San Diego County Health & Human Services Agency v. Jessica A. (2016) · DecisionDepot
San Diego County Health & Human Services Agency v. Jessica A.
California Court of Appeal Apr 11, 2016 No. D069105Unpublished
Before: Haller, Benke, McDonald
Filed 4/11/16 In re D.O. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 D.O., a Person Coming Under the Juvenile Court Law. D069105 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. SJ11191D) Plaintiff and Respondent,
v.
JESSICA A.,
Defendant and Appellant,
SCOTT O.,
Defendant and Respondent,
JE.O., et al.,
Objectors and Appellants.
APPEAL from an order of the Superior Court of San Diego County, Sharon
Kalemkiarian, Judge. Affirmed.
William Hook, under appointment by the Court of Appeal, for Defendant and
Appellant Jessica A.
Michele Anne Cella, under appointment by the Court of Appeal, for Appellants,
minors Je.O., Y.O., and Jo.O.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Kristen Ojeil, Deputy County Counsel, for Plaintiff and Respondent.
Linda Rehm, under appointment by the Court of Appeal, for Respondent Scott O.
Jessica O. (mother) and Scott O. (father) are the parents of D.O., who was one
added; see In re L.Y.L., supra, 101 Cal.App.4th at p. 952, fn. 6 ["[A]s the Legislature
noted, the list in the statute is not exclusive."].) "The phrase 'including, but not limited to'
is a term of enlargement, and signals the Legislature's intent that [a statute] applies to
items not specifically listed in the provision." (Major v. Silna (2005) 134 Cal.App.4th
1485, 1495; see People v. Arias (2008) 45 Cal.4th 169, 181 ["the proviso 'including, but
not limited to' 'connotes an illustrative listing, one purposefully capable of
enlargement' "]; In re M.W. (2008) 169 Cal.App.4th 1, 5-6 ["use of the term 'including,
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but not limited to' . . . suggests a legislative intention to allow broad discretion"].) Thus,
the plain language of section 366.26, subd. (c)(1)(B)(v) authorized the juvenile court to
consider factors other than those expressly articulated in the statute—such as a proven
history of, and expressed commitment to, sibling visits.
Appellants argue by analogy that because a juvenile court cannot rely on an
unenforceable promise of future visitation when deciding whether the parent-child
beneficial relationship exception applies (see In re C.B. (2010) 190 Cal.App.4th 102, 128-
129), the court likewise cannot consider promises of future visitation when deciding
whether the sibling relationship exception applies. The analogy is inapt. (See In re S.B.,
supra, 164 Cal.App.4th at p. 300.) Freeing a child for adoption necessarily requires
terminating—that is, substantially interfering with—the parent-child relationship. (See In
re Autumn H., supra, 27 Cal.App.4th at p. 574.) But "[u]nlike the parent-child
relationship, sibling relationships enjoy legal recognition after termination of parental
rights." (In re S.B., supra, 164 Cal.App.4th at p. 300.)4 Thus, it is not a foregone
conclusion that terminating parental rights will substantially interfere with a sibling
relationship, and the juvenile court must make this factual determination.
The Agency cites several cases that indicate assurances of continued sibling visits
are relevant to this determination. (See In re L.Y.L., supra, 101 Cal.App.4th at pp. 951-
4 Consistent with this distinction, the subdivision that sets forth the parent-child beneficial relationship exception does not require the juvenile court to determine whether there will be substantial interference with the relationship, whereas the subdivision setting forth the sibling relationship exception does. (Compare § 366.26, subd. (c)(1)(B)(i) with § 366.26, subd. (c)(1)(B)(v).) 12
952; In re Daisy D., supra, 144 Cal.App.4th at p. 293; In re Salvador M. (2005) 133
Cal.App.4th 1415, 1422; In re Valerie A., supra, 152 Cal.App.4th at p. 1014; In re Jacob
S. (2002) 104 Cal.App.4th 1011, 1019.) We find these cases persuasive. We
acknowledge that the juvenile courts in the cited cases did not rely exclusively on evidence
regarding sibling visits, but also considered (to varying degrees) the factors enumerated in
section 366.26, subdivision (c)(1)(B)(v). Given the potential tenuousness of future sibling
visits, it is the better practice for juvenile courts to also consider the expressly enumerated
factors. However, we conclude it was not error to depart from that practice here, where
the record contains substantial evidence that would have allowed the juvenile court to
otherwise reach the same conclusion by considering the expressly enumerated factors.
Although appellants frame their challenge primarily as a legal one directed at the
propriety of considering future sibling visits at all, they also assert that "no evidence
supported the juvenile court's finding that the sibling relationship would remain intact,
except for speculation that the caregivers would continue to allow it." This argument
ignores that it was appellants' burden to establish there would be substantial interference,
not the Agency's burden to establish there would not. The juvenile court found there was
"absolutely no evidence that the bond would be interfered with." (Italics added.) Thus,
appellants' unsubstantiated assertion on appeal that "many things can happen over the
next 16 years" is speculative. (See, e.g., In re Daisy D., supra, 144 Cal.App.4th at p. 293
["it was anticipated that the minor would be adopted by her paternal grandparents, who
intended to maintain contact between the minor and her half siblings. Appellant's
assertion that animosity between her and the paternal grandparents would lead to a
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cessation of sibling visits after the adoption is speculative and unsupported by the
record."]; In re Jacob S., supra, 104 Cal.App.4th at p. 1019 ["The grandparents have said
they . . . are open to maintaining ties between [the adoptive children] and their siblings.
The grandparents have done so thus far, and there is no evidence they intend to stop once
they have adopted [the adoptive children]."]; In re Salvador M., supra, 133 Cal.App.4th
at p. 1422 ["there is nothing in this record to suggest that the brothers' relationship would
be terminated, as both [the mother] and the grandmother have indicated they recognize
the value of the sibling relationship"].)
In any event, the juvenile court cited five evidentiary bases (discussed above)
supporting its conclusion. Notably, the court did not rely solely on unsupported
assurances from the caregivers that they would allow future visits; rather, the court cited
the caregivers' proven track record of facilitating visits, and the paternal grandmother's
commitment to the mother's new baby (who is related to D.O. but may not be related to
the paternal grandmother). The court did not err.
Even if the juvenile court erred in determining there would be no substantial
interference with the sibling relationship, the error would not be prejudicial because it
does not appear reasonably probable appellants would have obtained a more favorable
result absent the error. (See In re Jonathan B. (1992) 5 Cal.App.4th 873, 876; People v.
and the juvenile court's finding that there was "some evidence" that D.O. feels a sibling
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bond.5 At most, this establishes the existence of a sibling relationship;6 it says nothing
about the detriment, if any, D.O. would suffer if that relationship were substantially
interfered with, or whether that detriment would outweigh the benefits to D.O. of the
stability and permanence of adoption. In the case of a two-year-old dependent who spent
only the first year of her life with her siblings and then visited them only twice each
month during the second year, we find it is not reasonably probable that the juvenile court
would have resolved that balancing test in the Siblings' favor. (See, e.g., In re Daisy D.,
supra, 144 Cal.App.4th at p. 293 [finding no prejudice where "the minor was just over
one and one-half years old when she was placed separately from her half siblings in the
home of the paternal grandparents. In the ensuing two years, the minor had visits with
her half siblings between two and four times a month. And although the minor clearly
enjoyed the time she spent with her half siblings, there was no evidence that the detriment
she might suffer if visits ceased presented a sufficiently compelling reason to forgo the
stability and permanence of adoption by caretakers to whom she was closely bonded."].)
5 Although the focus of the sibling relationship exception is the impact on the adoptive child and not her siblings (see In re Celine R., supra, 31 Cal.4th at pp. 54-55), "evidence of the [siblings'] relationship with the child . . . might be relevant as indirect evidence of the effect the adoption may have on the adoptive child" (In re Naomi P. (2005) 132 Cal.App.4th 808, 823).
6 Although substantial evidence supports the juvenile court's finding of a sibling bond, the record suggests the bond may not have been a strong one. Je.O. acknowledged that "sometimes [D.O.] knows [him] and sometimes she doesn't." Y.O. acknowledged that D.O. used to cry at the end of visits but has "gotten over it," and that she (Y.O.) does not "know how [D.O.] would feel if [D.O.] couldn't see [Y.O.] again." 15
DISPOSITION
The order is affirmed.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
MCDONALD, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court did not err in finding the sibling relationship exception to adoption inapplicable, as there was no evidence of substantial interference with the sibling bond and the court properly considered the caregivers' proven track record of facilitating visitation.
Issues
Whether the juvenile court erred by considering caregivers' assurances of future visitation when evaluating the sibling relationship exception to adoption.
Whether the juvenile court's finding of no substantial interference with the sibling relationship was supported by substantial evidence.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The sibling bond exception is evaluated from the perspective of the child who is being considered for adoption, not the perspective of that child's siblings.”
“The court did not rely solely on unsupported assurances from the caregivers that they would allow future visits; rather, the court cited the caregivers' proven track record of facilitating visits”