In re D.R.
Filed 5/8/13 In re D.R. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re D.R. et al., Persons Coming Under the Juvenile Court
Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff
and Respondent,
v.
P.B.,
Defendant
and Appellant.
E057542
(Super.Ct.No.
INJ019445)
OPINION
APPEAL
from the Superior Court
of
County. Lawrence
P. Best, Temporary Judge. (Pursuant to
Cal. Const., art VI, § 21.)
Affirmed.
Daniel
G. Rooney, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela
J. Walls, County Counsel,
and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
P.B.
(mother) appeals from an order of the juvenile court terminating her parental
rights to W.B. (born in August 2011) and D.R. (born in December 2009).
failed to apply the sibling relationship exception to preserve D.R.’s
relationships with his siblings. We find
no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
The
Riverside County Department of Public
Social Services (Department) filed a petition in August 2011 alleging W.B,
D.R.,
history of abusing controlled substances, and W.B. tested positive for
amphetamines and methamphetamine when he was born. The detention report stated that mother
admitted relapsing and using methamphetamine the day before W.B.’s birth, and
she did not call 911 until about an hour after W.B. was born at home. He was admitted to the Neonatal Intensive
Care Unit where he was expected to remain about two weeks. Mother had been in a substance abuse program
for about a year, but had been terminated for failure to comply. She told the social worker she had been clean
before her relapse. She did not complete
her substance abuse program because she was told she did not have to do so
after a prior child welfare case was closed, and she did not believe she had a
drug problem any longer. Mother had
enrolled in another substance abuse program twice before without
finishing. Several of her children had
tested positive for methamphetamine at their births.
At
the detention hearing, the juvenile court found a prima facie case and detained
the children. The older half siblings
were allowed to remain in the family home with W.T., and D.R. and W.B. were
removed to foster placements.
The
Department filed a jurisdiction/disposition report in September 2011. The report stated that W.T. had expressed a
desire to care for W.B. and D.R. but was unable to do so. He felt it was important that his children
continue to visit with W.B. and D.R. and have a relationship with them. Mother had not made herself available for an
interview and had not visited the children since the detention.
At
the jurisdiction/disposition hearing, the juvenile court found the petition
true. The court ordered reunification
services for mother.
In
February 2012, the Department filed a report for the six-month review
hearing. D.R. was living with his
paternal aunt, G.C., and was bonding to her and adjusting to the
placement. He had difficulty seeing his
half siblings leave with W.T. after visits.
He was very close to half sibling J.T., and she was excited to see
him. The half siblings’ schedules
allowed D.R. and W.B. to visit with them just once a month. W.T. told the social worker that it was
important for his children to see D.R., and he could arrange visits with D.R.’s
caretaker. Mother had failed to make
progress with her case plan.
At
the review hearing, a representative from the Victory Outreach Recovery Home
testified that mother had entered an inpatient program there in March 2012; she
was in compliance with all the program requirements, and she was “doing very
well.†The juvenile court terminated
services for mother and set a hearing date to determine appropriate permanent
plans for D.R. and W.B.
The
section 366.26 report stated that D.R. was healthy, was bonded to his aunt, and
called her “Mamma.†The boys visited
their older half siblings monthly. W.T.
did not appear to have a bond with them, but D.R. had a relationship with his
half siblings and cried when it was time to leave. D.R. had difficulty staying in the room with
the half siblings during the visits, and he called for G.C. At the end of the visits, he looked to G.C.
for comfort. G.C. wanted to adopt D.R.
She was willing to facilitate sibling visitation after adoption.
Mother
filed a section 388 petition requesting reinstatement of reunification
services. She stated that she had made
substantial progress in her inpatient program; she had completed a parenting
program; and she had been clean and sober for more than four months. Her children were bonded to her and severance
of ties would be detrimental to them.
The
juvenile court held a hearing on mother’s section 388 petition in September
2012. A social worker testified that
mother’s inpatient program was not county-approved. The social worker stated that D.R. had a bond
with his mother and half siblings, and was especially bonded to his half sister
J.T. The social worker testified that
D.R.’s caregiver wanted to continue sibling contact after adoption. B.T., an adult half sister, testified that
family visits with the children went well.
D.R. wanted to take his sister, J.T., with him when he left. He was excited and happy to see the other
children, and he screamed and cried if they left without him. Another half sibling, A.T., testified that
D.R. was “like [his] best friend.†D.R.
was closest to A.T. and Ja.T., he was excited to see everyone at visits and sad
when they ended. Before the dependency,
A.T. and D.R. had played video and ball games together, and D.R. had sometimes
come into his room with his bottle and had lay with A.T. until he went to
sleep. Ja.T testified that she had lived
with D.R. for two years and had a good relationship with him; he seemed to feel
the closest to her. When they lived
together, she had played games with him.
During visits, he hugged her and cried when the visits were over.
D.R.’s
caretaker testified that he loved his half siblings, and if she adopted D.R.,
she would allow him to visit them. In
her experience, W.B.’s caretakers had made an effort to ensure that W.B. also
visited them.
The
juvenile court found that mother failed to show a change of circumstances and
denied the section 388 petition. The
court proceeded to the section 366.26 hearing.
Mother’s counsel argued that the parental bond and sibling bond
exceptions to adoption applied. The
court found the exceptions had not been established. The court found D.R. and W.B. adoptable and
terminated parental rights.
III. DISCUSSION
Mother contends
the court erred when it failed to apply the sibling relationship exception to
preserve D.R.’s relationships with his siblings.
An
exception to the termination of parental rights applies if the trial court
finds “[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.†(§ 366.26, subd.
(c)(1)(B)(v).) “‘[T]he “sibling
relationship exception contains strong language creating a heavy burden for the
party opposing adoption. It only applies
when the juvenile court determines that there is a ‘compelling reason’ for
concluding that the termination of parental rights would be ‘detrimental’ to
the child due to ‘substantial interference’ with a sibling relationship.†[Citations.]’†(In re
Naomi P. (2005) 132 Cal.App.4th 808, 823.)
One court has observed that “the application of this exception will be
rare, particularly when the proceedings concern young children whose needs for
a competent, caring and stable parent are paramount. [Citation.]â€
(In re Valerie A. (2007) 152
Cal.App.4th 987, 1014.) For the sibling
relationship exception to apply, the juvenile court must find both that a
significant sibling relationship exists and that detriment would flow from
severing it. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952.)
D.R.
was 20 months old when the dependency began, and he had spent almost two-thirds
of his life in a home with his siblings.
It was undisputed that the children all loved one another and enjoyed
each other’s company during visits and that D.R. cried when the visits
ended. The record does not show,
however, that D.R. suffered emotional distress from missing his siblings
between their monthly visits. Moreover,
W.T. had told the social worker he was interested in facilitating visits
between his children and D.R., and W.T. would coordinate the visits with D.R.’s
prospective adoptive mother, G.C. G.C.
also indicated she intended to provide future visits between D.R. and the half
siblings. Thus, “termination of parental
rights did not necessarily foreclose the continuation of the sibling relationships.†(In re
Valerie A., supra, 152
Cal.App.4th at p. 1014.) There, the
trial court stated it was “not convinced there [wa]s going to be a disruption
in the siblings’ relationship.â€
Moreover, D.R. had a stable and loving relationship with G.C., his paternal
aunt, and the juvenile court found he was bonded to her.
Citing
In re Megan S. (2002) 104 Cal.App.4th
247, mother asserts in her reply brief that a caregiver’s willingness to allow
continued sibling visitation may not continue after termination of parental
rights. In that case, although the court
stated that “[t]he parties correctly point[ed] out that there is no guarantee
that sibling contact would be continued after adoption,†the court affirmed the
trial court’s finding that the sibling relationship exception did not apply,
explaining: “[T]o establish the section
366.26, [former] subdivision (c)(1)(E) [now section 366.26, subdivision
(c)(1)(B)(v)] exception, a party must show a substantial interference with the
sibling relationship. However, the evidence
demonstrated that the relationship between Megan and [her sister] would not be
disrupted. The social worker has located
25 possible adoptive homes for Megan that would allow sibling contact. The social worker wanted to place her in such
a home. Consequently, there would be no
substantial interference with their relationship.†(In re
Megan S., at p. 254.) Thus,
argument.
Mother
also cites In re Kimberly S. (1999)
71 Cal.App.4th 405 for the proposition that willingness to allow continued
visitation is not relevant to the termination of parental rights, but arises
only in the context of a post-severance, post-adoption agreement. That case is not on point; it did not address
the sibling relationship exception, but instead dealt with kinship
section 8714.7.
We
conclude substantial evidence supported the juvenile court’s finding that the
sibling relationship exception had not been established.
IV. DISPOSITION
The
orders appealed from are affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
RICHLI
J.
name="_ftn1" title=""> [1] Mother also purports to appeal from an order
denying her Welfare and Institutions Code section 388 petition. However, she has raised no argument on appeal
relevant to that order. In addition, her
sole argument on appeal relates only to D.R.; she does not contend that W.B.,
who was removed from her custody at birth, had any relationship with his
siblings.
name="_ftn2" title=""> [2] D.R.’s father is deceased. W.B.’s father is unknown.
