In re S.S.
Filed 2/7/07 In re S.S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re S.S. et al., Persons Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. E.S., Defendant and Appellant. | D048567, D048627 (Super. Ct. No. EJ2283D-E) |
CONSOLIDATED APPEALS from judgments and orders of the Superior Court of San Diego County, Gary M. Bubis, Juvenile Court Referee. Affirmed.
In this consolidated appeal, E.S. appeals judgments of the juvenile court terminating parental rights to her children S.S. and Lydia S. She also appeals orders summarily denying her petition for modification under Welfare and Institutions Code section 388[1] and denying her motion for a continuance of the section 366.26 hearing. We affirm the judgments and orders.
FACTUAL AND PROCEDURAL BACKGROUND
E.S. has six children: N.Y., born April 1992; M.S., born May 1996; J.S., born November 1997; S.S., born March 2001; Lydia, born January 2002 (collectively, siblings); and baby M., born October 2003. E.S.'s husband, and father of the five youngest children, is Aaron S.[2] Only S.S. and Lydia are the subject of this appeal.
On June 12, 2003, the San Diego County Health and Human Services Agency (Agency) filed petitions alleging the siblings were periodically exposed to violent confrontations between the parents in the family home. The petitions also alleged Aaron physically abused and injured M.S., then age seven, and Aaron's actions placed S.S. and Lydia at substantial risk of abuse or neglect.
The parents submitted to jurisdiction under section 300, subdivisions (b) and (j). The court removed the siblings from parental custody, ordered reunification services, and granted the Agency the discretion to allow extended and overnight visits, and a 60-day trial visit, with notice to minors' counsel. S.S., then age 2, and Lydia, then 17 months old, were placed in nonrelative, extended family care together with their eldest sister,
N.Y. Their brothers, M.S. and J.S., were placed together in another nonrelative care home. The siblings, with the exception of Lydia, received therapeutic services due to their psychological needs and behaviors.
During the first six-month review period, E.S. actively participated in reunification services, made substantive progress with her case plan, and visited the children regularly. Aaron was not living in the home. In October 2003, E.S. gave birth to a daughter, baby M., who remained in her custody under a voluntary services contract. In March 2004, the Agency increased the siblings' visitation to include weekend visits, and allowed a two-week home visit during spring vacation in April. After spring break, the Agency scheduled regular weekend visits for the siblings starting Friday after school and ending Monday morning.
Lydia and S.S.'s caretaker reported that after visitation increased, S.S.'s behavior began to deteriorate and Lydia began to resist visitation. The children exhibited signs of fear and uncertainty, and they had more incidents of negative behavior than when they were first placed in her home. S.S. had several tantrums and urinated on the carpet in his bedroom. Lydia often returned from visits with bruises on her shins, abdomen, back and legs. E.S. attributed the bruises to Lydia " trying to keep up with her brothers."
At the end of May 2004, the Agency began to receive reports they were acting out sexually. The therapists for the four oldest siblings confirmed reports they had been engaging in sexual activities with each other and with other children in the foster homes. S.S. told his therapist his brothers fondled him, placed items in his anus and rubbed their penises on him. M.S. was observed fondling S.S. while they were in a swimming pool. S.S.'s caretaker reported then four-year-old S.S. had been masturbating and complaining of pain and discomfort. N.M. said she and her brothers had played " the marriage game" since she was very young, and that this " game" involved oral-genital contact, tongue kissing, and touching each other's genitals. She said Lydia was usually napping while the other siblings engaged in these activities. E.S. observed some of the siblings' activities, and told them to stop. None of the siblings identified sexual abuse by an adult.
The Agency also received reports S.S. and Lydia were distressed by their mother's pattern of forcibly cleaning earwax from their ear canals. Before the Agency became aware of the extent of E.S.'s practices, Lydia was treated by a physician for ear pain. The physician believed the wax in Lydia's ear canal was impacted by an object inserted into the ear. N.M. said her mother cleaned the siblings' ears as punishment for not listening to her. She used cotton swabs, hairpins, and her fingernails to extract the wax. M.S. said his mother sat on him and put a pillow on his face to restrain him while cleaning his ears. He said the cleaning " really hurt" and after one cleaning, blood came out of his ear.
On July 19, 2004, the children's attorney filed a petition for modification under section 388 asking the court to permit only supervised visitation. On July 21, the Agency filed a supplemental petition under section 387 seeking a higher level of placement for S.S. and his older siblings. The Agency alleged S.S. was molesting other children, and his caretakers were no longer willing to care for him due to their concerns about the safety of their children. S.S. and N.Y. were detained, and Lydia remained in the caretaker's home. At some point not clear in the record, S.S. was returned to the caretaker's home.
In August 2004, at the combined hearing on the 12-month review and the siblings' petition for modification, the court continued reunification services, ordered supervised visitation, gave the Agency discretion to lift supervision requirements and allow overnight visits, and ordered E.S. not to allow S.S. and Lydia to be out of her presence during visits that included the older siblings.
In December 2004, the Agency reported that E.S. currently had unsupervised visits with all the siblings, was in " complete compliance" with her case plan, and had made significant progress during the last 18 months. However, the siblings' therapists expressed concerns about E.S.'s ability to protect and adequately supervise the siblings. S.S.'s therapist opined E.S. did not grasp the extent of the children's sexual behaviors and had failed to implement a well-crafted safety plan to protect him from sexual abuse. N.M.'s therapist believed E.S.'s lax discipline, poor boundaries, and neglect of safety issues placed S.S. and Lydia at risk of abuse.
At the 18-month review hearing, the Agency recommended the court terminate reunification services, place N.Y. and J.S. in permanent planned living arrangements, and proceed to a section 366.26 hearing to select and implement permanency plans for S.S. and Lydia.[3] E.S. contested the recommendations. The 18-month review hearing began in February 2005 and continued in May. On May 3, the attorney for the five siblings declared a conflict of interest and requested to be relieved as minors' counsel. The court
appointed separate counsel for each child, and scheduled the 18-month review hearing for August. In addition, the court appointed psychologist Bruce Stubbs, Ph.D., as an independent evaluator. The court asked Stubbs to review the case and provide a report to the court addressing the family's protective issues, the risks to each child if returned home, and the relationship between each child and his or her siblings.
In his report, Stubbs characterized the family as " highly dysfunctional" and the case as " profoundly complex," with multiple variables contributing to domestic violence, physical and emotional abuse by both parents of more than one child, and sexual abuse among the children. He concluded there was strong evidence suggesting that one or more of the siblings was sexually abused by unidentified perpetrators. Stubbs criticized the lack of communication between the siblings' treatment team members, who were unaware of Aaron's significant history of physical and sexual abuse victimization as a child. In addition, E.S.'s therapist did not know about the siblings' sexual behaviors, and minimized the effect of E.S.'s extended depression and her physical and emotional abuse of the siblings.
Stubbs believed there was ample evidence to support a conclusion that E.S. was significantly more psychiatrically impaired than had been identified. He believed E.S. did not currently possess the skills, and was not likely to acquire within a reasonable time the skills necessary to ensure the siblings' safety from each other and from her own behaviors. Stubbs opined the siblings were " severely psychologically damaged by the behaviors of both [Aaron and E.S.]," and the likelihood of a safe reunification was " extraordinarily small and unlikely."
On August 16, 2005, the parties reached a settlement concerning the placement of the three older siblings. With respect to S.S. and Lydia, the parents submitted on the social worker's report. The court terminated reunification services and set a hearing under section 366.26 to select and implement a permanency plan for S.S. and Lydia.
The contested permanency plan hearing under section 366.26 hearing was heard on February 10, March 7, 13, 17, 27, and April 12, 2006. On March 7, E.S. filed a section 388 petition (modification petition or petition for modification) alleging her circumstances had changed and S.S.'s and Lydia's return to her custody was in their best interests. The court found the modification petition did not state a prima facie case and denied an evidentiary hearing.
After the permanency plan hearing on February 10, 2006, E.S. was hospitalized for a medical condition. When she was released, her physician ordered her to remain on bed rest. On March 7, 2006, and again on March 17, E.S.'s attorney asked the court to continue the permanency plan hearing until E.S.'s health was stabilized and she was able to attend. The court denied the motions.
At the permanency plan hearing, Stubbs testified S.S. and Lydia were severely psychologically damaged by the behaviors of their parents, but Lydia to a lesser extent than S.S. The nature of the parent-child relationship between S.S. and his mother was characterized by her extremely poor interpersonal boundaries and poor communication skills. Due to his concerns about E.S.'s psychological status, Stubbs doubted either child benefited from the parent-child relationship. Although he did not observe S.S.'s interactions with his mother, based on the information he reviewed, Stubbs concluded S.S. did not have a positive emotional relationship with her.
Raymond G. Murphy, Ph.D., conducted a two-hour observation of the relationships between E.S. and S.S. and Lydia. His report was entered into evidence. He observed they displayed a " great deal of emotional connection, concern, and affection for their mother." She looked out for their safety and well-being, and was highly responsive to their basic needs. Murphy concluded they had a " clear primary attachment" to their mother, and they most likely would experience emotional upheaval if that bond was severed. He did not form an opinion whether the children's attachment to their mother was positive or negative.
S.S.'s therapist, Meredith Ring, opined S.S.'s primary need was for a safe environment. He had a nurturing relationship with his caretaker, with whom he had lived almost half his life. Ring believed S.S. would suffer detriment if he could not visit his siblings; however, she had concerns about his relationship with M.S. S.S. very much missed his brother J.S. S.S. had a bond with his mother but Ring could not determine whether the bond was healthy for S.S. She stated it was difficult to predict the long-term effect that termination of parental rights might have on S.S., but currently he did not have much contact with his mother and appeared to be thriving.
S.S. and Lydia's caretaker testified she had worked directly with E.S. since June 2003 to facilitate visitation. Between September 2005 and the date of trial, E.S. had visited S.S. and Lydia three times. She also had two atonement sessions with S.S. and his therapist. They visited their siblings once a month. The caretaker stated she was committed to adopting S.S. and Lydia, and intended to maintain their visits with their siblings, including baby M.
Sue Chamberlain, a protective services supervisor with the Agency, believed S.S. and Lydia were adoptable and it would not be detrimental them to terminate parental rights. They did not have a healthy bond with either parent. E.S. was in and out of their lives, she did not have a parental role, and multiple protective issues existed. E.S. cancelled visits in February 2006 for health reasons and told Chamberlain she could not arrange visits with the children in March due to her work schedule.
The court determined it was likely S.S. and Lydia would be adopted if parental rights were terminated. The court found that E.S. had not regularly visited them and their need for a secure home outweighed the parent-child relationship. Based on the serious sexual improprieties among the siblings and the fact that all sibling contact required strict supervision, the court concluded that the sibling relationships were not healthy for Lydia and S.S. The court terminated parental rights and ordered a permanent plan of adoption for the children.
DISCUSSION
I
The Court Did Not Abuse Its Discretion When It Summarily
Denied E.S.'s Petition for Modification
E.S. contends the court erred by arbitrarily denying her a hearing on the merits of her petition seeking S.S.'s and Lydia's return to her care.
Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, there is a change of circumstances or new evidence, and the proposed modification is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.)
The court must liberally construe the petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; rule 5.570(a).) " The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H. at p. 310.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (In re Jasmon O., supra, 8 Cal.4th at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) " The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
We review a summary denial of a hearing on a modification petition for abuse of discretion. (In re Zachary G., supra, 77 Cal.App.4th at p. 808.) Under this standard of review, we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)
Here, E.S. alleged her circumstances had changed since the court found returning S.S. and Lydia to her custody would create a substantial risk of detriment to their safety, protection, or physical or emotional well-being. (§ 366.21, subd. (f).) In support of her contention the children could safely be returned to her care, E.S. averred M.S. and baby M. were doing well in her care, M.S. was no longer at risk for initiating sexual relationships due to his successful treatment, and she had almost completed a program to enable her to create better boundaries to prevent inappropriate sexual behavior among the children. E.S. further stated S.S.'s and Lydia's best interests were served by a return to her care because they were bonded to her and their siblings, and because E.S. had made significant progress in resolving the sibling's sexual behaviors.
When determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; see In re Jamike W. (1997) 54 Cal.App.4th 1446, 1450-1451.) In denying an evidentiary hearing on E.S.'s petition for modification, the court considered the comprehensive assessment completed by psychologist Stubbs and determined the petition did not allege E.S. had resolved the concerns raised in Stubbs's assessment. The court did not believe E.S.'s on-going participation in a sexual abuse treatment program was sufficient to sustain a favorable decision on the merits and thus the petition did not meet the requirements of a prima facie case.
Stubbs opined E.S. " continually demonstrated poor judgment and inappropriate boundaries." He believed E.S.'s compliance with the case plan was frequently mistaken for successful change but, actually, the record showed E.S. was unable to consistently integrate and apply the information she was provided through services. Stubbs concluded that E.S. did not have the skills required to protect S.S. and Lydia from physical, sexual and emotional abuse, and they should not be returned to her custody.[4]
The court properly exercised its legal discretion when it determined E.S.'s petition for modification did not state changed circumstances sufficient to show, if proved, that return to parental custody no longer presented a substantial risk of detriment to S.S.'s and Lydia's safety, protection, or physical or emotional well-being. The petition for modification did not contain a professional opinion sufficient to allow the court to question Stubbs's conclusion S.S. and Lydia should not be returned home. Further, E.S.'s visits with them had been infrequent and she did not seek to increase visitation due to her health and work schedule. Her poor health implicated her ability to adequately supervise four children, two of whom were severely psychologically damaged and at risk for inappropriate sexual behavior with their younger siblings.
We conclude that the factual allegations in the modification petition, if proved, would not allow the court to modify its prior order and return S.S. and Lydia to E.S.'s custody. Therefore, the court did not abuse its discretion when it denied E.S. a hearing on the merits of her petition for modification. (Rule 5.570(b).)
II
The Court Did Not Abuse Its Discretion When It Denied E.S.'s Motion for a Continuance of the Section 366.26 Hearing
E.S. contends the court abused its discretion when it denied her motion to continue the section 366.26 hearing. She further asserts she was prejudiced when the court proceeded with the hearing in her absence.
In dependency cases, " [t]he court must not continue a hearing beyond the time set by statute unless the court determines the continuance is not contrary to the interest of the child. In considering the child's interest, the court must give substantial weight to a child's needs for stability and prompt resolution of custody status, and the damage of prolonged temporary placements." (Rule 5.550(a)(1).) Continuances may be granted only on a showing of good cause, and only for the time shown to be necessary. (§ 352, subd. (a); rule 5.550(a)(2).) Courts have interpreted this policy to be an express discouragement of continuances. (See, e.g., In re Emily L. (1989) 212 Cal.App.3d 734, 743.)
We review a court's exercise of its discretion to grant or deny a motion for a continuance for abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180; see In re Angela R. (1989) 212 Cal.App.3d 257, 265-266.)
On March 7, 2006, E.S. was not present in court due to a medical condition. Her attorney, Frank Birchak, requested a continuance of the hearing. The court denied the motion and arranged for E.S. to listen to the proceedings by speakerphone, which she did. On March 13, Birchak advised the court his client was not able to attend the proceedings and was unavailable by telephone because she was medicated. At Birchak's request, the court ordered the clerk to prepare a transcript of the hearing and make it available to E.S.. The court stated it would permit E.S. to recall witnesses after reviewing the transcript.
On March 17, 2006, Birchak again requested a continuance of the section 366.26 hearing and submitted a letter from E.S.'s physician recommending postponement of E.S.'s court appearances for three weeks to allow her condition to stabilize. The court denied the motion. It reasoned the dependency proceedings had been protracted and the children were entitled to a determination of their custody status. Because of the court's schedule, any continuance would result in postponing the hearing until May. In addition, there was no guarantee E.S.'s health would stabilize within a reasonable time. The court then offered E.S. the opportunities to listen to the proceedings by speakerphone and to review transcripts of the proceedings.
On this record, even with a showing of good cause, we cannot conclude the court abused its discretion when it denied the motions to continue the section 366.26 hearing. Due to the protracted dependency proceedings and the need to resolve S.S. and Lydia's custody status, the court could reasonably determine that continuing the hearing was contrary to the best interests of the children. (Rule 5.550(a)(1).) They had been in temporary care for almost three years. A continuance would necessitate an additional delay of at least two months. In view of the court's finding that a continuance would be contrary to the best interests of the children, the court's denial of a continuance of the section 366.26 hearing was in accord with the law. Thus, the court acted within its discretion when it declined to postpone the proceedings. (§ 352, subd. (a); rule 5.550(a)(2); In re Emily L., supra, 212 Cal.App.3d at p. 743.)
Further, assuming arguendo the denial of the motion for a continuance was an abuse of discretion, E.S. cannot show her absence from the proceedings was prejudicial to her case. A judgment may not be reversed on appeal unless the error caused a " miscarriage of justice." (Cal. Const., art. VI, § 13.) As discussed in part III, post, the issues before the court in a section 366.26 hearing are limited to whether the child is adoptable and whether any statutory exceptions apply to preclude termination of parental rights. (§ 366.26, subd. (c).) E.S. does not describe how the outcome of the permanency plan hearing would have been different had she been physically present in the courtroom. (People v. Watson (1956) 46 Cal.2d 818, 836.) The record clearly shows attorney Birchak remained in contact with his client, presented evidence in support of her position, effectively cross-examined adverse witnesses, argued the case before the trial court, and preserved appellate issues for review. The court afforded E.S. opportunities to listen to the proceedings by telephone, review witness testimony, consult with her attorney, and recall witnesses. Error, if any, is harmless.
III
The Court Did Not Err When It Determined That No Exceptions Applied To Preclude Termination of Parental Rights
At a selection and implementation hearing under section 366.26, the court may order one of three alternatives -- adoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If a child is adoptable, there is a strong preference for adoption over the alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.)
Once the court determines a child is likely to be adopted, the burden shifts to the parent to show termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) The reviewing court must affirm a trial court's rejection of these exceptions if the ruling is supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Zachary G., supra, 77 Cal.App.4th at p. 809.)
We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The party challenging the ruling bears the burden of showing there is insufficient evidence to support the ruling. (In re Geoffrey G., supra, 98 Cal.App.3d 412, 420.)
A
Substantial Evidence Supports the Court's Finding That the Beneficial Parent-Child Exception Under Section 366.26, Subdivision (c)(1)(A) Did Not Apply
E.S. contends insufficient evidence supports the court's finding termination of the parent-child relationship would not be detrimental to S.S. and Lydia. She asserts they had a beneficial relationship with her and severing the parent-child bond would cause them to suffer detriment. In support of her assertion, E.S. relies on psychologist Murphy's observation the children had a primary attachment to her and severance of their relationships would cause them to experience " emotional upheaval."
Section 366.26, subdivision (c)(1)(A) provides an exception to termination of parental rights when " [t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We recognize that interaction between parent and child will usually confer some incidental benefit to the child. (In re Autumn H., supra, 27 Cal.App.4th 567, 575.) To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
When applying the beneficial parent-child relationship exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental relationship would deprive the child of " a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Substantial evidence supports findings that the parent-child relationships were not beneficial to S.S. and Lydia and, to the extent the parent-child relationships were beneficial, the security of a stable, permanent home outweighed the attenuated relationships they had with their mother. In psychologist Stubbs's opinion, they were severely psychologically damaged by their mother, who abused them emotionally and physically, and failed to protect them from the aggressive physical and sexual behaviors of their siblings. Stubbs doubted the parent-child relationship benefited Lydia, and he concluded that S.S. did not have a positive emotional relationship with his mother.
Protective services supervisor Chamberlain believed S.S. and Lydia did not have a healthy bond with either parent, and multiple protective issues remained a concern. Therapist Ring testified S.S.'s primary need was for a safe environment. Six-year-old S.S. did not have much contact with his mother, and this did not appear to cause him any distress. He was thriving in the home of the caretaker, who had cared for him with one interruption since he was 26 months old. Four-year-old Lydia had been with the caretaker since she was 17 months old, and it was reasonable to infer this was the only home she knew. The caretaker protected and nurtured the children, met their daily needs, and was committed to adopting them.
The only evidence supporting E.S.'s contention she had a beneficial parent-child relationship with S.S. and Lydia came from psychologist Murphy, who had observed the interactions between E.S. and the children for two hours. However, Murphy declined to offer an opinion whether their attachment to their mother was positive or negative for them. He testified the likelihood of whether they would suffer emotional upheaval upon termination of parental rights depended on factors such as the strength of their bond with another caretaker, the frequency of visitation with the parent, and the provision of therapeutic services. This testimony permits a reasonable inference that it was possible to mitigate the effects of emotional upheaval caused by termination of parental rights, and the children's emotional distress, if any, would be temporary.
The record fully supports the court's conclusion that terminating the parent-child bond would not be detrimental to S.S. and Lydia. They had a consistent, nurturing relationship with their caretaker. During the previous seven months, E.S.'s visits had been sporadic and infrequent, and they did not appear to be adversely affected by the lack of visitation. The Agency provided therapeutic services to the family throughout the dependency case, and there was no basis to conclude that such services would not be continued, if necessary. The court did not err when it found that severing the parent-child relationship would not be detrimental to S.S. and Lydia. Therefore section 366.26, subdivision (c)(1)(A) did not apply to preclude termination of parental rights.
B
Substantial Evidence Supports the Court's Finding the Sibling Relationship Exception Under Section 366.26, Subdivision (c)(1)(E) Did Not Apply
E.S. also contends termination of parental rights would be detrimental to S.S. and Lydia because it would substantially interfere with their relationships with their siblings. She asserts S.S. and Lydia had bonded relationships with their siblings and severing the sibling relationship would be detrimental to them. The Agency acknowledges S.S. and Lydia were strongly bonded with their siblings and with each other, but argues termination of parental rights would not substantially interfere with the sibling relationships.
Section 366.26, subdivision (c)(1)(E) applies to preclude termination of parental rights when " there would be a substantial interference with a child's sibling relationships, taking into consideration the nature and the 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 experience 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." (Ibid.)
Here, the court found that ongoing contact between S.S. and Lydia and their siblings was not beneficial to them due to the serious sexual improprieties that had occurred between S.S. and his older siblings, the risk to Lydia from sibling sexual abuse, and the need for strict supervision of the siblings' visits. The evidence supports the court's findings. Their interactions with their siblings had to be closely supervised to ameliorate the risk to S.S. and Lydia of sexual abuse, and its emotional consequences, by their older siblings. N.Y. viewed the sexual interactions as a " game." M.S. had been physically aggressive with other boys when approaching them sexually, and had tried to entice S.S. to sit on his lap by offering him candy and money. Thus, the court could reasonably infer that S.S.'s and Lydia's relationships with their siblings had necessarily been limited due to the risk of sexual contact and that such a limitation needed to continue.
The court reasonably concluded that the benefit of maintaining the sibling relationship did not outweigh the benefit S.S. and Lydia would achieve through the legal permanence of adoption.[5] (§ 366.26, subd. (c)(1)(E).) The court did not err when it found that termination of parent rights would not be detrimental to them under section 366.26, subdivision (c)(1)(E).
DISPOSITION
The judgments and orders are affirmed.
McCONNELL, P. J.
WE CONCUR:
NARES, J.
O'ROURKE, J.
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[1] All statutory references are to the Welfare and Institutions Code.
[2] We dismissed Aaron's appeal on August 25, 2006, under California Rules of Court, former rules 17(a)(1), 37.3(b)(5), and 37.4(a)(2) (further rule references are to the California Rules of Court). He is mentioned only when relevant to the issues raised in this appeal.
[3] E.S. had custody of two of her children, baby M., who was not a dependent of the court, and nine-year-old M.S. M.S. was returned to her care in October 2004.
[4] Stubbs opined the Agency's decision to return M.S. to E.S.'s care appeared " to have been made more out of an inability to find an appropriate placement rather than a determination that the mother was indeed the most appropriate place for him."
[5] S.S. and Lydia's caretaker and prospective adoptive parent testified the siblings visited once each month and she intended to maintain that contact. Even if we were to assume they had a beneficial relationship with their siblings, as E.S. and the Agency contend, the record does not support the conclusion that termination of parental rights would substantially interfere with the relationships between them and their siblings.
