In re C.H.

Filed 5/31/07 In re C.H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Affirmed.

Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant A.H.

Rich Pfeiffer, under appointment by the Court of Appeal, for Appellant J.E.H.

Kathleen Murphy Mallinger, under appointment by the Court of Appeal, for Appellant A.H.

Jacquelyn E. Gentry, under appointment by the Court of Appeal, for Minors C.H., K.H., and Kenneth T.

Appellant A.H. (mother) appeals from a Welfare and Institutions Code^[1]section 366.26 order terminating parental rights to her twin girls, C.H. and K.H. (born in December 2002), and son, Kenneth T. (born in April 2005) (the children). On appeal, mother argues that: 1) the juvenile court erred in finding that the children were adoptable; 2) the beneficial parental relationship exception ( 366.26, subd. (c)(1)(A)) applied; and 3) the sibling relationship exception ( 366.26, subd. (c)(1)(E)) applied. Two of the childrens older brothers, A.H. and J.E.H., have appealed and also argue that the sibling exception applied. We affirm the order.^[2]

FACTUAL AND PROCEDURAL BACKGROUND

Mother had eight children J.E.H., J.L.H., A.H., A.F.H., C.H., K.H., Christopher T., and Kenneth T., but only three of them are subjects of this appeal. Mothers family came to the attention of the San Bernardino County Department of Childrens Services (the department) in December 2002, when C.H. and K.H. (the twins) tested positive for barbiturates and marijuana at birth. Mother admitted to smoking marijuana throughout her pregnancy with the twins. In December 2003, Christopher T. tested positive for methamphetamine and marijuana at birth. Mother tested positive for opiates during her pregnancy with Christopher. In December 2003, the family agreed to voluntary family maintenance services. Mother and father^[3](the parents) were provided with referrals to a domestic violence center, counseling for drug treatment, and access to a public health nurse. The parents had mental illness histories. The department advised the parents several times that their children required routine medical care. Nonetheless, when a public health nurse visited mothers home on April 14, 2004, she discovered that four-month-old Christopher T. weighed only eight pounds, three ounces and had not been seen by a doctor since birth, and that the twins had not been seen by a doctor since August 2003. The nurse made appointments for Christopher T. and the twins to be evaluated at the Childrens Assessment Center (CAC) on April 28, 2004, but the parents refused to bring them. The parents instead brought the twins and Christopher T. to see Dr. Fang in Barstow on April 22, 2004. Dr. Fang concluded that Christopher T. was failing to thrive and recommended that he be evaluated further. On April 28, 2004, a few social workers and a public health nurse went to pick up mother, Christopher T., and the twins to take them to the scheduled CAC appointment. The parents refused to have their children taken to CAC. The social worker called the police for assistance, and they discovered that father had two outstanding warrants for his arrest. The police also found a marijuana pipe in one of the childrens bedroom. The home was filthy and there was rotten food in the refrigerator. The parents seven children were taken into custody (Kenneth T. had not yet been born). Christopher T. was examined at CAC, diagnosed as severely failing to thrive, and was admitted to the hospital. The twins were given a prescription for hemoglobin, and sickle cell blood work was requested.

On April 30, 2004, the department filed section 300 petitions on behalf of the twins, who were 16 months old at that time. The petitions alleged that the twins came within section 300, subdivisions (b) (failure to protect), subdivision (g) (no provision for support), and subdivision (j) (abuse of a sibling). The court detained the twins and their siblings in foster care. The court ordered the parents to submit to random drug testing, as directed by the department, and ordered weekly supervised visitation.

Jurisdiction/disposition

On May 19, 2004, the social worker filed a jurisdiction/disposition report, recommending that the twins (and their siblings) be declared wards of the court and that mother be provided with reunification services. The social worker reported that mother admitted using marijuana, speed, and opium within the last few months. Furthermore, mother had been hospitalized on two prior occasions, due to her mental illness problems. Mother was also unemployed. The social worker noted that the twins and their siblings demonstrated a strong attachment to each other. The social worker further reported that the twins were placed together in the same foster home.

Mothers case plan required her to participate in general counseling, undergo a psychological evaluation, be evaluated for psychotropic medication, participate in a parenting education program, attend a substance abuse program, and submit to substance abuse testing. The plan included the objectives that mother stay sober, obtain a stable residence, have a legal source of income, stay free from illegal drugs, and show that she accept responsibility for her actions. The social worker reviewed the reunification plan with her.

At the jurisdiction/disposition hearing, the court found that the twins came within section 300, subdivisions (b) and (j), declared them (and their siblings) dependents of the court, and ordered mother to participate in the reunification plan. The court also ordered weekly supervised visitation.

Six-month Status Review

The social worker filed a six-month status review report recommending that mother continue to receive reunification services. The social worker reported that the parents were living with the paternal grandmother and other relatives, and they supported themselves by performing odd jobs in the community. The parents attended the Department of Behavioral Health (DBH) group counseling and had bimonthly medication reviews with a psychiatrist. Mother was diagnosed with Major Depressive Disorder with psychotic episodes and Schizoaffective Disorder. She was prescribed four medications. The social worker reported that mother had missed seven out of nine appointments at DBH. She had not participated in the group counseling or alcohol and drug program there since August 2004, and she failed to attend 12-step meetings as directed by the program. Mothers DBH case was closed as of December 20, 2004, due to her adversarial attitude and failure to engage in, or benefit from, services. The social worker noted that the parents still did not understand why their children were removed from their custody, and that mother was pregnant again (with Kenneth T.). Mother participated in a parenting program, but failed to complete it. She tested positive for marijuana and methamphetamines on July 28, 2004, and tested positive for amphetamines, methamphetamines, and marijuana on September 16, 2004.

As to visitation, mother was attending weekly, supervised visits. The twins were happy playing with their parents and siblings, but went to their foster mother with outstretched arms, as soon as she appeared to take them home. The social worker noted something of concern at a visit on October 13, 2004. At that visit, the parents had a family conference, during which they asked all of the children to vote on whether or not she should keep the baby she was carrying, or have an abortion. They all voted for mother to keep the baby.

The social worker further reported that the twins had been diagnosed with sickle cell anemia trait and anemia. However, they showed no signs of developmental delay. The social worker noted that they both became frustrated easily, that they had adjusted very well to the foster placement, and that they appeared to have bonded with the foster parents. At the weekly visits, the twins seemed happy playing with their parents and older siblings, but when the visits ended, they ran to greet the foster mother.

At the six-month review hearing, held on January 7, 2005, the court ordered reunification services to continue and for the parents to participate.

On April 19, 2005, the court was informed that the twins had been moved to a foster/adopt home. The foster mothers grandmother agreed to care for two of the twins older siblings, so that the four children could maintain closer family ties.

Kenneth T.

In April 2005, the department filed a section 300 petition on behalf of Kenneth T., who was born a few days before. Mother and Kenneth T. tested positive for methamphetamine and marijuana at the time of his birth. The petition alleged that Kenneth T. came within section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). The court detained Kenneth T. in foster care.

On May 27, 2005, the social worker filed a jurisdiction/disposition report recommending that the court declare Kenneth T. a dependent and that no reunification services be provided for the parents. The parents had failed to make substantial progress in their case plan with regard to their seven other children, and they suffered from mental illness and chronic substance abuse. Moreover, the parents had no visible means of support. Regarding Kenneth T., the social worker reported that he had been placed in the same home as the twins. He suffered severe withdrawal symptoms after delivery, and he still had horrendous sweats, postures and trembles.

In addition, the social worker noted that there was an unusually strong emotional bond between the parents and their children. All of the children were happy to see each other at the visits, and they were respectful and loving with the parents. The parents showed concern for their childrens well-being and progress in school.

The court held a jurisdiction hearing for Kenneth T. on July 6, 2005, and found that he came within section 300, subdivisions (b) and (j). The court declared him a dependent of the court and continued the matter to August 1, 2005, for a contested disposition hearing.

Twelve-month Status Review

On July 6, 2005, the court additionally held a 12-month status review hearing with regard to the twins and their siblings. The social worker prepared a 12-month status review report prior to the hearing and recommended that the court terminate reunification services and set a section 366.26 hearing. At the hearing, the social worker testified that mother completed a parenting class, but not a drug treatment program. The matter was continued.

The social worker filed an addendum report dated August 1, 2005. The social worker reported that she made an unannounced visit to mothers apartment on July 21, 2005. The social worker had to wait five minutes before mother answered the door and invited her in. Mother reported that her sole source of income was government assistance (general relief). Although mother had recently reported that she was seeing a therapist, when the social worker asked for the therapists name, she said she did not have a therapist. The social worker continued to recommend that services be terminated and a plan of adoption be established for the twins and Kenneth T. The recommendation was based on the parents dual diagnosis of mental health issues and chronic substance abuse, and on the parents inability to provide for the childrens needs. The parents lived in a small, one room apartment that barely met their needs.

On August 1, 2005, the court held the 12-month hearing for the seven older children and the disposition hearing for Kenneth T. The department changed its recommendation and agreed to provide six more months of reunification services. The court ordered the parents to participate in services. As to Kenneth T., the court declared him a dependent of the court and ordered the parents to participate in services.

Six-month Status Review for Kenneth T.

The social worker prepared a status review report recommending that reunification services be terminated and that a section 366.26 hearing be set. The social worker reported that the parents had failed to follow through with referrals to counseling and substance abuse treatment. The social worker tried to have the parents drug tested nine times, but none of the tests were completed. On the last attempt, mother agreed to be tested, but then disappeared from the departments office. She said she did not feel that she needed reunification services. The social worker reported that Kenneth T. and the twins were moved on November 23, 2005, from their foster home to another foster home and that a possible adoptive home had been identified for them. As to visitation, the social worker reported that the family enjoyed each others company and was close.

Eighteen-month Status Review and Six-month Status Review

On February 17, 2006, the court was informed that the twins and Kenneth T. had moved into a prospective adoptive home. The twins were having behavioral problems, which began immediately after the last visit with the parents, and their previous foster mother did not think she could help them with their problems. On February 13, 2006, the social worker met with the prospective family, and the next day, the family said it was interested in adopting the children.

On March 6, 2006, the court held a combined 18-month review hearing for the twins and a six-month review hearing for Kenneth T. The social worker testified that there was no reason to provide further services because mother (and father) had failed to complete her case plan. The court noted that, by the time of that hearing, mother and father had been provided with 22 months of reunification services, and that since the 12-month review, they had done virtually nothing. The court concluded that the parents had failed to make substantive progress in their case plans in the older childrens case, as well as in Kenneth T.s case, terminated services, and set a section 366.26 hearing.

Section 366.26 and Adoption Assessment

The social worker filed an adoption assessment and addendum report on June 12, 2006, recommending that parental rights be terminated and a permanent plan of adoption be established for the twins and Kenneth T. The children had been placed in their current home since February 15, 2006. The social worker opined that all three children were adoptable because of their young ages and their current caretakers desire to adopt them. The adoption assessment report described C.H. as a nice-looking, three-year old, who had asthma and was anemic. She also had a problem with encopresis. The prospective adoptive mother reported that C.H. was not potty trained, that she would sometimes poop in her bath water, and that she would defecate in her pull-ups and not tell anyone. Furthermore, C.H. had gotten feces in her bed. The carpet in her bedroom had gotten so bad that the prospective adoptive parents replaced it with linoleum for easier cleanup. The prospective adoptive mother also stated that C.H. had a sweet spirit and was always ready to give a hug and a kiss. C.H. was average, slow moving, shy, frail, but a good eater and a good sleeper. She had an easy-going personality, and liked to go shopping and play. C.H. called her prospective adoptive parents mommy and daddy.

K.H. was described as a nice-looking three-year-old girl, who also had asthma. The prospective adoptive mother described her as average, slow moving, outgoing, and stubborn, but overall a very good little girl. She was an excellent eater and a good sleeper. K.H. was potty trained, and played well with other children. The prospective adoptive mother noted that after visits with the family, K.H. was moody and stomped around the room, shouting that she wanted her momma and wanted to go home with her other sister. After visits, it took K.H. almost two weeks to return to being happy again and being affectionate.

The social worker opined that the childrens monthly visits with their older siblings were detrimental to them. The children needed time to understand that the prospective adoptive family was their new family, and visits with their siblings caused confusion and anxiety. The social worker opined that the visits should stop for a while, until the children assimilated into their new home. The prospective adoptive parents were willing to let the children have an ongoing relationship with their siblings after they had settled into their home.

The social worker reported that the prospective adoptive parents had been told about the childrens histories and were still eager to adopt them. The social worker remarked that the prospective adoptive parents were dealing with the childrens negative behaviors and had already demonstrated a commitment and readiness to parent them. They accepted the childrens adverse backgrounds, as well as any future problems, without reservation. The prospective adoptive parents considered themselves to be the childrens parents. The children called them mama and dada, and turned to them for comfort and nurturing. The social worker noted that, although the childrens placement with the prospective adoptive parent had been short, it was stable, and the children were assimilating well.

On August 10, 2006, the childrens older brothers, J.E.H. and A.H., filed a section 388 petition, requesting the court to change the order setting a section 366.26 hearing with regard to the twins and Christopher T. J.E.H. and A.H. wanted the court to limit the permanent plan to legal guardianship, alleging that the change would be better for the twins and Christopher T. because the contact between all of them provided continuity and promoted emotional well-being.

The social worker filed an addendum report dated September 5, 2006, in response to the section 388 petition. The social worker noted the prospective mothers comments that she herself was adopted and knew the importance of sibling contact. She had siblings and wished that she knew who they were. The prospective adoptive mother was supportive of contact between the siblings and said she would be willing to liberalize the court-ordered quarterly sibling visits, once the childrens relationships with her and her husband stabilized. In addition, the social worker reported that a family visit was scheduled for August 23, 2006, but the parents and the childrens brothers, J.E.H. and A.H., and sister, J.L.H., did not attend. C.H. said she was very upset that her parents and sister did not come. However, she made no mention of her brothers. The prospective adoptive mother stated that the twins rarely mentioned their brothers. The social worker recommended that the section 388 petition be denied.

On September 5, 2006, the court held a section 366.26 hearing and combined the hearing on the section 388 petition. The social worker testified at the hearing that during family visits, Kenneth T. did not recognize mother and father as his parents, and he had no bond with them. However, the twins were happy to see mother, and all the siblings appeared to enjoy each other. The social worker further testified that Kenneth T. and C.H. had no reaction to being separated from their siblings at the end of the visits. K.H. sometimes reacted by being upset, but the social worker did not know whether she was upset about leaving the parents or leaving the siblings. The twins did not ask about their siblings after the visits. The social worker also testified that the twins had a bond with the prospective adoptive parents, and that he assumed that Kenneth T. did too, since Kenneth T. was happy in their home. The social worker opined that the children required love, permanency, care, and consistency from a family, and that those needs overrode any parental bond. The social worker also stated that the sibling relationships were important, and that the prospective adoptive mother strongly desired to have sibling visits. The social worker concluded that he believed it was important for the children to gain the permanency of adoption.

Mother also testified at the hearing. She said she had monthly visits with the children for one hour. At visits, she and the children hugged, played, ate, and shared stories. She said the children called her Mom. She felt that there was a strong bond between the older children and the twins.

The court denied the section 388 petition, terminated parental rights, and selected adoption as the permanent plan. The court found that it was likely that the children would be adopted. The court noted that, although there was evidence of a parental bond and a sibling bond, the evidence of those bonds did not rise to the level where they would outweigh the benefits of adoption.

ANALYSIS

I. The Court Properly Found That the Twins Were Adoptable

On appeal, mother contends that the courts finding of adoptability with regard to the twins must be set aside because it was not supported by substantial evidence. She asserts that the twins have health, behavioral, and emotional problems, and that they have failed in a previous placement. We note that, although mothers opening brief contends that the twins and Kenneth T. were not adoptable, she emphasizes in her reply brief that she is not challenging the courts finding that Kenneth T. was adoptable. We conclude that the court properly found that the twins were adoptable.

We review the factual basis of a termination order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find a factual basis for termination by clear and convincing evidence. [Citation.] (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. . . . [] Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)

There was substantial evidence to support the courts finding of adoptability. C.H. was a nice-looking, three-year-old, who had a sweet spirit and was always ready to give a hug and a kiss. She was a good eater and sleeper, and she had an easygoing personality. K.H. was a nice-looking three-year-old, who was outgoing and stubborn, but was overall a very good little girl. She was an excellent eater and a good sleeper, was potty trained, and played well with other children. Thus, the prospective parents were fully aware of the twins health problems. They unconditionally accepted the twins current and future problems. They were dealing with the twins negative behaviors and had already demonstrated a commitment and readiness to parent them. In handling C.H.s problem with encopresis, the prospective adoptive parents replaced the carpet in her bedroom with linoleum for easier cleanup. The prospective adoptive parents considered themselves to be the twins parents. Likewise, the children called them mama and dada, and turned to them for comfort and nurturing. The social worker noted that, although the childrens placement with the prospective adoptive parent had been short, the placement was stable, and the children were assimilating well. The prospective adoptive parents were eager to adopt the children and were not likely to be dissuaded.

We conclude that the court properly found clear and convincing evidence that the twins were adoptable, and that it was highly likely the twins current foster parents would adopt them.

II. The Beneficial Parental Relationship Exception Did Not Apply

Mother contends that the court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(A). We disagree.

In general, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. ( 366.26, subd. (c)(1).) This rule, however, is subject to six statutory exceptions. ( 366.26, subd. (c)(1)(A)-(F).) The beneficial parental relationship exception in section 366.26, subdivision (c)(1)(A) applies when the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. 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 parents rights are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) It is the parents burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)

Here, mother claims that this exception applies because she had regular and successful visits with the children. With regard to the twins, she asserts that she had a close, emotional bond with them, they recognized her and loved her, and they enjoyed visits and cried at the end of them. They also asked for her and became angry when they could not see her. As to Kenneth T., she alleges that she was the only constant in his young life, in light of his three placements. Mother further argues that the children would benefit from continuing their relationship with her, since they have shown they need her in their lives by recognizing her as their mother, running to her, and being affectionate with her.

It is undisputed that mother regularly visited the children and that the children enjoyed the visits. However, mothers interactions with the children do not even begin to demonstrate that her relationship with them promoted their 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.) Other than satisfactory visitation, mother has proffered no evidence to support a finding that the children had a substantial, positive emotional attachment [with her] such that the child[ren] would be greatly harmed if the relationship was severed. (Ibid.)

We conclude that the court properly declined to apply the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(A).

III. The Sibling Relationship Exception Did Not Apply

Mother and the childrens older brothers, A.H. and J.E.H., contend that the court erred in failing to apply the sibling relationship exception under section 366.26, subdivision (c)(1)(E). At the outset, we note that the departments assertion that A.H. and J.E.H. have waived their right to raise this issue on appeal because their section 388, which alleged that the sibling relationship exception applied, listed the twins and Christopher T., but not Kenneth T. In his reply brief, J.E.H. states that his trial counsel was confused and thus failed to enumerate Kenneth T.s name. Notwithstanding any waiver, 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 childs 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 childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption. ( 366.26, subd. (c)(1)(E).) Thus, 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.).) The evidence here showed that all the siblings, in general, had close bonds. However, the evidence failed to demonstrate that the children, in particular, had strong bonds with A.H. and J.E.H. or the other siblings. The twins were only 16 months when they were removed and most likely did not remember living with their older siblings. Kenneth T. never lived with them, since he was removed from mothers custody a few days after he was born. At visits, A.H. and J.E.H. interacted with their youngest siblings, but tended to interact with each other or their parents more. Moreover, Kenneth T. and C.H. had no reaction to being separated from their siblings at the end of the visits. The twins talked about their sisters, but rarely even mentioned their brothers. There was no evidence that the children would suffer detriment if their sibling relationships ended. Thus, mother, A.H., and J.E.H. have not sustained the burden of proof that termination of mothers parental rights would substantially interfere with the childrens sibling relationships. (See L.Y.L., supra, 101 Cal.App.4th at p. 952.)

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 are terminated here, the children gain a permanent home through adoption. If parental rights are not terminated, they lose the permanent home their prospective adoptive parents are ready to provide for them. Mothers ability to reunify with the children, if they are placed in guardianship or long-term foster care, is remote since mother has serious mental health issues and substance abuse problems that she has not resolved, even after nearly two years of reunification services. Valuing the childrens continuing relationships with their siblings over adoption would deprive them of the ability to belong to a family.

We further note that the childrens prospective adoptive parents were very aware of the importance of sibling relationships, especially since the prospective adoptive mother was adopted herself. They have reassured the social worker that they would maintain the sibling visits.

We conclude that the benefits of adoption outweighed the benefits of the continuing the childrens sibling relationships.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ HOLLENHORST

Acting P.J.

We concur:

/s/ GAUT

J.

/s/ MILLER

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Counsel for the children filed a letter brief on April 4, 2007, joining in respondents brief and urging us to affirm the order.

^[3] Father is not a party to this appeal.