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In Re M. V. et al., Persons Coming Under the Juvenile Court v. v. V

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


January 9, 2012

IN RE M. V. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
V. V., DEFENDANT AND APPELLANT.

(Super. Ct. Nos. JD224115, JD224116)

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

In re M.V.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

V. V., mother of the minors, appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code,*fn1 §§ 366.26, 395.) Appellant contends the evidence supported both the benefit and the sibling exceptions and the trial court erred in failing to apply them to avoid termination of parental rights. We affirm.

FACTS

The two minors, six-year-old C. V., and four-year-old M. V. were first removed from appellant's custody in April 2006. Appellant completed services and the minors were returned home under dependent supervision in August 2007. Reports indicated that appellant was not meeting the minors' medical and therapeutic needs by failing to schedule or attend appointments and failing to maintain medical coverage. The minors were returned to protective custody in December 2008.

The report for the jurisdiction/disposition hearing on the supplemental petition stated that appellant lacked the skills to parent or protect the minors. Appellant minimized the minors' psychological symptoms and the trauma they suffered in her care. An addendum report stated both minors were in therapy. Appellant did not believe the minors, did not know their psychiatric diagnoses, lacked empathy for them, and could not keep them safe.

In May 2009, the court sustained the supplemental petition and terminated appellant's reunification services. After several administrative reviews of the minors' status in long-term foster care, the court set a section 366.26 hearing.

The assessment for the section 366.26 hearing stated the minors were generally in good health. M. V. was in third grade, working at grade level and showing great improvement, although some behavioral issues remained. C. V. was in fifth grade, working at grade level in math and at fourth-grade level in other subjects and had made great improvements. According to the foster mother, when C. V. was placed with her a year earlier, C. V. was unable to read. C. V. was not currently in special education but the foster mother worked with her on language and reading. Both minors were in continuing therapy and both showed significant improvement in behavior and ability to communicate. The minors had supervised visits with appellant two times a month and appeared to enjoy the visits but were able to terminate visits without distress. The minors had no contact with either of their two older minor siblings, one of whom was placed in a group home while the other lived with appellant, was not a dependent, and had a history of inappropriate behavior with the minors. The report stated the minors were generally adoptable and had been in the same foster placement for a year. The minors' negative behaviors had decreased in the structured, loving home the caretaker provided. The caretaker was willing to adopt the minors.

At the section 366.26 hearing in March 2011, the minors' adult sibling testified about her relationship with the minors and the care she had provided for them when they lived together. She had supervised visits for an hour twice a month with the minors and favored guardianship as a permanent plan to insure she had ongoing contact with the minors.

Appellant testified she knew she had made mistakes and was in denial about the minors' mental illnesses and their need for medication. She described visit activities and stated the minors seemed to enjoy them. She wanted to continue visits because she loves the minors and wants to be in their lives. Appellant also testified about the importance of maintaining the minors' Hispanic and Indian cultural ties and expressed her desire for guardianship.

The court accepted a stipulation that if the minors were to testify they would say that appellant was an important person in their lives. They wanted to continue to visit and would be "mad" if they could not do so. M. V. would prefer adoption but C. V. was concerned that adoption might mean there would be no visits. Both called appellant "mom" or "mommy." C. V. wanted telephone visits.

The court found the minors were likely to be adopted in a reasonable time, noting that they did have issues but the current caretaker addressed them and the minors have changed. The court considered the benefit exception to termination of parental rights, finding that there had been regular contact between appellant and the minors but that a significant emotional attachment had not been shown. The court stated that evidence that the minors would be "mad" if they did not have visits with appellant did not equate to detriment or long-term harm and concluded the benefit exception had not been established.

The court also addressed the sibling relationship exception to termination of parental rights. The court found there was no proof of a strong bond with the adult sibling or the two older minor siblings and no proof of detriment to the minors if there was interference with those sibling bonds. The court terminated parental rights and selected adoption as the permanent plan for the minors.

DISCUSSION

Appellant contends the evidence supported both the benefit and the sibling exceptions to termination of parental rights. We disagree.

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. [Citation.]' [Citations.] 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.) 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, 1372-1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Evid. Code, § 500.)

The primary exceptions, i.e., benefit from continued contact with the parent and interference with a sibling relationship, each requires the party to establish a factual predicate and the court to weigh the evidence. Substantial evidence must support the factual predicate of the exception, but the court exercises its discretion in the weighing process. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)

I

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.)

The evidence established that appellant had regular supervised visitation with the minors. However, there was no evidence the minors would benefit from continued contact with appellant. At most, the minors stated they would be "mad" if visits ceased. There is no evidence the minors would be angry or upset in the long term or that their mental health would destabilize to the point that they would suffer great harm as a result of being deprived of ongoing contact with appellant. One of the minors actually favored adoption and both had made great improvement in the structured and stable foster home. Appellant had repeatedly demonstrated she could not meet their needs as a parent and, until recently, did not even understand or accept that each child was suffering from serious mental illness as a result of prior parental conduct. Even assuming some benefit to the minors in continued contact with appellant, it does not outweigh the well-being each child had gained, and would continue to gain, in a safe, supportive, stable environment in a new permanent home with the current caretaker. The court did not abuse its discretion in finding the benefit exception to adoption did not apply.

II

Sibling 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 interests of siblings in determining whether termination would be detrimental to the adoptive child. (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, fn. omitted.)

The only significant sibling relationship each minor had was with the other. The two older minor siblings did not visit and there was no evidence of a strong bond between either of them and the two minors being considered for adoption. Further, there was no showing of detriment to the minors if the relationships were terminated. As to the adult sibling, who had supervised visits with the minors, the exception did not apply. (In re J.T. (2011) 195 Cal.App.4th 707, 719-720.) The juvenile court did not abuse its discretion in concluding the sibling exception to adoption did not apply.

DISPOSITION

The orders of the juvenile court are affirmed.

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


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