In re E.F. CA4/2

Filed 5/31/13 In re E.F. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 E.F., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E057300
Plaintiff and Respondent, (Super.Ct.No. RIJ120646)
v. OPINION
D.L.et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and
Appellant D.L.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and
Appellant L.F.
1
Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel,
for Plaintiff and Respondent.
D.L. (Mother) and L.F. (Father) appeal after the termination of their parental rights
to their daughter, E.F., at a Welfare and Institutions Code section 366.26 hearing.1
They claim on appeal as follows:
1. Father, joined by Mother, claims that the juvenile court erred by finding
that the beneficial parent-child exception of section 366.26, subdivision (c)(1)(B)(i) did
not apply.
2. Father, joined by Mother, contend that the juvenile court erred by finding
that the sibling exception pursuant to section 366.26, subdivision (c)(1)(B)(v) did not
apply.
We affirm the juvenile court‟s order terminating parental rights.
I
PROCEDURAL AND FACTUAL BACKGROUND
A. Detention
E. was born in April 2008. She had a brother, J.L., who was born in December
2005.2 Father was the biological father of E.; J. had a different biological father.
1 All further statutory references are to the Welfare and Institutions Code
unless otherwise indicated.
2 J. is not a subject of the instant appeal but will be referred to only as it
pertains to the detention of E. and the subsequent termination of parental rights.
2
On November 15, 2010, Riverside County Department of Public Social Services
(the Department) received a referral for allegations of physical abuse of J. J. had
disclosed to the reporting party that Mother had burned him on the face with a lighter
because she was mad at him. J. had an open wound on his lower right jaw. The injury
was in a perfect circle and resembled a cigarette burn.
A social worker talked to J. on November 15. J. did not appear to be able to
discern between the truth and a lie, but the social worker interviewed him anyway. J.
claimed that he was disciplined at home by being burned. The wound was the size of a
dime. J. mentioned that Father and Mother frequently argue.
The social worker interviewed Mother and Father. Both denied causing the injury
to J. J. had told Mother he received the injury when a friend had stabbed him with an
object. When the social worker confronted Mother with the accusation that she burned
him with a lighter, she responded, “If that‟s what [J.‟s] saying, then . . . I don‟t know . . .
what can I say?” J. told Father that a neighbor friend stabbed him with a knife. Mother
and Father did not investigate the incident.
Mother and Father had been involved in domestic violence in the past, but there
were no recent reports of violence. They initially denied any current drug or alcohol
abuse. When asked to take a drug test, Father admitted that he had used
methamphetamine two times in the previous two weeks. He claimed Mother did not use
methamphetamine. Mother later admitted that she and Father used methamphetamine
together on November 12, 2010. She admitted that she had spanked E. and J. with a
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wooden spoon. Father disciplined by spanking them on the bottom. E. had no marks or
bruises.
E. and J. were placed with another family member. A child abuse neglect (CAN)
examination was conducted on J. The injury to his face was consistent with being burned
by a lighter. J. also had patterned scars on his back, abdomen, legs, and arms that were
consistent with being hit by a belt. It was concluded by the examining doctor that J. had
been physically abused. Mother and Father denied abusing J. Mother was cited for
misdemeanor child endangerment. E. and J. were detained and placed together in the
same foster home.
Father had some prior convictions, including possession of drug paraphernalia and
burglary.
On November 18, 2010, the Department filed a section 300 petition against
Mother and Father. It alleged under section 300, subdivision (b) for E. that the parents
engaged in domestic violence and abused methamphetamine, which impacted their ability
to parent her. In addition, it alleged under section 300, subdivision (j) that J. had been
abused and that E. faced a similar risk of harm.
At a detention hearing held on November 19, 2010, the juvenile court found a
prima facie case and ordered E. detained. A guardian ad litem was appointed for her.
Supervised visitation was ordered for one time a week for one hour.
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B. Jurisdictional/Dispositional Report and Hearing
In a jurisdictional/dispositional report filed on December 9, 2010, the Department
recommended that E. remain in foster care and that Father and Mother be granted
reunification services.
On December 1, 2010, the social worker spoke with J., and he again claimed that
Mother burned his face with a lighter. E. refused to speak with the social worker. The
Department was not given authorization to interview Father and Mother. Father declined
to be interviewed, stating, “Just for the fact that we give up information and it will get
twisted and misused. That‟s what happened at the beginning of the case.” Mother stated,
“It‟s not in my favor. I hope and pray that the truth comes out.”
E. had no developmental delays. She was very shy. At a visit on December 1,
2010, Father was very nurturing toward E. Mother was more focused on talking about
her case with the social worker present than on visiting with E. Mother also spoke with
the foster mother rather than playing with E. and J.
Mother and Father were both referred to the Family Preservation Center (the FPC)
for substance abuse counseling, drug testing, counseling, and parenting. Mother
cancelled several appointments, and Father never called the FPC.
The jurisdictional/dispositional hearing was conducted on December 22, 2010.
Father and Mother objected to the petition but presented no affirmative evidence. The
juvenile court found the allegations in the petition true. Mother and Father were granted
six months of reunification services. E. and J. were declared a sibling set.
5
C. Review Reports and Hearings
In the six-month status review report filed on June 2, 2011, it was recommended
that reunification services continue for Father and Mother. E. and J. were placed in a
new home on April 14, 2011, due to a change in the prior family‟s circumstances. The
children had transitioned well into the new home.
Mother and Father were not married but had been together for four years. They
lived together. Both Mother and Father reported being unemployed and had no source of
income.
J. had been reported to exhibit aggressive outbursts and temper tantrums but was
otherwise developing normally. On February 14, 2011, J. was diagnosed with
oppositional defiant disorder.
E. was developmentally on target. She had good eating and sleeping habits.
Although she was shy, once she warmed up to a person, she was talkative.
Mother had attended only one counseling session. She had completed parenting
classes. She had failed to attend domestic violence classes. She had missed some of her
substance abuse classes but was participating. She tested positive for methamphetamine
on January 4, 2011. She was negative on the next three tests but failed to appear for a
test on May 18, 2011.
Father had attended only one counseling session. He completed a parenting class.
He had not attended domestic violence classes. He was attending some of his substance
abuse classes. He tested positive for methamphetamine on February 10, 2011. He tested
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negative at one subsequent test, and results were pending for another subsequent test.
He, too, failed to appear for a test on May 18, 2011.
In January and February 2011, Father and Mother had been late to visits, brought
visitors, and discussed the case details with the children. The visits were moved to be
supervised by the Department. E. and J. looked forward to visiting their parents. Father
and Mother were loving and affectionate but also redirected the children when necessary.
However, they continued to be late to visits and missed one visit.
At the six-month review hearing conducted on July 7, 2011, reunification services
were continued for six months despite the juvenile court‟s concerns regarding the
parent‟s progress on the case plan. Both Mother and Father stated at the hearing that they
had been irresponsible but were willing to complete whatever services were necessary to
regain custody of the children. The juvenile court warned them that they must complete
their services before the 12-month review hearing.
On September 13, 2011, the Department brought an application for psychotropic
medication to be administered to J. J.‟s violent behavior was “disruptive,” and the foster
mother was unable to control him. She feared for the safety of E. and other children in
the home. The juvenile court ordered administration of the drugs.
The Department filed a 12-month status review report on December 8, 2011, and it
was recommended that reunification services be terminated. E. and J. remained together
in the same foster home.
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Mother and Father were unemployed and homeless. They were having problems
with their relationship. Mother accused Father of having a romantic relationship with her
sister.
J. had behavioral problems. He had been suspended from school a number of
times. He got into disagreements over little things with E. and his foster siblings. He
told the foster mother he was acting this way in order to get returned to the care of his
parents. J. had been seen by a psychologist who stated J. demonstrated defiance, physical
aggression, and angry outbursts. His angry behavior had decreased somewhat since he
started taking medication. Despite the improvement, the foster mother wanted J.
removed from her home.
E. was developing normally and had no emotional issues. It was reported that J.
had acted sexually inappropriately with E. J. touched her private areas and made sexual
comments to her. He also had pushed her and yelled at her. The foster mother did not
leave them alone together. E. was needy and wanted attention due to J.‟s actions.
Mother‟s therapist had recommended that she be referred for possible
psychotropic medication due to her depression and behaviors. Mother had failed to get
evaluated for the medication. She was inconsistent in her attendance at therapy. She had
not completed her domestic violence/anger management course or her substance abuse
program. She failed to appear for random drug tests on nine occasions.
Father completed no individual counseling. He did complete some domestic
violence classes and some substance abuse counseling. He was eventually dismissed
8
from the substance abuse program for not following rules. Father also missed nine
random drug tests.
During the reporting period, Father and Mother had been more sporadic and
inconsistent in their visitation. They had fought in front of E. and J. during a visit. The
visits were changed so that Father and Mother attended separately. Unsupervised visits
were not possible. When visits did occur, they were appropriate, and the children were
happy to see Mother and Father.
The Department was concerned that Mother and Father continued to abuse illegal
substances. It was considering separate placement for J. and E. due to J.‟s behavior.
On December 22, 2011, the review hearing was held. Mother objected to anything
in the reports about her having mental health problems, as she had never been evaluated.
Father also objected and argued he was completing some services. The juvenile court
terminated reunification services. A section 366.26 hearing was set.
D. Separating the Sibling Set
On February 3, 2012, the Department filed an ex parte application to separate the
sibling set. J. had increased his sexualized behavior toward E. since the last hearing. In
November 2011, J. snuck into E.‟s room, but E. initially denied any sexual abuse. At the
end of December 2011, J. was found lying in bed next to E. E. told the foster mother that
J. touched her private area. E. reported that J. was “groping” her vagina on several
occasions, including the times he was found in her bed. E. reported that she was afraid of
J. The juvenile court issued an order granting the request.
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E. Section 366.26 Reports and Hearing
On April 9, 2012, the Department filed a report for the section 366.26 hearing. E.
was moved to a prospective adoptive home on February 29, 2012, away from J.
Mother reported that she was attending Alcoholics Anonymous/Narcotics
Anonymous meetings and living with her sponsor. J. appeared to be less aggressive due
to his new foster home, the medication and counseling. However, J. had been sexually
inappropriate with his foster siblings.
E. was doing well in her new placement. She had bonded with her new family
and was happy. The family was willing to adopt E. The Department reported that it was
better to keep E. and J. separated.
During this reporting period, Father and Mother had been consistent in monthly
visitation, and it had been appropriate. Mother had arranged a birthday party for J. at one
visit. A continuance was requested and granted in order for an adoptive assessment to be
done for the family adopting E.
An addendum report was filed on August 9, 2012. The Department recommended
termination of parental rights to E. and adoption as the permanent plan. An adoptive
home had not been found for J. E. was in her prospective adoptive home and was
thriving.
Mother had missed one of the visitations. On another occasion she only showed
up for the last 10 minutes of a two-hour visit. Father had also missed one visit.
Moreover, Father had gotten angry with E. at a visit for calling the adoptive parents
10
“mom” and “dad.” Visitation between E. and J. was appropriate. E.‟s adoptive parents
were considering continuing visitation with J. after the adoption as long as he did not act
inappropriately.
E.‟s adoptive family provided a stable home environment and were a close-knit
family. They were open to sibling contact.
On September 13, 2012, the section 366.26 hearing was conducted, as will be set
forth in more detail, post. Mother‟s and Father‟s parental rights to E. were terminated,
and she was freed for adoption. E. was “emotional” during her final visit with Mother
and Father. Mother and Father thereafter appealed.
II
EXCEPTIONS TO TERMINATION OF PARENTAL RIGHTS
PURSUANT TO SECTION 366.26
Father, joined by Mother, argue that the beneficial parent exception of section
366.26, subdivision (c)(1)(B)(i) and that the sibling exception to adoption under section
366.26, subdivision (c)(1)(B)(v) applied. The juvenile court erred by terminating their
parental rights.
A. Additional Factual Background
At the section 366.26 hearing, Father testified. Father claimed when the visits
were two times per week, he was consistent with visitation and was on time. At the
visits, E. called Father “Papa” or “daddy,” she hugged him, and she was happy to see
him. She always asked him when she was going back to live with him. She told him that
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she loved him. E. cried at the end of visitation. Father always brought activities and
snacks. He believed there was a strong parent/child bond. Father felt that E. would
benefit from continuing the relationship. He asked for legal guardianship.
Father also testified that E. and J. had a strong bond; ongoing contact between
them was in their best interests. Father thought it was hard for E. not to be with J. Father
insisted that he was consistent with the monthly visitation.
Father argued that the beneficial parental exception applied. He claimed that E.
cried at the end of visits and that he acted appropriately during the visits. E. would
benefit from continuing the relationship. E. had only been in her current placement for
six months, and the bond with Father outweighed the permanency of adoption. Father
also argued that the sibling exception applied. E. and J. were raised in the same home
and had common experiences. If the juvenile court terminated parental rights, there was
no guarantee of keeping up the relationship between E. and J. Mother also argued that
there was a parental/child bond and joined in Father‟s arguments.
The juvenile court found by clear and convincing evidence that “termination of
parental rights would not be detrimental to the minor in that none of the exceptions
contained in Welfare and Institutions Code Section 366.26 (c)(1), (a) or (b) are applicable
to this case . . . .” It was clear to the court that Father loved E. but could not complete the
services necessary to reunite him with her. E. had clearly bonded with the adoptive
family. The juvenile court also noted that “an important fact” as to the sibling issue was
that J. had sexually victimized E. and it was appropriate to keep them separate.
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B. Standard of Review
At the section 366.26 hearing, the sole issue “„is whether there is clear and
convincing evidence that the child is adoptable.‟ [Citations.]” (In re Josue G. (2003) 106
Cal.App.4th 725, 733; see § 366.26, subd. (c).) “Adoption, where possible, is the
permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th
567, 573.) 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 that
termination of parental rights would be detrimental to the child under one of the seven
exceptions set forth in section 366.26, subdivision (c)(1)(A) and (c)(1)(B)(i) through (v).
(See In re Jamie R. (2001) 90 Cal.App.4th 766, 773.)
C. Parental Benefit Exception
The parental benefit or “beneficial relationship” exception is set forth in section
366.26, subdivision (c)(1)(B)(i). The exception applies where “„[t]he parents . . . have
maintained regular visitation and contact with the minor and the minor would benefit
from continuing the relationship.‟” (In re Derek W. (1999) 73 Cal.App.4th 823, 826.)
“The parent must do more than demonstrate „frequent and loving contact[,]‟
[citation] an emotional bond with the child, or that parent and child find their visits
pleasant. [Citation.] Instead, the parent must show that he or she occupies a „parental
role‟ in the child‟s life.” (In re Derek W., supra, 73 Cal.App.4th at p. 827.) “The
„benefit‟ prong of the exception requires the parent to prove his or her relationship with
the child „promotes the well-being of the child to such a degree as to outweigh the well-
13
being the child would gain in a permanent home with new, adoptive parents.‟
[Citations.]” (In re K.P. (2012) 203 Cal.App.4th 614, 621.) “„The burden falls to the
parent to show that the termination of parental rights would be detrimental to the child
under one of the exceptions. [Citation.]‟ [Citations.]” (In re C.B. (2010) 190
Cal.App.4th 102, 122.)
“We review the trial court‟s findings for substantial evidence. [Citation.]” (In re
Dakota H. (2005) 132 Cal.App.4th 212, 228; see also In re Bailey J. (2010) 189
Cal.App.4th 1308, 1314.) “„On review of the sufficiency of the evidence, we presume in
favor of the order, considering the evidence in the light most favorable to the prevailing
party, giving the prevailing party the benefit of every reasonable inference and resolving
all conflicts in support of the order.‟ [Citation.]” (In re C.F. (2011) 193 Cal.App.4th
549, 553.) Thus, “a challenge to a juvenile court‟s finding that there is no beneficial
relationship amounts to a contention that the „undisputed facts lead to only one
conclusion.‟ [Citation.] Unless the undisputed facts established the existence of a
beneficial parental . . . relationship, a substantial evidence challenge to this component of
the juvenile court‟s determination cannot succeed.” (Bailey J., at p. 1314.)
The juvenile court here summarily denied that the exception applied. It is not
clear if it concluded that Father and Mother failed to maintain visitation or if it concluded
that there was not a beneficial relationship. The evidence supports both conclusions.
Throughout the proceedings, Mother and Father were inconsistent with visitation.
In the first six months, Mother and Father were consistently late to visitation. They
14
brought other visitors to visitations. They missed a visitation. In the 12-month review
hearing report, it was reported that they were sporadic and inconsistent in their visitation.
Mother and Father fought at a visit.
In the section 366.26 report, the Department noted that Mother and Father had
been more consistent in their monthly visits but still missed one visit. Since the visits
were monthly, this meant they did not see E. for two months. Mother had shown up for
only 10 minutes of one visit. Father had gotten angry at E. during a visit because she was
calling the foster parents “mom” and “dad.”
While some of the visits were appropriate and E. looked forward to them, the
record establishes that Mother and Father missed several visitations and had been late to
many visits. They argued at visits. The juvenile court certainly could have concluded
that Father and Mother had not maintained consistent visitation.
Moreover, even if the juvenile court found that Father and Mother maintained
consistent visitation, they cannot prove their relationship with E. benefitted her to such a
degree as to outweigh the well-being she would gain in a permanent home with adoptive
parents. (In re K.P., supra, 203 Cal.App.4th at p. 621.) “The factors to be considered
when looking for whether a relationship is important and beneficial are: (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 interaction between the parent and the child, and (4) the child‟s
particular needs.” (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.) Mother
and Father did not show that their relationship with E. was important and beneficial.
15
Father and Mother came to the attention of the Department due to serious injuries
on J. from where Mother burned him with a lighter. He had other marks that were
evidence of past physical abuse. E. faced the potential of being physically abused if she
remained in the custody of Father and Mother. Mother was abusive, and Father
apparently did nothing to stop her.
Additionally, Mother and Father had tested positive for methamphetamine once
during the proceedings, and they each missed nine drug tests. The juvenile court could
reasonably be concerned that Father and Mother were using methamphetamine. If they
were using drugs, they could not provide a stable home environment for E.
The record certainly shows that E. had an emotional attachment with her parents,
and especially Father. Nevertheless, this attachment did not meet her needs, and she
faced harm by remaining in the care of Father and Mother.
Moreover, even if Mother and Father could establish a beneficial relationship, they
cannot show that termination of the parental relationship was detrimental to E. (In re
Bailey J., supra, 189 Cal.App.4th at p. 1315.) We review this determination under an
abuse of discretion standard. (Ibid.)
E. was thriving in her adoptive home. She no longer was being sexually abused
by J. and did not face the threat of being abused by Mother. Father and Mother certainly
could be continuing to abuse drugs as they failed to drug test. Based on the foregoing,
the juvenile court did abuse its discretion by finding that the parental benefit exception
did not apply in this case.
16
D. Sibling Exception
Father, joined by Mother contend that the juvenile court erred by finding that the
sibling exception to adoption pursuant to section 366.26 subdivision (c)(1)(B)(v) did not
apply.
Section 366.26, subdivision (c)(1)(B)(v) provides an exception to the termination
of parental rights if the court finds a compelling reason for determining that termination
would be detrimental to the child due to a “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).)
The juvenile court undertakes a two-step analysis in evaluating the applicability of
the sibling relationship exception. First, the court is directed “to determine whether
terminating parental rights would substantially interfere with the sibling relationship by
evaluating the nature and extent of the relationship, including whether the child and
sibling were raised in the same house, shared significant common experiences or have
existing close and strong bonds. [Citation.] If the court determines terminating parental
rights would substantially interfere with the sibling relationship, the court is then directed
to weigh the child‟s best interest in continuing that sibling relationship against the benefit
17
the child would receive by the permanency of adoption.” (In re L.Y.L. (2002) 101
Cal.App.4th 942, 951-952.) “[T]he concern is the best interests of the child being
considered for adoption, not the interests of that child‟s siblings.” (In re Naomi P. (2005)
132 Cal.App.4th 808, 822.)
“Indeed, even if adoption would interfere with a strong sibling relationship, the
court must nevertheless weigh the benefit to the child of continuing the sibling
relationship against the benefit the child would receive by gaining a permanent home
through adoption. [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 61.) We review the
court‟s finding on this issue for substantial evidence. (In re L.Y.L., supra, 101
Cal.App.4th at p. 953.)
The evidence establishes that E.‟s need for a permanent, stable home away from
J.‟s explosive and sexual behaviors outweighed any sibling relationship.
Here, J. and E. did initially live in the same home together until they were detained
when E. was two years old and J. was five years old. They were also initially placed in
the same foster home and declared a sibling set. However, they had to be separated and
the sibling set was dissolved because J. was sexually inappropriate with E. J. would
sneak into E.‟s room and touch her vagina. He also made sexual comments to her. J.
pushed E. and yelled at her. E. was afraid of J. Although there was some bond between
J. and E., the damage to E. was immeasurable if she remained with J.
Father contends that J. never touched E. at the visitations. However, these visits
were supervised. Moreover, when J. touched E., he snuck into her room in the middle of
18
the night. The juvenile court could reasonably conclude that J. had acted inappropriately
with E.
In addition to the sexually inappropriate behavior, J. continued to escalate his
violent behavior throughout the dependency proceeding. J. had trouble with his various
foster parents who could not control him. Even after termination of parental rights to E.,
J. had to be moved out of his placement due to aggressive behavior. He left bruises on
the foster mother‟s arm, and the foster parents called law enforcement because they could
not control J. E. was becoming needy due to J.‟s violent behavior. Once E. was moved
to the adoptive home away from J., she began to thrive.
Finally, the adoptive parents of E. agreed to maintain some sort of sibling
relationship between E. and J. assuming that he did not act inappropriately with her. As
such, some sibling relationship would be maintained.
Based on the foregoing, we conclude substantial evidence supports the juvenile
court‟s decision not to apply the sibling exception to the termination of parental rights in
this case.3 The juvenile court properly terminated parental rights for Father and Mother.
3 Mother makes an additional claim that if we reverse the termination of
Father‟s parental rights, we must reverse the termination of her parental rights. Since we
uphold the juvenile court‟s order, we need not address the issue.
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III
DISPOSITION
The juvenile court‟s orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
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