Filed 4/27/21 In re M.J. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed.

Christopher R. Booth, under appointment by the Court of Appeal, for Minor and Appellant M.J.

Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant B.A.

Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.

M.J., a minor child, and her mother, B.A. (Mother), appeal from orders of the juvenile court terminating Mother’s parental rights with respect to M.J. and her younger sibling, D.W., Jr. (D.W.) M.J. asserts the juvenile court erred by concluding she was adoptable, despite her own objection to being adopted. Mother contends the court erred by not applying the sibling bond exception set forth in Welfare and Institutions Code[1] section 366.26, subdivisions (c)(1)(B)(v). We conclude the juvenile court did not err in either respect and affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

A.

Mother has a lengthy history of substance abuse and frequently left M.J. with a maternal great-aunt when M.J. was young. The aunt obtained legal guardianship of M.J. when she was approximately four years old.

D.W., Mother’s second child, was born in June 2016. Mother and D.W. tested positive for methamphetamine at birth, and Mother admitted to drinking alcohol and using methamphetamine and marijuana regularly while pregnant. Mother told the Agency her aunt was caring for M.J. but was not aware the aunt had obtained legal guardianship.

D.W.’s presumed father (Father)[2] was present in the hospital and appeared to be under the influence as well. He subsequently told the San Diego County Health and Human Services Agency (the Agency) he was enrolled in a substance abuse program as a condition of probation.

The Agency filed a juvenile dependency petition on behalf of D.W. on June 15, 2016. The juvenile court found the Agency had made a prima facie showing on the petition and detained D.W. in a licensed foster home.

Mother entered a residential substance abuse treatment program. Both parents visited D.W. regularly and were cooperative with the Agency. A paternity test confirmed Father as D.W.’s biological father and D.W. was placed with a paternal great-aunt and uncle.

On August 30, 2016, the juvenile court found jurisdiction over D.W. by clear and convincing evidence and continued the placement with a paternal great-aunt and uncle.

In September, Father was arrested for leaving his residential treatment program in violation of his parole. He was later released and entered another treatment program but left that program the following March after a positive drug test.

Around the same time, Mother successfully completed her program, obtained employment, and was able to move into her own apartment. Mother moved to unsupervised visits with D.W. and also began having overnight visits. Mother demonstrated positive interactions and affection while visiting with D.W. and the Agency expressed no concerns about the visits.

At the six-month review hearing on April 18, 2017, the juvenile court placed D.W. with Mother, with continued reunification services and oversight. The court found that Father’s progress had been minimal and ordered enhancement services for Father.

Mother continued to do well and maintain her sobriety. The Agency noted D.W. was attached to Mother and thriving in her care. M.J. began spending weekends at Mother’s apartment and Mother successfully petitioned to dissolve the aunt’s guardianship of M.J.

Father was arrested again in June for domestic violence in the presence of his then-girlfriend’s minor child.

In November 2017, the juvenile court terminated jurisdiction over D.W. and issued exit orders granting Mother legal and physical custody of D.W.

B.

Just over one year later, in January 2019, D.W. was found walking alone on a busy street. D.W. was able to identify his residence, but there was no adult in the home. Around the same time, Mother was arrested for shoplifting. Mother admitted to using methamphetamine for the previous two months and leaving D.W. and M.J. unattended in the home. She said she relapsed because of the stress of having two children in her care.

M.J. returned to the care of the maternal great-aunt and D.W. was taken to Polinsky Children’s Center. The Agency filed juvenile dependency petitions on behalf of both children, and the juvenile court made prima facie findings on the petitions.

The maternal great-aunt adjusted her schedule so she could take placement of D.W., and indicated she was willing to provide long-term care for both children. An Agency social worker interviewed the children at the aunt’s home in February 2019. M.J. told the social worker she was disappointed and annoyed with Mother’s actions and broken promises. She said she loved living with her aunt, felt settled, and was getting to school on time.

The juvenile court sustained the dependency petitions by clear and convincing evidence the following month and ordered reunification services for Mother. The court bypassed reunification services for Father as he remained incarcerated.

Mother entered a residential treatment program. Upon discharge from the program in April, Mother returned to her previous residence and relapsed again shortly thereafter. Mother failed to appear for several drug tests and tested positive for various substances, including methamphetamine and opiates, when she did submit to testing. Mother also failed to appear for several visits and fell asleep during a visit she did attend.

Meanwhile, D.W. began having behavioral issues at daycare and was eventually suspended. This interfered with the maternal great-aunt’s work schedule and made it difficult for her to care for D.W. As a result, D.W. was moved to the home of the paternal aunt and uncle, where he had been placed during the previous dependency case. M.J. remained with the maternal great-aunt. The caregivers maintained regular sibling visitation between M.J. and D.W. Both expressed an interest in long term placement of the individual child in their care.

M.J. told the Agency social worker she loved Mother but believed Mother was negatively influenced by others to engage in behaviors that prevented her from returning home. She expressed a desire to stay with the maternal great-aunt where she felt safe and specifically stated she did not want to return to Mother’s apartment.

Mother failed to appear for a substance abuse intake in late August. Thereafter, she ceased communication with the Agency, her therapist, and the children. The Agency recommended that reunification services be terminated, and the juvenile court accepted the recommendation and terminated reunification services for Mother in October 2019.

C.

The juvenile court set a section 366.26 permanency hearing for January 2020, but the hearing was continued several times, in part due to the Agency’s desire to further assess the sibling relationship.

An Agency social worker met with the caregivers and both expressed a desire to adopt the child in their care. The maternal great-aunt indicated she previously had guardianship of M.J. and thought it was now time for a more permanent plan. The Agency acknowledged some recent conflict between M.J. and the maternal great-aunt, primarily over discipline, but indicated M.J. was comfortable with her aunt and benefited from the structure she provided. The Agency concluded each child was specifically and generally adoptable.

M.J. expressed a desire to be placed with D.W., and both children expressed disappointment when visits ended. The Agency made additional efforts to place the children together, but both caretakers expressed concerns regarding the financial burden of caring for both children. The Agency noted that D.W. had difficulties when placed with the maternal great-aunt, that both children were comfortable in their current placements, and that both caregivers were committed to ongoing sibling visitation. The Agency therefore continued to recommend a plan of adoption for both children, and a court appointed special advocate (CASA) for the children agreed with the Agency’s recommendations.

In August, shortly before the rescheduled section 366.26 hearing, M.J. indicated she was no longer in favor of being adopted by the maternal great- aunt. M.J. told the Agency social worker “that in the future, should her mother ever be in the position to safely parent [M.J.], [M.J.] would like that avenue open to her.” She further stated that this was her desire no matter how long it took and even if she was only able to live with Mother for a couple of years before turning 18. The Agency indicated it was common for children to want to return to the care of their parents, even when not feasible, and continued to recommend a permanent plan of adoption for M.J.

Around the same time, M.J. filed a section 388 petition requesting the juvenile court recognize the sibling relationship between her and D.W. M.J. told the Agency social worker she had no objection or concerns with D.W. being adopted by his current caregivers and that she did not want him to worry about where he would live, like she did. The Agency noted the caregivers remained committed to maintaining sibling visitation and concluded adoption would not significantly diminish the sibling relationship. The Agency therefore continued to recommend a permanent plan of adoption for both children.

On August 24, M.J. submitted a letter to the juvenile court. She stated, in part, “[e]ven though my mom has made many mistakes, she’s still my mom and I love her. Judge, if you go through with this adoption I’ll truly feel devastated. Not that I don’t like my aunt, but I still want a relationship with my mom.”

At the outset of the section 366.26 permanency hearing on August 25, 2020, M.J. withdrew her section 388 petition.

After hearing evidence and argument from the parties, the juvenile court found it was likely both children would be adopted if parental rights were terminated, and that none of the exceptions in section 366.26, subdivision (c)(1)(B) applied. The court explained that it had considered M.J.’s letter but, “[t]his bond between [M.J.] and her mom is in [M.J.’]s head, and it’s an idealized mom.” The court acknowledged that M.J. might object to the adoption, and that she could do so if she was 12 years old by the time it was finalized but concluded the law did not permit the court to decide the termination of Mother’s parental rights based on that future possibility.

The court terminated Mother’s parental rights over both children, and Father’s parental rights over D.W.

Mother and M.J. appeal.

DISCUSSION

M.J. asserts the juvenile court’s adoptability finding is not supported by substantial evidence, based on her stated objection to the adoption. Mother contends the juvenile court erred by not applying the sibling bond exception set forth in section 366.26, subdivision (c)(1)(B)(v).

I. General Legal Principles and Standard of Review

Once the juvenile court terminates reunification services, the court’s focus shifts from preserving the family to promoting the best interests of the child, and that includes the child’s interests in a stable, permanent placement that allows the caregiver to make a full emotional commitment to the child. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.) At the section 366.26 permanency hearing, the court has three options: (1) terminate parental rights and order adoption as the permanent plan,

(2) appoint a legal guardian for the dependent child, or (3) order the child placed in long-term foster care. (Ibid.)

Adoption is the preferred plan, so long as the juvenile court finds there is a likelihood adoption will be realized within a reasonable time. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223; § 366.26, subd. (c)(1).) In making that determination, the court considers whether the child’s age, physical condition, and emotional state make it likely that a family willing to adopt the child will be identified, or whether a specific family willing to adopt the child has already been identified. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re B.D. (2008) 159 Cal.App.4th 1218, 1231; In re Carl R. (2005) 128 Cal.App.4th 1051, 1061; In re J.I. (2003) 108 Cal.App.4th 903, 911.)

If the juvenile court determines adoption is likely, it will terminate parental rights to allow for the adoption unless the court finds the termination would be detrimental to the child under one of the statutorily specified exceptions. (§ 366.26, subd. (c)(1).)

As relevant here, section 366.26, subdivision (c)(1)(B)(i) provides an exception where “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” Courts have interpreted this exception as requiring a parent-child relationship that “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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.)

Section 366.26, subdivision (c)(1)(B)(ii) provides another exception where the child is 12 years of age or older, and objects to the termination of parental rights. (§ 366.26, subd. (c)(1)(B)(ii).)

Finally, section 366.26, subdivision (c)(1)(B)(v) provides an exception where “[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)(B)(v).) The purpose of this exception is to preserve long-standing sibling relationships that serve as anchors for dependent children whose lives are in turmoil. (In re Isaiah S. (2016) 5 Cal.App.5th 428, 437-438 (Isaiah S.).)

We review the juvenile court’s determination as to whether any of the exceptions set forth in section 366.26, subdivision (c)(1)(B) apply under a mixed standard of review. (In re Anthony B. (2015) 239 Cal.App.4th 389, 395 (Anthony B.); Isaiah S., supra, 5 Cal.App.5th at pp. 437-438.) We review any underlying factual findings for substantial evidence but defer to the juvenile court’s weighing of the relevant factors, and thus review the court’s final determination for an abuse of discretion.[3] (Anthony B., supra, at p. 395; Isaiah S., at p. 438; see also In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [confirming the mixed standard of review applies to both exceptions].)

We review the evidence in the light most favorable to the juvenile court’s order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. (In re D.M. (2012) 205 Cal.App.4th 283, 291 (D.M.); Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598; Autumn H., supra, 27 Cal.App.4th at p. 576.) A parent claiming the parent-child exception has the burden of establishing it applies and must prove the child has a significant and positive emotional attachment to the parent. (In re T.S. (2009) 175 Cal.App.4th 1031, 1039; In re C.F. (2011) 193 Cal.App.4th 549, 555.) Similarly, a child claiming error as a result of an order terminating parental rights also bears the burden of demonstrating a lack of substantial evidence to support the juvenile court’s findings and orders. (D.M., at p. 317; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 (L.Y.L.).)

II. Substantial Evidence Supports the Juvenile Court’s Adoptability Finding with Respect to M.J.

Substantial evidence supports the juvenile court’s finding that M.J. was likely to be adopted, despite her stated objection to the adoption.

M.J. had just turned 11 years old at the time of the section 366.26 hearing. She had lived with her great-aunt for much of her life; informally, under a legal guardianship, and as a result of the juvenile dependency proceedings. She had lived with Mother for less than two years between 2017 and early 2019 but was removed when Mother relapsed once again. At the time, M.J. reported she felt scared when she was living with her mom but felt settled with her aunt and expressed a desire to remain with her great-aunt regardless of Mother’s progress. Although Mother entered another treatment program in 2019, she was unable to maintain her sobriety and ceased communication with the Agency, her therapist, and the children for several months.

In the weeks leading up to the section 366.26 hearing, M.J. raised an objection to the plan of adoption, indicating she wanted some chance, even if it was remote, to live with her Mother before turning 18. As M.J. was not yet 12 years of age at the time of the section 366.26 hearing, the juvenile court correctly concluded the statutory exception set forth in section 366.26, subdivision (c)(1)(B)(ii) did not apply. (See People v. Connor (2004) 115 Cal.App.4th 669, 692 [courts may not rewrite statutes to conform to an intent that does not appear in the plain language].) Regardless, the superior court gave serious consideration to M.J.’s statements, but ultimately concluded any bond M.J. might have with Mother was based on an idealized version of Mother that did not exist. That conclusion was consistent with the record, M.J.’s own previous statements, and the Agency’s statement that children often wish to return to the care of their parents, even when that is not a realistic possibility.

M.J. asserts the juvenile court was required to consider her wishes and act in her best interests pursuant to section 366.26, subdivision (h), even though she was not yet 12 at the time of the hearing. As discussed, though, the juvenile court did give serious consideration to M.J.’s statements and ultimately concluded the termination of Mother’s parental rights was nevertheless in M.J.’s best interests.

The court also considered whether the parental bond exception set forth in section 366.26, subdivision (c)(1)(B)(i) applied based on M.J.’s statements, but concluded it did not. Substantial evidence supports that conclusion as well. Mother had a sustained pattern of substance abuse that resulted in turmoil for M.J. and several long absences from M.J.’s life. As a result, she did not have a parental relationship with M.J. that promoted M.J.’s well-being or outweighed the benefits of M.J. obtaining permanency through adoptions and the exception in section was also inapplicable. (See In re J.C. (2014) 226 Cal.App.4th 503, 529; Autumn H., supra, 27 Cal.App.4th at p. 575; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Angel B. (2002) 97 Cal.App.4th 454, 467.)

M.J. asserts she will turn 12 in July 2021 and will likely be old enough to contest the adoption itself pursuant to Family Code section 8602. She therefore contends she was not adoptable and the juvenile court’s decision will result in her becoming a legal orphan. We disagree.

M.J. is not yet 12, may not be 12 at the time of the adoption, and, even if she is, may ultimately decide not to object to the adoption by the time it actually occurs. M.J. previously indicated, more than once, that she wanted to stay with her aunt, and only raised the objection on the eve of the section 366.26 hearing, an event which was understandably difficult for her. In this context, the juvenile court correctly concluded the possibility that M.J. may eventually object to the adoption under Family Code section 8602 was not a sufficient basis to preclude the termination of Mother’s parental rights.[4] (See In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333, fn. 3 [§ 366.26 adopts certain provisions of the Family Code but does not adopt Family Code

§ 8602.]; In re Joshua G. (2005) 129 Cal.App.4th 189, 201 [juvenile court properly considered but not bound by child’s desire to remain with mother where child was under the age of 12].) Moreover, in the event M.J. is 12 at the time of the adoption hearing and does maintain her objection to the adoption, such that the adoption does not occur, M.J. may bring a motion to reinstate Mother’s parental rights under section 366.26, subdivision (i)(3).

We therefore conclude substantial evidence supports the juvenile court’s finding M.J. was adoptable and neither of the exceptions in section 366.26, subdivision (c)(1)(B)(i) or (ii) applied to preclude the termination of Mother’s parental rights.

III. The Sibling Bond Exception Does Not Apply

Substantial evidence also supports the juvenile court’s finding the sibling relationship exception set forth in section 366.26, subdivision (c)(1)(B)(v) did not apply.[5]

In determining whether the exception applies, the court must first determine if termination of parental rights would harm the potentially adoptable child by substantially interfering with a significant sibling relationship. (L.Y.L., supra, 101 Cal.App.4th at p. 952.) The court considers the nature and extent of the sibling relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds. (§ 366.26, subd. (c)(1)(B)(v).) If such a relationship exists, “the court then weighs the benefit to the child of continuing the sibling relationship against the benefit to the child adoption would provide.” (L.Y.L., at pp. 952-953.) In making this determination, the court considers the best interests of the child being considered for adoption, and not the best interests of other siblings. (Isaiah S., supra, 5 Cal.App.4th at p. 438.) The exception rarely applies when the child at issue is young, as the need for a competent, caring and stable parent is particularly paramount in such cases. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014 (Valerie A.).)

Here, M.J. filed a section 388 petition asserting a sibling relationship with D.W. but chose to withdraw the request at the outset of the section 366.26 hearing. Although M.J. and D.W. had lived together for approximately one and one-half years and undoubtedly shared a close sibling relationship, that relationship was not significant enough to outweigh the benefits of adoption for either D.W. or M.J., particularly when considering D.W.’s relatively young age. (See L.Y.L., supra, 101 Cal.App.4th at pp. 952-953; Valerie A., supra, 152 Cal.App.4th at p. 1014.)

M.J. stated that she wanted to live with D.W. but also stated it could be tiring to be around him for long periods of time. The Agency tried to place the children together with the maternal great-aunt, but D.W. had behavioral issues that resulted in a change of placement. Thereafter, the Agency continued to explore the possibility of placing the children together, but neither caretaker was willing to take placement of both children. Meanwhile, D.W. thrived with his caretakers and M.J. acknowledged D.W. was with “the right people” and deserved permanency.

In addition, both caregivers remained committed to ensuring M.J. and D.W. maintained a sibling relationship. Mother asserts there were gaps in visitation and the Agency indicated at least twice that more visitation would be beneficial to both children. However, the record indicates the caregivers were responsive to the Agency’s efforts to increase visitation and there is nothing to suggest the caregivers would not continue to facilitate visits going forward.

Mother asserts the benefits of preserving the relationship outweighed the benefits of adoption and both children could remain in legal guardianships. However, M.J. had previously been in a legal guardianship and Mother had successfully had it terminated, only to relapse and have M.J. removed from her care by the juvenile court. Similarly, D.W. had been removed from Mother’s care twice by the time he was three years old. Given Mother’s lengthy history of relapse, a substantial risk remained that Mother would continue the same cycle.

Mother asserts several cases support her position, but they do not. Notably, in all but one of the cases Mother relies upon, the courts concluded the sibling relationship exception did not apply. (See In re Elizabeth M. (2018) 19 Cal.App.5th 768, 783 (Elizabeth M.); Isaiah S., supra, 5 Cal.App.5th at p. 439; In re D.O. (2016) 247 Cal.App.4th 166, 176 (D.O.).)

The court in Isaiah S., noted the evidence suggested the sibling relationship exception did not apply because the siblings were often aggressive toward one another. (Isaiah S., supra, 5 Cal.App.5th at p. 439.) Similarly, in D.O. the court noted there was minimal evidence of a sibling bond between the children. (D.O., supra, 247 Cal.App.4th at pp. 176-177.) Mother asserts the record here suggests M.J. and D.W. had a more significant sibling bond, but that simply suggests the holdings in Isaiah S. and D.O. are not particularly instructive.

Elizabeth M., on the other hand, supports the juvenile court’s findings in this case. There, the court found there was nothing in the record to suggest the sibling relationship would be severed if they were adopted by their current caregivers, that the children were thriving in their current placements, and that the benefits of permanency outweighed any risk to the disruption of the sibling relationship. (Elizabeth M., supra, 19 Cal.App.5th at p. 783.) Similarly, here, M.J. and D.W. were both secure in their current placements and their respective caretakers were committed to continued sibling visitation.

Finally, the court in In re Naomi P. (2005) 132 Cal.App.4th 808 (Naomi P.) concluded substantial evidences supported the juvenile court’s finding that the sibling relationship exception did apply. (Id. at p. 811.) In that case, Naomi was living with a nonrelative extended family (NREFM) caregiver and had three siblings that were under a legal guardianship with the maternal grandmother. (Id. at pp. 811-812.) Notably, the juvenile court indicated it had some doubts about the intentions of the NREFM and of her appreciation of Naomi’s relationship with her siblings. (Id. at p. 824.) The appellate court deferred to the juvenile court’s credibility finding. (Ibid.) There is no such finding in this case and, as with the other cases Mother relies upon, Naomi P. is not particularly instructive.

We therefore conclude that substantial evidence supports the juvenile court’s finding the sibling relationship exception did not preclude the termination of Mother’s parental rights with respect to D.W. or M.J. (See L.Y.L., supra, 101 Cal.App.4th at p. 952.)

DISPOSITION

The orders are affirmed.

O'ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

AARON, J.

[1] All further statutory references are to the Welfare and Institutions Code.

[2] M.J. has a different biological father and he was not involved in these proceedings. Father is not a party to this appeal and is mentioned only to the extent relevant to Mother’s appeal.

[3] We note that some courts have applied only a substantial evidence standard (see In re K.P. (2012) 203 Cal.App.4th 614, 621), but, as a practical matter, the analysis is essentially the same as broad deference is afforded to the juvenile court’s determination under either standard. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)

[4] Indeed, while the appeal was pending, the Agency submitted a request that this court take judicial notice of the juvenile court’s minute order from the February 24, 2021, postpermanency planning review hearing and augment the record with the associated status review report, in which the Agency indicates Michelle is no longer opposed to the adoption. We hereby grant the Agency’s requests. (Evid. Code §§ 452, 459; Code Civ. Proc., § 909; In re Salvador M. (2005) 133 Cal.App.4th 1415, 1420-1422.) While it remains possible that Michelle will ultimately object to the adoption, her recent statements support the conclusion her previous statements did not create a sufficient basis to preclude the termination of Mother’s parental rights.

[5] Mother contends the court did not specifically address the sibling relationship exception, but the court made written findings with respect to each child that “none of the circumstances listed in Section 366.26, subdivision (c)(1)(B) . . . which make termination of parental rights detrimental to said child, exist in this case by clear and convincing evidence.” We infer the findings include the associated sibling relationship exception.