IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 11, 2012
IN RE M.Q. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
U.Q., DEFENDANT AND APPELLANT. IN RE T.S. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
U.Q., DEFENDANT AND APPELLANT.
(Super. Ct. Nos. JD221168, JD228252) (Super. Ct. Nos. JD221167, JD228253)
The opinion of the court was delivered by: Murray , J.
In re M.Q. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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: (1) denying her modification petition to return M.Q., T.S., S.S. and J.S. to her care, or in the alternative, to reopen reunification services; and (2) terminating her parental rights and selecting a permanent plan of adoption as to T.S. and S.S.*fn1 (Welf. & Inst. Code, §§ 388, 366.26, 395.)*fn2 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The First Proceeding
In September 2004, the Sacramento County Department of Health and Human Services (the Department) filed section 300 petitions as to M.Q., age 6, and T.S., a newborn. The petitions alleged that both mother and T.S. had tested positive for amphetamine at T.S.'s birth, and that mother had smoked methamphetamine throughout her pregnancy. The petitions further alleged that mother had not obtained prenatal care, that T.S.'s alleged father, R.S., was in diversion for possession of methamphetamine, and that the whereabouts of M.Q.'s alleged father, J.A., were unknown.*fn3
According to the September 2004 detention report, mother and R.S. separated during mother's pregnancy. She lived with M.H., an unrelated extended family member and an alleged "father figure" to M.Q. Mother had referrals to Child Protective Services dating back to 1998. Mother was offered family maintenance services in 2003, but refused them. Although mother admitted drug use, she "[did] not believe that she ha[d] a problem with drugs."
At the detention hearing, the juvenile court found R.S. was T.S.'s presumed father.
According to the October 2004 jurisdiction/disposition report, mother was now admitting her drug problem. She began smoking methamphetamine at age 15 and recently was smoking it every other day. Father was her main supplier. She was referred for drug treatment services and drug testing. The report recommended out-of-home placement for M.Q. and T.S. and services for mother and R.S.
Father believed he was rehabilitating from his drug problem, but admitted he had used methamphetamine at or near the date of T.S.'s birth. He was under the influence of a controlled substance when interviewed. Father indicated that his relationship with mother centered around drugs and that he really did not know her that well outside of their drug use.
M.H. stated that M.Q. had lived with him since M.Q.'s birth because he did not believe mother could care for M.Q. M.H. stated that mother slept all day and ignored M.Q.'s needs, or cared for M.Q. while she was under the influence.
At the October 2004 jurisdiction/disposition hearing, the juvenile court sustained the allegations of the section 300 petitions as amended and made the recommended findings and orders.
The April 2005 permanency report indicated that M.H. had sexually molested M.Q.*fn4
At the permanency hearing held April 8, 2005, the juvenile court extended the parents' services, ordered no contact between M.Q., T.S. and M.H., and referred M.Q. and mother for counseling regarding the allegations of molestation.
In June 2005, the juvenile court placed M.Q. with mother under supervision, as had already been done with T.S.
The October 25, 2005 permanency review report recommended returning T.S. to her parents, who were again living together, and also returning M.Q. to mother, and terminating the dependency. The juvenile court terminated the dependency proceedings as to M.Q. and T.S. on October 18, 2005. T.S. was placed in the custody of mother and R.S.; M.Q. was placed in the custody of mother.
The Second Proceeding
On September 5, 2008, the Department filed section 300 petitions as to M.Q., now age nine, T.S., who was nearly four, and two new children--S.S., nearly two years old, and J.S., 10 months. The petitions alleged that in November 2007, mother gave birth to J.S. at home without medical assistance and neglected to take him to a doctor for a medical examination since his birth. The social worker observed that on multiple occasions, mother left the minors unsupervised while she slept. The minors were dirty and unkempt, and mother was not providing medical or dental care for them. In March 2008, she had signed a supervised case plan to treat her substance abuse, but had failed to utilize the services. She had missed 11 drug tests in April and May 2008, and did not test between June 3 and August 17. Despite the no-contact order against M.H. stemming from the previous allegations that he had sexually molested M.Q., mother had let him pick up M.Q. at school.
The September 2008 detention report stated that both parents were suspected of drug abuse. Nine-year-old M.Q. had last attended school on August 29, 2008. Mother had pulled him out of school approximately two weeks before the report and had not reenrolled him in another school. Mother disclosed that while M.Q. was in school, M.H. had been picking him up frequently.
At the initial hearing, the juvenile court found father was the adjudicated father of the three younger minors, who were released to him under supervision. At this time, the parents were again living separately. M.Q., who was not father's natural child, was detained.
The October 2008 jurisdiction/disposition report recommended sustaining the section 300 petitions. The parents had not yet tested for drugs and alcohol or been in contact with the Department. At that time, M.Q. wanted to return to mother's custody. The other minors were too young to interview.
An addendum report filed in November 2008 stated that the parents had denied all of the allegations against them, except that mother admitted allowing M.H. to pick up M.Q. three days a week from school. She was aware of the no-contact order, but claimed a subsequent order allowed contact. She denied that there was not any validity to the sexual misconduct allegation. Father said he was still concerned about the allegation, but that he had no control over mother and M.H. Both parents had been uncooperative with the social worker.
At the contested jurisdiction/disposition hearing in February 2009, the juvenile court sustained the allegations of the petitions, as amended, ordered out-of-home placement for the minors and reunification services for the parents, ordered psychotropic medication for T.S., and ordered M.H. to have no contact with M.Q.
A progress report filed in April 2009 stated that the parents had not drug tested since September 2008.
The August 2009 permanency report recommended further out-of-home placement for the minors and services for the parents. The parents were homeless and staying with friends. Father, who was still not drug testing, was arrested in April 2009 for driving under the influence of methamphetamine. Mother also had not been drug testing, had not completed her AOD (alcohol and other drugs) assessment, and had not kept on schedule in individual counseling. The parents had supervised visitation with the minors twice a week.
By now, M.Q. wanted to stay in his present foster home until he could reunify with the parents. The other minors were too young to ask about their wishes. When first detained in September of 2008, M.Q. had a difficult time controlling his anger in the foster home and in school. However, by the time of the August 2009 report, M.Q.'s behavior had improved at home and school. He was developmentally on target. He was receiving individual counseling.
J.S. had been placed with M.Q. According to the report, J.S. seemed happy. He was developmentally on target, but there were concerns he might be developmentally delayed, as he had a limited vocabulary. He was referred for further evaluation.
S.S. was still in her original foster home and doing well there. However, she appeared to have some developmental delays and was receiving regional center services.
T.S. had initially been placed with S.S., but was moved to a single-child home because of significant behavioral problems. Initially, she exhibited defiant behavior and was wetting her bed, but was slowly adjusting to her new placement with the help of psychotropic medications. As of this report, she had been diagnosed with posttraumatic stress disorder (PTSD) and impulse control disorder NOS (not otherwise specified).
At the permanency hearing on August 7, 2009, after learning that father was testing positive for methamphetamine and mother had not started testing, the juvenile court terminated the parents' services. The court thereafter set a contested section 366.26 hearing for December 4, 2009.
The December 2009 section 366.26 report recommended termination of parental rights and adoption as to S.S. The report also recommended adoption for the other minors, but stated that, as a sibling group with one member over age seven, they would be hard to place. The Department requested a 180-day continuance to locate prospective adoptive parents.
The parents' supervised visitation had been reduced to one hour per week. We discuss the quality of the visitations in more detail post.
M.Q. and J.S. had been placed together for 11 months. M.Q. wanted to stay with this foster family and did not want to be separated from his brother. However, he did not want to be adopted. He said he might accept legal guardianship.*fn5 The foster parents of the two minors were willing to become their legal guardians. M.Q. was still in individual counseling, but had no behavioral problems. He was doing well in school, earning all A's and B's.
J.S. had no behavioral problems, but needed early intervention services for significant developmental delays.
S.S.'s foster parents were willing to adopt her, but a home study had not yet been done. Regional center services for her developmental delays were terminated when she turned three years old. The school district determined that her delays were not sufficient to warrant school district services. Her foster parents were going to request a referral from S.S.'s primary care doctor for physical, occupational, speech and language therapy.
T.S. had been in her current foster home for only six weeks. She was very active and needed constant supervision and redirection. She had just started a new kind of individual counseling. She took medications for PTSD, insomnia, and attention deficit hyperactivity disorder (ADHD). She disclosed that she had trouble sleeping because in the past people had touched her while she was sleeping or in bed. Sometimes father would "lay with her at night."
M.Q. and J.S. saw S.S. once a week, and T.S. twice a month, during supervised visits. The foster parents also planned family days approximately once a month where the minors were able to visit with each other at a fun location, such as a park.
S.S. was likely to be adopted. J.S. was adoptable. T.S.'s adoptability was unknown.
An addendum report filed in February 2010 recommended adoption also for T.S., because her foster parents were willing to adopt her and their home study had begun. On the other hand, M.Q. now opposed both adoption and legal guardianship. He wanted to maintain contact with mother and feared that the foster parents as legal guardians might refuse her visitation. The foster parents said they would allow mother to continue visiting, but not M.Q.'s stepfather, R.S. M.Q. said he wanted to stay with J.S. and did not want J.S. to be adopted and moved. The foster parents were unsure about adopting J.S. at that time, but were willing to assume guardianship for both boys. The Department requested a continuance as to M.Q. and J.S., and a reduction of parental visits to twice a month as to J.S.
The report also stated that all of the foster parents were committed to maintaining contact between all of the siblings. They understood the importance of sibling contact and had arranged for the minors to see each other without the Department's involvement.
In mid-April 2010, mother filed a section 388 petition requesting the return of the minors to her custody or the reopening of reunification services. The petition alleged and documented that she had found stable housing, was drug testing negative, was attending AA/NA meetings, was taking parenting classes, and was continuing her visitation.
Later that same month, father filed a section 388 petition seeking the same relief as to his three children based on similar allegations and documentation.
In May 2010, the juvenile court scheduled the petitions to be heard with the contested section 366.26 hearing. The court also granted the motions of the foster parents for all four minors for de facto parent status.*fn6
A July 2010 addendum report stated that visitation had been reduced to once a month and recommended terminating visitation completely as to T.S. because of her behavior before and after visits.
The juvenile court began the combined section 388/366.26 matters on July 12, 2010. On approximately 13 afternoons,*fn7 the court heard testimony from numerous witnesses, including extensive testimony from both parents. The court also reviewed the entire file, including the records from the first proceeding in 2004-2005.
On October 6, 2010, the court denied the parents' modification petitions. The court found that although the parents had shown changed circumstances, they had not shown that the orders they sought would be in the minors' best interests. On that same day, the parties argued the section 366.26 issues based on the evidence already presented and the Department's section 366.26 report. The parents invoked the beneficial parental relationship and sibling relationship exceptions to adoption.
As to T.S. and S.S., the juvenile court terminated parental rights and ordered a permanent plan of adoption. As to M.Q. and J.S., the court ordered guardianship for both minors and appointed their present caretakers as the legal guardians.
I. Modification Petition
Mother contends the juvenile court abused its discretion by denying her section 388 petition. We disagree.
A. Applicable Law and Standard of Review
Section 388, subdivision (a), provides in part: "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court."
Section 388 permits modification of a dependency order if it is established that there has been a change of circumstances and that the proposed modification would be in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.).) The petitioning parent has the burden of proving both of these requirements by a preponderance of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
The best interests of the child are of paramount consideration when a modification petition is brought after termination of reunification services. (Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child at this juncture, the juvenile court looks not to the parent's interests in reunification but to the needs of the child for permanence and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
In determining the best interests, courts consider such factors as: (1) the seriousness of the problem that led to the dependency and the reason for the problem's continuation, (2) the degree to which the problem may be and has been removed or ameliorated, and (3) the strength of the relative bonds between the minors and both their parents and caretakers. (In re B.D. (2008) 159 Cal.App.4th 1218, 1229; Kimberly F., supra, 56 Cal.App.4th at p. 532.)
A modification petition "is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) A court abuses its discretion when its decision exceeds the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.).) "'"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."'" (Ibid.)
B. The Juvenile Court's Findings
The juvenile court made the following findings:
The parents had participated in services since approximately February 2010. They had "done a lot of very good, very hard work." Mother had made progress in counseling, had shown she was drug-free, had attended AA/NA sessions, had done parenting classes, had secured stable housing, and loved the minors very much. However, even aside from father's behavior during visits, nothing about the history of recent visitation was "particularly compelling."
Because mother had shown seven months of changed living since her services were terminated, she had established changed circumstances, though it was "a very close call," considering her long history of drug abuse and relapses. However, mother failed to carry her burden of showing that it would be in the minors' best interests to return the minors to her custody or to reopen mother's services.
S.S. and J.S. were removed from their home at very young ages and had spent over half their lives in their current placements. They were high-needs children whose needs were being met, and they were thriving where they were. They showed no signs of suffering from not being with mother.
T.S. and M.Q. were going through the system for the second time and "ha[d] been through a lot." T.S., who had severe mental health issues, was doing well in her current placement after being removed from a prior placement. It was "highly improbable" that mother could provide the permanence and stability these minors needed. Her relationship with father was unstable, and the parents did not have plans to meet the minors' special needs. Mother had admitted that the minors were better off where they were now. The record showed that the minors had health and stability when away from the parents, but not when with them.
The court denied the petition, concluding, ". . . I can't find that restarting services, much less returning [the minors] to the parents, would be in the best interest for any of the four children."
C. Best Interests Analysis
1. The degree to which the original problem may be and has been removed or ameliorated
While the juvenile court found that mother was addressing her substance abuse problem and had made other positive changes in her life, the court stated its determination of changed circumstances was a "very close call."
Despite the changed circumstances, the evidence suggested that mother's home life had not completely stabilized and she could not provide a stable environment for the minors. Father's involvement contributed to the precariousness of mother's situation. The foundation of the relationship between mother and father was questionable. As we have noted, after T.S. was born, father reported that his relationship with mother centered around drugs and that he did not even know her that well.
Mother testified that when she and father lived together from 2007 to 2009, he repeatedly left her for up to a week and a half at a time, stranding her without money, transportation, or a telephone. He suffered from anxiety attacks and a traumatic brain injury. Although he was more supportive now, she could not be sure he could maintain his present stability.
Mother's new housing was in her name and was intended for the minors and her, although father was staying there for the time being and his name was on the tenant list. The couple argued and was having problems. It looked as if they were heading for another breakup. They had spoken about living separately again, and she thought that would be better for the minors.*fn8 She also thought it would not be in the minors' best interest for them to see mother and father having problems. But the two had broken up and reunited approximately 20 times in the past seven years. Even if father moved out, mother testified that she planned to work out a visitation schedule for him. Father only last tested positive for methamphetamine on February 1, 2010, and he stabilized on medication for his anxiety disorder in late March 2010.
The father's presence during visitations was often disruptive. Mother admitted that father had had "problems" during visitation, including repeated confrontations with the supervising social workers. She thought he was "trying" to work on this issue.*fn9
Father was verbally abusive to M.Q. during one visit. This upset M.Q., and he vomited as a result. M.Q. was not father's natural son, and mother knew father "pick[ed] on" him. According to mother, they argued about it "[a]ll the time." Apparently, her only plan to address the issue if it happened again was to tell father to leave.
2. The strength of the relative bonds
With the exception of M.Q., the minors have lived a significant percentage of their life in placement. When placed in 2008, J.S. was only 10 months old, S.S. was not quite two years old, and T.S. was almost four years old.
By the end of the section 388 hearing two years later, J.S. was not quite three years old, S.S. was not quite four, and T.S. had recently reached age six. M.Q. was 12 years old.
All of the minors were bonded with the de facto parents. They all called their de facto parents "Mom" and "Dad." And they were all doing well in their placements.
M.Q. and J.S. had lived with their de facto parents for nearly two years, almost two-thirds of J.S.'s life. The de facto mother represented that the de facto parents would like to adopt both of them, but were deferring to M.Q.'s desire to not be adopted, although they believe he will eventually change his mind.
S.S. had spent only half of her life with mother, and had spent the last two years in a stable foster home.
Combining the detention from the first and second proceedings, T.S. spent a little less than half of her life out of mother's care and the last two years with her de facto parents.
Visitation never progressed from supervised visits to unsupervised or extended visits. Visits were an hour every two weeks with M.Q. and an hour once a month with the other minors, except for T.S., who sometimes refused to participate. They had been on this schedule for about five months.
As the trial court noted, there was nothing particularly compelling about the visits. Nothing in the visitations suggested there was a significant bond between the minors and mother. Indeed, mother did not interact much with the minors.
T.S. had "meltdowns" before and after visits. Her foster parents and day care provider reported that she urinated in her pants and exhibited defiant behavior before visits and acted out for a day or two after visits. As we have noted, she sometimes refused to appear. The situation was bad enough that the Department filed a section 388 petition seeking an order to discontinue the parents' visits with T.S. entirely.
S.S.'s de facto parents reported that she made statements like "I don't want to go bye-bye" before visits. She did not initiate interaction much with mother.*fn10 S.S. exhibited difficult behaviors after visits, including throwing tantrums when she did not get her way and hitting her foster sister.
J.S. was extremely clingy with his de facto parents before and after visitation, and he did not want his de facto mother to leave the visitation room. When the de facto mother left the visitation room, J.S. cried. He did not cry when she stayed in the room.
Mother was most bonded with M.Q. When asked whether he wanted to go home to mother, he replied only if the situation would be stable, his mother would pay the rent, he could go to school, and he knew his mother would be there. He felt loved and safe with the de facto parents. He preferred that his mother have six month more of services over going home with her now. M.Q. said he believed that mother would have reunified were it not for father, whom M.Q. described as "act[ing] like a best friend, but other times he is a worst enemy." M.Q. stated said he would feel "sad and bad" if he were no longer allowed to visit with mother; however, he did not say he would have such feelings if he could not live with her.
3. Special needs
The Kimberly F. factors were not intended to be exhaustive. Other factors may be considered (Kimberly F., supra, 56 Cal.App.4th at p. 532), especially where the minors have special needs.
Three of the minors have special challenges. S.S. and J.S. had delays. A January 2010 neurological evaluation of J.S. revealed that he had severe speech and language delay and severe ADHD, inattentive, impulsive subtype. A May 2010 pediatric evaluation showed that J.S. had borderline cognitive development and extremely low functional daily living skills. As of December 2009, he was receiving occupational therapy, physical therapy, play therapy, speech therapy and behavior modification therapy from the regional center. Mother was not even aware that J.S., to whom she had given birth at home and delayed taking to a doctor for seven months, had disabilities.
S.S. had delays, although they were not significant enough to qualify her for school district services. S.S. had improved in the care of her de facto parents, and the de facto parents indicated they would seek referrals for S.S.'s delays through her primary care physician.
Mother could tell that T.S. has disabilities, but testified that no one had told her so. In fact, T.S. had significant mental health and emotional problems. She was moved from her original placement with S.S. because of significant behavioral challenges. Her de facto parents reported that she needed constant supervision and redirection. In January 2009, the Department requested authorization for psychotropic medication for T.S. based on a child psychiatrist's diagnosis that T.S. suffered from PTSD, was anxious, angry, aggressive, and had poor impulse control and insomnia. She takes a variety of medications for these conditions, as well as ADHD (which appears to have been diagnosed in October 2009), and attends counseling. Yet, according to her counselor, T.S. had improved significantly in the care of her de facto parents.
Mother had no experience in dealing with minors who have behavioral problems such as those with which T.S. had been diagnosed. Her parenting classes had discussed only "normal kids." She did not have a plan for handling T.S.'s problems while working outside the home 25 hours a week, as she was now doing. She also did not know how she would deal with multiple home visits from J.S.'s service providers while she was working, or how she would pay for daycare.
M.H. was present when J.S. was born at mother's home. M.Q. also lived there at the time. Mother knew there was a court order against M.H. as to M.Q., but she thought it had been "closed" because no charges had been filed against M.H.
Mother reluctantly admitted that the minors were doing better now than they had done with her before.
4. Keeping the siblings together
Mother contends that keeping the family together is a factor to be considered as part of the "best interests" analysis. We do not disagree with this assertion as an abstract principle. However, mother does not cite any evidence that suggests this factor should override the other factors in this case. To the contrary, as we have already noted, mother was not equipped handle all four children. She had no plan for doing so. Indeed, the family dynamic now actually includes a fifth child, who was born in December 2009 and who is the subject of separate dependency proceedings. Under the circumstances of this case, keeping the family together does not trump the other factors.
6. Best interests determination
Viewing this evidence most favorably to the juvenile court's ruling, we conclude that the juvenile court acted well within its discretion. The minors were on the way to achieving permanence and stability in their current placements with foster parents who were meeting all their needs. Reopening services for mother -- let alone placing the minors with her -- would have reversed that progress, exposing the minors to all of the stresses and uncertainties of mother's evolving situation and creating a conflict of loyalties for them, while offering them no assurance that their special needs would be met, because mother had no plans or training to do so. Except for M.Q., the minors were not strongly bonded to mother, with whom they had not lived for almost two years by the time the section 388 hearings began. All of the minors were bonded to their de facto parents. As for M.Q.'s bond with mother, the evidence clearly supported a determination that this bond did not outweigh the benefits of stability with the de facto parents. Moreover, mother's willingness to disregard the no-contact order against M.H. and her fixed belief that M.H. could not have molested M.Q. did not bode well for the future.
"It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion[.]" (Kimberly F., supra, 56 Cal.App.4th at p. 522.) This is not one of those rare occasions -- far from it. The juvenile court did not abuse its discretion in denying mother's petition. (Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
II. Parental and Sibling Relationship Exceptions
Mother contends the juvenile court erred by finding that neither the beneficial parental relationship exception to adoption nor the sibling relationship exception to adoption applied as to T.S. and S.S.*fn11 We disagree.
A. Applicable Law and Standard of Review
"Adoption must be selected as the permanent plan for an adoptable child and parental rights terminated unless the 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).)" (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) 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 (Celine 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 Jasmine D., supra, 78 Cal.App.4th at p. 1348.)
The parent has the burden of establishing that a statutory exception to adoption applies. (Bailey J., supra, 189 Cal.App.4th at p. 1314; In re Megan S. (2002) 104 Cal.App.4th 247, 252; Cal. Rules of Court, rule 5.725(d)(4).) The burden of proof is preponderance of the evidence. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)
Mother suggests that we review the juvenile court's decision under the substantial evidence test. Under the substantial evidence test, we uphold a juvenile court's ruling declining to find such an exception if substantial evidence supports the finding. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527 (I.W.); In re Zachary G. (1999) 77 Cal.App.4th 799, 809 (Zachary G.).)*fn12 In employing this test, "'"we are bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party [citations] and in support of the judgment . . . . 'In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing.' [Citation.] All conflicts, therefore, must be resolved in favor of the respondent."'" (I.W., supra, 180 Cal.App.4th at p. 1527, italics in original.)
To prove that the beneficial parental relationship exception applies, "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. [Citation.]" (I.W., supra, 180 Cal.App.4th at p. 1527.) Moreover, it is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (Jasmine D., supra, 78 Cal.App.4th at p. 1349.) There must be a significant, positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)
Even where such an attachment exists, it does not bar adoption if the children look to a prospective adoptive parent to meet their needs. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 231 (Dakota H.) [long-term needs for stability, predictability and highly competent care for minor with special needs were of paramount importance]; Zachary G., supra, 77 Cal.App.4th at p. 811.) The parent must prove 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.'" (In re S.B. (2008) 164 Cal.App.4th 289, 297, quoting Autumn H., supra, 27 Cal.App.4th at p. 575; accord, Jasmine D., supra, 78 Cal.App.4th at p. 1345.) "'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.'" (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953 (L.Y.L.), quoting 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 p. 1350; Autumn H., supra, 27 Cal.App.4th at p. 575.) Factors courts consider in determining the applicability of the parental relationship exception include: (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. (In re Angel B. (2002) 97 Cal.App.4th 454, 467; Autumn H., supra, 27 Cal.App.4th at p. 576.)
"Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
Like the parental relationship exception, when considering the sibling relationship exception, the court must weigh the minor's best interests in continuing the sibling relationship against the benefit the child would receive by the permanency of adoption. (§ 366.26, subd. (c)(1)(B)(v); In re Valerie A. (2007) 152 Cal.App.4th 987, 998; L.Y.L., supra, 101 Cal.App.4th at p. 952.) "[T]he 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; L.Y.L., supra, 101 Cal.App.4th at p. 950.)
B. The Juvenile Court's Findings
The juvenile court made the following findings:
T.S. and S.S. were adoptable. Mother had maintained regular visitation and contact with them to the best of her ability, but had not shown that T.S. and S.S. would benefit from continuing their relationship with her. Therefore, the beneficial parental relationship exception to adoption did not apply.
Even if T.S. and S.S. did not maintain their sibling relationship after adoption -- an outcome the court did not find likely -- mother did not show that the benefits of the sibling relationship outweighed the benefit of permanence from adoption. Therefore, the sibling relationship exception to adoption did not apply.
C. Parental and Sibling Relationship Exception Analysis
In addition to the evidence presented during the section 388 hearing (on which the parties rested at the section 366.26 phase), the juvenile court had before it the Department's section 366.26 report and subsequent addenda. In those reports, the Department recommended adoption for T.S. and S.S. because both were in foster homes where their special needs were being met by caretakers whom they called "Mom" and "Dad" and who wanted to adopt them. As we have noted, the Department also recommended terminating T.S.'s parental visits because of her behavior before and after visits.
The evidence in the section 366.26 report and the evidence we have discussed in our review of the denial of the section 388 petition support the juvenile court's finding that any benefits to T.S. and S.S. from maintaining the parental relationship or the sibling relationship would clearly be outweighed by the benefits of adoption. The evidence also strongly suggests that substantial interference with the sibling relationship is unlikely in any event, since the de facto parents have indicated they intend to foster and promote the sibling relationship. 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; In re Jacob S. (2002) 104 Cal.App.4th 1011, 1016, disapproved on another ground in In re S.B. (2009) 46 Cal.4th 529, 537, fn. 5; see also In re C.B. (2010) 190 Cal.App.4th 102, 141, fn. 8.)
Mother cites evidence that visitation sometimes went well and that the minors were bonded to each other. We acknowledge that evidence. But as we have noted, in a substantial evidence review we look only at the evidence supporting respondent. (I.W., supra, 180 Cal.App.4th at p. 1527.)
In any event, the evidence mother cites does not show that the parental or sibling bonds were strong enough to outweigh the benefits of adoption for T.S. and S.S., particularly given their special needs, which the de facto parents were able to meet. (See Dakota H., supra, 132 Cal.App.4th at p. 231.) Substantial evidence supports the juvenile court's conclusions. Under any test, we cannot find that the court erred. (See Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315.) Indeed, we agree with the juvenile court. This case does not present an extraordinary circumstance where the parental relationship or sibling relationship exceptions should apply.
The orders appealed from are affirmed.
We concur: NICHOLSON , Acting P. J. ROBIE , J.