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In Re E.H. et al., Persons Coming Under the Juvenile Court v. A.K. et al

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


December 20, 2011

IN RE E.H. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
A.K. ET AL., DEFENDANTS AND APPELLANTS.

(Super. Ct. Nos. JD220865, JD221901, JD227113)

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

In re E.H.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A.K. and D.H., mother and father respectively of the minors, appeal from orders terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 395 [further undesignated statutory references are to the Welfare and Institutions Code].) Appellants contend the juvenile court erred in failing to find they had established the benefit and the sibling exceptions to the preference for adoption. Appellants further argue substantial evidence does not support the court's finding that the minors were likely to be adopted within a reasonable time. We affirm.

FACTS

The Department's*fn1 first contact with the family was in 2004 when the four oldest children were removed from parental custody and services were offered to the parents. The parents successfully completed services and the minors were returned to their custody in April 2006. Multiple contacts and services over the next 18 months were ineffective in improving conditions in the home and appellants' parenting abilities. A nondetaining petition was filed in October 2007 as to E.H. and A.H.

The current removal of all six children was the result of the Department's filing supplemental petitions in 2008 as to the original five minors and an original petition as to newborn S.H.*fn2 At that time, E.H. was eight years old; A.H. was three years old. Services for appellants were ongoing.

The court first terminated reunification services in May 2009 and set a section 366.26 hearing. A bonding study performed by Dr. Wilkenfield in July 2009 concluded that E.H. had a strong positive bond with appellants and it would be detrimental to terminate parental rights. A.H. had a residual emotional connection to appellants but was not so strongly attached that termination of parental rights would be detrimental to her. Similarly, S.H. was not strongly attached to appellants but did recognize them. Both A.H. and S.H. had a strong sibling bond with E.H., which weighed against termination of parental rights as to them.

Appellants filed petitions for modification based on the bonding study. The court reinstituted services and eventually returned two of the other three children to appellant's custody although parenting challenges remained. However, based on reports of domestic violence in the home, those children were removed, and at the next review hearing services were again terminated as to E.H., A.H., and S.H. and a new section 366.26 hearing was set. The court also ordered an updated bonding study.

In the updated assessment in May 2010, Dr. Wilkenfield concluded that E.H. had a significant positive emotional attachment to appellants but had benefitted substantially from a stable consistent placement. E.H. would experience some detriment if parental rights were terminated but would also be relieved to have permanence. In the long term, the advantages of a permanent placement would offset any potential problems E.H. had. In Wilkenfield's opinion, A.H. still felt a connection to appellants, but it was not so strong or significant that there would be significant detriment to her if parental rights were terminated. A.H. saw appellants as friendly visitors, and the foster mother was her primary source of stability. Wilkenfield concluded that appellants were only familiar visitors to S.H. and there would be no significant detriment to her in termination of parental rights. S.H. showed a strong attachment to the foster mother. The minors had been in the same placement for nearly two years by the time of the assessment.

The Department's assessment report stated appellants had consistently visited the minors. Visits were chaotic and had been reduced to once a month for the minors. The three minors were in good health and developmentally on target. E.H. was making good progress in school, and none of the minors needed special services. S.H. appeared to be emotionally bonded to the foster parents and was to begin parent/child interaction therapy (PCIT). A.H. was continuing in therapy as well as PCIT sessions and had experienced positive behavior changes. E.H. was in therapy to address grief and loss issues due to separation from appellants. The current caretakers had an approved homestudy and were committed to adopting the minors. The minors were described as a specifically adoptable sibling set bonded to one another. E.H. stated she wished to be adopted. The social worker recommended termination of parental rights as to the minors and a permanent plan of adoption.

At the section 366.26 hearing in October 2010, E.H. testified that she wanted the judge to decide what would happen; she was only 10 years old and did not know how she felt or what she wanted. Both appellants testified, opposing adoption since they believed they had strong bonds to the minors.

Following argument, the court assessed the evidence and found clear and convincing evidence the minors were healthy, developmentally on target, and had no significant behavioral issues. Additionally, a family was available to adopt all three and the court found the minors were likely to be adopted. As to the benefit exception, the court noted the difference in the first and second bonding assessments and discussed the different facts applicable to each minor, focusing on E.H. and observing that Dr. Wilkenfield stated there would be some harm, not great harm, to E.H. if parental rights were terminated and that some detriment would be relieved by a sense of permanence, which would offset the potential of long-term harm. The court found the benefit of a permanent home far outweighed the benefit to the minors of continued contact with appellants. As to the sibling bond exception, the court found, based on the testimony, there was no significant sibling bond and therefore no interference would result from termination of parental rights. The court adopted the recommended findings and orders, terminating parental rights and freeing the minors for adoption.

DISCUSSION I

Appellants contend there was insufficient evidence the minors were likely to be adopted in a reasonable time and that the court should have selected a permanent plan of guardianship.

"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.) "[T]here must be convincing evidence of the likelihood that 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.)

The three minors were all healthy, developmentally on target and emotionally and behaviorally within normal ranges. They had been living in the same foster home for more than a year. The foster parents had addressed the behavioral and emotional problems the minors had displayed and were committed to providing all three of them a permanent home through adoption. Substantial evidence supports the juvenile court's conclusion the minors were likely to be adopted. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)

II

Appellants argue the evidence showed termination of parental rights would be detrimental to the minors because they would benefit from continued contact with appellants and adoption would adversely impact the sibling bond.

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.) There are only limited circumstances that 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 that constitute an exception to termination of parental rights. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; Cal. Rules of Court, rule 5.725(d)(4); Evid. Code, § 500.)

A. Benefit 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. 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. 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 R. (1991) 2 Cal.App.4th 904, 924.)

Here, the initial bonding assessment concluded that termination of parental rights would be detrimental to the minors because E.H. did have a substantial positive emotional bond to the parents and would be greatly harmed by severing the bond. The other minors were not strongly attached to appellants but had a strong bond with E.H. and termination of parental rights would be detrimental to them if their relationship with E.H. was impacted. Because of the first assessment, the court did not terminate parental rights.

However, by the second assessment, the evaluator found a change in the minors' bonding to appellants and to the foster family. Dr. Wilkenfield found that while E.H. still had a strong attachment to appellants, she would only suffer some harm from termination of parental rights. This was, in part, due to the substantial benefits to her from the stability the foster home provided for her. The two younger minors had less of a connection to appellants, viewing them only as friendly or familiar visitors. Thus, by the updated assessment, substantial evidence no longer supported the predicate facts for the benefit exception and the court did not abuse its discretion in concluding the exception did not apply. (See In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [distinction between when to apply substantial evidence and abuse of discretion standards].)

B. Sibling exception

A second circumstance under which termination of parental rights is deemed detrimental to a child 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 Celine R. (2003) 31 Cal.4th 45, 49-50; In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) "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, fn. omitted.)

The siblings important to each adoptive child were the other two minors living in the prospective adoptive home. Because they were to be adopted as a sibling set, there would be no interference with their relationship as a result of termination of parental rights. There was no evidence that any of the three minors had ties to their other siblings which were so strong that interference with the relationship would be detrimental to the adoptive child. Substantial evidence did not support the factual elements of the sibling exception, and the juvenile court did not abuse its discretion in rejecting it.

DISPOSITION

The orders of the juvenile court are affirmed.

We concur: HULL , J. DUARTE , J.


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