California Court of Appeal Dec 30, 2014 No. D066187Unpublished
Filed 12/30/14 In re E.D. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re E.D. et al., Persons Coming Under the Juvenile Court Law. D066187 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J518660D-E) Plaintiff and Respondent,
v.
CRYSTAL S.,
Defendant and Appellant;
MIA S. et al.,
Appellants.
APPEALS from orders of the Superior Court of San Diego County, Edlene C.
McKenzie, Commissioner. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and
Appellant Crystal S.
Patricia K. Saucier, under appointment by the Court of Appeal, for Mia S., A.S. and
Christopher S., Minors.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
Crystal S. appeals orders denying her petition to reinstate family reunification services
under Welfare and Institutions Code section 3881 and terminating parental rights to her
children, E.D. and G.D., under section 366.26. She argues the juvenile court erred when it
In evaluating whether the petitioner has met his or her burden to show changed
circumstances, the juvenile court should consider a number of factors, including: "(1) the
seriousness of the problem which led to the dependency, and the reason for any continuation of
that problem; (2) the strength of relative bonds between the dependent children to both parent
and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated,
and the degree to which it actually has been." (In re Kimberly F. (1997) 56 Cal.App.4th 519,
531-532 (Kimberly F.).)
We review the grant or denial of a petition for modification under section 388 for an
abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D. (1999) 70
Cal.App.4th 38, 47.) While the abuse of discretion standard gives the trial court substantial
latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e., in the
'legal principles governing the subject of [the] action . . . .' Action that transgresses the 8
confines of the applicable principles of law is outside the scope of discretion and we call such
an action an 'abuse' of discretion." (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287,
1297.)
Under section 388, subdivision (a), the focus of a petition for modification is on whether
the petitioner has shown a legitimate change of circumstances. The court could reasonably
conclude that Crystal did not make the required showing. There is substantial evidence to
support the finding that Crystal's circumstances, while changing, were not yet changed.
(Kimberly F., supra, 56 Cal.App.4th at p. 532.)
Crystal was offered or provided services for more than 12 months. Her participation in
services was inconsistent. Despite attending therapy and domestic violence prevention classes,
Crystal violated a restraining order and continued to minimize her relationship with Gabriel.
The violence in the home had been extensive and Crystal was not able to easily resolve her
issues concerning her acceptance of domestic abuse. (Kimberly F., supra, 56 Cal.App.4th at
p. 532.) The court reasonably inferred Crystal did not show she could be trusted to protect her
children from domestic violence.
In addition, the record shows that Crystal did not regularly visit E.D. and G.D., and they
were happy, safe and stable with their aunt and uncle, who were willing to adopt them. G.D.
did not know Crystal as a mother figure. The record supports the reasonable inference that
G.D. was attached to her aunt, who had cared for her since she was three months old. In view
of Crystal's history of chronic tardiness to appointments, services, visits with children, and her
recent tardiness to her children's court hearings, the court reasonably inferred Crystal did not
show her circumstances had sufficiently changed where she could consistently meet the
children's needs to attend school, obtain appropriate medical and dental care for them, and 9
transport them to any required therapeutic services on time. We conclude that the court did not
abuse its discretion when it denied Crystal's petition to vacate the section 366.26 hearing and
extend reunification services to the 18-month review date.
B
Legal Framework for Termination of Parental Rights and Standard of Review
At a permanency planning hearing, the court may order one of three alternatives—
adoption, guardianship or long-term foster care. (In re S.B. (2008) 164 Cal.App.4th 289, 296-
297.) If a child is adoptable, there is a strong preference for adoption over the alternative
permanency plans. (Id. at p. 297; San Diego County Dept. of Social Services v. Superior Court
(1996) 13 Cal.4th 882, 888.) Once the court determines that a child is likely to be adopted, the
burden shifts to the parent to show that termination of parental rights would be detrimental to
the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re
Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to termination of parental
rights when "[t]he parents have maintained regular visitation and contact with the child and the
child would benefit from continuing the relationship." " '[B]enefit from continuing
the . . . relationship' " means that the parent-child 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 Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
"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." (Ibid.)
10
The sibling bond exception applies where the parent or sibling proves by a
preponderance of evidence that termination of parental rights would substantially interfere with
a child's sibling relationship. (§ 366.26, subd. (c)(1)(B)(V).) In determining whether this
exception applies, the court considers "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." (Ibid.; In re Valerie A. (2007) 152 Cal.App.4th 987, 1007.)
We determine whether there is substantial evidence to support the court's ruling
terminating parental rights by reviewing the evidence most favorably to the prevailing party,
and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re
S.B., supra, 164 Cal.App.4th at pp. 297-298; In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary
conflicts. (Autumn H., supra, 27 Cal.App.4th at p. 576.)
C
There Is Substantial Evidence to Support the Court's Finding the Sibling Bond Exception to Termination of Parental Rights Does Not Apply
Crystal contends the younger children are bonded with their older siblings, and
termination of parental rights would disrupt those bonds and be detrimental to the children's
long-term emotional well-being. Mia, A.S, and Christopher join in and adopt Crystal's
arguments. They also contend the social worker's opinion that E.D. and D.G. were not bonded
with their older siblings does not constitute substantial evidence because the Agency did not
11
meet their responsibilities to ensure frequent sibling visits and the social worker observed only
one visit between the siblings.
Appellants do not show that adoption would substantially interfere with E.D.'s and
G.D.'s relationships with their older siblings. Aunt C. wanted to adopt E.D. and G.D. She
considered the older siblings to be her niece and nephews, and would continue whatever
sibling contact she could arrange with their caregivers. The social worker testified that in view
of the children's needs and circumstances, there was no possibility of placing them together.
(In re Celine R. (2003) 31 Cal.4th 45, 61 [sibling bonds should not prevent younger siblings
from gaining a permanent home where there were no prospects of placing siblings together].)
The record supports the inference it would be detrimental to remove E.D. and G.D. from their
aunt's care, who had been involved in their lives since their births and had cared for them full
time since April 2013. E.D. was bonded to his cousins and viewed them as his siblings. Thus,
a plan of adoption for the younger children would no more interfere with the siblings'
relationships than would a plan of guardianship.2
The application of the sibling bond exception will be rare, particularly when the
proceedings concern young children whose needs for a competent, caring and stable parent are
of utmost importance. (In re Valerie A., supra, 152 Cal.App.4th at p. 1014.) G.D. and E.D.
are very young children. Even if termination of parental rights would result in severing the
younger children's relationships with their older siblings, the record supports a finding that the
younger children's long-term emotional interests are better served by having a permanent home
2 The selection of a permanent plan and placement for the older children, particularly for Mia, will be critical in maintaining their bonds with E.D. and G.D. However, the focus of this proceeding is on E.D. and G.D. (See, e.g., In re Celine R., supra, 31 Cal.4th at pp. 61-62.) 12
with capable parents than by having ongoing contact with their siblings. The court did not err
when it found that the sibling bond exception did not apply. (§ 366.26, subd. (c)(1)(B)(V).)
D
There Is Substantial Evidence to Support the Court's Finding the Beneficial Parent-Child Relationship Exception to Termination of Parental Rights Does Not Apply
Crystal asserts the court erred when it determined the beneficial parent-child
relationship exception did not apply. She contends that apart from a two-month period after
reunification services were terminated, she maintained regular visitation and contact with E.D.
and G.D., and the children would benefit from continuing the relationship. (§ 366.26, subd.
(c)(1)(B)(i).)
The record does not support Crystal's assertion she maintained regular visitation and
contact with E.D. and G.D. Crystal was offered two two-hour visits a week with the younger
children. There is substantial evidence in the record to show she visited them only 15 percent
of the time. Crystal did not show up for E.D.'s fourth birthday even though she had told Aunt
C. she was bringing a birthday cake for him. Her visitation with E.D. and G.D. had been so
sporadic Aunt C. thought it better not to tell E.D. about Crystal's plans. The record also
supports a finding that Crystal did not maintain regular visitation with the younger children
from November 2013 through February 2014. She did not visit or ask to visit E.D. and G.D.
for two weeks during the pendency of the section 366.26 hearing in early June. Thus, the
record supports the finding that Crystal did not meet her burden to the first prong of section
366.26, subdivision (c)(1)(B)(i).
In her briefing, Crystal focuses on the positive visits she did have with her children, and
their delight in seeing her. She discusses E.D.'s repeated entreaties to her not to leave him or to
13
"come with us" but does not consider how her sporadic visitation may have undermined his
sense of security. Crystal acknowledged at trial G.D. did not know her as a mother figure. To
meet the burden of proof for the beneficial parent/child relationship exception to apply, the
parent must show more than frequent and loving contact or pleasant visits. (In re L.Y.L. (2002)
101 Cal.App.4th 942, 953-954.) Even if Crystal could show she maintained regular visitation
and contact with her children, which she did not, she does not meet her burden to that the
children had a substantial, positive emotional attachment to her that would outweigh the
benefit they would receive from adoption. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
Although the record shows that Crystal loves her children, there is substantial evidence
to support the finding that termination of parental rights would not be detrimental to E.D. and
G.D., and they would greatly benefit from the security of a stable, permanent home with
Holding. The court properly denied the mother's section 388 petition for reunification services and correctly determined that the beneficial parent-child and sibling bond exceptions to the termination of parental rights did not apply.
Issues
Did the juvenile court abuse its discretion in denying the mother's section 388 petition for reinstatement of reunification services?
Did the juvenile court err in finding the beneficial parent-child relationship exception did not apply?
Did the juvenile court err in finding the sibling bond exception did not apply?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The court could reasonably conclude that Crystal did not make the required showing. There is substantial evidence to support the finding that Crystal's circumstances, while changing, were not yet changed.”
“The record supports the finding that Crystal did not meet her burden to the first prong of section 366.26, subdivision (c)(1)(B)(i).”
“The court did not err when it found that the sibling bond exception did not apply.”