Matthew R. v. Sup. Ct.

Filed 3/14/07 Matthew R. v. Sup. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Kenneth C. Twisselman II, Judge.

Mark Arnold, Public Defender, and Kerin Christensen, Deputy Public Defender, for Petitioners.

No appearance for Respondent.

B.C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Petitioners, Matthew, Anthony and Andrew, minors, seek an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the dispositional order of the juvenile court denying them visitation with their sister, S. We will deny the petition.

STATEMENTOF THE CASE AND FACTS

Dependency proceedings were initiated in June 2006 when then three-month-old S. and her three brothers, five-year-old Matthew, three-year-old Anthony and one-year-old Andrew, were removed from their parents, G. and E., an unmarried couple, by the Kern County Department of Human Services (department) after S. was diagnosed with failure to thrive and severe anemia and admitted to the hospital. During its investigation, the department learned that G. and E.s relationship was marred by drug use and domestic violence and that there was some question as to whether E. was S.s biological father. Doubts about E.s paternity arose while G. was pregnant with S. and resulted in heated arguments and accusations of infidelity. G. considered aborting S. to spite E. She also smoked methamphetamine during her pregnancy and several days before S. was born.

Despite any differences they may have had, G. and E. remained together after S.s birth and continued to raise their four children. However, they deprived S. of nutrition by deliberately diluting her formula and withholding protein-enriched formula provided by S.s doctor. When S. was removed from G. and E.s custody, she was wasted and pale, her abdomen was distended and she had only gained about two pounds since her birth.

Given what appeared to be G. and E.s deliberate act of starving S., the department filed a dependency petition on behalf of all four children, alleging serious physical harm, severe physical abuse and cruelty ( 300, subds. (a), (e) & (i)) as to S. and failure to protect ( 300, subd. (b)) as to all four children. At the detention hearing on the petition, the juvenile court ordered the children detained, appointed counsel to represent them and declared E. the childrens presumed father based on his testimony. The court also granted minors counsels request to exclude S. from sibling visitation until further order of the court. The children were placed in foster care, however, it is not clear which, if any of them, were placed together.

In August, E. submitted a request for paternity testing, which the court ordered. The court also ordered G. to undergo a psychological evaluation, which she completed in October. She was diagnosed with major depressive disorder but was considered capable of benefiting from reunification services.

Meanwhile, in early September, all four children were placed in the home of their maternal grandparents for about 20 days until a social worker found G. in the home babysitting the children. S. and her brothers were removed and S. was placed with one of her brothers in one of two foster homes.

In mid-October, the court conducted a contested jurisdictional hearing. The court adjudged the children dependents and set the dispositional hearing for November 8. On November 7, the department received the results of the paternity testing, identifying E. as S.s biological father.

In its dispositional report, the department stated that G. and E. continued to use methamphetamine but visited weekly with the children as a family. During visitation, E. and the three boys interacted often and displayed a strong parent/child bond. G. generally held S. and E. attempted to bond with S. by picking her up and talking to her. However, despite G. and E.s attempts to bond the family, the department questioned their ability to successfully reunify with S. given the severity of abuse they inflicted on her and E.s doubt about his paternity. Further, since S. was bonded to her foster parents and since they wanted to adopt her, the department recommended the court deny E. and G. reunification services as to S. and proceed to a permanent plan of adoption. Conversely, the department recommended the court pursue a plan of reunification for E. and G. and their three sons.

In light of the departments divergent plans for S. and her brothers, the court appointed separate counsel for S. and asked the department to determine whether E. treated S. differently after paternity testing confirmed he is her biological father. In a supplemental report, the department advised the court E.s treatment of S. had not changed. In addition, several drug screens conducted in November evidenced G. and E.s continued use of methamphetamine.

On December 11, 2006, the court conducted the dispositional hearing. G. and E. argued for services as to all four children. Petitioners counsel argued for services including sibling visitation, which S.s attorney opposed based on lack of a sibling bond and divergent permanent plans. However, following the courts inquiry, petitioners counsel conceded there is no statutory mandate for sibling visitation. Consequently, the court ordered no further sibling visitation with S. The court also ordered reunification services for G. and E. as to petitioners and set a six-month review hearing in February 2007. The court denied services to G. and E. ( 361.5, subds. (b)(5) & (b)(6)) as to S. and set a section 366.26 hearing for April 10, 2007.

Petitioners subsequently filed a notice of appeal (F051963) and a notice of intent (F051934) from the courts dispositional order denying them visitation with S. The cases were consolidated into these writ proceedings. Neither G. nor E. appealed the courts dispositional orders and findings.

DISCUSSION

As petitioners correctly argue, the dependency statutes favor ongoing and frequent contact between siblings. ( 16002, subd. (b).) To that end, the juvenile court is mandated to order sibling visitation either as part of an overall plan to reunify the siblings or as part of a permanent plan unless the court determines by clear and convincing evidence that sibling interaction is detrimental to the child or children. ( 362.1, subd. (2); 16002, subd. (b).)

On appeal, we review a juvenile courts order denying visitation for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (Ibid.)
In this case, petitioners fail to show how the juvenile court abused its discretion in terminating their visitation with S. considering she was not bonded to them and the tentative plan was to permanently sever her ties to the family, which included them. To maintain sibling contact, under the circumstances, would only serve to confuse petitioners as well as S. and undermine the departments efforts to simultaneously effectuate reunification and permanency planning. Though we understand petitioners interest in preserving a relationship with their sister and recognize failed reunification may place them together again, nevertheless, the juvenile court properly acted in S.s best interest by terminating sibling visitation. That is not to say that petitioners are foreclosed from seeking a modification of the courts visitation order should circumstances change such that a resumption in sibling visitation would be in S.s best interest. ( 388.) However, on these facts, we find no error.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^*Before Harris, Acting P.J., Cornell, J., and Kane, J.