Filed 4/21/15 In re Jasmine 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 JASMINE O., a Person Coming Under the Juvenile Court Law.

D066526

SAN DIEGO COUNTY HEALTH AND

HUMAN SERVICES AGENCY,

(Super. Ct. No. CJ1085A) Plaintiff and Respondent,

v.

SELENE L.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,

Laura J. Birkmeyer, Judge. Affirmed.

Neil R. Trop, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.

Carl J. Fabian, under appointment by the Court of Appeal, for Minor. Selene L. appeals a judgment terminating her parental rights to her daughter,

Jasmine O., under Welfare and Institutions Code section 366.26, and the juvenile court's

rejection of the San Diego County Health and Human Services Agency's (Agency)

recommendation to move Jasmine from her paternal aunt's home to her maternal great

aunt's home. (Undesignated statutory references are to the Welfare and Institutions

Code.) Selene contends (1) the juvenile court should have reviewed the Agency's

placement decision for an abuse of discretion rather than under a best interest standard,

and (2) the juvenile court erred in failing to apply the sibling relationship exception to

adoption. The Agency agrees with Selene that the juvenile court incorrectly applied the

best interest standard in reviewing the Agency's placement selection. Minor's appellate

counsel disagrees with Selene and the Agency regarding the applicable standard and

requests that we affirm the juvenile court's judgment in its entirety. We conclude the

juvenile court applied the proper standard in reviewing the Agency's placement selection

and substantial evidence supported the court's decision that the sibling relationship

exception to adoption did not apply.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2012, when Jasmine was approximately three weeks old, the Agency filed

a dependency petition on her behalf because she tested positive for methamphetamine at

birth and Selene had a history of drug use and neglecting Jasmine's half siblings. The

juvenile court assumed jurisdiction, removed Jasmine from Selene's care and placed

Jasmine with her father. Shortly thereafter, the Agency filed a supplemental petition

alleging that the order placing Jasmine with her father had not been effective in

2 protecting Jasmine as the father had sent Jasmine out of the county in violation of the

court's order and was incarcerated. Jasmine was detained in a foster home. Later, the

Agency placed Jasmine with a paternal relative in Anaheim, California.

In 2013, Jasmine's four half siblings became dependents of the juvenile court. The

Agency placed Jasmine's half siblings with Rosa A., Jasmine's maternal great aunt.

Jasmine visited her half siblings every week. Jasmine also had two visits per month with

her father and weekly visits with Selene. In August 2013, Jasmine began travelling to

Tecate, Mexico and spent weekends in her paternal aunt Esmeralda O.'s home to

accommodate Jasmine's father's visits at that location.

At the September 2013 six-month review hearing, the juvenile court terminated

Selene's services and ordered the father be provided another six months of services. In

November of that year, Jasmine's paternal relative with whom she had been placed,

requested that Jasmine be removed from her care due to conflicts with Jasmine's maternal

family members.

The Agency recommended placing Jasmine in the home of her maternal great

aunt, Carmen G. According to the Agency, it feared that if Jasmine was placed in

Esmeralda's home, Jasmine's sibling visitation would diminish. Moreover, the Agency

reported difficulties contacting Esmeralda by telephone, making communication between

the Agency and caretaker difficult.

At a contested 12-month permanency hearing in January 2014, the court

terminated Jasmine's father's services. In considering Jasmine's placement, the court

noted there had been a history of conflicts between maternal and paternal relatives. After

3 considering the factors set forth in section 361.3, the court placed Jasmine in Esmeralda's

home in Tecate. The court noted that Jasmine had established a close relationship with

Esmeralda and that Esmeralda was willing to facilitate visits with Jasmine's half siblings.

The court ordered Esmeralda to make Jasmine available for visits with Jasmine's half

siblings and to supervise the father's visits.

In May 2014, the court held a section 366.26 hearing. In its section 366.26 report,

the Agency noted Jasmine was developmentally on track, showed behaviors indicating

she loved her family members, and would be fine if adopted by either side of the family.

The Agency, however, sought to move Jasmine from Esmeralda's home to Carmen's

home. According to the Agency, placement in Carmen's home would be in Jasmine's

long-term best interest. The Agency noted Carmen's home was close to Rosa's home

where Jasmine's half siblings resided. Accordingly, placement in Carmen's home would

allow Jasmine to maintain close contact with her half siblings. The Agency also stated it

did not feel it was in Jasmine's best interest to leave her with Esmeralda because

Esmeralda had not followed through with conditions of Jasmine's placement, such as

calling the social worker on a weekly basis, and had been resistant to the Agency's

requests in regard to sibling visits.

At the section 366.26 trial, the court considered termination of parental rights,

adoption as Jasmine's permanent plan, and the Agency's request to change Jasmine's

placement under section 366.26, subdivision (k) from Esmeralda's care to Carmen's care.

The court received considerable evidence on the strength of the relationships between

4 maternal relatives and Jasmine, paternal relatives and Jasmine, and between Jasmine and

her half siblings.

Jessica Cota, a protective services worker assigned to evaluate a permanent

placement for Jasmine, testified that both Carmen's and Esmeralda's families had

approved home studies for Jasmine's placement. Cota observed Carmen interact with

Jasmine on two occasions and reported Jasmine was familiar with Carmen. After her

placement in Tecate, Jasmine had eight visits with her half siblings that were

approximately three to four days at a time. Carmen interacted with Jasmine at Rosa's

home at each of the sibling visits. Carmen believed Jasmine was attached to her.

Jasmine was always excited to see her half siblings. At the end of visits, Jasmine

and her half siblings had a difficult time separating from each other. Cota described

Jasmine's relationship with her half siblings as a loving one and stated it was the only

constant relationship Jasmine had in her life. Cota recommended placing Jasmine with

Carmen in part because Jasmine's half siblings would be nearby.

Cota believed Jasmine was developing an attachment issue because Jasmine

detached easily from her caregivers for sibling visits and had considerable difficulty

when she would leave her half siblings after visits. Cota believed Jasmine had attached

to Esmeralda and Esmeralda's husband and that Jasmine loved them. However, Cota

opined that Jasmine would suffer no serious detriment to her emotional well-being if

moved from Esmeralda's home. Cota did not believe Jasmine had substantial emotional

ties to Esmeralda as Jasmine had only lived with Esmeralda for five months at that point

and had moved around substantially prior to her placement with Esmeralda.

5 On about five occasions, Cota had driven to the San Diego-Mexico border to pick

Jasmine up from Esmeralda and take her to Los Angeles for sibling visits. Jasmine cried

during the first couple of exchanges when she had to leave Esmeralda.

Cota testified that Esmeralda had previously stated that it was a hardship to

transport Jasmine to the border for the sibling visits and that it was a financial burden on

her family. Esmeralda, however, always complied with transporting Jasmine. Cota

believed that if Jasmine remained in Esmeralda's home, it would substantially interfere

with Jasmine's sibling relationships because the Agency had significantly assisted with

transporting Jasmine for her sibling visits. The Agency could no longer assist with

sibling visits after Jasmine's adoption. Despite the strength of the sibling relationships,

the Agency was still recommending adoption for Jasmine because the benefits of

adoption were not outweighed by the sibling relationships.

Esmeralda testified it would be a financial burden to take Jasmine to Los Angeles

twice a month for sibling visits. However, Esmeralda wanted Jasmine to have positive

sibling relationships and was willing to transport Jasmine from Mexico to Los Angeles

for those visits. Esmeralda planned to arrange for sibling visits every six weeks.

By April 2014, Esmeralda's relationship with Cota was strained and Esmeralda did

not feel Cota was supporting her. Cota told Esmeralda that if she did not comply with the

Agency's requirements, the Agency would take Jasmine away from her. Esmeralda was

always fearful and did what Cota told her to do.

After considering the evidence, the court terminated parental rights and ordered

adoption as Jasmine's permanent plan. The court rejected the Agency's decision to move

6 Jasmine from Esmeralda's home in Tecate to Carmen's home. In making its ruling on the

placement issue, the trial court engaged in an extensive recitation of the factors, law, and

evidence it considered. Initially, the court set forth the requirements of section 366.26,

subdivision (k), known as the "caretaker preference." The court noted that other courts

have found under that section, it is not the court's assessment that controls; rather, the

agency's assessment controls absent an abuse of discretion.

Regarding the court's rejection of the Agency's placement determination, the court

went on to state, "This is not a matter of the court just having a different view. [The

court] find[s] that the facts don't support the [Agency's] underlying assessment."

Moreover, the court was concerned that the Agency's evaluation of Jasmine's placement

with Esmeralda was not done in good faith. In particular, the court detailed evidence

demonstrating the social worker treated Esmeralda unfairly and imposed responsibilities

on Esmeralda not required by the court's prior orders. Of notable concern, the court

found the social worker's assessment that Jasmine had attachment problems was "based

on ludicrous assumptions and a paucity of information" and "the Agency did not engage

in a fair process in determining whether there are substantial emotional ties [between

Jasmine and Esmeralda], or whether it would be seriously detrimental to [Jasmine's]

emotional well being." The court continued that in terms of the Agency's evaluation of

Jasmine's relationship with Esmeralda and Esmeralda's family, the social worker did not

observe the relationship other than during brief exchanges when the social worker picked

Jasmine up for purposes of sibling visitation.

7 Ultimately, the court concluded Esmeralda's family "did not get a fair shot nor did

they get a level playing field in terms of assessing their relationship with Jasmine. . . . [¶]

Implicit in the Agency's role in . . . making informed determinations pursuant to [section

366.26,] subdivision (k) as to substantial emotional ties and serious detriment to a child's

emotional well-being is that it be done with integrity and unbiased and occur with

offensive of rigor and fairness. . . . [¶] . . . Indeed, before making these very significant

determinations that will clearly affect a child's future, the Agency should employ a fair

informed method, and that did not happen here."

DISCUSSION

I. Request to Dismiss Minor's Brief

Jasmine's appellate counsel filed a brief arguing we should affirm the juvenile

court's decision declining to move Jasmine from Esmeralda's home to Carmen's home.

This argument is contrary to the position Jasmine's trial counsel took in the juvenile court

and the Agency's position on appeal. However, Jasmine's appellate counsel stated,

Jasmine's "[t]rial counsel had no objection to appellate counsel taking a different position

on the placement issue on appeal."

The Agency filed a letter brief requesting that we dismiss a portion of minor's

brief. Specifically, the Agency asserted that the portion of minor's brief concerning the

placement issue should be dismissed because appellate counsel was not unequivocally

authorized to take a position different from that of Jasmine's trial counsel. (See In re

Josiah Z. (2005) 36 Cal.4th 664, 678.) Subsequently, Jasmine's appellate counsel filed a

declaration unequivocally stating trial counsel consented to appellate counsel asserting a

8 different position than asserted at trial. Accordingly, to the extent there was an ambiguity

or deficiency in Jasmine's appellate counsel's brief, it has been cured and we decline to

dismiss any portion of the brief.

II. Jasmine's Placement

Selene and the Agency argue the juvenile court applied an incorrect standard in

reviewing the Agency's placement determination declining to move Jasmine from

Esmeralda's care to Carmen's care. Specifically, they assert the juvenile court should

have reviewed the Agency's placement determination for an abuse of discretion rather

than under a best interest standard. We reject this argument.

Preliminary, we note that "[a]fter parental rights have been terminated pursuant to

Section 366.26, an order by the court that a dependent child is to reside in, be retained in,

or be removed from a specific placement, is not appealable at any time unless all of the

following apply: [¶] (A) A petition for extraordinary writ review was filed in a timely

manner." (Section 366.28, subd. (b)(1).) A petition for extraordinary writ review was

not filed in this case. However, we exercise our discretion to construe the appeal on the

placement issue as a petition for extraordinary writ review and consider the argument on

the merits. (See Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 254, 255, fn. 2

[construing appeal from nonappealable order as petition for writ of mandate].)

Following termination of parental rights, the juvenile court must refer the

dependent child to the State Department of Social Services or a licensed adoption agency

for adoptive placement. (§ 366.26, subd. (j); Cal. Rules of Court, rule 5.725(e)(3).) The

department or agency is responsible for the custody and supervision of the child and is

9 entitled to exclusive care and control of the child until a petition for adoption is granted.

(§ 366.26, subd. (j).) Similarly, Family Code section 8704 provides that the department

or agency has exclusive custody and control of the child until adoption, including the

discretion to terminate any placement for temporary care or for adoption. (Fam. Code,

§ 8704, subd. (a).)

Relying on these statutory provisions, the appellate court in Department of Social

Services v. Superior Court (1977) 58 Cal.App.4th 721, 733 (Department of Social

Services), concluded the Legislature granted the social services agency the exclusive

custody, control and supervision of a child referred for adoptive placement. "This

exclusive authority expressly includes decisions on adoptive placement as well as

temporary care, i.e. foster care placement pending adoptive placement. Moreover, the

Legislature explicitly has provided that, prior to the filing of a petition for adoption, the

[social services] agency may change an adoptive placement at its discretion." (Ibid.)

The social services agency's decision on placement pending adoption cannot be

overturned absent a showing that the agency abused its discretion. (Department of Social

Services, supra, 58 Cal.App.4th at p. 733.) The role of the juvenile court is limited to

reviewing whether the agency abused its discretion by placing the child or determining

whether or not a placement continues to be appropriate. (Id. at p. 734.) The court in

Department of Social Services, supra, cautioned that the juvenile court must not

substitute its judgment for that of the agency, but may assess only whether the agency

acted arbitrarily or capriciously. (Ibid.) "Absent a showing that [the Agency's]

placement decision is patently absurd or unquestionably not in the minor's best interests,

10 the juvenile court may not interfere and disapprove of the minor's placement, thereby

requiring that the minor be relocated to another home." (Ibid.)

However, "[t]he Agency's discretion regarding interim and adoptive placement is

not unfettered. [Citation.] The court retains jurisdiction over the child to ensure the

adoption is completed as expeditiously as possible and to determine the appropriateness

of the placement. ([Citation]; see § 366.3, subd. (f)(12) [[T]he court is required to 'make

appropriate orders to protect the stability of the child and to facilitate and expedite the

permanent placement and adoption of the child.'].) Thus the Agency does not have 'carte

blanche' to make placement decisions. [Citation.]" (In re Shirley K. (2006) 140

Cal.App.4th 65, 72.)

Here, the Agency sought to move Jasmine's placement from Esmeralda's care to

Carmen's care under section 366.26, subdivision (k). That section provides the

following: "Notwithstanding any other provision of law, the application of any person

who, as a relative caretaker or foster parent, has cared for a dependent child for whom the

court has approved a permanent plan for adoption, or who has been freed for adoption,

shall be given preference with respect to that child over all other applications for adoptive

placement if the agency making the placement determines that the child has substantial

emotional ties to the relative caretaker or foster parent and removal from the relative

caretaker or foster parent would be seriously detrimental to the child's emotional well-

being." (Italics added.) Thus, the Agency sought to deny Esmeralda the caretaker's

preference under section 366.26, subdivision (k), by putting forth evidence it suggested

supported its determination that Jasmine did not have substantial emotional ties to

11 Esmeralda and changing Jasmine's placement would not be detrimental to Jasmine's

emotional well-being.

Selene and the Agency contend that the court applied a best interest standard to

review the Agency's placement decision rather than the proper inquiry of whether the

Agency abused its discretion. Based on our review of the record, although the juvenile

court repeatedly referenced Jasmine's "best interest," it undoubtedly found the Agency

acted arbitrarily or capriciously in making its placement decision. The juvenile court

commenced its ruling with a recitation of the Agency's position regarding the court's

limited role in reviewing the Agency's determination under section 366.26, subdivision

(k). The court then employed the Agency's proffered standard.

The juvenile court found the Agency failed to "employ a fair informed method"

for making its placement recommendation. Specifically, the court found the Agency

presented an insufficient factual basis for its opinions that it would not be detrimental to

remove Jasmine from Esmeralda's care and Jasmine did not have substantial emotional

ties to Esmeralda. In rendering its findings, the juvenile court stated, the Agency did not

engage in a fair process and its conclusions were based on "ludicrous assumptions and a

paucity of information." The court noted that the social worker never observed Jasmine

in Esmeralda's care beyond five 15-minute intervals when Jasmine was under the stress

of being exchanged and transported for visits. The court also found the Agency over

emphasized the need to place Jasmine close to her half siblings as Jasmine would not be

living in the same household and placement with Carmen would not ensure Jasmine

would always be in close proximity to her half siblings or would develop strong sibling

12 relationships. Additionally, the court found the social worker treated Esmeralda unfairly

by imposing a level of responsibility on Esmeralda not required or intended by the

juvenile court and subsequently portrayed Esmeralda's failure to meet the Agency's

unduly burdensome requirements as problems or failures to the court. Accordingly, the

court concluded the Agency did not employ a fair informed method in making its

placement determination.

The evidence supported the juvenile court's finding that the Agency abused its

discretion by acting arbitrarily or capriciously in making its placement decision.

According to Cota, Jasmine had attached to Esmeralda and Esmeralda's husband and

loved them. Cota's report concluded that "placement [with Esmeralda's family] has given

Jasmine a loving home environment." Despite this acknowledgement, Cota stated

Jasmine would suffer no serious harm if she was removed from Esmeralda's care. This

assessment was largely based on Cota's opinion that Jasmine had "insecure-avoidant

attachment" because she detached easily from her caregiver when she was transported for

sibling visits and easily said goodbye to her half siblings. However, Cota testified that

Jasmine cried during the first few exchanges when she had to leave Esmeralda. Further,

in her report, Cota stated, "Jasmine is eager and happy to greet [Esmeralda] (and her

family) when being returned from a sibling visit and cries for a few minutes when

separated from them to be transported to L.A." As the juvenile court aptly noted, Cota

only observed Jasmine interact with Esmeralda and Esmeralda's family for five to ten

minutes at a time when Cota was either picking Jasmine up or dropping her off. Cota

13 never requested an appointment with Esmeralda and Esmeralda's family to observe their

relationship with Jasmine.

Additionally, the Agency faulted Esmeralda for alleged failures never required by

the court. For example, although the juvenile court did not require Esmeralda to call the

Agency weekly, the Agency criticized Esmeralda for not doing so. The court merely

stated it would like Esmeralda to speak with the Agency weekly. It did not specify

whether the Agency or Esmeralda should make those calls. Similarly, the Agency stated

Esmeralda was "resistant to the requests of the Agency in respect to the sibling visits."

However, Esmeralda always complied with transporting Jasmine for sibling visits.

Based on our review of the record, the juvenile court employed the proper

standard in reviewing the Agency's placement determination and the court's findings were

supported by substantial evidence.

III. Sibling Relationship Exception to Termination of Parental Rights

Selene contends the sibling relationship exception of section 366.26, subdivision

(c)(1)(B) applied to preclude termination of parental rights. She asserts the record shows

Jasmine has a strong, beneficial relationship with her half siblings and terminating that

relationship would be detrimental to Jasmine.

Adoption is the permanent plan favored by the Legislature. (In re Autumn H.

(1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that

a child is adoptable, it becomes the parent's burden to show that termination of parental

rights would be detrimental to the child because of a specified statutory exception to

termination of parental rights and adoption. (Id. at p. 574.) The sibling relationship

14 exception to terminating parental rights applies when the juvenile court finds termination

of parental rights would substantially interfere with the child's sibling relationship and the

severance of the relationship would be so detrimental to the child as to outweigh the

benefits of adoption. (§ 366.26, subd. (c)(1)(B)(v); In re L. Y. L. (2002) 101 Cal.App.4th

942, 951-952.) The purpose of this exception is to preserve long-standing sibling

relationships that serve as "anchors for dependent children whose lives are in turmoil."

(In re Erik P. (2002) 104 Cal.App.4th 395, 404.)

Factors to be considered in determining whether this exception applies include

(1) whether the siblings were raised in the same home, (2) whether they shared

significant common experiences or have existing close and strong bonds, and (3) whether

ongoing contact is in the child's best interests, including his or her long-term emotional

interests, as compared to the benefit of adoption. (§ 366.26, subd. (c)(1)(B)(v).) "[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.)

We review a juvenile court order declining to apply an exception to termination of

parental rights and adoption for substantial evidence. (In re L. Y. L., supra, 101

Cal.App.4th at p. 947.) We do not evaluate the credibility of witnesses, reweigh the

evidence, or resolve evidentiary conflicts. (Ibid.) Rather, we draw all reasonable

inferences in support of the juvenile court's findings, consider the record most favorably

to the juvenile court's order, and will affirm the order if it is supported by substantial

evidence even if other evidence supports a contrary conclusion. (Ibid.)

15 Here, Jasmine was only two years old at the time of the section 366.26 hearing.

She undoubtedly enjoyed spending time with her half siblings and often had a difficult

time leaving them at the end of visits. However, Cota testified that based on her

observations of Jasmine during sibling visits, maintaining the sibling relationships would

not outweigh the benefits Jasmine would receive from adoption. According to Cota,

Jasmine had three placement changes since she was born and adoption would offer her

beneficial stability and permanency.

This evidence amply supported the juvenile court's conclusion that the sibling

relationship exception to terminating parental rights did not apply. Although Jasmine

lived with her half siblings for a short time after she was born, she was not raised with

them for the majority of her young life. Jasmine had continued contact with her half

siblings after her birth. However, the trial court reasonably could infer the experiences

Jasmine had with her half siblings as an infant and toddler would not be as meaningful to

her as to her older half siblings. (In re Valerie A., supra, 152 Cal.App.4th at p. 1013.)

Further, "the court reasonably could determine [Jasmine's] long-term emotional interests,

due to [her] age[] and needs, were better served by the permanency of adoption rather

than by continued sibling contact." (Ibid.)

In view of Jasmine's circumstances and her age, the record supports the juvenile

court's conclusion that Jasmine's long-term emotional interest would be better promoted

by adoption then by maintaining sibling relationships. (§ 366.26, subd. (c)(1)(B)(v).)

16

DISPOSITION

The judgment is affirmed.

MCINTYRE, J.

WE CONCUR:

MCCONNELL, P. J.

MCDONALD, J.

17