In re D.S.





















Filed 1/25/13 In re D.S. CA5









NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

>





California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT


>

In re D.S. III, a Person Coming Under the Juvenile Court Law.
TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.Z., Defendant and Appellant.	F064604 (Super. Ct. No. JJV060010) >OPINION

THE COURThref="#_ftn1" name="_ftnref1" title="">^*

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tulare
County. Charlotte A. Wittig, Judge.

M.
Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kathleen
Bales-Lange, County Counsel, John A. Rozum, Chief Deputy County Counsel, Carol
E. Helding, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

M.Z.
(mother) appeals from an order terminating parental
rights (Welf. & Inst. Code, § 366.26) to her son D.S. III.href="#_ftn2" name="_ftnref2" title="">^[1] Mother contends that the
trial court erred in finding that the sibling-relationship exception did not
apply. (§ 366.26,
subd. (c)(1)(B)(v).)

We
disagree and affirm the court’s order.

FACTUAL AND PROCEDURAL HISTORIES

Mother
has four children, S.Z. (born in 2004), D.S. III (born in 2005), C.S. (born in
2006), and E.S. (born in 2008). D.S.
(father) is the presumed father of D.S. III, C.S., and E.S.

Mother
has a history with the Tulare County
Health and Human Services Agency (Agency).
When D.S. III was born, he and mother tested positive for controlled
substances. Mother and father agreed to
participate in voluntary family maintenance services, but after they both
tested positive for controlled substances, S.Z. and D.S. III were
detained. The Agency filed a juvenile
dependency petition on behalf of S.Z. and D.S. III, alleging failure to
protect. (§ 300,
subd. (b).) In October 2005, mother
and father admitted the allegations of the petition, and the juvenile court
sustained the petition. S.Z. and D.S.
III were removed from the parents’ custody, and href="http://www.fearnotlaw.com/">reunification services were
provided.

In
April 2006, the court ordered S.Z. and D.S. III placed with mother, although
they continued to be dependents of the court.
Later that year, C.S. was born healthy and with no signs of drug use by
mother. In October 2006, the court
granted mother sole legal and physical custody of S.Z. and D.S. III and
dismissed the dependency proceeding.

The
current case was initiated on September 13, 2010, by a juvenile dependency
petition filed on behalf of S.Z., D.S. III, C.S., and E.S. The petition alleged that mother and father
had a history of substance abuse and, on September 10, 2010, they smoked
marijuana in the presence of the children.
About half a pound of marijuana was found in the children’s
dresser. A glass pipe was found in
mother’s purse. It was alleged that the
parents’ drug abuse endangered the children, and prior services had failed to
ameliorate the situation. The children
were detained and placed together in a foster family agency home. On October 5, 2010, the court adjudged
the children dependents of the court and ordered family reunification services
for mother. The children remained in
foster care.

The
four children were placed together in three different foster homes from
September 10 to November 22, 2010.
D.S. III went to another placement with S.Z. and then two placements by
himself before being placed in a home by himself in Porterville in February
2011.

The
children had behavior problems during visits and at their foster homes. A court-appointed special advocate (CASA)
representative visited the children in their foster home in September
2010. The CASA representative observed
that all the children were constantly trying to seek the foster mother’s
attention and they “appeared unfamiliar to rules and structure.” The children insulted each other—for example
S.Z. told C.S. she was fat and had ugly hair—and the foster mother reported
that the children “used every swear word.”
The foster mother also expressed concern about S.Z.’s sexualized
behavior and reportedly saw “[S.Z.] tell [D.S. III] to bite her in the private
area.” In November 2010, a CASA
representative observed supervised
visitation between mother and the children.
During the visit, D.S. III and S.Z. yelled at each other. Later, D.S. III pushed E.S. down to the floor
for taking his toys and E.S. hit him back.
In response, mother laughed and was proud that E.S. was defending
herself. At a family visit on
December 7, 2010, D.S. III told E.S. and S.Z. to shut up and kicked E.S.
twice in the stomach because she tried to stop him from saying bad words. At a visit on December 11, 2010, when
D.S. III saw S.Z. in her new glasses, he told her she looked ugly.

There
were some better times during family visits.
At a visit on November 13, 2010, mother, the children, and their
grandmother walked to the store holding hands.
At a visit on December 18, 2010, the children hugged and kissed
mother, and D.S. III and S.Z. did a little musical performance. At a visit on January 7, 2011, C.S.
began to cry and D.S. III picked her up to hug and comfort her. (Mother, however, told him to let her down
because she would fall.)

According
to an Agency status review report dated March 16, 2011, mother had made
only minimal progress on her case plan.
She completed a substance abuse program but failed to comply with
court-ordered random drug testing and refused to participate in the aftercare
portion of the substance abuse program.
The social worker who prepared the report observed mother to be angry
and unremorseful. The social worker also
opined that mother had failed to establish any structure or boundaries with her
children and that she lacked motivation to make substantial progress.

With
respect to D.S. III, the social worker reported that he had had multiple foster
care placements due to his behavior problems.href="#_ftn3" name="_ftnref3" title="">^[2] He was referred to Visalia
Youth Services because he was “having a challenging time stabilizing in one
placement.” D.S. III was provided
therapeutic behavioral services (TBS) “to alleviate the behaviors such as the
defiance, restlessness, impulsivity, and the threats of harm to self and
others.” In his most recent placement,
D.S. III “continue[d] to hit, kick, curse and spit at others in the home as
well as at school, but the foster parents [were] open to assistance in the home
in the form of TBS services to alleviate the behaviors.”

The
Agency terminated reunification services for mother and set a
section 366.26 hearing. At a
hearing on April 15, 2011, the juvenile court did not follow the Agency’s
recommendation and instead ordered continuation of reunification services for
mother, including a new substance abuse treatment evaluation and services to
address mother’s inappropriate behaviors during visitation. The court expressed concern that the status
review report did not provide sufficient information to determine the closeness
and the strength of the sibling bond, the detriment to the youngest child if
the sibling ties were not maintained, and the likelihood of finding a permanent
home for the sibling group.

In
a status review report dated September 23, 2011, the Agency again
recommended that mother’s services be terminated because she had made minimal
progress. The Agency recommended that
the permanent plan living arrangement for the children be longer-term foster
care with the goal of guardianship.

Although
D.S. III’s caretakers had previously reported that he hit, kicked, cursed, and
spit at other children, and he “exposed his private body parts to other
children,” D.S. III’s behavior had improved since he began receiving TBS
services. He “made significant changes
and … responded positively to participation with TBS.” The Agency noted that therapists for D.S. III
and S.Z. indicated that it would not be in the children’s best interests to be
placed together because of concerns that the children were acting out sexually
with each other.

D.S.
III was reported to be adjusting well in his current placement, which began in
June 2011, and he appeared to get along with the other children in the
home. D.S. III’s school, however,
reported that he sometimes became aggressive with his peers and hit them. With respect to visitation with mother and
his siblings, D.S. III’s foster parent reported that it had become more difficult
to take D.S. III to his visits as he refused to get in the car or participate
in visits. He would say things like, “I
don’t want to see those people.” D.S.
III appeared disconnected during family visits, and he focused on playing by
himself. A foster family agency social
worker observed, “[D.S. III] does not appear to have a connection to his
biological family.” He had minimal
interaction with his mother and siblings, only occasionally visiting with his
older sister S.Z. D.S. III said he would
rather stay home with his mom, referring to his foster mother.

An
adoption assessment prepared in September 2011 noted that adoption had not been
discussed with any of the children’s current caretakers because the children
were all in new placements. (D.S. III
had been placed in his current foster home on June 1, 2011, and his
sisters’ current placements were all more recent than his.) The assessment recommended a permanent plan
of long-term foster care with the goal of guardianship.

At
the 12-month review hearing on October 27, 2011, the juvenile court
terminated reunification services for mother and ordered a section 366.26
to be set to determine a permanent plan for the children. The court stated that it was unable to make a
finding that mother had demonstrated the capacity and ability to complete the
objectives of her treatment plan and to provide for her children’s safety and
physical and emotional well-being. The
court ordered monthly visitation with the children for mother and ordered
sibling visits to occur at the time of mother’s visits.

In
a section 366.26 report filed on February 2, 2012, the Agency
recommended that parental rights be terminated for D.S. III and that adoption
be the plan identified as in his best interest.
D.S. III’s foster parents had a strong commitment to him and a clear
desire to adopt him. He had made great
progress in his current placement and expressed his desire to be adopted by his
foster parents. The social worker who
prepared the section 366.26 report observed that D.S. III was comfortable
in his foster home, and his desire to remain in the home was clear.

D.S.
III did not attend the monthly family visit in November 2011. He had told his therapist and others> that he did not want to visit
mother. D.S. III attended a visit in
December 2011 and was observed to be very quiet and withdrawn. He and S.Z. isolated themselves and did not
talk much to their sisters or mother.
D.S. III attended a family visit in January 2012, although he only
expressed interest in visiting with his sisters and was not excited about
seeing mother. When the visit was over,
he kept hugging his youngest sister E.S.
The Agency observed that, while D.S. III did miss his sisters, he was
functioning much better since they had separated.

On
February 10, 2012, after the section 366.26 report was filed, mother
filed a section 388 petition asking the court to return the children to
her care or, in the alternative, reopen reunification services. The Agency then filed an addendum report on
February 15, 2012. The report
concluded: “While [D.S. III] does have a
relationship with his siblings, his need for a permanent home is
essential. [He] has settled into his
current home and is comfortable there and has expressed his desire to be
adopted by his current caretakers. [D.S.
III’s] relationship with his siblings does not supersede his need for
permanence with his current prospective adoptive parents.”

On
March 20, 2012, the juvenile court held a hearing on mother’s
section 388 petition as to all the children and the section 366.26 hearing
as to D.S. III only. The court denied
mother’s section 388 petition, finding there had not been a change in
circumstances. The court further found,
“[B]ased on the behaviors of these children, … the positive changes that
they exhibited since placement in foster care, the mother’s conduct during
visitation, the fact that the children have visit issues after
visitation … even if there were a change … in circumstance it would
not be in the best interest of the children to grant mother’s 388 .…”

The
court then proceeded to D.S. III’s section 366.26 hearing. Mother’s counsel asked the court not to
terminate parental rights, arguing that D.S. III had a beneficial relationship
with both mother and his siblings.
Mother testified that, at family visits, the sisters would run to D.S.
III and hug him and he would hug them back.
She admitted that, before the children were detained in September 2010,
S.Z. and E.S. lived with their maternal grandmother and only D.S. III and C.S.
lived with mother. She testified that
D.S. III was close to C.S. She described
D.S. III’s relationship with C.S. and his other sisters: “He’s always made sure she was okay. If she would fall or, you know, any one of
them fall, he would pick them up, ‘Are you okay?’ He always picks flowers and stuff.”

D.S.
III’s counsel agreed with the Agency’s recommendation to terminate parental
rights, stating, “I think there is a bond between [D.S. III] and his siblings,
but not to the extent that the sibling exemptions should apply.”

The
juvenile court found that D.S. III was likely to be adopted. Addressing whether any exceptions applied to
avoid termination of parental rights, the court found that mother had not met
her burden of establishing that the exception under section 366.26, subdivision (c)(1)(B)(i)—the
parent-child-relationship exception—applied.
It was clear to the court that D.S. III did not have a good relationship
with mother and visits were not beneficial to him.

The
court then considered the exception under section 366.26,
subdivision (c)(1)(B)(v)—the sibling-relationship exception—and concluded
that this exception did not apply either.
The court explained:

“While [D.S. III] enjoys visiting with
his siblings, it does not appear that those visits are always beneficial to
him. What’s clear to the Court is that
[D.S. III] has made, as counsel argued, great strides in his current placement
and the Court is finding that the benefits of permanent placement and the
stability he is receiving outweigh the benefit of continuing the sibling
relationship.

“The
Court would certainly hope that [D.S. III] may continue his sibling
relationship, but the Court in making the decision the Court must make and
cannot assume that that will occur and the Court does not assume that that will
occur. [¶] The Court is well aware that it may be that
the adoptive parents decide not to continue that sibling relationship. Given the complete picture in this case, the
Court is finding that 366.26(c)(1)[(B)(v)] is not applicable as well.”

The
court terminated mother’s parental rights and referred D.S. III to the county
adoption agency for adoptive placement.





DISCUSSION

The
purpose of a section 366.26 hearing is to select and implement a permanent
plan for the dependent child. (>In re Celine R. (2003) 31 Cal.4th 45,
52.) The Legislature’s preferred
permanent plan is adoption. (>Id. at p. 53.) If a child is adoptable, “the court must
order adoption and its necessary consequence, termination of parental rights,
unless one of the specified circumstances provides a compelling reason for
finding that termination of parental rights would be detrimental to the
child. The specified statutory
circumstances—actually, exceptions to the general rule that the court
must choose adoption where possible—‘must be considered in view of the
legislative preference for adoption when reunification efforts have
failed.’ [Citation.] At this stage of the dependency proceedings,
‘it becomes inimical to the interests of the minor to heavily burden efforts to
name="citeas((Cite_as:_31_Cal.4th_45,_*53,_71_">place the child in a
permanent alternative home.’
[Citation.] The statutory
exceptions merely permit the court, in exceptional circumstances
[citation], to choose an option other than the norm, which remains
adoption.” (Ibid.)

In
this case, mother argued that the sibling-relationship statutory exception
applied. (§ 366.26,
subd. (c)(1)(B)(v).) To avoid
termination of parental rights under this exception, the juvenile court must
find “a compelling reason for determining that termination would be detrimental
to the child” due to the
circumstance 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.” (Ibid.) In deciding whether
the exception applies, “[t]he 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.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951.) It was mother’s burden to prove that the sibling relationship applied
in this case. (See >id. at p. 949.)

We
review the court’s ruling under the abuse of discretion standard. This means that we review the court’s
findings of fact for substantial evidence and its conclusions of law de novo,
and we reverse its application of law to facts only if it is arbitrary and
capricious. (In re C.B. (2010)
190 Cal.App.4th 102, 123.)

Here,
mother acknowledges that D.S. III did not express deep sadness or pain in
losing his siblings and, further, there is no realistic option for D.S. III to
spend the rest of his childhood in the same home as his siblings. She also acknowledges that D.S. III wanted to
be adopted and appeared to be thriving in his new home. Nonetheless, she contends that the evidence
“supports a strong attachment developing between [D.S. III] and his sister
[C.S.], who were less than two years apart, and many day-to-day shared
experiences for [D.S. III] and all three [of] his siblings during a very
meaningful period for a child forming life-long supportive family figures—his first
five years of life.” Mother does not,
however, refer to any evidence in the record to support her assertions
regarding D.S. III’s relationship with C.S.
Mother also criticizes the “expert” evidence of a social worker who
determined that adoption was in D.S. III’s best interest, but mother did not
present any evidence, expert or otherwise, to establish that severing the
sibling relationship would be detrimental to D.S. III. While she asserts that the preservation of
family ties is critical to healthy growth, mother points to no evidence in the
record to support the proposition that, in this particular case, the sibling
relationship was critical to D.S. III’s healthy growth.

“Moreover,
even if 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 name="sp_4041_953">name="citeas((Cite_as:_101_Cal.App.4th_942,_*9">child adoption would
provide.” (In re L.Y.L., supra, 101
Cal.App.4th at pp. 952-953.) In
this case, the juvenile court determined that the benefits to D.S. III of
adoption outweighed the benefit of continuing the sibling relationship. The court expressed hope that D.S. III could
continue his relationship with his siblings, but reached its determination
assuming that D.S. III would not continue visiting his sisters.

On
the record before us, we conclude that the juvenile court reasonably could
determine that D.S. III’s continued relationship with his sisters did not
outweigh the benefit of a permanent home with his prospective adoptive
parents. Stated differently, we cannot
say that the record compels a finding that D.S. III’s relationship with his
sisters outweighs the benefits of adoption.
(See In re I.W. (2009) 180
Cal.App.4th 1517, 1528 [where appellant had burden of proof at trial, “the
question for a reviewing court becomes whether the evidence compels a finding
in favor of the appellant as a matter of law”].)

DISPOSITION

The
juvenile court order is affirmed.