In re Octavio I. CA2/6 ( 2013 )

Filed 11/20/13 In re Octavio I. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re OCTAVIO I., JESSIE R., and 2d Juv. No. B247528
MARIA R., Persons Coming Under the (Super. Ct. No. J1379435)
Juvenile Court Law. (Super. Ct. No. J1379436)
(Super. Ct. No. J1379437)
(Santa Barbara County)
SANTA BARBARA COUNTY CHILD
PROTECTIVE SERVICES,
Plaintiff and Respondent,
v.
C. R. and O. R.,
Defendants and Appellants.
C. R. (mother) and Octavio R. (father) appeal from a March 7, 2013 order
terminating their parental rights to Octavio I. (age 10), Jessie R. (age 9) and Maria R.
(age 4), and freeing the children for adoption. (Welf. & Inst. Code, § 366.26.)1
Appellants contend that the beneficial parent-child and sibling relationship exceptions
preclude the children's adoption. (§ 366.26, subd. (c)(1)(B)(i) & (v).) We affirm.
1
All statutory references are to the Welfare & Institutions Code.
1
Facts and Procedural History
On July 21, 2010, Santa Barbara County Child Protective Services (CWS)
detained Octavio I., Jessie R. and Maria R., and two older sisters (13-year-old G. and 11-
year-old Y.) after mother was arrested for transporting and using drugs. The family was
living in a garage with no running water and using a bucket as a toilet. The bucket was
filled with urine, mattresses and blankets were scattered about, and a dirty diaper was
next to a half-eaten plate of food. The garage wreaked of a foul odor and had rotten food
in a refrigerator.
CWS filed a dependency petition for failure to protect (§ 300, subd. (b)),
alleging that the family had a child welfare history dating back to 2006 with ten referrals
for general neglect. Father had a history of using controlled substances and mother's
criminal history included grand theft, burglary, false checks/records/certificates,
extortion, battery with serious bodily injury, preventing/dissuading a witness/victim,
criminal conspiracy, and fighting. Before the children were detained, appellants received
10 months of Voluntary Family Maintenance services but failed to meet case plan
objectives.
Appellants submitted on the reports at the August 30, 2010 jurisdiction
/disposition hearing and received 12 months of reunification services. On August 22,
2011, appellants reunified with the children, were provided family maintenance services,
and resumed using drugs. The older sisters, G. and Y., skipped school, were drinking,
and defiant. Appellants neglected Maria and failed to provide Jessie's and Jessie's
medical needs.
On July 9, 2012, CWS placed the children with the maternal grandmother
and filed a section 387 supplemental petition alleging that appellants were abusing drugs
and not maintaining a clean and habitable home. The children were placed in shelter care
after the grandmother let appellants have unsupervised contact with the children. On
September 13, 2012, CWS placed Maria in a fost-adopt home in Santa Barbara County.
Octavio and Jessie were placed in a fost-adopt home in Tulare County on December 6,
2012. The trial court ordered weekly supervised visits with drug testing.
2
Before the jurisdiction/disposition hearing, CWS filed a section 387
supplemental-amended petition alleging that appellants suffered from chronic substance
abuse, had tested positive for amphetamines, and were not participating in drug
treatment. The petition alleged that appellants left alcohol and prescription medications
in easy reach of the children, that debris and dirty dishes were scattered about the house,
that the house was littered with trash, and that appellants repeatedly failed to obtain
medical care for Jessie and Octavio.
At a September 27, 2012 contested jurisdiction/disposition hearing, the trial
court found all the allegations to be true and terminated family maintenance services.
The court set the matter for a section 366.26 hearing and ordered supervised visitation
with drug testing.
At the section 366.26 hearing, appellants stipulated to an order placing G.
and Y. in long term foster care. With respect to the younger children (Maria, Octavio,
and Jessie) the trial court conducted a three-day contested hearing in which CWS and
CASA reports were received into evidence and the social worker, G., Y., Jessie, Octavio,
the maternal grandmother, an aunt, and appellants testified.
A CASA worker reported that Maria blossomed after the fost-adopt
placement and was bonded to the foster family. Maria was very close to her foster
mother and wanted to be adopted by her. Maria was enrolled in a school and ballet
classes, and happy and making new friends. The social worker reported that Maria
wanted to be adopted and enjoyed supervised visits with appellants and her siblings, but
was happy to return to her fost-adopt home.
A CASA volunteer reported that Octavio and Jessie were best of friends
and thriving in their fost-adopt home. The foster parents wanted to adopt and had made
significant progress addressing the boys' medical and behavioral problems. Octavio and
Jessie missed their older sister (G.) but did not mention the other siblings.
The trial court found that the children were adoptable and that appellants
had failed to show that the parent-child or sibling relationship exception applied. With
respect to the parent-child relationship exception, it found that appellants lacked insight
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or parental awareness of the children's needs. With respect to the sibling relationship
exception, the trial court found that the siblings were loving and playful during visitation
but Maria, Octavio and Jessie had adjusted well to their fost-adopt placements, and not
distraught when the visits ended. Maria wanted to be adopted. Octavio and Jessie's
foster mother wanted to adopt the boys and said that she was willing to facilitate contact
with the siblings and extended family. Based on the strong preference for adoption and
speculative evidence of detriment to the children, the trial court found the sibling
exception did not apply.
Standard of Review
We review for substantial evidence and determine whether the trial court
abused its discretion in concluding that the parent-child and sibling exceptions were not
proven or significant enough to compel a plan other than adoption. (In re Bailey J.
(2010) 189 Cal.App.4th 1308, 1314-1315.) Where reunification services are terminated,
the focus shifts to the needs of the child for permanency and stability. (In re Marilyn H.
(1993) 5 Cal.4th 295, 307.) The purpose of the section 366.26 hearing is to provide
stable, permanent homes for dependent children. (§ 366.26, subd. (b).) Adoption is the
preferred permanent plan (In re Autumn H. (1994) 27 Cal.App.4th 567, 573) and
appellants have a "heavy burden" of proving that the parent-child or sibling relationship
exception overcomes the preference for adoption. (In re Daniel H. (2002) 99
Cal.App.4th 804, 813.) "Because a parent's claim to . . . an exception [to termination of
parental rights] is evaluated in light of the Legislature's preference for adoption, it is only
in exceptional circumstances that a court will chose a permanent plan other than
adoption. [Citation.]" (In re Scott B. (2010) 188 Cal.App.4th 452, 469.)
Beneficial Parent-Child Relationship
Appellants argue that the parent-child relationship exception bars the
children's adoption. (§ 366.26, subd. (c)(1)(B)(i).) To establish the exception, appellants
must show they maintained regular visitation and contact and the children would benefit
from continuing the relationship. (Ibid.) The trial court must find that termination of
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parental rights would be detrimental to the child and considers facts such as (1) the age of
the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or
negative effect of the interaction between the parent and the child, and (4) the child's
particular needs. (In re Helen W, (2007) 150 Cal.App.4th 71, 81.)
Although the visitation prong was satisfied, appellants' relationship with
the children did not advance beyond friendly supervised visits. Maria, Octavio, and
Jessie were removed from appellants' care for more than 20 months and had bonded to
their fost-adopt families. There was no evidence that "severing the natural parent-child
relationship would deprive the child of a substantial positive emotional attachment such
that the child would be greatly harmed. [Citations.]" (In re Angel B. (2002) 97
Cal.App.4th 454, 466.)
The evidence shows that appellants are unaware of the children's needs,
what they were doing in school, or how to interact with the children to meet those needs.
The social worker described the supervised visits as playful but not parental. During the
visits, appellants ate and played games with Maria but there was little discussion about
what Maria was doing. The supervised visits with Jessie and Octavio were much the
same. The boys watched a cartoon during supervised visits.
At trial, father did not know what the children were doing or what classes
they were enrolled in. Nor did father know that Maria was enrolled in school and taking
ballet classes. Mother appeared to be unconcerned about Maria's needs, was detached
with the boys, and told the boys to go to the teachers if they had problems. At one
supervised visit, mother arrived 45 minutes late with junk food in disregard of Jessie's
and Octavio's on-going struggle to lose weight and make healthy food choices.
Although the children love appellants and enjoy the visits, there is no
evidence that the children would be greatly harmed if parental rights are terminated.
Maria told the social worker that she loved her foster parents and wanted to be adopted.
This was echoed in reports that Maria was closely bonded to her foster mother. The
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supervised visits were playful but once the visits were over, Maria was ready to leave and
would run to and hug her foster mother. Maria's behavior was the same at court.
Appellants' relationship with the boys was playful and loving, but not that
of a parent. In the words of the trial court, "The parents [do] not demonstrate a current
awareness of the needs of their children or what they're doing." The boys were told that
if adopted, they might not see their family again. Octavio wanted to be adopted. Jessie
told the social worker that he was not sure and wanted to think about it.
Father argues that the trial court looked at the parental benefit exception
from the parent's point of view, not the child's. The trial found that the visits were loving
and playful but lacked a significant, positive, emotional attachment from child to parent.
(See e.g., In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The court found that "[b]eing
a parent is more than giving birth, it's more than playing games, and telling the children
that they're loved . . . . Being a parent is words and action; it's being a role model, it's
being a guide, it's being a counselor, it's being a disciplinarian at times if needed,
showing interest, putting the children before the parents' own needs at times, it's focusing
on the needs of the children and not your own needs."
The benefits of a permanent and stable home are readily apparent. Maria is
no longer a shy little girl afraid of "cops, police, or bad guys" but a happy, outgoing
child who is excited about school and making new friends. Like Maria, the boys' medical
and behavioral problems were fueled by appellants' drug abuse and neglect. After
Octavio and Jessie were placed in the fost-adopt home, they made significant progress
and no longer took medication. The record shows that the fost-adopt parents are bonded
to Octavio and Jessie, are committed to meeting the boys' needs, and want to adopt
Appellants argue that the children should be placed in a guardianship, but
that would deprive the children of the permanency and stability of a permanent adoptive
home that they so badly need. Adoption is the preferred placement. "A biological parent
who has failed to reunify with an adoptable child may not derail an adoption merely by
showing the child would derive some benefit from continuing a relationship maintained
6
during periods of visitation with the parent. [Citation.]" (In re Angel B., supra, 97
Cal.App.4th at p.466.)
Sibling Relationship Exception
To establish the sibling exception to adoption, appellants must show a
significant sibling relationship, the termination of which would cause detriment to the
child. (In re Celine R. (2003) 31 Cal.4th 45, 54.) The exception "focuses exclusively on
the benefits and burdens to the adoptive child, not the other siblings." (Ibid.) The
ultimate question is whether adoption would be detrimental to Maria, Jessie, and Octavio,
not someone else. (Id., at p. 55.) "Reflecting the Legislature's preference for adoption
when possible, the '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.' [Citation.]" (Id., at p. 61.)
Maria, Jessie, and Octavio are part of a five-sibling group in which the
older sisters, G. and Y., agreed to long term foster care and were placed with the
grandmother. Marie, Jessie, and Octavio are on a different track and have thrived in their
respective fost-adopt placements.
Appellants argue that the older sisters have been a constant thread in the
lives of Maria, Octavio, and Jessie and assumed the role of parents when appellants were
unable to provide the children. The evidence, however, shows that the children were
neglected and at risk while living with G. and Y. In 2008, G. told a social worker that
she hated Maria and wanted to hurt her. In 2012, after the family reunified, G. and Y.
were drinking and defiant. The trial court found there was no evidence that the children
would suffer harm if the sibling relationship were severed. "What I don't have
is any psychological evidence, any expert evidence . . . concerning the detriment that the
children would suffer if the sibling relationship was severed. I'm left really in great part
to speculate about the damage and that's just not sufficient."
7
Section 366.26 requires that a trial court balance the benefit of maintaining
the sibling relationship against the benefit the child would derive from being adopted.
Here, the court struck the balance in favor of adoption. This is "a 'quintessentially'
discretionary decision, which calls for the juvenile court to determine the importance of
the [sibling] relationship in terms of the detrimental impact that its severance can be
expected to have on the child and to weigh that against the benefit to the child of
adoption. [Citation.]" (In re Bailey J.¸ supra, 189 Cal.App.4th at p. 1315.) Appellants
complain that the trial court did not make express findings on detrimental harm but those
findings may be implied if the record supports them, as it does here. (Michael U. v.
Jamie B. (1985) 39 Cal.3d 787, 792-793; see e.g., In re Andrea G. (1990) 221 Cal.App.3d
547, 554-555 ["ample" evidence supported implied finding and result "obvious" from the
record]; In re Corienna G. (1989) 213 Cal.App.3d 73, 83-84 [substantial evidence
"amply" supported implied finding].) Adoption is the preferred permanent plan and was
clearly established by the social worker's testimony, the CWS and CASA reports, and
Maria's and Octavio's statement that they want to be adopted. Jessie is unsure about
adoption but is closely bonded to Octavio and his fost-adopt family.
Father argues that the trial court considered the unsworn testimony of the
children's attorney who advised the court that Maria "wants her current caregiver to be
her mommy." Counsel stated: "The boys want Maria to have what is best for her and
what she wants. While it makes them sad to think about the possibility of not seeing her
again, they agree that adoption is acceptable. . . . We went over that thoroughly and, as I
said, it makes them very sad but they've been really clear with me." It is settled that the
unsworn statements of counsel are not evidence and that counsel was required to state the
children's wishes to the court. (§ 317, subd. (e)(2); In re Kristen B. (2008) 163
Cal.App.4th 1535, 1541.) " 'Counsel for the child shall not advocate for the return of the
child if, to the best of his or her knowledge, that return conflicts with the protection and
safety of the child.' " (Ibid.)
8
"Here, as in many dependency cases, the case posed evidentiary conflicts.
And, as is common in many dependency cases, this case obligated the juvenile court to
make highly subjective evaluations about competing, not necessarily conflicting,
evidence. As reflected in the juvenile court's ruling, the juvenile court considered the
conflicting, competing evidence and essentially discounted [appellants'] evidence in
concluding that [appellants] had failed to carry [their] burden of proof [on the parent-
child and sibling exceptions to adoption]. It is not our function to retry the case." (In re
I.W. (2009) 180 Cal.App.4th 1517, 1528.)
Appellant's remaining arguments have been considered and merit no further
discussion.
The judgment is affirmed
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
9
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Lori Siegel, under appointment by the Court of Appeal, for Appellant
Mother.
Darlene Azevedo, under appointment by the Court of Appeal, for Appellnt
Father.
Dennis Marshall, County Counsel. County of Santa Barbara, Toni Lorien
Deputy County Counsel, for Respondent.
10