In re J.F.
Filed 7/11/13 In re J.F. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re J.F., et al., Persons Coming Under the Juvenile
Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff
and Respondent,
v.
J.B.,
Defendant
and Appellant.
E057127
(Super.Ct.No.
RIJ113748)
OPINION
APPEAL
from the Superior Court
of
County. Jacqueline C.
Jackson, Judge. Affirmed.
Daniel
G. Rooney, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela
J. Walls, County Counsel,
and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
J.B.
appeals an order terminating her parental rights to her son, J.F., and freeing
the child for adoption. She contends
that the juvenile court abused its discretion when it failed to find the
“sibling relationship†exception to the statutory preference for adoption
applicable to J.F.
We
will affirm the judgment.
FACTUAL
AND PROCEDURAL HISTORY
name="_ftnref1" title="">
On
June 8, 2010, the
Services, Child Protective Services (CPS) filed a second amended juvenile
dependency petition alleging that J.B. (mother) had failed to protect her four
sons, D.P., J.F., I.G. and N.D. The
children were seven, six, four, and two at the time. The petition alleged that mother had an
extensive history of abuse of methamphetamine; that she was currently pregnant
and had tested positive for amphetamine and methamphetamine; that she had an
extensive history with CPS, with prior substantiated allegations of general
neglect and substance abuse; and that she had failed to benefit from prior
services. As to the alleged fathers of
D.P., J.F. and I.G., the petition alleged failure to support. As to the father of N.D., the petition
alleged that he had been provided services in the past and had failed to
benefit, in that he continued to neglect his child, and that he had an
extensive criminal history.
The
three older children had been made dependents of the juvenile court in 2007,
while N.D. had been a dependent from his birth in January 2008 to October
2008. Family reunification services were
offered to mother and to N.D.’s father, and the dependency as to N.D. was
terminated on October 8, 2008,
with joint legal custody for the parents and sole physical custody for
mother. Mother was ultimately able to
complete her case plan as to the older children, and that dependency was
terminated on December 31, 2009.
The
current proceeding commenced when mother, who was approximately five months
pregnant, came to a hospital with abdominal pain and spotting. She tested positive for methamphetamine and
amphetamine. I.G. was with her, and she
claimed he was her only child. She
claimed that his father had custody, and that I.G. was visiting her. CPS later determined that mother had been
living with her mother, with all four of her children.
N.D.
was placed with his father, and his dependency was later terminated with his
father being granted sole legal and physical custody. A dependency petition was filed after the
birth of mother’s fifth child, R.B.
Reunification services were terminated in that case at the sixth-month
review hearing.
The
three older boys were placed together in foster care. All three had behavioral and emotional problems,
including aggressiveness toward their siblings and other children. J.F. “appear[ed] to have difficulty
understanding that violence is inappropriate.â€
As a result of the children’s behavior, their original caregivers asked
that they be removed from the home. They
were placed together in a new home.
There, they continued to have behavioral problems, such as being
physically aggressive with each other and with the caregivers and being
defiant. Nevertheless, CPS believed that
they were adjusting well to the new caregivers.
An
aunt who was being assessed as a possible placement reported that she was no
longer interested, and the children’s grandmother was not suitable in that she
had an adult living in the home with an extensive criminal history, which could
not be exempted. There were no other
relatives known to CPS who were interested in being assessed for placement.
In
March 2011, D.P. was moved to a new placement separate from his brothers. J.F. and I.G. were also moved to a new
placement. The previous caregiver
requested the change in placement because of the children’s behavioral problems
and because she had difficulty in dealing with mother. The children continued to have contact with
one another. They continued to be
aggressive, although they were once again described as adjusting well to their
new caregivers. At the end of March,
I.G. was removed from that placement and placed separately from J.F. because of
I.G.’s “escalating emotional and behavioral problems.†However, he was placed next door to J.F. and
the boys continued to see each other daily.
In
a status review report dated July 8, 2011, CPS reported that D.P. and J.F
continued to be aggressive and were receiving therapy. J.F. was reportedly doing better. I.G. continued to “throw tantrums and
become[] violent when he does not get his way.â€
He was also extremely oppositional and defiant at times and showed
symptoms of attention deficit/hyperactivity disorder (ADHD). His therapist had recommended that I.G. be
evaluated to determine if he needed and could benefit from psychotropic
medications. I.G. was moved again on
August 9, 2011.
On
August 24, 2011, mother’s reunification services were terminated with respect
to D.P., J.F. and I.G. The court
determined that it was not appropriate to place D.P. with his siblings.
A
nonrelative extended family member expressed an interest in adopting D.P. and
J.F., and stated that he might consider adopting I.G. in the future if his
emotional and behavioral problems stabilized.
CPS recommended continuing the Welfare and Institutions Code section
366.26
the prospective adoptive parent and to permit further assessment of I.G. to
determine if he was adoptable at that time.
D.P.
and J.F. were placed together in the prospective adoptive home on March 9,
2012. CPS reported that despite some
initial sibling rivalry and behavioral problems, both boys adjusted extremely
well to the placement. Both stated that
they would like to stay there and appeared very secure. The prospective adoptive parents were willing
and able to provide for their special needs.
I.G.
was placed in a group home. He had been
placed for a short time in the same foster home as D.P., but his severe
emotional and behavioral problems persisted.
He was diagnosed with ADHD and oppositional defiant disorder. He was committed to Loma Linda Behavioral
Medical Center because of assaultive behavior and/or uncontrollable and
oppositional defiant behaviors, which posed a danger to I.G. or to others. He was placed on medication, but it failed to
control his outbursts and negative behavior or stabilize his emotional
functioning. Because I.G. had had eight
failed placements and had pervasive emotional and behavioral problems, CPS
determined that I.G. had to be placed in a group home where he could receive
more intensive mental health services.
He was committed a second time to Loma Linda Behavioral Medical Center
on April 9, 2012, and upon his release on April 13, 2012, he was placed in an
appropriate group home.
The
preliminary adoption assessment reported that the prospective adoptive parents
and their home were appropriate for D.P. and J.F. The prospective adoptive parents stated that
most of D.P.’s aggressive behaviors had declined since being placed in their
home, and that his tantrums were manageable.
J.F. continued to have some anger management issues and aggressive
behaviors, but the prospective adoptive parents reported that his tantrums were
declining as he became more adjusted to their home. They planned to enroll both boys in
counseling.
D.P.
told the adoption worker that he liked living with the prospective adoptive
parents and wanted to stay there for the rest of his life. J.F. had some conflicting feelings and said
he would like to live with mother, but if that was not possible, he wanted to
stay with the prospective adoptive parents.
He and D.P. both appeared bonded to the prospective adoptive parents.
At
the selection and implementation hearing on July 7, 2012, the juvenile court
continued the hearing for 60 days for D.P. in order to conduct DNA testing to
determine whether an alleged father was his biological father and to address
other unspecified issues. However, the
court found that adoption was the appropriate permanent plan for D.P. and
J.F. The court found that I.G. was not
adoptable at that time, and found that a planned permanent living arrangement
was the appropriate plan for I.G. The
court terminated parental rights and freed J.F. for adoption.
Mother
filed a timely notice of appeal
challenging only the order terminating parental rights with respect to J.F.
LEGAL
ANALYSIS
MOTHER DID
NOT MEET HER BURDEN WITH RESPECT TO THE SIBLING RELATIONSHIP EXCEPTION TO THE
STATUTORY PREFERENCE FOR ADOPTION
“Adoption
must be selected as the permanent plan for an adoptable child and parental
rights terminated unless the court finds ‘a compelling reason for determining
that termination would be detrimental to the child due to one or more of the
following circumstances: [¶] . . . [¶]
(v) There would be substantial interference with a child’s sibling
relationship . . . .’ (§
366.26, subd. (c)(1)(B).)†(
1308, 1314 (Bailey J.).) Under these provisions, “the court must order
adoption and its necessary consequence, termination of parental rights, unless
one of the specified circumstances provides a compelling reason for finding that termination of parental rights
would be detrimental to the child. The
specified statutory circumstances . . . ‘must be considered in view
of the legislative preference for adoption when reunification efforts have
failed.’ †(In re Celine R. (2003) 31 Cal.4th 45, 53, italics added (
because it gives the child the best chance at [a full] emotional commitment
from a responsible caretaker.’†(
The
parent has the burden of establishing by a preponderance of the evidence that a
statutory exception to adoption applies.
(Bailey J.,
p. 1314.) To establish that the
sibling relationship exception applies, the parent must show that “[t]here
would be substantial interference with a child’s sibling relationship, taking
into consideration the nature and extent of the relationship, including, but
not limited to, whether the child was raised with a sibling in the same home,
whether the child shared significant common experiences or has existing close
and strong bonds with a sibling, and whether ongoing contact is in the child’s
best interest, including the child’s long-term emotional interest, as compared
to the benefit of legal permanence through adoption.†(§ 366.26, subd. (c)(1)(B)(v).)
Mother
contends that the sibling relationship exception applies in this case because
J.F. had lived with D.P. and I.G. almost all his life, and they “shared the
significant emotional experience of disruption, dislocation, and family
instability.†She contends that this relationship
is disrupted by freeing J.F. for adoption while leaving D.P. as a part of the
family with mother and I.G. She contends
that J.F. will no longer have visits with I.G. while D.P. continues to visit
with I.G., because J.F. is no longer part of that family. She contends that termination of parental
rights created a substantial interference with J.F.’s relationship with I.G.,
resulting in detriment to J.F.
name="_ftnref4" title="">
A
juvenile court’s finding that the sibling relationship exception does not apply
is reviewed under a hybrid substantial evidence/abuse of discretion
standard. The factual finding, i.e.,
whether a bonded sibling relationship exists, is reviewed for substantial
evidence, while the court’s determination that the relationship does not
constitute a “compelling reason†(Celine
R., supra, 31 Cal.4th at
p. 53) for determining that termination of parental rights would be
detrimental is reviewed for abuse of discretion. (Bailey
J., supra, 189 Cal.App.4th at
pp. 1314-1315.)
Since
the proponent of the exception bears the burden of producing evidence of the
existence of a beneficial parental or sibling relationship, a challenge to a
juvenile court’s finding that there is no beneficial relationship amounts to a
contention that the “undisputed facts lead to only one conclusion.†(In re
I.W. (2009) 180 Cal.App.4th 1517, 1529.)
Unless the undisputed facts established the existence of a beneficial
parental or sibling relationship, a substantial evidence challenge to this
component of the juvenile court’s determination cannot succeed. (Bailey
J., supra, 189 Cal.App.4th at
p. 1314.)
Here,
mother has utterly failed to show that the evidence compels the conclusion that
termination of parental rights for J.F. disrupted his relationship with I.G. to
J.F.’s detriment. First, the record
refutes the contention that it was the termination of parental rights that
disrupted J.F.’s relationship with I.G. or that J.F.’s relationship with I.G.
would have been closer or better maintained if J.F. remained a court
dependent. I.G.’s mental and emotional
state had deteriorated before the section 366.26 hearing, to the point that he
required hospitalization twice and placement in a group home with the resources
to address his severe emotional problems.
Thus, even if J.F. had remained a court dependent, he would necessarily
have been placed separately from I.G.
Accordingly, it was I.G.’s emotional problems that had disrupted his
relationship with his siblings, not the termination of parental rights. Second, mother has not shown that termination
of parental rights will disrupt J.F.’s relationship with I.G. in the long
term. J.F.’s prospective adoptive
parents were willing to consider adopting I.G. as well, if his emotional
condition stabilized, and there is no evidence that the prospective adoptive
parents would refuse to allow J.F. to visit with I.G. or otherwise foster
J.F.’s sibling relationships after the adoption.
In
addition, mother has failed to demonstrate how it was an abuse of discretion to
determine that any potential disruption of J.F.’s relationship with I.G.
constituted a compelling reason not to terminate parental rights. A contention that the sibling relationship is
a “compelling reason†for finding detriment to the child calls for the juvenile
court to determine the importance of the sibling relationship in terms
of the detrimental impact that its severance can be expected to have on the
child and to weigh that against the benefit to the child of adoption. (Bailey
J., supra, 189 Cal.App.4th at
p. 1315.) Mother does not point to any evidence that
compels the conclusion that J.F.’s interests would be better served by
remaining a court dependent or that doing so would in any way promote his
relationship with I.G., and we find none.
Accordingly, the court did not abuse its discretion in finding that the
sibling relationship exception does not apply.
DISPOSITION
The
judgment terminating parental rights as to J. F. and R. B. and freeing the
minors for adoption is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
KING
J.
name="_ftn1" title=""> [1] The issue raised in this appeal pertains
solely to the order freeing J.F. for adoption.
We will discuss the entire family’s history to the extent that it is
relevant to the issue mother raises.
name="_ftn2" title=""> [2] All further statutory references shall be to
the Welfare and Institutions Code, unless otherwise indicated.
