Opinion
A160281
04-26-2021
In re R.M. et al., Persons Coming Under the Juvenile Court Law. SAN FRANCISCO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.P., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. Nos. JD163231, JD163231A, JD163231B, JD163231C, JD163231D)
Mother S.P. appeals from an order terminating her parental rights and ordering adoption as the permanent plan for her five children. She contends the juvenile court erred in denying her request to reinstate reunification services without first holding an evidentiary hearing and in failing to apply either the beneficial parent-child or sibling relationship exception to termination. S.P.'s arguments lack merit, and we affirm.
BACKGROUND
The Petition, Detention, Jurisdiction, and Disposition
On July 13, 2016, the San Francisco County Human Services Agency (Agency) filed a Welfare and Institutions Code section 300 petition involving the five children of mother S.P. and father M.M.: R.M. (four years), Z.M. (three years), C.M. (two years), Mi.M. (12 months), and Ma.M. (one week). The petition, necessitated by, among other things, S.P.'s positive drug test when she gave birth to Ma.M. the previous week, alleged that the parents had a history of substance abuse, transience, domestic violence, and neglect of their children, which placed the children at a substantial risk of serious harm.
All statutory references are to the Welfare and Institutions Code.
As this appeal is brought only by S.P., we omit facts regarding M.M. except where relevant to the issues before us.
An amended petition added additional allegations regarding substance abuse and the family's history with the Agency. A second amended petition added mental health allegations as to S.P. and anger management allegations as to M.M. It also deleted the substance abuse allegations as to S.P., as it was determined that her positive drug test at the time of Ma.M.'s birth was a false positive. It also alleged that the parents had failed to provide adequate medical and dental care for the children.
The children were ordered detained on July 26. Other than a temporary stay with their daycare provider while the parents agreed to a safety plan, however, the children remained in their parents' care.
In its jurisdictional report, the Agency reported that the children suffered from a variety of health and dental problems, many a result of the parents' neglect. It also described concerns regarding the family's unstable housing situation (they were staying in a homeless shelter), S.P.'s mental health, M.M.'s substance abuse, the lack of a support system, the parents' overwhelm at having five children age four and under, and the children's behavioral problems.
The Agency recommended family maintenance services. At an August 30, 2016 jurisdictional/dispositional hearing, the court sustained the allegations, declared a dependency, and adopted the Agency's recommendation.
Six-month Reviews
Over the next 20 months, the family received family maintenance services, with reviews every six months. During that time, the family had remained at the shelter until they exhausted their time there, after which they stayed at various hotels before renting a home in Fairfield. The parents were working at the San Francisco International Airport (SFO) and initially commuted from Fairfield, but after their vehicle stopped working, they found news jobs in Petaluma that were accessible by bus. Without a family vehicle, the parents were unable to take the children to childcare or the oldest to school. They were not obtaining the necessary medical and dental care for the children, some of whom were suffering such extreme tooth decay that they were in pain.
S.P.'s participation in her services during that time period was minimal. She continued to be overwhelmed by juggling fulltime work and parenting, and she said her obligations made it difficult to attend services. She also believed she did not need therapy.
S.P. was also inconsistent in maintaining contact with the social worker. During one three-month stretch, the social worker had great difficulty contacting the parents. At one point, the parents went for over a week without checking in with the childcare provider with whom they would occasionally leave the children overnight. Only after the social worker reported the children as abandoned did the parents resume communication with the childcare provider and the social worker.
Nevertheless, at each six-month review, the court continued family maintenance services.
Section 387 Supplemental Petition
In April 2018, the Agency received two reports that the children were being neglected and emotionally abused. The reporter advised that S.P. had called 911 because M.M. had been violent with her, which had occurred before and had been witnessed by the children. The social worker spoke with the children, who still had multiple health issues, severe tooth decay, and poor hygiene, and lacked adequate clothing. The oldest child confirmed he had witnessed his father hit his mother and said " 'they are always fighting.' "
Two days after speaking with the children, the social worker made an unannounced home visit. When neither parent would come to the door, the social worker called the police, who arrived and ultimately arrested M.M.
On April 17, the Agency filed a section 387 supplemental petition, followed by an amended petition. The petition alleged that the parents had failed to benefit from the family maintenance services, had not provided a stable living environment, and continued to neglect the children's basic needs. The Agency requested that the children be removed from their parents' care and placed in foster care.
At an April 18, 2018 detention hearing, the court ordered the children detained in foster care with supervised visits for the parents and standard sibling visits. Although initially placed in different foster homes, by June, the children had been placed together in the home of foster mother A.M. and her husband.
At a June 18 contested jurisdictional/dispositional hearing, the court sustained the allegations in the amended section 387 petition and ordered reunification services for the parents.
Three-month Progress Report
A September 7, 2018 three-month progress report advised that in early August the parents were involved in a domestic violence incident that ultimately resulted in S.P. moving into a battered women's shelter. M.M.'s visits were suspended, and he stopped responding to communications from the social worker. By the end of August, his whereabouts were unknown, and in September the court suspended his visitation.
In the meanwhile, S.P. had begun addressing some of her case plan requirements. She had completed a parenting class and intake for individual therapy and was attending her visits.
As to the children, they continued to receive treatment for their severe dental issues. The Agency was concerned that all five children displayed behavioral issues, including aggressive and sexualized behaviors towards each other. The children were receiving intensive support services, and the foster homes had been certified as intensive services foster care homes.
Six-month Review
At the time of the Agency's November 29, 2018 six-month review report, S.P. was living in a hotel in San Mateo County and attempting to save money in order to get an apartment. She was no longer involved with M.M., whose whereabouts remained unknown. She was still working fulltime at SFO, which interfered with her ability to engage in her court-ordered services. While she had completed a parenting program and had 27 negative drug tests in the reporting period, she had not followed through with her therapy appointments.
S.P. acknowledged that she had been overwhelmed when working fulltime and caring for the children. She described not having a support system but also said she could now ask her family for help since she was no longer together with M.M.
On November 7, the social worker met with S.P. and the children during a supervised visit. S.P. demonstrated improved parenting skills and calmly interacted with the children equally, did not get overwhelmed when the children fought amongst themselves, and showed "love and empathy when engaging with her children."
Despite S.P.'s progress, the Agency recommended the termination of reunification services. While it was evident she loved her children, the Agency believed she had not displayed behavioral changes indicating she could safely care for the children. In the Agency's opinion, she had "failed to benefit from services provided" and had not obtained "a stable living environment."
In a February 11, 2019 addendum, however, the Agency changed its position and recommended continued reunification services. Since the prior report, S.P. had completed a psychological evaluation and was following the recommendations. She was regularly seeing a therapist, " 'seem[ed] to be understanding of issues with neglect and domestic violence,' " and was making progress toward her treatment goals. The Agency believed S.P. additionally needed to engage in a domestic violence program in order to learn the coping skills she would need if she became involved in another violent relationship.
S.P. had been attending the children's medical appointments and visiting with them weekly. Her parenting skills were progressing, and the visitation supervisor was recommending a lower level of supervision for the visits.
S.P.'s housing situation was still unstable. Since leaving the battered women's shelter, she had been staying in hotels or with friends and would sometimes ride public transit late at night to get some sleep before work. She recognized this was not a permanent solution and was working to obtain housing.
The three older children remained in their placement with foster mother A.M. and her husband, who continued to provide them "a safe and loving home . . . ." The two younger children had been moved to a new placement and had adjusted well. Both placements were meeting the children's needs.
Because S.P. had made "continuous and significant progress in all of her services" since the November 29, 2018 status report, the Agency recommended her reunification services be continued. Going forward, however, S.P. needed to "demonstrate that she can provide for the children's basic needs such as maintaining a safe household, that she can provide medical/dental care and follow-up, that she can engage with the children's school teachers in educational planning and that she can balance her employment with her parental obligations."
At a six-month review hearing on February 19, 2019, the court terminated services for M.M and continued them for S.P.
12-month Review and Termination of Reunification Services
On May 29, 2019, the Agency filed a 12-month review report recommending termination of services for S.P. As detailed in the report, S.P. was making some progress on her service plan: she was employed and meeting her own basic needs, continued to see her individual therapist on a weekly basis, and regularly visited the children.
At the same time, S.P. remained homeless, sleeping in her car or checking into a hotel when she wanted to shower. She had recently spent two weeks with her mother, who offered her a room, but she declined the offer. She was receiving assistance in searching for housing in Antioch, which was close to her family and her children's school. She declined to participate in a domestic violence program, however, because she believed she would experience "flashbacks and re-traumatization" if she were to hear stories of domestic violence.
Most significantly, although S.P.'s parenting capabilities had increased, she had difficulty managing the children's behaviors during visits and maintaining a stable environment. According to the Agency, while S.P. had made progress on her "self-development" and during visitations, her "work around her experience as a victim of domestic violence [left] some unanswered questions," including whether her delay of domestic violence treatment indicated "she ha[d] not differentiated between what she went through and what is a healthy relationship . . . ." Additionally, her lack of stable housing remained a safety concern, she had not demonstrated she could obtain and maintain a safe household, and she lacked a support network. In short, "Her present parenting skills . . . do not indicate that she can manage all five children while maintaining a safe home."
The children were doing well, mentally and physically. Many of their dental problems had been addressed, and they were receiving regular medical care. While still exhibiting a range of behavioral problems, they were making progress in therapy. As to the children's placements, the Agency provided this summary: "[A.M.] has provided a consistent routine that the [three older] children lacked and craved. A lot of the children's progress is attributed to their routine. Once the children learned what to expect at certain points in their day, their behaviors improved. [They] refer to [their foster mother] as 'Mama' and they call [their foster father] 'Papa.' Both placement homes are certified ISFC (Intensive Services Foster Care). The substitute care providers underwent specialized trainings and they have continuing support from providers in handling the children's needs. The children's placements are appropriate and the children appear to be comfortable. I have observed the children verbally and via hand gestures ask the substitute care providers for assistance or for food items. The care providers are attentive and they care about the children. [A.M.] provides [S.P.] with updates about the children when [A.M.] drops off and picks up the children for visitations. [S.P.] is especially appreciative of [the foster parent for the younger two children] in that [S.P.] receives information about appointments and also general messages. [S.P.] reported that [the foster mother] creates space for telephone contact with her children."
Against this background, and having been involved with the family since June 2016, the Agency believed reunification was unlikely even if S.P. was given more time. The Agency was committed to supporting the children's "deep relationship" with their mother, but it did not believe she could provide the consistent routines and schedules the children needed to overcome the troubles that necessitated their removal.
In a July 31, 2019 addendum, the Agency advised that on June 17, 2019, the three older children had been moved to their maternal grandmother's home because A.M. was leaving the country for two months. They had adjusted well, were enjoying spending time with their maternal uncles who were home from college for the summer, and had gone on numerous outings with family members. The two younger children remained in the foster home where they had been placed in December 2018.
S.P. was continuing to attend her individual therapy sessions, in which she was addressing the circumstances that led to the children's removal and the domestic violence she had experienced. She still refused, however, to engage in a domestic violence support program. She continued to receive support in her search for housing but had not secured housing.
The Agency also reported concerns about S.P. canceling appointments for the younger two children and blaming it on a work conflict. She appeared disproportionately focused on the older children and did not understand certain aspects of child development. There was a concern that she was " 'checking things off a list . . . rather than adapting what she's learning and applying it during her time with the kids.' "
S.P. continued to visit weekly, with the visitations "going a lot smoother . . . ." The goal continued to be supporting S.P. in dividing her attention among the children. Although visitation supervisors had recommended progressing to unsupervised visits one day a week, that had not yet happened. The Agency continued to be concerned about S.P.'s ability to manage the children in an unsupervised setting.
Ultimately, the Agency commended S.P. for the progress she had made, but it was troubled by her refusal to engage in a domestic violence program and her unstable housing situation. Because the Agency did not believe S.P. had the skills to provide daily care for the children, it adhered to its recommendation the court terminate her services and set a section 366.26 permanency hearing.
On August 9, 2019, the matter came on for a contested 12-month review hearing. Finding S.P. had only made "adequate" progress towards alleviating the circumstances that necessitated the proceeding, the court terminated her reunification services. It ordered her visitation reduced to once a week for one month and twice a month thereafter, and set a section 366.26 permanency hearing for November 27, 2019.
Section 366.26 Report
On November 1, 2019, the Agency filed a section 366.26 report recommending termination of parental rights. It identified adoption as the permanent plan for the three older children but requested additional time to find an adoptive home for the two younger children. The Agency explained that the three older children had been placed with their maternal grandmother for four months. She had taken time off from work when the children first moved in with her, but she had to return to work and was subsequently unable to ensure that the children continued to attend their therapeutic services and visits. The Agency attempted to work with her and her schedule but they were unable to come to an arrangement that enabled her to get the children to school and their appointments. At the same time, A.M. had returned from her trip abroad and had expressed a desire to care for the children again. She felt they were an "integral part of her family" and "love[d] them dearly." It was thus decided that the older children would return to her and her husband. They had cared for the older children from June 2018 to June 2019 and then again since October 2019 and were committed to permanency for them, and the Agency was thus recommending adoption as the permanent plan.
Adoption was also the permanent plan for the two younger children, although an adoptive home had not yet been identified.
As to visitation, S.P.'s visits had been reduced when the court terminated her reunification services. Visits had been moved to the grandmother's house, which the children enjoyed. S.P. fed and played with them, instructed them when it was time to clean up and get their belongings together, and gave each of them a hug and told them she loved them.
In a February 27, 2020 addendum to its section 366.26 report, the Agency provided this update:
The Agency believed S.P. was back in contact with M.M. The oldest child had shown the grandmother pictures on S.P.'s phone of S.P. and M.M. together. The grandmother had also seen M.M. at the store where she worked and where S.P. had previously worked, and the children also reported that S.P. took them to the store and they saw their father. S.P. denied she was in contact with M.M. She acknowledged she had recorded a Christmas video to send to him, but she claimed one of the children asked to do it, although she did not know where to send it.
The Agency explained why the two sibling groups were placed in separate foster homes. Initially, upon removal from their parents' care, the children had been placed in different foster homes, but from June to December 2018, they were all placed together with A.M. Each of the children had significant behavioral and medical needs, however, and despite A.M.'s "extraordinary efforts" and the Agency's therapeutic interventions, it was not in the children's best interest for them to be in housed together. The Agency thus decided to place the two youngest children elsewhere so all of the children could receive more intensive, individualized attention and assistance. Although a difficult decision, the Agency believed it was the right one, and since December 2018, the children had received individual attention and the foster parents "were afforded the opportunities to provide for their own self-care so that they [could] be the best caregivers for these children." According to the Agency, the children had adjusted to living in separate homes, and it was hopeful that postadoption sibling contact could be supported as both foster families recognized the value of maintaining contact between the children, and the adoptive parents for all children were open to continuing sibling visitations.
During the reporting period, S.P. had regularly visited the three older children and attempted to address their needs during the visits, although this proved challenging at times. The Agency had learned, however, that during a visit, S.P. had taken the children to a fast-food restaurant and movie without authorization. S.P. did not deny that she took the children offsite despite having been told this was not allowed. As a result, visits were moved from the grandmother's home back to a visitation center.
As to the younger two children, S.P. had been visiting them two times a week since October. It was challenging for her to manage their behaviors and meet their needs, as the boys often sought her attention by screaming or hitting her. At other times, she managed well during the visits, "lovingly [paying] attention to each [child] . . . ." The Agency had recently identified a potential adoptive family for the two younger children.
The Agency had made a referral for postadoption contact mediation, and the involved parties were in the process of completing a postadoption contact agreement.
The Agency concluded its report by observing that the children had made significant progress under the care of their loving foster parents. Although S.P. maintained regular visitation, visits had not progressed to unsupervised. While the Agency had not verified whether S.P. was back in a relationship with M.M., it was concerned for the safety of S.P. and the children given that S.P. had been in a violent relationship with M.M. and the children had been exposed to that violence.
Noting that it had been continuously involved with the family since June 2016, the Agency believed that at this point, "[t]he children need and deserve a safe and loving forever home. There are approved families willing to adopt all of the children. All of them are young in age, in good health, and in relatively stable emotional states. All the children are highly adoptable. The Agency has identified adoptive homes for [the children]. Therefore, the Agency recommends that adoption be approved as the permanent plan, that parental rights be terminated, and that the children be ordered placed for adoption."
S.P.'s Section 388 Request to Change Court Order
On February 28, 2020, S.P. filed a section 388 request seeking reinstatement of reunification services. As to what had changed since the August 9, 2019 order terminating services, S.P. stated that in August 2019, she secured a furnished, five-bedroom home in Antioch and would be able to safety and comfortably house herself and the children. She indicated that if her request were granted, she would quit her job and obtain government assistance so she could devote herself to parenting her children fulltime. She also claimed that she was "fully engaged and making significant progress in domestic violence treatment," working with her therapist on her domestic violence issues at least once a week.
According to S.P., reinstatement of reunification services would be better for the children because they had a "deep and long-standing bond" with her that could only be preserved by being returned to her care. S.P. also believed that if her parental rights were terminated, it would "result in the destruction of the sibling relationships [because] it is likely that the children will be placed in different adoptive homes."
The court set a hearing for March 9, the same day as the permanency hearing, to determine whether it should grant an evidentiary hearing on S.P.'s request.
Hearing on S.P.'s Section 388 Request and Section 366.26 Permanency
On March 9, 2020, the court heard argument on whether S.P.'s section 388 request made a prima facie showing of changed circumstances and thus merited an evidentiary hearing. Counsel for the children Andrea Goodman argued it did not, pointing out that S.P. had in fact secured the housing prior to the termination of services so this was not a new development. Although the May 29, 2019 12-month review report stated that S.P. was homeless, Goodman represented that the social worker would testify S.P. found housing right at the time of the 12-month review. She also pointed out that it appeared S.P. was back in contact with M.M. despite the services she had engaged in.
County counsel Kee Ana Smith agreed S.P. had not made the requisite showing, arguing she had not shown she could parent her five children while maintaining housing. She also argued that the requested change was not in the best interest of the children because their best interest would be promoted by stability and permanency, which they would not receive if reunification services were reinstated, especially considering that the case began with family maintenance services in 2016 and the children had been in foster care for two years.
Counsel for S.P. Dominick Franco claimed the petition showed changed circumstances because S.P.'s lack of housing was a factor in the termination of her services but she had since found housing. As to domestic violence concerns, Franco advised that S.P. had been in therapy for approximately two years, which involved dealing with her domestic violence issues. And as to the issue of best interest, Franco argued that evidence would show S.P. had a "very positive beneficial relationship with all of the kids" and maintaining that relationship was in their best interest.
County counsel Smith responded that at the time S.P.'s services were terminated, she was participating in therapy that addressed her domestic violence issues, so that was not a changed circumstance. Smith also reiterated that the bigger concern was S.P.'s ability to parent the children while managing a household and meeting their daily needs, and she had made no showing she could do so.
Goodman agreed the children had a connection with their mother, but she did not believe that preserving the parental relationship outweighed the benefits the children would gain from the stability and structure of a permanent home that they would get through adoption. Thus, she contended, S.P. had not met her burden of making a prima facie showing that reinstatement of reunification services was in the children's best interest.
Following this argument, the court denied S.P.'s request to reinstate reunification services, finding "that there's not sufficient evidence to warrant the granting of a [section 388 request] here. There's no prima facie case, given that the burden is whether or not there's a change of circumstances or new evidence and I just don't see it on the record that I have here. And I also find that I do not see it being in the best interest of the children to grant a full hearing at this time."
The court then turned to the issue of permanency. The sole witness to testify was social worker Christopher Dionisio, who had been assigned to the case since December 2018 and had prepared the November 1, 2019 section 366.26 report and the February 27, 2020 addendum. He testified as follows:
At the time of the hearing, the children were eight, six, five, four, and three years old. They had been placed in foster care 23 months earlier, so the three older children had lived with S.P. for the majority of their lives. The three older children were placed with A.M. in June 2018 and had lived with her since then except for a short placement with their grandmother. In total, they had lived with her for 18 months. The plan for the older children was adoption by A.M. and her husband. The foster parents had demonstrated a commitment to the children and the ability to take care of them and meet their needs. The children's behavior significantly improved in A.M.'s care, and they were very affectionate with her and looked to her to provide for their needs, comfort, nourishment, and safety. She provided them structure and consistency and demonstrated she could meet their "higher behavioral needs."
The two younger children had a similar relationship with their foster mother, with whom they had been placed since December 2018 when it became necessary to split up the siblings. The foster mother had previously been identified as the prospective adoptive parent and was emotionally committed to permanency for the young children, but she was hesitant to commit to adoption because she worried as a single parent about being able to provide for their long-term needs. Because her "level of commitment [was] not where [the Agency] want[ed] it to be," the status of the placement at that time was "semipermanent." Consequently, the Agency had looked for alternatives and had identified a couple as possible adoptive parents. The couple had not yet met the two children but would do so in a few days.
Until termination of services, S.P. had been visiting the children at three different time periods each week: one visit with the three older children, one with the two younger children, and then together for family therapy. She visited the two sibling groups separately because it was "very difficult" for her to visit all five children at once, and the Agency did not believe she could keep the children safe. The Agency had hoped to progress from supervised visitation to a less restrictive arrangement, but S.P.'s difficulty managing all five children at once prevented that from happening.
Dionisio had supervised some visits himself and had also received reports from visit supervisors. He agreed S.P.'s behavior during the visits was appropriate, she was very happy to see the children, and the children were "generally" happy to see her, often times hugging her. She would bring food and make sure the children ate it, and she tried to be attentive to the children, who would vie for her attention. Asked if the children were bonded to S.P., Dionisio answered, "The kids are aware of their schedule of visitation with their mother, so they do come to expect it and they do get upset when it doesn't happen for whatever reason, but talking about bond, I mean, they're also bonded with their current caregivers who they're with [a] majority of the time. They're bonded to a lot of people, I guess." The children had resided in separate placements since December 2018 and had "[n]ot consistently" visited with each other.
Dionisio confirmed that when he was talking to the oldest child about permanency and concurrent planning, the child said he wanted to live with his mother. The other two older children did not. He agreed the older children had a connection to S.P., as did the younger children, although "a little bit less so . . . ."
Asked by S.P.'s counsel if the sibling relationship between the five children should be maintained, Dionisio answered, "[A]ll siblings should be able to maintain any bond that they have." When asked, "And that applies to these five kids, they should be able to maintain their sibling bonds?" he responded, "Well, that is—that is the hope, but permanency is our first priority, and we have to balance maintaining the bond with permanency for all five of them."
In order to facilitate maintaining the sibling bond, the case had been referred for postadoption contact between siblings. Dionisio had spoken with A.M. and her husband, the younger children's foster mother, and the recently identified potential adoptive parents of the younger children, and "they all recognize and agree that if safe and appropriate that the siblings should be able to maintain a connection." Without having definitively identified adoptive parents for the younger children, there could not yet be a formal agreement, but the couple that had been identified came from big families, asked about siblings, and talked about wanting to maintain the sibling connection because they knew how important that was. Both they and A.M. were 100 percent committed to maintaining a relationship between the children.
Dionisio confirmed that it was still his recommendation that parental rights be terminated as to all five children. In his opinion, all five children were adoptable. The children received structure and stability in their current placements, and he believed that if they were emotionally stable, they could engage in school and extracurricular activities and heal from some of the trauma they suffered when they were younger. He believed a permanent placement like adoption is important because "It's lifelong. It provides stability for the kids. They know that they're safe. They know that is their forever home, and that . . . gives them the foundation upon which to build so when they do well at home they do well at school and in other activities." Dionisio believed the three older children would get those benefits from their prospective adoptive parents, in part because of the "tremendous progress" in behavior the children have already made in the home. The younger children had also benefitted from the stability of their foster placement, and they would get that stability from adoption with either their current caregiver or another adoptive home. He had no evidence that severance of the bond between S.P. and the children would cause the children significant detriment.
On cross-examination by counsel for S.P., Dionisio acknowledged he was familiar with studies documenting that children are more likely to suffer depression and "acting out behaviors" when their relationship with their parents is cut off and they are deprived of continuing contact with their birth parents. Despite that, Dionisio believed "first and foremost kids need safety and stability," which these children did not receive from their parents in the past, and nothing suggested they would receive it from them in the future.
After Dionisio's testimony, the court heard argument, beginning with county counsel Smith, who urged the court to find that the children were likely to be adopted if parental rights were terminated. She argued that the older children were in a pre-adoptive home with a family who was committed to adopting them, and if for some reason that family was unable to adopt, it would not be difficult to find them a different adoptive family. As to the two younger children, she argued, the Agency had recently identified a family that was enthusiastic about adopting them, the children "were adoptable," and there was credible evidence they would be adopted within a reasonable amount of time. She noted that the fact the children were not in a pre-adoptive home was not a ground for finding they were not likely to be adopted.
Smith additionally argued that S.P. had not met her burden of establishing an exception to termination of parental rights. As to the beneficial parent-children relationship exception, she had to demonstrate that she maintained regular visitation and contact with the children and that maintaining the parent-child relationship outweighed the benefits of adoption. Smith contended that S.P.'s relationship with her children did not promote the wellbeing of the children. According to Smith, S.P. did not occupy a parental role in the children's life, as visiting a child for a few hours in a controlled environment is very different than parenting a child day in and day out. Smith submitted that while the children loved their mother, they sought out their foster parents for nurturing and stability.
Turning to the sibling relationship exception, Smith noted that the court was to consider the nature and extent of the sibling relationship, including whether the children were raised in the same home, they shared significant, common experiences, there was an existing close and strong bond, and whether ongoing contact was in the children's best interest. Smith submitted that the relationship in this case did not rise to this level since the two sibling groups had lived apart since December 2018 and did not frequently visit each other. According to Smith, terminating parental rights would not create a substantial interference with a sibling bond between the three older children on one hand and the two younger children on the other.
Counsel for the children Goodman joined in the Agency's arguments. She acknowledged that S.P. had been consistent with visitation and the children had a connection with her. Nevertheless, Goodman noted that the children had "really significant needs" that S.P. had been unable to meet, even after years of family maintenance and over a year of reunification services. Most significantly, she was never able to progress to a place in her visits where she was able to give the children "the calm, the freedom from anxiety that they so desperately need with good, solid structure and love." While S.P. had been consistent with visits, Goodman argued, she had not demonstrated that her bond with the children was one whose preservation was required to prevent detriment to the children and one that outweighed the benefits the children would gain from adoption.
Counsel for M.M. Margaret Pendergast acknowledged M.M. had not engaged in any services and could not dispute the court's finding that it was detrimental for him to have visits with the children. She asked, however, that M.M.'s contact information be available in the court file should the children want to know about or contact their biological father when they were older. She also objected to the court terminating parental rights to the two younger children until an adoptive home had been identified. Doing so now, she submitted, would make the children "legal orphans," which was not in their best interest.
Counsel for S.P. Franco joined in the objection to making the two younger children "legal orphans." He next contended that S.P. had established that the beneficial parent-child relationship exception applied. Asserting that counsel for the children had conceded the visitation prong of the exception, he turned to the second factor, identifying the age of the children and the portion of their lives spent in S.P.'s care as relevant to the bond they shared. He also pointed to the testimony that S.P. was appropriate with the children, feeding, playing with, and taking care of them during visits, and the testimony that R.M. wanted to live with S.P. S.P. had also attended most medical appointments. This all demonstrated, according to counsel, that S.P. acted in a parental, "motherly" role. While acknowledging that adoption is the preferred plan for children at this stage in a dependency proceeding, he argued that given the parent-child bond here, it was "more important to honor the relationship . . . than it is for the [children] to be adopted." He opined that where you have an "attentive, loving mother that if the relationship with the kids and the mom is not maintained that the result will be ongoing and significant harm to the kids."
Following this argument, the court ruled. It found that the Agency established by clear and convincing evidence that the children were likely to be adopted. And it also found that S.P. had not established the applicability of either the beneficial parent-child or sibling relationship exceptions. According to the court, despite loving her children, S.P. had been unable to provide the safety, structure, and stability the children need. It noted the case had been referred for postadoption contact mediation, that "everybody seem[ed] to think [continuing the connection was] a good idea," and it hoped the mediation sessions would be successful. With that, it terminated parental rights and ordered adoption as the permanent plan for all five children.
After a discussion off the record, the court added, "And the issue of whether or not any of the individuals who are in the mix with respect to adopting these children would be found at this time to be prospective adoptive parents is not something we can address today because there might have been a hiatus with respect to the placement of the three older children as I understand . . . ." Minors' counsel Goodman confirmed this was correct.
On June 8, 2020, S.P. filed a notice of appeal.
DISCUSSION
S.P.'s Notice of Appeal Was Timely
As a preliminary matter, the Agency contends that S.P.'s June 8, 2020 notice of intent to appeal was untimely and urges us to dismiss the appeal. The Agency is incorrect.
The section 366.26 hearing occurred on March 9, 2020, and the court ordered parental rights terminated in open court. California Rules of Court, rule 8.406(a)(1) required S.P. to file her notice of appeal within 60 days of that order. (See In re Alyssa H. (1994) 22 Cal.App.4th 1249, 1253 [" 'if an order [in a termination proceeding] is pronounced in open court, the time to appeal from the order begins to run when the order is pronounced' "].) Thus, under normal circumstances, the last day for S.P. to file her notice of appeal was May 8, 2020. These were not, however, normal circumstances.
In March 2020, the COVID-19 pandemic was rapidly spreading across the globe, prompting California courts to take measures that included reducing court operations. Accordingly, Chief Justice Tani G. Cantil-Sakauye, in her capacity as the Chair of the Judicial Council of California and consistent with the authority provided her by California Rules of Court, rule 8.66, issued multiple orders granting the superior courts authority to deem certain dates to be holidays for purposes of computing time for filing papers with the court. Pursuant to this authority, at various dates in March and April 2020, the presiding judge of the Superior Court of San Francisco issued a series of orders that cumulatively declared the dates from March 18 to June 1, 2020, inclusive, to be holidays for purposes of computing time for filing papers. (Super. Ct. County of San Francisco, Apr. 30, 2020 General Order Re: Implementation of Emergency Relief.)
Similarly, on March 18, 2020, and again on April 15, 2020, the Chief Justice authorized the Court of Appeal, First Appellate District, to issue orders extending the time "in which to do any act required or permitted under the California Rules of Court." Accordingly, on April 15, 2020, the administrative presiding justice of this district issued an order that provided in pertinent part: "All time periods specified by the California Rules of Court that occur during the time period between April 17, 2020, through and including May 18, 2020, are hereby extended for 30 days from the date of the specified event. . . ." (Apr. 15, 2020 Implementation Order For the Renewed Order Pursuant to Rule 8.66 of the California Rules of Court.)
Under the San Francisco orders, S.P.'s May 8 deadline for filing her notice of appeal would have been extended to the next day that was not a holiday, or June 2, 2020. Based on this, the Agency contends that S.P.'s June 8 notice of appeal was untimely. But this analysis ignores the April 15, 2020 order of this district's administrative presiding justice. Because the May 8, 2020 deadline fell within the time frame covered by that order, S.P. had an additional 30 days from that deadline to file her notice, or until June 7, 2020. And because June 7, 2020 was a Sunday, and thus a holiday for purposes of time computation (Code Civ. Proc., § 12b), the last day for S.P. to file her notice of appeal was Monday, June 8, 2020, the day she in fact filed it. (See Taliaferro v. Davis (1963) 217 Cal.App.2d 215, 216 [where the last day to file a notice of appeal fell on a Sunday, it was timely if filed on Monday]; see generally Rowan v. Kirkpatrick (2020) 54 Cal.App.5th 289 [applying the emergency orders to a notice of appeal].) Because S.P.'s notice of appeal was timely, we turn to the merits of her appeal.
The Juvenile Court Did Not Err in Summarily Denying S.P.'s Section 388 Petition
In her first argument, S.P. contends that the juvenile court erred in denying her section 388 petition to reinstate reunification services without first holding an evidentiary hearing. We conclude the juvenile court did not abuse its discretion in denying petition without holding an evidentiary hearing. (See In re Y.M. (2012) 207 Cal.App.4th 892, 918 [grant or denial of section 388 petition is reviewed for abuse of discretion].)
Pursuant to section 388, a parent may petition for modification of a prior order of the court "upon grounds of change of circumstance or new evidence . . . ." (§ 388, subd. (a)(1); see Cal. Rules of Court, rule 5.570(a).) Where it appears the best interests of the child may be promoted by the requested change, the court shall order a hearing on the petition. (§ 388, subd. (d).) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' " (In re Jasmon O. (1994) 8 Cal.4th 398, 415; see In re Marilyn H. (1993) 5 Cal.4th 295, 310 ["The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing"].)
As noted, S.P.'s petition sought reinstatement of reunification services, asserting as changed circumstances that she had obtained a furnished, five-bedroom house "sometime in August 2019" and was engaged in and making progress in domestic violence treatment. It is questionable whether either circumstance was in fact a change since the August 9, 2019 termination of services. As to housing, during argument, attorney Goodman advised the court that even though the 12-month review report indicated S.P. was homeless, it was known at the 12-month reviewing hearing that she had in fact found housing by that time. Counsel represented that the social worker would testify as such. And as to participation in therapy, at the time her reunification services were terminated, S.P. was already engaging in individual therapy that addressed, among other things, the domestic violence in her past. While her petition claimed she was "fully engaged and making significant progress in domestic violence treatment," her continued work with her therapist surrounding the issue of domestic violence was not new, and her petition gave no indication she was participating in a domestic violence support program.
But even if we were to assume either circumstance was a change since termination of services, and construing the petition liberally in favor of its sufficiency (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413), we would still conclude the court did not abuse its discretion in denying the petition without an evidentiary hearing. This is so because, as explained in In re A.A. (2012) 203 Cal.App.4th 597, 612, "Not every change in circumstance can justify modification of a prior order. [Citation.] The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate. [Citations.] In other words, the problem that initially brought the child within the dependency system must be removed or ameliorated." That was not the case here.
The fundamental problem that compelled termination of services was S.P.'s failure to demonstrate that she was capable of safely parenting her five children. This concern was noted in the six-month review report, where the Agency recommended termination of services because S.P. had not displayed behavioral changes indicating she could safely care for the children. It was also noted in the addendum to the six-month review report, where the Agency recommended continuation of S.P.'s reunification services but advised that going forward she needed to "demonstrate that she can provide for the children's basic needs such as maintaining a safe household, that she can provide medical/dental care and follow-up, that she can engage with the children's school teachers in educational planning and that she can balance her employment with her parental obligations." And it was noted in the Agency's 12-month review report, where the Agency recommended termination of services because S.P.'s "present parenting skills . . . [did] not indicate that she can manage all five children while maintaining a safe home" and the Agency did not believe she could provide the consistent routines and schedules the children needed to overcome the troubles that necessitated their removal.
S.P.'s lack of housing was a concern throughout the dependency proceeding, but merely having obtained housing did not demonstrate she was any more capable of parenting her children and keeping them safe. She had received nearly two years of family maintenance services and over one year of family reunification services, and she had never shown the capacity to care for all five children. During visits, she could not manage the five children at once, necessitating separate visits with the older and younger sibling groups. And she never progressed to unsupervised visits because the Agency was never assured she could keep the children safe. Her section 388 petition made no showing of changed circumstances regarding this critical issue.
As to S.P.'s claim that reinstatement of her reunification services would be better for the children, the petition was devoid of specific information supporting this prong of the prima facie test. She merely alleged that the children had "a deep and long-standing bond" with her that could only be preserved through reunification, and that if her parental rights were terminated, "the destruction of the sibling relationships" was "likely." The court in In re Anthony W. (2001) 87 Cal.App.4th 246, 251-252 rejected a similar conclusory allegation, with this observation: "Most important, mother's petition does not demonstrate how a change in the order would be in the best interest of these children. [Citation.] At this point in the proceedings, on the eve of the selection and implementation hearing, the children's interest in stability was the court's foremost concern, outweighing any interest mother may have in reunification. [Citation.] Mother made no showing how it would be the children's best interest to continue reunification services, to remove them from their comfortable and secure placement to live with mother who has a long history of drug addiction and a recurring pattern of domestic violence in front of the children. The children should not be made to wait indefinitely for mother to become an adequate parent." Likewise here.
Based on S.P.'s conclusory claim regarding the children's best interest, and her failure to show a material change in circumstances, the court acted well within its discretion in denying an evidentiary hearing on S.P.'s section 388 petition.
The Juvenile Court Did Not Err in Ordering Adoption as the Permanent Plan for the Children
The Permanency Hearing and Exceptions to Termination of Parental Rights
At the section 366.26 permanency hearing, the juvenile court's task is to select and implement a permanent plan for the dependent child. When there is no probability of reunification with a parent, adoption is the preferred permanent plan. (§ 366.26, subd. (b)(1); In re Marina S. (2005) 132 Cal.App.4th 158, 164.) If the juvenile court finds by clear and convincing evidence that a child is adoptable, it must terminate parental rights and order the child placed for adoption, unless it finds termination would be detrimental to the child under one or more of the statutorily specified exceptions. (§ 366.26, subd. (c)(1); In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416.) One such exception is the beneficial parent-child relationship exception, which provides that the juvenile court cannot terminate parental rights where it "finds a compelling reason for determining that termination would be detrimental to the child" because the "parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) Another such exception is the sibling relationship exception, which precludes termination of parental rights where termination would be detrimental to the child because "[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, subd. (c)(1)(B)(v).) S.P. contends that the juvenile court erred in finding neither exception applicable.
The Standard of Review
The standard of review applicable to a court's decision declining to apply an exception to termination is unsettled. Some courts have reviewed such orders for substantial evidence. (See, e.g., In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Others have applied the abuse of discretion standard. (See, e.g., In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) More recently, the trend appears to be an approach that incorporates both the substantial evidence and abuse of discretion standards. For example, the Sixth District adopted this hybrid approach in In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315, where it reasoned:
"In our view, both standards of review come into play in evaluating a challenge to a juvenile court's determination as to whether the parental or sibling relationship exception to adoption applies in a particular case. Since the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental or sibling relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court's determination. Thus, as this court noted in In re I.W. (2009) 180 Cal.App.4th 1517, a challenge to a juvenile court's finding that there is no beneficial relationship amounts to a contention that the 'undisputed facts lead to only one conclusion.' [Citation.] Unless the undisputed facts established the existence of a beneficial parental or sibling relationship, a substantial evidence challenge to this component of the juvenile court's determination cannot succeed.
"The same is not true as to the other component of these adoption exceptions. The other component of both the parental relationship exception and the sibling relationship exception is the requirement that the juvenile court find that the existence of that relationship constitutes a 'compelling reason for determining that termination would be detrimental.' (§ 366.26, subd. (c)(1)(B), italics added.) A juvenile court finding that the relationship is a 'compelling reason' for finding detriment to the child is based on the facts but is not primarily a factual issue. It is, instead, a 'quintessentially' discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption. [Citation.] Because this component of the juvenile court's decision is discretionary, the abuse of discretion standard of review applies."
Even within the First District, different standards of review have been applied. For example, Division Four has applied the substantial evidence standard (In re G.B. (2014) 227 Cal.App.4th 1147, 1166), while Division Three in one instance reviewed for an abuse of discretion (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351), but subsequently adopted the hybrid standard advocated in In re Bailey J. (In re E.T. (2018) 31 Cal.App.5th 68, 76.) This unsettled issue will soon be resolved, as the Supreme Court granted review in Division One's In re Caden C. (2019) 34 Cal.App.5th 87 (review granted July 24, 2019, S255839), asking the parties to brief two issues, one of which is "what standard governs appellate review of the beneficial parental relationship exception to adoption . . . ." Until such time as the Supreme Court decides Caden C., however, we must apply what we believe to be the applicable standard, and that is the hybrid approach.
The Juvenile Court Did Not Abuse Its Discretion in Concluding the Beneficial Parent-Child Relationship Exception Did Not Apply
As noted, the beneficial parent-child relationship exception precludes termination of parental rights where the court "finds a compelling reason for determining that termination would be detrimental to the child" because the "parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) This involves what has been described as a two-prong analysis: "The first prong inquires whether there has been regular visitation and contact between the parent and child. [Citation.] The second asks whether there is a sufficiently strong bond between the parent and child that the child would suffer detriment from its termination." (In re Grace P. (2017) 8 Cal.App.5th 605, 612.)
The benefit necessary to trigger the beneficial relationship exception is not statutorily defined. It has been judicially construed, however, to mean that "the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such 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., supra, 27 Cal.App.4th at p. 575.) The overriding concern is whether the benefit gained by continuing the relationship between the parent and the child outweighs the benefit conferred by adoption. (In re Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1155-1156.)
Factors to be considered when determining whether a relationship is sufficiently strong and beneficial to outweigh the benefit of adoption include: "(1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs." (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted; accord, In re Jason J. (2009) 175 Cal.App.4th 922, 937-938.)
The parent seeking to prevent termination of his or her parental rights by asserting the beneficial relationship exception bears the burden of proving the applicability of the exception by a preponderance of the evidence. (In re J.C. (2014) 226 Cal.App.4th 503, 529; In re Valerie A. (2007) 152 Cal.App.4th 987, 998.)
Applying the foregoing law here, there is no question S.P. made a sufficient showing as to regular visitation. She maintained a commendable visitation record over the course of the dependency proceeding, regularly visiting her children from their removal in April 2018 until the section 366.26 hearing in March 2020. County counsel Smith and minor's counsel Goodman conceded as much at the permanency hearing. We thus turn our focus to the second element—whether the children would benefit from continuing that relationship. (§ 366.26, subd. (c)(1)(B)(i).) We conclude the juvenile court did not abuse its discretion in finding that S.P. had not met her burden of proving that the benefits to the children of maintaining their relationship with her outweighed the benefits they would gain from adoption.
At the time the Agency filed the section 300 petition, the children ranged in ages from three weeks old to four years old. For the first 19 months of the dependency, the family received maintenance services. During that time, the children's basic needs were neglected such that they suffered significant health, dental, and behavioral problems while in S.P.'s care. For the next 23 months, the children were in foster care while the parents received reunification services. Thus, for the nearly four years preceding the section 366.26 hearing, the children were either in S.P.'s care under unstable circumstances or out of her care. For all but the oldest child, that was the majority (or entirety) of their lives, and even the oldest child had spent half of his life as a dependent by the time of the permanency hearing.
On the other hand, once in foster care, the children were finally in an environment that provided them with the structure and routine they desperately needed. At the outset, they all exhibited significant behavioral problems, but the foster parents excelled at meeting their needs, and with the structure, stability, and love the children received from their foster parents, they made "tremendous progress." As social worker Dionosio testified, adoption would provide permanence to that stability, allowing the children to continue to heal from the trauma they suffered during their earlier years. In his words, a permanent placement like adoption is important for the children because "It's lifelong. It provides stability for the kids. They know that they're safe. They know that is their forever home and that . . . gives them the foundation upon which to build so when they do well at home they do well at school and in other activities." While A.M. and her husband were not designated at the permanency hearing as the prospective adoptive parents, all indications were that they would be adopting the three older children. And although a prospective adoptive family had not been identified for the two younger children, Dionosio testified they were adoptable and they would gain the stability from adoption by either the couple that had expressed interest in adopting them or in another adoptive home.
According to Dionosio, there was no evidence the children would suffer significant detriment if their bond with S.P. was severed. S.P. presented no evidence to the contrary, such as a bonding study showing a significant connection between her and her children. She cites various reports in which the Agency stated that the "children appear to be well bonded with their immediate family" and that they "all appear to be bonded with their parents and with each other," but these are early reports—well prior to the children's removal from her care—and they shed no light on the strength of the bond as of March 2020. While the record showed S.P. and the children shared a loving relationship, it also showed the children were bonded with their caregivers, who were raising them in a safe, healthy environment in which they could thrive.
S.P. claims that Dionosio's opinion that the children would not suffer significant detriment "defies common sense" because he testified that the children were generally happy to see her at visits and displayed affection by hugging her, they knew the visitation schedule and became upset if a visit did not occur, and the oldest child wanted to live with her. There is no doubt S.P. and the children had a positive relationship. And while it may be that the children would suffer some detriment, that is not enough to trump adoption. "[A] parent may not claim entitlement to the [beneficial relationship exception] simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) Instead, the question is whether the parent-child relationship promotes the wellbeing of the children to such a degree as to outweigh the benefit the children would gain from a permanent, adoptive home. On the record before us, we cannot say the juvenile court erred in finding that S.P. failed to carry her burden in establishing this exception.
We do not question S.P.'s love for her children and their love for her. And it may be that the children would gain some benefit from maintaining the parent-child relationship. But, again, that is not enough. We thus close our discussion on this issue with the court's observations in In re A.S. (2018) 28 Cal.App.5th 131, 153, which are apt here: " 'A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.' [Citation.] 'Evidence that a parent has maintained " 'frequent and loving contact' is not sufficient to establish the existence of a beneficial parental relationship." ' [Citations.] Instead, to rise to the level that would warrant the selection of a permanent plan other than adoption, a parent must show 'a substantial emotional attachment that would cause the children to suffer great harm if severed.' [Citation.] Even if parents demonstrate a substantial emotional attachment, '[t]he benefit to the child from continuing such a relationship must also be such that the relationship " 'promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.' " ' " The court's conclusion that this was not the case here is sound.
The Juvenile Court Did Not Abuse Its Discretion in Concluding the Sibling Relationship Exception Did Not Apply
In assessing whether the sibling relationship exception applies, a juvenile court must first determine whether a termination of parental rights would cause a "substantial interference with a child's sibling relationship." (§ 366.26, subd. (c)(1)(B)(v); In re D.O. (2016) 247 Cal.App.4th 166, 174.) "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." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.) Only after the court has determined that the termination of parental rights will interfere with the sibling relationship, must the court then " 'weigh the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption.' " (In re D.O., supra, at p. 174; see § 366.26, subd. (c)(1)(B)(v) [directing juvenile court to consider "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"].) There was no abuse of discretion in the court's conclusion that the sibling relationship exception did not apply.
S.P. contends that the two sibling groups were very bonded and shared a significant sibling relationship, but she takes liberty with the record in trying to support this contention. For example, she states the "children were raised together in the same home . . . ." When this dependency began, the youngest child was three weeks old and the second youngest was one year old. They lived with their parents and siblings in family maintenance until April 2018, when the children were detained in foster care. They remained in foster care until the March 2020 permanency hearing, with the two sibling groups placed together only from June 2018 to December 2018. Thus, for a large portion of their very young lives, the two younger children were not in fact raised in the same house as their older siblings.
S.P. also relies on Agency reports that discuss the sibling bonds. Again, these are reports from early on in the proceeding. For example, in its March 2017 status review report, the Agency stated that the children "all appear to be bonded with their parents and with each other. [Z.M.] is very protective over her siblings and is attentive to the younger children." In a May 2018 report, the Agency observed that the "children all appear to be bonded with their parents and with each other." These observations occurred years before the permanency hearing. S.P. provides no evidence closer in time to the hearing showing a significant sibling bond.
The fact is that although all five children were placed together with A.M. in June 2018, the two younger children were moved to a new placement in December 2018. At that time, those two were approximately two-and-a-half and three-and-a-half years old. The sibling groups then lived apart from then until the March 2020 permanency hearing. Thus, by the time of the hearing, the two sibling groups had not lived together for nearly a year and a half, a significant portion of the younger children's lives. During that time, S.P. visited the sibling groups separately because she was unable to manage all five children during one visit, so the sibling groups were only together during family therapy and had minimal interaction. There was no evidence the children suffered as a result of being placed in two foster homes. And there was no evidence of a significant relationship between the two sibling groups, the severance of which would be detrimental to the children. As has been recognized, "Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship." (In re L.Y.L., supra, 101 Cal.App.4th at p. 952.)
S.P. derides the Agency's decision to split up the sibling groups, claiming it was done "for the benefit of the caregivers." This is a misstatement of the record. The children were split into two separate foster homes because they all had significant behavioral needs (including physically aggressive and sexualized behaviors towards each other) and needed more "intensive and individualized" attention than could be provided by one foster family. This also allowed the foster parents time for "self-care," which would, in turn, enable them to be better caregivers for the children. S.P.'s assertion that the separation of the groups "doesn't seem to be in the children's best interests" is simply contradicted by the record.
Finally, we note that termination of S.P.'s parental rights does not necessarily mean any relationship between the two separate sibling groups would also be terminated. "Unlike the parent-child relationship, sibling relationships enjoy legal recognition after termination of parental rights" (In re S.B. (2008) 164 Cal.App.4th 289, 300), and "it is not a foregone conclusion that terminating parental rights will substantially interfere with a sibling relationship . . . ." (In re D.O., supra, 247 Cal.App.4th at p. 175.) All involved parties—from the Agency to A.M. and her husband to the potential adoptive family that had been located for the younger children—recognized the importance of maintaining the sibling relationship and intended to facilitate the connection. While no parents had yet been officially designated as prospective adoptive parents, and thus there could be no formal contract for postadoption contact as of the permanency hearing, every indication was the sibling relationship would be fully supported.
DISPOSITION
The order terminating parental rights and ordering adoption as the permanent plan for R.M., Z.M., C.M., Mi.M., and Ma.M. is affirmed.
/s/_________
Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.