Opinion
F077265
08-31-2018
In re GIOVANI G., et al., Persons Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. L.G., Defendant and Appellant.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Deanne H. Peterson, County Counsel, John A. Rozum and Carol E. Helding, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JJV069952A-B)
OPINION
APPEAL from orders of the Superior Court of Tulare County. Robin L. Wolfe, Judge. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Deanne H. Peterson, County Counsel, John A. Rozum and Carol E. Helding, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
On July 19, 2016, the Tulare County Health and Human Services Agency (Agency) filed a juvenile dependency petition, pursuant to Welfare and Institutions Code section 300, to detain eight-year-old Giovani G. and two-month-old Madison G. from the custody of L.G. (mother). Mother received reunification services, failed to reunify with the children, and her services were terminated after a review hearing on August 30, 2017. The case was set for a permanency planning hearing. On March 14, 2018, the juvenile court found the minors were adoptable, there would be no detriment to them if adoption was chosen as the permanent plan, and the court terminated mother's parental rights to both children.
All statutory references are to the Welfare and Institutions Code unless otherwise designated.
The minors each have a different biological father. Neither father is a party to this appeal.
On appeal, mother contends the juvenile court abused its discretion in failing to find the beneficial parent-child relationship exception to the statutory preference to adoption applicable to her relationship with Giovani and to establish a legal guardianship for him. Mother contends the juvenile court misunderstood and misinterpreted the law concerning how to apply a legal guardianship to Giovani. We disagree with mother's interpretation of the juvenile court's rulings. Alternatively, we find any error harmless and affirm the orders of the juvenile court.
Mother does not challenge the termination of her parental rights to Madison.
FACTS AND PROCEEDINGS
Detention , Jurisdiction , and Disposition Hearings
On July 17, 2016, the Agency detained Giovani and Madison after a Visalia police officer arrested mother for hitting Giovani with a belt, bruising his left side below his ribs. The bruise was purple and blue in color with red lines outlining the bruise. Mother's residence was in a deplorable condition with debris throughout the house, feces clogging the bathtub, and both children infested with lice. Food was left out and there was mold in the refrigerator. Mother had failed to refill Giovani's ADHD medication prescription.
On July 19, 2016, the Agency filed a petition alleging mother had inflicted serious physical harm on Giovani and that Madison was also at risk of serious physical harm or illness. (§ 300.) The petition further alleged the home was in deplorable condition, both children were infested with lice, mother neglected to refill Giovani's medication, and mother was incarcerated for physically abusing Giovani. The children were detained on July 20, 2016. The juvenile court ordered twice weekly supervised visits for mother after her release from jail but no visitation while mother was incarcerated. A Court Appointed Special Advocate (CASA) volunteer was appointed for the children.
An amended petition was filed adding an allegation concerning Giovani's father. The allegations directed to mother remained the same.
A Child Abuse Response Team interview was held with Giovani. Giovani told investigators his mother hit him frequently. When Giovani tried to pull a blanket over himself, mother removed it and hit him with a belt. When mother hit Giovani, she would give him cuts. Mother also pinched him on his leg and arm. In the most recent incident, after mother hit Giovani with a belt, he fell off the bed and she hit him again with the belt. The children's caretaker told an investigator that Madison did not appear to have been bathed in a long time. Mother told Giovani to feed Madison and to change her diaper.
Mother admitted hitting Giovani with a belt, but denied doing so in the past. Mother also denied spanking him with her hand. Mother reported suffering from seizures and depression. During questioning, mother demonstrated a degree of difficulty with her cognitive processing. Mother had received developmental services in the past but did not explain the specific nature of those services. Mother said that Giovani had ADHD and was prescribed medication to alleviate his symptoms. Mother was aware that Giovani's hyperactive behaviors increased significantly if he did not regularly take his medication. Mother told the social worker that she wanted to keep Madison because she was still small, but that she did not want to reunify with Giovani because she believed he did not want to live with her. Mother alluded to her belief that Giovani did not like her.
The social worker talked to Giovani at his caregivers' home. Giovani said he had been evaluated for psychotropic medication and had two prescriptions. Giovani preferred taking his medications because they helped him control his behavior. The social worker described Giovani as being articulate, intelligent, and insightful. The caregivers reported that Giovani showed excessive concern for Madison. He would run into the room if she began to cry, concerned she was being hurt, and ask if something was wrong with her. Both children were physically healthy.
In the report for the jurisdiction/disposition hearing, the Agency recommended the court order supervised visits for mother once a week for one hour with discretion granted to the Agency to increase the length and frequency of visits, as well as to allow unsupervised or overnight visits. The Agency's proposed plan for reunification services to mother included a child abuse intervention program, counseling services, Central Valley Regional Center (CVRC) services, parenting classes, and first aid classes. Mother agreed with this plan for services and denied a need for any additional services or supports.
At the jurisdiction hearing on August 24, 2016, mother waived her right to a contested hearing on the allegations and submitted the matter for the juvenile court's determination based on the social workers' reports. The court found the allegations in the amended petition true. At the disposition hearing on August 31, 2016, the juvenile court ordered the children removed from mother's custody and reunification services for mother.
Six-Month Review Hearing
Because mother had been partially compliant with services, the Agency recommended that reunification continue at the six-month review hearing. She was consistent with visitation but had been unable to address the issue of engagement in physical abuse. Mother was a CVRC client and was being supported by a case manager. Mother failed to take responsibility for the physical abuse she inflicted on Giovani. Mother was participating in in-home parenting classes, with the material being broken down into smaller components to assist mother with her intellectual disability. At times mother did not seem to fully understand the Agency's expectations for her reunification with her children. Mother did not attend her assessment for the child abuse intervention program until December 2016 and was not allowed to enter the program until she had received therapy for depression.
Mother continued to blame the current situation on Giovani, claiming he was extremely hyper and out of control. She said, "I don't know if he wants to come back, it depends if he does." Giovani reported a history where his home life was unstable and mother was not his primary care provider. Giovani explained that in the past, mother had given him up or left him with relatives for months or years at a time. He reported living with his maternal grandmother in Texas and with his paternal grandmother in Tulare for two to four years. In 2012, mother signed a notarized document stating that she gave up all parental rights to Giovani, and giving his father sole legal and physical custody.
In the foster home, Giovani's behaviors calmed and he was learning to cope with past trauma. He was in therapy and doing well. He was taking medication for ADHD. Giovani suffered from anxiety and his difficult behaviors were worse on Mondays, the days he visited mother. Other days, his behaviors were not a problem.
Visits with mother and Giovani were described as "awkward" as Giovani interacted minimally with mother. Mother was aware of Giovani's increased anxiety, but reacted by focusing her attention on Madison. The social worker reported that mother did love her children. Madison cried uncontrollably at visits and mother could not console her. Madison calmed quickly, however, when others held her. Mother once said she only wanted to pick up Madison when she does not cry. Mother always asked to have the foster mother take Madison to the doctor to see she if was crying because she was ill. Staff believed the crying was due to the lack of her bond with mother.
Giovani, who was now nine years old, told social workers he wanted to reduce his visits with mother because he worries daily prior to visits. Giovani also said that he was certain he did not want to reunify with his mother. Giovani did not feel comfortable in visits alone with mother and often asked both the social worker and his CASA volunteer to stay with him during visits. The foster parents reported that Giovani was upset before visits and wanted visits reduced to once a month. Giovani stated on numerous occasions that he wanted to be adopted by his foster family. The Caregiver Information Form filed by the foster parents indicated that Giovani was parentified, thinking he had to do everything for Madison. When told the foster parents would take care of her, Giovani replied he was used to feeding, changing and making her bottles. Every time Madison cried, he nearly suffered a panic attack.
The CASA volunteer's report indicated mother's initial visits with the children were awkward. Visits were more relaxed when mother started bringing snacks and toys that Giovani enjoyed. There did not appear to be a deep connection between Giovani and mother. They did not talk about memories, but only about the toys that mother brought. During one visit, mother told Giovani that he needed to choose between her and the foster parents and whether he wanted to be adopted. Giovani was confused by this and asked the foster mother after the visit to explain what adoption was. When the CASA volunteer asked Giovani to name the important people in his life, he named his foster mother and father.
At the six-month review hearing on February 15, 2017, the juvenile court ordered that reunification services for mother continue. Although the juvenile court noted the visits caused the children stress, it continued visitation and reduced the number of visits to one hour twice a month.
Twelve-Month Review Hearing
In July 2017, the Agency prepared its report for the twelve-month review hearing. The Agency recommended that reunification services be terminated and a section 366.26 hearing be scheduled to consider a permanent plan of adoption. Mother was living in a CVRC home and receiving services including transportation, housing, and case management. She completed parenting classes and was attending counseling. Mother was enrolled in a child abuse intervention program, but had attended only six out of 52 classes and was at risk of being discharged. Although mother had been receiving reunification services for twelve months, she had made minimal progress in addressing the safety concerns. The social worker described mother as being only partially compliant with her case plan. Although mother needed to place her focus on her children rather than romantic relationships, mother had been involved in three different abusive and unhealthy relationships.
Giovani's therapist reported that as trust was built, Giovani was more open to discussing his past trauma and relationship with mother. In late June 2017, Giovani expressed to his therapist an overall lack of trust in mother as a caregiver and said he was not interested in conjoint therapy with her. Both children were thriving in their foster family. Giovani's hyperactive behaviors had calmed down and he was learning to cope with his past trauma. Giovani continued to unequivocally state that he did not want to reunify with mother. Giovani said he felt unsafe returning to her and believed she could not care for him or Madison. He wanted stability in his life which was something he did not believe his mother could provide. Although Giovani wanted to be adopted by his foster parents, he also wanted to maintain a relationship with his mother and have visits with her. Giovani was beginning to enjoy his visits with mother which remained supervised. They usually played board games and talked about everyday events. Madison continued to cry during visits.
An adoption assessment report found both children to be adoptable and recommended they be adopted together by their foster parents. The assessment report noted the children would not benefit from continuing the relationship with the birth mother through regular visitation.
The CASA volunteer's report for the twelve-month review hearing noted the children were loving and close to one another. The CASA volunteer observed that Giovani played with Madison in the foster home and, during visits with mother, he would try to entertain Madison to keep her from crying. Giovani would play during visits while mother watched him. The CASA volunteer noted concerns about mother's ability to care for the children, the children's lack of a bond with her, and her slow progress. The CASA volunteer agreed with the Agency that termination of reunification services was in the best interests of the children.
At the review hearing, the court terminated mother's reunification services, ordered visitation, and set the case for a section 366.26 hearing.
Permanency Planning Hearing
In January 2018, the Agency prepared its report for the permanency planning hearing. The Agency recommended mother's parental rights be terminated, the parental rights of the children's fathers be terminated, and adoption of both children by the foster parents be the permanent plan. The foster parents were interested in adopting both children but were not interested in a guardianship for either child. The care providers had expressed their desire to adopt both children on several occasions.
Giovani, who was then ten years old, expressed that he really wanted to be adopted by his care providers, felt as though they treated him as their own son, and was excited about being part of a family. When Giovani was asked if he wanted to be present at the permanency planning hearing, he replied, "No." When asked who he thought were the significant people in his life, Giovani replied his sister, his foster parents, and the foster parents' extended family. When asked if anyone else was important in his life that he was not having contact with, Giovani replied, "No."
Mother continued with visitation. Giovani said he enjoyed visits with his mother, but had come to the realization he was being adopted and was no longer interested in ongoing visitation with mother. He still enjoyed visiting her. Madison continued to cry during visits.
The social worker observed that both children were thriving in their placement and were stable and happy with the foster parents. Although mother regularly visited the children, it did not appear her situation would change. It was in both children's best interests to be adopted into a stable, loving, and permanent home. The identified adoptive parents are actively involved in the children's lives and have a strong commitment to them.
The permanency planning hearing took place on March 14, 2018. The juvenile court took judicial notice of the case file. Mother testified that Giovani lived with her on and off. Giovani lived with his grandmother until he was five years old because according to mother, he chose to do so. When Giovani was five, he decided to live with mother. Giovani would sometimes stay with his father at the paternal grandmother's home for several days at a time. Later mother said Giovani came back to live with her when he was seven years old. On cross-examination, mother seemed confused and could not remember just when and for how long Giovani had lived with her. When he was born, she was living with her grandmother who helped her care for Giovani.
When Giovani lived with her, she took him to the park, to the store and would buy him things. Mother said that during visits she played Uno with Giovani or let him color. They talked about school, but she did not help him with homework. They did not talk about problems he is having. Giovani sometimes just wanted to be by himself and watch TV or play alone. Giovani told mother he wanted to continue seeing her.
The CASA volunteer, Sandra Carlos, testified she visited the children, particularly Giovani, biweekly and took him on outings. Carlos attended mother's visits with Giovani for nearly two years. Carlos observed Giovani to have "more of an acquaintance relationship versus someone with a strong bond with their mother." Madison was pretty much the same over the course of the years — crying "frantically" during visits. Most of the time, visits centered around comforting Madison. The parenting teacher and social worker would try to give mother tips on comforting Madison and Giovani would help by distracting Madison with toys.
When Carlos was asked what Giovani had said most recently about visits, she replied: "He clearly states he wants to be where he's at. And as far as visitations, he would like a relationship with the mother, but in my observation, if the visit is interrupted by basketball, he would prefer basketball. In my observation, it appears that he is sensitive to her feelings and that interrupts what he truly feels." When Carlos was asked on cross-examination if Giovani knew about the permanent plan for adoption, she replied, "He makes sure it is happening almost every time he talks to me." Giovani understood how adoption would affect his ability to visit mother. Giovani knew that he would not have a "right" to visit with his mother after termination of parental rights. He knew the caretakers love him and would honor his wishes regarding visitation with mother.
Counsel for mother asked Carlos if the caretakers said they would allow Giovani to visit. Carlos replied: "The caretakers have mentioned to me that they would honor what his wishes would be in regards to that. Him specifically, not Madison." The court asked Carlos if she had talked to Giovani about guardianship. She replied, "no, because that wasn't something that was on the table." When the court asked if Carlos had discussed continued visitations with Giovani, Carlos said Giovani goes back and forth, sometimes saying he wants visits and sometimes saying he does not.
In the Agency's closing argument, county counsel noted the children had been dependents for 18 months, were both adoptable, and had both been in the same home since they were removed from mother's custody. The care providers were willing to adopt both children. The Agency argued the presumed plan was for adoption absent an applicable exception to that statutory preference. Anticipating mother would argue the beneficial parent-child relationship exception should apply to this case, the Agency noted that for that exception to apply the parent has the burden to prove she has maintained regular visitation and that it would be detrimental to the children for parental rights to be terminated. The parent "would have to prove that as to each child proposed to be adopted, and it's not detriment to the mother if the mother's parental rights were terminated, but actual detriment or harm to the child if the parental rights were severed."
The Agency concluded mother had not met the necessary burden of proof for the beneficial parent-child relationship exception to apply. The Agency conceded mother had consistently visited the children, but had failed to present evidence that it would be detrimental to Madison to terminate parental rights. As to Giovani, the Agency noted that although Giovani was ten years old, he had not lived exclusively with mother as his parent for about seven years because he lived primarily with other relatives. The Agency became involved in this case shortly after Giovani moved to California to live with mother. The Agency pointed out Carlos's observation that Giovani was looking for someone to connect with. The Agency concluded mother failed to meet her burden to prove Giovani would be harmed were her parental rights to him terminated.
Counsel for the children argued Madison never formed a bond with mother and throughout the proceedings Giovani had been uninterested in reunifying with mother. Giovani was possibly interested in regular visits with mother. The children's counsel noted Carlos's observation that if Giovani's visit was interrupted by basketball, he preferred to play basketball. Counsel observed that although Giovani enjoys visits with mother, he realized he was going to be adopted. The social workers' reports noted Giovani was thriving in the foster parents' custody. Regarding the permanent plan, counsel made separate arguments for Giovani and Madison.
Mother's counsel argued that mother's parental rights as to Giovani should not be terminated so that he could still visit her. Counsel then argued that Madison was differently situated, but were parental rights for Giovani not terminated, they should not be terminated for Madison either because do so would sever the sibling relationship. Mother's counsel believed that as to Giovani, it was in his best interests that mother's parental rights not be terminated because the beneficial parent-child relationship exception applied to him.
The juvenile court stated: "The [c]ourt, in this particular case, finds that Giovani does have a bond with the mother in that he wants visits to continue. It's clear that they enjoy the visits together, that the mom engages him. They play together." The court found Madison did not have a bond with mother. The court noted the children were thriving in the foster parents' home. The court explained: "In order for the [c]ourt to grant a legal guardianship, I would have to find that the beneficial relationship was not only with Giovani, but also with Madison, and based on the evidence before me the [c]ourt can't do that. I do find that there is a bond, as I stated, a beneficial bond with Giovani and the mother, but I don't find that it is so great that it would be a detriment to both children if the [c]ourt wouldn't allow them to be adopted at this time." The court terminated mother's parental rights to both children.
BENEFICIAL PARENT-CHILD RELATIONSHIP EXCEPTION
Introduction
Mother contends the juvenile court misunderstood the law because it considered the effect on Madison of selecting a guardianship for Giovani as it considered the strength of the parent-child relationship between mother and Giovani. Mother argues that in rejecting guardianship for Giovani as an alternative to adoption, the court should have considered each sibling separately. We disagree with mother's interpretation of the juvenile court's ruling because the court's findings were based on the best interests of both children, who were to be adopted as a sibling group by the same foster parents. Even if the juvenile court misinterpreted the law, any error was harmless.
Preference for Adoption as Permanent Plan
Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) At a section 366.26 hearing, the juvenile court is charged with determining a permanent plan of care for the child. (In re D.O. (2016) 247 Cal.App.4th 166, 173 (D.O.).) The court may order one of three alternatives: adoption, legal guardianship, or long-term foster care. Adoption necessarily involves termination of the biological parents' legal rights to the child. Once the court determines by clear and convincing evidence that a child is likely to be adopted, the burden shifts to any party opposing adoption to show termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). If the children are likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53 (Celine R.).)
Although section 366.26, subdivision (c)(1)(B) acknowledges termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.).) It is the parent's burden to show termination would be detrimental under one of the exceptions. There is a strong preference for adoption. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
For the section 366.26, subdivision (c)(1)(B)(i) exception to apply, the relationship between parent and child must promote the well-being of the child to such a degree that it outweighs the well-being of the child in a permanent home with adoptive parents. The juvenile court balances the strength and quality of the natural parent-child relationship in a tenuous placement against the security and sense of belonging a new family would confer. If severing the natural parent-child relationship would deprive the child of a substantial and positive emotional attachment so that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
Interactions between the natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, comfort, affection, and stimulation. The relationship arises from day-to-day interaction, companionship, and shared experiences. The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
The factors to consider when testing whether a parental relationship is important and beneficial include the child's age, the portion of the child's life in the parent's custody, the positive or negative effect of interaction between the parent and child, and the child's particular needs. The relationship must be such that the child would suffer detriment from its termination. (In re Angel B. (2002) 97 Cal.App.4th 454, 467.)
Standard of Review in Dependency Appeal
Deferential Review
There is a split of authority concerning the precise standard of review in a dependency appeal. (See In re K.P. (2012) 203 Cal.App.4th 614, 621-622 and In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 (Bailey J.) [hybrid combination of substantial evidence and abuse of discretion standards; applying substantial evidence test to determination of existence of a beneficial sibling relationship and the abuse of discretion test to issue of whether that relationship constitutes a compelling reason for determining termination would be detrimental to the child]; Autumn H., supra, 27 Cal.App.4th at p. 576 [substantial evidence test: "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order"]; Jasmine D., supra, 78 Cal.App.4th at p. 1351 [abuse of discretion test].)
The practical differences between these standards of review are not significant as they all give deference to the juvenile court's judgment. (See Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Evaluating the factual basis for the juvenile court's exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. We give broad deference to the trial judge. The reviewing court should interfere only if under all the evidence viewed most favorably in support of the trial court's action, it finds no judge could reasonably have made the order. (Ibid.) Similarly, a substantial evidence challenge to the juvenile court's failure to find a beneficial parental relationship or a sibling relationship cannot succeed unless the undisputed facts establish the existence of those relationships, since such a challenge amounts to a contention the "undisputed facts lead to only one conclusion." (In re I.W. (2009) 180 Cal.App.4th 1517, 1529; see Bailey J., supra, 189 Cal.App.4th at p. 1314.)
To the extent we draw inferences from the record, we may do so only as to those legitimate inferences that uphold the trial court's decision. (In re Laura F. (1983) 33 Cal.3d 826, 833; In re Angelia P. (1981) 28 Cal.3d 908, 924.) We view the evidence in the light most favorable to the juvenile court's judgment, contradicted or uncontradicted, and in assessing the evidence, we do not reweigh it. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) Where there is conflicting evidence, we indulge all reasonable inferences in support of the trial court's finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.)
De Novo Review
Questions of law that do not involve resolution of disputed facts are subject to de novo review, giving no deference to the juvenile court's ruling. (R.H. v. Superior Court (2012) 209 Cal.App.4th 364, 371, citing Riverside County Dept. of Public Social Services v. Superior Court (1999) 71 Cal.App.4th 483, 486.) To the extent a party contends the juvenile court erroneously construed the factor it was required to consider under an exception to the preference for adoption, reviewing courts have reviewed the claim de novo. (D.O., supra, 247 Cal.App.4th at p. 174; In re A.L. (2010) 190 Cal.App.4th 75, 78.) To the extent a party challenges the juvenile court's ultimate determination, we apply the substantial evidence standard to the juvenile court's underlying factual determinations, and the abuse of discretion standard to the court's weighing of competing interests. (D.O., supra, 247 Cal.App.4th at p. 174; In re Anthony B. (2015) 239 Cal.App.4th 389, 395.)
Considering Each Sibling Separately
Mother contends the juvenile court misunderstood the law because it stated: "In order for the [c]ourt to grant a legal guardianship, I would have to find that the beneficial relationship was not only with Giovani, but also with Madison, and based on the evidence before me the [c]ourt can't do that." After making that finding, the court made a second finding: "I do find that there is a bond, as I stated, a beneficial bond with Giovani and the mother, but I don't find that it is so great that it would be a detriment to both children if the [c]ourt wouldn't allow them to be adopted at this time." Mother argues the court failed to consider Giovani separately from Madison in evaluating whether he should have been placed in a guardianship because of the strength of their parent-child bond. Mother further contends this alleged error compels de novo review of the juvenile court's ruling.
When the juvenile court is considering the sibling-bond exception to adoption, it must evaluate this exception from the perspective of the child who is being considered for adoption. The juvenile court should not consider the impact of adoption on a sibling who is not being adopted. (Celine R., supra, 31 Cal.4th at pp. 54-55; D.O., supra, 247 Cal.App.4th at p. 174.) Although the focus of the sibling relationship exception is the impact on the adoptive child and not the siblings, evidence of the siblings' relationship with an adoptable child may be relevant as indirect evidence of the effect of adoption on the adoptive child. (Celine R., supra, 31 Cal.4th at p. 55 [consideration of an adoptive sibling's other sibling is not irrelevant, but the ultimate question is whether adoption would be detrimental to the adoptive child, not someone else]; D.O., supra, 247 Cal.App.4th at p. 177, fn. 5; In re Naomi P. (2005) 132 Cal.App.4th 808, 823 (Naomi P.).)
Mother acknowledges the holding of Celine R. was applied to the sibling-bond exception, but argues the reasoning of Celine R. should also apply to the beneficial parent-child relationship exception because the plain language of section 366.26, subdivision (c)(1)(B)(i) requires the juvenile court to apply this exception to each child individually; the court must evaluate the exception to "the child." There are several problems with mother's analysis of Celine R. and interpretation of the juvenile court's ruling.
Section 366.26, subdivision (c)(1)(B) provides, in relevant part: "(B) The court finds a compelling reason for determining that the termination would be detrimental to the child due to one or more of the following circumstances:
"(i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Italics added.)
The Agency correctly points out that in Celine R., the sibling-bond exception was being applied not only to an adoptable child but also to a child not being adopted. In doing so, the Celine R. court focused on the effect adoption of the adoptable child would have on the child not being adopted, a focus on the wrong child as the children themselves were not similarly situated. In contrast, both children here were in similar circumstances. Both children were adoptable, were being adopted together by the same foster parents, and neither of them had strong bonds to mother.
While the juvenile court noted Giovani had a beneficial bond with mother, it said, "I don't find [the bond] so great that it would be a detriment" to the children were they both adopted. (Emphasis added.) Thus, the juvenile court found the bond between Giovani and mother was not significant enough to override the preference for adoption. Even if the court technically should have considered each child separately, the best interests of both children in being adopted were essentially the same.
This leads to another basis for rejecting mother's interpretation of the juvenile court's ruling. Juvenile courts can consider the effects of sibling bonds in setting a permanent plan as acknowledged by Celine R. and section 361.2, subdivision (j). (Celine R., supra, 31 Cal.4th at p. 55 [consideration of an adoptive sibling's other sibling is not irrelevant, but the ultimate question is whether adoption would be detrimental to the adoptive child, not someone else]; D.O., supra, 247 Cal.App.4th at p. 177, fn. 5; Naomi P., supra, 132 Cal.App.4th at p. 823.) The juvenile court's mention of both Madison and Giovani in its two findings was consistent with an implicit finding that keeping them together as an intact sibling unit additionally supported their adoptions. As the Agency points out, the court was essentially prioritizing the close sibling bond between the children over Giovani's relationship with his mother.
Section 361.2, subdivision (j) provides: "If the court has ordered removal of the child from the physical custody of his or her parents pursuant to Section 361, the court shall consider whether there are any siblings under the court's jurisdiction, or any nondependent siblings in the physical custody of a parent subject to the court's jurisdiction, the nature of the relationship between the child and his or her siblings, the appropriateness of developing or maintaining the sibling relationships pursuant to Section 16002, and the impact of the sibling relationships on the child's placement and planning for legal permanence."
The juvenile court did not rule in a vacuum. Its ruling should be understood in the context of the procedural history and facts of the case, as well as the Agency's recommendations. In arguing that the children's permanent plan should be adoption, county counsel argued each child's position separately and did not construe the two children together. The children's counsel added that Madison had no relationship with mother and Giovani clearly wanted to be adopted. Mother's counsel also argued the adoptability of each child separately. She argued that parental rights for Giovani should not be terminated so that Giovani could maintain visitation with mother. Counsel then argued that Madison was differently situated, but if parental rights for Giovani were not terminated, then they should not be terminated for Madison because to do so would sever the sibling relationship. Only mother's counsel considered the circumstances of the two children together rather than individually during her argument to the court.
The Agency argues that mother's hearing counsel invited any error in the juvenile court's analysis. When a parent in a dependency case invites an error, the parent cannot raise the issue caused by the invited error on appeal. (In re G.P. (2014) 227 Cal.App.4th 1180, 1193-1196.) Although we do not resolve this issue on the invited error doctrine, it is an additional basis for rejecting mother's contention.
The juvenile court's ruling should be read in the context of a hearing where the proponents of adoption clearly articulated each child's position separately and, with respect to the juvenile court's findings, we should not presume the court misunderstood the law. The ruling does not have to be read as improperly considering the effect on Madison when the court reviewed the option of guardianship, and then adoption, for Giovani. The recommended permanent plan was for adoption of both children together by their foster parents. In Celine R., the juvenile court was considering one child for adoption but looked improperly to the effect of its finding on another sibling who was not being considered for adoption. Unlike the children in Celine R., Giovani and Madison were both adoptable as a sibling group. Related to this was the undisputed evidence that Giovani and Madison enjoyed a strong sibling bond, a point on which all the parties agreed, including mother. In referring to Madison as not having a beneficial relationship with mother, the juvenile court properly considered the strong sibling bond between Giovani and Madison.
The juvenile court's ruling, therefore, can be read as a finding that both children were adoptable, the sibling group should be maintained, and the benefits Giovani derived from his visits with mother were insufficient to invoke the beneficial parent-child relationship exception.
Effect of Alleged Error
The juvenile court's reference to "both" children at the same time could be interpreted as meaning there must be detriment to both children before the beneficial parent-child relationship exception could be applied to Giovani. Mother argues that because the court referred in its second finding to detriment to both the children, it again failed to consider the children separately and, had it done so, it is reasonably probable the court would have found Giovani's bond to mother was so great it would be a detriment to him if the court ordered adoption. Even if we assume that the juvenile court's ruling was based on this misinterpretation of the law, we analyze the error de novo. In doing so, we find any legal error by the juvenile court harmless.
We will not reverse a juvenile court's ruling for error unless it appears reasonably probable that, absent the error, the appellant would have obtained a more favorable result. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 876-877 (Jonathan B.); see In re A.J. (2013) 214 Cal.App.4th 525, 538.) Even where a juvenile court arguably erred in rejecting the sibling-relationship exception to adoption, the error is not prejudicial if it does not appear the appellant would have obtained a more favorable result absent the error. (D.O., supra, 247 Cal.App.4th at pp. 176-177 [alleged error in application of sibling relationship exception], citing Jonathan B., supra, 5 Cal.App.4th at pp. 876-877, and People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
The Supreme Court concluded in Celine R. that even though the juvenile court misapplied the law relevant to the sibling relationship, and further failed to appoint separate counsel for siblings with conflicting interests, reviewing courts should not mechanically set aside an adoption error because separate counsel was not appointed. The error must be prejudicial. The California Constitution prohibits a court from setting aside a judgment unless the error has resulted in a miscarriage of justice. (Celine R., supra, 31 Cal.4th at pp. 59-60, citing Cal. Const., art. VI, § 13, and Watson.) Celine R. found "no reasonable probability" the juvenile court would have chosen a different permanent plan even had counsel been relieved from representing all the children and separate counsel been appointed. (Celine R., supra, 31 Cal.4th at pp. 60-62.) Other cases have also analyzed statutory errors and found such error harmless under the Watson standard of review. (In re A.C. (2008) 166 Cal.App.4th 146, 158-159 [statutory error in appointment of guardian ad litem subject to harmless error analysis under Watson]; In re Kristen H. (1996) 46 Cal.App.4th 1635, 1668 [error in statutory right to counsel measured under Watson standard of review]; In re Andrew S. (1994) 27 Cal.App.4th 541, 550; see In re J.P. (2017) 15 Cal.App.5th 789, 797-798.)
On balance, we do not believe the juvenile court made errors of law in analyzing the issues before it. Viewing the juvenile court's decision independently, we reach the same conclusion as it did. To establish that the beneficial parent-child relationship exception to adoption applies to Giovani, mother must meet her burden to show both a beneficial parent-child relationship and that termination of that relationship would be detrimental to him. The evidence in this record supports the juvenile court's decision. To prove the beneficial parent-child relationship exception applies, the parent must show there is a significant, positive emotional attachment between the parent and child. Parents must establish a parental role in a child's life. Loving and frequent contact alone is insufficient for the exception to apply. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)
Giovani's early life with mother was unstable. He spent most of his first five years with other relatives, not in mother's care. At one point, mother signed a notarized document relinquishing Giovani to his father's custody. Although this document does not appear to be the result of a judicial proceeding and likely has little legal effect, it is demonstrative of mother's feelings toward parental responsibility. When Giovani came back into mother's care, she physically abused him, housed him in squalor, left him infested with lice, and failed to refill his ADHD medication prescription. Giovani's behavior was no doubt difficult, but this was apparently exacerbated by mother's failure to refill his prescription. Giovani told adults he wanted to be on his medication because it helped him control his behavior. Mother had Giovani, who was only eight years old, care for his infant sister.
Giovani's visits with mother began poorly. He was anxious during the early visits and consistently asked his foster parents why he had to visit mother. Giovani did not want to be left alone with mother during visits, requesting the company of a social worker or the CASA volunteer. Visits started at twice a week but were reduced to twice a month; Giovani asked to have visits reduced to once a month. Over time, Giovani became more relaxed during visits. Mother brought him snacks and toys and the two talked. Whether this was a result of the efforts of mother, the foster parents, or a combination of the two, mother failed to establish a parent-child relationship simply because their visits were more relaxed. The CASA volunteer described the relationship between mother and Giovani as more of an acquaintance than a parent-child bond. Although prior to the permanency planning hearing Giovani said he enjoyed visiting mother, he also spent time during visits helping to calm his crying sister, a skill mother never developed. The foster parents described Giovani as overly concerned about his sister and parentified.
The social workers and foster parents described Giovani as a bright and articulate young man. Throughout the dependency, Giovani expressed his desires to be adopted and for stability in his life even though he wanted to continue visits with mother. In so expressing himself, Giovani himself has underscored that whatever benefit he derived from visiting mother, it did not outweigh the benefits of adoption. Although day-to-day contact is not necessarily required, it is typical. A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing the parent-child relationship during periods of visitation. (In re Jason J. (2009) 175 Cal.App.4th 922, 937.)
The juvenile court found a beneficial relationship between mother and Giovani. Given the history of this case, the court's finding was a very generous description of the quality, significance, and positive emotional attachment in their relationship. Whatever relationship Giovani and mother enjoyed, it was insufficient to establish the statutory exception to adoption. The parent bears the burden of showing more than loving contact and pleasant visits. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.) Here, the evidence mother occupied the crucial role of being a parent in Giovani's life was lacking. (Id. at p. 954.)
The overriding objective in dependency cases is to preserve and promote the best interests of the child. (In re Daniela G. (2018) 23 Cal.App.5th 1083, 1092; see In re M.H. (2018) 21 Cal.App.5th 1296, 1304-1305 [best interests of child supersede preference for placement with relative].) Section 366.26, subdivision (c)(1)(B)(i) cannot be read in the restrictive manner suggested by mother to view each child separately and to ignore other provisions of the Welfare and Institutions Code applicable here, such as consideration of sibling relationships in section 361.2, subdivision (j). Nor can section 366.26, subdivision (c)(1)(B)(i) be read to overcome the best interests of the children here to be adopted as an intact sibling group.
Keeping the sibling group in one adoptive home was clearly a goal of the parties as well as the juvenile court. Even if the juvenile court erred in considering both children together in making its findings concerning guardianship and adoption for Giovani, the error did not lead to a miscarriage of justice and was therefore harmless. The juvenile court had before it two children whose interests were nearly identical, even if Giovani's diverged from his sister's because he had a marginally beneficial relationship with mother. The children had the same interests in being adopted into a loving and supporting home and in keeping their sibling bonds intact in that adoptive home. The juvenile court did not err when it failed to apply the beneficial parent-child relationship exception to adoption and did not choose guardianship as Giovani's permanent plan.
DISPOSITION
The juvenile court's orders finding the beneficial parent-child relationship exception inapplicable to Giovani and terminating mother's parental rights to both children are affirmed.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
DETJEN, J.