In re Ven. A. CA4/1 ( 2013 )

Filed 6/28/13 In re Ven. A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 VEN. A. et al., Persons Coming
Under the Juvenile Court Law.
D063415
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J517626A-C)
Plaintiff and Respondent,
v.
ELISE F.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Kenneth J.
Medel, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
Elise F. appeals juvenile court orders terminating her parental rights to her
children, Ven. A., Via. A. and Vin. A. (together, the children). She contends the court
reversibly erred by not applying the sibling relationship exception of Welfare and
Institutions Code section 366.26, subdivision (c)(1)(B)(v)1 and the beneficial parent-
child relationship exception of subdivision (c)(1)(B)(i) to termination of parental rights
and adoption. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
Ven. A. first became a dependent child of the juvenile court in August 2009 when
she tested positive for methamphetamine at birth. The children's father, V.A., and Elise
(together, the parents) have a history of domestic violence and substance abuse. The
court ordered services for the parents and ordered Ven. A. placed with Elise on condition
V.A. not reside in the home.2 Elise was consistent with therapy and reached her therapy
goals, but she struggled with drug treatment. In September 2010, the court continued
Ven. A.'s dependency, continued services and ordered Ven. A. placed with both parents.
Elise participated in services, but had problems consistently complying with
substance abuse treatment requirements. Consequently, in March 2011, Ven. A. was
detained in foster care and the Agency petitioned on her behalf under section 387 based
on Elise's failure to comply with substance abuse treatment. The court ordered Ven. A.
1 Statutory references are to the Welfare and Institutions Code.
2 Also living with Elise were Via. A., Vin. A. and Elise's three older children. The
older children are not subjects of this appeal.
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detained with V.A., but he tested positive for drug use and did not comply with the
court's conditions. Ven. A. was again detained in foster care.
In June 2011, the Agency petitioned under section 300, subdivision (b) on behalf
of Via. A. and Vin. A. alleging they were at substantial risk from Elise and V.A.'s
domestic violence. The petition regarding Vin. A. also alleged Elise had left him
inadequately attended while she was under the influence of marijuana.
On August 19, 2011, the court found the allegations of the petitions to be true,
declared the children dependents of the court, removed them from the parents, ordered
them placed them in foster care and ordered reunification services. Because Via. A. and
Vin. A. had not been removed from the parents' care at the same time as Ven. A., they
were placed in a different foster home.
The parents struggled with their services requirements and were discharged from
substance abuse and domestic violence treatment. The visitation center terminated visits
because they missed and cancelled visits.
At the review hearing on June 22, 2012, the court found there was not a substantial
probability the children could be returned to the parents within the next six months. It
terminated reunification services and set a section 366.26 hearing.
The social worker reported the children were generally and specifically adoptable.
They were doing very well in their foster homes, and their caregivers had approved
adoptive home studies and wanted to adopt them. Via. A. and Vin. A. were happy, but
anxious, on days of visits because they were unsure whether the parents would attend.
Both children were in therapy. The social worker said that during visits the parents had
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trouble interacting with all three children at once and sharing their attention. Via. A. and
Vin. A. showed much affection for the parents, but had little problem separating from
them when visits ended. Ven. A. appeared less connected than Via. A. and Vin. A. to the
parents. The court-appointed special advocate (CASA) reported Ven. A. appeared very
attached to her foster parents and foster siblings and she acted out after visits. Via. A.
and Vin. A. said they liked living with their caregivers, but Via. A. also stated she wanted
to live with the parents, and Vin. A. said he missed Elise. The social worker noted the
parents loved the children very much, but she characterized their visits as like long play
dates with adult relatives, and she did not believe the benefits to the children of
maintaining the parent-child relationships were more beneficial than the benefits of
adoption.
In December 2012, Elise petitioned under section 388, requesting the children be
placed with a relative. The court found there had been a prima facie showing and
authorized a bonding study. But the parents did not attend the scheduled study, and their
visits continued to be inconsistent.
At the hearing on January 14, 2013, Elise withdrew her section 388 petition, and
the court proceeded with the section 366.26 hearing. After considering the documentary
evidence and argument by counsel, the court found by clear and convincing evidence the
children were generally and specifically adoptable and were likely to be adopted if
parental rights were terminated. It terminated parental rights, finding the benefits of the
parent-child bonds and of the sibling bonds did not outweigh the benefits of adoption,
and that it was in the children's best interests to be adopted.
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DISCUSSION
I
Elise contends the court reversibly erred because terminating her parental rights
would cause substantial interference with the sibling relationships. She argues the
children were very bonded to each other and to their older siblings and disruption of the
sibling bonds would be detrimental to their long-term emotional well-being.
A. Legal Framework
Adoption is the permanent plan favored by the Legislature. (In re Autumn H.
(1994) 27 Cal.App.4th 567, 573 (Autumn H.).) 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.) Under section
366.26, subdivision (c)(1)(B)(v), if the court finds the child will be adopted within a
reasonable time, adoption must be ordered " 'unless the court finds a compelling reason
for determining that termination [of parental rights] would be detrimental to the child'
because '[t]here would be substantial interference with a child's sibling relationship . . . .'
[Citation.]" (In re Daniel H. (2002) 99 Cal.App.4th 804, 811.) 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.) The sibling relationship exception contains "strong language creating a heavy
burden for the party opposing adoption." (In re Daniel H., at p. 813.) Factors for the
court to consider include the nature and extent of the sibling relationship; whether the
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siblings were raised in the same home; whether they share a close bond; and whether
continued contact is in the child's best interests, as compared to the benefits of adoption.
(Id. at p. 811.) The court considers the best interests of the adoptive child, not the best
interests of the other siblings. (Id. at p. 813.)
B. Application
The court did not err by finding the sibling relationship exception to termination of
parental rights and adoption did not apply in this case. During the time the children lived
together with their older siblings, they were very young. Ven. A. was a baby, Vin. A.
was 18 months old and Via. A. was five years old. Because Vin. A. and Via. A. were in
one foster home and Ven. A. was in another, the three children saw each other for visits,
where they shared affection and played together. They clearly loved each other and
enjoyed getting together, but their relationships were not so beneficial so as to outweigh
the benefits they would gain from being adopted into permanent adoptive homes.
Evidence was presented to show that Ven. A. did not see herself as a part of the sibling
group, but believed she was separate from Vin. A. and Via. A. and that the parents were
Vin. A. and Via. A.'s parents, not hers. Also, Vin. A. said Ven. A. was not part of his
family, but that his family consisted of Via. A., his caregivers and their pets. Moreover,
although the children's caregivers would not be required to continue contact among the
siblings once parental rights were terminated, they had shown an awareness of the
importance of sibling contact and had arranged visits on their own among the siblings.
The social worker said they intended to continue the contact.
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Elise's assertion the children have a strong bond with two of the older siblings is
not supported by the record. These siblings are much older than the children and were
young adults by the time of the hearing. The children saw the older siblings very
infrequently during their dependencies. They appeared to enjoy visiting with them, but
Elise did not present any evidence to show they would suffer detriment if they no longer
had contact.
Elise has not shown the court erred by finding the sibling exception to termination
of parental rights and adoption did not apply in this case.
II
Elise asserts substantial evidence does not support the court's finding the
beneficial parent-child relationship exception to termination of parental rights and
adoption did not apply. She argues the children have strong, positive and significant
emotional attachments to her, and Vin. A. and Via. A. had lived much of their lives with
her and wanted to continue their relationships.
A. Legal Framework
Under the exception to termination of parental rights and adoption of section
366.26, subdivision (c)(1)(B)(i), the parent must show termination would be detrimental
in that " '[t]he parents . . . have maintained regular visitation and contact with the [child]
and the [child] would benefit from continuing the relationship.' " In In re Brandon C.
(1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just
'frequent and loving contact' to establish the requisite benefit for [the exception of section
366.26, subdivision (c)(1)(B)(i)]."
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In Autumn H., supra, 27 Cal.App.4th at pages 575-577, this court found
substantial evidence to support an order terminating parental rights. This court stated:
"In the context of the dependency scheme prescribed by the
Legislature, we interpret the 'benefit from continuing the
[parent/child] relationship' exception to mean the relationship
promotes the well-being of the child to such a degree as to outweigh
the well-being the child would gain in a permanent home with new,
adoptive parents." (Id. at p. 575.)
In reviewing whether sufficient evidence supports the trial court's finding the
appellate court reviews the evidence in the light most favorable to the court's order,
giving the prevailing party the benefit of every reasonable inference and resolving all
conflicts in support of the order. (Autumn H., supra, 27 Cal.App.4th at p. 576.)
The court did not err by finding Elise did not show the presence of the beneficial
parent-child relationship exception to termination of parental rights. Elise did not
maintain regular visitation and contact with the children. As the court observed, visits
were "very sporadic and infrequent." From November 29, 2011 to July 19, 2012, before
the section 366.26 hearing, the family visitation center terminated Elise's visitation twice
because her visits were so inconsistent. In October 2012, the social worker reported Elise
had missed five of the last nine scheduled visits. She did not attend the bonding study
arranged for her and, by the time of the January 2013 hearing, she had attended only nine
visits in the preceding 18 weeks.
Moreover, Elise did not show her relationships with the children were so
beneficial that termination of parental rights would greatly harm them. Elise's bonds with
the children appeared to be more like relationships between playmates than between a
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parent and her children. She had difficulty occupying a parental role and the social
worker observed that she and V.A. appeared overwhelmed when attempting to interact
with all three children. The CASA and the visitation monitors commented about Elise's
passive parenting style, the CASA noting she was "slow to interact with the children[] or
show them affection unless they are within reach during her visits." The social worker
said Elise tended to depend on someone else to occupy or play with the children while
she called to each one to come and sit next to her and talk with her. The social worker
noted Elise appeared to favor Vin. A. over Via. A., and that Ven. A. did not look to Elise
to meet her needs. Elise showed love and affection for the children and they for her, but
they did not have difficulty separating from her when visits ended. Elise did not show
she occupied a parental role or that the children would be greatly harmed if parental
rights were terminated. She has not shown the court erred by not applying the beneficial
parent-child relationship exception to termination of parental rights and adoption.
DISPOSITION
The orders are affirmed.
NARES, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
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