In re Priscilla G.

Filed 8/20/07 In re Priscilla G. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Irwin H. Garfinkel, Referee. Affirmed.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.

* * * * * *

Jamie G. (father) appeals from a juvenile court order terminating parental rights as to Priscilla, freeing her for adoption.

Father contends that the dependency court erred by using a piece-meal approach to terminating his parental rights, instead of applying a sibling relationship exception under Welfare and Institutions Code section 366.26, subdivision (c)(1)(E) to this case.^[1]

FACTS AND PROCEDURAL HISTORY

This same issue was before this court when it affirmed the dependency courts termination of parental rights as to Priscillas sibling, Jasmine. Pursuant to California Rules of Court, rule 8.252, this court takes judicial notice of its prior opinion in that case. We disagree with father and affirm.

As the issue on appeal is identical to one previously before this court in Priscillas siblings case (In re Jasmine G. (Feb. 15, 2007, B191174) [nonpub. opn.]), the court reiterates its statement of relevant facts:

Jasmine (born November 1997), Priscilla (born October 1998) and Jaime, Jr., (born April 2000) were placed with their paternal grandparents in August 2000, due to issues related to or involved with the parents drug use and domestic violence. [Priscilla, now 8, was then 2 years old.]

Since then, the grandparents have provided excellent care for the children, while father and mother have done little, if anything, to address the issues that caused their children to enter the dependency system.

In September 2000, father and mother agreed to a case plan that required father to attend a drug rehabilitation program . . . . The juvenile court allowed the parents monitored visitation with the children and cautioned them, in view of their childrens age, to be very careful to get started on your program right away so that in six months[] time, you do not face the possibility of having these children taken for a selection and implementation hearing for possible adoption. (See  361.5, subd. (a)(2) [allowing reunification services not to exceed six months for removed child under age three].)

[Nevertheless, father failed to comply, was] incarcerated for violation of parole [and] [m]other had only begun to comply with the plans terms. The juvenile court terminated the parents reunification services [at the six-month review hearing in March 2001] and set the matter for a section 366.26 permanency planning hearing in September 2001. Both parents appeared at the March hearing and were advised that jurisdictional and dispositional issues would be heard by the court and might be resolved against them if they failed to appear at any future hearing date.

The grandmother wanted to adopt the children, but the grandparents decided to opt for legal guardianship instead to avoid having the parents parental rights terminated. In September 2001, the juvenile court appointed the paternal grandparents the childrens legal guardians at the permanency planning hearing. The grandparents successfully completed one year of family preservation services.

The children were happy and comfortable living with their grandparents. All three had special medical needs due to asthma that required treatment three times daily, and the grandmother was particularly diligent in caring for their medical needs. The parents visited the children about once a month. During the visits, the parents had little interaction with the children, who paid them little attention in turn.

In late 2002, mother was arrested and detained for drug related charges. She was released . . . in approximately February 2003 and entered a court ordered residential drug rehabilitation program. Mother resumed visiting her children about once a month, and father began visiting the children about once a week. The children by this time had developed strong bonds with their grandparents and were calling them mom and dad. They remained happy and comfortable living with their grandparents. As of March 2005, even though they were visiting the children regularly, the parents had progressed no further than monitored visits.

The juvenile court held review hearings at six-month intervals in March 2003, September 2003, March 2004, September 2004 and March 2005, finding on each occasion that continued jurisdiction over the children was necessary. The court found the grandparents were providing excellent care for the children. The grandmother reported the children were not bonded with their parents and the parents had only limited interaction with the children usually engaging in other activities, such as watching television, during their visits. The children told the social worker they enjoyed their parents visits but they liked living with their grandparents and wished to continue living with them.

After caring for the children for five years, the grandparents concluded neither parent would ever be able to care for the children, in part because the parents still used drugs.^[[2]] The grandparents decided to adopt Jasmine, Priscilla, and Jaime, Jr. They had become very bonded with the children. They viewed the children as their natural children and wished to become their legal parents. The children on their part said they wished to be adopted by their grandparents.

In August 2005, both parents were given written notice of a review hearing for the children to take place on September 12, 2005. . . . At the September 2005 review hearing, the dependency court set a permanency planning hearing for January 9, 2006. . . . Father did not attend the September 2005 hearing but an attorney was appointed to represent him.

In August 2005, the parents enrolled in a drug and alcohol recovery program. Father attended the program consistently, completed a parenting class and gave three negative drug tests. However, both father and mother provided diluted samples in January 2006, an indication to the social worker they were continuing to use drugs and trying to hide it. There was no evidence the parents ever finished their programs.

Although father and mother continued to visit the children, the children still did not bond with either and did not interact well with them. The children told the social worker they liked visiting with their parents, but they wanted to stay with their grandparents forever and ever.

In November 2005, the parents were served with written notice of the forthcoming permanency planning hearing set for January 9, 2006. . . .

Both parents were present at the hearing on January 9, 2006. The juvenile court ordered a home study for adoption to be completed and continued the matter to May 8, 2006, at 8:30 a.m. The court ordered father and mother to return on May 8 without further order, notice or subpoena. Both parents also attended a review hearing in March 2006, at which the court again ordered the parents to return on May 8 without further order, notice or subpoena and told them that [t]he court will have to determine whether or not to terminate your parental rights.

A week before the May 8 hearing, father filed a section 388 petition for modification seeking termination of the grandparents guardianship, custody of the children or renewed family reunification services and cancellation of the section 366.26 hearing. Father alleged there were changed circumstances because the court had granted the parents reunification services in the childrens sibling Frankys dependency case and father was participating in court ordered programs. Father alleged he had a bond with all four minors, all of whom were placed in the grandparents home. Father did not support his petition with any evidentiary documents.

For the May hearing, the childrens social workers provided a supplemental report stating that an adoption home study had been completed and approved but that adoptive placement could not occur until parental rights had first been terminated. The report continued to recommend adoption and termination of parental rights as the most appropriate permanent plan for the children.

[N]either father nor mother chose to personally attend the [May] hearing. Fathers counsel asked the juvenile court to hold a contested hearing on the section 388 petition for modification. After hearing argument by fathers counsel, the court declined to set the petition for a contested hearing and denied the petition. The court found the petition failed to show how the requested modification would promote the childrens best interests. It further found the petition failed to state facts supporting fathers allegations or to show any new evidence or change in circumstances.

After the court denied fathers section 388 petition, fathers counsel asked the court to set a contested section 366.26 hearing.

. . . The court specifically found that proper notice of the proceedings had been given to all appropriate parties as required by law [and yet neither parent was present]. Fathers counsel asked the court to reconsider its prior ruling . . . .

The court requested an offer of proof that father acted as a father to any or all of these children, that he has provided for them, that hes taking care of them, fed them, clothed them, did all of the things that a father does. Counsel [stated] [i]t is my understanding that during the visits he does participate in the childrens daily lives, and he has been visiting on a consistent and regular basis. She requested an opportunity for father to show a parental relationship exception existed.

The court declined to set a contested hearing based on counsels mere speculation, stating, [i]f you had concrete evidence to offer as an offer of proof . . . , then I would certainly set it for contest. The court stated the exception required the parent to act as a parent on a consistent basis and it had no evidence such had occurred, rather just the opposite[.] [The court noted that even though he was not in custody, the most father ever did for his children were inconsistent visits, and he had even failed to appear at the current hearing, without a showing of good cause.] The court accordingly declined to set the matter for a contested hearing.

The juvenile court found by clear and convincing evidence that Jasmine was likely to be adopted and terminated parental rights. The court could not proceed at the May 2006 hearing to terminate parental rights as to Priscilla or Jaime, Jr., because their father was listed as identity unknown. It continued their section 366.26 hearing to September 2006 to allow for appropriate notice. So that the children would not be separated, the court declared all three children a sibling group and ordered their placement could not be changed without a noticed court hearing.

Father timely appealed from the courts order to terminate parental rights as to Jasmine and order denying his section 388 petition. (Fn. omitted.) Among other contentions, he argued the juvenile court erred by not applying the sibling relationship exception in terminating parental rights as to Jasmine alone. This court affirmed the termination of his parental rights as to Jasmine.

Father was arrested on July 16, 2006, and mother stopped visiting regularly. Regular visitations resumed after father was released on August 27, 2006. He and mother completed a nine-month outpatient program at Castle Drug and Alcohol Recovery Program, but their drug test results sometimes returned as dirty.

A section 366.26 hearing for Priscilla and Jaime, Jr., was set on September 11, 2006, for which the Department of Children and Family Services (DCFS) submitted a report. DCFS reported all three children as doing well and saying that they wanted to continue living with their grandparents. The childrens positive relationship with the grandparents was marked with affection and nurturing. Indeed, the grandparents were very involved with the childrens school and visit[ed] the school often throughout the day, and they further ensured that the children were very involved with their church. As a result, the children were very bonded and wish[ed] to continue living with the grandparents, who continued to consider the children to be like their own. Priscilla, in particular, was developing age appropriately and playing well with her siblings and children her age.

During Priscillas and Jaime, Jr.s section 366.26 hearing on September 11, 2006, fathers attorney objected to termination of parental rights as to only Priscilla because it would jeopardize the sibling relationship between Priscilla and Jaime, Jr. DCFS counsel, however, confirmed there was an approved home study and a valid birth certificate. Priscillas father was still listed on her birth certificate as identity unknown, but appropriate due diligence notice had been given following the May 2006 hearing. The juvenile court decided to proceed with Priscillas case.^[3] The court then added that Jasmin[e], Priscilla and Jaime [are] presumably going to be adopted by the present caretakers who are . . . their legal guardians. [] The objection . . . does not contain any legal grounds.

The court found Priscilla adoptable and would not suffer detriment if parental rights were terminated. Thus, the court terminated parental rights as to Priscilla.^[4]

Father timely appealed the courts order terminating parental rights as to Priscilla.^[5]

DISCUSSION

The sole issue father raises on appeal is a contention that was before us in the prior appeal regarding Priscillas sibling, Jasmine ‑‑ specifically, that the juvenile court erred by not applying the sibling relationship exception to the termination of parental rights in terminating parental rights as to Priscilla alone. In our prior opinion, we explained that [u]nder section 366.26, subdivision (c)(1)(E), the juvenile court may refrain from terminating parental rights if it finds a compelling reason for determining that termination would be detrimental to the child because [t]here would be substantial interference with a childs sibling relationship,  in light of various considerations. Additionally, [t]he party claiming the exception bears the burden of proof in the juvenile court to establish that the exception applies. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952 (L. Y. L.).)

We also noted that this sibling relationship exception must be viewed with   legislative preference for adoption when reunification efforts have failed. [Citation.] At this stage of the dependency proceedings, it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home. [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption. (In re Celine R. (2003) 31 Cal.4th 45, 53, italics omitted.)

Whether the sibling relationship exception applies requires a two-prong analysis: first, the court must determine whether terminating parental rights would substantially interfere with a sibling relationship; and second, the court must weigh the childs best interest in continuing the sibling relationship against the benefits of adoption. (L. Y. L., supra, 101 Cal.App.4th at pp. 951-952.)

As this court noted in the earlier appeal with regard to Jasmine, all three children ‑‑ Priscilla, Jasmine, and Jaime, Jr. ‑‑ have been living together since 2000. From all indications, Priscilla will continue to live with her siblings, Jasmine and Jaime, Jr. Therefore, [t]ermination of the parental relationship would not interfere with [Priscillas] sibling relationships because the plan called for her to continue to live in the grandparents home with her siblings. Indeed, there is no evidence in the record on the present appeal indicating any change in circumstances or parental behavior. In fact, substantial evidence supports the termination: between the prior and current appeal, (1) father has been arrested, (2) mother stopped visiting regularly, and (3) both their drug tests have been classified as dirty.

Moreover, the grandparents have maintained their desire to adopt all three children. The record indicates Jaime, Jr.s section 366.26 hearing was set for December 12, 2006, and as far as we know, parental rights over Jaime, Jr., have likely been terminated as well. The juvenile court has declared all three children a sibling group and ordered their placements not to be changed without a noticed court hearing, providing a safeguard that these children will not be separated.

The court therefore did not err in declining to apply the sibling relationship exception in these circumstances.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

RUBIN, J.

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^[1] All further statutory references are to the Welfare and Institutions Code.

^[2] In June 2005, the childrens 18-month old sibling, Franky, was detained from the parents for reasons including fathers drug use. Father also was on parole and, according to the social worker, his criminal behavior remained unresolved.

^[3] In fact, during the May 2006 hearing, after terminating parental rights as to Jasmine, the court had stopped short of terminating parental rights as to both Priscilla and Jaime, Jr., precisely to allow for appropriate due diligence notice.

^[4] The court continued Jaime, Jr.s section 366.26 hearing to December 12, 2006, for a due diligence on an identity unknown father.

^[5] Counsel for DCFS filed a motion to augment the record to add 14 pleadings or minute orders that were inadvertently left out in the clerks transcript for this appeal. These documents pertain to this juvenile court case, but involve Priscillas younger sibling, Franky. Frankys current court status convinced the grandparents that the issues of substance abuse by [the] parents will never become permanently resolved, such that the grandparents are now pushing to legally adopt Jasmine, Priscilla, and Jaime, Jr.