Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. CK60544, Albert J. Garcia, Referee (pursuant to Cal. Const, art. VI, § 21).
Karen B. Stalter, under appointment by the Court of Appeal, for Objector and Appellant Yazmin G.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kirstin J. Andreasen, Assistant County Counsel for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
The juvenile court terminated Theodora M.’s (mother) parental rights to two-year-old Dulce G. under Welfare and Institutions Code section 366.26. Yazmin G., Dulce’s now 18-year-old sister, appeals from the juvenile court’s order terminating mother’s parental rights to Dulce contending that the “judicial interpretation” of the sibling relationship exception under section 366.26, subdivision (c)(1)(E) (section 366.26(c)(1)(E)) creates an insurmountable evidentiary burden to establishing that exception not contemplated by the Legislature, and that the juvenile court erred in failing to find the sibling relationship exception. We affirm.
All statutory citations are to the Welfare and Institutions Code unless otherwise noted.
The sibling relationship exception has also been referred to as the “sibling bond exception.” (See In re Jacob S. (2002) 104 Cal.App.4th 1011, 1016.) We adopt the reference used by the California Supreme Court. (See In re Celine R. (2003) 31 Cal.4th 45, 52.)
Because Yazmin’s appeal concerns the interpretation and application of the sibling relationship exception under section 366.26(c)(1)(E) as it relates to her relationship with Dulce, the recitation of facts will center on facts relevant to that relationship.
Dulce was born in September 2005. At the time of Dulce’s birth, mother was incarcerated on charges of robbery and attempted murder. The Department of Children and Family Services (Department) filed a petition under section 300, subdivisions (b) and (g) based on mother’s failure to make a plan for Dulce’s care. In addition to Dulce and Yazmin, mother has five other children, including two adult children, Miguel and Jesus. According to mother, the children’s father, to whom she is not married, lives in Mexico.
According to the Jurisdiction/Disposition report, mother was convicted of mayhem and sentenced to two years in state prison with a projected release in January 2006. Mother’s incarceration ended on September 23, 2006.
Yazmin also became the subject of dependency proceedings. On July 5, 2006, the Department filed a petition under section 300, subdivisions (b), (g), and (j) alleging that mother made an inappropriate plan for Yazmin’s care and supervision by leaving Yazmin in the care of an unrelated female who was no longer caring for Yazmin; mother failed to make another appropriate plan for Yazmin’s care and supervision; and Yazmin’s sibling, Dulce, was a current dependent of the juvenile court. The juvenile court sustained the petition. Mother waived reunification services. The juvenile court found Yazmin unlikely to be adopted and ordered the Department to initiate or facilitate long-term foster care. Yazmin was placed with her brother Miguel.
On September 14, 2005, the juvenile court found that the Department established a prima facie case that Dulce was a person described by section 300. Dulce was placed in foster care with William A. and Juana A. Yazmin, Miguel, and Jesus requested to visit Dulce. A visit was arranged for October 22, 2005, but did not take place because Dulce’s siblings did not have transportation. On January 6, 2006, the juvenile court sustained the petition.
On April 8, 2006, Dulce had her first visit with Yazmin, Miguel, and Jesus. Thereafter Dulce had monitored visits with her siblings twice a month for one hour. The July 7, 2006, Status Review Report describes the visits as being, at times, inappropriate. Yazmin and her brothers reportedly played “too rough” with Dulce and/or made “negative comments such as ‘fea’ (ugly) . . . .” When Dulce cried, her siblings, at times, called her “cry-baby.” The siblings did not know how to comfort Dulce and sometimes agitated her. The report states that the siblings were young themselves and did not have parenting skills or an understanding of how to play with an infant.
The July 7, 2006, Status Review Report states that Dulce remained with her “fost-adopt” parents and was doing “very well.” The foster parents were reported to be interested in adopting Dulce if mother did not reunify with her.
The August 16, 2006, Interim Review Report recommends that family reunification be terminated because mother remained incarcerated with an unknown release date; mother’s incarceration, the lack of services provided at mother’s correctional facility, and mother’s inability to read or write made it difficult for mother to comply with the court’s orders; mother had a criminal or child abuse history; and mother was “undocumented” and might be deported after she completed her sentence. The report recommends that adoption be recognized as the permanent plan for Dulce.
The August 16, 2006, Status Review Report states that a home study for Dulce’s “fost-adopt” parents had been completed and approved. The report recommends that the matter be set for a section 366.26 hearing for selection and implementation of a permanent plan.
The November 28, 2006, Interim Review Report states that Yazmin was having bi-weekly visits with Dulce. Dulce reportedly cried at every visit and only her caregivers could calm her. The report opines that “Dulce’s attachment to her caregivers is evident in her calling them ‘mom’ and ‘dad’ and further supported in that she cries when held by mother or her siblings even though she is generally a social/friendly child. . . . It will be detrimental to Dulce’s emotional well being if she is to be removed from her caregivers.” The report recommends that family reunification be terminated as to mother and that adoption be recognized as the permanent plan for Dulce. On November 28, 2006, the juvenile court terminated mother’s family reunification services and set the matter for a selection and implementation hearing on March 27, 2007.
In an Interim Review Report dated December 21, 2006, Yazmin is reported to have said that she saw “her sister” every other Saturday. The March 27, 2007, section 366.26 report states that during the “last period of supervision,” Yazmin and Miguel had missed six out of 10 visits. As to the visits they made, they were 30 to 45 minutes late. The foster father reported that Yazmin played more with Dulce than Miguel during the visits. On about two visits, Miguel terminated the visits because Dulce was crying. The report states that William and Juana were Dulce’s only placement, that she had lived with them since birth, and that she had a “strong relationship” with them. The report reiterates, “It will be detrimental to Dulce’s emotional well being if she is to be removed from her caregivers.” The juvenile court continued the hearing under section 366.26 to June 26, 2007.
On April 25, 2007, Miguel filed a section 388 petition seeking to obtain placement of Dulce with him. Miguel’s petition states that he and Yazmin had been visiting Dulce on a “regular weekly basis and visits go well . . . . Dulce is bonded to me and Yazmin.” At the hearing of Miguel’s section 388 petition, social worker Elizabeth Nava testified she had been present for 10 visits between Dulce, Yazmin, and Miguel. During the visits, Yazmin played with Dulce. Miguel ended all of the visits early because Dulce was irritable, crying, or upset. None of the visits lasted more than 45 minutes, the shortest visit was 10 minutes, and the average visit was 20 minutes. Yazmin’s relationship with Dulce was closer than Miguel’s relationship. At the hearing, Yazmin testified that she visited Dulce on Saturdays and Tuesdays. She testified that she played with Dulce and Dulce allowed her to hold her. Toward the end of visits Dulce searched for William. Yazmin would distract Dulce by playing with her. Dulce would give Yazmin a kiss near the end of the visits. Asked to describe her bond or relationship with Dulce, Yazmin stated “She’s my little sister, and I love her a lot . . . and I don’t feel alone.” The juvenile court denied Miguel’s section 388 petition.
The May 29, 2007, Status Review Report states that Dulce continued to have monitored, bi-weekly visits with Miguel and Yazmin. The report states that during the last period of supervision, Yazmin and Miguel had missed six of a possible 16 visits. The report states, “Although mother and her siblings visit Dulce, it is clear that Dulce and her biological family have no existing strong relationship.” The report repeated its earlier conclusion that Dulce had a strong relationship with her caregivers and that it would be a detriment to her emotional well being if she was removed from them.
In an Information for Court Officer dated June 19, 2007, social worker Nava informed the juvenile court that she had learned, on June 1, 2007, that Yazmin had been hospitalized after she cut herself, apparently on her wrist. Yazmin was “evaluated for mental health.” Yazmin told the social worker that she cut herself accidentally while she was removing polish from her nails with a razor. She had dropped the razor and cut herself when she picked it up. After Yazmin was released from the hospital on June 7, 2007, she received mental health services.
The June 26, 2007, report for the section 366.26 selection and implementation hearing notes that Dulce was placed with William and Juana after she was released from the hospital following birth, that William and Juana had been Dulce’s only placement, that William and Juana loved Dulce a “great deal” and had a positive bond with her, and that Dulce referred to William and Juana as “mom” and “dad.” The report states that William and Juana had shown their ability to care for Dulce’s needs by providing consistent and appropriate care for her since her placement. The Report states that it is highly likely that Dulce would be adopted if parental rights were terminated, that her caretakers would like to adopt her, and that the adoptive home study for William and Juana had been approved and was still in good standing. The report states that during the last period of supervision, Yazmin and Miguel had missed six of a possible 16 visits. The juvenile court set the section 366.26 hearing and a petition mother filed under section 388 for contest on August 7, 2007.
The July 17, 2007, Interim Review Report states that while on summer vacation, Dulce was present for Yazmin’s visits with mother. The report notes that, at times, Dulce called out for her foster father, and Yazmin would attempt to distract her. Yazmin’s efforts would work for only a few minutes at a time.
An Interim Review Report dated August 1, 2007, reports an injury Dulce suffered during her unmonitored visit with Miguel on July 8, 2007. Dulce reportedly returned to her foster home with a large cut on her nose and her foster father took her to the doctor. Dulce’s foster father provided social worker Nava with a doctor’s report that states that “Dulce’s injury could be due to a fall and further states that there is a ‘suspicion of child neglect or abuse.’”
On July 10, 2007, social worker Nava observed that Dulce had a large scab on her nose and a bruise on the left side of her nose close to her cheek. Yazmin, who apparently was present when Dulce sustained the injury, explained to social worker Nava that Dulce was injured when she ran down the hallway of their apartment and “her toes went over her sandals” and she fell and scraped her nose. Yazmin reported that Miguel was present and saw the accident. When social worker Nava later spoke with Miguel, he stated he was in the bathroom when Dulce fell. He reported that Yazmin told him that Dulce fell as she ran in the hallway and that he thought she fell because her sandals were too big. Both Yazmin and Miguel stated that Dulce was wearing pants when she fell. Foster father told social worker Nava that Dulce had been wearing a dress and did not have any scrapes on her knees. Social worker Nava observed that Dulce did not have any marks on her hands or knees and that Dulce had worn the sandals to prior visits and that the sandals were the correct size for her feet.
Social worker Nava informed Miguel that visits would be monitored pending an investigation. Social worker Nava called the child abuse hotline, and a referral was taken. On August 1, 2007, the juvenile court ordered that visits between Dulce and Yazmin and Miguel be monitored.
The August 1, 2007, Interim Review Report stated that “the visits, especially without the presence of this CSW or foster father is emotionally and psychologically detrimental to Dulce’s well being. She cries, doesn’t want to be pulled away from foster father and fights back when taken away from foster father’s care, calling out for him. Furthermore, the family’s visits with Dulce has been well documented and is further proof that it is not in Dulce’s best interest to continue the visits. [¶] Therefore it is the department’s recommendation that the visits terminate with the family.”
At the section 366.26 hearing, Yazmin testified that she and Miguel visited Dulce on Saturdays and Sundays. When the visits first began, they lasted about 20 or 30 minutes; later they lasted an hour. At the time of the hearing, the visits lasted three hours. When Miguel and Yazmin picked up Dulce for visits, she would go through the things that they bought for her and would want to play immediately. Dulce was happy when she saw Yazmin at the start of a visit and wanted to continue playing when the visits were to end.
Only two of Yazmin’s visits with Dulce had been unmonitored. During the unmonitored visits, which took place in Miguel’s home, Dulce played in Yazmin’s room. Dulce played with Yazmin’s bears, she played ball, and she ran after a little dog. She and Yazmin listened to music, watched cartoons, and went shopping. Yazmin fed and bathed Dulce. Dulce did not cry during the unmonitored visit. Dulce called Yazmin “Jazz,” and hugged and kissed Yazmin. Yazmin testified that when Miguel told Dulce it was time to return her to her foster parents, Dulce did not want to leave. Dulce grabbed Yazmin’s hand and took her into Yazmin’s room. Dulce wanted Yazmin to close the door because she did not want to leave.
According to Yazmin, the only problem during any of the unmonitored visits occurred when Dulce fell and scraped herself on the carpet. Dulce had a “little tiny” scrape that got a “little bit red,” but did not bleed. Yazmin was afraid and picked up Dulce. Dulce wanted to continue playing. Dulce did not cry when she fell. Yazmin testified that Dulce rarely cried when they were together. When Dulce did cry, Yazmin put dolls in front of her and kissed her hands.
Describing her relationship with Dulce, Yazmin testified, “I feel very good with my sister. I have other friends who have their little sisters with them and I enjoy her with me. I have brothers here from Mexico, but it’s not the same as having my little sister around. And I have become very close to her even though I am not with her every night and I don’t spend the night with her. I want to be with her. I don’t care what I have to do.” Yazmin testified that she did not want to lose her sister and wanted Dulce to stay with her. Yazmin testified that she would go to parent classes if necessary.
Yazmin testified that the foster parents never prevented her from seeing Dulce. Asked if she had ever called the foster home to see how Dulce was doing, Yazmin testified that they told “us” to call only in case of an emergency about the visits. Later, she testified that “[t]hey answer very nice.” Yazmin testified that when she and Miguel arrived for visits, the foster father would say, “Oh, you’re back.” The foster father would “always” say that if Yazmin and Miguel did not show up on time, he would call the police. If there was an emergency or traffic, they were to call the foster father and let him know.
Miguel testified that in the beginning, his relationship with Dulce was a little strained because Dulce acted as if she did not know him. Miguel testified that “little by little,” Dulce has become more familiar with “us.” According to Miguel, when Dulce “sees the park and she likes to play and she give us a kiss. And she’s aware of us. And is acquainted with us now.” Dulce was happy during the visits.
The Department’s attorney argued that the sibling relationship exception under section 366.26(c)(1)(E) did not apply. Dulce and her siblings had never lived together as Dulce was detained one week after she was born and the only common experiences Dulce and her siblings shared were their weekly visits. The Department’s attorney offered her belief that Dulce enjoyed her visits, “particularly” with Yazmin, but argued that that fact was insufficient to establish the section 366.26(c)(1)(E) exception. The Department’s attorney also argued that insufficient evidence had been presented that ongoing contact between Dulce and her siblings would be in Dulce’s best interests. Dulce had lived with her foster parents for almost two years, Dulce considered them to be her parents, and Dulce was quite bonded to them. Dulce’s attorney stated his belief that Yazmin had established a “clear bond” with Dulce. He argued, however, that the benefits of permanence overcame the sibling relationship exception.
Yazmin’s attorney argued that the court should find that the sibling relationship exception applied because Yazmin had gone to “extraordinary lengths” to develop a relationship with Dulce. Yazmin’s attorney argued that Yazmin had taken on the role of Dulce’s parent as well as her sibling – she bathed Dulce, she fed Dulce, and she comforted Dulce when Dulce was hurt. Yazmin’s attorney acknowledged that Yazmin “may not share significant common experiences where they lived in the same house, but they share the same DNA. There’s an intangible intimate relationship bond between Dulce” and Yazmin. Dulce recognized Yazmin and looked to her for love and support.
The juvenile court found that there was clear and convincing evidence that Dulce was likely to be adopted. The juvenile court found that no exception to adoption applied and terminated parental rights.
DISCUSSION
Yazmin challenges the juvenile court’s determination that the sibling relationship exception under section 366.26(c)(1)(E) did not apply to preclude the termination of mother’s parental rights. Yazmin contends that the “judicial interpretation” of section 366.26(c)(1)(E) creates an insurmountable evidentiary burden not contemplated by the Legislature. Yazmin also contends that the juvenile court erred in failing to find the sibling relationship exception.
A. Standard of Review
Challenges to a juvenile court’s determination under section 366.26(c)(1)(E) are governed by the substantial evidence standard of review. (See, e.g., In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017; In re Megan S. (2002) 104 Cal.App.4th 247, 250-251.) Under a substantial evidence standard of review “‘“the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.’ [Citation.]” (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on other grounds as stated in Eller Media Co. v. City of Los Angeles (2001) 87 Cal.App.4th 1217, 1219-1220, fn. 3.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
B. The Sibling Relationship Exception
When possible, adoption is the preferred permanent plan. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If a dependant child cannot be returned to her parents and is likely to be adopted if parental rights are terminated, the juvenile court must select adoption as the permanent plan unless it finds that the termination of parental rights would be detrimental to the child under one of five exceptions specified in section 366.26, subdivision (c)(1). (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) These statutory exceptions “permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (In re Celine R. (2003)31 Cal.4th 45, 53.) One such exception to the termination of parental rights is the sibling relationship exception in section 366.26(c)(1)(E). (In re Celine R., supra, at pp. 53-54.) The sibling relationship exception provides that parental rights will not be terminated and a child freed for adoption if “[t]here would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, 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.” (§ 366.26(c)(1)(E).)
“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.’ (In re Daniel H. [(2002)] 99 Cal.App.4th [804,] 813, quoting § 366.26, subd. (c)(1).)” (In re Celine R., supra, 31 Cal.4th at p. 61.)
In In re L.Y.L., supra, 101 Cal.App.4th 942, the court of appeal held that in applying section 366.26(c)(1)(E) a juvenile court is “first to determine whether terminating parental rights would substantially interfere with the sibling relationship by evaluating the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds. (§ 366.26, subd. (c)(1)(E).) 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. (§ 366.26, subd. (c)(1)(E).)” (In re L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.)
Yazmin contends that the “subsequent balancing test” applied by the court in In re L.Y.L. – i.e., weighing the child’s interest in continuing a sibling relationship against the benefit of adoption – is not contained in section 366.26(c)(1)(E.) Yazmin argues that this “judicially-created balancing test pits the interests of children in maintaining their sibling relationships against their interest in gaining permanence through adoption. Against the entrenched ideology that adoption is preferable, sibling relationships consistently lose. The judicially-created balancing test balances a real sibling relationship against an idealized interest in stability. This balancing test presents an insurmountably high bar because reality is being balanced against an ideal; the balancing test rendered illusory the very protection that the Legislature sought to offer siblings in dependency proceedings.” According to Yazmin, the Legislature intended section 366(c)(1)(E) to be a “workable exception to adoption, triggered whenever there was sufficient evidence presented that adoption would substantially interfere with a sibling relationship.”
The decision in In re L.Y.L., supra, 101 Cal.App.4th 942 does not add a “balancing test” to a section 366.26(c)(1)(E) determination not contained in the plain language of the statute. As set forth in In re L.Y.L., section 366.26(c)(1)(E) directs the juvenile court to first determine if a sibling relationship exists that would be substantially interfered with if parental rights are terminated. (In re L.Y.L, supra, 101 Cal.App.4th at p. 952.) If such a relationship exists and would be interfered with by the termination of parental rights, section 366.26(c)(1)(E) then directs the juvenile court to weigh the detriment the dependent child would suffer against the benefits of legal permanence through adoption. (In re L.Y.L, supra, 101 Cal.App.4th at p. 952.) Indeed, the balancing test that Yazmin challenges here has been approved by the California Supreme Court in In re Celine R., supra, 31 Cal.4th 45. In In re Celine R., the Supreme Court stated, “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.” (In re Celine R., supra, 31 Cal.4th at p. 61, citing In re L.Y.L., supra, 101 Cal.App.4th at pp. 952-953.)
As for Yazmin’s contention that the juvenile court erred in failing to find the sibling relationship exception under section 366.26(c)(1)(E), substantial evidence supports the juvenile court’s determination that the sibling relationship did not apply. “To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. [Footnote.]” (In re L.Y.L., supra, 101 Cal.App.4th at p. 952.) Here, the evidence fails to show such a significant sibling relationship or detriment – the first part of the test under section 366.26(c)(1)(E). Dulce and Yazmin were not raised in the same home and have never lived together – Dulce was placed with her foster parents within days of her birth. (Ibid.) Dulce does not share significant common experiences with or have a close and strong bond with Yazmin – for the most part Dulce and Yazmin at most had monitored visits twice a week that lasted less than an hour. (Ibid.) Dulce’s long-term emotional interest is in remaining with her foster parents – Dulce is closely bonded with her foster parents who have been Dulce’s only placement and who Dulce refers to as “mom” and “dad.” (Ibid.) Having held that the evidence failed to show a significant sibling relationship, we need not weigh the detriment Dulce would suffer by the severance of her relationship with Yazmin against the benefits of legal permanence through adoption. (In re L.Y.L, supra, 101 Cal.App.4th at p. 952.)
We note that although Yazmin may well have suffered a detriment upon the severance of her sibling relationship with Dulce, the juvenile court was to consider the possible detriment and benefits to Dulce when considering the application of the section 366.26(c)(1)(E) exception, not to Dulce’s sibling. (In re Celine R., supra, 31 Cal.4th at p. 54 [“Nothing in the statute suggests the Legislature intended to permit a court to not choose an adoption that is in the adoptive child’s best interest because of the possible effect the adoption may have on a sibling”].)
DISPOSITION
The order is affirmed.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.