Filed 2/28/14 In re W.W. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re W.W. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT

OF PUBLIC SOCIAL SERVICES, E059183

Plaintiff and Respondent, (Super.Ct.No. RIJ110910)

v. OPINION

J.M.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Tamara L. Wagner,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Karen J. Todd, under appointment by the Court of Appeal, for Defendant and

Appellant.

Pamela J. Walls, County Counsel, Julie Koons Jarvi, Deputy County Counsel, for

Plaintiff and Respondent.

No appearance for Minors.

1 Defendant and appellant J.M. (Mother) appeals the termination of her parental

rights under Welfare and Institutions Code section 366.261 as to her two minor sons,

W.W. and L.W. (collectively, “Minors”). Mother contends the juvenile court erred

when it found the sibling relationship exception in section 366.26, subdivision

(c)(1)(B)(v) did not apply, because Minors have a significant bond with their four

sisters. Mother believes the termination of her parental rights would cause a substantial

interference with Minors’ sibling relationships. Because Minors’ prospective adoptive

parents have agreed to maintain contact between Minors and their siblings, we find the

court properly balanced the children’s interests in maintaining those ties and their need

for a permanent and stable home through adoption.

FACTUAL AND PROCEDURAL HISTORY

A. PARENTAL RIGHTS

W.W. is the eldest of Mother’s children; he was born in May 2002. His half-

sister, S.N., was born in August 2005.2 Mother tested positive for methamphetamine

and marijuana at S.N.’s birth. On October 21, 2005, a juvenile dependency petition was

filed to protect the children under section 300, subdivision (b), because Mother and both

fathers were abusing drugs and neglecting the children. The allegations were found true

at a hearing on December 14, 2005; Mother retained custody of the children subject to

1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2 W.W.’s father is W.W.Sr., SN’s father is J.N.; neither father is a party to this appeal.

2 the supervision of a social worker. Family maintenance services were provided until the

case was dismissed on June 21, 2007. L.W. was born in September 2007.3

A new juvenile dependency petition was filed on May 8, 2008, after a social

worker visited Mother’s home. She found it unsafe and filthy, noting,

“methamphetamine and paraphernalia [were] accessible to the children, and adults with

criminal history [were] in the home.” One of the men present in the home “was a

parolee at large and considered armed and dangerous”; he had been charged with

domestic violence and child endangerment. The children were placed together in a

foster home.

At a jurisdictional hearing on July 15, 2008, the children were removed from

Mother’s custody; and she was offered reunification services. Mother was referred to

drug testing and parenting, anger management, and substance abuse classes on June 6,

2008. Mother missed a number of drug tests and, as of July 6, 2009, had not completed

the prescribed services. Mother’s services were twice extended. Mother began to make

satisfactory progress, and on November 6, 2009, the children were restored to her care

under family maintenance. Family maintenance services were renewed at the 18-month

review hearing on January 11, 2010.

A fourth child, M.K., was born in March 2010. A social worker visited Mother’s

home because there was an open dependency matter, and found the home was in

3 L.W.’s father is also W.W.Sr.

3 “disarray” and the newborn was residing with the alleged father, D.K.4 A paternity test

revealed D.K. was not M.K.’s father and on April 2, 2010, the court ordered D.K. to

return M.K. to Mother. After a second home visit and Mother’s clean drug test result,

M.K. was allowed to remain in Mother’s care. A dependency petition was filed on

behalf of M.K. on April 6, 2010.

On June 25, 2010, plaintiff and respondent Riverside County Department of

Public Social Services (Department) recommended the dependency of the children be

terminated and Mother given sole legal and physical custody.

An amended report filed by the Department on August 18, 2010, recommended

the dependency be continued and that an additional six months of family maintenance

services be provided. On July 29, an immediate response referral for general neglect

was received by the Department. The referral indicated the children were filthy, with

sores on their bodies, and the newborn appeared malnourished. Upon visitation, the

children were found in adequate condition, but Mother was sleeping in a van and

leaving her children with relatives. Mother was having problems with D.K. and felt it

was not safe for the children to be around him. The dependency was continued and

further services ordered at the review hearing on August 23, 2010.

Mother was expelled from a sober living home in December 2010 for testing

positive for an illegal substance. On January 19, 2011, mother moved into a domestic

violence shelter. A subsequent juvenile dependency petition was filed on March 18,

4 D.K. was Mother’s drug rehabilitation counselor and was later found by the court to be M.K.’s presumed father. He is not a party to this appeal.

4 2011, when it was reported Mother had relapsed into methamphetamine use. She had

stopped sending W.W. and S.N. to school. Mother was spending her welfare funds on

drugs, and had to appeal to D.K.’s mother, C.K. (Grandmother), for support for the

children. The Department filed a detention report recommending the children be

detained from their parents, which was adopted by the juvenile court on March 21,

2011. The children were placed together in a confidential foster home.

In interviews with the Department, Mother revealed she was pregnant with twins

(“the twins”). She had moved into a sober living home after the filing of the

dependency petition. She hoped the children could be placed with Grandmother. A

restraining order was issued against D.K. on February 22, 2011, keeping him from

contact with Mother and the children because of concerns about potential violence.

W.W., L.W., S.N., and M.K. were declared a sibling group and removed from

Mother’s care by the juvenile court’s order dated April 19, 2011. The court found,

“[d]eveloping or maintaining the sibling relationship with the siblings is appropriate.”

Mother was offered family reunification services. At this time, the children began to

display negative behaviors. In an October 11, 2011, report, the social worker noted

W.W. was failing third grade; S.N. appeared “emotionally unstable” following visits

with Mother and J.N.; and that L.W. had experienced adjustment issues. Mother had

been required to complete psychiatric evaluation, general counseling, parenting

5 education, outpatient substance abuse treatment and testing,5 and a 12-step program, but

was not in compliance with that program. She was a no-show for her two most recent

scheduled drug tests. It was the opinion of the social worker the children’s misbehavior

was a result of the uncertainty of being returned to their parents.

Mother’s reunification services were terminated on October 28, 2011, because of

her failure to participate and make substantive progress in her treatment plan.

B. THE SIBLING GROUP

S.N. misbehaved in her foster home, which was believed to be tied to her

feelings of abandonment by her father. The assigned social worker approached

Grandmother about taking the siblings. She declined, as she was caretaking the twins

and seeking to adopt M.K. but did not feel she could handle six children. Accordingly,

“to reduce failed placements and reduce the amount of time to provide permanency for

the children,” the social worker recommended the sibling set finding be set aside to

enable adoption of the children.

The Department proposed a plan at the combined section 366.26/366.3 hearing

that Minors would be placed with their father’s estranged wife; S.N. would be placed

with her maternal grandfather; and M.K. would be placed with Grandmother. All

caregivers agreed to provide ongoing contact between the siblings. The separate

placements required setting aside the sibling set designation. Otherwise, long term

foster care was likely, given the size of the group and S.N.’s behavioral issues. On

5 D.K. was ordered to undergo drug testing in connection with his parental rights over the twins. He tested positive for methamphetamine on June 24, 2011.

6 February 27, 2012, the juvenile court granted the request to sever S.N. from the sibling

group.

M.K. had been placed with Grandmother, who planned to adopt her. W.W.,

L.W., and S.N. were together in a foster home. The other planned placements were

stymied by an inability to clear them with the Relative Assessment Unit. During this

time, W.W.’s grades “improved tremendously” and S.N.’s and L.W.’s behavioral issues

ceased. S.N. was placed in a prospective adoptive home on October 12, 2012.

Mother’s parental rights were terminated following section 366.26 hearings as to

M.K. on October 24, 2012, and as to S.N. on December 19, 2012. Minors were placed

together in a prospective adoptive home on December 13, 2012. As part of her report to

the court, the social worker noted W.W. had called to tell her that he and S.N. were

worried S.N.’s maternal grandfather would adopt her and take her away, and that the

grandfather would also try to adopt him and L.W. W.W. said he and L.W. did not want

to be taken away from their adoptive “‘forever family.’” The boys were doing well in

the adoptive placement.

Problems arose with the boys’ placement. On April 9, 2013, an emergency ex

parte application was filed by Minors’ counsel to block the Department’s seven-day

notice to remove the boys from their adoptive placement. The juvenile court directed

that the children should be maintained in their placement by order dated April 12, 2013.

An addendum report was filed by the Department on that date reporting the removal

was requested because of ongoing sibling visitation issues. The prospective adoptive

parents told the social workers that after adoption they would only allow contact with

7 M.K. and the twins over Skype service, and the prospective adoptive mother was

overheard expressing vitriolic hatred for Grandmother. They initially refused to meet

Grandmother and did not want her to know what they looked like. They were willing to

allow contact with S.N., because she was with non-related adoptive parents who were

“‘like us,’” but would not meet Grandmother because she was a biological grandparent.

The social worker found their information about Grandmother was not first-hand and

their validations for not meeting her were irrational. Minors’ prospective adoptive

parents and Grandmother were ordered to attend counseling.

Minors wanted to continue to see M.K. and the twins, and considered them

family. W.W. said it was “‘important’” for the siblings to see each other “‘even if they

live in different houses.’” The petitioning social worker felt the prospective adoptive

parents did not understand that Minors would suffer trauma if their contact with M.K.

and the twins was cut off. The prospective adoptive parents would only agree to two

yearly supervised visits at the Department’s office. They were concerned because

Grandmother still had contact with Mother and the children’s fathers, from whom the

children had been taken. They did not oppose having sibling relationships, but did not

want Minors to be in the presence of people who had been found to be a danger to them.

In addition, they “had only heard negative things” about Grandmother from a social

worker and her supervisor.6 For her part, Grandmother was demanding to take custody

6A prior meeting had been set to allow the three adoptive parental units to meet, but Grandmother refused to participate because it would not be “worth it.” She stated a [footnote continued on next page]

8 of Minors for the weekend every other week, which the counselor explained to her was

appropriate for a divorce, but not in an adoption.

Following the court-ordered counseling, the prospective adoptive parents and

Grandmother reached an accord. They agreed sibling visitation was in the best interests

of the children, and scheduled “several” yearly meetings to maintain sibling relations.

The social worker reported on a meeting held on May 9, 2013: W.W. was “very

nurturing” toward the younger girls, the children played together, and the caregivers

were “amicable and exchanged photographs.” The siblings would all be residing within

the same county.

As a result, the Department recommended Minors be kept in their adoptive

placement and that Mother’s parental rights to them should be terminated. After taking

testimony from mother and maternal grandparents, the juvenile court adopted the

Department report and findings, and terminated Mother’s parental rights. The juvenile

court found the sibling exception did not apply.

DISCUSSION

Mother contends substantial evidence does not support the juvenile court’s

finding that the sibling relationship exception did not apply. We disagree.

If a child cannot be returned to a parent, “[a]doption, where possible, is the

permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th

[footnote continued from previous page] social worker had told her negative things about the other adoptive parents and that Minors’ affection had been “bought” by the prospective adoptive parents.

9 567, 573.) In general, if the juvenile court finds at a section 366.26 hearing the child is

adoptable, it must terminate parental rights. (§ 366.26, subds. (b)(1) & (c)(1).) This

rule is subject to a number of statutory exceptions (§ 366.26, subd.(c)(1)(A),

(c)(1)(B)(i)-(c)(1)(B)(vi)), including the sibling exception, which applies when

termination would cause a substantial interference with the sibling relationship. The

party challenging the termination of parental rights bears the burden to produce

evidence showing an exception applies. (In re I.W. (2009) 180 Cal.App.4th 1517,

1527.) A parent has standing at a section 366.26 hearing to argue that the sibling

exception applies. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1016.) “In enacting

this exception, the Legislature was concerned with preserving long-standing

relationships between siblings which serve as anchors for dependent children whose

lives are in turmoil.” (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) “[T]he sibling

relationship exception permits the trial court to consider possible detriment to the child

being considered for adoption, but not a sibling of that child.” (In re Celine R. (2003)

31 Cal.4th 45, 54.) “[T]he application of this exception will be rare, particularly when

the proceedings concern young children whose needs for a competent, caring and stable

parent are paramount.” (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.)

To determine whether the exception applies, “[t]he court must balance the

beneficial interest of the child in maintaining the sibling relationship, which might leave

the child in a tenuous guardianship or foster home placement, against the sense of

security and belonging adoption and a new home would confer. [Citation.]” (In re

L.Y.L. (2002) 101 Cal.App.4th 942, 951) The juvenile court undertakes a two-step

10 analysis in evaluating the applicability of the sibling relationship exception pursuant to

section 366.26, subdivision (c)(1)(B)(v). First, the court is directed to consider:

(1) “whether the child was raised with a sibling in the same home”; (2) “whether the

child shared significant common experiences or has existing close and strong bonds

with a sibling”; and (3) “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.” (L.Y.L., at p. 951.) “If the court determines terminating

parental rights would substantially interfere with the sibling relationship, the court is

then directed to weigh the child’s best interest in continuing that sibling relationship

against the benefit the child would receive by the permanency of adoption.” (Id., at pp.

951-952.) “[T]he concern is the best interests of the child being considered for

adoption, not the interests of that child’s siblings.” (In re Naomi P. (2005) 132

Cal.App.4th 808, 822.)

“Reflecting the Legislature’s preference for adoption when possible, the ‘sibling

relationship exception contains strong language creating a heavy burden for the party

opposing adoption. It only applies when the juvenile court determines that there is a

“compelling reason” for concluding that the termination of parental rights would be

“detrimental” to the child due to “substantial interference” with a sibling relationship.’

[Citations.] Indeed, even if adoption would interfere with a strong sibling relationship,

the court must nevertheless weigh the benefit to the child of continuing the sibling

relationship against the benefit the child would receive by gaining a permanent home

through adoption. [Citation.]” (In re Celine R., supra, 31 Cal.4th at p. 61.)

11 We review the juvenile court’s sibling exception determination for substantial

evidence. In applying this standard, “we draw all reasonable inferences in support of

the findings, view the record [in the light] most favorabl[e] to the juvenile court’s order,

and affirm the order even if other evidence supports a contrary conclusion. [Citation.]”

(In re Megan S. (2002) 104 Cal.App.4th 247, 251.) The juvenile court’s finding the

sibling exception to adoption did not apply must be upheld if, viewing the evidence in

the light most favorable to the court’s ruling, substantial evidence supports that ruling.

(In re Misako R. (1991) 2 Cal.App.4th 538, 545.) A challenge to the juvenile court’s

determination of whether, given the existence of a sibling relationship, there is a

compelling reason for determining termination of parental rights would be detrimental

to the child “is a quintessentially discretionary determination” calling for a high degree

of appellate court deference. (In re Scott B. (2010) 188 Cal.App.4th 452, 469.)

In our view, substantial evidence supports the juvenile court’s finding the

benefits of the sibling relationship do not outweigh the benefits of adoption. Mother

asserts only restoration of her parental rights can ensure Minors maintain their sibling

bonds, and rejects the possibility of adoption. Initially, her argument fails because it

provides no remedy. Mother lost her parental rights to S.N., M.K., and the twins. If

Minors were removed from their adoptive family, they would still be separated from

their sisters. The juvenile court previously severed S.N. from the sibling set, and the

twins were never part of that set. There will be no restoration of the status quo ante.

Given that Mother’s proposed remedy does not solve the problem it is meant to address,

12 it cannot outweigh the benefit to Minors from adoption into a loving and permanent

home.

Second, Mother’s argument fares little better if it is construed as an argument

against placing Minors with the prospective adoptive parents and urging us only to

restore them to her nominative parenting until a new home can be found. There is

evidence in the record the prospective adoptive parents were originally unwilling to

maintain contact with M.K.7 They were worried because they had heard bad things

about Grandmother from an assigned social worker, as had Grandmother about them.

More significant was the fact that Grandmother was the mother of D.K., the father of

some of Mother’s children. The record is replete with references to D.K.’s drug use and

temper, and he was subject to a restraining order keeping him from Mother and the four

older children. It is not unusual that the prospective adoptive parents would be reluctant

to have their children visit at Grandmother’s house, given the possibility D.K. might be

around.8 Additionally, it is understandable the prospective adoptive parents would have

difficulty reaching agreement on terms of visitation with M.K. if Grandmother’s

seemingly non-negotiable demand was for “Friday through Sunday” visits for Minors

every other week. The prospective adoptive parents were not unreasonable in resisting

Grandmother’s proposal for sibling visits; they proposed alternate schedules that the

7 As noted, the prospective adoptive parents had no problem with maintaining sibling contact with S.N.; the twins, because of their age, were not part of the sibling set.

8Grandmother was vocal with the Department in her view that D.K.’s parental rights were taken away unfairly.

13 counselor accepted as appropriate, and succeeded in putting aside their prejudices and

attending amicable sibling visits. The selection of the prospective adoptive parents as

adoptive parents does not impair the likelihood of maintaining the sibling bond.

Lastly, the sibling bond is not of such a high degree to require the siblings be

kept as a unit. As noted by the assigned social worker, the size of the group and S.N.’s

then-ongoing behavioral issues made it likely the children were destined for a long-term

foster home placement, not adoption. Given the social preference for adoption, it would

take a strong sibling benefit to deny Minors an adoptive home. The connection between

Minors and M.K. is tenuous. M.K. was born in 2010 and placed with Grandmother in

2012. She was not raised with Minors and is not likely to have significant shared

experiences with them because of her young age. Although Minors consider her part of

the family and take pleasure in her company, it is not likely they look to her as someone

who has shared years of family turmoil with them or as a substitute parent. The interest

of Minors will be best served through adoption even though it will require maintaining

the sibling relationship over some small distance.

The juvenile court directly confronted and decided the question of whether the

prospective adoptive parents were improper adoptive parents because they appeared to

be insufficiently attentive to Minors’ sibling bonds. The juvenile court decided in favor

of the adoption and the permanency and stability it will bring to Minors’ lives. It

determined that the prospective adoptive parents intended and were committed to

sustaining Minors’ sibling relationships. Review of the record discloses substantial

evidence in support of the court’s ruling.

14

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

HOLLENHORST

Acting P. J.

McKINSTER J.

15