In re Courtney P.
Filed
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
STATE OF
In re COURTNEY P. et al., Persons Coming Under the Juvenile Court Law. | |
Plaintiff and Respondent, v. KATRINA W., Defendant and Appellant, COURTNEY P. et al., Minors and Appellants, DEBORAH O., Appellant. | D048764 (Super. |
APPEALS from judgments and orders of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed in part, reversed and remanded in part with directions.
Katrina W. is the mother of five daughters (Courtney P., A.P, Angel J., Alexandria W. and A.W.), who were taken into protective custody because of a multi-generational family history of sexual assault and molestation and current allegations that their cousin had been sexually molested. Katrina appeals the termination of her parental rights to her three youngest daughters (Angel, Alexandria and A.W.) under Welfare and Institutions Code section 366.26,[1] contending that the juvenile court erred by not applying the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(A)) and/or the sibling bond exception to adoption (§ 366.26, subd. (c)(1)(E)). The two oldest children (Courtney W. and A.P.) appeal the juvenile court's denial of their section 388 petition, in which they sought to have their three younger sisters placed with them in the home of their maternal aunt, Marla F. Deborah O., a maternal aunt who had been granted de facto parent status, appeals the court's denial of her section 388 petition, in which she sought to have the three youngest children placed with her.[2]
FACTS
In February 2004, Katrina moved to San Diego because she was facing charges in a pending criminal case in the
On
On July 12, Agency filed dependency petitions on behalf of Courtney, A.P., Angel, Alexandria, and A.W., alleging that each child was at substantial risk of being sexually abused because she was living in the maternal grandmother's household with relatives who had sexually abused a cousin in the household, and who had also abused Katrina when she was a minor. (§ 300, subd. (j).)[3] The maternal grandmother either denied that any sexual abuse had occurred in her home or claimed that there had been only isolated incidents of molestation.
Deborah attended the July 13 detention hearing. She told the social worker that she had Katrina's written authorization to care for the five children. Deborah said that she had raised Alexandria since she was born, and that the baby, A.W., sometimes stayed with her as well. The court issued a " pick up and detain" order for Alexandria and A.W., and ordered Deborah to cooperate with Agency by turning the children over to the social worker. Deborah complied.
Deborah requested that all five children be placed in her home. On July 29, Agency conducted a home evaluation. The social worker reported that the residence " appear[ed] to be more than adequate to meet the licensing requirements for the children to be placed with [Deborah]." However, the social worker also reported that when she raised the subject of multi-generational incest within the family, Deborah either denied knowledge or gave vague answers. The social worker opined that Deborah was minimizing the intergenerational sexual abuse. For this reason, the social worker was uncertain that Deborah would protect the children.
On August 20, Angel, the middle daughter, was detained with her adult paternal half-sister. The two oldest girls, Courtney and A.P., were detained in the home of their father. Alexandria and A.W., the two youngest children, were detained in separate licensed foster homes.
On August 23, Agency filed amended dependency petitions. The amended petitions added allegations that each child was at substantial risk of harm because of Katrina's substance abuse and because she had left the children inadequately supervised from February 2004 to
On September 30, Katrina submitted to the amended petitions and the court made true findings. The court declared Courtney, A.P. and Angel dependents, removed them from Katrina's custody, and ordered Katrina to comply with her case plan. Courtney and A.P. were placed with their father. Angel was placed with her half-sister, whose home had been approved.[4] Katrina asked for a contested dispositional hearing in Alexandria's and A.W.'s cases.
In October, the court placed Alexandria and A.W. in separate licensed foster homes after denying Deborah's request that they be placed with her.[5] The court also ordered Katrina to enroll in the Substance Abuse Recovery Management System program (SARMS). In denying placement with Deborah, the court explained that its major concern was that Deborah shared in the maternal family's secrecy about multi-generational sexual abuse. The judge continued:
" [T]he thing I found the most troubling was Deborah saying that she thought the children were safe with [the maternal grandmother]. And I think at this point in time I can't be sure that Deborah would keep the children from the other family members. I would like to believe that that will be true but I can't be sure. And I want to make sure that these girls are safe. I don't want them to have similar things happen to them as has happened to other children . . . ."
However, the court gave Agency discretion to place the two younger children with a maternal relative upon a showing of progress in the
In January 2005, Courtney and A.P. were removed from their placement with their father because of domestic violence in his home. In February, the court placed Courtney and A.P. together in a licensed foster home.[6]
In the meantime, Deborah had contacted the
On March 30, the court followed Agency's recommendation and ordered six more months of services.
In August, Marla F., a maternal aunt, contacted Agency about possible placement of the five children with her. Marla was living in Los Angeles with her father in a two-bedroom house at the time. She indicated that she would consider looking for a larger home if the children were placed with her. When questioned by the social worker, Marla related that she knew about the family history of sexual assault and molestation. The social worker characterized Marla as being very open about the family's history, and indicated that Marla did not minimize the situation. By late September, Agency had completed its background check on Marla.
On October 3, the court terminated reunification services and set a section 366.26 hearing. Courtney and A.P. were placed with Marla on November 4.
On November 15, Deborah requested de facto parent status. The court granted this request.
Agency assessed all five children as likely to be adopted. Agency's plan was to have Marla adopt Courtney and A.P. Marla had begun the adoptive home study process. If Marla could not adopt Courtney and A.P., there was one approved adoptive family willing to adopt a sibling group with the characteristics of Courtney and A.P. In addition, two approved adoptive families were willing to adopt an adolescent with Courtney's characteristics, and two approved adoptive families were willing to adopt an adolescent with A.P.'s characteristics. Agency planned to have Angel adopted by her paternal half-sister (see fn. 4, ante), who had begun the adoptive home study process. If the half-sister could not adopt Angel, there were five approved adoptive families willing to adopt a child with Angel's characteristics. Agency planned to have Alexandria and A.W. adopted by their current caregiver. If the current caregiver could not adopt, there were two approved adoptive families who were willing to adopt siblings with the characteristics of Alexandria and A.W. There were also eight approved adoptive families willing to adopt a child with Alexandria's characteristics and seven approved adoptive families willing to adopt a child with A.W.'s characteristics.
With respect to the issue of maintaining contact among the sisters, Nicole Champagne, the adoption assessment social worker wrote:
" All five girls have a sibling relationship. In the ideal world[,] Agency would like to place them together in a prospective adoptive home. Unfortunately, a home of this nature is not [available] at the current time. Courtney and [A.P.] being the older two siblings have lived together the longest and would continue to benefit from remaining in the same home. . . .
" Angel[,] the middle sibling[,] is residing with her paternal [half-] sister who is committed to adoption. [Angel] will miss the daily contact with her other four siblings[,] but the benefit of a permanent placement with her current caregiver outweighs the detriment to moving her at this time. The relative caregiver of Courtney and [A.P.] does not have room to accommodate a third sibling at this time.
" The youngest two siblings[,] Alexandria and [A.W.,] have spen[t] most of their living time together. It would be difficult to separate these two. They will miss the daily contact with their older three sisters[,] but the permanency of adoption by the current caregiver outweighs the detriment they will suffer." (Italics added.)
Social worker
On
On February 16, psychologist Robert Kelin performed a sibling bonding study of the five children. When Courtney and A.P. arrived from Los Angeles, the three younger sisters ran to them and gave them hugs and kisses. In the waiting room, all of the children sat " extremely close" to one another. Courtney and A.P. behaved in a maternal manner toward the younger siblings. A.P. held Alexandria and A.W.
When the girls were paired in various combinations, each sibling was comfortable with the other and appeared to enjoy her sister's company. They played well together and were considerate and responsive to one another. Courtney, A.P. and Angel were responsive to Alexandria's and A.W.'s needs.
Dr. Kelin concluded that the siblings were bonded and that they appreciated their time together. He opined that the children would feel hurt if they were to lose contact with one another. Dr. Kelin stated that the girls were " close siblings" and noted a maternal aspect to the relationship because of the age differences.
Dr. Kelin also performed a bonding study between Katrina and the children. Dr. Kelin observed the three younger children " [shout] out in happiness" when they saw Katrina and immediately went to hug her. Katrina and the children sat close together on the couch and interacted with one another. When Courtney and A.P. arrived, all the family members hugged and kissed, and then shared food and stories with one another.
Dr. Kelin reported that Courtney and Katrina were close and that they were comfortable with each other. However, their relationship appeared to be more like siblings than that of parent and child. A.P. and Katrina sat close together while they talked. When Katrina asked A.P. questions, A.P. readily answered. Dr. Kelin opined that Katrina's relationship with A.P. was parental in some respects, but peer-like in others. Katrina and Angel were comfortable and affectionate with each other. Katrina had more difficulty interacting with Alexandria, but when Katrina told Alexandria that she missed her, Alexandria responded that she missed her mother too. A.W. sat next to her mother on the couch. When Katrina told A.W. that she missed her, A.W. kissed her mother. Each child separated easily from Katrina. When everyone was reunited, Katrina assumed a parental role, trying to interest the children in playing a game together and directing them.
When Dr. Kelin directed the children to draw their family, each child included all of her siblings and Katrina in her drawing. Dr. Kelin concluded that the children had a " mild bond" with Katrina; he noted that the bond was stronger than he expected it would be, given the minimal contact between them. Dr. Kelin opined that all of the children would feel hurt and rejected if they were to lose contact with Katrina.
In April, Agency reported that Courtney and A.P. did not want to be adopted. Courtney wanted to stay with Marla unless her three youngest sisters were placed with Deborah. In that case, Courtney wanted to live with Deborah as well. A.P. wanted to remain with Marla and have her younger sisters close by, preferably at Deborah's home. Agency recommended that the court implement another planned permanent living arrangement[8] for Courtney and A.P., and reiterated its earlier recommendation that parental rights for Angel, Alexandria and A.W. be terminated, with the court implementing the permanent plan of adoption for the three youngest siblings.
On April 17, Courtney and A.P., through their attorney, filed a section 388 petition, in which they stated that they were filing the petition, seeking " to have a relationship with my . . . sister." Specifically, Courtney and A.P. asked the court to return them and their three younger sisters to Katrina.[9] As an alternative, Courtney and A.P. asked that the court place Angel, Alexandria and A.W. with them in either Marla's home or Deborah's home. Both aunts' residences were in
" Two of Courtney and [A.P.]'s sisters may be adopted by a family in San Diego. Courtney and [A.P.] object to that adoption. Since the last court hearing a bonding study was performed by Robert Klein, Ph.D. that shows 'the five children have a bond with each other and they do appreciate their time together. They present as close siblings. . . . It is thought that the children would feel hurt if they lost contact with each other.' . . .
" Further, Courtney and [A.P.] have tried to maintain contact with their sisters by regular visitation. But the distance between Los Angeles and San Diego prohibits regular contact on a normal basis. Both Courtney and [A.P.] feel the present living arrangements for their sisters interferes with their opportunity to bond as family."
Courtney and A.P. also alleged that it would be in the best interests of all five siblings for them to live together as they had in the past, or, at a minimum, in closer proximity to one another, to facilitate more visitation and increased contact. Courtney and A.P. pointed out that the bonding study demonstrated that it would be detrimental to the siblings " if they were not permitted to be with each other." Courtney and A.P. noted that all the siblings deserved " an opportunity to continue their relationships in a more natural way."
The court granted evidentiary hearings on the two section 388 petitions. The court conducted the hearings immediately before the contested section 366.26 hearing, over a period of three days in June 2006.
Deborah testified that at one point, all five of her nieces had lived with her. While the children were living with her, Deborah did not observe any signs that they had been molested, and said that she did not know whether they had been. Deborah acknowledged, however, that molestation was an issue in her family Deborah had taken a class that had been approved by
Deborah testified that the children had a bonded relationship. The three younger siblings would run to the older ones at visits, as if they missed being with them. After Angel stopped coming to the visits because of her school schedule, Courtney and A.P. missed Angel. Deborah also said that there was a bond between the children and Katrina. The children recognized Katrina as their mother and called her " mom."
Betty Fincher, who attended the same church as Deborah, testified that she had seen Deborah with all of the children. Fincher said she was impressed by the " strong bond" between Deborah and the children. Fincher had also seen all of the sisters interact together and stated that they displayed a great deal of love for one another.
Dr. Kelin testified that the sisters had an " above average" bond, a six or seven on a scale of one to 10. Dr. Kelin said that it could be detrimental to the children if they were placed in separate homes and were not able to have contact with one another. The harm could be mediated if there was ongoing contact among them.
Dr. Kelin rated the bond between Katrina and her children as a six on a scale of one to 10. Dr. Kelin opined that the children would feel hurt if they were to lose contact with Katrina. The sisters were slightly more bonded with one another than they were with Katrina, but it " was fairly close." Dr. Kelin opined that if the children's relationship with the mother were severed, that would increase their need to maintain the sibling bond.
Social worker
Marla testified that she wanted to have all five children placed with her and that she was willing to adopt the three younger ones. Marla was trying to find a larger home that would accommodate all of the children. She said that she would be able to afford a larger home. Marla wanted to maintain the bond the children had with one another and said that she would do whatever was necessary to maintain that bond. When Courtney and A.P. were placed with her, the social worker at the time told her he would try to " integrate" the three younger siblings into her home. However, that social worker was replaced by
Courtney testified that the siblings had always had contact with one another. Before they were taken into protective custody, Courtney walked Angel to school, helped her with her homework, and taught her " what is good and what's wrong and not to talk to strangers and stuff." When Angel was little, she called Courtney " mommy." Courtney took her two youngest sisters to the park and played with them. She gave them baths, fed them and dressed them. Courtney knew the birthdates of all her siblings.
Courtney believed that the three younger children should live with her and A.P. because " nobody can give them the love like we can."
A.P. testified that she wanted to be reunited with her younger sisters. A.P. knew all of her siblings' birthdates. A.P. was the first person to hold A.W. after she was born.
The parties stipulated that if Angel were called as a witness, she would testify that she wanted to live with her mother and see all of her sisters.
The court denied Deborah's section 388 petition as well as Courtney and A.P.'s section 388 petition, finding that there was no change of circumstances and that it would be in the best interests of the three youngest sisters to remain in the homes of their current caregivers. The court said this was a " very difficult case," particularly because the family was so close. With respect to Deborah, the court continued to be concerned about the safety of the children, noting that Deborah had not been forthcoming about the familial sexual abuse. As a result, the court was not certain that Deborah would be able to protect the children.
With respect to Marla, the court noted that Marla had been more cooperative with Agency than Deborah, but stated that otherwise, there was no difference between the two aunts as to the protective issues. The court did not believe it was an ideal situation for Courtney and A.P. to live with Marla. The court observed that Agency probably " ben[t] over backwards" to agree to a placement that was not ideal because Courtney and A.P. were adamant about being with family, and, as teenagers, it would have been very difficult to find a good foster home for them. The court also noted that Courtney and A.P. were " old enough to protect themselves."
Relying on the evidence that the parties had presented with respect to the section 388 petitions, the court heard argument by counsel as to the issues in the section 366.26 hearing. Katrina's counsel argued that the section 366.26, subdivisions (c)(1)(A) and (c)(1)(E) exceptions to adoption applied. The court found that it was likely that Angel, Alexandria and A.W. would be adopted, and that none of the statutory exceptions to adoption applied. The court terminated Katrina's parental rights to Angel, Alexandria and A.W., and designated their caregivers as prospective adoptive parents.
The court found that Courtney and A.P. did not want to be adopted and selected another planned permanent living arrangement with Marla as their permanent plan.
DISCUSSION
I. The Section 388 Petitions
Deborah and the two oldest children (Courtney and A.P.) contend that the juvenile court erred by denying their respective section 388 petitions.
Under section 388, a parent, another person having an interest in a dependent child, or the child herself may petition the court to change, modify, or set aside a previous court order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petition shall set forth why the requested modification is in the best interests of the dependent child. (§ 388, subd. (b)(4).)
The petitioner bears the burden of showing both that a change of circumstances exists and that the proposed change is in the child's best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court may consider the entire factual and procedural history of the case in considering a section 388 petition. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
Rulings on section 388 motions are reviewed for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Although the abuse of discretion standard allows the trial court substantial latitude, " '[t]he scope of discretion always resides in the particular law being applied, i.e., in the " legal principles governing the subject of [the] action . . . ." ' [Citations.] 'Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an " abuse" of discretion.' " (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1536.)
With respect to challenged factual findings, we will affirm " 'if there is any substantial evidence to support the trial court's findings,' i.e., 'if the evidence is reasonable, credible and of solid value ¾ such that a reasonable trier of fact could find that termination of parental rights is appropriate based on clear and convincing evidence.' " (In re Baby Girl M., supra, 135 Cal.App.4th at p. 1536.)
A. Deborah's Petition
Deborah alleged the following as changed circumstances or new evidence: (1) she had taken parenting classes that addressed how to deal with sexual abuse and had become better informed as to the family history of sexual abuse by discussing the matter with family members; (2) she had demonstrated her " genuine interest in and concern for" the children by regularly visiting them and appearing at court hearings; and (3) she had shown more cooperation with the social workers and had done everything they had asked her to do.
Deborah's interest in the children, as shown by her regular visitation and court appearances, was not a changed circumstance or new evidence. Deborah's interest in the children was never in dispute; she had been regularly visiting them and appearing in court from the beginning of the case. The other two alleged changed circumstances ¾ taking a parenting class to learn how to protect children from child molestation and familiarizing herself with the family history, and becoming more cooperative with Agency ¾ would appear to qualify as changed circumstances within the meaning of section 388. However, these allegations were hotly contested. Agency did not view Deborah's participation in the parenting classes or in individual therapy sessions as adequately addressing the molestation issues. In Agency's view, the classes and therapy sessions were an unsatisfactory substitute for the Safe Path program. Agency also believed that Deborah continued to lack insight about the family dynamic of multi-generational sexual abuse. Further, the social workers did not consider Deborah to have been cooperative and to have done everything they asked her to do.
As the trier of fact, the juvenile court's role is to assess the credibility of the various witnesses and to weigh the evidence to resolve conflicts in the evidence. (In re Casey D., supra, 70 Cal.App.4th at p. 52.) It is not within our purview as an appellate court " to judge the effect or value of the evidence, to [re]weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence." (Id. at pp. 52-53.)
There was substantial evidence to support the trial court's determination that there was no change of circumstance or new evidence sufficient to justify granting Deborah's section 388 petition. We thus cannot say that the court abused its discretion in finding that Deborah had not met the first prong of section 388.
Further, to prevail, Deborah would have had to satisfy the second prong of section 388 ¾ showing that granting her petition would be in the children's best interests. (In re Casey D., supra, 70 Cal.App.4th at p. 48.) Deborah failed to do so.
Once reunification services are terminated, it becomes more difficult to meet the second prong of section 388 because the focus has shifted to the child's need for stability and permanency. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In her petition, Deborah alleged that it would be in the best interests of the two younger children to be placed with her because she had been their primary caregiver before the dependency proceedings began and had established a stable life with them. By the time of the section 388 hearing, however, Alexandria and A.W. had not been in Deborah's care for 23 months.
The protection and safety of children is the juvenile court's paramount goal in a dependency proceeding (§ 202, subd. (a); In re Malinda S. (1990) 51 Cal.3d 368, 384), and the court in this case was concerned about Deborah's ability to protect the children. The court heard Deborah testify twice ¾ in 2004 and 2006¾ and found that she had not taken sufficient steps to alleviate the court's concerns about her ability to protect the children from family molestation. The evidence concerning whether Deborah had taken adequate steps to improve her ability to protect the children was conflicting. On the one hand, Deborah testified that she had made herself aware of the family's history of inter-generational molestation and had taken a
Our review of the record shows that there was substantial evidence to support the juvenile court's finding that Deborah had not demonstrated that she would adequately protect the children from familial molestation, in that she continued to minimize the family's history. The court did not abuse its discretion in finding that the best interests of Angel, Alexandria and A.W., who were too young to protect themselves, would not be served by placing them with Deborah.
The juvenile court did not err in denying Deborah's section 388 petition.
B. Courtney and A.P.'s Petition
For reasons stated above, we conclude that the court did not err in denying Courtney and A.P.'s section 388 petition as to placement of all five children in Deborah's home. However, as we explain below, the court did abuse it discretion in denying the older girls' petition with respect to placement of all five children in Marla's home.
The evidence presented at trial clearly established that the five sisters were closely bonded to one another. The Legislature has repeatedly recognized the importance of maintaining sibling relationships. (See section 358.1, 361.2, 362.1, 366.3, 366.26, subd. (c)(1)(E), 388, subd. (b); 16002, subd. (a).)
" ' " [W]hen children have been separated from their parents due to abuse and neglect, sibling relationships become even more important to them. Academics and children's advocates agree that maintaining sibling relationships can be critically important to the emotional well-being of these children whose lives and trust has been shattered. . . ." ' " (In re Erik P. (2002) 104 Cal.App.4th 395, 404, quoting Assem. Floor Analysis, 3rd reading of Assem. Bill No. 705 (2000-2001 Reg. Sess.) as amended
A state Senate analysis of Assembly Bill No. 705 (2000-2001 Reg. Sess.) as later amended, noted:
" ' " Maintaining sibling relationships is particularly important to children who have already lost their homes, their parents, changed schools and lost contact with their friends. Siblings are the only family, the last link to normalcy, that these children have left. . . ." ' " (Ibid., quoting Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 705 (2000-2001 Reg. Sess.) as amended
The law generally prefers that dependent children be placed with relatives to maintain familial ties. (See In re Baby Girl D. (1989) 208 Cal.App.3d 1489, 1493.) Courts have stated that it is important to accord relatives a " fair chance" to obtain custody. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033). In this case, as social worker
Courtney and A.P.'s petition met the first prong of section 388 ¾ change of circumstances or new evidence. Dr. Kelin's bonding study constituted new evidence documenting the strong sibling bond. Marla's availability as a possible placement for all five sisters was also a change of circumstance.
With respect to the best interests prong of section 388 ¾ contrary to the court's comments ¾ there was no evidence that Marla would not adequately protect the children. From the beginning of her involvement in these proceedings, Marla had been open and cooperative with Agency about the family's history of molestation, and showed a good understanding of the risk issues. As social worker
During the seven months that Courtney and A.P. were placed with Marla, she provided them with a safe home. The placement of the two oldest sisters with Marla had been successful.[10] The social worker indicated that there were " no concerns regarding [Marla's] parenting skills or capacity . . . to meet the children's needs."
Marla was committed to all of her nieces and was willing to adopt all of them if it was in their best interests to do so. She was looking for a larger home that would accommodate all of the children. In addition, Marla had complied with Agency's instructions not to allow her father to live with her while the children were placed in her home. Unlike Deborah, Marla had not been evaluated for placement by Agency and found wanting.
The court denied Courtney and A.P.'s request that all five sisters be placed together with Marla, finding that Marla was not capable of protecting the three younger sisters. We conclude that the court abused its discretion in reaching this conclusion because there was no evidence to support its finding. The court appears to have grouped Marla with the other maternal relatives in terms of risk, without factual support. This was arbitrary, and ultimately, unfair. The evidence presented simply does not support a reasonable inference that Marla would be an inappropriate caregiver for the children.
In dealing with the possible placement of the three younger children with Marla, both the Agency and the court failed to give sufficient weight to the Legislature's direction that sibling bonds be maintained whenever possible. Moreover, as this case was litigated, the Agency portrayed the placement choice for the three younger children as a choice between the stability of adoption by their current caregivers and maintaining the sibling bond among the children. This approach entirely missed the mark in this case. This should not have been an " either or" case ¾ with the choice of maintaining the sibling bond weighed against the stability of adoption in the current caregivers' homes, because those were not necessarily the only choices the court had. Marla had come forward and had unequivocally stated her willingness to adopt all five children. She made it clear that she could afford a larger home and that she was willing to move if she were granted custody of all five children. Up to that point, Agency had expressed no qualms about the children's safety in Marla's home. Placement in Marla's home thus offered the possibility not only of maintaining the sibling bonds among all five children, but also the stability of adoption, if Marla were approved as an adoptive parent. Achieving both the stability of adoption and maintaining the sibling bonds would have been, as the Agency stated, " ideal."
In light of the strong legislative direction to maintain sibling relationships, and the lack of evidence supporting the juvenile court's finding that Marla would not protect the younger children, we conclude that the court erred in denying Courtney and A.P.'s section 388 petition insofar as they requested placement with their younger sisters in Marla's home. On remand the court shall order Agency to conduct an evaluation of Marla's home, and revisit the possibility of placing all five children with Marla.
We acknowledge that on remand, the juvenile court is without authority to select Marla as an adoptive parent for Angel, Alexandria and A.W. even if it finds Marla would be a suitable placement. Once a dependent child is freed for adoption, Agency has exclusive care and control of the child. (§ 366.26, subd. (j); In re Harry N. (2001) 93 Cal.App.4th 1378, 1397.) Therefore, if the court finds Marla to be an appropriate placement under the section 388 standard, the court shall not remove Angel, Alexandria and A.W. from their current placements and place them with Marla unless Agency indicates that it will consider Marla for adoption. Otherwise, placing Angel, Alexandria and A.W. with Marla would necessarily be only temporary and would result in their being unnecessarily shuffled between placements. We note that if Marla is found suitable for placement, choosing her as the adoptive home for the three younger children would be in accord with the Legislature's directive to preserve sibling relationships.
II. Statutory Exceptions to Adoption[11]
Katrina contends that the juvenile court erred by not applying the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(A)) and/or the sibling relationship exception to adoption (§ 366.26, subd. (c)(1)(E)). [12] The contention is without merit.
Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the selection and implementation hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless one of the five statutory exception applies. (§ 366.26, subd. (c)(1)(A)-(E).) The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; § 366.26, subd. (c)(1).)
We review the court's finding as to whether a statutory exception to adoption applies by determining whether there is substantial evidence to support the finding. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
A. Beneficial Parent-Child Relationship
Section 366.26, subdivision (c)(1)(A) provides that once the court finds the child is likely to be adopted, the court shall not terminate parental rights if it finds termination would be detrimental to the child because " [t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Italics added.) The exception applies only if both prongs are met.
The record contains substantial evidence that Katrina did not maintain regular visitation and contact with the children, and thus, that she did not meet the first prong of section 366.26, subdivision (c)(1)(A). Moreover, even if Katrina had met the first prong, she cannot not prevail because she did not meet the second prong of the statute ¾ showing that the children would benefit from continuing the relationship.
In In re Autumn H., supra, 27 Cal.App.4th at page 575, this court explained that to come within the beneficial relationship exception to adoption, a parent must show that the " relationship 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." (Italics added.) The court must balance " the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) In balancing these interests, relevant factors include " [t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Id. at p. 576.) Further, the parent must show the benefit arises from a parental relationship rather than that of a caregiver or friendly visitor. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420 [exception does not apply when a parent " has frequent contact with [dependent child] but does not stand in a parental role to the child" ].) We affirmed this balancing test, explaining that the standard " reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist . . . ." (In re Casey D., supra, 70 Cal.App.4th at p. 51, italics added.)
Even before the dependency proceedings began, Katrina regularly left the children with relatives ¾ with whom she sometimes " crashed" as well ¾ while she followed her lifestyle of drug abuse and homelessness. By the time of the contested section 366.26 hearing, the children had been out of Katrina's legal custody for 23 months. For the previous 15 months, Alexandria and A.W. had been thriving in the home of their caregivers, who wanted to adopt them. Angel was doing well and had shown improvement in school while living with her paternal half-sister, who wanted to adopt her. It was these caregivers ¾ not Katrina ¾ who provided the three youngest siblings with food, shelter, protection and guidance on a daily basis.
We acknowledge, as evidenced by Dr. Kelin's study, that a bond existed between Katrina and her three youngest daughters, who referred to her as " mom." But the relationship was not a parental one. It appears that it never was as to Alexandria and A.W., who had lived with Deborah for most of their lives before the dependency proceedings began. The record is less clear as to whether there was a prior parent-child relationship between Katrina and Angel, who was five years old when the children were taken into protective custody. In any event, for at least 23 months, it was the children's caregivers ¾ not Katrina ¾ who were the parental figures in their lives. Although the three youngest siblings recognized Katrina as their mother, she did not fill a parental role with respect to them within the meaning of section 366.26, subdivision (c)(1)(A).
Katrina also failed to meet her burden of showing that the benefits of continuing her legal relationship with the three younger children would outweigh the well-being the children would gain in a permanent adoptive home. Very young children like Alexandria and A.W. need a sense of permanence. Angel, too, needed permanence and stability after having lived in motels and having been shuffled from one maternal relative to another before the dependency. Although all three children enjoyed their visits with Katrina, the visits largely constituted playtime. Moreover, when Katrina visited the children with other relatives, she did not perform caregiver functions.
The court did not err in finding that the exception to adoption under section 366.26, subdivision (c)(1)(A) did not apply.
B. Sibling Relationship
Subdivision (c)(1)(E) of section 366.26, sets forth an exception to adoption, relating to the sibling relationships. " Thus, adoption shall now be ordered 'unless the court finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child' because '[t]here would be substantial interference with a child's sibling relationship . . . .' (§ 366.26, subd. (c)(1)(E).)" (In re Daniel H. (2002) 99 Cal.App.4th 804, 811.) Factors to be considered under this exception include the nature and extent of the relationship, whether the child was raised with a sibling in the same home, and whether the child has strong bonds with a sibling. (§ 366.26, subd. (c)(1)(E).) The court must also consider " 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." [13] (Ibid.)
Under section 366.26, subdivision (c)(1)(E), the court first determines whether terminating parental rights would substantially interfere with the sibling relationship. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952.) Only if the court concludes that adoption would result in a substantial interference with a sibling relationship does the court move on to the second step ¾ weighing the child's best interests in continuing the sibling relationship against the benefit the child would receive by the permanency of adoption. (Id. at p. 952.)
The purpose of this exception is to preserve long-standing sibling relationships that serve as " anchors for dependent children whose lives are in turmoil." (In re Erik P., supra, 104 Cal.App.4th at p. 404.) The sibling relationship exception contains " strong language creating a heavy burden for the party opposing adoption." (In re Daniel H., supra, 99 Cal.App.4th at p. 813.) It focuses exclusively on the benefits and burdens to the child being considered for adoption, not the other siblings. (Ibid.; see also In re Celine R. (2003) 31 Cal.4th 45.) Thus, the effect on Courtney and A.P. of losing their sibling bond with Angel, Alexandria and A.W. if the three younger sisters were adopted is not at issue.
There was an abundance of evidence that the children were bonded with one another. Except for two brief periods, Alexandria and A.W. had lived together since they were born; there is no dispute that they should not be separated. Alexandria and A.W. also were bonded to the three oldest children, who lived with them after they were born ¾ 16 months with Alexandria and six months with A.W. After they were separated from their older sisters, the two younger children were always excited to see their older sisters and were delighted with the attention they received from them.
With respect to Angel, she was bonded with all four of her sisters, having lived with her two older sisters for almost six years. Angel greatly enjoyed seeing them, as well her two younger sisters. The parties stipulated that Angel wanted to continue to see all of her sisters.
There was substantial evidence that adoption by the three younger children's current caregivers would substantially interfere with the sibling bond that Angel and the two youngest sisters had with Courtney and A.P. During the latter part of the dependency, both Angel's caregiver and the caregiver for the two youngest children indicated that they did not want to facilitate contact among the siblings ¾ largely because of demands and accusations allegedly made by the maternal relatives.[14] Notwithstanding the court's expressed desire that all five children continue to have contact with one another, and that the caregivers not continue to oppose sibling visits, t
