In re Teresita P.

Filed 9/25/07 In re Teresita P. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. David S. Milton, Judge. Affirmed.

Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Owen L. Gallagher, Principal Deputy County Counsel, for Plaintiff and Respondent.

_______________________

Rosalba M., mother of Teresita P., appeals the juvenile courts termination of her parental rights (Welf. & Inst. Code,[1] 366.26) and contends that the juvenile court should have placed Teresita with a different relative. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Department of Children and Family Services (DCFS) filed a dependency petition pertaining to Teresita and her three siblings on August 3, 2005, in which DCFS alleged that two-year-old Teresita had unexplained fractures to her shoulder, collarbone, wrist, and elbow; that she had a variety of bruises; that these injuries occurred while in her parents custody; and that the injuries were consistent with child abuse. Teresita was also alleged to be failing to thrive. The other children were not reported to be injured or failing to thrive, but based on the injuries to Teresita, DCFS alleged that all four children were at risk of serious physical harm and that their parents had failed to protect them from serious physical harm. ( 300, subds. (a) & (b).) DCFS further alleged that Teresita had suffered severe physical abuse and cruelty ( 300, subds. (e) & (i)), and, correspondingly, with respect to the siblings, that their sibling, Teresita, had been abused. ( 300, subd. (j).)

The juvenile court detained the children and permitted them to remain with the paternal grandparents, with the exception of Teresita, who was not permitted to be placed with her parents or her grandparents because of the proximity of the two homes and concerns about the degree of complicity or knowledge of the suspected abuse of Teresita. The court expressed concern that it seems like all family members are attempting to cover or shield what in fact happened to Teresita, and that accordingly Teresita should not be placed with those individuals. At the time of the detention hearing, Teresita was in the hospital; the juvenile court gave DCFS discretion to place Teresita with other appropriate family members. Teresita was placed with maternal cousins.

On April 21, 2006, the parents stipulated to jurisdiction on an amended petition, and the juvenile court sustained the allegations of the petition as amended, finding the children to be described by section 300, subdivisions (a), (b), (e) and (j). Psychological bonding evaluations were then performed on the children. The evaluator concluded that the oldest children, Christian and Guadalupe, greeted Teresita in a very warm, spontaneous and affectionate manner, with Christian attentive and attached to Teresita and Guadalupe affectionate and obviously pleased to see her. The evaluator concluded that Teresitas separation from her siblings was unlikely to have much immediate impact on her sisters and that it caused the most distress to oldest sibling Christian. The evaluator recommended evaluation of the paternal grandparents to determine their ability to care for the children already in their care if Teresita were to be gradually placed in their home.

The juvenile court denied family reunification services with respect to Teresita but ordered them for the remaining siblings. Teresitas case proceeded to a 366.26 hearing. Shortly before the 366.26 hearing, Teresitas counsel filed a section 388 petition seeking to have Teresita moved to the home of the paternal grandparents, where her siblings were living. The juvenile court denied the motion without a hearing.

At the 366.26 hearing, both parents testified that they were not opposed to Teresita being adopted by her paternal grandmother. Teresitas attorney argued that the parents rights should be terminated but that Teresita should be adopted by her paternal grandparents rather than the cousins with whom she had been placed because her relationship with her siblings was close and strong. Mothers counsel confirmed that Rosalba was not opposed to adoption, but she would like the adoption with the paternal grandmother, then argued that Teresita and her siblings were very close. Mothers counsel concluded, So I think that it would be detrimental if this child wasif parental rights were terminated and this child was left in the care of the current caretakers. [] It would be far better for her to be with the siblings, with the paternal grandmother, and then the paternal grandmother could continue what shes doing now, which would be arrange for visits of all the siblings with [the cousins]. Fathers counsel told the court that the parents are asserting, as far as their relationship with Teresita, its rather theyre in support of a [366.26, subdivision] (c)(1)(E) exception and the best interest of Teresita that she be allowed to grow up in the same environment as the three other children currently placed with the grandmother.

Testimony was taken at the 366.26 hearing about the relationship between Teresita and her siblings. Rosalba testified that at visits, Teresita would run to hug her sisters and brother. Christian and Guadalupe would play with her. They would eat food together during visits. Christian and Teresita got along very well. Teresita interacted well with all of her siblings, although she and Guadalupe did not get along very well. At the end of the visit, the children would kiss each other. Teresitas father, Victor P., also testified that Teresita was happy to see her siblings and played with them during visits. He said that at the end of visits, all the children were sad but they did not cry. At the first few visits, Teresita used to cry at the end of the visit. Victor testified that prior to Teresitas removal from the home, she was with her siblings and family all the time, and that she had a good relationship with her older siblings. The paternal grandmother also testified that at the first few visits, Teresita would try to leave with her family at the end of the visit. An investigator testified that the children played well together, laughing and smiling, and appeared to enjoy their time together.

Teresitas parents and grandmother did not acknowledge child abuse at the 366.26 hearing. Rosalba testified that Teresita used to injure herself a lot by tripping. She acknowledged that Teresita no longer tripped herself, fell, or was injured since her removal from parental custody. Rosalba blamed Teresitas being underweight and underfed while in her custody on medicine, and acknowledged that now Teresita was of normal weight and size. Victor testified that prior to removal, Teresitas size was appropriate for her age and her weight was normal. He said that Teresita had weak bones. Victor testified that when she walked she would fall, and thats where she would hurt herself. He said that she ate too much and that she was chubby until she began taking medicine. Victor testified that he twice saw Teresita fall and sustain injuries, but he did not take her to the doctor because they were not severe injuries. He denied that her falls were severe enough to cause fractureseven when she fell on concrete and began to cry. Victor denied being aware of fractures to Teresitas arms, bruises on her face, arm, thighs, shins, chest, shoulder, and lower back. He acknowledged that Teresita had gained weight since being in the home of her cousins. Teresitas paternal grandmother said that she had taken Teresita to the doctor because she was falling a lot and she was eating, but the food was not nourishing her. She said that the doctors said that Teresita was okay and everything. She had known that Teresita had fallen, and instructed her son to be more careful with her. The paternal grandmother also determined that Teresita had broken her arm in what Rosalba said was a fall from her stroller, because she could see that the arm was very loose.

The juvenile court ruled that the family had essentially manufactured a case for the sibling exception. The court observed that visits with Teresita were not regular until the paternal grandmother decided that she wanted to try to adopt Teresita. Only then did visits increase. The court explained, I think thats significant, that thats when the visits really began on a regular basis. And it appears that it was at that timethe parents never really contested or objected to having their parental rights terminated. They believed that Teresita was being cared for quite well in the home of the present caregivers, Marco and Stacy L[.], their cousins. And it appears from the evidence that they assumed that the [cousins] would adopt Teresita. [] But then in June of 06, the grandmother decided shed fight for Teresita, and she would be able to adopt Teresita. Thats when grandmother first started visiting Teresita, and thats when the regular visitation by all the others concerned here began to take place. [] And it appears that its kind of like artificial that the sibling exception was being created here as of June of 06 forward as to when the intense visitation schedule began and when the grandmother, the paternal grandmother . . . began her visits for the first time in a long time.

The court acknowledged that there was a relationship between Teresita and her older siblings. Teresita did not get along with her older sister Guadalupe, but she did have a loving relationship with her older brother Christian. The court observed, It appears to the court from the testimony again that there is, again, a relationship between Teresita and her siblings. Bridgett[e] not being old enough to understand, but Christian and Guadalupe. The testimony by the parents themselves are that Teresita didnt even get along with Guadalupe; so the concern was with Christian. [] Christian was three-plus at the time of Teresitas removal, who was one-plus at the time, and hasnt lived with them since. And the visitation began to intensify in 2006, not after the child was removed. After the child was removed, six months went by, and they visited the child twice. [] It was when they attempted to create the sibling exception that the visitation began to intensify. And while the court finds that the sibling visitation and contact is important, theres no reason to believe that the adoption by the L[.] family would significantly interfere with that, certainly not terminate it. [] Then the court compares all the benefits of the chance that Teresita might be adopted by [her grandmother], which the court certainly wouldnt recommend based on what the court knows about this file. It would be as if the court were returning the child to the parents who placed her in the grave danger before she was removed. In comparison, the court doesnt find that the sibling exception applies. The court terminated the parents rights to Teresita, continued her placement with the cousins, and continued adoption as the permanent plan for Teresita. Rosalba appealed.

DISCUSSION

I. Teresitas Placement

Rosalba contends that the juvenile court abused its discretion in denying placement with the paternal grandmother when Rosalba and Teresitas counsel argued for that placement at the 366.26 hearing. She argues that she has standing to raise the relative placement issue on appeal, and that the court should have followed section 361.3, which provides for preferential consideration for a relative requesting that the minor be placed in the relatives home. County counsel denies that she has standing to raise this issue on appeal, and also argues waiver, inapplicability of section 361.3, and that the juvenile court did not abuse its discretion in declining to change Teresitas placement at the 366.26 hearing.

Mothers request that Teresita be moved from her longstanding placement with cousins to the home of the paternal grandmother is procedurally unusual. While the parties argue back and forth the degree to which Rosalba acquiesced in or objected to Teresitas placement earlier in the dependency proceedings, Rosalba did not appeal the disposition under section 300, nor did she ever file a section 388 petition seeking to modify Teresitas placement. Teresitas counsel did file a section 388 petition on October 25, 2006shortly before the section 366.26 hearing began on November 1, 2006requesting that Teresita be moved to the home of her grandmother. Rosalba appears to be trying to appeal that order in her notice of appeal, as it specifies a section 388 petition by the childs attorney as an appealable order relating to the dependency.

County counsel argues that Rosalba has no standing to appeal Teresitas placement because she is not an aggrieved party. We recognize the existence of differing views of the scope of a parents interest under these circumstances (compare, e.g., Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035 [holding that in the absence of reunification services, father had no standing to appeal placement decision] with In re Daniel D. (1994) 24 Cal.App.4th 1823, 1834-1835 [mother had standing to raise denial of relative placement preference] and In re H.G. (2006) 146 Cal.App.4th 1, 9-10 [parent has standing to appeal placement order even after termination of reunification services because until parental rights are terminated, parent has a fundamental interest in the childs companionship, custody, management and care].) We need not resolve this difference in views here, for even assuming that Rosalba has standing to appeal this question, the juvenile court did not err.

It is clear that in October and November of 2006, the parties attempted to achieve a change in Teresitas placement to the home of her paternal grandmother. Teresitas counsel employed the proper method of seeking a changefiling a section 388 petition. Section 388 permits the court, upon grounds of change of circumstance or new evidence . . . to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. ( 388, subd. (a).) The statute, an escape mechanism that allows the dependency court to consider new information even after parental reunification efforts have been terminated (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316), permits the modification of a prior order only when the petitioner establishes by a preponderance of the evidence that (1) changed circumstances or new evidence exists; and (2) the proposed change would promote the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)

The juvenile court need only hold a hearing on petitions that demonstrate on their face that the change requested may promote the best interests of the child. ( 388, subd. (c).) If the petition fails to state a change of circumstance or new evidence that might require a change of order or termination of jurisdiction, the court may deny the application ex parte. (Former Cal. Rules of Court, rule 1432; now amended and renumbered as rule 5.570(d).) Here, the section 388 petition was clearly inadequate to require a hearing. The petition alleged that the changed circumstance or new evidence was DCFSs recommendation that Teresita be freed for adoption. The change in placement was alleged to be in Teresitas best interests because the sibling relationship would be adversely affected by adoption by Teresitas current caretakers. A declaration submitted in support of the petition by the paternal grandmother stated that she wanted to adopt Teresita and that additional contact with the siblings would be possible if the placement was changed. The juvenile court denied the motion without a hearing on the ground that the petition failed to demonstrate how the requested modification would promote the best interests of the child. Rosalba does not argue, nor can it be established, that denial of the section 388 petition without a hearing was an abuse of discretion, as the petition did not demonstrate that the proposed change in Teresitas placement was in her best interests.

Section 361.3, establishing preferential consideration for a relative seeking placement of a minor, does not come into play here. By its own terms, section 361.3 applies at the time a child is removed from the physical custody of his or her parents and [s]ubsequent to the hearing conducted pursuant to Section 358 [disposition], whenever a new placement of the child must be made. ( 361.3, subd. (d); In re Lauren R. (2007) 148 Cal.App.4th 841, 854 [The preference applies at the dispositional hearing and thereafter whenever a new placement of the child must be made . . . ].) Teresitas placement at the disposition hearing was long ago determined and can no longer be appealed, nor were there circumstances here in which a new placement of the child needed to be made. Teresitas placement with her cousins, while not the preference of her parents and paternal grandmother, was undisturbed, and they remained eligible caregivers. The desire to move a child from one placement to a relative placement to set up the possibility of an adoption by that relative is not a necessary new placement within the meaning of section 361.3. (In re Lauren R., at pp. 854-855.) There is no relative placement preference for adoption. (Id. at p. 855.) As there was no need for a new placement for Teresita, section 361.3 simply was not relevant to the decisions made on the section 388 petition and at the 366.26 hearing.

II. Applicability of the Sibling Exception

At a hearing under section 366.26, the court must select and implement a permanent plan for a dependent child. Where there is no probability of reunification with a parent, adoption is the preferred permanent plan. (In re Edward R. (1993) 12 Cal.App.4th 116, 122.) In order for the juvenile court to implement adoption as the permanent plan, it must find, by clear and convincing evidence, that the minor is likely to be adopted if parental rights are terminated. ( 366.26, subd. (c)(1).) Then, in the absence of evidence that termination of parental rights would be detrimental to the child under one of six statutorily-specified exceptions ( 366.26, subd. (c)(1)(A)-(F)), the juvenile court shall terminate parental rights. ( 366.26, subd. (c)(1).)

One of these exceptions, in section 366.26, subdivision (c)(1)(E), provides that the court may decline to terminate parental rights if it finds a compelling reason for determining that termination of rights would be detrimental to the child because [t]here would be substantial interference with a childs 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 childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption. The juvenile court found Teresita to be adoptable, and although the court concluded that a relationship existed among the children, the court concluded that the sibling exception did not apply. Finding no reason that the termination of parental rights would be detrimental to Teresita, the juvenile court terminated her parents parental rights.

Teresitas counsel and parents attempted to use the 366.26 hearing to secure a change in Teresitas placement by way of a sort of conditional objection to the termination of parental rights at the 366.26 hearing. Teresitas parents both asserted that they had no opposition to the termination of their parental rights as long as Teresita was adopted by her paternal grandmother to preserve her relationship with her siblings. We construe this position broadly as an argument that the relationship between Teresita and her siblings was such that the termination of parental rights would substantially interfere with that relationship unless Teresita was placed with, and adopted by, the paternal grandmother, who could ensure that the sibling relationship continued unimpeded despite the termination of parental rights. On this liberal interpretation of the arguments raised at the 366.26 hearing, we review the juvenile courts determination that no exceptional circumstances exist for substantial evidence (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947) and affirm the order.

Substantial evidence supports the juvenile courts determination that the sibling exception did not apply. Teresita had lived with her siblings for her first 26 months. Certainly there was a relationship between Teresita and her two older siblings, particularly an attached and affectionate relationship between Teresita and her brother Christian, who was two-and-one-half years older than Teresita. Teresita and her sister Guadalupe, closer in age, tended to fight more, although Guadalupe was nonetheless affectionate toward her. Teresita also tended to express interest in her other sister, Bridgette, giving her hugs and kisses. Regular visits between the children were described as positive, and Teresita looked forward to her siblings visits.

There is no dispute that there existed a relationship between Teresita and her siblings, but this is not the end of the inquiry: the juvenile court must determine whether terminating parental rights would substantially interfere with the sibling relationship by evaluating the nature and extent of the relationship. (In re L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.) If so, the court then proceeds to balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer. (Id. at p.951.)

There was no evidence that terminating parental rights would substantially interfere with Teresitas relationship with her siblings. Teresitas maternal cousins, her prospective adoptive parents, reported a willingness to permit continued visitation with the siblings, although they did indicate that visits would not be weekly. Rosalba claims on appeal that her cousins already interfered with the relationship, in that they had canceled visits and they did not celebrate Teresitas birthday with the siblings. The record does not show this purported interference. Depending on the witness, the evidence was that the cousins had canceled between one and three visits. As far as birthdays and holidays, the record citation provided by Rosalba to support her assertion that the siblings were prevented by the cousins from celebrating Teresitas birthday with her is a passage in the paternal grandmothers testimony in which she said she had never celebrated birthdays or holidays with Teresita but that she had never asked to do so, nor had she ever been told she was not allowed to do so.

The parents did not produce evidence that the termination of parental rights would cause detriment to Teresita. The evaluator said that her absence may cause the most distress to Christian, but that her separation from her sisters is not likely to have much immediate impact on her relationship with Guadalupe or the baby . . . . What is notably missing from this description is an indication that there would be any harm to Teresita from her separation from her siblings. Contrary to mothers assertion, the evaluator did not recommend[] the siblings be reunited in the care of their paternal grandparents. Instead, he recommended that Teresita be left in her present placement and that the paternal grandparents be evaluated to better determine their ability to care for the children already in their care should the minor Teres[]ita, mainly for the sake of her relationship with her siblings, be gradually replaced into their home. The evaluator also thought that an open adoption of Teresita by her cousins might succeed. Mother did not show that there was a significant sibling relationship, the severance of which would be detrimental to Teresita. (In re L.Y.L., supra, 101 Cal.App.4th at p. 952.) As the L.Y.L. court observed, Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship. (Ibid.)

Even if we were to assume that the evidence was sufficient to establish a detriment to Teresita from the termination of parental rights, the balance of the sibling relationship versus the benefits of adoption clearly tilts in favor of the adoption. Teresita had thrived for more than one year in the home of her maternal cousins, who were prepared to adopt her. She adjusted well in the home of her prospective adoptive parents. They attended to her medical, physical, emotional, and psychological needs. They took her to her failure to thrive clinica drive from Riverside to Torrance. They sought speech therapy evaluation. Teresita had a nurturing and loving relationship with them, and called them Mommy and Daddy.

Failing to terminate parental rights would have deprived Teresita of the permanent home that her caregivers were prepared to provide to her. She had little or no prospect of reunification with her parents, who apparently never acknowledged that they caused her failure to thrive or her multiple fractures and were amenable to her adoption provided that they selected the adopting party. Moreover, the extent of the benefits of continuing Teresitas relationship with her siblings is unclear on the record in this case; there is no evidence that they outweighed the value of a permanent home in which she was thriving. The balance is all the more in favor of adoption if, as Rosalba appears to believe, the refusal to terminate parental rights would have led to Teresitas placement being changed to the home of the paternal grandmother. While the paternal grandmother is not believed to have committed any child abuse, neither she nor the parents ever acknowledged that Teresita had been abused. Placing Teresita with the paternal grandmother would have led to dramatically increased contact not just with her siblings, but also with Teresitas parents; the juvenile court reasonably considered this placement tantamount to delivering Teresita back to those who injured her in the first place and who continued to deny it. Particularly under these circumstances, but even if no change in placement was contemplated, substantial evidence supports the juvenile courts conclusion that the benefits to Teresita of adoption outweighed the benefits of continuing her relationship with her siblings. (See In re L.Y.L., supra, 101 Cal.App.4th at p. 953.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ZELON, J.

We concur:

PERLUSS, P. J.

JOHNSON, J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line Lawyers.

[1] Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.