In re Miriam N. CA4/1 ( 2014 )

Filed 9/19/14 In re Miriam N. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 MIRIAM N. et al, Persons Coming
Under the Juvenile Court Law.
D065621
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. CJ1058A/B)
Plaintiff and Respondent,
v.
MARIA G.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Laura J.
Birkmeyer, Judge. Affirmed.
William Hook, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and
Respondent.
Maria G. appeals juvenile court orders terminating her parental rights to two of her
children, Miriam N. and Vanessa N. She contends the court erred by terminating her
parental rights and selecting adoption as the permanent plans for these children because
the adoptions will interfere with the children's significant relationships with their siblings,
Freddy N. and K.L. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On January 27, 2012, the San Diego County Health and Human Services Agency
(the Agency) filed petitions under Welfare and Institutions Code1 section 300 on behalf
of 10-year-old Miriam, eight-year-old Vanessa, five-year-old Freddy and two-year-old
K.2 The petitions alleged the children were at substantial risk of harm because Maria's
former boyfriend, Ricardo L., had excessively disciplined them by hitting them with a
belt or sandal, leaving marks, and he had sexually abused Vanessa, including anal and
vaginal penetration, oral copulation, fondling her breasts and exposing her to
pornography. The petitions also alleged Maria had failed to protect the children.
Miriam, Vanessa and Freddy were detained with their paternal grandparents (the
grandparents) and K. in foster care.
In January 2012 the grandmother had noticed marks on Freddy's back. Freddy
told her Ricardo hit him and his sisters. Miriam and Vanessa agreed this was true and
said they had been afraid to tell of the abuse. Vanessa then told the grandmother
1 Statutory references are to the Welfare and Institutions Code.
2 Freddy and K. are not a part of this appeal.
2
privately that Ricardo had been sexually abusing her. The grandmother filed a police
report. Vanessa said the sexual abuse began when she was seven years old when she and
Miriam had moved from the grandparents' home, where they had been living for about
three years, to Maria and Ricardo's home. She described acts of sodomy, rape and oral
copulation and said Ricardo had her watch pornography with him.
The court found the allegations of the petitions to be true, ordered the older
children placed in relative care and K. in foster care and ordered reunification services for
Maria, including supervised visitation.
For the six-month hearing, the social worker reported the children were happy to
be living with the grandparents, but there was conflict between Maria and the
grandmother. Maria was participating in services, including parenting classes, therapy
and sexual abuse treatment for nonprotective parents. She was making progress, but had
not yet addressed her role in failing to protect Vanessa, and she was just beginning to
work on a safety plan. The social worker suggested the children begin having
unsupervised visits.
At the six-month review hearing on August 23, 2012, the court continued Miriam,
Vanessa and Freddy in relative care and K. in foster care and continued services.
For the 12-month review hearing, the social worker reported Miriam and Vanessa
were very attached to the grandmother and wanted to continue living with her. Miriam
said Maria had a new boyfriend and did not pay much attention to them when they had
unsupervised visits, and she did not feel safe with Maria. Vanessa was angry with Maria
and believed she would not make her children her top priority. After Freddy and K. had
3
unsupervised visits with Maria for a time, the social worker recommended they be placed
with her.
At the 12-month hearing on April 12, 2013, the court continued services and
continued Miriam and Vanessa in relative care. The court ordered Freddy and K. placed
with Maria.
For the 18-month report, the social worker reported Miriam and Vanessa were
doing well in the grandparents' home, but the relationship between Maria and the
grandmother appeared strained although at times they got along well. Miriam and
Vanessa said they did not feel safe with Maria and did not want to visit her unless the
grandmother was also present.
At the 18-month permanency hearing on September 24, 2013, the court found
reasonable services had been provided and returning Miriam and Vanessa to Maria's care
would be detrimental. The court terminated reunification services and set a section
366.26 hearing to select and implement permanent plans.
The social worker reported Miriam and Vanessa had lived with the grandparents
for much of their lives. They said they wanted to be adopted by the grandmother, and she
was committed to adopting them. The grandmother wanted to give them a stable and
nurturing environment and was willing to continue to facilitate visits between the girls
and their two younger siblings. The social worker said the grandmother welcomed Maria
to her home for visits and encouraged visits among the siblings. Miriam said she liked
visiting Freddy and K. and spending time with them. Vanessa said she would like to see
4
her sibling more often. Both girls said they wanted to be adopted even if it meant they
would not have continued contact with their siblings.
At the section 366.26 hearing on February 27, 2014, the social worker testified
that at a visit he observed the four siblings interacted and appeared to enjoy being
together. Maria testified that before the dependency case began, the children had lived
with her for about 18 months, and Freddy had lived with Miriam and Vanessa at the
grandparents' home before he was returned to her care in March 2013. She said at the
last sibling visit, the children were affectionate toward each other and enjoyed playing
together. She was concerned the grandmother would move the children to Mexico, and
she would not be able to go there because she is undocumented.
After considering the evidence and argument by counsel, the court found Miriam
and Vanessa were likely to be adopted if parental rights were terminated, and none of the
statutory exceptions to termination of parental rights and adoption applied. The court
terminated parental rights and designated the grandmother as the prospective adoptive
parent.
DISCUSSION
Maria contends the court erred by terminating her parental rights and selecting
adoption as the permanent plans for Miriam and Vanessa because the adoptions will
interfere with their significant relationships with Freddy and K.
5
A. Statutory Framework
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.)
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 . . . .' " (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., supra,
99 Cal.App.4th at p. 813.) Factors for the court to consider include the nature and extent
of the sibling relationship; whether the 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.)
If adoption would cause substantial disruption to the relationship a child has with a
6
sibling, the court must weigh the benefits the child would gain by adoption against the
benefits for the child of maintaining the sibling relationship. (In re L.Y.L. (2002)
101 Cal.App.4th 942, 952-953.)
The reviewing court applies the substantial evidence test to a review of the
applicability of the sibling relationship exception to termination of parental rights and
adoption. (In re L.Y.L., supra, 101 Cal.App.4th at p. 947.) "[W]e must indulge in all
reasonable inferences to support the findings of the juvenile court [citation], and we must
also ' . . . view the record in the light most favorable to the orders of the juvenile court.' "
(In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to
show the evidence is insufficient to support the court's findings. (In re Geoffrey G.
(1979) 98 Cal.App.3d 412, 420.)
B. Application
Maria has not shown error by the court not applying the sibling relationship
exception of section 366.26, subdivision (c)(1)(B)(v) in this case.
The grandmother was committed to adopting Miriam and Vanessa, and the
grandparents had taken steps toward having their home approved for adoption. During
the many months of the girls' dependency, the grandmother had welcomed Maria into her
home and facilitated sibling visits. She was Freddy's grandmother as well, had a history
of encouraging visits among the siblings and said she was willing to continue to facilitate
sibling visits. The evidence indicates adoption by the grandmother would not
substantially interfere with Miriam and Vanessa's relationships with their younger
siblings. Moreover, should sibling visitation not occur for any reason, Maria has not
7
shown the benefits to Miriam and Vanessa from their relationships with Freddy and K.
were so strong as to outweigh the benefits to the girls of adoption.
DISPOSITION
The orders are affirmed.
NARES, J.
WE CONCUR:
MCCONNELL, P. J.
BENKE, J.
8