IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
September 12, 2011
IN RE O.C. ET AL. MINORS, PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
J.N., DEFENDANT AND APPELLANT.
(Super. Ct. Nos. JD229957 & JD216609)
The opinion of the court was delivered by: Duarte , J.
In re O.C. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Jeannie N., mother of the minors,*fn1 appeals from orders of the juvenile court summarily denying her petition for modification and terminating her parental rights. (Welf. & Inst. Code,*fn2 §§ 366.26, 388, 395.) Mother contends the court erred in summarily denying her petition for modification and in finding the minors generally adoptable. Mother further asserts that she established termination of parental rights would be detrimental, both because the minors would benefit from continued contact with her, and because termination would sever the sibling bond. We disagree and shall affirm.
FACTUAL AND PROCEDURAL HISTORY
M.N., then age five; C.N., then age two; and O.C., then age 10 months, were first removed from mother's custody in March 2001 due to neglect, domestic violence and physical abuse of M.N. by mother's boyfriend S.C., who was also the father of O.C. A psychological evaluation concluded mother was mildly mentally retarded and dependent upon others for structure in her life. Mother tended to be impulsive and assaultive and to project blame onto others.
Mother completed her service plan; the minors were returned to her care, and the first dependency was terminated in November 2002.
Following the minors' return to mother, there were several referrals alleging neglect and abuse which were assessed as inconclusive or unfounded. In 2004, a referral on a half sibling, who was burned by mother, was substantiated and the minors were placed in protective custody. The minors were returned to mother but referrals for physical abuse and neglect continued. In December 2007 there was a referral for sexual abuse of M.N. and O.C. by S.C., which was investigated but resolved as unfounded. Four months later in 2008, there was another referral for sexual abuse of the minors by S.C. with specific statements by C.N. and O.C. about the abuse. The referral was again resolved as unfounded.
In July 2009, the Sacramento County Department of Health and Human Services (Department) filed petitions for the original three minors, M.N., then age 14, C.N., then age 10, and O.C., then age 9, as well as a younger sibling A.C., then age 3, due to risk of sexual abuse by S.C. and mother's failure to protect the minors. The minors were eventually placed in protective custody.
In addition to the molestation of two of the minors by S.C., mother herself had a long history of inflicting abuse and neglect on the minors. The Department recommended offering services to mother, including counseling on sexual abuse and domestic violence, and denying services to S.C. The court sustained an amended petition, ordered mother to participate in a psychological evaluation and adopted a reunification plan for mother.
A progress report in December 2009 provided the results of the psychological evaluation which concluded that mother suffered from a personality disorder and was unlikely to benefit from services. The court ordered a second psychological evaluation. The second evaluation in February 2010 concluded mother was mildly retarded and had a personality disorder. Further, mother lacked the ability to gain skills to parent and no services would help her do so. Based on these two reports, the court denied further services to mother in June 2010 and set a selection and implementation (section 366.26) hearing.
A status report in April 2010 stated the minors had behavioral problems following contact with mother. It became necessary to have visits supervised by the minors' therapist to control and prevent negative reactions to visits. Both minors were in therapy as a result of the trauma they experienced prior to removal, and A.C. had ongoing behavioral issues. The therapists recommended limiting mother's visits due to her manipulative behavior, which included encouraging the minors to act out in the foster home and to make false allegations against the foster parent, which ultimately resulted in at least one loss of placement. The two older half siblings had more serious behavioral issues and had to be placed separately from the younger minors.
The September 2010 assessment report for the section 366.26 hearing recommended termination of parental rights.
Mother was visiting once a month, supervised by a therapist. Overall, the visits were appropriate and both A.C. and O.C. returned to their caretaker without problems. Both minors were healthy and without delays. Both were in school without problems, although A.C. might need speech therapy. A.C. was in weekly therapy, had problems sleeping and showed symptoms of Post Traumatic Stress Disorder (PTSD) and anxiety. O.C. was also in weekly therapy, and the social worker recommended it continue.
The half siblings, M.N. and C.N., had permanent plans of guardianship with weekly visits supervised by the therapist. The social worker recommended ongoing sibling contact after the adoption was finalized. The current caretaker was not interested in adoption, but a foster parent who was interested had been identified and the transition to that home was in progress. The report stated that the minors were specifically adoptable. O.C. agreed with the permanent plan.
An addendum in November 2010 explained that the prospective adoptive parent had decided not to adopt the minors for her own personal reasons. However, the minors were making good progress in adjusting to a nurturing routine. Both continued to do well in school and A.C.'s night terrors were decreasing. Therapeutic services continued. A new foster home was identified and the social worker was confident that a prospective adoptive family would soon be found. The addendum stated the minors were generally adoptable.
In December 2010, mother brought petitions for modification seeking return of the minors under dependent supervision or, alternatively, an order for services with a goal of returning the minors to her. Mother alleged, as changed circumstances, that she had maintained regular visitation, had secured employment and adequate housing, was attending church, had supportive friends and was not currently involved in a romantic relationship and did not plan to become involved. Mother alleged that the proposed order was in the minors' best interests because O.C. and A.C. were very bonded to her, they were not adoptable due to that bond, and they could return to her and live as a family.
At the 366.26 hearing, the Department objected to the petitions as untimely and minor's counsel argued the petitions did not allege a change in circumstances from the time services were denied and that the proposed order was not in the minors' best interests. After reviewing the petitions, the juvenile court summarily denied the petitions, finding they failed to state new evidence or a change of circumstances that addressed the conditions leading to the order terminating services and there was insufficient evidence that the modification would be in the minors' best interests.
At the hearing, M.N. testified she had no opinion on the adoption of A.C. and O.C. stating that "if my sisters are happy, that makes me happy." She thought O.C. would be upset if they couldn't see each other anymore, but admitted O.C. had not said anything about frequency of visits or wanting to see M.N. M.N. concluded her testimony with the following statement: "I want to say this to my mom. I know it's going to be hard to let us go, but you have to let us go one way or another. I know it's going to be hard, but me and [O.C., A.C. and C.N,] you're making it harder on us to let go. You just have to let go."
O.C., who had answered a series of written questions about her relationship with her siblings and her mother and her feelings about them, told the court those answers were true. The answers showed that she was attached to her siblings and would be sad if she never saw them again. O.C. expressed strong feelings for mother and was somewhat ambivalent about adoption. O.C. testified that mother was her favorite person. She thought she probably would not see her mother again because she might be adopted. She felt "okay" about it but it was sad.
Mother was sitting in O.C.'s view and was crying. The court cautioned mother about displaying emotions which could put pressure on the minor. Testimony resumed, exploring O.C.'s feelings about being adopted with A.C. ("happy but sad") and how she would feel if they were separated ("not very mad but still sad").
Mother testified she had a good relationship with O.C. and A.C. and they were bonded to her. Mother further testified she had missed no visits but acknowledged that all visits were supervised in a therapeutic setting.
The court found by clear and convincing evidence the minors were likely to be adopted. Families had been interested in adopting the minors, which was some evidence of their adoptability, and O.C. was a "bright, articulate child with a very good sense of humor" who did very well in school. No issues relating to the minors made placement difficult; A.C. was a "delightful child" and her symptoms of PTSD were quite manageable.
The court addressed the potential exceptions to the preference for adoption as a permanent plan. As to the benefit exception, the court found that, while mother had visited regularly, visits were still supervised and there was evidence from mother's conduct in court that she remained unable to put the minors' needs first. The court concluded there would be only incidental benefit to the minors in continued contact with mother, noting that sadness at the prospect of severing the relationship with mother was not equivalent to detriment, and did not outweigh the benefits to the minors of a secure and stable home. As to the sibling bond exception, the court found little evidence that A.C. had any significant relationship with her half siblings. O.C. clearly did have a relationship with M.N. and C.N., but the court again concluded that her sadness was not enough to outweigh the benefit of permanence adoption would provide. The court terminated parental rights, selecting a permanent plan of adoption for A.C. and O.C.
A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances.*fn3 "The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is preponderance of the evidence. [Citation.]" (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parent's interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
Here, the juvenile court denied the petitions without an evidentiary hearing. To establish the right to an evidentiary hearing, the petition must include facts which make a prima facie showing that there is a change in circumstances and "the best interests of the child may be promoted by the proposed change of order." (In re Daijah T. (2000) 83 Cal.App.4th 666, 672-673; In re Zachary G. (1999) 77 Cal.App.4th 799, 806; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414; Cal. Rules of Court, rule 1432(b).) More than general conclusory allegations are required to make this showing even when the petition is liberally construed. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) "In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case." (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.)
In this case, the petitions alleged there had been some changes in mother's living circumstances and mother was no longer in a relationship with S.C. However, this proffer was insufficient to address the two separate psychological evaluations diagnosing mother's mental impairments and concluding mother was unable to benefit from services. Further, mother had not engaged in therapy to address her dependence on an individual who abused her children nor did she address her own behavior of abusing, neglecting, and manipulating her children. Similarly, the petitions alleged there was a strong bond between mother and the minors, but did not allege facts to show that either return to her care or reinstatement of services would promote the minors' needs for permanence and stability.
As the juvenile court noted, and we agree: "There [was] simply no showing by the [section] 388 petition that the mother has really overcome the chronic, longstanding deficits that have plagued her parenting of these children for the entirety of these children's lives." Because the petitions were deficient, the court did not abuse its discretion in summarily denying them.
"If the court determines, based on the assessment . . . and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted." (§ 366.26, subd. (c)(1).)
Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The existence or suitability of the prospective adoptive family, if any, is not relevant to this issue. (Ibid.; In re Scott M. (1993) 13 Cal.App.4th 839, 844.) "There must be convincing evidence of the likelihood that the adoption will take place within a reasonable time." (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) The fact that a prospective adoptive family is willing to adopt the minor is evidence that the minor is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
Here, both minors were healthy and developmentally on track except for A.C.'s minor speech problem. O.C. was not showing behavioral problems and A.C.'s issues were resolving over time with therapy and the benefits of a structured environment. These children were variously described as "bright," "articulate," and "delightful." One prospective adoptive placement had been found and, while it failed, the failure was not due to any characteristics of the minors.*fn4 The social worker opined another adoptive placement could be found in a reasonable time.
As the juvenile court correctly found, the earlier report (September 2010) describing the minors as specifically adoptable, was augmented by a later addendum (November 2010), which contained a more accurate assessment that the minors were generally adoptable based on the overall evidence of their characteristics as well as the interest of other families in adopting them. Substantial evidence supported the court's finding the minors were likely to be adopted in reasonable time. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)
At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose one of the several "'possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption.' If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child." (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368 [citations omitted, original emphasis].) There are only limited circumstances which permit the court to find a "compelling reason for determining that termination of parental rights would be detrimental to the child. . . ." (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(e)(3); Evid. Code, § 500.)
A. Beneficial Relationship Exception
One of the circumstances in which termination of parental rights would be detrimental to the minor is: "The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The benefit to the child must promote "the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. . . . If severing the natural parent/child 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. (1994) 27 Cal.App.4th, 567, 575.) Even frequent and loving contact is not sufficient to establish this benefit absent a significant positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Brian B. (1991) 2 Cal.App.4th 904, 924.)
As the juvenile court noted, mother satisfied the first prong of this exception by maintaining regular visitation. However, the visits were therapeutically supervised, in part because the relationship between mother and the minors was marred by mother's manipulation of the minors and her persistent need to place her own interests above that of the minors. M.N.'s testimony was a clear plea on behalf of the minors for mother to recognize and respond to their needs over her own. These circumstances do not describe a significant positive relationship, despite O.C.'s strong expressions of love for mother. As the juvenile court observed: "The five volumes of files amply demonstrate that there is simply no basis to believe that these children will ever be safely maintained in the home of their mother outside the care of the . . . Court and the Department." Mother failed to meet her burden to establish the benefit exception and the court properly rejected its application.
B. Sibling Bond Exception
A second circumstance under which termination of parental rights would be detrimental is when "[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 court must consider the interests of the adoptive child, not the siblings, in determining whether termination would be detrimental to the adoptive child. (In re Daniel H. (2002) 99 Cal.App.4th 804, 812; In re Celine R. (2003) 31 Cal.4th 45, 49-50.) "To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.)
Here, there was no evidence of a sibling relationship between A.C. and C.N. or M.N. that was sufficiently significant to justify a finding of detriment to A.C. if the relationship were terminated through adoption. A.C. did have a strong relationship with O.C.; however, the two minors were to remain together and be adopted as a sibling group.
As to O.C., there was stronger evidence of a significant sibling relationship with the older minors because they had lived together and shared the experiences of abuse, neglect and multiple removals from the mother. However, during much of the dependency, O.C. and A.C. were placed together and only saw their half siblings at visits. O.C. expressed attachment to her half siblings, a desire to see more of them and sadness at the prospect of severing that relationship. Nonetheless, O.C. thought adoption would be "O.K." although she would be sad. M.N. had no opinion about the adoption of her sisters and said O.C. had not talked about wanting to see her or have more frequent visits. Thus the evidence shows some bond between O.C. and the half siblings, but there was no evidence that severing the relationship through adoption would be detrimental to O.C. beyond her unfortunate sadness.
O.C. and A.C. had already shown by the improvement in their behavioral problems that a stable, structured home was beneficial to their development and their ability to overcome the neglect and abuse which they had suffered. Thus, while there was some detriment to O.C. in severing the sibling bond, it was outweighed by the many benefits to the minors of a stable permanent home. Mother did not met her burden, and the juvenile court did not err in concluding the sibling bond exception did not apply.
The orders of the juvenile court are affirmed.
We concur: BLEASE , Acting P. J. NICHOLSON , J.