In re T.R.
Filed 12/10/12 In
re T.R. CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re T.R. et
al., Persons Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY
HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
S.R. et al.,
Defendants and Respondents;
T.R.,
Appellant.
D061990
(Super. Ct. No.
EJ3252A-B)
APPEAL
from findings and orders of the Superior Court of
County, Laura J. Birkmeyer, Judge. Affirmed.
T.R.,
a dependent of the juvenile court, contends the juvenile court erred
when it denied her petition to place younger sister, T.R.R., who is also a
dependent of the juvenile court, in their aunt's home for the purpose of
adopting the siblings together. (Welf.
& Inst. Code, § 388, subd. (b).)
when it found that the sibling relationship exception did not apply and
terminated parental rights. (§ 366.26,
subd. (c)(1)(B)(v).) We affirm the
orders.
FACTUAL
AND PROCEDURAL BACKGROUND
In
June 2010, the San Diego County Health and
Human Services Agency (Agency) removed T.R., born February 1999, and
T.R.R., born December 2004, (together, the children) from their parents'
care. Their mother was diagnosed with
schizoaffective disorder and was unable to meet their needs. Their father was a physically abusive
alcoholic.
T.R.R.
was diagnosed with attention deficit
sensory deprivation disorder. At age
five years, T.R.R. was morbidly obese, physically aggressive, and suffered from
anxiety, speech problems, enuresis and encopresis. Because of her mother's disabilities,
11-year-old T.R. had assumed responsibility for T.R.R.'s care to the best of
her abilities.
T.R.
and T.R.R. had a large, extended maternal family.
and uncle Aaron H. Due to the level of
care T.R.R. required, the Agency placed her in a foster home with intense
therapeutic services and support. T.R.R.
stayed with her grandmother on Fridays and Saturdays, providing respite care
for the foster care parents, S.F. and Walter F. (together, the F.'s). At a team decision meeting in August 2010,
the children's family, including the parents, grandparents, aunt Janell and
uncle Aaron, and aunts and uncles, Valarie M. and Darren M., Kelly P. (Aunt
Kelly or Kelly), and Cheryl and C.Y. agreed to T.R.R.'s continued placement in
the F.'s home.
S.F.
took an assertive interest in meeting T.R.R.'s special needs, who responded
well to the structure and services in the foster home. By February 2011, T.R.R.'s behavior had
stabilized with intense therapeutic services.
She no longer displayed poor hygiene and had almost reached her
recommended weight, losing more than 40 pounds.
T.R. was doing well with Janell and Aaron. However, at times, T.R. displayed depressed
moods, anxiety and guilt and had nightmares and flashbacks.
T.R.
and T.R.R. saw each other every week during visits with their parents and at
relatives' homes. In April 2011, social
worker Marianne Cleveland reported that T.R. had asked to visit T.R.R. more
often. According to Cleveland, this was
a positive change for T.R., who had distanced herself from T.R.R. in response
to the parental role that T.R. had assumed when their mother was not able to
care for T.R.R. Cleveland said T.R.
was thoughtful and mature. She was
affectionate with T.R.R. By August 2011,
T.R. no longer felt that she had to assume a parental role with her younger
sister.
As
family reunification became less likely, the social worker began to explore
permanent placement options for the children.
T.R. was happy with Janell and Aaron, who were willing to adopt
her. The F.'s wanted to adopt T.R.R.,
and were willing to consider adopting T.R. if the court determined the children
should stay together. M.M. and Todd M.,
and Kelly also expressed interest in adopting T.R.R. In late August, Aunt Kelly said she and her
husband were willing to adopt T.R. and T.R.R.
There were no family members in the San Diego area who were able to
provide a home for both children. After
further consideration, and in view of T.R.R.'s special needs, Kelly said
T.R.R.'s placement with M.M. and Todd would be more appropriate, and she would
like to be considered as "Plan B" for T.R.R. In early September, the Agency began to
develop a plan to place T.R.R. with relatives.
In
September, the juvenile court terminated the parents' reunification services
and set a section 366.26 hearing. The
court continued T.R.R.'s placement in foster care.
Aunt
Kelly requested an extended visit with both children in Northern
California. The Agency arranged for T.R.
and T.R.R. to visit in early October.
However, T.R.R.'s visit was cancelled after T.R.R.'s school, therapist
and caregivers voiced concerns about T.R.R.'s reaction to an extended
visit. T.R.R. said she was worried about
being far away from her mom. When social
worker Julie Walker asked her who her mom was, T.R.R. said "[S.F.] is my
mom."
In
November, the Agency moved T.R. to Aunt Kelly's home in Northern
California. The social worker reported
that T.R. was excited about the move and did not appear to have any issues
living 10 hours away from her sister and other family members.
On
January 19, 2012, T.R. filed a section 388 petition asking the juvenile court
to place T.R.R. with her in Aunt Kelly's home.
T.R. alleged the relationship between the maternal relatives and
T.R.R.'s foster parents had completely deteriorated and had affected contact
and visitation between the siblings. She
further alleged the new placement order was in T.R.R.'s best interests because
it would allow the siblings to be raised by relatives in the same home and
allow T.R.R. to continue her relationships with other family members.
The
hearing on T.R.'s section 388 petition was held on March 22 and 23, followed by
the section 366.26 hearing.
name="_ftnref3" title="">[3] The juvenile court admitted the Agency's
reports in evidence and heard testimony from T.R., Kelly, social workers Walker
and Cleveland, and the F.'s.
The Agency recommended that T.R.R. remain in a
permanent placement with the F.'s, who had cared for her for the past year and
a half. She had a healthy bond and
attachment to them. T.R.R. was now in
good physical and emotional health, and no longer had problems with eating and
hygiene. Although she continued to
display anxiety and had difficulty with transitions, T.R.R. had made dramatic
improvements in her well-being. The F.'s
were willing to adopt T.R.R. and offered to provide a placement for T.R. as
well.
The
parties stipulated that if T.R.R. were to testify she would state that she
loved her sister. When they lived
together, T.R. made macaroni and cheese for her and sometimes hit her. T.R.R. liked visiting T.R. and would be sad
if they could not visit. She missed T.R.
and talked to her almost every day. She
was able to talk to T.R. whenever she wanted.
T.R.R. wanted to visit Aunt Kelly more often and wanted the F.'s to come
with her when she visited. Aunt Kelly
and her children had always been nice to her but she did not want to move to
her aunt's home. T.R.R. said she wanted
to live with the F.'s. She would be sad
if she had to move away from their home.
T.R.R. wanted T.R. to live with her in the F.'s home.
T.R.
testified she wanted Aunt Kelly to adopt her and T.R.R. together. When T.R. lived in San Diego, she saw T.R.R.
every Friday on visits with their parents.
T.R. visited T.R.R. twice at her caregivers' home. After T.R. moved, she telephoned T.R.R.
almost every day. Her telephone calls were
not returned. T.R. found it difficult to
keep in contact with T.R.R. T.R. did not
agree with T.R.R.'s plan of adoption because in the last six months, the F.'s
had stopped T.R.R.'s contact with the family.
T.R. believed that the caregivers would "cut [her] off" as
soon as they were not required to facilitate contact and visitation.
T.R.
acknowledged that when she lived in San Diego, T.R.R. regularly asked her to
spend the night with her at the caregivers' home. T.R. declined the invitations. T.R. explained that she believed she would
have to take care of T.R.R., as she had done for many years. When she moved to Aunt Kelly's home, she told
her aunt and uncle how she felt and they helped her realize she did not have to
take care of T.R.R.
Kelly
said she had been aware of the problems in the parents' home. Before she moved to Northern California, she
cared for T.R. every weekend and for T.R.R. on the weekends she did not go to
her paternal grandmother's home. Kelly
said it was difficult to set up visits between T.R. and T.R.R. Her telephone calls to the F.'s were not
returned. She last spoke to S.F. at the
beginning of January.
Social
worker Walker did not observe any visits between T.R. and T.R.R. T.R. moved to Northern California two days after
she received their cases. T.R.R. enjoyed
spending time with Aunt Kelly. Walker
believed that Kelly and the F.'s would continue to facilitate contact between
T.R. and T.R.R. Kelly and S.F. were very
cooperative with the Agency. Conflict
between Kelly and the F.'s arose when Kelly decided she wanted to adopt
T.R.R. By that time, T.R.R. had been
with the F.'s for almost two years. She
was doing wonderfully in their home.
Social
worker Cleveland observed T.R. and T.R.R. affectionately placing an arm around
each other. Early in the case, T.R. had
distanced herself from T.R.R. and her role as caregiver. The girls enjoyed each other's company more
when T.R. felt free to be T.R.R.'s sister.
S.F.
testified that it was "absolutely" not her intention to stop contact
between T.R. and T.R.R. That was not in
either girl's best interests. The F.'s
were currently supervising visits between T.R.R. and her parents, and planned
to continue to do so if they were to adopt T.R.R. When T.R. was living in San Diego County,
they invited her to weekly family dinners.
They also invited her to spend the night at their home and go to
SeaWorld® with them. T.R. accepted their
invitation on two occasions but declined all other invitations. T.R. telephoned T.R.R. approximately three
times a week. S.F. was willing to work
with Kelly to facilitate communication between T.R. and T.R.R. T.R.R. loved T.R. and the sibling
relationship was important to her.
The
juvenile court found that it was not in T.R.R.'s best interests to move to Aunt
Kelly's home. T.R.R. had made an
exceptional transformation in the caregivers' home which was an
"excellent, excellent placement for her." Although the relationship between Kelly and
S.F. was strained, it was not irreparably damaged. Both caregivers believed that ongoing contact
was in T.R.'s and T.R.R.'s best interests.
The juvenile court found that S.F. was a very credible witness. The court was impressed by her insight into
T.R.R.'s needs and her willingness to facilitate visitation for the parents and
other family members, even though she and her husband were not required to do
so.
Relying
on the parties' statements they would continue to permit sibling visitation and
contact, the juvenile court found that termination of parental rights would not
substantially interfere with the sibling relationship. In addition to visitation, the court noted
that T.R. and T.R.R. could maintain their bond through telephone contact,
texting, Skype, e-mail and letters. The
juvenile court found that T.R. and T.R.R. were each adoptable and terminated
DISCUSSION
A
Discretion When It Denied T.R.'s Section 388 Petition
Under
section 388, subdivision (b), any person, including a child who is a dependent
of the juvenile court, may petition the court to assert a sibling relationship
with a child who is a dependent of the juvenile court, and may request
visitation with the dependent child, placement with or near a dependent child,
or consideration when determining or implementing a case plan or permanent plan
for the dependent child. The petitioner
requesting the modification has the burden to show a sibling relationship and
that the requested order is in the child's best interests. (§ 388, subd. (d); Cal. Rules of Court, rule
5.570(e)(2).)
In
determining a child's best interests when a sibling of a dependent child asks
the court to change the dependent child's placement, the juvenile court should
consider all relevant factors, including the child's health, safety, and
welfare, the nature of the siblings' relationship, and the nature and amount of
the child's contact with each prospective caregiver. (Cf. In
re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955-956.) The juvenile court may also consider the
social services agency's plan to provide "
placement of siblings together in the same home is not possible. (§
16002, subd. (b).)
We
review the grant or denial of a petition for modification under section 388 for
an abuse of discretion. (
65, 71; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) While the abuse of discretion standard gives
the trial court substantial latitude, "[t]he scope of discretion always
resides in the particular law being applied, i.e., in the 'legal principles
governing the subject of [the] action . . . .' Action that transgresses the confines of the
applicable principles of law is outside the scope of discretion and we call
such action an 'abuse' of discretion.
[Citation.]" (
Cal.App.3d 1287, 1297.)
The record fully supports the juvenile court's
thoughtful analysis of T.R.R.'s best interests.
When T.R.R. was first placed with the F.'s, she was morbidly obese, physically aggressive, and suffered from anxiety,
speech problems, enuresis and encopresis.
At age five, she was still in diapers.
She had thoughts about harming herself.
T.R.R.'s boundaries were very poor.
According to S.F., who was an experienced parent and foster parent, when
T.R.R. was first placed in their home "there was nothing normal,
five[]year old about [T.R.R.]."
From
the beginning of the case, the F.'s showed great commitment to T.R.R. They regularly attended trainings and sought
assistance in how to continuously protect T.R.R.'s best interests while meeting
the needs of the other children that were placed in their home. Under S.F.'s careful
and competent supervision, T.R.R.'s mental and physical health significantly
improved. By October 2011, T.R.R. felt
safe. She was making and keeping
friends. T.R.R. no longer had problems
with eating, hoarding or hygiene. Her
weight was healthy. She participated in
gymnastics and was active, outgoing and well-behaved. In some situations, T.R.R. continued to
display anxiety. Transitions were
difficult for her.
At the time of
the section 388 hearing, T.R.R. had lived with the F.'s for almost two
years. She had become part of their family. T.R.R. called the F.'s "mom" and
"dad" and had a healthy attachment to them. She said she would be sad if she had to leave
their home. T.R.R.'s therapist said
T.R.R. wanted to live with the F.'s.
When T.R.R. learned that the Agency was considering moving her to a
relative's home, she regressed and began displaying anxiety, crying,
restlessness and irritability. On one
occasion, when a social worker asked T.R.R. where she wanted to live, T.R.R.
showed signs of anxiety and asked S.F., "[M]ommy, why does everyone keep
asking me where I want to live"?
She then hugged S.F.
While T.R.R.
loved and missed her sister, and Aunt Kelly was a loving, caring and devoted
mother and aunt, the record shows that T.R.R. was bonded to the F.'s and was
flourishing in their care. In addition,
the juvenile court appropriately considered T.R.R.'s wishes to remain with the
F.'s. We conclude that the juvenile
court did not abuse its discretion when it denied T.R.'s petition to place
T.R.R. with her in Aunt Kelly's home.
B
Abuse Its Discretion When It Determined the
Exception Did Not Apply
"Adoption,
where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th
567, 573.) If the court finds a child is likely to be
adopted if parental rights are terminated, it must select adoption as the
permanent plan unless it finds termination of parental rights would be
detrimental to the minor under one of the specified exceptions. (§ 366.26, subd. (c)(1).) The parent has the burden to show termination
would be detrimental to the minor under one of those exceptions. (In re Andrea R. (1999) 75 Cal.App.4th
1093, 1108.)
Section
366.26, subdivision (c)(1)(B)(v) provides an exception to termination of
parental rights when severing the sibling relationship
would be detrimental to the dependent child.
(In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.) To establish detriment, the evidence must
show " '[t]here would be substantial interference with a child's
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
interest[s], including the child's long-term emotional interest, as compared to
the benefit of legal permanence through adoption.' " (Id.
at pp. 947-948.)
The record
leaves no doubt that T.R. and T.R.R. share a loving and affectionate sibling
relationship. T.R. and T.R.R. were
raised in the same home for five years.
Unfortunately, their significant common experiences in that home left
each child traumatized. At the time of
the section 366.26 hearing, the children's circumstances were remarkably
similar. Both T.R. and T.R.R. continued
to display symptoms of anxiety. Each
missed the other sibling and wanted to live with her. T.R. wanted T.R.R. to live with her in Aunt
Kelly's home. T.R.R. wanted T.R. to live
with her in the F.'s home. T.R. declined
all but two invitations to visit T.R.R. in the F.'s home. T.R.R. wanted to visit Aunt Kelly, but only
if the F.'s came with her. T.R.'s and
T.R.R.'s wishes (and anxiety) underscore the importance of their bonds with
their respective caregivers, and their needs for permanency and stability. The record supports the conclusion that
although the sibling relationship was important to the children, their individual
needs for a placement in which they felt safe and secure significantly
outweighed the importance to them of living together as siblings.
The record
does not support T.R.'s argument the promise of continued sibling contact was
illusory. The juvenile court found that
S.F. was very credible and that Kelly was dedicated to her extended
family. Kelly and S.F. agreed that
continuing the sibling relationship was in the children's best interests. They each unequivocally stated they would
work together to maintain the sibling relationship. S.F. had long facilitated T.R.R.'s visits
with family members, and had extended many invitations to T.R. to visit T.R.R.
in their home. S.F. continued to
supervise T.R.R.'s visits with her parents after reunification services were
terminated even though she had no obligation to do so. Kelly was willing to have T.R.R. visit for
extended periods in her home and was also willing to travel to San Diego to
facilitate sibling visitation. In
addition, T.R. and T.R.R. are old enough to be able to independently
communicate with each other through telephone calls, texting, e-mail and
Skype.
The juvenile
court did not abuse its discretion when it found that termination of parental
rights would not substantially interfere with the sibling relationship and to
the extent it did, the benefits of the legal permanency of adoption outweighed
T.R.R.'s long-term emotional interest in maintaining the sibling
relationship. (§ 366.26,
subd. (c)(1).) We conclude that the court did not err when it terminated parental
rights.
DISPOSITION
The findings and orders are
affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
IRION, J.
name="_ftn1" title="">[1] All further statutory
references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Unless otherwise
indicated, references to relatives are to the children's maternal relatives.
