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In re Bailey J.

November 9, 2010


(Santa Clara County Super. Ct. No. JD18887) Trial Judge: Honorable Erica R. Yew

The opinion of the court was delivered by: Mihara, J.


Appellants Patricia J. (the mother) and Angelina J. challenge the juvenile court's termination of the mother's parental rights to her son Bailey J., Angelina's half-sibling, and the court's selection of adoption as Bailey's permanent plan. The mother contends that the juvenile court erred in failing to apply the parental relationship exception to adoption and/or the sibling relationship exception to adoption. Angelina maintains that the juvenile court prejudicially erred in refusing to accord her status as a party at the Welfare and Institutions Code section 366.26*fn1 hearing and in failing to apply the sibling relationship exception to adoption. We reject their contentions and affirm the juvenile court's order.

I. Background

In 2004, long before Bailey was born, two of Bailey's siblings, one of whom was one year old and the other of whom was one month old, and two of his half-siblings, six-year-old Angelina and her eight-year-old half-brother, were removed from the custody of the mother and the father. Bailey's two siblings had suffered multiple bone fractures as infants, and the parents were found to have physically abused them. The mother and the father failed to reunify with the two siblings despite 18 months of reunification services, and these two siblings were adopted by their maternal grandmother. Angelina and the other half-sibling were placed with their respective fathers. In 2006, a third sibling was detained shortly after her birth. Both parents relinquished their parental rights to this child, and she too was adopted by the maternal grandmother. In January 2008, Angelina was placed in protective custody because her father had sexually molested her. The mother was granted reunification services. Angelina was placed in a foster home.

Bailey was born on April 13, 2008. He was detained two days after his birth due to his parents' prior history of abuse and neglect of his siblings and half-siblings. On April 15, 2008, Bailey was placed in the same foster home as Angelina. However, "a very short time later," Angelina was removed from this placement due to her "behavioral and emotional difficulties." Angelina was placed in a community care facility. Bailey has remained in the same foster home throughout the dependency proceedings. His foster mother wishes to adopt him and is committed to providing him with a permanent home. The court granted the foster mother's request for de facto parent status.

A petition was filed under section 300, subdivisions (b) and (j) seeking jurisdiction over Bailey. After a very lengthy contested jurisdictional hearing, the court took jurisdiction over Bailey and removed Bailey from his parents' custody. Although the Santa Clara County Department of Family and Children's Services (the Department) sought a bypass of reunification services, the court granted reunification services to both parents. The court also ordered that the parents have weekly supervised visitation with Bailey.

Initially, the parents visited Bailey for two two-hour supervised visits each week. Reunification services were continued at the six-month review hearing in March 2009. In May 2009, the visits were changed to one eight-hour visit each week supervised by the mother's stepfather. The mother and the father separated in June 2009, and the father ceased visiting Bailey. The mother's visits with Bailey supervised by the stepfather went well. The stepfather thought that they "interact like a mother and child."

The mother's reunification services for Angelina were terminated in July 2009. However, Angelina was present at some of the mother's visits with Bailey under the stepfather's supervision. When Bailey's youngest sibling (born in 2006) was present during Bailey's visits with the mother, Bailey "attempt[ed] to talk more."

At the contested 12-month review hearing in September 2009, the Department recommended that the parents' reunification services be terminated as to Bailey. The court terminated reunification services for both the mother and the father as to Bailey and set a section 366.26 hearing for January 21, 2010. Visitation was continued for both parents, with each receiving one eight-hour supervised visit per week. The court also ordered monthly supervised sibling visitation for two hours. Angelina was returned to the mother's custody in December 2009 with family maintenance services.

In January 2010, the court referred the parties to mediation and reset the section 366.26 hearing for February 18, 2010. The mediation was unsuccessful. On February 18, the attorney who was jointly representing Bailey and Angelina declared a conflict. On February 22, that attorney was relieved, and new separate attorneys were appointed to represent Bailey and Angelina. The section 366.26 hearing was continued to March 5. On March 5, the mother's attorney made an oral Code of Civil Procedure section 170.6 challenge to the judge. The judge allowed the challenge, and the matter was continued for a contested section 366.26 hearing on March 24 before a different judge.

The Department's section 366.26 report recommended that parental rights be terminated and adoption selected as Bailey's permanent plan. The report noted that Bailey is a "well adjusted and cheerful young child" who has "a healthy and loving bond with his caregiver" from whom he seeks "comfort, attention, and approval." The report stated, without explanation, "[t]his will be a closed adoption." The Department acknowledged that the mother had maintained regular and appropriate visitation with Bailey. Bailey had also had bi-monthly visits with his maternal grandmother and the siblings she had adopted. The report did not mention Bailey's relationship with Angelina.

The section 366.26 hearing was held on March 24, 2010. Angelina was present at the hearing along with her appointed attorney. The Department submitted on the section 366.26 report. None of the attorneys chose to question the social worker. Although the mother's attorney tried to call Angelina to testify as the mother's first witness, Angelina was reluctant to testify. Instead, the mother testified as the first witness, and Angelina's attorney thereafter read to the court a statement from Angelina, which was accepted by all as an offer of proof. The Department's attorney argued that neither the mother nor Angelina had met the burden of establishing an exception to adoption. Bailey's attorney argued that neither exception had been established and that adoption was in Bailey's best interest, and she sought termination of parental rights.

The court noted that "the reports indicate it would be a closed adoption, which definitely heightens . . . the weight of what the court must decide." The court found that the mother had maintained regular visitation, but it observed that those visits had always been supervised. "I don't believe there's been a demonstration that this is [a] type of relationship that the child would benefit from in continuing the relationship with [the mother]." The court found both the parental relationship exception and the sibling relationship exception inapplicable. The court explicitly found that "it's in Bailey's best interest to free him for adoption." The court terminated parental rights and selected adoption as Bailey's permanent plan.*fn2 Both the mother and Angelina timely filed notices of appeal.

II. Discussion

Adoption must be selected as the permanent plan for an adoptable child and parental rights terminated unless the court finds "a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. [¶] . . . [¶] (v) There would be substantial interference with a child's sibling relationship . . . ." (§ 366.26, subd. (c)(1)(B).) "[T]he burden is on the party seeking to establish the existence of one of the section 366.26, subdivision (c)(1) exceptions to produce that evidence." (In re Megan S. (2002) 104 Cal.App.4th 247, 252.)

There is some dispute about the precise standard of review that applies to an appellate challenge to a juvenile court ruling rejecting a claim that one of the adoption exceptions applies. In In re Jasmine D. (2000) 78 Cal.App.4th 1339 (Jasmine), the First District Court of Appeal acknowledged that most courts had applied the substantial evidence standard of review to this determination. (Jasmine, at p. 1351.) However, the First District concluded that the abuse of discretion standard of review was "a better fit" because the juvenile court was obligated to make "a quintessentially discretionary determination." (Jasmine, at p. 1351; but see Pack v. Kings County Human Services ...

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