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In Re K.M., A Person Coming Under the Juvenile Court Law. v. L.M

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


December 7, 2011

IN RE K.M., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
L.M., DEFENDANT AND APPELLANT.

(Super. Ct. No. JD228844)

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

In re K.M. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Mother appeals from the juvenile court's orders terminating her parental rights and ordering a permanent plan of adoption as to minor K.M. (Welf. & Inst. Code, § 366.26.)*fn1 Mother contends that the sibling relationship and beneficial parental relationship exceptions to adoption apply. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 18, 2008, Sacramento County Department of Health and Human Services (the Department) filed section 300 petitions as to two-year-old K.M. and her 10-year-old half brother, S.M. (collectively, the minors). The petitions alleged that mother had used excessive corporal punishment on S.M., and may have inflicted bruising on K.M.*fn2 Mother had been charged with a violation of Penal Code section 273a, subdivision (b) as a result of the injuries inflicted on S.M.

According to the December 19, 2008 detention report, S.M. said he was afraid of mother, who was mean to him and hit both minors. S.M. had lived with his father (So.M.) from the time he was two months old until So.M. was jailed in 2008.*fn3 Mother smoked marijuana in front of S.M. The minors were placed in the Children's Receiving Home.

Mother denied substance abuse. She had sole legal and physical custody of S.M. She admitted once using corporal punishment on S.M., but denied using it on K.M. She believed she had done nothing wrong.

The jurisdiction/disposition report for the January 15, 2009 hearing recommended out-of-home placement for the minors with services for the parents.

When she was interviewed January 8, 2009, mother still denied hitting K.M., but admitted hitting S.M. because he had stolen $50 and mother's Play Station 2 from her. Mother admitted smoking marijuana, but denied any other recent substance abuse. Mother tested positive for marijuana in late December 2008, and missed five scheduled drug tests. She was scheduled for an alcohol and other drug (AOD) assessment.

K.M. was withdrawn and sullen at the Children's Receiving Home, and S.M. was misbehaving there. S.M. had demonstrated defiant behavior, was aggressive toward other children, called staff foul names, was involved in incidents of property destruction, and engaged in inappropriate sexual conduct, such as mimicking masturbating in front of other children when prompted by a peer. Mother reported that he had been diagnosed with Attention Deficit Hyperactivity Disorder.

The minors saw each other approximately twice a week at the Children's Receiving Home. The report did not state the specific nature of these contacts. However, S.M. expressed affection for K.M. and stated they had a good relationship and played well together.

An addendum report filed February 13, 2009 stated that S.M.'s paternal aunt and the maternal grandmother had been approved for placement. The paternal aunt and the maternal grandmother both indicated a willingness to accept both minors, but S.M. preferred placement with the paternal aunt. The Department recommended placing K.M. with the maternal grandmother and S.M. with the paternal aunt.

On May 27, 2009, the juvenile court held a contested jurisdiction/disposition hearing. The court sustained the section 300 petitions as modified and adopted the recommended findings and orders, including the separate placements of the minors. K.M. was placed with the maternal grandmother. S.M. was placed with the paternal aunt.

The minors remained in separate placements until August 27, 2009. On that day, the juvenile court ordered that both minors be returned to mother. K.M. was close to three years old and S.M. had just turned 11. The progress report filed August 27 stated that mother had found stable housing, had resumed her former employment as a Greyhound bus driver, was doing individual and substance abuse counseling, had completed anger management and parenting programs, and was drug testing negative.*fn4 Mother was visiting both minors regularly; since early July she had been authorized three unsupervised visits per week with K.M. and two overnight visits with S.M. Mother would take the minors to the park, swimming and other age-appropriate activities. K.M. appeared happy and calm in mother's presence. The minors were doing well in their respective placements, although S.M. was still attached to So.M. So.M.'s probation had been revoked, and he had done little if anything to fulfill his case plan.

An in-home review report dated November 18, 2009 recommended terminating So.M.'s services and offering conjoint counseling for mother and S.M. K.M. appeared to be thriving in the mother's care. She had bonded with mother since her return on August 27 and mother's parenting skills had improved. K.M.'s development was normal. S.M. had behavioral problems at home and at school. He was slowly adjusting to the mother's care, but preferred placement with both parents. He was experiencing complications in school settings, which resulted in two suspensions. The minors had a close relationship and S.M. was very helpful with K.M. Mother had continued to participate in services, while So.M. had done little in the prior six months and may have moved to Louisiana to avoid incarceration.

The November 18, 2009 report stated that mother had been involved in a serious car accident on November 1, 2009, but was not at fault. This information turned out to be only partially accurate.

On December 3, 2009, a permanency hearing was conducted, at which the juvenile court ordered another AOD assessment and drug testing for mother.

An addendum report filed January 6, 2010 stated that on November 5, 2010, a social worker found out the true cause of mother's accident.*fn5 The report stated that the mother's accident was the result of mother driving while "heavily intoxicated." She was driving two adult passengers, who were also intoxicated. Mother drove the vehicle the wrong direction on a freeway, sideswiped one vehicle and collided into another. The minors were not with her at the time. She had lied to the social worker about the true nature of the accident. Mother tested negative on December 1, 2009, but also had three "administrative dirty tests."

On December 30, 2009, mother told a social worker that she was out of state and refused to disclose her location. She stated she would be back for the next court hearing. On December 31, 2010, a social worker spoke to mother by phone. Mother acknowledged that she was aware of the court order to complete an AOD assessment, but she had been out of state caring for her terminally ill father. The maternal grandmother and the minors were with her. S.M. had not attended school since December 8, 2009.

On January 4, 2010, a protective custody warrant on behalf of both minors was issued. The exact whereabouts of mother, the maternal grandmother and the minors were unknown.

As of January 5, 2010, a $100,000 warrant for failure to appear was pending for mother's arrest for felony violations stemming from the accident.

On January 11, 2010, the Department filed section 387 petitions alleging that mother had not complied with court orders and had absconded with the minors on or around December 30, 2009.

The January 14, 2010 detention report stated that mother had left California supposedly to care for her ailing father, and had refused to disclose her location.*fn6 The maternal grandmother had also avoided the Department. In a telephone conversation on January 12, 2010, mother told the social worker she was back in town and ready to give herself up.

On January 19, 2010, the juvenile court held a detention hearing, at which the court ordered the minors detained.

On February 11, 2010, the court granted the Department's motion for leave to file first amended section 387 petitions. The amended petitions alleged the facts of mother's accident, her current incarceration for violation of Vehicle Code section 23153, subdivisions (a) and (b), and the likelihood that she would receive a prison term.

The jurisdiction/disposition report for the February 11, 2010 hearing recommended out-of-home placement of the minors, with additional services for mother but not for So.M.

Mother claimed she did not remember the accident and only admitted she had a "hot toddy" beforehand. Because mother's blood-alcohol content after the accident was 0.20 percent, multiple victims were injured, and mother was out on bail on a pending felony charge when the accident occurred, the prosecutor indicated she was likely to recommend prison. Mother had not completed the AOD assessment and had not drug tested since the first week of December 2009. She and the maternal grandmother (with whom the minors were now living) had not been honest with the social worker. S.M. said he had missed two weeks of school while he was with mother and the maternal grandmother in Ohio.

At the February 11, 2010 prejurisdictional status conference, which was also a permanency hearing as to K.M., the parties submitted on the Department's reports. The juvenile court sustained the allegations of the first amended section 387 petitions and made the recommended findings and orders. K.M. was ordered removed from mother's custody and was placed in a foster home. S.M. was placed in the same foster home. Additional reunification services were ordered for mother. While in foster care, K.M. was doing well, although she had occasional tantrums and often questioned when she was going home to mother. The minors had a good relationship, and S.M. was very helpful in caring for K.M. while in the home.

In March 2010, K.M. started weekend visits with E.M. and Er.M., who had been approved as non-related extended family members (NREFMs). E.M. had been K.M.'s childcare provider since K.M. was two years old and had cared for K.M. five to seven days per week while mother was at work.

The NREFMs were approved as a placement for K.M. on March 13, 2010. K.M. had enjoyed overnight visits with them. The NREFMs were willing to adopt if reunification was not possible. They were also willing to continue to support the sibling relationship with visits and contact.

On April 14, 2010, mother was sentenced to four years four months in state prison on DUI-related charges arising out of the November 1, 2009 collision. She wanted to do services in custody and reunify with the minors. She remained in the county jail until she was transported to Valley State Prison for Women in Chowchilla.

A permanency review report filed April 27, 2010 recommended terminating mother's services, ordering a permanent plan of adoption for K.M. by the NREFMs and ordering a permanent plan of long-term relative or foster home placement for S.M.

Mother had supervised visitation with the minors once a week at the main jail, although the report did not indicate for how long this occurred. The visits went well. The minors looked forward to those visits and no concerning behaviors were reported by the foster parents following visitation. The record does not disclose the exact date mother was transported to state prison.

At a permanency review hearing on May 6, 2010, the juvenile court ordered K.M. placed with the NREFMs. As to S.M., the court directed the Department to initiate an Interstate Compact on the Placement of Children inquiry regarding the maternal great-aunt, who lived in Ohio.

An addendum report filed June 2, 2010 stated that mother was in the assessment center at Valley State Women's Facility in Chowchilla.

Mother had wanted K.M. to stay with her while mother was incarcerated in state prison through the Female Offender Program and Services (FOPS), but mother's criminal defense attorney suggested it would be in mother's best interest to attend a program in prison without K.M. In late May, mother sent the Department a letter indicating she wanted K.M. to stay with the NREFMs until her release.

In the meantime, K.M. was becoming very bonded with the NREFMs family. K.M. stated on numerous occasions that she loved E.M. and wanted to live there. The NREFMs continued to indicate a desire to support the sibling relationship and maintain contact with mother's family.

S.M. did not oppose placement with the maternal great-aunt in Ohio, but would have preferred to be with the paternal aunt, with whom he previously had been placed. However, the paternal aunt could not accommodate him at that time.

An addendum report filed July 6, 2010 stated that K.M. was thriving with the NREFMs, whom she called "mommy and daddy." She was unhappy when out of E.M.'s presence for an extended period of time. She was "closely bonded" with the NREFMs' four children. She appeared comfortable and depended on the family to help her thrive. She was very happy in the home and wanted to stay there.

When the NREFMs took K.M. in, she had psychosomatic complaints of headaches, back pain, and abdominal pain. By the time of this report, the symptoms were no longer present. K.M.'s pediatrician opined that this was owing to her stable home environment.

An addendum report filed September 2, 2010 stated that the minors had not visited with mother since she relocated to the Institution for Women in Corona and mother had not transferred to the program that provides in-custody services for female offenders. S.M. had requested placement with a family friend in Sacramento, and the results of a preliminary referral indicated the family had no criminal or child welfare history.

On September 7, 2010, the juvenile court held a contested permanency review hearing. Mother apparently had changed her mind at some point about having K.M. stay with her while incarcerated in state prison and indicated her desire to apply to one of the FOPS programs. Because of the timing, the lack of evidence that mother would be eligible for the program, and the juvenile court's finding that the program would not be in K.M.'s best interests, the juvenile court denied that request. The court terminated mother's services, ordered a permanent plan of adoption for K.M. with the NREFMs, and ordered a permanent plan of long-term placement for S.M.

The section 366.26 report dated December 15, 2010 stated that K.M. had had no visits with mother at Chowchilla and no contact with her for an extended time.*fn7 K.M. was still happy with the NREFMs, wanted to stay, and had asked if she could take their last name. The NREFMs wanted to adopt her and had cleared all screening so far. The report indicated that K.M. was generally adoptable, and she would experience no detriment from the termination of mother's parental rights.

The NREFMs tried to maintain K.M.'s contact with S.M., but had restricted S.M.'s visits after he stole a number of items from them.

On February 24 and 28, 2011, the juvenile court held a contested section 366.26 hearing as to K.M.

Mother testified she had had no visits with the minors in prison but she saw K.M. on June 8, 2010 at the Sacramento County Jail.*fn8 K.M. was always happy and excited to talk to her; she would always say she loved and missed mother. However, she never asked when mother was coming home. Mother had kept in written contact with K.M.'s care provider and had spoken to K.M. on the telephone twice a week until September 2010; since then she had had no contact at all. E.M. apparently had changed her phone number and did not respond to mother's letters. The phone calls lasted for 15 minutes. During the calls, K.M. was happy to talk to mother. K.M. called her "mommy," and said she loved mother. K.M. told mother what she had been doing. K.M. said she was proud of mother and asked about fire camp. However, K.M. never asked mother when mother was coming home.

Mother also testified she had been transferred on February 15, 2011, from California Institution for Women in Chino back to Valley State Prison for Women in Chowchilla because of the dependency case.*fn9

Mother had wanted S.M. to be placed in Ohio when she thought she would have K.M. with her in prison. She would have preferred the minors to be placed together if an appropriate home could have been found for both.

Mother testified that the minors had always been close. S.M. was happy to be an older brother after K.M. was born. He helped out with his sister's diapers and bottle, picked out K.M.'s shoes when they went shopping, helped put K.M. in her high chair and cleaned up after her. Mother said they watched television and played together before they were removed, but did not describe the nature of the "play."

In response to a question about why mother felt adoption by the NREFMs was not in K.M.'s best interest, mother said, "it's not fair to [K.M.] to be stripped away from her mother after she known [sic] and we had a bond together." Mother further stated that K.M. had known her for the first three years of K.M.'s life and that it was not fair that K.M. would not be able to have contact with her until K.M. was 18. Mother worried that adoption would "traumatize" K.M. because "[l]ater on when she gets older she'll try to wonder where I'm at and what happened and that's not fair to her. . . . [S]he'll probably just not be able to deal with it and act out like my son is doing, and I don't want . . . her to go through that because of the poor choices that I made."

The parties stipulated that the siblings had visited each other four times in the last six months.

Mother's counsel argued against termination of parental rights, claiming that the beneficial parental relationship and sibling relationship exceptions to adoption applied.

The juvenile court found:

K.M. was adoptable and had been in a prospective adoptive home for a year.

Mother's visitation had not been regular due to her incarceration and her distance from K.M.'s residence. But even if the visitation were deemed regular enough for purposes of the beneficial parental relationship exception, mother had failed to show a substantial positive attachment with K.M., who called the foster parents mommy and daddy and had not asked recently when she could "come home." The court further found that "[t]he benefit of a permanent, stable home which can be afforded through adoption was weightier than whatever bond [K.M.] shared with [mother]. . . ."

The sibling relationship was not especially close or unique. There was an eight-year age gap between the siblings. There was no evidence of shared significant common experience. The court acknowledged the two siblings had lived together for several years and that S.M. helped care for his younger sister, but the court stated that is "not the same thing as saying that [K.M.] has a significant relationship with [S.M.]" The siblings had visited only four times from May to September 2010, and no information had been provided concerning what had occurred between the two during those visits. S.M. had been willing to be separated from K.M. if she went to live with mother in prison or if he was placed in Ohio, and K.M. was happy and comfortable in her foster home even though S.M. was not there. There was no evidence that K.M. indicated a desire to be with S.M. The court expressly stated it was not basing its decision concerning the sibling relationship exception on the NREFMs' willingness to allow visitation; nevertheless, the court noted that the NREFMs were willing to maintain the sibling relationship, although S.M.'s behavior had made this problematic.

For these reasons, mother had not met her burden to show the likelihood of substantial interference with a significant sibling relationship. And, in any event, whatever relationship K.M. had with her brother did not outweigh the benefit of adoption.

Because K.M. was adoptable and no exception to adoption had been shown, the court terminated mother's parental rights and ordered adoption as the permanent plan for K.M.

DISCUSSION

Adoption must be selected as the permanent plan for an adoptable child and parental rights terminated unless "[t]he 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).) Under these provisions, "the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. The specified statutory circumstances--actually, exceptions to the general rule that the court must choose adoption where possible--'must be considered in view of the legislative preference for adoption when reunification efforts have failed.'" (In re Celine R. (2003) 31 Cal.4th 45, 53, first italics added (Celina R.).) "'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.'" (Celine R., supra, 31 Cal.4th at p. 53, quoting In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.).) Both exceptions have two components, a component relating to the relationship and a component in which the court must determine there is a compelling reason for the exception by balancing the benefits.

The parent has the burden of establishing by a preponderance of the evidence that a statutory exception to adoption applies. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.); In re Megan S. (2002) 104 Cal.App.4th 247, 252.)

I. Standard of Review

Respondent notes a split of authority as to whether the substantial evidence or abuse of discretion standard applies in reviewing the juvenile court's rejection of exceptions to adoption. Appellant urges that we use the hybrid standard adopted in Bailey J. Respondent "defers to this court to decide the applicable standard of review."

The court in Bailey J. acknowledged the split of authority and reconciled the conflict by holding that both standards apply. The court concluded, "In our view, both standards of review come into play in evaluating a challenge to a juvenile court's determination as to whether the parental or sibling relationship exception to adoption applies in a particular case. Since the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental or sibling relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court's determination. Thus, as this court noted in In re I.W. (2009) 180 Cal.App.4th 1517, a challenge to a juvenile court's finding that there is no beneficial relationship amounts to a contention that the 'undisputed facts lead to only one conclusion.' (In re I.W., at p. 1529.) Unless the undisputed facts established the existence of a beneficial parental or sibling relationship, a substantial evidence challenge to this component of the juvenile court's determination cannot succeed. [¶] The same is not true as to the other component of these adoption exceptions. The other component of both the parental relationship exception and the sibling relationship exception is the requirement that the juvenile court find that the existence of that relationship constitutes a "'compelling reason for determining that termination would be detrimental.' (§ 366.26, subd. (c)(1)(B), italics added.) A juvenile court finding that the relationship is a 'compelling reason' for finding detriment to the child is based on the facts but is not primarily a factual issue. It is, instead, a 'quintessentially' discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption. [Citation.] Because this component of the juvenile court's decision is discretionary, the abuse of discretion standard of review applies." (Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315.)

At mother's urging, we will employ the Bailey J. approach, although we note "[t]he practical differences between the two standards of review are not significant. '[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge.'" (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

II. Sibling Relationship Exception

Mother contends the trial court erred by finding that the sibling relationship exception to adoption did not apply. We disagree.

Section 366.26, subdivision (c)(1)(B)(v) provides an exception to the termination of parental rights and adoption when the "court finds a compelling reason for determining that termination would be detrimental to the child [because] [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." (Italics added.)

A. The Relationship Prong

"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, italics added, fn. omitted (L.Y.L.).)

We review the court's determination of the nature of the relationship by applying the substantial evidence test. (Bailey J., supra, 189 Cal.App.4th at p. 1314.) Where, as here, the issue on appeal turns on a failure of proof at trial, the question for a reviewing court is whether the evidence compels a finding in favor of the appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528 (I.W.).)

The evidence here did not conclusively establish that K.M. had a significant sibling relationship with her brother, the severance of which would be detrimental to her. The minors were far apart in age. (See In re Valerie A. (2007) 152 Cal.App.4th 987, 1013 (Valerie A.).) While the mother testified they played and watched television together, the evidence does not establish that they grew up together as playmates, sharing common experiences. (See In re Jacob S. (2002) 104 Cal.App.4th 1011, 1018 (Jacob S.), disapproved on another ground in In re S.B. (2009) 46 Cal.4th 529, 534, 537, fn. 5 (S.B.).)

The minors lived in the Children's Receiving Home for approximately two months, and saw each other only twice weekly. They then lived in separate placements for four and a half months, until they were returned to mother's care on August 27, 2009. In late January 2010, after mother returned from having taken the minors out of state without permission, the minors were again detained and were again placed together in foster care in mid February. After K.M. was placed with the NREFMs in early May, the minors visited each other only four times in the 10 months before the section 366.26 hearing, and there was no evidence establishing what occurred during those visits from which the court could infer the nature of their relationship. There was no evidence K.M complained about not seeing her brother more often during these periods of placement.

K.M. was happy in her foster home even though S.M. was not there, and S.M. had been willing to accept several possible placements (including one halfway across the country) where K.M. would not have been with him. Finally, K.M.'s prospective adoptive parents were willing to maintain the sibling relationship so far as S.M.'s behavior allowed, although the juvenile court specifically noted it was not relying on this circumstance.*fn10 We nevertheless note that the termination of parental rights does not necessarily foreclose the continuation of the sibling relationship where the adoptive parents are willing to allow visitation. (Valerie A., supra, 152 Cal.App.4th at p. 1014; Jacob S., supra, 104 Cal.App.4th at p. 1010; see also In re C.B. (2010) 190 Cal.App.4th 102, 141, fn. 8.) Moreover, mother's suggested alternative of guardianship, a lesser-preferred permanency plan, would not further K.M.'s interests in maintaining a relationship with S.M. unless S.M. changed his behavior. (See Valerie A., supra, 152 Cal.App.4th at p. 1014.)

Mother asserts in her brief that she believed it would be detrimental for the minors to disrupt the sibling relationship. Yet, our review of her testimony reveals she offered no express opinion about detriment to the minors or detriment to K.M. in particular.*fn11 She merely stated her preference that the minors be placed together. To the extent that mother's opinion of detriment to S.M. can be implied from her testimony, the juvenile court reasonably could have found mother's unsupported opinion unpersuasive, especially since she had had no contact with the minors for many months before the hearing.

Mother also asserts that the Department must have thought the sibling relationship was "important" because the social workers placed the minors together in a foster home at one time and then "provided a transition period prior to placing them apart." But these acts, done long before the section 366.26 hearing, are not evidence that at the time of the hearing there was detriment to K.M. from adoption, even if it interfered with the sibling relationship.

Lastly, mother asserts: "There was no evidence that [K.M.]'s caretakers would not continue to provide care for her under a plan other than adoption. On the other hand, there is significant evidence that, at four years old, [K.M.] is not going to forget that she once had a brother . . . whom she loved deeply." We find this argument unpersuasive. There is no evidence that K.M. will forget about S.M. merely because they are living separately. And whether K.M.'s caretakers would continue to care for her "under a plan other than adoption" is irrelevant. If a minor is adoptable and no detriment from adoption has been shown, the Legislature prefers adoption to any other plan. (Celine R., supra, 31 Cal.4th at p. 53; Jasmine D., supra, 78 Cal.App.4th at p. 1348.)

The undisputed facts do not lead to the sole conclusion that there is a significant sibling relationship, the termination of which would result in detriment to K.M. (Bailey J., supra, 189 Cal.App.4th at p. 1314; I.W., supra, 180 Cal.App.4th at p. 1529.) To the contrary, substantial evidence supports the juvenile court's finding.

B. Compelling Reason -- Balancing the Benefits Component

Even if there is a significant sibling relationship, substantial interference with that relationship, and detriment to the minor, the court must still weigh the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption. (§ 366.26, subd. (c)(1)(E); L.Y.L., supra, 101 Cal.App.4th at p. 952.) "[T]he court must balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer." (L.Y.L., supra, at p. 951.)

As mother has requested, we review the court's balancing analysis by employing the abuse of discretion standard. (Bailey J., supra, 189 Cal.App.4th at p. 1314.) Under this standard, a reviewing court will not disturb the juvenile court's decision "'"'unless [it] has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'"'" (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

We cannot find that the juvenile court exceeded the bounds of reason when it determined that any relationship K.M. had with S.M. did not outweigh the benefit of adoption. Our high court has noted that the statutory exceptions apply only in "exceptional circumstances." (Celine R., supra, 31 Cal.4th at p. 53, citing Jasmine D., supra, 78 Cal.App.4th at pp. 1348-1349.) Thus, "the application of the sibling relationship exception will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount." (Valerie A., supra, 152 Cal.App.4th at p. 1014.) "Rare" and "exceptional circumstances" do not exist here. The court's determination that the benefit of a permanent, stable home which can be afforded through adoption was "weightier" than preserving the relationship K.M. had with her brother is far from patently absurd. In fact, we agree with the juvenile court. The benefits did not balance in favor of the exception.

III. Beneficial Parental Relationship Exception

Mother contends the juvenile court erred by finding that the beneficial parental relationship exception to adoption did not apply. Again, we disagree.

Section 366.26, subdivision (c)(1)(B)(i) provides an exception to the termination of parental rights and adoption when "[t]he court finds a compelling reason for determining that termination would be detrimental to the child," [because] "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Italics added.)

A. Regular Visitation and Contact

A necessary predicate to the application of this exception is regular visitation and contact. 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)

The visits mother had during her incarceration at the county jail were supervised. While the evidence indicated the minors looked forward to these visits, there was no evidence the minors were disappointed when the visits ended, or that K.M. otherwise benefited from visits. Mother could show only that K.M. enjoyed their visits and greeted her with affection. Mother could not show more recent regular visitation and contact with K.M. because of mother's incarceration in state prison. The Legislature has not enacted a statutory exception to the regular visitation and contact predicate for parents who are incarcerated. Consequently, we decline to recognize what would amount to an exception to the exception. We also note that mother may have had the opportunity to participate in the FOPS program while incarcerated in state prison and initially opted to not participate. Her belated request to participate was thereafter denied.

B. Relationship Prong

Even assuming that, under the circumstances of incarceration and distance from K.M.'s residence, mother had done enough to meet the regular visitation and contact requirement, she did not show that the parent-child relationship was sufficiently strong that K.M. would suffer detriment from its termination. It is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from the termination of parental rights." (Jasmine D., supra, 78 Cal.App.4th at p. 1349.) "To meet the burden of proving the [parental relationship] exception the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits--the parent must show that he or she occupies a parental role in the life of the child" (I.W., supra, 180 Cal.App.4th at p. 1527; accord, L.Y.L., supra, 101 Cal.App.4th at pp. 953-954) "resulting in a significant, positive, emotional attachment to the parent" (Valerie A., supra, 152 Cal.App.4th at p. 1007, italics added; accord, L.Y.L., supra, 101 Cal.App.4th at p. 954). And the parent must show that the positive emotional attachment would be greatly harmed by severing the relationship. (In re Angel B. (2002) 97 Cal.App.4th 454, 466 (Angel B.).) The exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. (Jasmine D., supra,78 Cal.App.4th at p. 1350.) A child who has been adjudged a dependent of the juvenile court "should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent." (Ibid.)

"The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs." (Angel B., supra, 97 Cal.App.4th at p. 467, fn. omitted; Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)

By the time of the section 366.26 hearing, K.M. was four years old. She had spent approximately half of her young life with mother. On the other hand, she had spent the rest of her life in placements and had been living with her prospective adoptive parents for the past year. She called them mommy and daddy, looked to them to meet her needs, and wanted to take their last name. She was unhappy when she was away from the prospective adoptive mother for an extended period of time. Moreover, since she had come to stay with them, the psychosomatic symptoms of which she had complained were no longer present because she was now in a stable environment.

Against these circumstances, mother contends that she had a "true parent-child relationship" with K.M. because K.M. spent the first two years of her life in mother's care. The harm mother cites -- that K.M. would be "stripped away" from her and "traumatize[d]" because K.M. will wonder what happened to mother when she gets older -- is simply not the harm contemplated by the exceptions. Also, mother's fear that K.M. will begin to act out like her brother is unfounded speculation and seems unlikely given the stability offered by adoption and the bond K.M. has developed with her prospective adoptive parents and their children. Additionally there is no evidence that K.M has any particular needs that can only be met by mother.

We do not mean to minimize K.M.'s relationship with mother and we have no doubt that K.M's continued relationship with mother would be of some benefit. However, mother failed to present any evidence that the relationship was so significant that its termination would cause K.M. great harm.

Relying on S.B., supra, 164 Cal.App.4th 289, mother asserts that the evidence compels a finding that K.M. had a beneficial relationship with mother. We need not go into the unique facts of that case. Suffice it to say, "[t]he S.B. opinion must be viewed in light of its particular facts. It does not . . . stand for the proposition that a termination order is subject to reversal whenever there is 'some measure of benefit' in continued contact between parent and child." (In re Jason J. (2009) 175 Cal.App.4th 922, 937.)

The evidence does not undisputedly establish the existence of a significant and beneficial parental relationship, the severance of which will cause great harm to K.M. Substantial evidence supports the court's finding.

C. Compelling Reason -- Balancing Prong

Even assuming mother had done enough to meet the visitation and contact predicate and established the beneficial parental relationship prong, she cannot show that the juvenile court abused its discretion in finding that the benefit to K.M. from continuing the parental relationship did not outweigh the benefit of adoption. For this component of the exception, the juvenile court must determine that the parental relationship "'promotes 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.'" (S.B., supra, 164 Cal.App.4th at p. 297; accord, Jasmine D., supra, 78 Cal.App.4th at p. 1345; Autumn H., supra, 27 Cal.App.4th at p. 575.) "In other words, the court balances the strength and quality of the natural parent[-]child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (L.Y.L., supra, 101 Cal.App.4th at p. 953; accord, Autumn H., supra, 27 Cal.App.4th at p. 575.) "When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent-child relationship, the court should order adoption." (Jasmine D., supra, 78 Cal.App.4th at pp. 1351-1352; Autumn H., supra, 27 Cal.App.4th at p. 575.) Like the sibling relationship exception, the parental relationship exception applies only in extraordinary cases involving exceptional circumstances. (Celine R., supra, 31 Cal.4th at p. 53; Jasmine D., supra, 78 Cal.App.4th at pp. 1348-1349.)

Again we review the court's balancing for abuse of discretion (Bailey J., supra, 189 Cal.App.4th at p. 1314), and we find no such circumstances. If mother's parental rights were not terminated here, K.M. would be denied a permanent, stable adoptive family where she is currently thriving. The juvenile court's determination that this benefit outweighed any benefit of maintaining the parental relationship is not patently absurd. (See In re Aaliyah R. (2006) 136 Cal.App.4th 437, 450 ["We cannot say the court abused its discretion in concluding that a mere 'affectionate closeness' between parent and child during occasional visits was outweighed by the child's close bond with her primary caregiver and need for a permanent and stable home environment"].)

Indeed, we agree with the juvenile court. The benefits do not balance in favor of the exception. The juvenile court did not abuse its discretion by concluding mother did not show a significant positive attachment that outweighs the benefit of adoption.

DISPOSITION

The orders terminating mother's parental rights and ordering a permanent plan of adoption are affirmed.

We concur: HULL , Acting P. J. BUTZ , J.


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