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In Re E.S. et al., Persons Coming Under the Juvenile Court Law. v. K.S

June 28, 2011


APPEAL from the Superior Court of San Bernardino County. Barbara A. Buchholz, Judge. (Super.Ct.Nos. J225799 & J225800)

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




A.S. (the minor), the oldest of three children who became dependents of the juvenile court, was originally placed with his siblings but was later placed in a group home due to behavior problems. At the 12-month review stage of the proceedings, the foster parents of the minor's two younger siblings expressed a desire to adopt them, and the social worker for the San Bernardino County Department of Children and Family Services (CFS) recommended a permanent plan of adoption for these two siblings. The minor, the nonadoptive sibling, filed a petition pursuant to Welfare and Institutions Code*fn1 section 388 seeking reunification with his siblings, or, in the alternative, an order to preclude adoption of the younger siblings. The trial court denied the petition and the minor appeals, claiming the trial court abused its discretion in denying the petition, and violated his due process rights by not permitting live testimony at the hearing. We affirm.


In February 2009, the minor A.S., then 10 years old, and his two younger siblings T.S. (then age three) and E.S. (then age 11 months), came to the attention of CFS when mother was transported to the emergency room of a hospital by ambulance with no one to care for the children. Mother had a history of mental illness, including a suicide attempt. Mother also admitted she had a long history of using controlled substances.

A dependency petition was filed on February 18, 2009, alleging the three children were at substantial risk of harm due to mother's failure or inability to supervise or protect them, by mother's inability to provide regular care due to mental illness and substance abuse (§ 300, subd. (b)), by the alleged father's inability to parent due to substance abuse (§ 300, subd. (b)), and by the lack of provision for the children's support by their respective fathers.*fn2 (§ 300, subd. (g).)

Reports submitted prior to the jurisdiction/disposition hearing noted that the children's attorney had contacted the social worker regarding possible separation of the children due to the minor's behavior. However, the social worker did not believe removal of the minor was necessary, and felt that separation of the minor from his three-year-old sibling T.S. would not be in their best interests due to the sibling bond. The social worker also commented that due to limited contact with mother or other family members, the children's only stability was each other. On April 28, 2009, mother submitted on the reports as to jurisdiction and disposition, and the children were declared dependents. Mother was ordered to participate in family reunification services and was granted weekly visitation.

During the reunification period, mother visited regularly during the first six months, but visits became less consistent during the second six-month period and she did not regularly participate in court-ordered reunification services. In the first six-month review report, the social worker observed the minor was very parentified and tended to his brothers' needs, even directing mother when she was unable to console them. However, the report went on to note that the minor resented this role and directed his resentment at his younger brothers.

During the second six-month review period, the minor was removed from his foster home placement and was placed in a group home due to significant behavioral and anger control problems. He destroyed property in the foster parent's home, including three televisions, a refrigerator, and a microwave oven, among other behaviors (including, but not limited to, urinating in a closet, and "busting" holes in walls), and directed anger at his younger siblings. The foster parent was interested in adopting the two younger brothers. The social worker recommended that parental rights be terminated as to the younger children to free them for adoption.

Prior to the 12-month review hearing, the minor filed a request to change court order (JV-180), seeking an order reuniting him with his siblings. In the alternative, the minor requested that the court not terminate parental rights as to his siblings as that would make it difficult for him to continue his relationship with them. In support of the requested change, the minor's trial counsel referred to a passage from the social worker's report describing him as very parentified. Counsel's declaration concluded that because of the minor's unique role, "it is contended that [T.S.] and [E.S.] are closely bonded to [the minor] as [the minor] is bonded to them." On May 10, 2010, the court ordered a nonevidentiary hearing on the request.

At the contested 12-month review hearing, the court terminated mother's reunification services, and referred the matter for a hearing to select and implement an appropriate permanent plan, which was not limited to guardianship or planned permanent living arrangement. The court did not rule on the JV-180 request to change court order. However, in an interim review report and adoption assessment, CFS recommended that parental rights be terminated as to the younger siblings, and that a permanent plan of adoption be implemented as to the younger siblings. Regarding the sibling relationship, the interim report noted that the prospective adoptive mother was committed to insuring the adoptive siblings have appropriate interaction and a positive sibling relationship with the minor.

On August 31, 2010, the minor filed a second request to change court order (JV-180), identical to the previous petition. On September 3, 2010, the court again ordered a nonevidentiary hearing. In its response to the JV-180 request, CFS reported that the minor was physically aggressive towards his younger brothers and there were significant concerns that the minor had inappropriate sexual contact with one of his younger siblings. The report reiterated that the prospective adoptive mother was committed to maintaining the ...

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