In re B.N. CA4/2 ( 2015 )

Filed 10/30/15 In re B.N. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re B.N., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E063302
Plaintiff and Respondent, (Super.Ct.No. RIJ1400011)
v. OPINION
A.N. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson,
Judge. Affirmed.
Jarvis, Krieger & Sullivan and Siobhan M. Bishop for Defendants and Appellants.
Gregory P. Priamos, County Counsel, Julie Koons Jarvi, Deputy County Counsel,
for Plaintiff and Respondent.
1
Appellants S.N. (father) and A.N. (mother) appeal from a Welfare and Institutions
Code1 section 366.26 order terminating parental rights to their son, B.N. (the child). On
appeal, father and mother (the parents) contend that: (1) the sibling relationship
exception (§ 366.26, subd. (c)(1)(B)(v)) applied; (2) the court erred in refusing to allow
their daughter to testify about her relationship with the child; and (3) the beneficial
parental relationship exception (§ 366.26, subd. (c)(1)(B)(i)) applied. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parents were married and decided to adopt children. They adopted their
oldest daughter, A.N., from China in 2005. She was 11 months old at the time. Mother
later became pregnant and gave birth to twin girls, T.N. and H.N. (the twins).
Subsequently, the parents were contacted about the child, who was available for adoption
from China. They received the child into their home on March 4, 2013.
The child did not have a smooth transition into the parents’ home. He bonded
with father. However, he had issues accepting mother and in fact seemed to be “rejecting
her as [a] mother figure.” He would not respond to her requests or demands and would
withdraw from her. The child’s behavior caused stress and frustration for mother, which
led her to scream and yell at him. Mother did not know how to deal with the child’s
rejection. The parents discussed rescinding the adoption. Mother decided to give the
child time to see if things would change.
1 All further statutory references will be to the Welfare and Institutions Code,
unless otherwise noted.
2
On January 3, 2014, the Riverside County Department of Public Social Services
(DPSS) filed a section 300 petition on behalf of the child and his sisters (the children).
A.N. was nine years old at the time, the twins were three years old, and the child was
three years old, as well. The petition alleged that the child came within the provisions of
section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (e)
(severe physical abuse of a child under five). The petition also alleged that A.N., T.N.,
and H.N. (the girls) came within the provisions of section 300, subdivisions (b) and (j)
(abuse of sibling). The petition included the allegation that, while in the care and custody
of the parents, the child sustained multiple fractures to various parts of his body,
including his left and right clavicle, upper left humerus bone, and lower left humerus
bone. The parents had no explanation for the injuries. The petition alleged that the girls
were at risk of similar harm.
In the detention report, the social worker reported that DPSS received a referral on
December 30, 2013, regarding the child. Father brought the child to the emergency
room, and the child was initially diagnosed with a fractured left arm. The fracture was
highly suggestive of non-accidental trauma. Father reported that the child fell a couple
days prior and had been unable to use his arm. The social worker spoke with a nurse at
the hospital, who said that the police had been contacted regarding child abuse concerns.
After arriving at the hospital, a police officer spoke with father, who said that he had been
away from home on business for about one week. When he returned home, mother
informed him that she noticed the child was reluctant to use his left arm and his elbow
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seemed swollen. Mother said that a few days prior, she found the child lying on the floor,
while he was playing with his sisters. She assumed he fell. She checked him for injuries,
and he seemed fine. However, she became concerned when the child’s elbow swelled up
a few days later. They then decided to take him to the doctor.
The police officer spoke with the emergency room doctor, Victoria Shooks, who
said that a skeletal survey was done and several fractures were noted. Some fractures
appeared to be at least six weeks old. Dr. Shooks said there was a fracture to the upper
left humerus bone, near the shoulder. It was the type almost seen exclusively in child
abuse cases, since it could only be explained by a tugging or pulling motion, and a
twisting action in an upward motion. There was another fracture to the lower left
humerus bone, which appeared to be the most recent fracture. This fracture and the
shoulder fracture were highly indicative of someone having grabbed the child with
significant force. Dr. Shooks and a radiologist agreed that the fractures were particularly
indicative of abuse. Dr. Mark Massi performed a child abuse and neglect exam and
similarly concluded that the child’s injuries were indicative of physical abuse and
neglect.
On January 6, 2014, a juvenile court detained the children in foster care. The
court ordered visitation twice a week.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on January 23, 2014, and
recommended that the children be declared dependents of the court, and that reunification
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services not be provided to either parent, pursuant to section 361.5, subdivision (b)(5) and
(b)(6). The social worker further reported that the child and A.N. were placed with the
paternal grandparents, and the twins were placed with a paternal uncle and aunt.
The social worker filed an amended petition on April 17, 2014. The amended
petition deleted the allegations under section 300, subdivisions (a) and (b). At a hearing
on that date, the court found that the child came within section 300, subdivision (e), and
declared him a dependent of the court. It also denied reunification services to the parents
as to the child, pursuant to section 361.5, subdivision (b)(5) and (b)(6), and set a section
366.26 hearing for September 2, 2014. Regarding the twins, the court found true the
allegations under section 300, subdivision (j), and declared them dependents of the court.
The court removed them from the parents’ custody and ordered the parents to participate
in reunification services. The parties reached an agreement to have A.N. returned to the
parents. The court ordered her returned to the parents’ custody, subject to DPSS
supervision, on a family maintenance plan.
Status Review Report
On August 20, 2014, the social worker filed a combined report pursuant to
sections 366.26, 366.3, 366.21, and 364. The social worker recommended that the
parents be offered an additional six months of family maintenance services as to A.N. As
to the twins, she recommended that they be returned to the parents’ custody under a
family maintenance plan. Regarding the child, the social worker recommended that
parental rights be terminated. The social worker reported that the twins had been having
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overnight visits with the parents, and that the family consistently visited the child once a
month. They enjoyed the visits, and the visits went well. The social worker reported that
the children appeared to have a significant bond with the parents and each other. The
social worker further reported that the child had adjusted well to his prospective adoptive
home, where he had been placed since April 23, 2014. He was described as a “happy go
lucky, outgoing child.” He appeared happy to see his family at visits. However, he did
not cry with the transition back to his prospective adoptive family after the visits.
The social worker filed an addendum report on August 23, 2014, and attached a
preliminary adoption assessment report. The social worker described the prospective
adoptive parents as mature and stable. The child was attached to them, sought their
attention and affection, and was easily comforted by them. The prospective adoptive
parents were also attached to him. They were committed to raising the child in a safe,
loving environment.
Section 388 Petitions
On August 28, 2014 and September 2, 2014, respectively, father and mother filed
section 388 petitions asking the court to return the child to them and provide services.
The petitions were summarily denied. However, at the six-month review hearing
regarding T.N. and H.N., the court returned the twins to the parents’ custody under a plan
of family maintenance.
On November 20, 2014, the girls filed a section 388 petition, asking the court to
grant them standing to participate in the section 366.26 hearing scheduled for the child.
6
They opposed the adoption of the child and wanted to be heard by the court. The court
denied the petition, stating that there had been no showing that the request would be in
the child’s best interest.2
The social worker filed an addendum report on December 16, 2014, and stated that
there had been no new developments in the case. The social worker reported that she
observed the child with his prospective adoptive parents, and at visits with the parents
and the girls. The social worker stated that the child called his prospective adoptive
mother “mommy” and appeared to be content in her care. When he visited with the
parents and the girls, he also appeared content. The social worker stated that the child
appeared to interact equally well with both families. She thus continued to recommend
that the child remain with the prospective adoptive parents, and that the adoption be
finalized.
Section 366.26
The court held a contested section 366.26 hearing on January 16, 2015. Counsel
for the parents had requested that A.N. be permitted to testify regarding her relationship
with the child. The child’s counsel objected to having A.N. testify. County counsel
agreed that A.N. should not testify, arguing that the issue was not what was in A.N.’s best
interest or that she wanted to have continued contact with the child. Rather, the issue was
whether adoption was in the child’s best interest; thus, any testimony about how A.N. felt
2The girls filed a notice of appeal from the denial, and that appeal is currently
pending before this court in case No. E062627.
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about not seeing the child was irrelevant. Counsel for A.N. argued that, because the child
could not give a direct statement regarding his interests due to his young age, the court
could obtain his interest indirectly through A.N. The court noted that it had read all the
documents filed in the current case and made clear that it had no doubt there was a close
relationship between the child and A.N., as well as the twins. Since there was evidence
in the record that the children were close, and there was no evidence to the contrary, the
court decided not to permit A.N. to testify.
The social worker testified at the hearing. She said the parents had visits with the
child once a month. The last visit she supervised was on December 18, 2014. The visit
went well. The child was happy to see the girls and the parents. He appeared to have
more of an affinity for A.N. The children read with each other and played with toys, and
the parents brought snacks. The social worker testified that the child appeared to be
happy during the visits, but was fine when the visit ended. He said goodbye to everyone.
She testified that at the end of visits in general, the child was not particularly sad.
Father also testified at the hearing regarding the visit on December 18. He said the
child called him “daddy” and mother “mommy.” Father said the child enjoyed the last
visit, as shown by his laughter. The child played with the parents and the girls. Mother
also testified that the child had pet names for his sisters. She said that when the child left
his sisters at the end of visits, he was sad.
After hearing testimony and closing arguments, the court found it likely that the
child was going to be adopted. The court also found that there was a sufficient basis for
8
terminating parental rights. The court stated that two exceptions to the termination of
parental rights had been argued—the sibling relationship exception and the parental bond
exception. It noted that the parents may have a bond, but it was clear that such bond did
not outweigh the benefits of adoption. The court further found that the siblings had a
close relationship. However, the child was clearly in a very good home, where he was
free from abuse, and where he was loved and cherished. Thus, the court found that
neither exception applied and that adoption was in the child’s best interest. The court
terminated parental rights and set adoption as the permanent plan.
ANALYSIS
I. The Sibling Relationship Exception Did Not Apply
The parents contend that the court erred in failing to apply the sibling relationship
exception under section 366.26, subdivision (c)(1)(B)(v). They also argue that the court
erred in not permitting A.N. to testify about her relationship with the child. We conclude
that the sibling relationship exception did not apply here.
The sibling relationship exception applies when “[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).) Thus,
9
“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.” (In
re Daniel H. (2002) 99 Cal. App. 4th 804, 813.) To show a substantial interference with a
sibling relationship, the party opposing adoption “must show the existence of a
significant sibling relationship, the severance of which would be detrimental to the
child.” (In re L. Y. L. (2002) 101 Cal. App. 4th 942, 952 (L. Y. L.).) “Many siblings have
a relationship with each other, but would not suffer detriment if that relationship ended.”
(Ibid.)
First, the parents argue that the court erred in not permitting A.N. to testify
regarding the child’s relationships with his sisters. They claim that her testimony
regarding what the children did together, how close they were, and how the child acted
when he saw A.N. and/or had to leave her, was relevant to determining whether the
detriment from ending the sibling relationship outweighed the benefit of adoption. We
agree with the trial court’s decision not to have A.N. testify. The social worker, father,
and mother all testified as to what the child and the girls did together at visits, how they
interacted, the nicknames the child called the girls, and how he reacted at the end of
visits. Furthermore, the court read all of the documents filed and clearly stated it had no
doubt that the child had a close relationship with A.N., as well as with the twins. Since
10
the court acknowledged that the children were close, more testimony from A.N.
regarding their relationships was not necessary.
Second, the parents failed to show the existence of a significant sibling
relationship. The evidence showed that all the siblings had close bonds, in general. At
visits, the child was happy to see the girls, and they played games together, laughed, read,
and ate together. However, the evidence did not demonstrate that the severance of their
relationship would be detrimental to the child. The child was adopted by the parents and
only lived with the girls for 10 months before he was removed from the home. Although
the child and A.N. were placed together with the paternal grandparents when they were
first removed, the child was placed with the prospective adoptive family less than three
months after that. Moreover, while the child had fun at the visits with the girls, he was
not sad when he separated from them. To the contrary, the social worker testified that the
child was fine when the visits ended. She testified that he said goodbye to everyone and
was not particularly sad. Thus, there was no evidence that the child would suffer
detriment if the relationships ended. (L. Y. L., supra, 101 Cal.App.4th at p. 952.) As
such, the parents have not sustained the burden of proof that termination of parental
rights would substantially interfere with the child’s sibling relationships. (See ibid.)
“Moreover, even if a sibling relationship exists that is so strong that its severance
would cause the child detriment, the court then weighs the benefit to the child of
continuing the sibling relationship against the benefit to the child adoption would
provide.” (See L.Y.L., supra, 101 Cal.App.4th at pp. 952-953.) If parental rights were
11
terminated here, the child would gain a permanent home through adoption. If parental
rights were not terminated, he would lose the permanent home his prospective adoptive
parents were ready to provide for him. Valuing the child’s continuing relationships with
his siblings over adoption would deprive him of the ability to belong to a family that
loved him and was able to provide a stable home for him. We conclude that the benefits
of adoption outweighed the benefits of the continuing the child’s sibling relationships.
In sum, the court properly determined that the sibling relationship exception to the
termination of parental rights did not apply here.
II. The Beneficial Parental Relationship Exception Did Not Apply
The parents contend that the court erred in not applying the beneficial parental
relationship exception under section 366.26, subdivision (c)(1)(B)(i). We disagree.
At a section 366.26 hearing, the court determines a permanent plan of care for a
dependent child. (In re Casey D. (1999) 70 Cal. App. 4th 38, 50.) Adoption is the
permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal. 4th 45, 53.)
If the court finds that a child may not be returned to his or her parents and is likely to be
adopted, it must select adoption as the permanent plan, unless it finds a compelling
reason for determining that termination of parental rights would be detrimental to the
child under one of the exceptions set forth in section 366.26, subdivision (c)(1)(B). One
such exception is the beneficial parental relationship exception set forth in section
366.26, subdivision (c)(1)(B)(i). (See In re Jerome D. (2000) 84 Cal. App. 4th 1200,
1206.) This exception applies when the parents “have maintained regular visitation and
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contact with the child and the child would benefit from continuing the relationship.”
(§ 366.26, subd. (c)(1)(B)(i).) The phrase “benefit from continuing the relationship”
refers to a parent/child relationship that “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. In other words, the court balances the strength and quality of the
natural parent/child relationship in a tenuous placement against the security and the sense
of belonging a new family would confer. If severing the natural parent/child relationship
would deprive the child of a substantial, positive emotional attachment such that the child
would be greatly harmed, the preference for adoption is overcome and the natural
parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal. App. 4th 567, 575
(Autumn H).) It is the parent’s burden to show that the beneficial parental relationship
exception applies. (In re Lorenzo C. (1997) 54 Cal. App. 4th 1330, 1345.)
The parents assert that they maintained consistent visitation with the child at every
opportunity available. They state that the child called them “mommy” and “daddy.”
They brought his favorite food and toys to the visits, they read with him, fed him, talked
with him, and played games with him. The parents further assert that they were the
child’s primary caretakers for nine months, prior to his removal.
The parents cite In re Brandon C. (1999) 71 Cal. App. 4th 1530 in support of their
position. However, that case is distinguishable. In that case, the Department of Children
and Family Services failed to provide information to the court about the quality of the
interactions between the mother and her children. Rather, the reports simply described
13
“the regularity of the visits, with no evaluation of their success.” (Id. at p. 1538.) Thus,
the only evidence before the juvenile court concerning the mother’s relationship with her
children was the testimonies of the mother and the paternal grandmother that there was a
close bond, and that a continuation of contact would be beneficial to the children. (Id. at
p. 1537.) The appellate court noted that the Department of Children and Family Services
did not present any evidence to the contrary. (Ibid.) Therefore, the appellate court
affirmed the juvenile court’s finding that the beneficial parental relationship exception
applied. (Id. at p. 1538.)
In contrast, here, the social worker provided information regarding the quality of
the parents’ relationship with the child. The social worker reported that father told her
the child did not have a smooth transition into the parents’ home, when they adopted him.
Although the child bonded with father, he had issues accepting mother and attaching to
her. Father said the child seemed to be “rejecting her as [a] mother figure.” The child
would often not listen or respond to her, and he would withdraw from her. Father
reported that mother would vent her frustration with the child by screaming and yelling at
him. The parents even discussed the possibility of rescinding the adoption, if the
situation did not improve. After the child’s removal, the parents consistently visited the
child once a month, and the visits went well. The social worker opined that the child
appeared to have a significant bond with the parents. However, although the parents’
interactions with the child during visits may have been appropriate, they, at best,
“amounted to little more than playdates for him with [] loving adult[s].” (In re Bailey J.
14
(2010) 189 Cal. App. 4th 1308, 1316.) The child was described as a “happy go lucky,
outgoing child.” Thus, he appeared happy to see his family at visits and had fun with
them. Significantly, while the child was happy with his family during visits, the social
worker reported that the child was also content in the prospective adoptive mother’s care,
and he called her “mommy.” The social worker reported that the child interacted equally
well with the parents and the prospective adoptive parents. The child did not cry at the
end of visits with the parents, and the social worker observed that he “transition[ed] very
well between the families.” Thus, although the visits may have gone well, the parents’
interactions with the child do not demonstrate that their relationship with him promoted
his well-being “to such a degree as to outweigh the well-being the child would gain in a
permanent home with new, adoptive parents.” (Autumn H., supra, 27 Cal.App.4th at p.
575.)
The parents further compare themselves to the father in In re S.B. (2008) 164
Cal. App. 4th 289. In that case, the appellate court reversed the order terminating parental
rights, finding that the father and his child had a strong bond, and the child would benefit
from continuing the relationship. (Id. at p. 300.) However, S.B. is readily
distinguishable. First, the father in S.B. was the child’s primary caregiver for three years.
(Id. at p. 298.) The child therefore had an emotionally significant relationship with him,
and for the first year after she was removed, she continued to display a strong attachment
to him. “She was unhappy when visits ended and tried to leave with [the father] when the
15
visits were over.” (Ibid.) The record also showed that the child loved the father and
wanted their relationship to continue. (Ibid.)
In contrast, the parents in the instant case adopted the child, and he only lived with
them for 10 months before he was removed from their care. He did not develop an
emotionally significant relationship with them, as evidenced by his difficult transition
into their home. (See ante.) Moreover, the child was not sad when visits with them
ended, and there was no evidence that he wanted his relationship with the parents to
continue. He easily went back with his prospective adoptive parents when the visits were
over.
We further note that the evidence showed that the child and his prospective
adoptive parents had a strong attachment. The child was happy and well cared for, they
loved him, and they wanted to provide a permanent home for him. They were committed
to raising him in a safe and loving environment.
Ultimately, the parents have not proffered any evidence to support a finding that
the child had a “substantial, positive emotional attachment such that [he] would be
greatly harmed” if the relationship was severed. (Autumn H., supra, 27 Cal.App.4th at
p. 575.) We conclude that the beneficial parental relationship exception under section
366.26, subdivision (c)(1)(B)(1) did not apply here.
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DISPOSITION
The court’s order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
KING
J.
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