In re Kimberley R.

Filed 8/10/06 In re Kimberley R. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.

Sherri Sobel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.). Affirmed.

Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Arezoo Pichvai, Deputy County Counsel; UCLA School of Law Clinical Program, Patrick D. Goodman, Supervising Attorney, David Black and Lucy Schwaillie, Certified Law Students, for Plaintiff and Respondent.

Maria R. appeals the order terminating parental rights as to her daughter, Kimberly R. (born April 2002).^[1] Maria challenges the order, contending that (1) the sibling bond exception (Welf. & Inst. Code, § 366.26, subd. (c)(1)(E))^[2] applies, and (2) the court erred in denying her petition for modification (§ 388) which alleged a change of circumstances based, in pertinent part, on the same sibling relationship. We affirm, since substantial evidence supports the trial court's finding that Kimberly did not have a sufficiently beneficial sibling relationship with her sister and, in any event, adoption by Kimberly's legal guardians who wish to continue sibling contact after adoption is in the child's best interests.

FACTUAL AND PROCEDURAL SUMMARY

Maria is the mother of both Kimberly and her older sister Cinthia O. (born April 1997); Jesus is the father of Kimberly but not of Cinthia. On May 7, 2002, the Los Angeles County Department of Children and Family Services (DCFS) removed the children from the home of Maria and Jesus following an allegation that, while Maria was recovering at a hospital after giving birth to Kimberly, Jesus had inserted part of a knife and a comb into Cinthia's vagina during her bath. Despite Maria's initial assurance that she would obtain a restraining order against Jesus, she instead allowed him to return to their shared home after his release from jail on May 9, 2002.

The next day, DCFS filed a juvenile dependency petition (§ 300), and soon thereafter the children were placed in the home of foster parents Velia and Juan C. The DCFS social worker's report indicated that Maria was in denial about the abuse, was dependent upon Jesus, and had difficulty accepting personal responsibility for what had occurred. At the conclusion of the adjudication hearing in June of 2002, the juvenile court sustained the amended petition, finding the allegations of sexual abuse to be true and that Maria had failed to protect the children from abuse. The court found the children to be dependents of the court, and ordered that Maria and Jesus be provided with reunification services.

As discussed in our opinion denying Maria's prior petition for writ of mandate (Maria R. v. Superior Court (Jan. 28, 2004, B169319) [nonpub. opn.]), of which we have taken judicial notice, several progress hearings, petitions for modification, and the statutory 6-month and 12-month review hearings (§ 361.21, subds. (e) & (f)) ensued, the details of which we need not elaborate upon here. It is sufficient herein merely to note several factors commented upon in the social study reports and to summarize the juvenile court's conclusions after the 12-month review hearing.

The October 2002 social study report related Cinthia's distress. She had urinated on the carpet because voices instructed her to do so, she scratched her face and pulled out her hair, and she acted out sexually with the foster mother's six-year-old daughter. The July 2003 social study report revealed that Maria was still living in the home of Jesus, and that she continued to deny any sexual abuse of Cinthia. Kimberly's foster parents indicated that they were willing to adopt both children.

The August 2003 social study report detailed Cinthia's continued distress--she was diagnosed at UCLA's Neuro Psychiatric Institute as suffering from posttraumatic stress disorder and given medication. Maria continued to believe Cinthia was lying about sexual abuse by Jesus. After approximately a year of family reunification services, Maria and Jesus had made no progress in therapy, Jesus continued to deny any wrongdoing, Maria continued to stand by him and believe that Cinthia had lied, and Maria and Jesus strongly believed they were not responsible for any harm to their children. Cinthia was afraid of her mother and did not want to be returned to Maria. Kimberly was then approximately one year old, and the social worker feared exposing her to Jesus and thus deemed it detrimental to return her to the care of Maria (whose five other children were not in her care and were raised by relatives and friends).

The juvenile court noted that Maria had, since Cinthia's birth, consistently and regularly involved her in traumatic experiences, including living with a prostitute in Mexico, and that Maria did not have custody or control of any of her other children. The court did not believe Maria's assertion that she had separated from Jesus. The court found that Kimberly would suffer detriment if returned to Maria's physical custody. Accordingly, in August of 2003, the court terminated family reunification services and set a section 366.26 hearing. In January of 2004, in denying Maria's petition for a writ of mandate, we held that sufficient evidence supported the juvenile court's finding of substantial detriment to Kimberly if returned to Maria and that reunification services were properly terminated.

Meanwhile, the section 366.26 report for December of 2003 indicated that although Cinthia had been placed at Hollygrove residential treatment facility for several months, her condition worsened and she was in need of a more structured therapeutic environment. Kimberly had been with her foster parents for over a year and a half and had bonded with her caregivers and also with their daughter Wendy. The social worker reported that when Kimberly visited with her father, she did not want to leave her foster mother's side and was crying. Maria's therapist noted that she showed improvement and had for approximately six weeks not communicated with Jesus, who appeared to be in entrenched denial about his sexual abuse and was focused on â€