In re Cynthia E.
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 ONE
STATE OF
In re CYNTHIA E. et al., Persons Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. IRENE M., Defendant and Appellant, CYNTHIA E. et al., Minors and Appellants. | D048610 (Super. |
APPEALS from judgments and orders of the Superior Court of San Diego County, William E. Lehnhardt, Judge. (Retired Judge of the Imperial Sup.
Irene M. is the mother of A.E., Cynthia E., Michelle R., G.R., and Carlos R. Irene and Michelle appeal from orders denying their petitions for modification under Welfare and Institutions Code section 388[1] and from judgments terminating parental rights to G.R. and Carlos under section 366.26. Cynthia appeals the judgments terminating parental rights. We affirm the orders and judgments.
OVERVIEW
In considering the appropriate permanency plans for four of the five children in this dependency matter, the juvenile court was required to resolve a number of competing interests. Although the children shared a strong sibling bond, their ages, needs, preferences and interests varied, as did the strength of each child's relationship with his or her mother. Further, the children's different legal rights with respect to the selection of a permanency plan added another level of complexity.
When dependency proceedings began in November 2002, the youngest child was barely two years old, his brother was five, and their sisters were ages nine and 11. By the time of the permanency planning hearing in April 2006, the sisters were ages 13 and 15 (and thus legally entitled to reject adoption as a permanent plan), and the boys were eight and five years old. Their mother had been unable to resolve the risk factors in the home during the reunification period. Permanent placement options for the sibling group within
When selecting and implementing the children's permanency plans, the court respected the girls' preference to remain in San Diego, while at the same time it determined that adoption was in the boys' best interest, even if it necessitated separating the brothers and sisters. We conclude substantial evidence supports the findings and orders of the court. The court properly considered the children's competing interests and acted within the limits of legal discretion.
FACTUAL AND PROCEDURAL BACKGROUND
Irene (mother) is the parent of three girls, A.E.,[2] Cynthia, and Michelle, and two boys, G.R. and Carlos. In November 2002, the Agency removed all five children from their mother's care.[3] In petitions filed under section 300, subdivision (b), the Agency alleged that mother left Cynthia, Michelle, G.R., and Carlos (collectively, the children)[4] with their then 14-year-old sister, A.E., who was mentally ill and had attempted suicide in the presence of her siblings. The family had prior child abuse referrals dating back to 1992 for general neglect, physical abuse, domestic violence, and parental absence.
Mother submitted to jurisdiction and the court removed the children from parental custody. The children were placed together in foster care. The Agency offered mother family reunification services including individual therapy and domestic violence and parenting programs. The children received counseling and other services, as needed. Services continued throughout an 18-month reunification period; however, mother made only minimal progress in mitigating safety risks to the children. In June 2004, the court terminated reunification services. The history of the reunification process and the referral to a permanency plan hearing under section 366.26 are detailed in our nonpublished opinion Irene M. v. Superior Court, D044529, filed
In its initial permanency plan assessment, completed in October 2004, the Agency recommended a plan of adoption for the children but acknowledged that it had not yet found a prospective adoptive family willing to adopt the children as a sibling group. In November, at mother's request, the court continued the proceedings to allow time to obtain a bonding study of the relationships between each child and mother. In January and February 2005, the permanency plan hearing was delayed due to conflicts of interest by minors' counsel. The permanency plan hearing began on March 15. However, after one day of testimony, the court declared a mistrial when the attorney representing Michelle, G.R., and Carlos declared a conflict of interest. The court then appointed separate counsel for each child.
Throughout the delayed proceedings, the Agency continued to search for a prospective adoptive family willing to adopt all four children in the event parental rights were terminated. The social worker expanded the search to other states, with apparent success. In late May 2005, a prospective adoptive family from
After the children returned from
In February 2006, the Agency changed its permanency plan recommendations for Cynthia and Michelle from adoption to long-term foster care. The Agency continued to recommend a plan of adoption for G.R. and Carlos. The court ordered bonding studies of the relationships between G.R. and Carlos and their mother, and an evaluation of the sibling relationships.
In March 2006, mother filed a petition for modification under section 388, subdivision (a) in which she asked the court to return the children to her care and to vacate the section 366.26 hearing.[5] She alleged she completed a domestic violence program, was employed full-time, resided in a home with sufficient room for all the children, and had regular, appropriate visitation with her children, including unsupervised overnight visits with A.E. In support of her petition, she cited the December 2004 bonding study in which Psychologist Raymond Murphy, concluded that the children had a significant relationship with her, and Michelle and G.R. clearly wanted to return to her care.
Michelle filed a petition for modification under section 388, subdivision (b) asking the court to place her and her brothers in the custody of their mother. She cited the April 2006 bonding study between her brothers and mother in which Psychologist Julio Armenta concluded that " a permanent separation from their biological mother may create intense emotional distress [for G.R. and Carlos] and the mother." On
At the hearing, 15-year-old Cynthia testified she did not want to live with her mother. She described a close relationship with her brothers and did not want them to be adopted by the
Michelle, then 13 years old, testified she had a close relationship with her brothers. She would be sad were she separated from them. However, she would prefer to live with her mother rather than move to
G.R., then age eight, missed his mother and wanted to live with her. G.R. wanted to be adopted by the family in
Carlos, then age five, did not testify. In the report prepared for the section 366.26 hearing, the social worker reported that both Carlos and G.R. recently expressed a desire to live with the
Mother testified the children were removed from her custody because she left them alone. She was now employed, remarried, and had room in her home for all the children. She complied with case plan requirements and believed she deserved a second chance. During visits, the boys sat on her lap, hugged her, and told her they wanted to come home.
According to the social worker monitoring visitation between mother and the children, the children enjoyed visiting their mother. Mother was attentive to and affectionate with each child. Carlos liked to stay close to his mother during visits and G.R. usually brought her a little gift. Michelle enjoyed weekly unsupervised visits with her mother.
Dr. Armenta testified G.R. and Carlos would be distraught if their relationship with their mother was terminated. In his report, he stated the " severity of the boys' stress reaction will depend to a significant extent upon the understanding and tolerance of their future caretakers." Dr. Armenta concluded that " the stability and predictability that may be offered by adoption needs to also respect the stability of previously developed emotional relationships." He recommended frequent family contact to reduce the negative impact of any change in placement.
The parties stipulated that Dr. Heller opined the boys' move to
The adoptions social worker, Maria Gonzalez, was assigned the case in July 2004. She believed it was important for the children to stay together as a sibling unit. Although she identified nine out-of-state families willing to adopt the boys and foster the girls, she had not been able to locate an adoptive/foster family in San Diego. There were four prospective adoptive families in San Diego willing to adopt boys the same age as G.R. and Carlos, and allow continued contact with their sisters. However, the social workers for two San Diego families informed her that the families were not a good match for the children.
In January 2006, Gonzalez learned of a San Diego family looking to adopt boys the same ages as G.R. and Carlos. At that time, she did not pursue the San Diego family as a placement option because the children had an established relationship with the
Barbara Shustek, the supervising adoptions social worker, opined mother had not sufficiently improved her ability or understanding of how to protect the children and provide for their physical and emotional well-being. Mother had a history of problematic relationships with men, including a long-term marriage to a physically abusive husband and a relationship with a registered sex offender during the reunification period.
Further, Shustek believed mother minimized her role in allowing the conditions that led to the children's removal. She did not recognize that A.E.'s suicide attempts required professional attention. Instead, mother used her then 14-year-old daughter to care for the other children. As a result of her parental responsibilities, A.E. did not attend school regularly and became seriously depressed. The family's home was filthy. Mother's manner of coping with her problems had not changed. She relied on the children to meet her needs and her relationship with them was more like a sibling than a parent. Shustek opined that if the children returned to their mother's custody, A.E. would resume the role of caretaker, and the circumstances that led to the children's removal would remain unchanged.
Shustek acknowledged that mother's visits with the children were always positive. With the exception of several incidents involving Cynthia, mother interacted well with the children. Because of their ages, the girls would be at less risk if returned to her care; however, the boys were more dependent, and the risks to them from inadequate care and supervision were greater.
Shustek opined the relationship between G.R. and Carlos and their mother was not a beneficial parent-child relationship that would outweigh the benefits of adoption. She acknowledged that the sibling relationships were strong and positive for each child. The protracted proceedings were due to the Agency's efforts to keep the sibling group intact. Shustak had hoped to keep the children together but the boys needed a permanent placement. Shustek disagreed with the conclusions drawn by Dr. Armenta and Dr. Heller. Separation would upset the boys emotionally but not to the degree it would outweigh the benefits they would receive from a permanent, adoptive home.
The court determined mother did not meet her burden under section 388 to show changed circumstances, and a modification of the prior orders would not be in the best interests of the children. The court noted that Michelle's petition had some merit but determined it was not in her best interests to return to her mother's care. The court denied the petitions for modification.
The court found that Michelle objected to adoption and that she had a beneficial relationship with her mother. The court placed Michelle in foster care under a planned permanent living arrangement, expanded visitation between Michelle and mother, and granted the Agency the discretion to allow overnight visits. The court found that Cynthia objected to adoption and placed her in foster care under a planned permanent living arrangement.
The court found that G.R. and Carlos were adoptable and no exceptions under section 366.26, subdivision (c)(1) applied to preclude termination of parental rights. The court terminated parental rights and ordered a permanent plan of adoption for G.R. and Carlos.
DISCUSSION
Introduction
The parties make the following arguments:
I. Mother contends she was now able to provide the children with a safe and stable home. She asserts the juvenile court abused its discretion and infringed on her constitutional rights when it denied her petition for modification under section 388, subdivision (a). Michelle joins mother's argument and further contends the court erred when it denied her request to return to her mother's care under section 388, subdivision (b).
II. Cynthia, joined by Carlos, contends the court should have continued the proceedings to allow the Agency to search for a family in San Diego willing and able to adopt the boys and allow them to have frequent contact with their sisters. They argue the court abused its discretion and violated the children's constitutional interest in maintaining the sibling relationships when it denied the request to continue the section 366.26 hearing.
III. Mother, Cynthia and Michelle argue that maintaining the status quo -- the children's continued placement together in foster care -- would meet the children's needs for continued sibling and parental contact. They contend G.R. and Carlos would suffer substantial detriment upon termination of parental rights and loss of contact with their sisters and mother. Specifically, mother contends insufficient evidence supports the court's findings the beneficial parent-child relationship and the sibling relationship exceptions under section 366.26, subdivision (c)(1)(A) and (E) did not apply. Michelle asserts the court's findings under section 366.26, subdivision (c)(1)(E) are not supported by substantial evidence. Cynthia joins these arguments to the extent they inure to her benefit.
I
The Court Did Not Abuse Its Discretion When It Denied
The Petitions for Modification under Section 388
Mother contends the court violated her constitutional interests in a continued relationship with her children when it denied her petition seeking their return to her custody. She asserts the evidence shows she had a warm, affectionate bond with each child and the children wanted to live with each other, and with her. Mother argues the evidence shows she was in a stable, married relationship, and resided in a home with sufficient space for all the children, and A.E. and Michelle were likely to return to her care. Given this evidence, mother argues the juvenile court was obligated to make every effort to preserve the natural family in deference to her and the children's constitutional interests in due process, freedom of association and privacy.
Michelle contends the court arbitrarily denied her petition for modification under section 388, subdivision (b). She asserts the evidence shows she had a strong, positive bond with her mother that had remained intact throughout the dependency proceedings. Michelle contends the Agency did not present any evidence to show she would be at risk were she returned to her mother's care.
The Agency argues mother did not show her circumstances were changed and the proposed modification was in the best interests of the children. The Agency asserts that, because mother did not prevail on her petition for modification under section 388, the court acted within its discretion when it denied Michelle's request to return to maternal custody. In response to the constitutional issues raised in mother's appeal, the Agency criticizes the analytical framework used to evaluate the best interests of the child under section 388. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526-527 (Kimberly F.).)[7] The Agency suggests that after reunification services are terminated, a parent's interest in a continued relationship with his or her child is outweighed by the child's interest in permanency and stability.
Under section 388, subdivision (a), a parent, interested person, or the dependent child (generically, petitioner) may petition the court to change, modify, or set aside a previous order on the grounds of changed circumstances or new evidence. The petitioner requesting the modification has the burden to show by a preponderance of the evidence that there is a change of circumstances or new evidence, and that the proposed modification is in the child's best interest. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; rule 5.570(f).[8]
We review the grant or denial of a petition for modification under section 388 for abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) While the abuse of discretion standard gives 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. . . ." ' " (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 119, citing City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) The focus of a petition for modification under section 388, subdivision (a) is whether the petitioner has shown a legitimate change of circumstances.
Substantial evidence supports the court's finding mother did not meet her burden to show changed circumstances. The record shows that mother minimized her role in creating the fundamental problems that necessitated dependency proceedings. She abdicated her parental responsibilities to her eldest daughter and did not ensure the children received safe, adequate care in an environment free from domestic violence and emotional turmoil. Mother established a relationship with a convicted sexual offender and lied about it to her therapist. When confronted, she stopped therapy. She was deported after her live-in boyfriend was arrested for failing to register as a sexual offender. Mother presented no evidence to show she met the therapeutic goals identified during the reunification period. Thus the juvenile court could reasonably conclude that the problems that led to the children's dependency were not easily removed or ameliorated, and mother did not show that her subsequent efforts resolved the risks to the children's physical and emotional well-being. (See Kimberly F., supra, 56 Cal.App.4th at p. 532.)
Mother points to her " warm, affectionate, significant bond" with the children as evidence she was able to properly care for them and provide for their well-being. An affectionate bond with the children and the ability to provide them safe, consistent and adequate care are not commensurate. Social worker Shustek opined mother still did not understand the children's emotional needs or how to protect them. Mother's manner of coping with her problems had not changed. She relied on the children to meet her needs and her relationship with them was more like a sibling than a parent. During the 42-month dependency proceeding, mother did not establish a beneficial, nurturing relationship with Cynthia, who refused to return to her care. Shustek believed that were the children returned to parental custody, A.E. would resume the role of caretaker, and the circumstances that led to the children's removal would remain unchanged. We conclude that substantial evidence supports the court's finding that mother did not show a legitimate change of circumstances.
Mother's constitutional argument is based on the premise that she showed changed circumstances and resolved any risk to the children's safety and well-being in her custody. We reject the argument the court's denial of mother's petition for modification was " [s]ocial engineering . . . improperly disguised as an inquiry into the minor's best interests" and an " arbitrary determination by a governmental agent that one family is better for the minor than another."
It is elementary that a parent's interest in a continued relationship with his or her child is a fundamental interest entitled to constitutional protection. (Santosky v. Kramer (1982) 455 U.S. 745, 753-754; Stanley v. Illinois (1972) 405 U.S. 645, 658; In re B.G. (1974) 11 Cal.3d 679, 688.) To meet constitutional standards, the
Similarly, in view of the finding that mother did not show changed circumstances, the court acted within its discretion when it did not return Michelle to her mother's care.[9] Child custody determinations are committed to the sound discretion of the juvenile court and will not be disturbed on appeal unless an abuse of discretion is clearly established. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Here, the court recognized Michelle's preference, age, and growing ability to protect herself. It expanded Michelle's unsupervised visitation with her mother and authorized the Agency to allow overnight visits. The court did not abuse its discretion when it determined that, given mother's history and current circumstances, Michelle's best interests were served by a cautious, step-by-step approach to reunification rather than by an immediate return to parental custody.
II
The Court Did Not Abuse Its Discretion When It Did Not Continue
The Section 366.26 Hearing for a Second Time
Cynthia and Carlos contend the court erred when it refused to allow the Agency additional time to search for a family in San Diego willing to adopt the boys and allow frequent contact with their sisters. Cynthia and Carlos assert that the Agency stopped searching for a more suitable home four months before the continued permanency plan hearing was held in April 2006. They argue the court violated their constitutional interests in maintaining the sibling relationships when it denied the motion to continue the permanency plan hearing for 180 days.
The Agency asserts the court continued the permanency plan hearing in September 2005 to allow the social worker to search for a permanent home acceptable to all four children. The Agency contends it did everything possible during the 180-day continuance to locate a family willing to adopt the boys and satisfy Cynthia's and Michelle's requirements. It asserts the social workers exhausted " all recruitment efforts" for a prospective adoptive family and argues any further delay was not warranted.
Section 352, in general, governs continuances during dependency proceedings. This section provides that continuances shall be granted only on a showing of good cause and shall not be granted if it is contrary to the minor's best interests. " [T]he court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (§ 352, subd. (a).) Continuances are discouraged. (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242; In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
Section 366.26, subdivision (c)(3), provides a specific statutory ground for a continuance at the time of a permanency plan hearing. If a child is difficult to place for adoption[10] and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days. (§ 366.26, subd. (c)(3).) We reverse an order denying a continuance only on a showing of an abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)
Given the constraints of section 366.26, subdivision (c)(3) and the length of the proceedings in this case, the court had limited discretion, if any, to continue the permanency plan hearing a second time for an extended period. The statute expressly restricts the court's authority to postpone a permanency plan hearing to a maximum of 180 days. (§ 366.26, subd. (c)(3).) Further, there was an identified and available adoptive parent willing to adopt G.R. and Carlos, and allow them to have as much contact as possible with their sisters. (Ibid.) Thus, the court did not abuse its limited discretion when it denied the motion for a second continuance of the permanency plan hearing.
The record shows that the Agency made a determined effort until January 2006 to locate a home for the children that would meet each child's needs and requirements. Although Cynthia's argument the Agency should have continued its search efforts until the permanency plan hearing is not without merit, the record shows the social worker made a further inquiry with a San Diego family immediately before the hearing. Further, as social worker Gonzalez observed, a continued search meant " the children would continue to wait, who knows, more months, several years." The Agency repeatedly stated its preference to keep the sibling group together, or as close as possible. However, there was no guarantee the Agency would be able to locate within a reasonable time a more suitable situation for the children than the one offered by the
The record supports the reasonable inference that a continued search for a more ideal placement placed G.R. and Carlos at risk, both in terms of their future adoptability and their immediate needs for permanency and stability. The court did not abuse its discretion when it denied the motion for a second 180-day continuance of the permanency plan hearing.
Assuming arguendo the children had a constitutionally-protected right to a continued sibling relationship,[11] Cynthia cannot show the Agency impermissibly infringed on this right. The social worker worked diligently to locate a family willing to adopt the boys and either provide a home for the girls or allow frequent sibling contact. After a diligent search, the Agency identified prospective adoptive parents and introduced them to the children. While we do not fault Cynthia and Michelle for their reluctance to leave familiar surroundings and to adjust to a family whose culture and religion differed from their own, at the same time we believe the Agency met its obligations to protect the sibling interest when it offered the children the opportunity to live together in a safe, stable and permanent home.
III
The Court's Findings Under Section 366.26, Subdivisions
(c)(1)(A) and (c)(1)(E) Are Supported by Substantial Evidence
The purpose of the
If reunification efforts have failed and the child is adoptable, the court must select adoption unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under at least one of five statutory exceptions. (§ 366.26, subd. (c)(1)(A)-(E); see also In re Erik P. (2002) 104 Cal.App.4th 395, 401; In re Derek W. (1999) 73 Cal.App.4th 823, 826.) If an exception under section 366.26, subdivision (c)(1), applies to preclude termination of parental rights, " the court shall either order that the present caretakers or other appropriate persons shall become legal guardians of the child or order that the child remain in long-term foster care." (§ 366.26, subd. (c)(4)(A).)
A. The Beneficial Parent/Child Relationship Exception
Mother contends the court erred when it terminated parental rights. She asserts the finding she did not have a beneficial parent-child relationship with G.R. and Carlos was not supported by substantial evidence.
Section 366.26, subdivision (c)(1)(A), provides an exception to termination of parental rights when " [t]he parents . . . have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship." This court has recognized that interaction between parent and child will always confer some incidental benefit to the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W., supra, 73 Cal.4th at p. 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
In determining whether the exception applies, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. However, if severing the existing parental 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 parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
We review the trial court's findings for substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Substantial evidence must be reasonable in nature, credible and of solid value. (In re Laura F. (1983) 33 Cal.3d 826, 833.) We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. (In re Autumn H., supra, 27 Cal.App.4that p. 576.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Shustek opined the relationship between G.R. and Carlos and their mother was not a beneficial parent-child relationship that would outweigh the benefits of adoption. Mother interacted with the children more as a sibling than as a parent. She had not parented five-year old Carlos for more than three years. G.R. did not remember living with his mother. Both boys relied on their foster parents to meet their needs. Shustek believed the boys did not view their mother as their primary parental caregiver.
Shustek acknowledged that within the confines of supervised visitation, mother's relationship with the boys was warm and physically affectionate. However, the benefit of having a safe, stable family outweighed any benefit they would derive from occasional visitation with their mother. Between visits, the boys did not appear to miss their mother or ask to telephone her. Shustek believed G.R.'s statements that he wanted to live with his mother and he wanted to be adopted by the
We conclude that substantial evidence supports the court's finding that any benefit from continuing the attenuated parent-child relationships did not outweigh the benefit that G.R. and Carlos would find in a permanent home with a committed, responsible adult. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
B. The Sibling Relationship Exception to Termination of Parental Rights
Mother and Michelle contend insufficient evidence supports the court's finding that the sibling relationship exception to termination of parental rights did not apply.
Section 366.26, subdivision (c)(1)(E) applies to preclude termination of parental rights when " [t]here would be substantial interference with a child's sibling relationships, taking into consideration the nature and the extent of the relationship . . . , 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." (Ibid.)
Here, the Agency's social workers and the psychologists (collectively, professionals) evaluating the sibling relationship agreed the sibling relationships were strong. Although they disagreed about the extent of psychological harm that G.R. and Carlos would suffer as a result of being separated from their sisters, the professionals agreed the effects of separation could be mitigated by continued sibling contact and visitation. Dr. Armenta stated that the severity of the boys' reaction would depend on the understanding and tolerance of their prospective adoptive parents and their respect of the boys' " previously developed emotional relationships." Both he and Dr. Heller opined that frequent contact would reduce the negative impact of separation. The Agency was willing to " work through [contact] issues," and to request funding to allow the girls to visit their brothers in
The boys' prospective adoptive parents planned to facilitate sibling visitation in San Diego and
Mother and Michelle argue this case is similar to In re Naomi P. (2005) 132 Cal.App.4th 808 (Naomi P.), in which the Court of Appeal upheld the trial court's finding that the sibling relationship exception applied to preclude termination of parental rights. We do not believe Naomi P. applies here. In that case, the foster parent did not recognize the importance of the sibling relationship and was ambivalent about allowing continued sibling contact. (Id. at p. 824.) Here, as discussed above, not only were the prospective adoptive parents willing to facilitate sibling contact, they continued to offer the girls a home under a permanency plan of the girls' choosing. In addition, there was no impediment to frequent, even daily, telephonic or written communications among the siblings.
Thus the issue before the court was whether preserving the boys' daily (or providing frequent) physical contact with their sisters outweighed the boys' long-term interest in the benefit of legal permanence through adoption. (§ 366.26, subd. (c)(1)(E).) Shustek opined G.R. and Carlos needed parents more than they needed their sisters. She believed the boys' primary sibling attachment was to each other. This was corroborated by Dr. Heller's observations that the girls interacted with each other and the boys interacted with each other, as two distinct sibling groups. Although Dr. Armenta believed the boys' move to
Although the children shared a strong sibling bond, there is substantial evidence to conclude that the benefits of legal permanence through adoption outweighed the boys' needs for frequent sibling contact. We conclude the court did not err when it found that section 366.26, subdivision (c)(1)(E) did not preclude termination of parental rights.
DISPOSITION
The orders and judgments are affirmed.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
McINTYRE, J.
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[1] Further statutory references are to the Welfare and Institutions Code.
[2] A.E.'s dependency case is not part of this appeal.
[3] Due to an extensive criminal history, including domestic violence and assault, the father of Michelle, G.R., and Carlos was initially restrained from coming within 100 yards of any family member. He participated in services for a short time after the 12-month review hearing. The Agency was unable to locate A.E.'s and Cynthia's father. Neither father is a party to this appeal.
[4] In this opinion, we also refer to G.R. and Carlos, together, as " boys" or " brothers," and to Cynthia and Michelle, together, as " girls" or " sisters."
[5] Mother also had filed a section 388 petition in May 2005.
[6] Cynthia's petition was filed after the combined section 388 and section 366.26 hearing began. The court made its determination on the record and did not grant a separate evidentiary hearing on her petition for modification.
[7] In Kimberly F., a division of this court stated that, in evaluating a petition for modification under section 388, the juvenile court should consider: " (1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (Kimberly F., supra, 56 Cal.App.4th at p. 532 [" While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion" ].)
[8] When the petitioner seeks a removal order from a parent or guardian or a more restrictive placement for a dependent child under section 388, the standard of proof is by clear and convincing evidence. (Rule 5.570(f).)
[9] Michelle's and Cynthia's petitions for modification were filed under section 388, subdivision (b). Section 388, subdivision (b) allows any person, including a dependent child, to petition the court to assert a sibling relationship and to request visitation, placement with or near the dependent child, consideration when determining or implementing a case plan or permanent plan, or any other request that may be shown to be in the best interest of the dependent child.
[10] A child may be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the child's membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more. (§ 366.26, subd. (c)(3).)
[11] We agree with Cynthia that the Legislature has emphasized the importance of maintaining dependent children's strong sibling relationships. However, she acknowledges that the United States Supreme Court has not addressed whether sibling relationships are entitled to constitutional protection under the First Amendment. (See Roberts v. United States Jaycees (1984) 468 U.S. 609 [addressing gender-based discrimination by members of a private organization asserting the right of freedom of association].) Further, Cynthia incorrectly asserts the court, in Moore v. East Cleveland (1977) 431
