In re Joshua G.
Filed 4/19/13 In re Joshua G. CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
ONE
In re JOSHUA G., a Person
Coming Under the Juvenile Court Law.
B244463
(Los Angeles County
Super. Ct. No. CK82109)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CYNTHIA R.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court of the County of
______
Patti L.
Dikes, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, Emery El
Habiby, Deputy County Counsel, for Plaintiff and Respondent.
______
Cynthia R.,
mother of Joshua G., appeals from the order terminating her parental rights
pursuant to Welfare and Institutions Code section 366.26.
erred in terminating her parental rights
because it should have applied the sibling-relationship exception to
termination under section 366.26, subdivision (c)(1)(B)(v). We disagree and thus affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
After finding a prima facie case
for detaining Joshua and three of his siblings, the juvenile court adjudged the
children dependents of the court by sustaining a section 300 petition against
Mother on the following grounds: (1) “On
05/02/2010, . . . [M]other . . . placed the children in a detrimental and
endangering situation by driving a vehicle while under the influence of alcohol
with the children as passengers in the vehicle.
The mother drove in an erratic manner.
The mother consumed beer while driving resulting in [Joshua’s older
sister] being afraid. The mother possessed
beer[] and empty beer bottles in the vehicle within access of the
children. The mother left the children
in the vehicle with the vehicle running and the key in the ignition while the
mother entered a store. The mother
failed to ensure [Joshua’s younger sister] was restrained in an appropriate
child safety seat.†(§ 300, subd.
(b).) (2) Mother “has an unresolved
history of alcohol [abuse,] which renders the mother incapable of providing the
children with regular care and supervision.
The mother has a criminal history of alcohol[-]related
convictions.†(Ibid.) (3) “On 05/02/2010, .
. . [M]other . . . physically abuse[d] [Joshua’s older brother] by slapping the
child’[s] face. Such physical abuse was
excessive and caused the child unreasonable pain and suffering.†(Id.
at § 300, subds. (b) & (j).)
name="_ftnref2" title="">[2] The Department of Children and Family
Services (DCFS) placed Joshua and his older brother in one foster home, his
older sister in another foster home and his younger sister in a third foster
home.
At a review
hearing on February 22, 2011, the juvenile court concluded that Mother had not
“complied with the program[.]†According
to the court, “I cannot find regular and consistent contact; that mother made
significant progress in resolving the problems which led to removal; or that
she demonstrated the capacity and ability to complete the objectives of the
treatment plan and provide for the children’s safety, protection, physical or
emotional well-being [and] special needs.â€
As a result, the court terminated Mother’s family reunification services
and set the matter for a permanent plan hearing.
On May 10,
2012, before the permanent plan hearing, DCFS moved Joshua’s older brother from
his placement with Joshua to a group home.
According to the DCFS report, the move occurred because the older
brother “was exhibiting behavior such as refusing to attend school, being
aggressive with his younger sibling, Joshua, (punching and hitting Joshua) and
being defiant with caregiver[]s.†The
older brother requested the move and “reported he was not comfortable with his
current placement.â€
On August
30, 2012, before turning to the issue of permanency, the juvenile court
addressed a section 388 petition that Mother had filed in which she sought
return of all four children to her or, at a minimum, additional family
reunification services with Joshua’s younger sister. The court denied the petition, finding “no
changed circumstances at all†based on the fact that “Mother’s been unable to
get clean and sober†in the 27 months since the filing of the petition.
Addressing
permanency, the court concluded that Joshua’s older brother “is not
adoptable. There is no one available for
legal guardianship. Planned permanent
living arrangement is in his best interest.
He is 15 . . . so for him . . . planned permanent living
arrangement.†The court ordered a legal
guardianship for Joshua’s older sister, who was 13, with her current
caretaker. With respect to Joshua’s
younger sister, who was residing with her paternal grandmother, the court
continued family reunification services for the father, transferred the case to
Riverside County where the paternal grandmother resided and ordered visitation
for Mother. As for Joshua, who was 10,
he reported to DCFS that “he did not want to visit with his mother. The mother continues telling him that she had
cancer and she is dying, which make[s] him feel guilty and uncomforted.†DCFS recommended termination of parental
rights for Joshua, as his caretaker was willing to adopt him. Counsel for the children, with agreement by
Mother’s counsel, asserted the sibling-relationship exception to the
termination of parental rights for Joshua, arguing that “the plan for the
current caretaker[] is to move to Pennsylvania and Joshua’s really opposed to leaving
his family in this area.†The court
responded, “I understand that’s a problem.
Nonetheless, permanency for him requires that we go to the most
permanent plan. If I move to a legal
guardianship, he would still move to Pennsylvania. I’m certainly not putting him in another home
at this point after everything he’s been through. So I will ask and hope that the caregiver[]
for him will make sure [to] stay in touch with all of the siblings. They’re in four separate places. . . . I’m
not going to put him in a foster ho[m]e.
It’s just not appropriate.†The
court added, “I get it, and this is very difficult when we have all of these
children in completely different homes.
In order for Joshua to maintain contact with his siblings, he needs to
go into foster care and remain in foster care.
That’s completely inappropriate.
He’s in a loving home who wishes to adopt him and, as far as I know,
[there is] full intent to allow the children to talk to each other and see each
other.†The court thus terminated the
parental rights of Mother and Joshua’s father as to Joshua, freeing him for
adoption. Mother filed a timely notice
of appeal.
DISCUSSION
“At a
hearing under section 366.26, the court must select and implement a permanent
plan for a dependent child. Where there
is no probability of reunification with a parent, adoption is the preferred
permanent plan. [Citation.] To implement adoption as the permanent plan,
the juvenile court must find, by clear and convincing evidence, that the
minor is likely to be adopted if parental rights are terminated. (§ 366.26, subd. (c)(1).) Then, in the absence of evidence that
termination of parental rights would be detrimental to the child under
statutorily specified exceptions (§ 366.26, subd. (c)(1)(A)-(B)), the juvenile
court ‘shall terminate parental rights’ (§ 366.26,
subd. (c)(1)).†(In re
K.P. (2012) 203 Cal.App.4th 614, 620.)
“The
sibling[-]relationship exception [to termination of parental rights] applies
where the juvenile court finds that ‘substantial interference with a child’s
sibling relationship’ is a ‘compelling reason’ to conclude that adoption would
be detrimental to the child. In making
this determination, the court should take 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.’
(§ 366.26, subd. (c)(1) (B)(v).)â€
(In re Bailey J. (2010) 189
Cal.App.4th 1308, 1317.) The exception
contains factual and discretionary components.
First, the proponent of the sibling-relationship exception has the
burden to produce evidence of the existence of a beneficial sibling
relationship, a factual question, which we review for substantial
evidence. (Id. at p. 1314; see also In
re I.W. (2009) 180 Cal.App.4th 1517, 1529 [challenge to juvenile court’s
finding that no beneficial relationship exists amounts to contention that
“undisputed facts lead to only one conclusionâ€].) Second, the court must “find that the
existence of that relationship constitutes a ‘compelling reason for determining that termination would be
detrimental.’ [Citation.]†(In re
Bailey J., at p. 1315.)
That question is “a ‘quintessentially’ discretionary decision, which
calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact
that its severance can be excepted to have on the child and to weigh that
against the benefit to the child of adoption.
[Citation.]†(
We thus review that determination for an abuse of discretion. (Ibid.)
In this
case, Mother argues that the juvenile court should have applied the
sibling-relationship exception to the termination of her parental rights
because Joshua and his three siblings, who were subjects of the section 300
petition, “were raised together in the same home until [DCFS] separated themâ€
and “Joshua had strong bonds with his brother and sisters [so that] ongoing
contact was in his best interest.†We
disagree.
Even
assuming beneficial relationships existed between Joshua and his three siblings
based on Joshua’s desire to see them and their being raised together and
sharing common experiences, the juvenile court did not abuse its discretion in
finding that those relationships did not constitute a compelling reason for
determining termination of parental rights would be detrimental to Joshua. Although Joshua and his older brother
originally were placed together, the older brother was removed from the home
several months before the permanent plan hearing in part because he was “being
aggressive†with Joshua by “punching and hitting Joshua.†DCFS reported that the older brother was
physically aggressive and emotionally abusive with Joshua and that “Joshua’s
behavior is strongly influence[d] by the ongoing defiant behavior of his
[older] brother . . . .†Joshua’s
prospective adoptive parent reported that “Joshua has been doing better since
[his older brother] was replaced.†With
regard to Joshua’s older and younger sisters, he was not placed with them for
the majority of the dependency proceedings, and, at the time of the permanent
plan hearing, the younger sister lived in Riverside with her paternal
grandmother. Joshua was in special
education, and his prospective adoptive parent was able to address his
needs. Joshua was comfortable with the
prospective adoptive parent. And, as the
court noted, if the prospective adoptive parent planned to move out of state,
Joshua would require placement in a foster home to avoid any move and maintain
contact with his siblings, which the court found would be “completely
inappropriate†given the stable home the prospective adoptive parent offered
and the tumultuous experience Joshua had with Mother. The court thus reasonably could have determined
that the benefits of a stable adoptive home outweighed any detrimental impact
from separating Joshua from his siblings.
The
order is affirmed.
NOT
TO BE PUBLISHED.
ROTHSCHILD,
J.
We concur:
MALLANO,
P. J.
JOHNSON,
J.
name="_ftn1" title="">
references are to the Welfare and Institutions Code.
time of the petition, Joshua was 7; his older brother was 13; his older sister
was 11; and his younger sister was 8 months.
Joshua and his older brother and sister appeared to have the same
father. All three said they had no
contact with their father. Joshua’s
younger sister has a different father.
Joshua has two additional siblings who live in Washington and have been
the subject of dependency proceedings in that state. Only Joshua is involved in this appeal.
