In re D.R. CA4/2

Filed 5/8/13 In re D.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 D.R. et al., Persons Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E057542
Plaintiff and Respondent, (Super.Ct.No. INJ019445)
v. OPINION
P.B.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Lawrence P. Best,
Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Affirmed.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel,
for Plaintiff and Respondent.
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I. INTRODUCTION
P.B. (mother) appeals from an order of the juvenile court terminating her parental
rights to W.B. (born in August 2011) and D.R. (born in December 2009).1 Mother
contends the court erred when it failed to apply the sibling relationship exception to
preserve D.R.’s relationships with his siblings. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
The Riverside County Department of Public Social Services (Department) filed a
petition in August 2011 alleging W.B, D.R.,2 and their older half siblings3 came within
Welfare and Institutions Code4 section 300, subdivision (b). The petition alleged mother
had an unresolved history of abusing controlled substances, and W.B. tested positive for
amphetamines and methamphetamine when he was born. The detention report stated that
mother admitted relapsing and using methamphetamine the day before W.B.’s birth, and
she did not call 911 until about an hour after W.B. was born at home. He was admitted to
the Neonatal Intensive Care Unit where he was expected to remain about two weeks.
Mother had been in a substance abuse program for about a year, but had been terminated
1 Mother also purports to appeal from an order denying her Welfare and
Institutions Code section 388 petition. However, she has raised no argument on appeal
relevant to that order. In addition, her sole argument on appeal relates only to D.R.; she
does not contend that W.B., who was removed from her custody at birth, had any
relationship with his siblings.
2 D.R.’s father is deceased. W.B.’s father is unknown.
3 The older half siblings ranged in age from 15 years to three years. Their father
is W.T., who is also not a party to this appeal.
4 All further statutory references are to the Welfare and Institutions Code.
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for failure to comply. She told the social worker she had been clean before her relapse.
She did not complete her substance abuse program because she was told she did not have
to do so after a prior child welfare case was closed, and she did not believe she had a drug
problem any longer. Mother had enrolled in another substance abuse program twice
before without finishing. Several of her children had tested positive for
methamphetamine at their births.
At the detention hearing, the juvenile court found a prima facie case and detained
the children. The older half siblings were allowed to remain in the family home with
W.T., and D.R. and W.B. were removed to foster placements.
The Department filed a jurisdiction/disposition report in September 2011. The
report stated that W.T. had expressed a desire to care for W.B. and D.R. but was unable
to do so. He felt it was important that his children continue to visit with W.B. and D.R.
and have a relationship with them. Mother had not made herself available for an
interview and had not visited the children since the detention.
At the jurisdiction/disposition hearing, the juvenile court found the petition true.
The court ordered reunification services for mother.
In February 2012, the Department filed a report for the six-month review hearing.
D.R. was living with his paternal aunt, G.C., and was bonding to her and adjusting to the
placement. He had difficulty seeing his half siblings leave with W.T. after visits. He was
very close to half sibling J.T., and she was excited to see him. The half siblings’
schedules allowed D.R. and W.B. to visit with them just once a month. W.T. told the
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social worker that it was important for his children to see D.R., and he could arrange
visits with D.R.’s caretaker. Mother had failed to make progress with her case plan.
At the review hearing, a representative from the Victory Outreach Recovery Home
testified that mother had entered an inpatient program there in March 2012; she was in
compliance with all the program requirements, and she was “doing very well.” The
juvenile court terminated services for mother and set a hearing date to determine
appropriate permanent plans for D.R. and W.B.
The section 366.26 report stated that D.R. was healthy, was bonded to his aunt,
and called her “Mamma.” The boys visited their older half siblings monthly. W.T. did
not appear to have a bond with them, but D.R. had a relationship with his half siblings
and cried when it was time to leave. D.R. had difficulty staying in the room with the half
siblings during the visits, and he called for G.C. At the end of the visits, he looked to
G.C. for comfort. G.C. wanted to adopt D.R. She was willing to facilitate sibling
visitation after adoption.
Mother filed a section 388 petition requesting reinstatement of reunification
services. She stated that she had made substantial progress in her inpatient program; she
had completed a parenting program; and she had been clean and sober for more than four
months. Her children were bonded to her and severance of ties would be detrimental to
them.
The juvenile court held a hearing on mother’s section 388 petition in September
2012. A social worker testified that mother’s inpatient program was not county-
approved. The social worker stated that D.R. had a bond with his mother and half
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siblings, and was especially bonded to his half sister J.T. The social worker testified that
D.R.’s caregiver wanted to continue sibling contact after adoption. B.T., an adult half
sister, testified that family visits with the children went well. D.R. wanted to take his
sister, J.T., with him when he left. He was excited and happy to see the other children,
and he screamed and cried if they left without him. Another half sibling, A.T., testified
that D.R. was “like [his] best friend.” D.R. was closest to A.T. and Ja.T., he was excited
to see everyone at visits and sad when they ended. Before the dependency, A.T. and D.R.
had played video and ball games together, and D.R. had sometimes come into his room
with his bottle and had lay with A.T. until he went to sleep. Ja.T testified that she had
lived with D.R. for two years and had a good relationship with him; he seemed to feel the
closest to her. When they lived together, she had played games with him. During visits,
he hugged her and cried when the visits were over.
D.R.’s caretaker testified that he loved his half siblings, and if she adopted D.R.,
she would allow him to visit them. In her experience, W.B.’s caretakers had made an
effort to ensure that W.B. also visited them.
The juvenile court found that mother failed to show a change of circumstances and
denied the section 388 petition. The court proceeded to the section 366.26 hearing.
Mother’s counsel argued that the parental bond and sibling bond exceptions to adoption
applied. The court found the exceptions had not been established. The court found D.R.
and W.B. adoptable and terminated parental rights.
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III. DISCUSSION
Mother contends the court erred when it failed to apply the sibling relationship
exception to preserve D.R.’s relationships with his siblings.
An exception to the termination of parental rights applies if the trial court finds
“[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).) “‘[T]he “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.” [Citations.]’” (In re Naomi P. (2005) 132
Cal.App.4th 808, 823.) One court has observed that “the 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. [Citation.]” (In re Valerie A. (2007)
152 Cal.App.4th 987, 1014.) For the sibling relationship exception to apply, the juvenile
court must find both that a significant sibling relationship exists and that detriment would
flow from severing it. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952.)
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D.R. was 20 months old when the dependency began, and he had spent almost
two-thirds of his life in a home with his siblings. It was undisputed that the children all
loved one another and enjoyed each other’s company during visits and that D.R. cried
when the visits ended. The record does not show, however, that D.R. suffered emotional
distress from missing his siblings between their monthly visits. Moreover, W.T. had told
the social worker he was interested in facilitating visits between his children and D.R.,
and W.T. would coordinate the visits with D.R.’s prospective adoptive mother, G.C.
G.C. also indicated she intended to provide future visits between D.R. and the half
siblings. Thus, “termination of parental rights did not necessarily foreclose the
continuation of the sibling relationships.” (In re Valerie A., supra, 152 Cal.App.4th at p.
1014.) There, the trial court stated it was “not convinced there [wa]s going to be a
disruption in the siblings’ relationship.” Moreover, D.R. had a stable and loving
relationship with G.C., his paternal aunt, and the juvenile court found he was bonded to
her.
Citing In re Megan S. (2002) 104 Cal.App.4th 247, mother asserts in her reply
brief that a caregiver’s willingness to allow continued sibling visitation may not continue
after termination of parental rights. In that case, although the court stated that “[t]he
parties correctly point[ed] out that there is no guarantee that sibling contact would be
continued after adoption,” the court affirmed the trial court’s finding that the sibling
relationship exception did not apply, explaining: “[T]o establish the section 366.26,
[former] subdivision (c)(1)(E) [now section 366.26, subdivision (c)(1)(B)(v)] exception, a
party must show a substantial interference with the sibling relationship. However, the
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evidence demonstrated that the relationship between Megan and [her sister] would not be
disrupted. The social worker has located 25 possible adoptive homes for Megan that
would allow sibling contact. The social worker wanted to place her in such a home.
Consequently, there would be no substantial interference with their relationship.” (In re
Megan S., at p. 254.) Thus, Megan S. is unhelpful to mother’s argument.
Mother also cites In re Kimberly S. (1999) 71 Cal.App.4th 405 for the proposition
that willingness to allow continued visitation is not relevant to the termination of parental
rights, but arises only in the context of a post-severance, post-adoption agreement. That
case is not on point; it did not address the sibling relationship exception, but instead dealt
with kinship adoption agreements under Family Code section 8714.7.
We conclude substantial evidence supported the juvenile court’s finding that the
sibling relationship exception had not been established.
IV. DISPOSITION
The orders appealed from are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
RICHLI
J.
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