S.S., Sr. (father) appeals from orders terminating parental rights (Welf. & Inst. Code, § 366.26) to his two children.
The circumstances that necessitated the underlying proceedings and removal of these two children and their older half-sister from parental custody were very serious. Mother and father regularly engaged in domestic violence. He severely beat her even to the point of unconsciousness. In turn, mother physically abused the children by slapping them in the face and mouth, sometimes for minor infractions and sometimes hard enough to leave hand prints. Mother was reportedly prone to "uncontrollable rage" and violence.
Despite voluntary services offered by respondent Stanislaus County Community Services Agency (agency) to address these problems, mother neither followed through nor cooperated to keep the children safe. Father was also arrested and incarcerated. Consequently, in late 2008, the agency placed father's eight-month-old daughter, I., and approximately three-year-old son, S., along with H., their older half-sister, in protective custody and initiated these proceedings.
From the outset there were concerns about the emotional wellbeing of H. and S. (the boy). H. ignored mother's rages during early visits and made statements that "boys always hit girls." During the first two visits, mother had been volatile; she screamed, yelled and at one point assaulted social workers. H. constantly talked about the parents beating up each other and several times described physical fighting between mother and the maternal grandmother. The boy was prone to violence and generally mean to other children. Early on, he pushed H. down the stairs. He enjoyed tossing objects at people and hurting other children. H. and the boy were eventually assessed and later each assigned mental health therapists.
In late December 2008, the agency arranged a single foster home placement for all three children. At that point, according to their new foster parents' description, H. and the boy could not feed themselves, were not potty trained, used excessive profanity, had no manners, did not know how to bathe themselves, did not know the difference between right and wrong, never said thank you, and would not share.
The Stanislaus County Superior Court (juvenile court) adjudged all three children juvenile dependents in January 2009. It also removed them from parental custody, and ordered the parents to participate in a reunification plan. The plan included twice-monthly visits between mother and the children.
In February 2009, H.'s placement changed to a relative's home where she has since remained. H.'s aggressive behavior towards her younger siblings precipitated her move. Mother did not agree with H. being moved.
In a March 2009 interim review report, one social worker, who claimed he observed mother during many of her visits with the children, described her as demonstrating positive parenting skills and directly involved with all three children. The children had responded appropriately to their mother and seemed calm and relaxed when around her.
Around the same time, these children's foster parents reported there were numerous problems associated with the visits. Among those reported problems was that the boy, who had become potty trained, experienced enuresis on the way to a visit. He also wrung his hands and stuttered terribly the day of and up to three days after a visit. During visits, mother had been observed telling him she and his father would come get him and move far away. The boy appeared terrified in response. Mother also cursed numerous times at and in front of the children during visitation. The boy would resume cursing for days after a visit. Mother also once left I., who was only a year old, unattended and struck the boy during a visit.
As a consequence, the children's counsel asked the court that visits with mother be directly and continuously supervised at the agency. The juvenile court, after taking judicial notice of the foster parents' information, granted the request for supervision in April 2009.
Apparently the next few visits occurred in the context of parent/child labs, which were closely observed by the social worker and mother's clinician, MaryAnne Cose. In that closely monitored environment, mother seemed very aware she was being observed and there was a question whether she was exhibiting her normal parenting skills. The social worker did not observe mother acting inappropriately, except that a couple of times he overheard her making promises to the children about coming home. Once the social worker reinforced the need to refrain from making such statements, mother apparently stopped.
Mother was otherwise attentive to all three children and exhibited better follow through and consistency during these parent/child labs. She did not "overly raise her voice" to get their attention.
All three children responded to her requests when she voiced them with appropriate authority. They also appeared happy to see mother, as they smiled and gave one another hugs. I. was apprehensive of leaving her foster parent. However, she did engage in the labs.
H. and the boy were very active. Mother tried to calm them down by applying some parenting skills. She would eventually laugh at their behavior after which she would begin to enforce positive discipline, such as giving timeouts. H. and the boy would throw toys and continue to do so despite several warnings from mother that they would be placed in a timeout.
In June 2009, H.'s relative caregivers informed the court that her emotional health had improved greatly since her arrival in their home. She had fewer bad dreams and recounted few episodes of violence. She verbalized feeling safe and a desire to stay in her relatives' care. She was also attending weekly counseling. She did continue to have an issue with authority and needed strong guidance.
H.'s therapist, Dawn Ryan, also reported regarding weekly individual sessions the child had between April and June 2009. In play therapy, H.'s behavior was consistent with a child suffering from trauma, "repetitive with frequent themes of danger that cannot be avoided, no matter what we try." Although this play had eased slightly, H. continued "to enact scary scenarios, such as a `bad man' or `the evil witch' trying to kill us, characters from whom we cannot escape." Her play was fraught with danger. Her symptoms were consistent with a diagnosis of post traumatic stress disorder. She also demonstrated symptoms of hypervigilance and irritability at times.
Despite several visits with mother since starting therapy, H. "hardly ever" talked about her mother, even when Ryan asked her directly about mother. The child avoided direct discussion or reminders of her past history. More recently, H. had begun to mention her "moms" and reported she had more than one mother. H. did not mention her siblings in the therapy sessions. Ryan recommended ongoing individual therapy and to plan carefully for any visits and reunification for H. and mother.
The children's foster parents informed the court that the boy was doing amazingly well since H. moved in with the relative caregivers. Both the boy and I. had "completely turned around" and were doing well.
The one exception to the children's improvement was in how the children reacted to visits with mother. The boy became nervous, experienced enuresis, stuttered, twisted his top lip and would wring his hands. This behavior would normally last a day or so after each visit. He also had trouble sleeping after each visit. He never spoke of mother, the maternal grandmother or his father except in his nightmares the day after a visit. I. screamed and cried at the beginning of each visit for the first five to ten minutes.
Meanwhile, the boy had been in counseling since late February. His therapist, Kathryn Klein, supervised three visits between mother and all three children in March, June and July 2009.
The March 2009 visit was "very chaotic" with H. so hyperactive she was on the verge of spinning out of control. When prompted to do something, mother responded by tickling H., which only stimulated the child more. H. also attacked the boy three times during the visit. He head-butted H. with his forehead when trying to get her attention. Mother had no control over the children.
The June 2009 visit started out calmly with food. The boy seemed glad to see mother. He ran up, hugged her and called "mommy, mommy." However, he quickly got out of hand and mother had no control over his behavior. He became increasingly hyperactive and aggressive with H. and mother. Mother had great difficulties setting boundaries and handling all three children at once. H. and the boy would tease and taunt mother.
At the July 2009 visit, the boy again appeared very glad to see mother, by running up and hugging her. I. did not. Through most of the session, H. and the boy played and fought with each other. Mother would focus on one child at a time while the other two would act out of control. The little structure there was during the visit was around the food mother brought. The boy had told Klein that he missed mother.
At a July 2009 status review hearing, the juvenile court continued services and supervised visits. It also granted the agency discretion to allow mother longer visits outside the agency. In addition, the court prohibited father from being present and restricted visitation with the maternal grandmother to supervised visits between her and the children.
During the one and only unsupervised visit in August 2009, mother violated the court's order restricting father's and grandmother's visitation. H. and the boy reported to their respective caretakers and others that they visited together with mother, father and grandmother. Mother denied it. As a result, supervised visitation between mother and the children resumed.
Towards the end of August, H. showed a significant increase in anxiety according to Ryan, her therapist. H. also began hoarding food at that time. She was reportedly worried that mother would not have enough food for her (H.) if she were to return. H.'s play centered around caretaking her mother. Ryan noted that H. was quite parentified. She also had a limited ability to tolerate frustration and had very high expectations for herself.
Klein, the boy's therapist, reported his behaviors had become very concerning since the August visit. Reactions reported by his foster parents and daycare provider included nightmares from which the boy would wake up screaming, enuresis, stuttering, anxiety, and physical aggressiveness with his sister, other children at daycare and himself. Klein noticed an increase in the frequency of the boy touching his private parts and a very pronounced tremor in his hands after the August unsupervised visit.
I. was very irritable, tearful, and clingy at daycare following visits with mother.
Nonetheless, during some therapeutic supervised visits in the fall of 2009, the family appeared to enjoy their time together by laughing and playing games together. This was according to Cose, mother's clinician. There were some incidents which led mother to put H. or the boy in a timeout. Otherwise, the time the family had together had gone fairly well.
H. was excited to see mother, as evidenced by hugging her and stating "I missed you mommy." The child also seemed to seek validation from mother that she was behaving well. It appeared to Cose that mother and H. were emotionally bonded. H. stated on more than one occasion that she wanted to go home. During one visit, H. held onto mother for approximately ten minutes crying and repeating "I want to go home with you."
Cose also reported that the boy seemed to enjoy seeing mother. At times he displayed some anxiety before the visit, such as asking his foster parent "are you leaving?" or not wanting to come into the play room. These behaviors seemed to decrease as the visits continued. The boy seemed to be getting more comfortable with mother, as observed by him kissing and hugging her. However, he also made statements that he would hurt himself and then proceeded to bite or hit himself. He tended to do this when he did not get his way. The boy also played aggressively by throwing toys. Mother used timeout and follow through to decrease these behaviors in frequency and duration.
I. seemed to feel comfortable with mother. She did not cry or fuss during the sessions.
As time passed, there was growing concern about mother's ability to parent the children without her clinician's supervision as well as mother's ability to control her anger without verbal and/or physical aggression. In therapeutic visits, mother struggled to manage H.'s and the boy's behaviors. Mother appeared anxious during the therapeutic visits and utilized timeouts more frequently than other parenting skills. In addition, the boy continued to display troubling behaviors following visits.
According to a March 2010 report from mother's clinician Cose, it seemed, by their laughing and playing with mother, that the children enjoyed their therapeutic supervised visits with her. After each visit, mother would ask the children for a hug and kiss and they would comply.
The boy, however, continued to display some aggressive behaviors during the visits. Once when mother told him she would put a game away, he began to swing his fists at her, yelling "no." At times, mother made empty threats, which only upset the child more.
Cose wrote in detail about a March 18, 2010, visit, the last supervised visit described in the appellate record. The clinician characterized it as "very chaotic." It began with mother giving H. a time out for not listening to mother and jumping on a couch. Mother also placed the boy on a timeout for not listening, but he would get out of his timeout and still not listen to mother. When she later attempted to put him on another timeout, he spit in her face. Once placed on the timeout, the boy was very upset, as he cried and screamed.
Mother later asked him "remember when you and H. told me [at the preceding week's visit] you don't want to live with them anymore[?]" The boy responded while crying, "I did not say that." H. added "I still want to visit [the relative caregiver]."
During the remainder of the visit, H. and the boy had melt downs over toys. Mother had difficulty managing their behaviors. She continued to apply parenting skills in the visits, yet it seemed mechanical.
After a year of counseling among other reunification services, mother continued to display maladaptive behaviors. According to a psychologist, mother had no insight into her problems and had merely gone through the motions of reunifying. Mother's clinician shared a similar view. The evidence that nothing had changed and would not change could only mean that the children, if returned to mother's custody, would again be exposed to violence and abuse. Under those circumstances, continued attempts to reunify them with mother did not serve the children's best interests.
As a result, the juvenile court, in April 2010, terminated reunification services and reduced visitation to once a month.
An agency social worker filed a "366.26 WIC Report" in June 2010 recommending that the court find the children were likely to be adopted and order termination of parental rights. The relatives with whom H. was placed were committed to adopting her. The foster parents for the younger children were likewise committed to adopting them.
Although the three children were not being adopted together, the two sets of prospective adoptive parents had been become "family." They had monthly play dates with each other and would continue to visit one another even after adoption. Given the behaviors H. and the boy displayed when together for long periods of time, their current placements were in their best interest. The social worker also reported that since visits with mother had been reduced to once a month, the children's behaviors had subsided. The report also included the following information about each child.
Six-and-a-half-year-old H. continued to meet weekly with her therapist. According to the therapist, there had been a decrease in anxiety in H.'s play. She still did a lot of "caretaking" play but that was to be expected for awhile. Overall, H. was doing well.
H. was somewhat confused and conflicted regarding the matter of her adoption, according to the social worker. As a result of erroneous messages she continued to receive from mother, H. persisted in believing she might return to mother's custody. She acknowledged she liked living with her relatives but also stated that "being with my mom would make me happy." According to the social worker, H. had made enormous strides while living with her relative caregivers and clearly enjoyed the stability and safety of her daily routine.
The boy had a new therapist who was happy to report in June that the boy's concerning behaviors had diminished. The therapist had no concerns for him at that time. The boy's play themes during therapy were all in the normal developmental range. His daycare provider reported only one incident of aggression since visits with mother were reduced to once a month. Overall, the boy had stabilized and was doing well.
The boy, who by this time was five and a half years, was too young to give a statement about his placement or adoption. However, he appeared to be well bonded and happy with his foster parents.
I. had become a secure and mentally healthy two year old. She no longer displayed any needy behaviors towards the foster parents or her daycare provider. The child was sleeping through the night. She was also too young to give a statement. Like the boy, she appeared to be well bonded and happy with her foster parents.
The court eventually conducted its section 366.26 hearing in August 2010. Mother and father urged the court not to terminate parental rights based either on their relationships with the children or the children's sibling relationship. Mother, the maternal grandmother, mother's stepbrother, and father testified in support of the parents' position. One of the foster parent also testified, but in support of the agency's recommendation.
Mother thought the children had a close bond with her. Before the children were removed in November 2008, they lived in her home and she took care of them. She fed and clothed them as well as played with them. She also showed them the love and affection that a parent would. She denied ever slapping or hitting the children in spite of one of the jurisdictional findings that she had slapped the children.
Most of that time, H. would follow mother everywhere in the house. H. also called her "mommy," hugged her and said "I love you." The boy never went anywhere without mother and clung to her. She described him as "a mama's boy." Although he was not old enough to speak then, he did call her "mommy." Mother knew her son loved her because he always pushed others away from her in order to sit on her lap. Although I. was only a baby when she lived with mother, the infant giggled every time mother picked her up and smiled every time mother fed her.
Since the children's removal in November 2008, mother believed the majority of her visits with them went well. She agreed there was some chaos at a number of visits. H. and the boy were very active children. She and father were too.
In her opinion, the children would be very damaged emotionally if they could not see her anymore. This was because they loved her and because she believed they wanted to live with her.
Mother also opined that the children shared a close relationship with one another. H. was 11 months old when the boy was born. As she got used to him, H. would not let others touch him, in the sense that she wanted to feed and care for him. She was "like the boss of him." H. also had a nickname for him. When I. was born, H. was present and the first to hold the baby. H. also tried to play with her sister, as well as feed her.
H. "would probably cry her eyes out" if she could not see the boy and sister again. H.'s relationship with her siblings was so substantial that she would be permanently damaged if she could not see them again. They had a close bond.
On cross-examination, mother admitted H. was aggressive toward the boy, while she lived with mother and when H. did not get her way. "Every time I picked him up, she would start throwing little fits."
Also, mother acknowledged H. and the boy had difficulty getting along with one another. However, mother attributed their difficulty to the fact they were not in the same placement. It was mother's testimony that the children would be better off placed together.
Although she was aware H.'s placement changed to separate her from the boy, mother did not believe that it was because the children did not get along. Mother claimed H. said she was removed from her placement because she refused to call the foster parents "daddy." Mother believed H. over the service providers. Mother did eventually acknowledge her belief that the children's behaviors and problems at visits were related to the domestic violence in her home, which the children witnessed.
Mother was also cross-examined about her clinician's earlier description of the "very chaotic" March 2010 supervised visit. Mother agreed the visit was chaotic but she attributed the chaos to the boy. She also admitted the children had melt downs but denied it was for the remainder of the visit. According to her, the children cried at the end of the visit because they did not want her to leave. She disagreed with the clinician's assessment that she had difficulty managing H.'s and the boy's behaviors during the one hour visit. "It wasn't the whole hour visit."
Mother also did not believe that the boy displayed the same type of behavior at daycare, even though mother had seen him behave in a concerning way at visits. "I asked him why he's being a bad boy at day-care and he starts crying and says he does not." Mother also believed the daycare provider lied about the boy's behaviors. Mother claimed the daycare provider was a relative of the foster parents and "[o]f course family are going to lie for each other."
Asked about the supervised visit at which the boy head-butted H., mother claimed it was an accident. Mother similarly disagreed with other descriptions of her inability to control the children's behaviors at previous visits. Mother also disputed that her son was physically aggressive with her on multiple occasions. She claimed that he swung his fists at her and yelled "no" only once.
The maternal grandmother testified she had seen the children together almost every day prior to their removal. They appeared to have a close relationship. H. and the boy loved each other and always played together. There were no behavioral difficulties between them. H. also loved I. In addition, H. and mother appeared to have a close relationship.
Mother's stepbrother testified he lived with mother and the children for probably a couple of weeks sometime in 2008. The children appeared to have a close relationship with one another and a good relationship with mother. They told their mother they loved her and asked for hugs and kisses. She played with them. The last time he saw the children together was in 2009. They still appeared to be close to each other. Mother was also present. The children behaved "good" towards mother, called her "mommy," and appeared affectionate. The visit was positive.
Father testified all the children appeared to have a close brother/sister bond. They were always playing together, laughing.
The children's attorney called one of the foster parents as a witness. Counsel inquired about what events led to H. being removed and separated from her siblings. The foster parent testified H. was physically hitting and biting the younger children. H. pulled a curtain rod down and would threaten to hit the boy. She would push I. down on the floor. Several times, I., who was just starting to walk, hit her head. The children could never be left alone in a room together.
Since H. was placed with her relative caregivers, all three children had regular contact. "We try to do it once or twice a month, have a play date. We — and they talk on the phone as well." H. and the boy "mainly" talked on the phone at least once a week. They enjoyed the conversations, but they were four and five years old and got bored talking on the telephone. The children enjoyed the play dates, although H. and the boy still showed really aggressive behaviors, requiring them to be separated. The play dates were typically on a Saturday for five to six hours. H. and I. did not really interact at all at play dates. Sometimes they got along. H. liked a lot of attention and if I. received attention, H. would do something to I. to redirect the attention on her (H.). H. was the only child in her relatives' home.
The foster parent was well acquainted with H.'s relative caregivers. They had become really good friends. There was nothing in the relationship that would make it unpleasant for him to continue arranging for the children to see each other in the future. There was already a plan to continue the play days and a tentative plan for an overnight stay. In the foster parent's view, the children needed to stay in contact.
H.'s behavior had changed somewhat from the time she lived in the foster parents' home. She was not as aggressive. She also improved with not having all the attention on her. There were also definite improvements in how the children got along. Their social skills had improved.
The foster parent also testified neither he nor his partner was related to the children's daycare provider.
Following closing arguments, the juvenile court took the matter under submission to review the record, including two opinions from this court arising out of mother's previous challenges to the juvenile court's findings and orders. Upon its review, the juvenile court found the children were likely to be adopted and the parents had failed to establish that the benefit to the children of maintaining either their sibling relationship or their parent/child relationships outweighed the benefits of adoption.
In rejecting the parents' sibling relationship claim, the juvenile court found the sibling relationship was not of the type that there would be great harm by proceeding with adoption. The court cited H.'s removal from the other children due to the violence she displayed, the chaos at visits, its finding that the children were not getting along, and the lack of proof that the children would be harmed. It also found that the prospective adoptive parents were working so that the children could at least retain contact with each other.
On the issue of the parent/child relationships, the juvenile court found mother maintained regular visitation but could not find the children's relationship with her was beneficial to them. Although they knew who mother was, the children did not look to her for guidance or support. The court could not find the children had that significant of an attachment to the parents to justify a finding of detriment. The court also felt mother in her testimony minimized a number of important issues. In addition, the court cited the children's need for permanency.
The court, in turn, terminated parental rights.
Father contends there was no substantial evidence to support the juvenile court's rejection of the parents' argument that termination would substantially interfere with the children's sibling relationship. According to him, the foster parent's testimony that the children needed to stay in contact belied the court's finding that the sibling relationship was not of the type that there would be great harm by proceeding with adoption. Father adds that because adoptive parents are not obligated to continue sibling contact, the prospective adoptive parents in this case could decide one day they were not interested in maintaining the sibling relationship.
Section 366.26, subdivision (c)(1)(B) acknowledges parental rights termination may be detrimental to a dependent child under specifically designated circumstances. In particular, section 366.26, subdivision (c)(1)(B)(v) permits a finding of a detriment in situations where termination would cause a substantial interference with the sibling relationship.
If termination would substantially interfere with the sibling relationship, section 366.26, subdivision (c)(1)(E) lists numerous factors the juvenile court should consider in determining whether the circumstances of any given case warrant the application of the exception. First, a juvenile court must consider the nature and extent of the relationship, including, but not limited to, factors such as 1) whether the child was raised with a sibling in the same home, 2) whether the child shared significant common experiences, or 3) whether the child has existing close and strong bonds with a sibling. If the relationship exhibits some or all of these factors, the juvenile court must then go on to balance any benefit, emotional or otherwise, the child would obtain from ongoing contact with the sibling against the benefit of legal permanence the child would obtain through adoption. (§ 366.26, subd. (c)(1)(B)(v); see In re L.Y.L (2002) 101 Cal.App.4th 942, 949.)
This statutory exception merely permits a court, in exceptional circumstances, to exercise its discretion and choose an option other than the norm, which remains adoption. (In re Celine R. (2003) 31 Cal.4th 45, 53.) The statutory presumption is that termination is in the child's best interests and therefore not detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344.) Furthermore, it is an opposing party's burden to show that termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
When a court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion in so doing. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) For this to occur, the proof offered would have to be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
We begin our analysis by observing father applies the incorrect standard of review. Our review is not for substantial evidence to support the juvenile court's decision to reject the sibling relationship exception, but rather for whether the juvenile court abused its discretion by doing so. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) On this record, we conclude the juvenile court did not abuse its discretion.
The parents did not carry their evidentiary burden. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.) They offered little testimony regarding the sibling relationship, which the juvenile court could well have discounted as self-serving and deserving of little weight. In addition, while mother offered details about how H. related to her siblings before their removal and would be permanently damaged if she could not see then again, mother's testimony was so discredited on cross-examination and by other evidence in the record that the juvenile court did not find her credible. Otherwise, there was no evidence that the boy and I. had existing close and strong bonds with H. or that any of the children would suffer any harm without a continued sibling relationship.
The juvenile court could properly find, as it did, that the children did not share the type of sibling relationship, which was so beneficial to them that it outweighed the benefits of adoption. For the most part, given the children's young ages, they were hardly raised with one another in the same home or shared significant common experiences, except for the parents' domestic violence that H. and the boy witnessed. Also, we agree that the juvenile court could properly take into consideration H.'s change in placement due to the violence she displayed and risk of harm she created for her siblings as well as the chaotic interaction between H. and the boy during visits. Furthermore, there was essentially no evidence of sibling relationship between H. and I. H. and I. at best sometimes got along.
Finally, given the prospective adoptive families' friendship and history of arranging play dates and allowing phone calls between H. and the boy, the juvenile court could also have concluded that termination would not interfere with the siblings' relationship. The play dates and phone calls were apparently not court ordered. Rather, the prospective adoptive families made these arrangements on their own to advance the children's contact with one another. Father's claim that such contact may stop because adoptive parents are not obligated to maintain sibling relationships is not only speculative, it also ignores the friendship that had developed between the families, as well as the fact that the prospective adoptive families' efforts were apparently voluntary. Such evidence supports a reasonable inference that sibling contact would continue between these families.
As mentioned earlier, father also joins in the mother's appellate argument. She claimed the evidence established that the children would suffer detriment from a termination of their relationship with her. (§ 366.26, subd. (c)(1)(B)(i).) In her view, it was "obvious" that all three children formed positive, emotional attachments to her before their removal and maintained those attachments through regular and positive visits with her. In our opinion on mother's appeal, we concluded the juvenile court did not abuse its discretion by rejecting mother's claim.
The orders terminating parental rights are affirmed.
