In re I.R. et al., Persons Coming Under the Juvenile Court Law. EL DORADO COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. I.R. et al., Appellants.
No. C075240
Third Dist.
Apr. 23, 2014.
226 Cal. App. 4th 201
Donna W. Furth, under appointment by the Court of Appeal, for Appellants.
Edward L. Knapp, County Counsel, Lesley B. Gomes and Lauren C. Bowers, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
BUTZ, J.—The minors appeal from orders of the juvenile court placing them in long-term foster care after finding an exception to the preference for adoption applied. (
Appellants contend, аnd respondent El Dorado County Department of Human Services (Department) agrees, that the juvenile court‘s findings are not supported by substantial evidence and that the juvenile court abused its discretion in ordering a permanent plan of long-term foster care for the minors. On review, it appears the court relied on facts and circumstances that were not relevant to the issues before it. This resulted in findings and orders not supported by relevant evidence and an abuse of discretion in ordering
FACTUAL AND PROCEDURAL BACKGROUND
In September 2011, the Department filed nondetaining petitions on six-month-old I.R. and 19-month-old K.R. The petitions alleged the parents failed to participate in voluntary family maintenance offered in February 2011. Both parents suffered from serious mental health issues but neither was in treatment and both were periodically unable to care for the minors. Further, the father (father) had a history of substance abuse and the mother‘s (mother) medical and physical issues limited her ability to сare for the minors. The Department recommended court-ordered family maintenance services. The family also included a six-year-old half sibling who is a special needs child with cognitive delays. In October 2011, the court sustained the nondetaining petitions and adopted the Department‘s recommended disposition of family maintenance.
Six months later, in April 2012, the Department filed
The combined jurisdiction/disposition report stated that K.R. was moved from the foster placement she shared with I.R. due to her aggressive behavior toward him. The social worker identified the parents’ ongoing problems of untreated mental health issues and their limited parenting skills when dealing with toddlers despite the voluntary and court-ordered services. The report recommended further reunification services. An addendum report indicated the parents were beginning to make progress since the minors’ removal and recommended extended visits to transition the minors home after an assessment of parental compliance with services. The court adopted this recommended disposition in May 2012.
The parents failed to reunify and, in December 2012, the court terminated services and set a
The April 2013 report for the
The new baby was born in April 2013 and was placed in the same foster home as K.R. and I.R. The parents’ visits with the baby were separate from visits with the two older minors.
Mother and father each filed a
The Department filed an informational report in respоnse to the parents’ petitions for modification. The report stated the social worker attempted to observe the parents’ visit with the infant minor but the apartment was dark and no one was present. Father insisted they had been home and had not violated visit rules. On April 26, 2013, the social worker received a drug test for father that was positive for morphine on a sample taken April 22. Father said it was impossible that he had a positive test result but explained it might be due to eating five poppyseed bagels on April 25, 2013. When confronted with the date the sample was taken, father said he ate the poppyseeds on the date of the test. The toxicologist confirmed that a morphine test could be affected by eating five poppyseed bagels. The social worker commented that the parents were poor historians and it was hard to assess their progress.
An addendum report in September 2013 stated both minors adored their baby sister. K.R. was excited to tell the adoption worker she had a new baby
The combined
The Environmental Alternatives foster agency (EA) social worker testified the parents were entitled to two visits a month. EA records showed the parents attended one visit from January to March 2013, none in April, one of two in May, none in June, one of two in July, none in August, two in Sеptember and one in October. The records also showed three visits between March and August when the minors were transported for a visit but the parents did not come. On cross-examination, the EA social worker agreed it was possible there was one visit in March 2013. Pictures on mother‘s phone
The social worker assigned to the case during reunification testified there was one visit in January and one in February of 2013. While he had seen changes in the parents since services were terminated in the minors’ case, he would not change the recommendation (to terminate parental rights) because the minors deserved permanency. He had no concerns that termination of parental rights would disrupt any significant sibling or parental bond.
The foster mother testified the minors had been in her home about a year. The minors call their sister “baby” or “baby sister“—they do not use her name. They often do not know when she is gone visiting the parents and do not react when she returns. The foster mother testified there was a time, when the baby was visiting the parents, K.R. noticed the foster mother had not gone upstairs at dinnertime to feed the baby and asked the foster mother if she was going to do so. On another occasion, I.R. saw the foster mother in the room where she usually rocked the baby to sleep and whispered, “Shhh. Baby sleeping,” but did not realize the baby was not there, but was again visiting the parents. The foster mother said she also rocked I.R. on occasion and he comes in the room when she is rocking the baby because he knows he can share the time. The foster mother stated that K.R. did not interact much with the baby or play with her, while I.R. engaged with the baby more. She did not believe it would be detrimental to the minors if the baby were moved to a
The adoption worker testified she had observed the siblings’ interaction in the foster home. She would not change her recommendation to terminate parental rights as to K.R. and I.R. based on those observations because, due to thеir age and development, severing the sibling relationship with the baby would not be detrimental to them. She acknowledged there was always some detriment in severing relationships but that the benefit of permanency was important to a child and had to be weighed. The adoption worker further testified that neither minor had a concept of the sibling bond as that term is used in court and, while K.R. might miss the baby if the baby were removed and be aware at some level that the baby has needs, neither minor would be traumatized by the baby‘s absence due to their ages and development.
In argument, the parties agreed the minors were likely to be adopted. The Department and minors’ counsel argued the evidence did not support a finding of either the parental beneficial relationship or the sibling exception to the preference for adoption. The parents argued the evidence supported both exceptions.
The court issued a written decision finding the minors were likely to be adopted. The court further found that, for their ages, the minors had developed close, caring relationships with the baby, the bonds were significant, and that severing the bonds would be detrimental to the minors. In reaching this conclusion, the juvenile court twice emphasized that the parents’ ongoing efforts to reunify with the baby were “most critical to the analysis” and were “a critical fact[or] in [the] consideration of the current situation.” The court ordered a plan of long-term foster care “for the present time” and set a “renewed”
DISCUSSION
I. Long-term Foster Care “for the Present Time”
The minors contend the court exceeded its jurisdiction in selecting long-term foster care “for the present time” and setting a “renewed”
“A superior court convened as аnd exercising the special powers of a juvenile court is vested with jurisdiction to make only those limited determinations authorized by the legislative grant of those special powers.” (In re Lisa R. (1975) 13 Cal.3d 636, 643 [119 Cal.Rptr. 475, 532 P.2d 123]; see In re
The purpose of the
Here, the court did not exercise its discretion to select among these alternatives. The court found the minors were likely to be adopted, but that adoption would be detrimental based upon the sibling exception, selected long-term foster care as an alternative, and set a selection and implementation hearing. This combination of alternatives was not available to the court as a possible selection under the governing statute. Having found the minors were likely to be adopted but that there was a compelling reason for determining that termination of parental rights would be detrimental because termination would substantially interfere with a sibling bond, the court was limited, in this case, to choosing between nonrelative legal guardianship and long-term foster care with periodic review. (
When the Department sought elucidation of the court‘s order, the court explained that it wanted to clarify what was happening in six months in the separate case of the infant sibling and wished to maintain the status quo in the minors’ case. Thus, not only was the juvenile court‘s selection outside thе legislative limits set forth in
II. Beneficial Parental Relationship and Sibling Exceptions to Termination
The minors argue that neither of the exceptions to termination discussed by the juvenile court is supported by substantial evidence, and finding either applied was an abuse of discretion.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence—that is, evidence which is reasonable, credible, and of solid value—to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924 [171 Cal.Rptr. 637, 623 P.2d 198]; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214 [272 Cal.Rрtr. 316].) In making this determination we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16 [265 Cal.Rptr. 650].) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318–319 [27 Cal.Rptr.2d 595, 867 P.2d 706].)
“Once reunification services are ordered terminated, the focus shifts [from the parents’ interests] to the needs of the child for permanency and stability.” (Marilyn H., supra, 5 Cal.4th at p. 309.)
At the selection and implementation hearing held pursuant to
A. Beneficial Parental Relationship
The minors argue the court‘s finding—that termination of parental rights would be detrimental to them based on the beneficial parental relationship exception—is not supported by substantial evidence and was an abuse of discretion.
Termination of parental rights may be detrimental to a minor when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (
Careful reading of the juvenile court‘s written order discloses that the juvenile court did not explicitly find the beneficial parental relationship had been established. The court correctly stated that the parents had to establish two prongs, i.e., regular visitation and benefit to the minors of continued contact with the parents that outweighed the benefits of adoption. However, the court found only that there had been visits, not that the parents maintained regular visitation. The undisputed evidence is that there was not regular visitation. The precise number of visits was in conflict, but both mother‘s testimony and that of the social workers were clear that there were significant lapses in visits. Regular visitation exists where the parents visit consistently and to the extent permitted by court orders. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537 [84 Cal.Rptr.2d 505].) That lеvel of visitation did not occur here and its lack would fatally undermine any attempt to find the beneficial parental relationship exception.
Similarly, while the court found the minors and the parents had continued positive contact, it did not conclude that the second prong of benefit to the children from continued contact had been satisfied. At best, the court found the parental relationship was beneficial at the time of the order and conditioned any continuing benefit on the parents’ cooperation with services and good behavior in the baby‘s case.
The benefit tо the child must promote “the well-being of the child to such a degree as to outweigh the well-being the child would gain in a
There was no evidence before the court that the positive contact outweighed the security and sense of belonging available in an adoptive home or that the minors would be greatly harmed if the positive relationship were terminated. Moreover, the court did not attempt to weigh the effect of the existing parental relationship against the minors’ needs. Instead, the court delayed that weighing process to see if the parents continued their reformed behavior in the baby‘s case.
Because the evidence did not support either prong of the exception, the juvenile court correctly did not find the beneficial parental relationship had been established.
B. Sibling Relationship
A second circumstance under which termination of parental rights would be detrimental is 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 sharеd 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.” (
“To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on terminаtion, there is no substantial interference with that relationship.” (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952 [124 Cal.Rptr.2d 688], fn. omitted.)
In its written opinion as well as in its statements at the final hearing, it was clear that the court viewed the factors of both the beneficial parental relationship and the sibling relationship through the lens of what it viewed as the “critical issue” of the parents’ reunification efforts with the infant sibling. This issue is completely irrelevant to not only the existence of a current sibling bond but also the minors’ interests in the permanence of adoption. Incorporation of this irrelevancy resulted in distorting the evidence of the sibling bond and was an abuse of discretion. (Cf. In re Baby Girl M., supra, 135 Cal.App.4th at pp. 1543–1544.) When the irrelevance is pared away we are left with facts which do not support a finding of a sibling bond that is sufficiently significant to cause a level of detriment to the minors that would outweigh the benefit to the minors of legal permanence.
The undisputed facts are that the infant minor was six months old at the time of the hearing and had lived that period of time in foster care with K.R. and I.R., who were three and two years old respectively at the time of the hearing.2 The infant minor visited the parents separately from K.R. and I.R. Mother did not see the older minors interact with the infant but believed they had a bond based on thе fact that the older minors talked about the infant during visits. When the baby was gone for one of her visits, K.R. asked the foster mother at dinnertime if she was going to feed the baby, not realizing that the baby was not there. Another time when the baby was gone, I.R. saw the foster mother in the room where the baby slept and said, “Shhh. Baby sleeping.” In the foster home, K.R. did not seek out the infant minor and her interaction with the baby was minimal. I.R. interacted with her more, going to her and kissing her and sharing time being rocked while the infant was being fed. While both minors knew the infant was their baby sister, the infant had no reciprocal awareness of the sibling relationship. All three social workers who testified opined that there was not a significant sibling relationship due to the ages and intellectual development of the minors. The adoption social worker testified K.R. would be sad if the baby left the foster home but would get over it and that I.R. would not be affected.
These facts do not establish a significant period of time the minors lived together, the existence of shared experiences, that ongoing contact was in the minors’ best interests or that there would be any significant effect on the minors’ long-term emotional interests if parental rights were terminated. With the exception оf I.R. and the baby being rocked at the same time by the foster mother, none of their experiences, including contact with the parents,
The sibling exception is intended to preserve sibling relationships of deeper and greater significance than the ones here, where one of the siblings is too young to even understand that the minors are her siblings.
The record does not disclose compelling evidence that termination would be detrimental to the minors based on either of the proffered exceptions. Since the juvenile court found the minors were likely to be adopted and no facts support any option for a permanent plan other than adoption, reversal is required.
DISPOSITION
The orders of the juvenile court are reversed. The juvenile court is directed to vacate the
Hull, Acting P. J., and Robie, J., concurred.