In re Jasmine O. CA4/1 ( 2015 )

Filed 4/21/15 In re Jasmine O. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JASMINE O., a Person Coming
Under the Juvenile Court Law.
D066526
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. CJ1085A)
Plaintiff and Respondent,
v.
SELENE L.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Laura J. Birkmeyer, Judge. Affirmed.
Neil R. Trop, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
Carl J. Fabian, under appointment by the Court of Appeal, for Minor.
Selene L. appeals a judgment terminating her parental rights to her daughter,
Jasmine O., under Welfare and Institutions Code section 366.26, and the juvenile court's
rejection of the San Diego County Health and Human Services Agency's (Agency)
recommendation to move Jasmine from her paternal aunt's home to her maternal great
aunt's home. (Undesignated statutory references are to the Welfare and Institutions
Code.) Selene contends (1) the juvenile court should have reviewed the Agency's
placement decision for an abuse of discretion rather than under a best interest standard,
and (2) the juvenile court erred in failing to apply the sibling relationship exception to
adoption. The Agency agrees with Selene that the juvenile court incorrectly applied the
best interest standard in reviewing the Agency's placement selection. Minor's appellate
counsel disagrees with Selene and the Agency regarding the applicable standard and
requests that we affirm the juvenile court's judgment in its entirety. We conclude the
juvenile court applied the proper standard in reviewing the Agency's placement selection
and substantial evidence supported the court's decision that the sibling relationship
exception to adoption did not apply.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2012, when Jasmine was approximately three weeks old, the Agency filed
a dependency petition on her behalf because she tested positive for methamphetamine at
birth and Selene had a history of drug use and neglecting Jasmine's half siblings. The
juvenile court assumed jurisdiction, removed Jasmine from Selene's care and placed
Jasmine with her father. Shortly thereafter, the Agency filed a supplemental petition
alleging that the order placing Jasmine with her father had not been effective in
2
protecting Jasmine as the father had sent Jasmine out of the county in violation of the
court's order and was incarcerated. Jasmine was detained in a foster home. Later, the
Agency placed Jasmine with a paternal relative in Anaheim, California.
In 2013, Jasmine's four half siblings became dependents of the juvenile court. The
Agency placed Jasmine's half siblings with Rosa A., Jasmine's maternal great aunt.
Jasmine visited her half siblings every week. Jasmine also had two visits per month with
her father and weekly visits with Selene. In August 2013, Jasmine began travelling to
Tecate, Mexico and spent weekends in her paternal aunt Esmeralda O.'s home to
accommodate Jasmine's father's visits at that location.
At the September 2013 six-month review hearing, the juvenile court terminated
Selene's services and ordered the father be provided another six months of services. In
November of that year, Jasmine's paternal relative with whom she had been placed,
requested that Jasmine be removed from her care due to conflicts with Jasmine's maternal
family members.
The Agency recommended placing Jasmine in the home of her maternal great
aunt, Carmen G. According to the Agency, it feared that if Jasmine was placed in
Esmeralda's home, Jasmine's sibling visitation would diminish. Moreover, the Agency
reported difficulties contacting Esmeralda by telephone, making communication between
the Agency and caretaker difficult.
At a contested 12-month permanency hearing in January 2014, the court
terminated Jasmine's father's services. In considering Jasmine's placement, the court
noted there had been a history of conflicts between maternal and paternal relatives. After
3
considering the factors set forth in section 361.3, the court placed Jasmine in Esmeralda's
home in Tecate. The court noted that Jasmine had established a close relationship with
Esmeralda and that Esmeralda was willing to facilitate visits with Jasmine's half siblings.
The court ordered Esmeralda to make Jasmine available for visits with Jasmine's half
siblings and to supervise the father's visits.
In May 2014, the court held a section 366.26 hearing. In its section 366.26 report,
the Agency noted Jasmine was developmentally on track, showed behaviors indicating
she loved her family members, and would be fine if adopted by either side of the family.
The Agency, however, sought to move Jasmine from Esmeralda's home to Carmen's
home. According to the Agency, placement in Carmen's home would be in Jasmine's
long-term best interest. The Agency noted Carmen's home was close to Rosa's home
where Jasmine's half siblings resided. Accordingly, placement in Carmen's home would
allow Jasmine to maintain close contact with her half siblings. The Agency also stated it
did not feel it was in Jasmine's best interest to leave her with Esmeralda because
Esmeralda had not followed through with conditions of Jasmine's placement, such as
calling the social worker on a weekly basis, and had been resistant to the Agency's
requests in regard to sibling visits.
At the section 366.26 trial, the court considered termination of parental rights,
adoption as Jasmine's permanent plan, and the Agency's request to change Jasmine's
placement under section 366.26, subdivision (k) from Esmeralda's care to Carmen's care.
The court received considerable evidence on the strength of the relationships between
4
maternal relatives and Jasmine, paternal relatives and Jasmine, and between Jasmine and
her half siblings.
Jessica Cota, a protective services worker assigned to evaluate a permanent
placement for Jasmine, testified that both Carmen's and Esmeralda's families had
approved home studies for Jasmine's placement. Cota observed Carmen interact with
Jasmine on two occasions and reported Jasmine was familiar with Carmen. After her
placement in Tecate, Jasmine had eight visits with her half siblings that were
approximately three to four days at a time. Carmen interacted with Jasmine at Rosa's
home at each of the sibling visits. Carmen believed Jasmine was attached to her.
Jasmine was always excited to see her half siblings. At the end of visits, Jasmine
and her half siblings had a difficult time separating from each other. Cota described
Jasmine's relationship with her half siblings as a loving one and stated it was the only
constant relationship Jasmine had in her life. Cota recommended placing Jasmine with
Carmen in part because Jasmine's half siblings would be nearby.
Cota believed Jasmine was developing an attachment issue because Jasmine
detached easily from her caregivers for sibling visits and had considerable difficulty
when she would leave her half siblings after visits. Cota believed Jasmine had attached
to Esmeralda and Esmeralda's husband and that Jasmine loved them. However, Cota
opined that Jasmine would suffer no serious detriment to her emotional well-being if
moved from Esmeralda's home. Cota did not believe Jasmine had substantial emotional
ties to Esmeralda as Jasmine had only lived with Esmeralda for five months at that point
and had moved around substantially prior to her placement with Esmeralda.
5
On about five occasions, Cota had driven to the San Diego-Mexico border to pick
Jasmine up from Esmeralda and take her to Los Angeles for sibling visits. Jasmine cried
during the first couple of exchanges when she had to leave Esmeralda.
Cota testified that Esmeralda had previously stated that it was a hardship to
transport Jasmine to the border for the sibling visits and that it was a financial burden on
her family. Esmeralda, however, always complied with transporting Jasmine. Cota
believed that if Jasmine remained in Esmeralda's home, it would substantially interfere
with Jasmine's sibling relationships because the Agency had significantly assisted with
transporting Jasmine for her sibling visits. The Agency could no longer assist with
sibling visits after Jasmine's adoption. Despite the strength of the sibling relationships,
the Agency was still recommending adoption for Jasmine because the benefits of
adoption were not outweighed by the sibling relationships.
Esmeralda testified it would be a financial burden to take Jasmine to Los Angeles
twice a month for sibling visits. However, Esmeralda wanted Jasmine to have positive
sibling relationships and was willing to transport Jasmine from Mexico to Los Angeles
for those visits. Esmeralda planned to arrange for sibling visits every six weeks.
By April 2014, Esmeralda's relationship with Cota was strained and Esmeralda did
not feel Cota was supporting her. Cota told Esmeralda that if she did not comply with the
Agency's requirements, the Agency would take Jasmine away from her. Esmeralda was
always fearful and did what Cota told her to do.
After considering the evidence, the court terminated parental rights and ordered
adoption as Jasmine's permanent plan. The court rejected the Agency's decision to move
6
Jasmine from Esmeralda's home in Tecate to Carmen's home. In making its ruling on the
placement issue, the trial court engaged in an extensive recitation of the factors, law, and
evidence it considered. Initially, the court set forth the requirements of section 366.26,
subdivision (k), known as the "caretaker preference." The court noted that other courts
have found under that section, it is not the court's assessment that controls; rather, the
agency's assessment controls absent an abuse of discretion.
Regarding the court's rejection of the Agency's placement determination, the court
went on to state, "This is not a matter of the court just having a different view. [The
court] find[s] that the facts don't support the [Agency's] underlying assessment."
Moreover, the court was concerned that the Agency's evaluation of Jasmine's placement
with Esmeralda was not done in good faith. In particular, the court detailed evidence
demonstrating the social worker treated Esmeralda unfairly and imposed responsibilities
on Esmeralda not required by the court's prior orders. Of notable concern, the court
found the social worker's assessment that Jasmine had attachment problems was "based
on ludicrous assumptions and a paucity of information" and "the Agency did not engage
in a fair process in determining whether there are substantial emotional ties [between
Jasmine and Esmeralda], or whether it would be seriously detrimental to [Jasmine's]
emotional well being." The court continued that in terms of the Agency's evaluation of
Jasmine's relationship with Esmeralda and Esmeralda's family, the social worker did not
observe the relationship other than during brief exchanges when the social worker picked
Jasmine up for purposes of sibling visitation.
7
Ultimately, the court concluded Esmeralda's family "did not get a fair shot nor did
they get a level playing field in terms of assessing their relationship with Jasmine. . . . [¶]
Implicit in the Agency's role in . . . making informed determinations pursuant to [section
366.26,] subdivision (k) as to substantial emotional ties and serious detriment to a child's
emotional well-being is that it be done with integrity and unbiased and occur with
offensive of rigor and fairness. . . . [¶] . . . Indeed, before making these very significant
determinations that will clearly affect a child's future, the Agency should employ a fair
informed method, and that did not happen here."
DISCUSSION
I. Request to Dismiss Minor's Brief
Jasmine's appellate counsel filed a brief arguing we should affirm the juvenile
court's decision declining to move Jasmine from Esmeralda's home to Carmen's home.
This argument is contrary to the position Jasmine's trial counsel took in the juvenile court
and the Agency's position on appeal. However, Jasmine's appellate counsel stated,
Jasmine's "[t]rial counsel had no objection to appellate counsel taking a different position
on the placement issue on appeal."
The Agency filed a letter brief requesting that we dismiss a portion of minor's
brief. Specifically, the Agency asserted that the portion of minor's brief concerning the
placement issue should be dismissed because appellate counsel was not unequivocally
authorized to take a position different from that of Jasmine's trial counsel. (See In re
Josiah Z. (2005) 36 Cal.4th 664, 678.) Subsequently, Jasmine's appellate counsel filed a
declaration unequivocally stating trial counsel consented to appellate counsel asserting a
8
different position than asserted at trial. Accordingly, to the extent there was an ambiguity
or deficiency in Jasmine's appellate counsel's brief, it has been cured and we decline to
dismiss any portion of the brief.
II. Jasmine's Placement
Selene and the Agency argue the juvenile court applied an incorrect standard in
reviewing the Agency's placement determination declining to move Jasmine from
Esmeralda's care to Carmen's care. Specifically, they assert the juvenile court should
have reviewed the Agency's placement determination for an abuse of discretion rather
than under a best interest standard. We reject this argument.
Preliminary, we note that "[a]fter parental rights have been terminated pursuant to
Section 366.26, an order by the court that a dependent child is to reside in, be retained in,
or be removed from a specific placement, is not appealable at any time unless all of the
following apply: [¶] (A) A petition for extraordinary writ review was filed in a timely
manner." (Section 366.28, subd. (b)(1).) A petition for extraordinary writ review was
not filed in this case. However, we exercise our discretion to construe the appeal on the
placement issue as a petition for extraordinary writ review and consider the argument on
the merits. (See Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 254, 255, fn. 2
[construing appeal from nonappealable order as petition for writ of mandate].)
Following termination of parental rights, the juvenile court must refer the
dependent child to the State Department of Social Services or a licensed adoption agency
for adoptive placement. (§ 366.26, subd. (j); Cal. Rules of Court, rule 5.725(e)(3).) The
department or agency is responsible for the custody and supervision of the child and is
9
entitled to exclusive care and control of the child until a petition for adoption is granted.
(§ 366.26, subd. (j).) Similarly, Family Code section 8704 provides that the department
or agency has exclusive custody and control of the child until adoption, including the
discretion to terminate any placement for temporary care or for adoption. (Fam. Code,
§ 8704, subd. (a).)
Relying on these statutory provisions, the appellate court in Department of Social
Services v. Superior Court (1977) 58 Cal.App.4th 721, 733 (Department of Social
Services), concluded the Legislature granted the social services agency the exclusive
custody, control and supervision of a child referred for adoptive placement. "This
exclusive authority expressly includes decisions on adoptive placement as well as
temporary care, i.e. foster care placement pending adoptive placement. Moreover, the
Legislature explicitly has provided that, prior to the filing of a petition for adoption, the
[social services] agency may change an adoptive placement at its discretion." (Ibid.)
The social services agency's decision on placement pending adoption cannot be
overturned absent a showing that the agency abused its discretion. (Department of Social
Services, supra, 58 Cal.App.4th at p. 733.) The role of the juvenile court is limited to
reviewing whether the agency abused its discretion by placing the child or determining
whether or not a placement continues to be appropriate. (Id. at p. 734.) The court in
Department of Social Services, supra, cautioned that the juvenile court must not
substitute its judgment for that of the agency, but may assess only whether the agency
acted arbitrarily or capriciously. (Ibid.) "Absent a showing that [the Agency's]
placement decision is patently absurd or unquestionably not in the minor's best interests,
10
the juvenile court may not interfere and disapprove of the minor's placement, thereby
requiring that the minor be relocated to another home." (Ibid.)
However, "[t]he Agency's discretion regarding interim and adoptive placement is
not unfettered. [Citation.] The court retains jurisdiction over the child to ensure the
adoption is completed as expeditiously as possible and to determine the appropriateness
of the placement. ([Citation]; see § 366.3, subd. (f)(12) [[T]he court is required to 'make
appropriate orders to protect the stability of the child and to facilitate and expedite the
permanent placement and adoption of the child.'].) Thus the Agency does not have 'carte
blanche' to make placement decisions. [Citation.]" (In re Shirley K. (2006) 140
Cal.App.4th 65, 72.)
Here, the Agency sought to move Jasmine's placement from Esmeralda's care to
Carmen's care under section 366.26, subdivision (k). That section provides the
following: "Notwithstanding any other provision of law, the application of any person
who, as a relative caretaker or foster parent, has cared for a dependent child for whom the
court has approved a permanent plan for adoption, or who has been freed for adoption,
shall be given preference with respect to that child over all other applications for adoptive
placement if the agency making the placement determines that the child has substantial
emotional ties to the relative caretaker or foster parent and removal from the relative
caretaker or foster parent would be seriously detrimental to the child's emotional well-
being." (Italics added.) Thus, the Agency sought to deny Esmeralda the caretaker's
preference under section 366.26, subdivision (k), by putting forth evidence it suggested
supported its determination that Jasmine did not have substantial emotional ties to
11
Esmeralda and changing Jasmine's placement would not be detrimental to Jasmine's
emotional well-being.
Selene and the Agency contend that the court applied a best interest standard to
review the Agency's placement decision rather than the proper inquiry of whether the
Agency abused its discretion. Based on our review of the record, although the juvenile
court repeatedly referenced Jasmine's "best interest," it undoubtedly found the Agency
acted arbitrarily or capriciously in making its placement decision. The juvenile court
commenced its ruling with a recitation of the Agency's position regarding the court's
limited role in reviewing the Agency's determination under section 366.26, subdivision
(k). The court then employed the Agency's proffered standard.
The juvenile court found the Agency failed to "employ a fair informed method"
for making its placement recommendation. Specifically, the court found the Agency
presented an insufficient factual basis for its opinions that it would not be detrimental to
remove Jasmine from Esmeralda's care and Jasmine did not have substantial emotional
ties to Esmeralda. In rendering its findings, the juvenile court stated, the Agency did not
engage in a fair process and its conclusions were based on "ludicrous assumptions and a
paucity of information." The court noted that the social worker never observed Jasmine
in Esmeralda's care beyond five 15-minute intervals when Jasmine was under the stress
of being exchanged and transported for visits. The court also found the Agency over
emphasized the need to place Jasmine close to her half siblings as Jasmine would not be
living in the same household and placement with Carmen would not ensure Jasmine
would always be in close proximity to her half siblings or would develop strong sibling
12
relationships. Additionally, the court found the social worker treated Esmeralda unfairly
by imposing a level of responsibility on Esmeralda not required or intended by the
juvenile court and subsequently portrayed Esmeralda's failure to meet the Agency's
unduly burdensome requirements as problems or failures to the court. Accordingly, the
court concluded the Agency did not employ a fair informed method in making its
placement determination.
The evidence supported the juvenile court's finding that the Agency abused its
discretion by acting arbitrarily or capriciously in making its placement decision.
According to Cota, Jasmine had attached to Esmeralda and Esmeralda's husband and
loved them. Cota's report concluded that "placement [with Esmeralda's family] has given
Jasmine a loving home environment." Despite this acknowledgement, Cota stated
Jasmine would suffer no serious harm if she was removed from Esmeralda's care. This
assessment was largely based on Cota's opinion that Jasmine had "insecure-avoidant
attachment" because she detached easily from her caregiver when she was transported for
sibling visits and easily said goodbye to her half siblings. However, Cota testified that
Jasmine cried during the first few exchanges when she had to leave Esmeralda. Further,
in her report, Cota stated, "Jasmine is eager and happy to greet [Esmeralda] (and her
family) when being returned from a sibling visit and cries for a few minutes when
separated from them to be transported to L.A." As the juvenile court aptly noted, Cota
only observed Jasmine interact with Esmeralda and Esmeralda's family for five to ten
minutes at a time when Cota was either picking Jasmine up or dropping her off. Cota
13
never requested an appointment with Esmeralda and Esmeralda's family to observe their
relationship with Jasmine.
Additionally, the Agency faulted Esmeralda for alleged failures never required by
the court. For example, although the juvenile court did not require Esmeralda to call the
Agency weekly, the Agency criticized Esmeralda for not doing so. The court merely
stated it would like Esmeralda to speak with the Agency weekly. It did not specify
whether the Agency or Esmeralda should make those calls. Similarly, the Agency stated
Esmeralda was "resistant to the requests of the Agency in respect to the sibling visits."
However, Esmeralda always complied with transporting Jasmine for sibling visits.
Based on our review of the record, the juvenile court employed the proper
standard in reviewing the Agency's placement determination and the court's findings were
supported by substantial evidence.
III. Sibling Relationship Exception to Termination of Parental Rights
Selene contends the sibling relationship exception of section 366.26, subdivision
(c)(1)(B) applied to preclude termination of parental rights. She asserts the record shows
Jasmine has a strong, beneficial relationship with her half siblings and terminating that
relationship would be detrimental to Jasmine.
Adoption is the permanent plan favored by the Legislature. (In re Autumn H.
(1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that
a child is adoptable, it becomes the parent's burden to show that termination of parental
rights would be detrimental to the child because of a specified statutory exception to
termination of parental rights and adoption. (Id. at p. 574.) The sibling relationship
14
exception to terminating parental rights applies when the juvenile court finds termination
of parental rights would substantially interfere with the child's sibling relationship and the
severance of the relationship would be so detrimental to the child as to outweigh the
benefits of adoption. (§ 366.26, subd. (c)(1)(B)(v); In re L. Y. L. (2002) 101 Cal.App.4th
942, 951-952.) The purpose of this exception is to preserve long-standing sibling
relationships that serve as "anchors for dependent children whose lives are in turmoil."
(In re Erik P. (2002) 104 Cal.App.4th 395, 404.)
Factors to be considered in determining whether this exception applies include
(1) whether the siblings were raised in the same home, (2) whether they shared
significant common experiences or have existing close and strong bonds, and (3) whether
ongoing contact is in the child's best interests, including his or her long-term emotional
interests, as compared to the benefit of adoption. (§ 366.26, subd. (c)(1)(B)(v).) "[T]he
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."
(In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.)
We review a juvenile court order declining to apply an exception to termination of
parental rights and adoption for substantial evidence. (In re L. Y. L., supra, 101
Cal.App.4th at p. 947.) We do not evaluate the credibility of witnesses, reweigh the
evidence, or resolve evidentiary conflicts. (Ibid.) Rather, we draw all reasonable
inferences in support of the juvenile court's findings, consider the record most favorably
to the juvenile court's order, and will affirm the order if it is supported by substantial
evidence even if other evidence supports a contrary conclusion. (Ibid.)
15
Here, Jasmine was only two years old at the time of the section 366.26 hearing.
She undoubtedly enjoyed spending time with her half siblings and often had a difficult
time leaving them at the end of visits. However, Cota testified that based on her
observations of Jasmine during sibling visits, maintaining the sibling relationships would
not outweigh the benefits Jasmine would receive from adoption. According to Cota,
Jasmine had three placement changes since she was born and adoption would offer her
beneficial stability and permanency.
This evidence amply supported the juvenile court's conclusion that the sibling
relationship exception to terminating parental rights did not apply. Although Jasmine
lived with her half siblings for a short time after she was born, she was not raised with
them for the majority of her young life. Jasmine had continued contact with her half
siblings after her birth. However, the trial court reasonably could infer the experiences
Jasmine had with her half siblings as an infant and toddler would not be as meaningful to
her as to her older half siblings. (In re Valerie A., supra, 152 Cal.App.4th at p. 1013.)
Further, "the court reasonably could determine [Jasmine's] long-term emotional interests,
due to [her] age[] and needs, were better served by the permanency of adoption rather
than by continued sibling contact." (Ibid.)
In view of Jasmine's circumstances and her age, the record supports the juvenile
court's conclusion that Jasmine's long-term emotional interest would be better promoted
by adoption then by maintaining sibling relationships. (§ 366.26, subd. (c)(1)(B)(v).)
16
DISPOSITION
The judgment is affirmed.
MCINTYRE, J.
WE CONCUR:
MCCONNELL, P. J.
MCDONALD, J.
17