Aristeo S. v. Sup. Ct.

Filed 4/10/07 Aristeo S. v. Sup. Ct. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Caryl Lee, Judge. Petition denied.

Donna P. Chirco for Petitioner.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.

Rebecca N. Captain for Real Parties in Interest Andrew S. and Marco S.

* * *

Aristeo S. (also known as Aricio S.) petitions for extraordinary relief from the order of the juvenile court setting a permanent plan selection hearing pursuant to Welfare and Institutions Code section 366.26^[1]for his three younger children, Brenda, Andrew, and Marco. He claims there is clear and convincing evidence that the children either are not adoptable or, if they are adoptable, certain exceptions apply to make adoption detrimental to them. We find no error and deny the petition.

FACTS

Jesus, Luis, Brenda, Marco, and Andrew, ranging in age from 8 years to 1 year old, were removed from the custody of their parents in December 2001. The parents, Aristeo and Maria S., had a history of severe domestic violence and some physical abuse of the children. Brenda disclosed sexual abuse by Aristeo. Dependency petitions were filed and sustained under section 300, subdivisions (b) [failure to protect], (c) [severe emotional abuse] and (d) [sexual abuse by a parent].

The parents received 18 months of reunification services but were unsuccessful at reunifying with the children. In August 2003 the juvenile court terminated services and referred the children to a permanent plan selection hearing ( 366.26). The parents filed petitions under California Rules of Court, former rule 39.1B, seeking relief from the referral orders. We denied the petitions in an unpublished opinion filed on December 8, 2003 (Aricio S. v. Superior Court (G032725)).

The permanent plan selection hearing was continued several times. Shortly before the hearing was ultimately held, Aristeo filed a petition under section 388, seeking the return of his children or unmonitored overnight visits. The petition was denied, and Aristeo appealed. We affirmed the order denying the petition in an unpublished opinion filed February 28, 2005 (In re Jesus S. (G034115)).

The first permanent plan selection hearing was held in May 2004. Luis and Jesus were placed together in the foster home of Jackie C., where they had been since June 2003. Brenda, Marco and Andrew were placed together in the foster home of Maria R. and Francisco M., where they had been since February 2003. The juvenile court found all five children [have] a probability for adoption, but [are] difficult to place and there is no identified or available prospective adoptive parent . . . . The hearing was continued for 180 days, during which time SSA was ordered to attempt to locate placement that will accept/adopt all minors[,] otherwise[] Brenda, Marco and Andrew to be placed together and Jesus and Luis are to be placed together and Social Services to ensure families that will allow contact between siblings.

In December 2004, SSA reported the children had been visiting with each other weekly for two hours. The parents visited the children once a month and kept in contact by telephone. Marco and Andrew, who were then five and four, respectively, were considered adoptable by the social worker because [t]hough they are members of a sibling set, the children are in good health and are of a young age. The children are developmentally on target with some normal tantrum behavior. Brenda, who was then eight years old, was considered difficult to place because she was a member of a sibling set and over the age of seven. Her therapist was working with Brenda about her feelings on being separated from her mother. When the social worker asked her about adoption, she became very emotional and started to cry. However, Brenda also stated that she would like to live with her older brothers and asked if they could come live with her. Brenda stated she would like to live with her current foster mother.

Jackie C. did not want to adopt Jesus and Luis, and the two boys were emphatic that they did not want to sever ties to their parents.^[2] Maria R. and Francisco M. felt attached to the three younger children, but they were concerned about the mothers past threats . . . to run away with the children and bring harm to the foster parents and their family. A bonding study revealed that all the siblings recognize one another as a set of siblings, who share a common origin, history and relatives. Particularly in the long-term, it would be invaluable for them to have one another as they go on in life. The social worker recommended long-term foster care for the children in the absence of an adoptive home. The foster parents agreed to provide a home for the children until an adoptive family could be found.

In January 2005, the juvenile court continued the permanent plan selection hearing for Marco and Andrew to July to allow SSA to continue to search for adoptive home for minors. The court found Brenda was not adoptable and ordered long-term foster care as her permanent plan. Her periodic review hearing was also set for July, and SSA was ordered to continue to make efforts to locate an adoptive home.

The children remained in long-term foster care for the next 18 months while SSA searched for an adoptive home. At a hearing in October 2005, the juvenile court found Andrew and Marco not adoptable and ordered them into a permanent plan of long-term foster care; Brendas plan of long-term foster care was ordered to continue. For a while, SSA considered separating Andrew and Marco from Brenda to facilitate the younger childrens placement, but by the time of the report in June 2006, the social worker had changed his mind. The children . . . have never been separated. They have been placed together since removal from their parents care. The children seek each other out when they feel sad or hurt, and they like to talk about each others progress. Brenda is always looking after her brothers. They get along well, and are happy being together. [] . . . [] [I]n pursuing an adoptive home, separating these children should not be an alternative. Aristeo visited with the children every two weeks, and the children enjoyed the visits very much. The visits were supervised by the foster parents.

In July 2006, SSA found a family, Oscar and Maria H., who were interested in adopting the three children. The children and the family visited during August, and on August 26, the children were placed with the H. family. The H.s met with, inter alia, the social worker and the father and agreed to continue the visits between the children, the father and their siblings. SSA recommended that the juvenile court schedule a permanent plan selection hearing the upcoming periodic review because long-term foster care was no longer appropriate.

Aristeo disagreed with SSAs recommendation, so the periodic review hearing was continued and then trailed to December 2006. The SSA reports admitted into evidence revealed that the children were adjusting well to their new home. At first, Brenda was sad because she missed her foster mother, but after a few months she was no longer demonstrating any depressive moods or discomfort. She liked living with the H. family, but still missed her previous school and friends. The juvenile court found the permanent plan of long-term foster care was no longer appropriate and that it would be in the childrens best interests to set a permanent plan selection hearing.

DISCUSSION

Section 366.3 provides that the status of a child in long-term foster care shall be reviewed by the juvenile court at least once a year. ( 366.3, subd. (d).) At the review hearing, the juvenile court is directed to consider all permanency planning options for the child . . . [and] shall order that a hearing be held pursuant to Section 366.26 unless it determines by clear and convincing evidence, that there is a compelling reason for determining that a hearing held pursuant to Section 366.26 is not in the best interest of the child because the child is being returned to the home of the parent, the child is not a proper subject for adoption, or no one is willing to accept legal guardianship. If [SSA] has determined it is unlikely that the child will be adopted or one of the conditions described in paragraph (1) of subdivision (c) of Section 366.26 applies, that fact shall constitute a compelling reason for purposes of this subdivision. Only upon that determination may the court order that the child remain in foster care, without holding a hearing pursuant to Section 366.26. ( 366.3, subd. (g).)

Aristeo argues there is clear and convincing evidence that Brenda, Andrew and Marco are not proper subjects for adoption because their relationships with him and their relationships with Jesus and Luis outweigh the benefits of an adoptive home. The father points out that SSA had previously found all three children not adoptable because of their strong sibling relationship with each other and with Jose and Luis. He also points to his consistent weekend visits with all the children, which all parties agree the children enjoyed very much. He contends this evidence should have compelled the juvenile court to order the children directly into long-term foster care without a permanent plan selection hearing. We disagree.

Section 366.3 does not require the juvenile court to bypass the permanent plan selection hearing even in the face of clear and convincing evidence that a child is not a proper subject for adoption. The statute merely gives the court discretion to do so if it makes that determination. (See Victoria S. v. Superior Court (2004) 118 Cal.App.4th 729, 733.) Here, however, there was ample evidence that the children were the proper subject of adoption notwithstanding their strong relationships with their siblings and their father. At the time of the hearing, the children had been placed with the H.s for over three months. The H.s were committed to adoption, and the children were doing well and were happy. Visits between the children, Aristeo, and Jose and Luis continued.

The juvenile court is subject to a presumption that foster care is inappropriate and adoption is preferred. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888.) Section 396 provides: It is the

policy of the Legislature that foster care should be a temporary method of care for the children of this state [and] . . . that reunification with the natural . . . parents or another alternate permanent living situation such as adoption or guardianship [is] more suitable to a childs well-being than is foster care . . . . After five years in foster care, these three children have a chance at a permanent home. Under the circumstances here, in our view, the juvenile court was required to set a permanent plan selection hearing. At that hearing, the juvenile court will consider the options and decide which permanent plan is best for the children. Then, Aristeo will be able to present evidence and argue that the childrens bonds to him and their siblings should outweigh the benefits of adoption. ( 366.26, subd. (c)(1)(A) & (E).)

DISPOSITION

The juvenile court did not err in setting the case for a permanent plan selection hearing. Accordingly, the petition is denied.

SILLS, P. J.

WE CONCUR:

BEDSWORTH, J.

IKOLA, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] Jesus and Luis were found not adoptable and ordered into long-term foster care. They are not parties to this proceeding.