HOLLENHORST Acting P. J.
In case No. E054609, M.M. (Mother) and R.D. (Father) appeal from the termination of their parental rights under Welfare and Institutions Code
In case No. E054251,
This case has been before us previously in case No. E050875. We incorporate the statement of facts from our opinion in case No. E050875 with regard to the prior history of the case:
In the prior appeal, we affirmed the juvenile court's order denying Mother reunification services.
Meanwhile, the Department filed a section 366.21 status review report in September 2010. The children were placed in the homes of two relatives. G.D. was doing well in her placement. A.D. was on track developmentally, but he had a history of defiance and acting out. His caregiver reported those behaviors were improving. C.N. was meeting developmental milestones and appeared to be doing well. X.N. was also on track developmentally, but he had a history of defiance and acting out, including threatening his previous caregiver, punching the wall, and spitting. The current caregiver reported those behaviors were decreasing. All the children were participating in counseling. Mother and Father were still living together.
At the six-month review hearing in September 2010, the juvenile court continued reunification services for Father. The juvenile court warned Father that if he continued his relationship with Mother, the court "would not be able to return the children to a home where the mother is living."
The Department filed a section 366.21 status review report in March 2011. The report stated that G.D. and A.D. were placed together with the great-grandmother, and C.N. and X.N. were placed together in a foster family agency home. Father stated he was not currently with Mother; however, they were still legally married and Father had been overheard talking to Mother during supervised visits. The social worker believed Father was attempting to conceal their relationship from the Department. G.D. continued to live with the great-grandmother, and she was meeting developmental milestones and was exhibiting no behaviors of concern. A.D. was doing well in school but had a history of acting out, although the great-grandmother reported those behaviors were decreasing. C.N. was socially immature and was aggressive to classmates and his younger brother. His negative behaviors at school and in his foster home included "hitting others, [sw]earing, [s]exual comments that are `very' inappropriate, bowel control issues, bullying others, jumping on chairs, yelling out, stealing, saying he is stupid, saying or wishing someone was dead, and lying." X.N. was socially and emotionally immature, and he often acted out by "yelling, cursing, throwing objects and being destructive." He urinated on his clothes and had been found playing with his urine and feces in the bathroom. All four children were in counseling. The three boys had been placed with a paternal uncle, but the uncle moved to northern California and did not want the boys to move with him. The boys were then placed with the great-grandmother in November 2010. A month later, the great-grandmother indicated she could not handle the two younger boys' aggressive behavior and their removal from her home was pending. A.D. continued to live there with G.D.
The Department filed an addendum report in April 2011. G.D. and A.D. remained with the great-grandmother, while the two younger boys were placed together in a foster home. Father told the social worker he was in the process of filing for a divorce from Mother but had not yet completed the paperwork. Father said he had not seen Mother since the previous November but admitted he had spoken to her on the telephone during a supervised visit with the children.
When the 12-month review hearing began in March 2011, Father admitted he had not seen the children from November 2010 to February 2011. At the continued 12-month review hearing in April 2011, Father's counsel stated that Father had filed for divorce from Mother. Counsel for the children stated that the Department had "a plethora of information to show that . . . [Father] is staying with the mother," and G.D. and A.D. did not want to reunify with Father because they did not trust him, and they wanted to be adopted by their great-grandmother. The juvenile court found no substantial probability the children would be returned to Father's custody and terminated Father's reunification services.
In July 2011, the Department filed an ex parte application for an order suspending all visits with Mother, both telephonic and face to face. The social worker reported that Mother had not visited the children in months, claiming she had moved out of the area. However, when she telephoned the boys, their negative behaviors increased. After the April hearing, Mother had telephoned the children's caregiver demanding to speak to the children and had threatened the caregiver. After A.D. learned Mother was pregnant, he began seriously acting out; his therapist had told the caregiver to hide all of the knives when they went to bed at night. In an addendum report, the social worker stated that when G.D. was told her telephone calls with Mother had been stopped, G.D. had responded: "`I think that is probably a good idea (to stop all contact with her mother) because she tells lies all the time and I never know when she is telling the truth or lying to us. I really do not think she is pregnant like she claims to be. She (her mother) never told me in December that she was pregnant like she claims that she told me. I really would not mind if the contact was stopped completely, especially because it is affecting my brothers negatively.'"
At a special hearing on the application in August 2011, the juvenile court stated: "It would appear from the report that she is emotionally sabotaging her children by claims that she is pregnant . . . which has been very damaging information for them to receive. [¶] It is clear that the children, some more than others, are very emotionally fragile under any circumstance, and appear to have that fragility exacerbated following telephone calls and contact with mother, which, in turn, causes them to spiral out of control, for lack of a better word." Mother's counsel stated that Mother's contact with the children for the last few months had been solely through monitored telephone visits, and no telephone call had ever been terminated because Mother was inappropriate. Counsel further argued that even after the Department suspended Mother's contacts with A.D., C.N., and X.N. in June, the boys' behavior had continued to deteriorate, and there was thus no correlation between mother's telephone calls and the children's behavior problems. The juvenile court found by clear and convincing evidence that Mother's visits would be detrimental to the children, and the court terminated Mother's visitations.
The Department filed a section 366.26 and section 366.3 postpermanency report in August 2011. The social worker stated that G.D. was meeting developmental milestones, was doing well in school, enjoyed time with her family and friends, and articulated her needs effectively, although she showed signs of being parentified. She was in counseling but was due to be discharged after two more sessions because she had met therapeutic goals. Even after the juvenile court suspended Mother's visitation, mother continued to leave messages on the great-grandmother's home and cell phones and had attempted to contact G.D. on her I-Pod many times. A.D. was healthy and on track developmentally, but he had a history of defiance and acting out, which increased after he began weekly telephone calls with Mother in June 2011. Because of the increase in his negative behaviors, those calls were suspended. When A.D. learned that Mother was pregnant, his negative behaviors increased to the point his caregiver, his great-grandmother, could no longer control him, and he was moved to a group home. He was in counseling, but the therapist found him very resistant and in denial about his feelings toward Mother. Both G.D. and A.D. told the social worker they did not want to speak to Mother anymore because she constantly lied to them. C.N.'s negative behaviors had decreased since the telephone calls with Mother had stopped. X.N., then only five years old, had twice attempted suicide, first by wrapping a plastic bag around his head, and second, by wrapping a telephone cord around his neck. Each time, he had been assessed under section 5150 and had been prescribed medications for psychosis, depression, and ADHD (attention deficit hyperactivity disorder). C.N. and X.N. had been moved to a new placement in July 2011 because their negative and aggressive behaviors had increased.
Father had regular supervised visits with the children; the visits were appropriate, and the children enjoyed them. However, he stopped visiting them in July 2011 and did not respond to the social worker's attempts to contact him to set up visits. The children were having sibling visits twice a month for at least two hours each time.
The social worker reported that adoption was likely for G.D. G.D. had been living with the prospective adoptive mother, her great-grandmother, since March 2010, and wanted to be adopted by her. G.D. had adapted well to the placement, and the great-grandmother was committed to providing her a loving, stable home. The great-grandmother was open to maintaining sibling contact after the adoption; C.N. and X.N. were placed with members of the great-grandmother's church.
At the section 366.26 hearing as to G.D., counsel for the children represented to the juvenile court that G.D. wanted to be adopted and wanted parental rights terminated. Mother's and Father's counsel both argued that the sibling exception and beneficial relationship exception applied. The juvenile court found that neither exception applied. With respect to the sibling relationship exception, the court stated: "I do not find that the current arrangement is going to undermine the nature of their ongoing relationship with one another. They are placed with friends and family members. The long-term plan is for the sibling [A.D.] who's currently in a group home to get back in with his sister [G.D.] [¶] Even were they to have a reduction in the quality of their relationship, providing permanency to this child, who's much more stable than her sibling, that is why adoption is working out for her and clearly is in her best interest. [¶] I do not believe she should be penalized because her brothers are exhibiting behaviors that make it very difficult for them to be adopted at this time. That would seem to work a severe injustice on behalf of [G.D]." The juvenile court terminated Mother's and Father's parental rights as to G.D. and continued the section 366.26 hearings for 90 days as to the three boys.
In addition, the court reduced Father's visitation with A.D. to once a month. The court explained: "The father is not in reunification right now. I've given him an extensive opportunity and told him what he needed to do to get his life in order so that he can take placement and have the children returned to his care. [¶] For whatever reason, he hasn't taken those steps, and I do not find him continuing to have regular and consistent visitation with his child is in the best interest of his child from an emotional standpoint. [¶] This child is going to be finding stability in a home environment other than the father's. We have not been able to stabilize the child because of his—the limbo which the parents have put him in, so I'm going to limit father's visitation as indicated."
If a child cannot be returned to her parents and is adoptable, the juvenile court must select adoption as the permanent plan unless an exception to termination of parental rights applies under section 366.26, subdivision (c)(1). (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) Under section 366.26, subdivision (c)(1)(B)(v), parental rights should not be terminated if "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption."
A parent opposing adoption has a heavy burden to show that the exception exists. "It only applies when the juvenile court determines that there is a `compelling reason' for concluding that the termination of parental rights would be `detrimental' to the child due to `substantial interference' with a sibling relationship." (In re Daniel H. (2002) 99 Cal.App.4th 804, 813 [Fourth Dist., Div. Two].)
Here, the children were raised together in the same home until this dependency began, and we will presume they "shared significant common experiences" and had "existing close and strong bonds" with one another. (§ 366.26, subd. (c)(1)(B)(v).) However, the juvenile court found those factors were outweighed by G.D.'s need for permanence and stability. (See In re L. Y. L., supra, 101 Cal.App.4th at pp. 952-953.) Substantial evidence in the record supports that conclusion. G.D. informed the social worker she was happy to be adopted by her great-grandmother. G.D.'s life had been characterized by constantly shifting placements. She had been in foster care in 2002 and 2003, and when that dependency was terminated, Father was awarded primary custody. At some point, however, she returned to living with Mother. When the current dependency began, G.D. expressed fear about returning to foster care. After A.D. was removed from the prospective adoptive home, G.D. said she would miss him, but thought it was for the best. The juvenile court commented that preventing her from being adopted because her brothers' behaviors made it difficult for them to be adopted "would seem to work a severe injustice on [her] behalf . . . ." Moreover, the evidence showed that even if parental rights were terminated, the siblings would continue to visit one another.
We conclude the juvenile court did not err in concluding that the sibling relationship exception did not apply.
Father contends the juvenile court abused its discretion in reducing his visitation with A.D. to once a month prior to the section 366.26 hearing. He argues the reduction in visitation would diminish his success at establishing the parent-child benefit exception to the termination of parental rights "at the coming permanency planning hearing."
We review the juvenile court's orders concerning visitation under the deferential abuse of discretion standard. (In re S.H. (2011) 197 Cal.App.4th 1542, 1557-1558.) And, although Father challenges the Department's evidence and conclusions concerning visitation, our function on appeal does not include assessing the credibility of witnesses or reweighing the evidence. (In re Marcos S. (1977) 73 Cal.App.3d 768, 781.) Rather, we review the record in the light most favorable to the juvenile court's order. (In re R.M. (2009) 175 Cal.App.4th 986, 988.)
Even during the reunification period, the juvenile court may suspend or limit visitation upon a finding that continuing visitation would be harmful to the child's emotional well-being. (In re Brittany C. (2011) 191 Cal.App.4th 1343. 1357.) Here, the juvenile court stated that more frequent visitation with Father was not "in the best interest of his child from an emotional standpoint." Moreover, once reunification services have been terminated, the parent's interest in the care and custody of the child is no longer paramount, and the juvenile court's focus shifts to the child's best interests. (See In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In decreasing Father's visitation with A.D., the juvenile court appropriately focused on A.D.'s need for stability. We find no abuse of discretion in the juvenile court's order.
Under section 361.5, subdivision (f), if services are denied to a parent, the juvenile court "may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child." Under that statute, the Legislature has given the juvenile court discretion to permit or deny visitation. (In re J.N. (2006) 138 Cal.App.4th 450, 459.) We review the juvenile court's decision on that issue under the deferential abuse of discretion standard. (Ibid.)
Mother contends there was insufficient evidence for the court to conclude that her telephone calls to the children were detrimental to them. However, as recounted above, the social worker reported that the children's negative behaviors increased after Mother's telephone contact with them began. Indeed, the record as recounted above makes abundantly clear that these young boys were extraordinarily fragile emotionally. The social workers and the children's caregivers attributed the deterioration in their behavior to their contacts with Mother, and the juvenile court found the Department's report credible. Our function is not to reassess its conclusions about the evidence.
Moreover, we note that Mother had made threats over the telephone to G.D. and A.D.'s great-grandmother, which frightened her to the point they left home for several hours. We further note that the boys had not requested telephone contact with Mother after her contact was suspended.
We find no abuse of discretion in the juvenile court's order terminating Mother's visitation with the children.
The orders appealed from are affirmed.
