In re Michael D.

Filed 2/15/07  In re Michael D. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

          APPEAL from an order of the Superior Court of Los Angeles County, Anthony Trendacosta, Commissioner.  Affirmed.

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

          Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

          Maritza M. (Mother) appeals from the order of the dependency court following a Welfare and Institutions Code section 366.26[1] selection and implementation hearing, at which the court terminated parental rights as to her sons, Michael D. and Jackson D.  Mother contends the evidence established that the strength of the boys' relationship with their older siblings, and the likelihood of interference with that relationship if the boys were adopted, warranted application of the sibling relationship exception in section 366.26, subdivision (c)(1)(E).  We disagree and affirm the judgment.

factual and procedural background

          The first portion of the following factual and procedural background is taken from this court's prior unpublished opinion in this matter (B171077, filed Aug. 3, 2004):

          On August 1, 2002, the Department of Children and Family Services (DCFS) initiated dependency proceedings regarding Mother's seven children after her daughter Paola (born Aug. 1989) was taken to the emergency room and later tested positive for benzodiazepines, a relaxant (commonly referred to as Valium).  Paola told officials that her stepfather, Jose D., had put something in her drink that made her feel sick.  While in the emergency room, Paola disclosed that Jose D. had been molesting her since she arrived from El Salvador a month before.  Police later took custody of Paola's six siblings, Tirza (born Oct. 1986), Jose (born Jan. 1992), Dennis (born Oct. 1993), Jonathan (born Mar. 1996), Michael and Jackson (twins, born Mar. 2000).[2] 

          Upon being taken into custody, Tirza disclosed to police that she had also been molested and forced to have sexual intercourse with Father on more than 100 occasions since February 2000.  Both girls stated that Mother was aware of the abuse.  Both Mother and Father were arrested and charged with two counts of lewd and lascivious acts with a child, pursuant to Penal Code sections 288, subdivision (a) and 288.5.

On September 26, 2002, a first amended petition was filed detailing the parents' physical abuse of the children.  The abuse included forcefully striking the children with belts, shoes, and extension cords.  The petition further alleged that on one or more occasions, Father shook and threw Jackson, causing him to stop breathing and lose consciousness.  The petition also alleged that Mother participated in the sexual abuse of Tirza, including kissing the child, fondling her genitals, and forcing her to have sex with Father.  The findings of Tirza's physical examination were consistent with the sexual abuse she described.

          On May 15, 2003, the court sustained the amended section 300 petition in its entirety.  The court found the children were described by section 300, subdivisions (a) (serious physical harm), (b) (neglect and failure to protect), (c) (emotional abuse), (d) (sexual abuse), (e) (severe physical abuse of a child under the age of five), (g) (abandonment by father), (i) (cruelty), and (j) (abuse of a sibling). 

          In October 2003, Mother was convicted of committing a lewd act upon a child, a felony, pursuant to Penal Code section 288, subdivision (c)(1).  Father was convicted of two counts of committing a lewd act upon a child under the age of 14 years (Pen. Code, §  288, subd. (a)) and one count of committing a lewd act upon a child 14 or 15 years of age (Pen. Code, §  288, subd. (c)(1)).

          At the contested disposition hearing on October 29, 2003, the children were designated as a sibling unit.  The court denied further reunification services under section 361.5, subdivision (b)(6).  The court also implicitly denied reunification services under section 361.5, subdivision (e) (parent incarcerated and time limit under subd. (a) had elapsed).  The court noted that because the children were designated a sibling unit and some of the children were under the age of three at the time of detention, a shorter reunification period applied, and in fact the case was nine months beyond the statutorily prescribed reunification period.  The court also set a section 366.26 hearing.

          Mother filed a notice of appeal from the jurisdictional and dispositional orders.  Although the jurisdictional order became reviewable only when the dispositional order was entered, and the dispositional order was made at the same time as the order terminating reunification services (§  366.26, subd. (l)) and thus was reviewable only by way of a petition for extraordinary writ, we chose to treat the appeal as a writ proceeding.  In an unpublished opinion filed August 3, 2004 (B171077), we affirmed the challenged orders.

          From the time the children were detained in late July 2002, all seven of them never resided in the same foster home.  For a few months, Michael, Jackson, and Jose were in the same foster home, and Paola later joined them.  By October 2002, Michael and Jackson resided together without any of their siblings.  In February 2004, Michael and Jackson were moved to the same foster home as their three older brothers.  The foster mother wished to adopt Michael and Jackson; she was pursuing legal guardianship as to the three older boys because they did not want to be adopted.  In March 2004, the court identified adoption as the permanent placement goal for Michael and Jackson.

          Sibling visits were scheduled to occur bi-monthly, but from the outset it was difficult to get the seven children together.  By May 2004, all of the boys were removed from their foster home due to allegations of abuse by the foster mother's son.  Michael and Jackson were placed with their current foster parents, Maria and Jose E., who were interested in adopting the twins.  The E.'s were willing to facilitate sibling visits.  At a section 366.26 hearing held on May 27, 2004, the court found that Tirza, Paola, Jose, Dennis, and Jonathan were not presently adoptable, and designated long-term foster care as the permanent plan for them.  Adoption remained the permanent placement goal for Michael and Jackson. 

          DCFS reported for a hearing in December 2004 that Michael and Jackson visited their brothers regularly.  Tirza visited the twins sporadically, although the E.'s were very cooperative in arranging visits and welcomed Tirza for overnight visits in their home.  Paola did not visit with her siblings.  The twins were reported to be adjusting well to living with the E.'s, who were eager to adopt them.  The children were closely bonded to the E.'s, and called them â€