In re M.F.

Filed 3/9/07 In re M.F. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

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

Albert Garcia, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.). Affirmed.

Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Liana Serobian, Senior Associate County Counsel, for Plaintiff and Respondent.

___________________________________________________

N.F., a 16-year-old dependent of the juvenile court, challenges the proposed adoption of her 6-year-old half sister, M.F. N.F. argues that parental rights should not be terminated because it would substantially interfere with her sibling relationship with M.F. (Welf. & Inst. Code, 366.26, subd. (c)(1)(E).)^[1] We affirm the juvenile courts order terminating parental rights.

FACTS

This dependency proceeding began in March 2004, with the filing of a petition with respect to the minor children N.F. (born in 1991), L.F. (born in 1997), D.F. (born in 1998) and M.F. (born in 2000). The four half siblings are the offspring of Sherrill F. (Mother).

The Department of Children and Family Services (DCFS) initially received a report of child neglect regarding the family in 2002, and sexual abuse and caretaker absence reports in 2003. DCFS provided Mother with family preservation services to address the deficiencies in her household, but the situation deteriorated. During a DCFS visit to Mothers home in December 2003, a social worker observed that the children were covered with dirt and inadequately clad. N.F., then age 12, appeared to be in charge in the home. N.F. stated that she had not attended school for nearly three years, and had no friends because she was preoccupied with caring for the family. DCFS continued to receive child neglect referrals regarding the family, and complaints from the public school regarding Mothers aggressive and profane behavior.

When preventive services proved to be ineffective, DCFS stepped in to protect the children. The petition alleged that Mother failed to protect the children because she kept her home in a filthy, unsanitary and dangerous condition, with cat feces on the floor, no heat, no means to prepare meals, no refrigerator, and no place to wash dishes. The petition charged Mother with inflicting serious emotional damage by leaving the children dirty and foul smelling, and failing to ensure their attendance in school. As a result, the children suffer from severe anxiety, depression, withdrawal, and untoward aggressive behavior. The dependency court found a prima facie case for detaining the children.

In an interview conducted after detention, N.F. angrily accused DCFS of ruining the familys life. In a profanity-laced interview, Mother denied the allegations in the petition. Mother began having monitored visits in the DCFS office. During a visit in April 2004, Mother yelled and physically attacked the social worker. Mr. and Mrs. C., nonrelated extended family members, expressed an interest in having N.F. and M.F. placed with them.

The petition was adjudicated in May 2004. The court sustained charges under section 300, subdivisions (b) [failure to protect] and (c) [serious emotional damage], and the children were declared dependents of the juvenile court. Mother was given reunification services and agreed to complete a parenting course, have counseling to address anger management, and to keep a clean house. The children were also ordered to receive counseling. After the hearing, DCFS reported that Mother was harassing the childrens caregivers and cussing. In June 2004, N.F. and M.F. were placed with Mr. and Mrs. C., and were very happy there.

In July 2004, DCFS reported that Mother was refusing to comply with the case plan. When the social worker showed Mother the courts minute order and attempted to review it with her, Mother threw the order at the social worker. During a visit, Mother used profanities and was warned against cursing in front of the children. On another occasion, Mother grabbed M.F. from Mrs. C.s hands while shouting obscenities. The children and Mrs. C. were frightened for their safety. After this incident, the court limited Mother to visiting the children at the DCFS office.

In November 2004, the status review report indicated that Mother was not complying with the case plan and was continuing her oppositional conduct with the social worker. M.F. had formed a close bonding relationship with her foster parents and openly expresses affection for them, according to the childs therapist. The C. family provided M.F. with a stable, loving home with structure and discipline. Mother visited the children at the DCFS office, but was combative and said negative things to the children about the social worker and the caregivers. At one point, Mother threatened to hurt the social worker.

In May 2005, DCFS reported that Mother had completed a 12-week parenting program. She maintained regular visitation, but was verbally aggressive. Mother had no permanent residence and was staying with various friends. She suffers from seizures. N.F. and M.F. were happy in their placement with the C. family. M.F.s therapist recommended a decrease in the number of visits with Mother, because the childs behavior became unruly and unpredictable for several days after each visit. M.F. told her caretakers that she no longer wanted to visit Mother. Similarly, M.F.s brothers decompensated in their treatment following visits with Mother, becoming agitated, aggressive and defiant. A child psychiatrist attributed the bad behavior to Mothers negative attitude toward the caretakers, and recommended that Mother be limited to one visit per month.

A review hearing was held in September 2005. DCFS reported that N.F. and M.F. were catching up with their peers, after having been delayed in their development and education while in Mothers care. N.F. had difficulty adjusting to the boundaries set by the C. family, but was working with them to improve communication. M.F. was well-adjusted to the placement and was attached to the C.s. Mother was in counseling, but required additional therapy to address her anger. She did not have safe, stable housing for the children. The C.s were interested in adopting N.F. and M.F. N.F. did not wish to be adopted, but M.F. wanted to stay with the C.s. According to her therapist, M.F. feels secure in her placement and is attached to her foster parents whom she calls mom and dad. The court found no substantial probability that the children could be safely returned to Mother within the next six months. It set a selection and implementation hearing to determine whether adoption, guardianship or long-term foster care was the best permanent plan, and terminated reunification services for Mother.

Prior to the hearing, DCFS reported that N.F. and M.F. were developing appropriately for their age. Both girls were receiving regular counseling. They were attached to the C. family. N.F. told the social worker that she now wished to be adopted by the C.s; M.F. was also likely to be adopted by the C.s, who had completed the adoption home study process. The C.s have been married since 1974, have two adult children, and are involved with the girls school activities. N.F. and M.F. are loved and accepted by all as part of the family. The C.s are committed to adoption.

At a December 2005 hearing, the court ordered long-term foster care for N.F., who could not decide whether she wanted to be adopted. The matter was continued as to M.F. so that DCFS could approve the home study for her prospective adoptive family. The home study was approved in January 2006.

N.F. informed DCFS that she did not wish to be adopted, and was removed from the C. home after Mr. C. discovered that N.F. was sneaking a boyfriend into her room late at night. M.F. was angry and sad when N.F. moved to a new placement, but still seemed to be doing well. M.F. understood that her placement with the C. family would become a permanent arrangement, though she has a continuing attachment to Mother and her siblings. M.F. was happy, healthy, and well cared for at the C. home.

Mother was incarcerated for two weeks in November 2005, following her arrest for battery. She lacked safe, stable, child-appropriate housing, and had unresolved medical and mental health problems. Mother attempted to pressure M.F. into accusing Mr. C. of child abuse, but the child denied any abuse.

The court directed DCFS to prepare a report discussing whether termination of parental rights would be detrimental to the childrens sibling relationship. DCFS interviewed each of the children, and the prospective adoptive families. N.F. stated that she was responsible for raising M.F. and D.F. since the day they were born because [Mother] . . . was going through like drugs and seizures and stuff. In her capacity as a substitute mother, N.F. changed diapers, fed and dressed her siblings, and did things a mom would do. They lacked adequate food and clothing, before being detained by DCFS. She now sees her siblings only during monthly monitored visits with Mother. She misses M.F., and it feels as though I had my daughter taken away. N.F. was ambivalent about M.F.s proposed adoption: she favors the adoption because she knows M.F. likes being with the C. family, but N.F. personally does not like the C.s. N.F. conceded that she does not want M.F. moving from home to home until she finds a stable placement because thats what I had to do.

In his interview, L.F. indicated that he was opposed to adoption because I want them back and mom wants them back and I want all of us back together. L.F. sees his siblings monthly during a monitored visit. He misses them very much and feels close to them.

M.F. stated that she misses N.F., since N.F. moved away from the C. home. M.F. enjoyed activities with her older sister. M.F. was less enthusiastic about time spent with her two brothers. She would be really, really, really, sad . . . if I could never see them . . . because we are brothers and sisters and we should see each other. She likes living with the C. family and is happy that they would adopt her, but expressed concern that she still be able to see her siblings.

D.F. expressed sorrow for the absence of his siblings, though he enjoyed his visits with them. He was happy that he would be adopted by his grandmother. Mr. and Mrs. C. stated that M.F.s behavior deteriorated after sibling visits: she displayed a poor attitude and refused to follow directions. Mrs. C. worried about contacts between M.F. and N.F., because N.F. discussed her sexual relationship with a boyfriend, which Mrs. C. thought was inappropriate information for a five-year-old child to hear. The C.s are willing to allow monitored visits between M.F., N.F. and L.F. The C.s fear that the older children exert a bad influence on M.F. M.F. regularly sees D.F.

The social worker assigned to the case has observed that the siblings enjoy each others company during their monthly visits. They share common experiences and a bond; however, with the passage of time the connection between them has diminished, as they are busy with their own lives. For example, N.F. is no longer raising her siblings, and they are all involved in extracurricular activities such as sports, church groups, or spending time with friends. During their regular visits, M.F. and D.F. play together, but often without the participation of their older siblings. Continuing contact is in the best interest of the children, and the prospective adoptive parents would allow sibling visits. The social worker opined that terminating parental rights would not affect the sibling relationship, and even if the relationship were disrupted, the advantage of secure adoptive homes outweighed any detriment occasioned by separating the siblings.

A contested permanency planning hearing was conducted in June 2006. Mother did not show up for the hearing. The social worker testified that the C.s supported sibling visits, and allowed the children to telephone M.F. The children hug each other at the end of the visits. The social worker believes that the C.s will continue to allow sibling visits after adoption. N.F. testified that she has always been close to M.F. She would feel hurt if she were never able to see M.F. again. At the end of visits, M.F. clings to N.F. and says that she does not want N.F. to leave. M.F. testified that she likes living with the C.s, and wants to continue living with then. She considers the C.s sons to be her brothers. She wishes that N.F. were still living there too. She wishes that she could see N.F. more often, and would be very sad if she never were able to see her siblings again. She is sad when their visits end. By the same token, she tells her siblings to shut up when they object to her adoption by the C.s.

At the conclusion of the evidence, the court found by clear and convincing evidence that M.F. and D.F. are likely to be adopted, and that it would be detrimental to return the children to parental custody. It terminated parental rights as to these two siblings, and freed the children for adoptive planning and placement. N.F. appeals from the order terminating parental rights.

DISCUSSION

1. Overview of Section 366.26 and the Sibling Relationship Exception

If the dependency court finds by clear and convincing evidence that a child is likely to be adopted, the court shall terminate parental rights and order the child placed for adoption. ( 366.26, subd. (c)(1).) The legislative preference is for adoption, when a dependent child cannot be reunified with his or her parents, because adoption gives the child the best chance at [a full emotional] commitment from a responsible caretaker. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) Thus, adoption should be ordered unless exceptional circumstances exist . . . . (In re Casey D. (1999) 70 Cal.App.4th 38, 51; In re Jasmine D., supra, 78 Cal.App.4th at pp. 1348-1349.) N.F. asserts that the legislative preference for adoption does not apply in this case. She maintains that parental rights should not be terminated because there would be substantial interference with her sibling relationship with M.F. ( 366.26, subd. (c)(1)(E) [the sibling relationship exception].)

The sibling relationship exception presents a two-step process. First, the court determines whether terminating parental rights would substantially interfere with the sibling relationship, considering the nature and extent of the relationship, whether the children were raised together, and significant common experiences or existing close and strong bonds. Second, if terminating parental rights would substantially interfere with the sibling relationship, the court must weigh the childs best interest in continuing the relationship against the benefits the child would enjoy in a permanent adoptive home. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952; In re Hector A. (2005) 125 Cal.App.4th 783, 794.)The appellant bears the burden of showing that termination of parental rights would be detrimental to the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

2. Standard of Review

When the juvenile court rejects a claim that termination of parental rights would be detrimental to the child, its ruling must be affirmed on appeal if it is supported by substantial evidence. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.) We do not consider the credibility of the witnesses, resolve conflicts in the evidence, or evaluate the weight of the evidence. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.) We draw all reasonable inferences in support of the courts order, and view the record in the light most favorable to the courts conclusion. (Ibid.)

3. Adequacy of the Courts Findings

N.F. challenges the dependency courts order because it contains no express findings regarding the sibling relationship. When terminating parental rights, the court is required to make two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250; In re James Q. (2000) 81 Cal.App.4th 255, 262.) The court made those findings in the case at bench. It also emphasized that it heard the witness testimony, all of which related to the sibling relationship. A finding that there would no detriment to the child is not a prerequisite to the termination of parental rights. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1347.) There is no basis for reversing the courts order on procedural grounds.

4. Substantial Evidence Supports the Courts Determination

a. Interference with the Sibling Relationship

The evidence shows that M.F. has spent most of her young life in the same household as N.F. Although M.F. was removed from Mothers care in 2004, she was placed together with N.F. in foster care until late 2005. The two girls had significantly different experiences during their time together, largely because there is a 10-year age gap between them. N.F. described her experience as being that of a substitute mother, changing M.F.s diapers, feeding and dressing M.F., and so forth. M.F. described childlike experiences of playing games with her siblings.

The two girls are very fond of each other, and enjoy their visits. However, M.F.s behavior and attitude deteriorated after visits with her older siblings. N.F. exhibited poor judgment by discussing her sexual experiences with a child of M.F.s age, casting doubt on whether N.F.s current, nonmaternal relationship with M.F. was particularly beneficial for M.F. Given the difference in age, it was inappropriate for N.F. to treat M.F. as a contemporary with whom she can discuss intimate matters.

The evidence does not suggest that terminating parental rights would be detrimental to M.F.^[2] M.F. testified that she would feel sad if she were never to see her siblings again. However, M.F. coped well when N.F. moved out of the C. family home. There was no evidence presented that M.F. other than being sad, would suffer detriment if the [sibling] relationship ended. (In re L.Y.L., supra, 101 Cal.App.4th at p. 952.) Moreover, the C. family indicated that they would be willing to allow M.F. to have monitored visits with N.F.^[3] The willingness of the prospective adoptive family to facilitate sibling visits is a factor demonstrating that there will not be a substantial interference with the sibling relationship. (In re Megan S., supra, 104 Cal.App.4th at p. 254.)

It bears emphasizing that N.F. is on the brink of adulthood, whereas M.F. is a child. The two girls are likely to spend less and less time together as N.F. goes to college or to work, regardless of whether M.F. is adopted or remains in foster care.

b. M.F.s Best Interests

M.F. is only six years old. She has lived with the C. family since she was four, has become closely bonded to them, and testified that she wants to continue living with them. She refers to them as her parents, and is happy that they would adopt her. N.F. concedes that she does not want M.F. moving from home to home looking for a stable placement. M.F. would have stability and permanency if she were adopted by the C. family. [A]s children age, they become more difficult to place for adoption. (In re Megan S., supra, 104 Cal.App.4th at p. 253.) The juvenile court could reasonably conclude that M.F. deserves familial permanency in her life, instead of staying within the dependency system in perpetuity. (Id. at p. 254.)

In sum, even if adoption will interfere to some extent with the sibling relationship, the juvenile court was well within its discretion to determine, after hearing the testimony and considering the DCFS reports, that the benefit to M.F. of a permanent home outweighs the importance of the sibling relationship. While the siblings in this case enjoy their occasional visits they are not emotionally dependent upon one another. M.F. clearly considers the C.s to be her mom and dad, and is closely bonded with them. M.F.s pleasant visits with her siblings is not significant enough to militate against adoption. N.F. did not carry her burden of showing that termination of parental rights would be detrimental to M.F.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

^[1] All statutory references in this opinion are to the Welfare and Institutions Code.

^[2] Our analysis is limited to the possible impact upon the child being adopted. We do not consider any detriment to M.F.s siblings because the focus is on the best interests of the adoptive child, not the siblings. (In re Celine R. (2003) 31 Cal.4th 45, 54-55.)

^[3] With the consent of the C. family, the court may include in any final order provisions for postadoption sibling contact. ( 366.29, subd. (a).)