In re Juan L.

Filed 6/26/07 In re Juan L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.}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 orders of the Los Angeles County Superior Court. Robert Stevenson, Juvenile Division Referee. Affirmed.}

^{Kate M. Chandler, by appointment of the Court Of Appeal, for Appellant.}

^{Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Tracey F. Dodds, Principal Deputy County Counsel, for Respondent.}

^{______________________________}

^SUMMARY

Martha N. (mother) appeals from juvenile court orders denying her Welfare and Institutions Code[1]section 388 modification petition seeking custody of her seven children or, in the alternative, liberalized, unmonitored visitation with the children. Mother also contends the court erred in failing to apply either the sibling relationship ( 366.26, subd. (1)(E)) or the beneficial relationship exception ( 366.26, subd. (1)(A)), and instead terminating parental rights to one of her children freeing him for adoption. We find no error, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This is the second appeal in this action. In the first appeal, we affirmed the juvenile courts summary denial of mothers March 21, 2006, section 388 petition on the ground she failed to make a prima facie showing the modification she proposed return of the children to her custody or revival of reunification services and liberalized unmonitored visitation would serve her childrens best interests. We adopt and summarize the statement of facts from our previous decision:

Mothers seven children, ranging in age from four to 13 years old, were detained in June 2003 after Romo L., mothers live-in companion at the time and the presumed father of the three youngest children, assaulted mother, threatened to kill her, and choked her into unconsciousness. In allegations subsequently found true, the petition claimed the children had been exposed for years to extremely violent confrontations between mother and Romo, a substance abuser who physically abused three of the children, Yareli L., Juan L. and Joanna V., and sexually abused Yareli and Joanna. Mother witnessed the childrens molestations but, at first, denied any abuse occurred and allowed Romo to remain in the home with unobstructed access to her daughters. The petition also alleged mother endangered and/or neglected the children by, among other things, permitting Romo to remain in the home, leaving the children alone for extended periods without adult supervision, and failing to provide basic necessities of life.

The children were eventually all placed together in the foster home of Elvira V., except for Juan L., who is severely developmentally disabled and is a RegionalCenterclient. He was placed in a D-rated foster home with Rosa Q., a caretaker able to meet his special needs and cope with his behavioral problems. Mothers reunification plan required her to complete courses on parenting and domestic violence for victims, sex abuse counseling for nonoffenders, and individual and family counseling. She was given monitored visitation with the children, and the siblings were permitted to visit one another for several hours one or more times each week.

For approximately 18 months, mother appeared to comply with her case plan, made progress in her programs and, by all accounts, made great strides in developing and building parenting skills. She consistently visited the children, and the visits went well. However, in early February 2005, DCFS reported mother had, for months, actually placed the children at risk by secretly permitting them to spend unsupervised time with Romo in violation of a court order that he not come within 500 yards of the children. Reunification services were terminated in May 2005. Since then, mother has been restricted to monitored visitation.

DCFS filed section 366.26 reports in early 2006 identifying adoption as the permanent plan for all the children. Juan L.s caretaker had an excellent relationship with him and wanted to adopt him; her homestudy was complete. Juan L., whose disability rendered him largely nonverbal, could not express an opinion regarding adoption, but appeared quite comfortable in his placement and very attached to his caretaker Rosa. The attorney representing the other siblings did not believe adoption was in the childrens best interests because they were a sibling group with a long-term attachment to one another and their mother. The court agreed that adoption of all the children was not realistic. Juan L.s attorney recommended he be adopted. Counsel for the other children and mother opposed that recommendation, and the court set a section 366.26 hearing as to Juan L.

In mid-February 2006, DCFS notified the court that Yareli opposed adoption and was afraid it would prevent her from seeing her mother again. Elvira was not interested in adoption; she wanted legal guardianship. All six children wished to remain in their placement.

On March 21, 2006, Mother filed a section 388 petition. She requested the children be returned to her custody or, in the alternative, that reunification services be reinstated and she be given unmonitored liberal visitation. The petition was summarily denied on the ground mother had failed to state a prima facie case that the proposed modification would serve her childrens best interests. We affirmed that order. (In re Yareli L. (Mar. 16, 2007, B191622) [nonpub. opn.].)

Between December 2005 and June 2006, the court permitted Rosato take Juan L. on numerous trips to Mexico, each of which lasted between a few days to two weeks.

Juan L. and his siblings visited mother once a week until January 2006. Contact between mother and Juan ceased at that time for several months after Juans caregiver claimed mother had threatened her, an accusation mother denied. Mother was unable to arrange for an alternate monitor to supervise visits with Juan L. until April 2006.

On May 1, 2006, six of the children filed a section 388 petition requesting an opportunity to appear at Juan L.s selection and implementation hearing to raise the issue of the sibling relationship exception to the preference for adoption, and to ask that his permanent plan be legal guardianship. ( 366.26, subd. (c)(1)(E).)

The section 366.26 hearing resumed on July 7, 2006. On that date, mother filed a second section 388 petition, requesting again that the children be returned to her custody or, in the alternative, that she be given additional reunification services and liberalized visitation, including overnight visits. Mother claimed her circumstances had changed in that she had a new boyfriend with whom she was living and with whom the children could live, had completed court-ordered counseling, visited the children regularly, and was employed. Mother claimed the proposed modification was in the childrens best interest because they wanted to be with her and, if they were returned to her custody, all the siblings could live together again. She alleged Juan L.s separation from his siblings was motivated by disability discrimination.

On July 10, 2006, the court granted a hearing on the childrens and mothers petitions. Those hearings, to be held at the same time as the section 366.26 hearing, were conducted on July 11 and 19, 2006. At the section 388 hearings, the court accepted an offer of stipulated testimony by Yareli, Juan R. and Joanna that the children did not wish to be adopted. They enjoyed and looked forward to their visits with mother, whom they loved, and wanted visits to continue and increase. The three children said they wanted to remain with Elvira with their other siblings, whom they love and with whom they share emotional commitments. They also said they had a close, loving bond with Juan L. with whom they had lived until 2003, felt protective of him, and wanted him to be part of their lives now and as an adult. They did not want Juan L. to be adopted and were afraid they would lose contact with him.

DCFS introduced a July 7, 2006, social workers (CSW) report. The CSW had investigated mothers current living arrangements. She was living in a two-bedroom apartment with her new boyfriend and two roommates, who had criminal records but planned to move out.[2] Mothers boyfriend had photographs of nude women in the bedroom he and mother shared. The CSW was concerned mother had chosen to live with someone who decorated with pornography, and was also concerned because the children were detained after mother permitted a child molester to have unobstructed access to them even after she became aware of the molestation. Based on these concerns, the CSW was unable to recommend mothers boyfriend be approved as a monitor.

The CSW testified. Since April 2006, she had monitored monthly visits between mother and Juan and, usually, the other children. Juan L. was affectionate with mother, just as Rosa and the RegionalCenterstaff said he was with everyone. (The CSW had never observed Juan L.s interactions with strangers.) Mother seemed to understand Juan L., who did not say much, and hugged, kissed and comforted him. She brought him food, which they ate together. The children played together, and the siblings were protective of Juan L. and hugged and kissed him. The CSW said mother had requested longer visits with her children, and mother and Yareli had complained about missed visits with Juan L. between January and April 2006. The CSW admitted having not arranged those visits, even though she could have monitored the visits herself. The CSW said Rosawas committed to having Juan L. continue visiting his siblings.

The CSW testified that she was not concerned about returning Juan L. to mothers care, but also said she did not believe mother could meet the childs special needs. The CSW believed Juan L. and Rosa have a very good relationship. Her only concerns about mothers home were the nude photos on the wall and the roommates backgrounds. If the pictures were removed, which mothers boyfriend agreed to do, and the roommates left, the CSW would approve visitation in mothers home. The CSW said the siblings had a very positive, close relationship. They played together, and turned to one another for comfort. They told her they did not want to be apart from one another.

The court denied mothers section 388 petition on the ground she had not demonstrated a sufficient change of circumstance, and had not produced evidence showing that the proposed modification would promote the childrens best interest. However, the court gave DCFS discretion to liberalize visitation. The court granted the childrens section 388 petition, permitting them an opportunity to assert the sibling relationship exception to termination of parental rights.

Proceeding to the section 366.26 hearing, the court considered Juan L. independently from the other children. It found mother had failed to meet her burden to establish any exception to section 366.26, and terminated parental rights as to Juan L. With regard to the other children, the court found they were a sibling group and the section 366.236, subdivision (c)(1)(D) exception applied because their caretaker did not wish to adopt. The court ordered a long-term plan of foster care for the remaining six children.[3]This appeal followed.

DISCUSSION

1. The juvenile court did not abuse its discretion by denying mothers section 388 petition.

Mother contends the court abused its discretion when it denied her July 7, 2006section 388 petition because she demonstrated, by a preponderance of evidence, that a change in circumstances justified the proposed modification and that the modification was in her childrens best interest.

a. Insufficiently changed circumstances.

Mother insists her section 388 petition should have been granted. She claims she amply demonstrated a change of circumstances in that she: (1) complied with her case plan; (2) reactivated a criminal complaint against Romo and helped the district attorney obtain his conviction and incarceration;[4](3) had a job and housing; and (4) had learned from her mistakes and was ready to face her parental responsibilities.

The court found otherwise. It concluded, for two related reasons, mother failed to present evidence of changed circumstances sufficient to justify either returning the children to her custody or reviving reunification services and liberalizing her visitation to include overnight visits. First, the court had already deemed it necessary to impose monitored visitation on mother after it was revealed she surreptitiously permitted Romo, who had molested and abused the children, unmonitored access to the children in violation of a court order. Second, mother was apparently unconcerned about having her children visit in the home she shared with a new male companion whom the children did not know, even though that man kept, as the CSW described it, pornography posted on his walls. The court was troubled by mothers conduct and viewed her conduct as a reflection of her poor grasp of the unique circumstances of this case, particularly given the trauma her children had already weathered. As a result, it concluded mother failed to present evidence suggesting an important change of circumstances in her fundamental thinking about boundaries about what is appropriate and inappropriate for her children.

While another court might have concluded otherwise, we cannot say the courts determination was an abuse of its discretion, viz., a patently arbitrary, capricious or absurd determination. (See In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Mother clearly has made significant progress since the inception of this case. Yet, given the nature and severity of the abuse to which the children were subjected for years, it was not unreasonable for the court to exercise caution in its willingness to permit the children ever again to be exploited or placed in a situation where they might be at risk of danger or further emotional harm. Mothers apparent willingness to expose the children to material the CSW described as pornographic that cluttered the home of the stranger with whom mother now lives could well place the children at risk of harm. At a minimum, we find no fault with the conclusion reached by a juvenile court referee who has acquired significant familiarity with the parties and facts of this case during the years it has been pending in his courtroom that mothers casual attitude about the presence of the photographs, in spite of her awareness that the CSW was coming over for the critical purpose of evaluating the home for increased visitation and possible appointment of her companion as a monitor, reflects mothers fundamental lack of understanding about the pathology of sexual abuse and the continued vulnerability of her children.

b. Best interests.

We need not and do not reach the substance of mothers contention that the court also erred in finding the proposed modification would not serve the childrens best interests in light of our conclusion she failed to demonstrate a reversible abuse of discretion in the courts determination that she had not shown a sufficient change of circumstances. (See Cal.Const., art. VI, 13; In re Celine R. (2003) 31 Cal.4th 45, 59-60 [the miscarriage of justice standard in Cal. Const., art. VI, 13 permit[s] reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error].) Even if mothers contentions regarding the ruling on the best interest prong are potentially meritorious, a courts order will not be reversed absent a showing of prejudicial error. Only prejudicial error results in reversal of a judgment. (Sargent Fletcher, Inc. v. Able Corp. ( 2003) 110 Cal.App.4th 1658, 1674.) Because mother failed to make that showing on the first prong of the test, there is no need to analyze the courts independent finding as to the second prong.[5]

2. Termination of parental rights as to Juan L.

a. The sibling relationship exception.

Mother asserts the court erred in terminating parental rights as to Juan L. because the evidence demonstrated the benefits gained by continuing his relationships with his siblings outweighed the benefit Juan L. would obtain by reason of adoption. Mother insists the sibling exception applies because Juan L. was nine years old when the children were detained and had lived with the other children most of his life. The other children hugged and kissed Juan L. and were close to and protective of their profoundly disabled brother. Because Juan L. is largely nonverbal, mother insists the court was bound to look to the opinions and feelings of Juan L.s siblings all of whom opposed adoption, to the extent they expressed themselves as surrogates for how he too must feel. In addition, mother asserts that DCFS and Juan L.s caretaker thwarted visitation between Juan L. and his siblings and her, by keeping them apart for months in early 2006 based on a false accusation of threatened violence, and by taking him to Mexico on multiple extended trips to have him forge a relationship with Rosas family, rather than permitting him to remain here to visit and maintain ties with his biological family.[6]

The sibling relationship exception to terminating parental rights applies if [t]here would be substantial interference with a childs sibling relationship . . . . (366.26, subd. (c)(1)(E).) The purpose of the exception is to preserve sibling relationships that serve as anchors for dependent children whose lives are otherwise in conflict. (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) If termination will substantially interfere with the sibling relationship, section 366.26, subdivision (c)(1)(E) lists numerous factors the juvenile court is to consider in determining whether the circumstances of any given case warrant the application of the exception. First, a juvenile court must consider the nature and extent of the relationship, including, but not limited to, factors such as 1) whether the child was raised with a sibling in the same home, 2) whether the child shared significant common experiences, or 3) whether the child has existing close and strong bonds with a sibling. If the relationship exhibits some or all of these factors, the juvenile court must then go on to balance any benefit, emotional or otherwise, the child would obtain from ongoing contact with the sibling against the benefit of legal permanence the child would obtain through adoption. [Citations.] (Id. at p. 403.) The factors are evaluated exclusively as they relate to the child under consideration for adoption; the focus is not on the other siblings. (In re Celine R., supra,31 Cal.4th at p. 54.)

It is the parents burden to show: (1) the existence of a significant sibling relationship; (2) termination of parental rights would interfere with that relationship; and (3) it would be detrimental to the child to terminate parental rights based on the sibling relationship exception. (In re Erik P., supra, 104 Cal.App.4th at p. 401.) If the parent meets that burden, the court determines whether the benefit to the child in continuing the sibling relationship outweighs the benefit of the permanence and stability provided by adoption. (In re Megan S. (2002) 104 Cal.App.4th 247, 254.) The courts findings are reviewed for substantial evidence. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017.)

In concluding the exception did not exist, the court found a close relationship among all the siblings, and a strong desire among the children to maintain that relationship. However, it also found that the long-term benefits to Juan L., as a child with profound disabilities, of receiving the excellent, attentive and intensive care he had been and could expect to continue receiving throughout his life from his prospective adoptive parents outweighed the detriment of terminating parental rights and interference with his sibling relationships.

Substantial evidence supports the courts conclusion that the sibling relationship exception does not apply. [I]n order to establish the section 366.26, subdivision (c)(1)(E) exception, a party must show a substantial interference with the sibling relationship. (In re Megan S., supra, 104 Cal.App.4th at p. 254.) Where an adoptive home is available that permits sibling visits to continue, and there would be no substantial interference with the sibling relationship, a court may appropriately conclude the exception does not apply. (Ibid.) That is the circumstance here. Based on the history of the case, Juan L. is not likely to lose the benefit of his sibling relationships in view of the courts conclusion that sibling visits would probably continue after adoption. Although a glitch in visitation occurred during the first few months of 2006, when Juan L.s caretaker refused to monitor visits because she feared mother, those problems were resolved well before the section 366.26 hearing. Apart from that period, according to evidence in the record and Juan L.s attorney, Rosahas shown during the three-plus years that Juan L. has lived with her that she is willing to tolerate, has indeed encouraged sibling visitation, and plans to continue to encourage them.[7]

b. The beneficial relationship exception.

To satisfy the beneficial relationship, exception to termination, a parent must prove she has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(A); In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The parent also must prove her relationship with the child promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) No matter how loving and frequent the contact, and notwithstanding the existence of an emotional bond with the child, the parents must show that they occupy a parental role in the childs life. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) The relationship that gives rise to this exception to the statutory preference for adoption characteristically aris[es] from day-to- day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Moreover, [b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the childs needs, it is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

We assume mothers visits and contacts with Juan L. were sufficiently regular to satisfy the visitation prong of the section 366.26, subdivision (c)(1)(A) exception. Still, the record fails to demonstrate mother occupied a sufficiently parental role in Juan L.s life. Although mother was Juan L.s primary caretaker for the first years of his life, during the three years preceding the section 366.26 hearing, it was Rosa who tended to his many, demanding and continuing needs for physical care, nourishment, comfort, affection and stimulation. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Juan L. apparently enjoyed mothers visits and attention, and was affectionate with her. However, evidence also showed that Juan L. behaved in that fashion with everyone, including complete strangers. In any event, pleasant visits fall far short of meeting the requirement that mother prove she and Juan L. shared the significant, positive attachment that characterizes the parent-child relationship, an admittedly difficult task here. (See In re Jasmine D., supra,78 Cal.App.4th at p. 1350 [[A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the childs need for a parent. It would make no sense to forego adoption in order to preserve parental rights in the absence of a real parental relationship].) Moreover, Juan L. was, by all accounts, progressing exceptionally well in Rosas home.

The courts finding this case was not one of the extraordinary situations in which continuing mothers admittedly positive and loving relationship with Juan L. would outweigh the benefits this child can expect to receive in a permanent adoptive home finds adequate supported in the evidence. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425 [courts findings in connection with the (c)(1)(A) exception reviewed for substantial evidence.) The court properly declined to invoke the section 366.26, subdivision (c)(1)(A) exception.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

^{RUBIN, Acting P. J.}

^{FLIER, J.}

^{Publication courtesy of San Diego free legal advice.}

^{Analysis and review provided by Santee Property line Lawyers.}

[1]All statutory references are to this code.

[2]According to mothers section 388 petition, the roommates had already moved out by the date of the report.

[3]Elvira was committed to caring for the siblings but not currently interested in becoming their legal guardian, due to allegations of molestation by a former foster parent.

[4]The record indicates Romos conviction and incarceration was based on his numerous probation violations, not actions taken by mother.

[5] We rejected mothers argument that the court erred in denying her first section 388 petition without a hearing in our prior decision. In re Hashem H. (1996) 45 Cal.3d 1407 has no application.

[6] Mother argues the court cannot have legitimately believed Rosas statement that Juan L. told Rosathat mother took him to see papa because Juan L. is nonverbal. Not so. The record indicates that, although Juan L. has a limited ability to communicate orally, he can form simple, short sentences.

[7] For example, according to Juan L.s attorney, who favored adoption, Rosaregularly spent the whole day at the juvenile court on the dates of hearings just so Juan L. could visit with his brother and sisters.