In re Jennifer V.

Filed 10/26/06 In re Jennifer V. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 CALIFORNIA

APPEAL from judgments of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed.

Marisela V. and Elias V. appeal judgments of the juvenile court terminating parental rights to their children, Jennifer V. and Maximilian V. under Welfare and Institutions Code section 366.26. (All statutory references are to the Welfare and Institutions Code.) Elias V. also appeals a judgment terminating his parental rights to his child, Cecilia V. We affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

Marisela and Elias (together, the parents) lived together with their two children, Jennifer, born in December 2002, and Maximilian (Max), born in March 2004. Elias is also the father of Cecilia. In May 2004, when Cecilia was eight years old, she joined parents' household after her mother died.

In September 2004 the San Diego County Health and Human Services Agency (Agency) filed petitions under section 300, subdivision (b), alleging Marisela physically abused Cecilia, giving her a black eye and numerous other contusions, and her father failed to protect her from harm. The Agency also filed petitions under section 300, subdivision (j), alleging Jennifer and Max were at substantial risk of harm due to their mother's physical abuse of Cecilia.

The parents submitted to jurisdiction and to recommendations for the children's out-of home placement. Cecilia was placed with her paternal grandmother, and the younger children were initially placed together in foster care, and then with their maternal grandmother. The court ordered sibling visitation and provided supervised visitation and reunification services to the parents.

During the 12-month reunification period, the parents did not make substantial progress with their case plans. Despite positive interim reports concerning his participation in a domestic violence program, Elias was arrested and incarcerated for domestic violence in August 2005. He did not attend conjoint therapy with Cecilia because he denied Marisela had abused her. Marisela was diagnosed with major depressive disorder, posttraumatic stress disorder, and a delusional disorder. Although she initially participated in services, by April 2005, she stopped attending therapy, tested positive for drug use, did not comply with SARMS, attempted suicide, and refused to enter a rehabilitation program.

In September 2005 the Agency filed a petition to remove Jennifer and Max from their maternal grandmother's care. The Agency discovered the parents had been living together for one month and had taken Jennifer and Max from their grandmother's home for several weeks. The court placed Jennifer and Max in foster care. In November the court terminated family reunification services and referred the cases to a permanency plan hearing under section 366.26.

A combined hearing under section 366.26 hearing and section 388 was held in April 2006. The Agency recommended a plan of adoption for each child. Elias sought return of all three children to his care. He asserted that termination of parental rights would be detrimental to Cecilia because of their beneficial parent-child relationship and because of her close sibling bonds with Jennifer and Max. Marisela requested custody of Jennifer and Maximilian under a family maintenance plan, asserting she had a beneficial relationship with her children.

The social worker opined it would be detrimental to Cecilia were she not to have contact with Max and Jennifer, but their foster parents were willing to facilitate sibling visitation. Termination of parental rights would be slightly detrimental to 10-year-old Cecilia; however, any detriment would be outweighed by Cecilia's adoption by her paternal grandmother, to whom she was deeply attached.

In the social worker's assessment, Jennifer and Max did not have a beneficial relationship with Elias or Marisela. Three-year-old Jennifer recognized her father, but was reticent to interact with him. Two-year-old Max would not initiate physical contact with his father. Jennifer had an "ambivalent" relationship with her mother and their visits often distressed her. Max had fun playing with his mother and saw her as a playmate.

The court found that Max and Jennifer were removed from their parents at a very young age and had not developed a strong bond with either parent. The court observed that Cecilia loved her father, but their bond was not sufficiently strong to overcome her need for stability. The court believed the issue whether Cecilia would suffer serious detriment were she to lose contact with her siblings was a "closer call." However, Cecilia clearly preferred to be adopted by her paternal grandmother, and her siblings' prospective adoptive parents were willing to facilitate visitation. The court found by clear and convincing evidence the children were adoptable, and no exceptions to termination of parental rights under section 366.26, subdivision (c)(1) applied. The court terminated parental rights.

MOTIONS ON APPEAL

On August 21, 2006, Elias filed a motion to strike postjudgment information contained in the minors' letter brief. He asserts that the letter brief does not follow guidelines for representing a child on appeal and contains inadmissible postjudgment information barred by In re Zeth S. (2003) 31 Cal.4th 396, 405. Marisela joins father's motion. On August 28, this court ordered the motion to be considered with the appeal.

In determining on appeal whether substantial evidence supports the juvenile court's judgments terminating parental rights, we did not consider the postjudgment information presented in minors' letter brief and need not resolve the issues raised in father's motion to strike.

DISCUSSION

A

Marisela asserts there is insufficient evidence to support the court's finding that the beneficial parent-children relationship exception did not apply to preclude termination of her parental rights to Jennifer and Max. (See § 366.26, subd. (c)(1)(A).) Elias contends the court's findings that the children's adoption would not substantially interfere with the sibling relationships, and Cecilia would not suffer serious detriment from termination of parental rights, are not supported by substantial evidence. (See § 366.26, subd. (c)(1)(E).)

At the permanency plan selection and implementation hearing under section 366.26, the court may order one of three alternatives -- adoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) However, if a child is adoptable, there is a strong preference for adoption over the alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.)

Once the court determines a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) We must affirm a trial court's rejection of these exceptions if the ruling is supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Zachary G., supra, 77 Cal.App.4th at p. 809.)

We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The party challenging the ruling bears the burden of showing there is insufficient evidence to support the ruling. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

B

Marisela asserts she maintained her established parental relationship with Jennifer through regular visitation during the dependency proceedings. Although Max was removed from her care when he was an infant, Marisela contends he delighted in seeing her and they had a beneficial relationship. Marisela states she demonstrated a clear bond and love for her children, and any inference she was no more than a friendly visitor or playmate to her children was not reasonable. She maintains she nurtured the children's strong emotional attachments to her within the limitations imposed by visitation, and continuing maternal contact and visitation would confer significant, but intangible, benefits on the children.

Elias joins Marisela's argument and asserts in the event her appeal is successful, reversal of the court's judgments terminating his parental rights to Jennifer and Max is also required. (See Cal. Rules of Court, rule 1463; In re DeJohn B. (2000) 84 Cal.App.4th 100.)

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 child and the child would benefit from continuing the relationship." We recognize that interaction between parent and child will usually confer some incidental benefit to the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) However, 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. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

In applying the beneficial parent-child relationship exception to termination of parental rights, 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. 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.)

Here, substantial evidence supports the court's findings that Jennifer and Max did not have a beneficial relationship with their mother. At the time the children were removed from parental custody, Jennifer was 21 months old, and Max was only six months old. By the time of the section 366.26 hearing, the children had been out of parental custody for 18 months, and did not look to Marisela to meet their needs. Marisela suffered from a mood disorder, and had difficulties with impulse control and a lack of coping mechanisms. She hit, punched, and slapped Cecilia with objects and with her hand, and she was physically aggressive with other family members. She disappeared with Jennifer and Max for several weeks, their whereabouts unknown. During the time the children were in her care, she attempted suicide and was hospitalized for psychiatric treatment.

The social worker opined, in general, visits with Marisela were traumatic for the children. The children, especially Jennifer, threw tantrums and screamed during the visits. Marisela had difficulty managing the children's behaviors and the children remained upset for days after visits. The social worker terminated one visit because Jennifer was in "emotional distress" and Marisela could not console her. In March 2006 Jennifer stated her mother had pulled her hair, and scratched and hit her, after Jennifer had a toileting accident.

The social worker observed that the children were bonded to the foster parents, who were also the children's prospective adoptive parents. Max was especially close with his foster father.

The record in this case contains ample evidence to support the court's findings that Marisela did not have a beneficial parent-child relationship with either Jennifer or Max, and the benefits of adoption outweighed any tangible or intangible benefit to the children from continuing the attenuated parental relationship. The court did not err when it found that section 366.26, subdivision (c)(1)(A) did not apply to preclude termination of Marisela's parental rights.

C

Elias contends that terminating parental rights would substantially interfere with the existing sibling relationships and Cecilia would benefit more from maintaining her relationships with her siblings than she would from adoption. He asserts the court erred when it implicitly recognized that the sibling relationship benefited Cecilia but did not apply section 366.26, subdivision (c)(1)(E) to ensure the continuation of the sibling relationships.

The exception to termination of parental rights under section 366.26, subdivision (c)(1)(E) applies when "there would be a 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."

Here, the social worker posited that a lack of contact with Jennifer and Max would be detrimental to Cecilia, implying the bonds Cecilia had with her siblings were significant. The juvenile court recognized this bond but determined Cecilia's adoption would not substantially interfere with her sibling relationships, and thefore concluded that adoption was in her best interests.

Elias argues that 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 determination that the sibling relationship exception applied to preclude termination of parental rights. Unlike the foster parent in Naomi P., who did not recognize the importance of the sibling relationship and was ambivalent about continuing sibling contact (id. at p. 824), here, the foster parents were willing to facilitate Jennifer's and Max's visitation with Cecilia. The social worker discussed the issue of ongoing sibling visitation with the foster parents "[f]rom the very beginning," and the foster parents made plans for Cecilia to join them at their home to swim with her siblings, and to stay overnight and visit on the weekends. Further, the foster parents stipulated that they would be interested in adopting Cecilia should anything happen to her grandmother.

Neither Elias nor Marisela contend on appeal that the sibling relationship exception under section 366.26, subdivision (c)(1)(E) applies to Jennifer and Max. The decision to allow Max and Jennifer to maintain contact with Cecilia will rest with their adoptive parents. The selection and implementation of an alternative permanency plan for Cecilia does not inherently affect the ability of the siblings' adoptive parents to facilitate sibling visitation, or alter the juvenile court's authority under section 366.29, subdivision (a) to include, with the consent of the adoptive parents, provisions for postadoptive sibling contact in Jennifer's and Max's final adoptive order. Because of the circumstances of the siblings in this case, choosing a permanency plan for Cecilia other than adoption does not assure a continuation of the sibling relationships. Conversely, Cecilia's adoption does not necessarily mean that she will lose contact with Max and Jennifer.

Cecilia expressed her strong preference to be adopted by her paternal grandmother. She also wanted to continue to see her brother and sister. Cecilia was willing to accept Jennifer's and Max's adoption by another family as "long as they were happy." The record supports the reasonable inference that, on balance, Cecilia's relationship with her paternal grandmother and her need for permanency and stability were more important to her than was maintaining close relationships with her siblings. Substantial evidence supports the court's determination that Cecilia's adoption would not substantially interfere with her sibling relationships and, to the extent it did, Cecilia's best

interests, including her long-term emotional interest, were better served by adoption than by a continuation of the sibling relationships. (§ 366.26, subd. (c)(1)(A).)

DISPOSITION

The judgments are affirmed.

McINTYRE, J.

WE CONCUR:

McDONALD, Acting P. J.

AARON, J.

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