In re Connor B.

Filed 8/29/06 In re Connor B. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Amador)

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Peter B., father of the minor, Connor, appeals from orders of the juvenile court terminating his parental rights. Appellant contends the juvenile court erred in terminating his parental rights because the evidence showed termination would be detrimental to the minor due to the existence of a sibling bond. We affirm.

FACTS

In October 2003, the minors Ryan, age 10, and Connor, age two, were detained on a petition which alleged domestic violence and neglect.^[1] The court sustained the petition and adopted a reunification plan for the parents. Appellant was initially successful in reunification, resulting in the return of Ryan and Connor to his custody under a family maintenance plan in May 2004.

A year after the minors’ return to appellant’s custody, they were again removed pursuant to a supplemental petition which alleged appellant was permitting the minors to have unsupervised contact with the mother and drug paraphernalia had been found in his room. The minors were placed with the paternal grandmother. Because services had been offered to appellant for more than 18 months, the court denied further services and set a Welfare and Institutions Code^[2] section 366.26 hearing.

Minors’ counsel requested, and the social worker scheduled, a bonding study to assess the relationship between Ryan and Connor. According to the assessment, Connor was observed to be desperate to involve Ryan and became increasingly frantic and aggressive as Ryan ignored and then verbally belittled him. The assessment concluded that the bonding was far more negative than positive and was potentially dangerous to Connor. Also, there was a risk Ryan would take on the role of “a cruel big brother” on a permanent basis.

The November 2005 report for the section 366.26 hearing stated that four-year-old Connor was in a prospective adoptive placement and 12-year-old Ryan remained with the paternal grandmother. The report recommended a permanent plan of adoption for Connor and long-term foster care for Ryan who did not want to be adopted. The report stated that the minors’ caretakers had permitted unsupervised visitation and this contributed to Ryan’s belief that he would return to appellant’s custody. As a result, Ryan took his anger out on Connor. The report stated that termination of parental rights would not be detrimental to Connor because he needed protection and permanence and the sibling relationship was not positive.

The state Department of Social Services adoption assessment concluded adoption was the appropriate permanent plan for Connor. The adoption specialist met with the minors while both were still at the paternal grandparent’s home. The specialist observed unprovoked aggression and verbal abuse by Ryan toward Connor and noted Ryan’s mental and emotional status appeared to be “compromised” noting he was prone to outbursts and appeared depressed and angry. Connor had some speech and motor delays and ignored attempts by the paternal grandparent to redirect him. The adoption specialist, recognizing the preference for placing the siblings together, nonetheless did not believe Ryan’s reluctance to be adopted should interfere with Connor’s right to permanency.

At the section 366.26 hearing the court adopted a permanent plan of long-term foster care for Ryan and suspended visitation between him and Connor pending further hearing. At the contested hearing, the adoption specialist testified the minor was doing well in his prospective adoptive home. Connor’s aggression had decreased, the prospective adoptive mother was able to redirect him and he responded to her. She reiterated the statements from her report about Ryan’s behavior toward Connor and noted that, in her contacts with him, Connor never talked about his brothers or asked to see them. She testified she had considered Keith’s relationship with Connor in her assessment, including the fact that he had not lived with Connor for several years. She selected a prospective adoptive placement that would allow contact with relatives. Currently, cards and letters were being exchanged.

The social worker testified he had observed 16-year-old Keith and Connor interact. He stated that Connor would try to get Keith’s attention and Keith would respond to him and try to entertain him. At the latest visit, Keith brought toys and did a good job interacting with Connor. Despite the positive interactions between Keith and Connor, the social worker still believed that Connor would benefit more by having permanence than by continued interaction with his siblings.

Appellant, the paternal grandmother, with whom Ryan and Connor lived, and the maternal grandmother, who had supervised sibling visits, all testified that the minors got along well, that the older boys played with Connor and that Ryan was not abusive to him. Keith testified that he missed Connor and described interaction between the brothers during a visit which included Connor hitting Ryan who pushed him away.

After hearing testimony and argument, the court terminated parental rights, finding no exception to the preference for adoption had been established. The court also denied sibling visitation for a period of three months and ordered counseling for both Ryan and Connor on the issue.

DISCUSSION

Appellant contends the court erred in terminating parental rights because the evidence showed there was a significant sibling relationship and severing that relationship would be detrimental to the minor.

“‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1995) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances which permit the court to find a “compelling reason for determining that termination would be detrimental to the child.”

(§ 366.26, subd. (c)(1).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 1463(e)(3); Evid. Code, § 500.)

One circumstance under which termination of parental rights would be detrimental is when “[t]here would be substantial interference with a child’s 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 child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (§ 366.26, subd. (c)(1)(E).)

The court must consider the interests of the adoptive child, not the siblings, in determining whether termination would be detrimental to the adoptive child. (In re Celine R. (2003) 31 Cal.4th 45, 49-50.) “To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. 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.” (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952, fn. omitted.)

Appellant has not met his burden. The evidence was, at best, conflicting and the court resolved the conflict adversely to appellant. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

The relationship between Ryan and Connor was seriously troubled due to Ryan’s anger and Connor’s need for attention. Appellant’s argument that this would improve with counseling is only speculation. Keith has not lived with Connor or shared his experiences outside intermittent visitations. While their relationship is positive, it cannot be characterized as significant to Connor. On the other hand, Connor has clearly benefited already from the stability of the prospective adoptive home in that his aggression has decreased and he is responsive to direction from his prospective adoptive parent. Connor’s need for permanence and stability in a home where his needs will be recognized and met clearly outweighs the marginal benefits of continued contact with his siblings. The juvenile court did not err in finding that appellant had not established that termination of parental rights would be detrimental to Connor due to the existence of a significant sibling bond.

DISPOSITION

The orders of the juvenile court are affirmed.

ROBIE , J.

We concur:

SCOTLAND , P.J.

RAYE , J.

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^[1] Ryan is not a subject of this appeal. Ryan and an older sibling, Keith, were previously removed in May 1999. Keith was placed with the maternal grandmother who eventually was appointed his guardian, while Ryan was returned home.

^[2] All further statutory references are to the Penal Code unless otherwise indicated.