In re Valerie A.

61 Cal.Rptr.3d 403

152 Cal.App.4th 987

In re VALERIE A. et al., a Person Coming Under the Juvenile Court Law San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. Antonia M., Defendant and Appellant.

No. D049901.

Court of Appeal, Fourth District, Division 1.

June 26, 2007.

John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, J. Jeffrey Bitticks, Deputy County Counsel, for Plaintiff and Respondent.

Monica Vogelmann, San Diego, for Defendant and Appellant.

Suzanne F. Evans, San Diego, for Minors.

IRION, J.

Antonia M. appeals from judgments terminating parental rights to her children, Valerie A. and Victoria A., under Welfare and Institutions Code section 366.26.¹ She contends she was denied a fair opportunity to litigate the sibling relationship exception to termination of parental rights under section 366.26, subdivision (c)(1)(E). Relying on case law interpreting the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(A), Antonia asserts the court erred when it did not make appropriate orders for sibling visitation and contact, thereby irreparably eroding the children's bonds to their older sibling. She posits that these and other defects in the proceedings undermined the statutory protections provided by the dependency scheme and violated her due process rights. We are not persuaded by Antonia's claims, and affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

Valerie and Victoria (the children) were born in March 2003. In August 2004 the San Diego Health and Human Services Agency (the Agency) removed them from the custody of their mother, Antonia M., because of her chronic substance abuse.² In an earlier dependency proceeding, the juvenile court terminated Antonia's parental rights to the children's older half-sibling, Adriana G., who was adopted in 2003 by her maternal grandmother (grandmother).

The Agency placed Valerie and Victoria with grandmother. Adriana, then eight years old, also lived in the household. Grandmother stopped working outside the home to care for the toddlers. In March 2005 she told the Agency she could no longer care for the children full-time. Grandmother suggested the Agency place the children with J.D., the mother of her teenage grandson.

Initially, the children had overnight visits on weekends with grandmother and Adriana. However, family tensions surfaced when grandmother wanted the children returned to her care and J.D. expressed a desire to adopt them. Grandmother told the social worker, "[J.D.] is going to get it some day and I will make sure of it." The social worker suspended grandmother's unsupervised visitation.

Adriana missed her sisters. Antonia asked the Agency to change her visitation schedule to allow Adriana to be present. The social worker accommodated her request, and Adriana saw her sisters approximately twice a month.

The court terminated reunification services at the six-month review hearing. It did not make findings or orders as to sibling visitation. However, Adriana continued to see Valerie and Victoria during their visits with Antonia.

At the December 2005 permanency planning hearing, the Agency recommended adoption. Antonia asserted termination of parental rights would be detrimental to the children because of the parent-child bond and their sibling relationships with Adriana. The court granted the Agency's motion to strike any reference to Adriana as the children's sibling. It reasoned Adriana was not the children's sibling because she had been adopted. The court terminated parental rights. Antonia appealed. (In re Valerie A. (2006) 139 Cal. App.4th 1519, 43 Cal.Rptr.3d 734 (Valerie A).)

On May 30, 2006, this court held that Adriana was the children's sibling within the statutory definition of that term, and reversed the judgment terminating parental rights. The case was remanded to the trial court with directions to conduct a new permanency planning hearing under section 366.26 and to permit the presentation of evidence relevant to the issue of the sibling relationship between the children and Adriana. (Valerie A., supra, 139 Cal. App.4th at pp. 1524-1525, 43 Cal.Rptr.3d 734.)

Remittitur issued on August 22, 2006. Antonia filed a motion for sibling visitation and asked the court to allow a neutral monitor to observe the siblings' interactions. Antonia also asked the court to appoint a guardian ad litem or counsel for Adriana to allow her to assert her interests in her sibling relationships. (§ 388, subd. (b).) On September 20, the court ordered sibling visitation to occur every other week for two hours, monitored by the social worker, and authorized a bonding study of the children and Adriana. The court denied without prejudice Antonia's request to appoint a guardian ad litem for Adriana.

Adriana, Valerie and Victoria had visits on September 22, October 20, and during a bonding study on November 3, 2006. Visits were suspended after the November 3 visit. After that visit, Antonia's sister, Blanca, who had driven Adriana to the visit, followed J.D. in her car. J.D. returned to the visitation site, where the social worker was monitoring the situation. J.D. saw another maternal relative, Alicia, speak to a man in a truck and read J.D.'s automobile license plate number to him. When J.D. confronted Alicia, Alicia threatened to "kick [J.D.'s] ass." The social worker called the police. An officer escorted J.D. and the children to their car. J.D. reported that on her drive home, someone driving an older Mercedes tried to run her car off the road. When advised of the situation, the court found that sibling visitation would be detrimental to Valerie and Victoria, and issued a temporary restraining order against Blanca and Alicia.

The section 366.26 hearing was held over several days in November 2006. Based on her observations of the recent visits, the social worker opined that neither Valerie nor Victoria had a sibling bond with Adriana. The social worker believed severing the children's relationship with Adriana would not be detrimental to them because the lack of sibling visitation during the last 10 months had not affected them adversely. J.D. originally had planned to allow Adriana to visit the children, but changed her mind because of the relatives' disparaging comments and threatening behaviors. She might consider allowing future contact. The social worker testified the relatives' behavior jeopardized the children's safety, and continued contact with Adriana was not in their best interests for that reason.

Antonia recalled that when the children were born, she lived with grandmother and Adriana for one month. She then moved two blocks away. Adriana saw the children almost every day until grandmother moved in December 2003, and then she saw them on weekends. Adriana helped care for the children. She would feed them, change their diapers and help put them to sleep.

Grandmother testified Valerie and Victoria always wanted to be with Adriana. They would climb on her, and one twin or the other would sleep with her at night. The children followed Adriana wherever she went. Even when they played next door with children their own age, they would stand on the fence and call, "Ana, Ana." When visits with the children stopped, Adriana became depressed and required therapy, which was ongoing.

Sonia, grandmother's, next-door neighbor, testified Valerie and Victoria constantly wanted to be with Adriana. They would stand at their door and call for her when she went outside. The siblings had mutual, loving relationships. Adriana would cajole her sisters to eat and make them laugh.

In her testimony, Adriana said she was happy to see her sisters. She missed them. At the first two visits Adriana was upset because Valerie and Victoria did not appear to recognize her. At the third visit the girls ran to her and hugged her when she arrived. They looked happy to see her. Adriana felt "really sad" after the visits ended because she loved her sisters and did not want to leave them. Adriana loved her sisters more than she loved anyone else.

Dr. Raymond Murphy observed the siblings' interactions in November 2005 and November 2006. In November 2005, he concluded "the sibling bond between the twins and ... Adriana is of great significance and certainly indicates that these children have a meaningful and well developed relationship and attachment." When the children saw Adriana at Dr. Murphy's office in November 2006, they ran to her and hugged her. Adriana initiated most of the interactions during the visit, but the children looked to her for support, help and affection. Dr. Murphy opined the children and Adriana shared a "`relatively significant ... and well-structured sibling bond.'"

The court found the children were adoptable and the sibling relationship did not outweigh the benefits of adoption. Based on the testimony of Adriana and the social worker, the court determined, from the children's point of view, there was "nothing unique" about their sibling relationships with Adriana. The court found the benefits of adoption outweighed the interference to the sibling relationships caused by termination of parental rights. The court determined sibling visitation was not in the best interests of the children and Adriana.

DISCUSSION

I THE SIBLING RELATIONSHIP EXCEPTION TO TERMINATION OF PARENTAL RIGHTS

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal. App.4th 567, 573, 32 Cal.Rptr.2d 535.) If the court finds a child is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the minor under one of the specified exceptions. (§ 366.26, subd. (c)(1).) The parent has the burden to show termination would be detrimental to the minor under one of those exceptions. (In re Andrea R. (1999) 75 Cal.App.4th...