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In Re Sierra W. et al., Persons Coming v. Frank A

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE


December 29, 2010

IN RE SIERRA W. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SOLANO COUNTY HEALTH AND HUMAN
SERVICES DEPARTMENT,
v.
FRANK A., DEFENDANT AND APPELLANT.

(Solano County Plaintiff and Respondent, Super. Ct. Nos. J37979, J37980)

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

In re Sierra W.

CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Frank A. (father) challenges the termination of parental rights as to his daughter, Sierra W., and his son, B.W. (collectively, children). (Welf. & Inst. Code, § 366.26.)*fn1 He contends the juvenile court erred by failing to apply the beneficial relationship and sibling exceptions to termination of parental rights. (§§ 366.26, subds. (c)(1)(B)(i), (c)(1)(B)(v).) We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case has an extensive history. We summarize the facts only as germane to father's claims on appeal.

B.was born in September 2006 and Sierra was born a year later, in September 2007. In October 2007, the Solano County Health and Human Services Department (Department) filed a nondetaining section 300 petition on behalf of the children alleging that: (1) Sierra tested positive for methamphetamines when she was born; (2) mother had unaddressed mental heath and substance abuse problems; and (3) mother and father have a "volatile relationship that has resulted in law enforcement responding to . . . a domestic disturbance call." At a disposition hearing in January 2008, the court declared the children dependents.

In March 2008, the Department filed a section 387 petition alleging that father's arrest for methamphetamine possession, his positive methamphetamine test, and the unsanitary condition of the parents' home were putting the children at risk. The court detained the children. At a disposition hearing on the section 387 petition in May 2008, the court determined returning the children to their parents' custody would create a substantial risk of detriment to the children's safety, protection, and physical and emotional well-being. The court ordered reunification services and supervised visitation.

In a status review report filed in August 2008, the Department reported that it had provided father with visits twice a week but his attendance had been "sporadic."*fn2 When father did attend visits, however, he was affectionate and attentive. He brought his two children from a previous marriage, Cody and Miranda, to visits "a couple times a month." At the six-month review hearing, the court determined that returning the children to mother and father's custody would be contrary to the children's welfare. The court continued reunification services for both parents and set a 12-month review hearing.

The Department's 12-month review report filed in March 2009 recommended terminating reunification services for father and setting a section 366.26 hearing (.26 hearing). From September 2008 to March 2009, father had attended only 21 of 41 visits, was between 10 and 45 minutes late to eight of those visits, and was "not overly interactive" with the children during the visits. In an addendum report, the Department noted it had reduced father's visitation from twice a week to once a week because he missed at least one visit per week. At the conclusion of the 12-month review hearing in June 2009, the court terminated reunification services and set a .26 hearing for October 2009.

In its initial .26 report filed in September 2009, the Department recommended terminating parental rights because father had "failed to complete [his] case plan[ ]" and had failed to "reunify with [his] children. . . ." Since July 14, 2009, father attended all of his scheduled monthly supervised visits with the children, but arrived late to many of the visits. Father also brought junk food to some visits and tried to play with the children while he was "trying to interact with all the adults in the room."

According to the report, the children had been in the same foster home for 10 months and were "very connected to their foster parents" and had "grown to depend on their foster parents to meet their needs." The Department opined that the relationship between the children and mother and father "is not significant to the point it would outweigh the benefit for B.and Sierra of growing up in a safe and stable home. . . . [¶] Termination of parental rights would not be detrimental to B.and Sierra. B.and Sierra need and deserve to have the permanency and stability provided by the permanent plan of adoption."

The court held the .26 hearing on December 8, 2009. At the hearing, father testified that one of his children from a previous marriage, Cody, lived with him before the children were removed from his custody. In response, the court continued the .26 hearing to enable the parties to investigate father's claim that Cody lived with him and to evaluate whether the children would assert a sibling relationship with Cody pursuant to section 366.26, subdivision (c)(1)(B)(i). After continuing the hearing several more times, the court eventually set a new .26 hearing date for May 2010.

At the .26 hearing on May 12, 2010, social worker Franceen Rea testified the children appeared "very comfortable with the foster parents. They tell the foster parents they love them. They seem very attached to the foster parents." Rea observed father's monthly visits with the children. Although father was "pleasant" and talked to the children during the visits, he did not "really play with" the children; instead, he sat "down and talk[ed] to the children a little bit."*fn3 According to Rea, the children did not "seem to have any type of separation anxiety" when father's visits ended. Rea opined that the benefits of maintaining a relationship with father did not outweigh the benefits of having parental rights terminated and having a permanent plan of adoption.

Rea testified the children never resided in the same household as Cody and Miranda. She explained that the parents lied to social workers about where the children were living and noted that the previous social worker's notes indicated the children lived with mother before they were detained. Rea characterized the children's visits with half-siblings Cody and Miranda as "sporadic," noting that father brought Cody and Miranda to only four visits in the year preceding the .26 hearing. Rea observed that the children did not see Cody "a lot" and noted that she did not "see a real strong sibling[ ] relationship" between Cody and the children. Rea opined that there would not be any detriment to the children if they did not maintain contact with Cody and Miranda.

Father testified that he is Sierra's biological and legal father and that he began caring for B.when B.was a few days old. B.lived with father for 18 months, until B.was removed from father's custody in March 2008. Cody lived with father when the children were living with father. When he visited the children, they ran up to him and called him "Daddy." During visits, he would "play with [the children] whenever possible" and tried to "pick up after" them. At the end of the visits, the children were affectionate with father; B.asked father when he would get to "come home." Father brought Cody to most of the monthly visits. Cody is "very close" with B.; B.calls Cody "mom-dad." The children recognize Cody and Miranda and "love playing" with them.

At the conclusion of the .26 hearing, the court determined by clear and convincing evidence the children were adoptable. The court concluded none of the exceptions to the termination of parental rights applied. The court explained it could not "find that . . . the detrimental exception would apply, the parental relationship exception would apply, or that [ ] substantial detriment would flow from the termination of the sibling relationship between the children and Cody."

DISCUSSION

Standard of Review

"Reviewing courts have applied various standards of review when considering trial court determinations of the applicability of these statutory exceptions to termination of parental rights." (In re Scott B. (2010) 188 Cal.App.4th 452, 469.) "A finding [that] no exceptional circumstance exists is customarily challenged on the sufficiency of the evidence. [Citations.]" (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.); In re S.B. (2008) 164 Cal.App.4th 289, 297.) Some courts, however, have applied an abuse of discretion standard to review a juvenile court's determination that an exception to termination of parental rights did not apply. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.); In re T.S. (2009) 175 Cal.App.4th 1031, 1038; In re Stephanie M. (1994) 7 Cal.4th 295, 318.) As the Jasmine D. court explained, "the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since the statute now requires the juvenile court to find a 'compelling reason for determining that termination would be detrimental to the child.' [Citation.] That is a quintessentially discretionary determination." (Jasmine D., supra, at p. 1351.) The court also noted, however, that the "practical differences between the two standards of review are not significant." (Ibid.)

We conclude the abuse of discretion standard governs our review but we recognize that the substantial evidence test applies to pure findings of fact. (Jasmine D., supra, 78 Cal.App.4th at p. 1351; see also In re A.A. (2008) 167 Cal.App.4th 1292, 1322.) When applying the deferential abuse of discretion standard, "[t]he trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.)

Beneficial Relationship Exception to Termination of Parental Rights

Father claims the court erred by determining the beneficial relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i) did not apply. The beneficial relationship exception has two prongs. First, the parent must show he or she "ha[s] maintained regular visitation and contact with the child[.]" (§ 366.26, subd. (c)(1)(B)(i).) Second, the parent must establish the benefits to the child from "continuing the relationship" outweigh the benefit of adoption. (§ 366.26, subd. (c)(1)(B)(i); see also Seiser & Kumli, Cal. Juvenile Courts (2010) § 2.171[5][b][i][A], p. 2-428.) Numerous cases have interpreted the beneficial relationship exception and have held that the "exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (Autumn H., supra, 27 Cal.App.4th at p. 575; Jasmine D., supra, 78 Cal.App.4th at p. 1349 [it is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights"]; Seiser & Kumli, supra, § 2.171[5][b][i][A], pp. 2-428-430, citing cases.)

The beneficial relationship exception to the termination of parental rights "may be the most unsuccessfully litigated issue in the history of the law." (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds as stated in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) The showing required to establish the exception "will be difficult to make in the situation . . . where the parents have essentially never had custody of the child nor advanced beyond supervised visitation." (In re Casey D. (1999) 70 Cal.App.4th 38, 51 (Casey D.).)

Father has not established either prong of the beneficial relationship exception. As an initial matter, father did not maintain "regular visitation and contact" with the children. (§ 366.26, subd. (c)(1)(B)(i).) Father's visits were "sporadic." Between September 2008 and March 2009, father attended only 21 of 41 visits and was late to several visits. In fact, the Department reduced father's visits from twice a week to once a week because he missed so many visits.

In addition to failing to visit the children consistently, father did not occupy a true parental role in the children's lives. Father presented no evidence at the .26 hearing that the children have needs that only he can meet. (In re Helen W. (2007) 150 Cal.App.4th 71, 81 (Helen W.).) Nor did he present evidence demonstrating his relationship with the children is so significant that its termination would cause them great detriment. (Autumn H., supra, 27 Cal.App.4th at p. 575; In re Angel B. (2002) 97 Cal.App.4th 454, 468.) In contrast, Rea testified that terminating father's parental rights would not be detrimental to the children and that the children did not have separation anxiety when the visits ended. (See Casey D., supra, 70 Cal.App.4th at p. 52.)

Father's reliance on In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C.), is misplaced. In that case, the juvenile court ordered guardianship as the permanent plan for two minors, concluding the beneficial relationship exception applied because there was a "close bond between mother and the boys" and because "a continuation of contact would be beneficial to the children." (Id. at p. 1537.) The appellate court affirmed, concluding the mother visited the children regularly, played with them during visits, and "[kept] them safe." The court also noted that one of the children "tended to cry for long periods and would resist going to bed after visitations with [the] mother." (Id. at p. 1535.) Brandon C. does not apply here because father did not visit the children regularly, and did not play with them and keep them safe during the few visits he did attend. Moreover, there was no evidence that there was a "close bond" between father and the children, or that continuing contact with father would be beneficial for the children.

That father loves the children and behaved appropriately during visits with them does not outweigh the security and stability of an adoptive home. (Helen W., supra, 150 Cal.App.4th at p. 81.) Father has had the benefit of services since the inception of these dependency proceedings over two years ago, but he has still not overcome the problems that led to children's dependency. In such circumstances, we cannot conclude the juvenile court abused its discretion by concluding the children would be better off in their prospective adoptive home. Substantial evidence supports the court's determination that the beneficial relationship exception did not apply. (See Jasmine D., supra, 78 Cal.App.4th at pp. 1351-1352; In re Derek W. (1999) 73 Cal.App.4th 823, 827 ["[w]hile the relationship between [the father] and Derek is pleasant and emotionally significant to Derek, it bears no resemblance to the sort of consistent, daily nurturing that marks a parental relationship"].) "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) This is not an extraordinary case.

Sibling-Relationship Exception to Termination of Parental Rights

Father also challenges the court's determination that the sibling relationship exception set forth in section 366.26, subdivision (c)(1)(B)(v) did not apply to Cody and the children.*fn4 The sibling exception to termination of parental rights applies when the parent demonstrates "[t]here would be substantial interference with a child's sibling relationship[.]" (§ 366.26, subd. (c)(1)(B)(v); In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.) To determine whether this exception applies, the court considers "the nature and extent of the sibling 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.' [Citation.]" (In re L.Y.L., supra, at p. 951.)

A parent invoking the sibling relationship exception "must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child." (In re L.Y.L., supra, 101 Cal.App.4th at p. 952, fn. omitted; In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) This showing is not easily made: "[T]he 'sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption." (In re Celine R. (2003) 31 Cal.4th 45, 61; see In re Valerie A. (2007) 152 Cal.App.4th 987, 1014 [observing that "application of this exception will be rare"].)

We disagree with father's claim that the children lived with Cody "for significant portions of their lives." Father testified Cody and the children lived with him until the children were removed from his custody, but Rea testified the children never resided in the same household as Cody and Miranda. According to Rea, the parents lied to social workers about where the children were living. Even if father's testimony were undisputed -- which it is not -- it does not establish the children lived with Cody for "significant portions of their lives." Sierra lived with father for six months; at the time of the .26 hearing, she had spent two years in foster care. B.lived with father for 18 months; at the time of the .26 hearing, he had spent two years in foster care.

We are not persuaded by father's contention that the children have a "wide and profound range of shared experiences with their brother, Cody." These shared experiences, according to father, include sharing "the same parents" and the "same environmental parenting practices." Sharing parents and being subjected, briefly, to the same "parenting practices" do not constitute "significant common experiences" within the meaning of section 366.26, subdivision (c)(1)(B)(v).) That B.calls Cody "mom-dad" and that the children recognize Cody and "love playing" with him does not establish the sibling relationship exception. (In re I.I. (2008) 168 Cal.App.4th 857,-872 [sibling relationship exception did not apply even where it was undisputed that children shared close and strong bonds; social worker testified that children's best interests were served by adoption, not by keeping them together]; In re Megan S. (2002) 104 Cal.App.4th 247, 252 [sibling relationship exception did not apply where siblings were bonded but where there was no evidence that severing the relationship would be detrimental]). Cody's visits with the children were "infrequent" and Rea did not observe "a real strong sibling[ ] relationship" between Code and the children. In addition, Rea opined that there would not be any detriment to the children if they did not maintain contact with Cody. As a result, the court properly concluded the sibling relationship exception set forth in section 366.26, subdivision (c)(1)(B)(v) did not apply.

DISPOSITION

The order terminating father's parental rights is affirmed.

We concur: Simons, J. Bruiniers, J.


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