestic violence between appellant and David.
In the most recent incident, which led to the filing of the petition,
H.P. suffered a scratch on her arm when she was “caught in the middle of an
altercation†between appellant and David.
In addition, appellant was pregnant with a boy expected to be born in
mid-July, and H.P. had “already expressed fear for his safety, and her
responsibility to protect him from his parents when they are fighting.†The social worker further reported that H.P.
“clearly loves her parents, and would be distraught if she were removed from
the home.â€
David
had reported that he and appellant were married in 2005, that he had held H.P.
out to be his daughter, and that he had provided for her financially. He was also the caretaker of H.P. during
appellant’s incarceration for more than a year, from 2005 to 2006. H.P. referred to David as her father and he
had been in her life as a father figure for over five years. Appellant acknowledged her history of drug
use, arrests, incarcerations, and altercations with David.
The
Department recommended that the court find David to be the presumed father and
order family maintenance services for appellant and David. It further requested that the alleged father,
John P., who had had no contact with H.P. and was not listed as the father on
her birth certificate, be found to be the “mere biological father.â€
On June 4, 2008, appellant and David submitted on the petition and
the court declared David to be H.P.’s presumed father and ordered that family
maintenance services be provided.
In
the six-month status review report, filed on December 4, 2008, the social
worker reported that the parents had been unable to comply with all elements of
their case plan services due to David’s recovery from foot surgery and issues
related to appellant’s pregnancy and the health of the new baby, T.K., who was
born in July. The parents were getting
family coaching and H.P. had begun therapy.
H.P. was described as “an outgoing little girl with well developed
social skills†who might be prone, however, to watchfulness, anxiety, and
trying to assume responsibilities beyond her age. The parents were described as being very supportive
of H.P. and also being “under a lot of stress but open to help.†The Department recommended that family
maintenance services continue.
On December 4, 2008, the juvenile court ordered the continuation of
family maintenance services.
In
the 12-month status review report, filed on June
17, 2009, the social worker reported that the family continued to live in the
home of the maternal grandfather, who was described as a “functional
alcoholic.†The parents had frequent
conflicts with the grandfather, and often stayed in motels or their car. David had undergone hip replacement surgery
earlier that year and appellant reported feeling pressure from caring for both
children, taking David to medical appointments, and dealing with her
father. The parents were also stressed
about T.K.’s health, as he had experienced digestive problems for several
months. The parents continued to have
poor participation in their case plan, and H.P. continued to miss a great deal
of school. Both appellant and David had
made progress in their relationship, in terms of tempering their arguments
without resorting to violence, and had become more sensitive to the needs of
their children. They also had maintained
their sobriety. The Department
recommended that the family continue to receive family maintenance services.
On June 17, 2009, the juvenile court again ordered that family
maintenance services continue.
Both
children were removed from the home on January 7,
2010,
pursuant to a protective custody warrant.
On January 11, 2010, the Department filed an original petition, pursuant
to section 300, subdivisions (b), (g), and (j), on behalf of T.K. and a
supplemental petition, pursuant to section 387, on behalf of H.P.
On January 12, 2010, the Department informed the juvenile court that, on
November 3 or 4, 2009, police executed a search warrant at appellant and
David’s home in the course of an investigation of a check-kiting scheme. They found illegally purchased material, and
also found a box containing methamphetamine and drug paraphernalia in H.P.’s
bedroom closet. Both parents were
arrested and, thereafter, both pleaded guilty to felony check kiting and were
awaiting sentencing. David was rearrested
on January 2, 2010 for disorderly conduct
(public intoxication) and was currently incarcerated. On January 6,
2010,
David called the Department from jail to say that he was worried about the
children’s safety because appellant had been lying, had relapsed, and was using
drugs. In January
8, 2010, appellant tested positive for methamphetamine and alcohol.
The
juvenile court ordered both children detained on January
12, 2010.
In
the jurisdiction/disposition report, filed on March
23, 2010, the social worker reported that the children were in separate emergency
foster homes. In an addendum/disposition
report, also filed on March 23, 2010, the social worker reported that the
Department was recommending the bypass of reunification services for appellant
only, based on her failure to successfully complete the previous 18 months of
family maintenance, her prior refusals to comply with court ordered residential
treatment for substance abuse, and her continued substance abuse. The Department was investigating a possible
relative placement.
Also
on March 23, 2010, the juvenile court
declared T.K. a dependent of the court and found by clear and convincing
evidence that the children should be removed from the parents’ physical
custody. The court ordered reunification
services for David, but not for appellant.
The court also found that placement with the maternal grandfather was
not appropriate.
In
the six-month status review report, filed on August
19, 2010, the social worker reported that David was committed to sobriety and
determined to reunify with the children.
Appellant had been released from jail in July 2010 and had entered a
residential treatment facility, but had abandoned the program the next
month. The social worker recommended
that reunification services continue for David.
On August 19, 2010, the juvenile court ordered continued reunification
services for David.
In
the 12-month status review report, filed on February 2,
2011,
the social worker reported that David continued to focus on his recovery. He had secured housing and was working
closely with the foster parents to participate in the children’s lives. Appellant was incarcerated but had requested
regular contact with the children and the Department had facilitated supervised
visits.
The
social worker described H.P. as “a beautiful and smart young lady†who was
“full of hope and full of life all of the time,†though she did fall into a
parentified role at times and was still in therapy. She was excited for a new life with her
father and brother. T.K. continued to be
“a loving, sensitive and curious little boy,†who had developed a very strong
connection with his father and sister.
The Department recommended that reunification services continue for
David and requested that the children have a trial home visit with him.
On February 10, 2011, the juvenile court adopted the recommendations of
the Department and authorized the Department to begin a trial home visit with
David.
In an
interim report, filed on April 14, 2011, the social worker reported
that appellant was no longer incarcerated.
She had requested and was regularly participating in supervised visits
with both children. Although not offered
reunification services, she was participating in
classes. The social worker noted
that David was “becoming somewhat discouraged and increasingly overwhelmed†as
he dealt with the challenges of caring for the children fulltime, but he
continued to focus on his recovery and creating a safe, loving home for his
children. The social worker recommended
that the trial home visit conclude and that family maintenance begin for David.
In an
addendum report, filed on April 28, 2011, the social worker reported
that the children had been “abruptly†removed from David’s home on April 15,
“based on the father’s recent relapse and ongoing depression that was consuming
his life.†After he tested positive for
alcohol, he acknowledged that he had relapsed and was feeling “overwhelming
defeat†due to being in a great deal of physical pain, having to coordinate
medical appointments and adjust pain medications, feeling emotional pain over
the breakup of his marriage, parenting two active children alone, and engaging
in all of his court-ordered services. H.P.
had been returned to the foster home in which both children had previously
stayed, but because the foster parents no longer had room for T.K. and were not
able to commit to permanency with him, he was placed in another foster
home. The social worker recommended that
reunification services continue for
David.
On April 28, 2011, the juvenile court continued reunification services
for David.
In
the 18-month status review report, filed on June 2, 2011, the social worker reported
that the children were in separate foster homes, but the foster parents
facilitated regular contact between them.
Both foster families had expressed an interest in adopting the
children. The children were reported to
“eagerly anticipate†their scheduled sibling visits, their supervised visits
with appellant, and their unsupervised contact with David. Both children also had a significant
connection with their foster parents.
Appellant had consistently participated in weekly supervised visits with
the children, as well as therapy and parenting services. David had “come a very long way,†but also
had a long way to go to fully accomplish a healthy lifestyle. He had again tested positive for alcohol on June 3, 2011.
Given
that the time for services had expired, the social worker “sadly†recommended
that David’s reunification services be terminated and that the court set the
matter for a section 366.26 hearing as to both children.
On August 22, 2011, the juvenile court terminated reunification services
for David and ordered that a section 366.26 hearing be held. On September
20, 2011, the court ordered a bonding study to assess the sibling relationship
and the parent-child relationships.
In
November 2011, the state adoptions agency conducted adoption assessments for
H.P. and T.K., concluding that both children were likely to be adopted. It recommended that parental rights be
terminated and that a plan of adoption be ordered.
Dr.
Gloria Speicher completed a bonding study and in her report, dated December 3, 2011, she stated that T.K. and
H.P. had a parent-child relationship with David, including “a substantial and
positive attachment†to the degree that they “would be greatly harmed if the
parent/child relationship were terminated.â€
Continuing the parent/child relationship between the children and David
promoted their well-being “to a degree that outweighs the well-being that
[they] would derive by being adopted.â€
As to
T.K.’s relationship with appellant, Dr. Speicher reported: “While Jasmine takes on a mother role with [T.K.]
and he behaves in a positive manner in her presence, he does not demonstrate a
strong and secure attachment to her. He
appears to experience her or treat her as more similar to an occasional
caretaker, baby-sitter, or extended family member.†While H.P.’s relationship with appellant was
that of a parent-child, H.P. did not demonstrate a secure attachment to
appellant. “Her attachment to her mother
is better described as insecure/anxious and ambivalent.â€
With
respect to the sibling relationship, Dr. Speicher reported that T.K. and H.P.
“have a sibling relationship that is so strong that its severance would cause
long term detriment to each child. The
benefit of their relationship outweighs the benefits of adoption.â€
On December 22, 2011, the date set for the section 366.26 hearing, David
filed a section 388 petition for return of the children, stating that he had
recovered from hip surgery, including cessation
of narcotic pain management; had established his sobriety; and had
continued visits with the children. In
addition, the children were strongly bonded with him.
On February 1, 2012, the parties agreed to continue the section 366.26
hearing because the Department had just received the bonding study and other
information it needed to assess. David
withdrew his petition without prejudice.
In an
addendum report, filed on May 17, 2012, the social worker reported
that, in early February, David had turned H.P. away from a visit at his home
and ended visits early because he reported that his hip was bothering him. Then, following a positive drug test for
opiates on February 15, David’s visits became supervised and his attendance at
visits became inconsistent. He also was
incarcerated for several weeks in April due to a probation violation. Appellant had continued to visit the children
weekly. Her visits had become fully
supervised due to her discussion of inappropriate court-related topics with
H.P.
In
addition, the social worker had learned that T.K.’s foster mother was no longer
able to provide a permanent home for him.
The Department continued to recommend that parental rights be terminated
and that a plan of adoption be ordered.
On May 15, 2012, appellant filed her own section 388 petition, asking
for the return of the children on family maintenance. She stated that she had remained clean and
sober for 19 months; had engaged in anger management, relapse prevention, and
12-Step meetings; had maintained visitation with the children; and had continued
in individual therapy. Since return to
David was no longer an option, appellant stated that the “only alternative now
available to have the children in the same home with the same parent†would be
to return them to her to raise.
In an
addendum report, filed on July 11, 2012, the social worker reported
that T.K. had been placed in a new foster-adopt home on June 30, 2012. According to
the state adoptions worker, T.K. had handled the placement transition
well. He appeared to be comfortable with
his new care provider and to be developing emotional ties with her. She was demonstrating good parenting
practices and was “very committed†to adopting him. She understood the benefit of T.K’s sibling
relationship with H.P., and was “committed to maintaining that connection for
him over time.â€
The
hearing on appellant’s section 388 petition took place on July 16 and 17, 2012.
since March 2011, testified that appellant had made sufficient progress in
therapy and had the maturity to be a healthy parent to her children. She believed that appellant had become aware
of her unhealthy patterns and was making better choices. Rauh had also seen appellant with her new
baby, who had been born that spring, and observed that she was very “in tuneâ€
with and responsive to the baby.
Appellant
also testified at the hearing. She had
stopped using drugs in October 2010, and had participated regularly in a
12-Step program since then. Since she
was released from her most recent incarceration in February 2011, she had begun
to make amends with her children. She
knew that H.P. felt that she could not be counted on; she had therefore visited
H.P. consistently so that H.P. could learn to trust her. As to T.K., appellant had not been his
primary caregiver for most of his life, which she knew was confusing for
him. She therefore visited him
consistently as well, and was very affectionate with both children.
Monisha
Sashital, who had been the social worker for H.P. and T.K. since October 2011,
testified that she had observed some visits between appellant and the children,
during which appellant seemed engaged with them and they seemed responsive to
her. Sashital believed both children
enjoyed being with appellant and seemed comfortable with her.
The
Department did not attempt to find a fost-adopt placement for both children
together. Given that H.P. had been in a
stable placement for a long time “and there are other options to maintain their
sibling bond, like frequent contact, as there is now, [the Department believed]
that was the best solution.†H.P.’s
foster family had included T.K. in activities and had, “through their actions,
demonstrated that they have a commitment.
And the new placement that he’s in has also, up to this point,
demonstrated that.â€
Sashital,
whom the court deemed an expert on the issues of bonding and attachment,
further testified that H.P. had told her therapist that she wanted to stay with
the family she was placed with, which the therapist supported. H.P. did want to continue to have visits with
appellant. Sashital did not believe it
was in H.P.’s best interest to be returned to her mother because H.P. did not
have a bond with her. H.P. also had many
issues she needed to work through with her mother, and was “not even at a point
where she wants to have a therapy session with her.â€
At
the conclusion of the hearing, the juvenile court found that appellant had
“satisfied the first prong†of section 388 in that she had shown a change of
circumstances and the court was “satisfied that her commitment is genuine,†and
hopefully permanent. The court stated
that returning the children to appellant “would serve the recommended outcome
from Dr. Speicher [who had performed the bonding study] insofar as there is an
identified bond between the siblings.â€
However, based on the children’s individual needs, the court observed
that Dr. Speicher indicated that neither child had a bond with appellant on a
par with the bond with David. Moreover,
the court believed that “this relationship that Mother has with the two kids is
in a negative and it is not at zero.
That is to say, there would have to be significant work that would need
to be done to bring it to zero and then go positive.†The court acknowledged that appellant’s “efforts
should be praised,†but concluded that it would not be in the best interests of
the children to return them to appellant.
During
discussions with counsel following the court’s ruling, appellant’s counsel said
appellant was “taking a no-contest position.â€
In addition, neither parent challenged the adoptability finding as to
either child. David was hospitalized and
was not present in court, but his counsel said that David had decided to
withdraw his submission to the recommendation for adoption. At his counsel’s request, the court continued
the section 366.26 hearing to August 7, so that David could be present.
At
the August 7, 2012 hearing, David’s counsel
informed the court that David had suffered a stroke on July 17 and was still
not well enough to attend the section 366.26 hearing. The court therefore continued the matter to
August 27.
The
section 366.26 hearing took place on August 27,
2012,
at which time the parties stipulated that both children were adoptable. David was not present at the hearing due to
health-related issues but, through his attorney, he withdrew his objection to
the section 366.26 hearing.
Dr.
Gloria Speicher, who had performed original and updated bonding studies,
testified at the hearing. She observed
that T.K. had “felt somewhat insecure and unstable through this entire process,
because he’s gone through so many changes.â€
She believed that it was important to maintain visitation with David,
but did not have the same concerns about T.K. maintaining contact with appellant,
with whom he had a “poorly-established bond†and who was more like “an extended
family member†to T.K.
According
to Dr. Speicher, while both children could develop more trust in appellant
through her being consistent and following through on her commitments, “it’s
not likely that their attachment to her is going to change dramatically.†She described H.P.’s attachment to appellant
as “ambivalent,†with “a lot of anxiety about that relationship.†T.K., who had a strong, positive attachment
to David and H.P., had become more anxious due to the many disruptions in his
life. She believed there were “a lot of
positive things to be said about placing him with somebody that is known,†but
[t]he most important thing for that child . . . [has] to do with stability and
consistency at this point.â€
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Dr.
Speicher believed that T.K. “definitely needs to continue to see his sister,â€
and that he would be best served by having continued contact with his
parents. Nonetheless, she believed that
“the most important thing that he could be afforded would be therapy†to help
him to develop the relationship with his new foster mother. It was important for him to have “exposure to
and consistency with his parents, but the amount of exposure to his
relationships is not as important as the ability to begin to sort through his
experiences of those relationships in a way that he can then feel more grounded
in himself . . . .â€
Dr.
Speicher had learned that shortly after T.K. was moved to his new foster home,
“he would hit himself and say, ‘I’m a bad boy,’ and ‘you’re going to leave
me.’ †She believed that his
primary need was a sense of stability and continuity, which she hoped would be
provided by adoption by his current caretaker.
She described the benefits of T.K.’s current fost-adopt mother: “[S]he has some history of early childhood
education, so she presents herself as being more prepared than the average
parent with regard to understanding the needs of young children.†She also seemed to be responding
appropriately to the special needs of T.K.
Dr.
Speicher believed that H.P. would feel a loss if parental rights were
terminated, but the most important thing for her was to continue working in
therapy on the unresolved issues with her mother.
When
asked for her opinion regarding whether appellant’s parental rights should be
terminated, Dr. Speicher stated: “I
think the primary need of both children at this point is stability and
consistency in their life.†H.P. had
developed an attachment to her fost-adopt parents, with whom she had lived for
nearly two years, and “it would be probably not in her benefit to break
that.†While T.K. did not have the same
attachment to his new placement, “the most important thing for him at this point
is some sort of stability and continuity.
And the best of all worlds, you know, the children would be placed
together. But it doesn’t appear to be
possible. [¶] And in that regard, it’s
probably in his long-term best interests . . . to have the opportunity to stay
where he is and work that out. [¶] “I
can’t say that terminating parental rights with the mother overrules the
potential stability that he would gain in the adoption.â€
In
sum, Dr. Speicher believed that the least harmful alternative for both children
was adoption. As to continued contact
between the two children, Dr. Speicher stated that H.P.’s foster parents had
demonstrated “a tremendously good understanding†of the importance to H.P. of
the relationship with T.K. T.K.’s
fost-adopt parent had also expressed her understanding of the importance of
maintaining contact and a desire to continue that relationship.
Lisa
Conway-Hite, the state adoptions specialist assigned to H.P. and T.K.’s case,
testified as an expert “in the field of adoption as a social worker.†She testified that adoptable children who are
not adopted could face several placement changes and the insecurity that comes
from wondering if they will have to start over in a new placement. For a child who is placed in an adoptive
home, but is not adopted, there is a high likelihood of a change in placement.
Conway-Hite
further testified that there was no court order for sibling visitation between
H.P. and T.K., and the Department was not arranging any sibling visits. Nonetheless, the children spent time together
approximately three times a week, both during and after their weekly supervised
visits with each parent, and also got together for outings or dinner with each
other’s fost-adopt families about once a week.
She believed that it was very likely that the children would maintain an
ongoing sibling relationship after adoption.
Both fost-adopt families were willing to enter into a post adoption
contract regarding continued sibling contact.
Conway-Hite
knew of no alternative permanent plan other than adoption for either
child. T.K.’s fost-adopt mother had
contacted the local foster agency seeking a child to adopt. In Conway-Hite’s experience, families who are
looking to adopt a child do not always keep a child who cannot be adopted. She had asked H.P.’s caretakers whether they
would consider a plan of guardianship for H.P., and they had said no. Finally, she had interviewed H.P. regarding
her attitude about adoption. H.P. said
that her first choice would be to live with David but, if that were not
possible, she would like to be adopted by her current caretakers.
Monisha
Sashital, the social worker who had been assigned to H.P. and T.K.’s case since
about November 2011, testified that if parental rights were not terminated, the
default plan would be long-term foster care.
Children in long-term foster care often “bounce around†in many
placements.
Sashital
did not believe that termination of parental rights would decrease the amount
of contact between H.P. and T.K., but she believed that if they were in
long-term foster care, such contact would likely decrease. Presently, the children visited with each
other a couple of additional days per week beyond the joint visitation with
their parents. The two fost-adopt
families had been getting together without the Department’s involvement because
they seemed to understand the importance of it.
At
the conclusion of the hearing, the juvenile court found, with respect to the
beneficial parent-child relationship exception to terminating parental rights,
that appellant had maintained regular visitation and contact. The court also found, however, that appellant
was “not successful in establishing that her relationship is of such a quality
and strength that it outweighs the benefits of adoption.â€
With
respect to the sibling relationship exception to adoption, the court noted that
it had not considered the testimony regarding post-adoption sibling contact in
making its decision. It then found that
termination of parental rights would cause “some detriment†to the sibling relationship,
but further found that, on balance, termination would be less detrimental than
foregoing the benefit of adoption.
The
court therefore proceeded to terminate parental rights and order the plan of
adoption as the permanent plan.
On September 6, 2012, appellant filed a
I. Appellant’s
Section 388 Petition
Appellant
contends the juvenile court abused its discretion when it denied her section
388 petition after it concluded that changed circumstances did not warrant a
finding that it would be in the children’s best interests to return to her
care.
Section
388, subdivision (a)(1), provides in relevant part: “Any parent or other person having an
interest in a child who is a dependent child of the juvenile court . . . may,
upon grounds of change of circumstance or new evidence, petition the court in
the same action in which the child was found to be a dependent child of the
juvenile court . . . for a hearing to change, modify, or set aside any order of
court previously made . . . .â€
“If it appears that the best interests of the child . . . may be
promoted by the proposed change of order, . . . the court shall order that a
hearing be held . . . .†(§ 388, subd.
(d).)
“At a
hearing on a motion for change of placement, the burden of proof is on the
moving party to show by a preponderance
of the evidence that there is new evidence or that there are changed
circumstances that make a change of placement in the best interests of the
child. [Citations.]†(In re
Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie
M.).) “A primary consideration in
determining the child’s best interests is the goal of assuring stability and
continuity. [Citations.]†(Id.
at p. 317.)
We
review the juvenile court’s denial of appellant’s section 388 petition for an
abuse of discretion. (
As our Supreme Court has “warned:
‘The appropriate test for abuse of discretion is whether the trial court
exceeded the bounds of reason. When two
or more inferences can reasonably be deduced from the facts, the reviewing
court has no authority to substitute its decision for that of the trial court.’ [Citations.]â€
(Stephanie M., at pp.
318-319.)
In
the present case, at the conclusion
of the hearing, the juvenile court found that appellant had shown a change of
circumstances, but concluded that it would not be in the best interests of the
children to return them to appellant.
Appellant
asserts that because maintenance of the sibling bond was essential to the
emotional wellbeing of the two children and since they could live together if
they both were returned to her, “she was the most attractive placement option
in a less than perfect world.†She also
asserts that “her success and demonstration of excellent parenting during
visits†demonstrated that return to her care was in the children’s best
interest.
The
evidence shows, however, that despite appellant’s success at overcoming her
addiction, her relationship with the children was, as the juvenile court
stated, “in a negative†and that “significant work . . . would need to be done
to bring it to zero and then go positive.â€
Appellant’s addiction and other issues had led to extreme neglect of her
children, which had negatively affected them in various ways. In addition, she had already received family
maintenance for some 18 months, until the children were removed from her house
following her arrest.
At
the time of the hearing on the section 388 petition, neither child had a
healthy parental bond with appellant.
Both children seemed to enjoy the visits and seemed comfortable with
appellant. But, as Dr. Speicher noted,
T.K. did “not demonstrate a strong and secure attachment to her,†experiencing
her more as an extended family member, and H.P.’s attachment to her was
“insecure/anxious and ambivalent.†H.P.
also had many issues with her mother that she needed to work through, but she
did not even feel ready to have therapy sessions with appellant.
In
addition, both children were in stable placements with foster parents who were
committed to adopting them. H.P. had
told her therapist that she wanted to stay with her foster family, which the
therapist supported. Although T.K. had
only been in his new placement for some six or seven weeks at the time of the
hearing on appellant’s petition, he was developing emotional ties with his
prospective adoptive mother, who was demonstrating good parenting practices and
was very committed to adopting him.
Moreover, the prospective adoptive parents were already facilitating
regular contact between the children and had expressed a commitment to
continuing such contact in the future.
In
sum, the juvenile court did not exceed the bounds of reason when it found that
appellant had not satisfied her burden of showing by a preponderance of the
evidence that changed circumstances made a return to her care in the best
interests of H.P. and T.K. (See
Rather, the court reasonably concluded that the children’s interest in
stability and continuity would not be best served by a return to
appellant. (See id., at pp. 318-319.) Thus,
while appellant is to be commended for her achievements in attaining and maintaining
sobriety, there was no abuse of discretion.
(Ibid.)
II. Applicability
of the Beneficial Parent-Child Relationship and Sibling
Appellant
does not claim that H.P. and T.K. are not adoptable. Rather, she contends the juvenile court
improperly concluded that the beneficial parent-child relationship and sibling
relationship exceptions to adoption did not apply.
Although
adoption is the preferred plan of care once reunification services have been
terminated, the Legislature has provided various exceptions to the general rule
of adoption, which apply only if the juvenile court finds by clear and
convincing evidence “compelling reason[s] for determining that termination
would be detrimental to the child.â€
(§ 366.26, subdivision (c)(1)(B).)
The parent has the burden of proving the applicability of any of these
exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) We review the juvenile court’s determination
regarding whether an exception applies to determine if it is supported by
substantial evidence. (
567, 576; but see In re Jasmine D.
(2000) 78 Cal.App.4th 1339, 1351 [finding abuse of discretion standard of
review appropriate, but noting that practical differences between abuse of
discretion and substantial evidence standards of review “are not significantâ€];
see also In re Bailey J. (2010) 189
Cal.App.4th 1308, 1314 [applying substantial evidence standard of review to
question of whether parent has shown the existence of a beneficial relationship
and abuse of discretion standard to question of whether that relationship is a
compelling reason for finding detriment to child].)
A. Beneficial
Parent-Child Relationship Exception
Pursuant
to section 366.26, subdivision (c)(1)(B)(i), the juvenile court will not
terminate parental rights if it finds, by clear and convincing evidence, that
“[t]he parents have maintained regular visitation and contact with the child
and the child would benefit from continuing the relationship.â€
Here,
the juvenile court found that appellant had maintained regular visitation and
contact, but that she was “not successful in establishing that her relationship
is of such a quality and strength that it outweighs the benefits of adoption.â€
In
Cal.App.4th 567, 575 the appellate court discussed the beneficial parent-child
relationship exception to adoption: “In
the context of the dependency scheme prescribed by the Legislature, we
interpret the ‘benefit from continuing the [parent-child] relationship’
exception to mean the relationship promotes the well-being of the child to such
a degree as to outweigh the well-being the child would gain in a permanent home
with new, adoptive parents. In other
words, the court balances the strength and quality of the natural parent/child
relationship in a tenuous placement against the security and the sense of
belonging a new family would confer. If
severing the natural parent/child relationship would deprive the child of a
substantial, positive emotional attachment such that the child would be greatly
harmed, the preference for adoption is overcome and the natural parent’s rights
are not terminated.
“Interaction
between natural parent and child will always confer some incidental benefit to
the child. The significant attachment
from child to parent results from the adult’s attention to the child’s needs
for physical care, nourishment, comfort, affection and stimulation. [Citation.]
The relationship arises from day-to-day interaction, companionship and
shared experiences. [Citation.] The exception applies only where the court
finds regular visits and contact have continued or developed a significant,
positive, emotional attachment from child to parent.†(Accord, In
re C.F. (2011) 193 Cal.App.4th 549, 558-559 [parent-child beneficial
relationship exception is not established “by merely showing the child derives
some measure of benefit from maintaining parental contactâ€].)
In
the present case, the evidence showed that it was David, not appellant, with
whom H.P. and T.K. had a positive, strong bond.
Although the children seemed to enjoy their visits with appellant, as
previously discussed (see pt. I, ante),
neither child had a solid, healthy parental bond with her. (See In
re Jason J. (2009) 175 Cal.App.4th 922, 938 [“A friendly relationship
. . . ‘is simply not enough to outweigh the sense of security and belonging an
adoptive home would provide’ â€].) H.P.,
who wished to be adopted by her current caretakers if she could not live with
David, had an anxious and ambivalent attachment to appellant. Nor did T.K. demonstrate a strong, secure
attachment to her. Neither relationship
reflects the sort of “significant, positive, emotional attachment from child to
parent†that would warrant a deviation from the statutory preference for
adoption at this stage of the proceedings.
(See In re Autumn H., supra,
27 Cal.App.4th at p. 575.)
In
addition, the evidence showed that both children urgently needed the stability
and continuity that adoption by their current caretakers would provide.
Following her updated bonding study, Dr. Speicher testified at the section
366.26 hearing that “the primary need of both children at this point is
stability and consistency in their life.â€
She noted H.P. had lived with her fost-adopt parents for nearly two
years and was attached to them. Also,
while T.K. did not yet have the same attachment to his new caretaker,
Dr. Speicher believed that it was in T.K.’s long-term best interest to
stay where he was.
In
sum, substantial evidence supports the juvenile court’s conclusion that
appellant had not satisfied her burden of showing that the relationship between
her and the children promotes the wellbeing of either child “to such a degree
as to outweigh the well-being [each] child would gain in a permanent home with
new, adoptive parents.†(
Cal.App.4th at p. 575.)
B. Sibling
Relationship Exception
Pursuant
to section 366.26, subdivision (c)(1)(B)(v), the juvenile court will not
terminate parental rights if it finds, by clear and convincing evidence, that
“[t]here would be substantial interference with a child’s sibling relationship,
taking into consideration the nature and extent of the relationship, including,
but not limited to, whether the child was raised with a sibling in the same
home, whether the child shared significant common experiences or has existing
close and strong bonds with a sibling, and whether ongoing contact is in the
child’s best interest, including the child’s long-term emotional interest, as
compared to the benefit of legal permanence through adoption.â€
Here,
the juvenile court found that termination of parental rights would cause “some
detriment†to the sibling relationship, but further found, on balance, that termination
would be less detrimental than foregoing the benefit of adoption.
In
951-952, the appellate court explained the two-step process for deciding
whether the sibling exception applies:
“Under [former] section 366.26, subdivision (c)(1)(E)[now section
366.26, subdivision (c)(1)(B)(v),] the court is directed first to determine
whether terminating parental rights would substantially interfere with the
sibling relationship, including whether the child and sibling were raised in
the same house, shared significant common experiences or have existing close
and strong bonds. [Citation.] To show a substantial interference with a
sibling relationship the parent must show the existence of a significant
sibling relationship, the severance of which would be detrimental to the
child. Many siblings have a relationship
with each other, but would not suffer detriment if that relationship
ended. If the relationship is not
sufficiently significant to cause detriment on termination, there is no
substantial interference with that relationship.†(Fn. omitted; accord, In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017-1018.) If the court finds that a sibling
relationship exists that is so strong that its severance would cause the child
detriment, the court then weighs the benefit to the child of continuing the
sibling relationship against the benefit to the child adoption would
provide. (In re L.Y.L., at p. 952; accord, In re Jacob S., at pp. 1018-1019.)
In
the present case, given the evidence of the strength and importance of the bond
between H.P. and T.K., we find reasonable the juvenile court’s determination of
detriment. We also find, however, that
substantial evidence supports the court’s conclusion that the benefit of adoption
clearly outweighed the benefit of the two children living together in a less
stable situation, such as foster care.
(See In re L.Y.L.,
As
previously discussed (see pt. II.A, ante),
Dr. Speicher believed that “the primary need of both children at this point is
stability and consistency in their life†and that it was in both children’s
best interest to be adopted by their current caretakers. Dr. Speicher also observed that H.P.’s
fost-adopt parents had shown a “tremendously good understanding†of the
importance of the sibling relationship and that T.K.’s fost-adopt parent had
also expressed her understanding of the importance of maintaining contact
between the siblings, along with a desire to continue their relationship.
Lisa
Conway-Hite, the state adoptions specialist who testified at the
section 366.26 hearing as an expert in the area of adoption, testified
that, for a child who is placed in an adoptive home but not adopted, there is a
high likelihood of change of placement.
She also testified that, even without a court order for sibling
visitation, the two children spent time together regularly and she believed it
was very likely that they would maintain a sibling relationship after
adoption. Both fost-adopt parents had
expressed a willingness to enter into a post-adoption contract for continued
sibling contact.
title="">[7]
Monicha
Sashital, the assigned social worker, also testified that the children were
visiting with each other a couple of days a week beyond the joint visits they
had with their parents, without any Departmental involvement. She did not believe that termination of
parental rights would decrease the amount of contact between the two children,
but thought that the contact would decrease if they were not adopted and were
placed in long-term foster care.
Appellant
asserts that it is likely that she will soon be able to successfully petition
to have the children returned to her care, which would allow them to live
together. However, given the evidence of
the lack of a positive parent-child bond and the damage to her relationship
with both children, any assumption that the children could soon be returned to
her care would be based solely on speculation.
As Dr. Speicher testified, the children’s attachment to her was “not
likely . . . to change dramatically,†and they do not have time to wait and see
what happens. They both urgently need
the stability and continuity that adoption will provide. (See In
re L.Y.L., supra, 101 Cal.App.4th
at p. 952.)
In
conclusion, substantial evidence
supports the juvenile court’s finding that the sibling relationship exception
to adoption does not apply.
name="_ftnref8" title="">[8]
The
juvenile court’s order terminating appellant’s parental rights with respect to
both H.P. and T.K. is affirmed.
_________________________
Kline,
P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
name="_ftn1" title=""> [1]
All further statutory references are to the Welfare and Institutions Code
unless otherwise indicated.
name="_ftn2" title=""> [2]
The petition also contained allegations related to H.P.’s alleged father, John
P.
