In re D.O.

• Court: California Court of Appeal
• Decided: May 3, 2016
• Docket: D069105
• Status: Published

Opinion

Filed 4/11/16; pub. order 5/3/16 (see end of opn.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re D.O., a Person Coming Under the Juvenile Court Law. D069105 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. SJ11191D) Plaintiff and Respondent,

v.

JESSICA A.,

Defendant and Appellant,

SCOTT O.,

Defendant and Respondent,

JE.O., et al.,

Objectors and Appellants.

APPEAL from an order of the Superior Court of San Diego County, Sharon

Kalemkiarian, Judge. Affirmed. William Hook, under appointment by the Court of Appeal, for Defendant and

Appellant Jessica A.

Michele Anne Cella, under appointment by the Court of Appeal, for Appellants,

minors Je.O., Y.O., and Jo.O.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Kristen Ojeil, Deputy County Counsel, for Plaintiff and Respondent.

Linda Rehm, under appointment by the Court of Appeal, for Respondent Scott O.

Jessica O. (mother) and Scott O. (father) are the parents of D.O., who was one

year old when this case began. The mother has three older children (Je.O., Y.O, and

Jo.O., who were 11, 10, and nine years old, respectively, when this case began; together,

the Siblings) by another father. The juvenile court terminated parental rights as to D.O.

and ordered adoption as her permanent plan. On appeal, the mother and the Siblings

(together, appellants) contend the juvenile court erred by finding the sibling relationship

exception to adoption does not apply.1 (Welf. & Inst. Code, § 366.26, subd.

(c)(1)(B)(v).)2 Specifically, they contend the trial court erred when determining whether

there would be substantial interference with D.O.'s sibling relationships by improperly

considering the caregivers' assurances that sibling visits would continue, instead of by

considering the factors specifically enumerated in the statute. We find no error and

affirm.

1 The Siblings do not challenge the juvenile court's handling of their own dependency cases.

2 All further statutory references are to the Welfare and Institutions Code. 2 FACTUAL AND PROCEDURAL BACKGROUND

On July 31, 2014, the San Diego County Health and Human Services Agency

(Agency) filed a petition under section 300, subdivision (b), after D.O.'s mentally ill

father committed several acts of domestic violence and the mother failed to take

protective action or otherwise cooperate with the Agency. The juvenile court issued a

protective custody warrant for D.O. and the Siblings.

After the Agency filed the petitions, the mother absconded with D.O. and Y.O. As

of the August 1, 2014 detention hearing, their whereabouts were unknown, and neither

parent attended the hearing. The court made a prima facie finding on the petition and

ordered D.O. detained out of the parents' custody.

One week later, police located D.O. with the father in a grocery store parking lot

when the mother was caught shoplifting. D.O. and Y.O. were detained together in one

foster home; their brothers were detained together in another.

In its August 26, 2014 jurisdiction report, the Agency stated the mother's

whereabouts were unknown. The father's had also been, until he was arrested about one

week earlier. The mother had not visited her children since their removal, and the father

was restrained by the court from doing so.

The juvenile court made true findings on the Agency's petitions, declared the

children dependents of the court, and ordered them removed from parental custody. The

court further ordered that "sibling visitation shall occur." The court set a six-month

review hearing, but deferred addressing reunification services for the mother until she

made herself available to the Agency.

3 In its February 2015 six-month status review report, the Agency updated the court

on the children's placements. D.O. was moved from foster care to her paternal

grandmother's home on September 17, 2014. One month later, Y.O. was moved from her

initial foster home to her brothers' foster home. Neither of the parents visited D.O. or

made themselves available to the Agency during the six-month review period. The

Agency recommended the court set a section 366.26 hearing to determine D.O.'s

permanent plan. After the juvenile court found there was not a substantial probability

D.O. would be returned to her parents' custody within six months, the court terminated

their reunification services and set a section 366.26 hearing as to D.O. for July 8, 2015.

The Siblings' father continued to receive reunification services, and their dependency

case proceeded on a separate track. The court ordered that sibling visits continue.

The Agency's section 366.26 report recommended the juvenile court terminate

parental rights and select adoption as D.O.'s permanent plan. Neither parent had visited

D.O. "due to their limited contact with the Agency." The report stated D.O. was

adoptable and advised that the paternal grandmother was committed to adopting her.

D.O. and the Siblings were visiting each other twice per month. The Agency stated, "The

caregiver[s] of [D.O.] and the [Siblings] are committed to maintaining the sibling

interaction and visitation. Therefore, the sibling exception does not apply."

Meanwhile, the paternal grandmother reported to the Agency that she heard from

the mother, who said she was in her first trimester of pregnancy with the father's baby.

The paternal grandmother told the mother "she would be 'more than willing without any

question' to provide a home for the child."

4 In an addendum report, the Agency advised that a social worker had facilitated a

supervised visit between the mother and D.O. During the 20-minute visit, D.O. did not

recognize the mother and "appeared independent as she engaged in play individually

despite [the mother]'s efforts to engage her." The mother did not maintain contact with

the Agency after the visit. The father was incarcerated and had no contact with the

Agency or D.O.

The Siblings filed a petition under section 388 to establish their standing at the

section 366.26 hearing to assert the sibling relationship exception to adoption. The court

granted the petition without objection.

At the section 366.26 hearing, the juvenile court received in evidence certain of

the Agency's reports and addenda, and the stipulated testimony of two social workers and

the Siblings.

The social workers concluded "there's no interference with the sibling

relationship" because the paternal grandmother "is open to facilitating sibling visits and

contact, even after adoption." The paternal grandmother "consistent[ly] . . . remained

compliant with the social worker and [the] Agency," making D.O. available for visits and

compliance checks. The Siblings visited D.O. twice per month, and the paternal

grandmother had never been unavailable for a visit. The paternal grandmother had lived

with the Siblings (who are not her blood relatives) at one point, and had "demonstrated

her capacity and dedication to the maintenance of the sibling contact" by taking in the

mother's new baby (whose paternity had not been established) "so the siblings can stay

together." Thus, the Agency had "no current concerns with the caregiver's willingness

5 and capacity to continue facilitating sibling visits." Even if there were interference with

the sibling relationship, the Agency opined it would not be detrimental to D.O. "from her

perspective." (Italics added.) The Agency noted D.O. "does not discuss her siblings,"

and "speaks consistently in regards to [the paternal grandmother]."

The Siblings' stipulated testimony established that they lived with D.O. for

approximately the first year of her life, until the children were removed from parental

custody. Once in foster care, they visited at a fast food restaurant that had a playground.

Je.O. stated he "help[ed] [D.O.] play on the playground"; they hugged each other at the

beginning and end of the visits; and D.O. told Je.O. at the end of visits that she loves him.

Je.O. acknowledged that "sometimes [D.O.] knows [him] and sometimes she doesn't."

Je.O. wished for weekly visits with D.O., and was comfortable having them at the

paternal grandmother's home (having been there once before). Je.O. would "feel mad and

bad" if he did not live with D.O. again; he would "feel bad" if he could not visit her

again.

Y.O. said she and D.O. were very close.3 Y.O. often acted as D.O.'s caretaker.

During visits, Y.O. played with and helped feed D.O. Y.O. said, "[D.O.] enjoys herself at

the visits because she laughs and smiles. She reaches for me when she needs help while

playing." Y.O. also stated, "[D.O.] and I love each other. She runs up to me at the visits

and says she loves me every time we see each other. She and I are still very close, and

she calls me 'sissy.' I miss living with her. She used to cry at the end of our visits when

3 The Agency's detention report, filed 14 months earlier, stated "[D.O.] appeared bonded with her older sister [Y.O.]." 6 we said goodbye, but she has gotten over it. When our visits end, we always hug

goodbye and tell each other, 'I love you.' " Y.O. wanted to see D.O. more often and

would be sad if they could not live together again; she would be "even more sad" if they

could not visit each other anymore. Y.O. acknowledged she did not "know how [D.O.]

would feel if she couldn't see [Y.O.] again."

Jo.O. stated in his stipulated testimony that D.O. seemed happy to see the Siblings

during visits and said things like " 'Brother' " and " 'Sissy!' " Jo.O. would help D.O. play

and "hold her hand a lot." At the end of visits, D.O. seemed sad and would cry a little,

and the children would all hug and say they love each other. Jo.O. wished he could see

D.O. every day, said he would be "really sad" if he could not, and would be "sad, sad,

sad" if he were unable to continue visiting her.

After receiving evidence, the juvenile court heard argument from counsel. The

Agency argued D.O. was adoptable and no exceptions to the statutory preference for

adoption existed. D.O.'s counsel (who was also her guardian ad litem) joined in the

Agency's argument, as did the father. The Siblings and the mother argued that the sibling

relationship exception applied. The mother argued that the parent-child beneficial

relationship exception also applied.

The juvenile court found D.O. adoptable, found neither of the invoked exceptions

to adoption applied, terminated parental rights over D.O., and selected adoption as her

permanent plan. The court explained that the sibling relationship exception "really only

comes into light . . . if there is a demonstrated interference" with such a relationship. The

court found that although there is "some evidence" that D.O. feels a sibling bond, there is

7 "absolutely no evidence that that bond would be interfered with." (Italics added.) The

court based this finding on the following evidence: (1) the paternal grandmother's proven

track record of facilitating visits with D.O. and the Siblings (whom the court observed are

not related to the paternal grandmother); (2) the fact the paternal grandmother took in the

mother's new baby, "who she's not even sure is related to her by blood"; (3) the Siblings'

nonrelative caregivers' proven track record of facilitating sibling visits; (4) the maternal

grandmother's participation in at least one visit; (5) the fact that neither parent objected to

placing D.O. with the paternal grandmother; and (6) the lack of any evidence that the

paternal grandmother, the Siblings' caregivers, or the maternal grandmother "would in

any way interfere" with the sibling relationship. The court concluded, "So I don't find

that there would be substantial interference." The court clarified it was not relying on the

existence of a postadoption contact agreement.

DISCUSSION

Appellants contend the juvenile court "did not conduct the analysis required by"

section 366.26, subdivision (c)(1)(B)(v) because the court based its finding of no

substantial interference solely on the caregivers' "unenforceable commitment to continue

sibling visits" and not on the factors expressly enumerated in the statute. We find no

error.

I. Overview of the Sibling Relationship Exception

"At a section 366.26 hearing the court is charged with determining a permanent

plan of care for the child." (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) The court

may order one of three alternatives: adoption, legal guardianship, or long-term foster

8 care. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.); § 366.26,

subd. (b)(1)-(5).) "Adoption, where possible, is the permanent plan preferred by the

Legislature." (Autumn H., at p. 573.) Adoption necessarily involves termination of the

biological parents' legal rights to the child. (Id. at p. 574.) Once the court determines by

clear and convincing evidence that a child is likely to be adopted, the burden shifts to any

party opposing adoption to show that termination of parental rights would be detrimental

to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re

C.F. (2011) 193 Cal.App.4th 549, 553; In re S.B. (2008) 164 Cal.App.4th 289, 297.)

The "sibling relationship" exception codified in section 366.26, subdivision

(c)(1)(B)(v) provides an exception to termination of parental rights when "[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, [1] whether the child

was raised with a sibling in the same home, [2] whether the child shared significant

common experiences or has existing close and strong bonds with a sibling, and

[3] 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); see In re Valerie A. (2007) 152 Cal.App.4th 987, 998.)

Under section 366.26, subdivision (c)(1)(B)(v), the juvenile court "is directed first

to determine whether terminating parental rights would substantially interfere with the

sibling relationship. . . ." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952; see In re

Daisy D. (2006) 144 Cal.App.4th 287, 293 ["The exception . . . applies only when

adoption would result in 'substantial interference with a child's sibling relationship.' "].)

9 "If the court determines terminating parental rights would substantially interfere with the

sibling relationship, the court is then directed to 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 L.Y.L., at p. 952, italics added; § 366.26, subd.

(c)(1)(B)(v).) The sibling bond exception is evaluated from the perspective of the child

who is being considered for adoption, not the perspective of that child's siblings. (See In

re Celine R. (2003) 31 Cal.4th 45, 54-55.)

"The author of the legislation adding the sibling relationship exception anticipated

that 'use of the new exception "will likely be rare," ' meaning 'that the child's relationship

with his or her siblings would rarely be sufficiently strong to outweigh the benefits of

adoption.' " (In re Daisy D., supra, 144 Cal.App.4th at p. 293; see In re Valerie A.,

supra, 152 Cal.App.4th at p. 1014 ["application of this exception will be rare, particularly

when the proceedings concern young children whose needs for a competent, caring and

stable parent are paramount"].)

To the extent appellants contend the juvenile court erroneously construed the

factors it was required to consider under section 366.26, subdivision (c)(1)(B)(v), we

review the claim de novo. (See In re A.L. (2010) 190 Cal.App.4th 75, 78.) To the extent

appellants challenge the juvenile court's ultimate determination, we apply the substantial

evidence standard to the juvenile court's underlying factual determinations, and the abuse

of discretion standard to the court's weighing of competing interests. (See In re Anthony

B. (2015) 239 Cal.App.4th 389, 395.)

10 II. Analysis

Before we address the merits of appellants' contention, we reiterate the rarity with

which the sibling relationship exception applies. (See In re Daisy D., supra, 144

Cal.App.4th at 293; In re Valerie A., supra, 152 Cal.App.4th at p. 1014.) The fact D.O.'s

counsel and guardian ad litem argued against the exception's applicability suggests this is

not one of those rare instances in which the exception applies. We turn now to the

merits.

Appellants' overarching premise—that the juvenile court could consider only those

factors expressly enumerated in section 366.26, subdivision (c)(1)(B)(v), and no others—

is undermined by the statute's plain language. (See, e.g., Young v. Gannon (2002) 97

Cal.App.4th 209, 223 ["The court looks first to the language of the statute; if clear and

unambiguous, the court will give effect to its plain meaning."].) Although the statute

expressly enumerates three factors, it also provides that the court's analysis should "tak[e]

into consideration the nature and extent of the [sibling] relationship, including, but not

limited to," those expressly enumerated factors. (§ 366.26, subd. (c)(1)(B)(v), italics

added; see In re L.Y.L., supra, 101 Cal.App.4th at p. 952, fn. 6 ["[A]s the Legislature

noted, the list in the statute is not exclusive."].) "The phrase 'including, but not limited to'

is a term of enlargement, and signals the Legislature's intent that [a statute] applies to

items not specifically listed in the provision." (Major v. Silna (2005) 134 Cal.App.4th

1485, 1495; see People v. Arias (2008) 45 Cal.4th 169, 181 ["the proviso 'including, but

not limited to' 'connotes an illustrative listing, one purposefully capable of

enlargement' "]; In re M.W. (2008) 169 Cal.App.4th 1, 5-6 ["use of the term 'including,

11 but not limited to' . . . suggests a legislative intention to allow broad discretion"].) Thus,

the plain language of section 366.26, subd. (c)(1)(B)(v) authorized the juvenile court to

consider factors other than those expressly articulated in the statute—such as a proven

history of, and expressed commitment to, sibling visits.

Appellants argue by analogy that because a juvenile court cannot rely on an

unenforceable promise of future visitation when deciding whether the parent-child

beneficial relationship exception applies (see In re C.B. (2010) 190 Cal.App.4th 102, 128-

129), the court likewise cannot consider promises of future visitation when deciding

whether the sibling relationship exception applies. The analogy is inapt. (See In re S.B.,

supra, 164 Cal.App.4th at p. 300.) Freeing a child for adoption necessarily requires

terminating—that is, substantially interfering with—the parent-child relationship. (See In

re Autumn H., supra, 27 Cal.App.4th at p. 574.) But "[u]nlike the parent-child

relationship, sibling relationships enjoy legal recognition after termination of parental

rights." (In re S.B., supra, 164 Cal.App.4th at p. 300.)4 Thus, it is not a foregone

conclusion that terminating parental rights will substantially interfere with a sibling

relationship, and the juvenile court must make this factual determination.

The Agency cites several cases that indicate assurances of continued sibling visits

are relevant to this determination. (See In re L.Y.L., supra, 101 Cal.App.4th at pp. 951-

4 Consistent with this distinction, the subdivision that sets forth the parent-child beneficial relationship exception does not require the juvenile court to determine whether there will be substantial interference with the relationship, whereas the subdivision setting forth the sibling relationship exception does. (Compare § 366.26, subd. (c)(1)(B)(i) with § 366.26, subd. (c)(1)(B)(v).) 12 952; In re Daisy D., supra, 144 Cal.App.4th at p. 293; In re Salvador M. (2005) 133

Cal.App.4th 1415, 1422; In re Valerie A., supra, 152 Cal.App.4th at p. 1014; In re Jacob

S. (2002) 104 Cal.App.4th 1011, 1019.) We find these cases persuasive. We

acknowledge that the juvenile courts in the cited cases did not rely exclusively on evidence

regarding sibling visits, but also considered (to varying degrees) the factors enumerated in

section 366.26, subdivision (c)(1)(B)(v). Given the potential tenuousness of future sibling

visits, it is the better practice for juvenile courts to also consider the expressly enumerated

factors. However, we conclude it was not error to depart from that practice here, where

the record contains substantial evidence that would have allowed the juvenile court to

otherwise reach the same conclusion by considering the expressly enumerated factors.

Although appellants frame their challenge primarily as a legal one directed at the

propriety of considering future sibling visits at all, they also assert that "no evidence

supported the juvenile court's finding that the sibling relationship would remain intact,

except for speculation that the caregivers would continue to allow it." This argument

ignores that it was appellants' burden to establish there would be substantial interference,

not the Agency's burden to establish there would not. The juvenile court found there was

"absolutely no evidence that the bond would be interfered with." (Italics added.) Thus,

appellants' unsubstantiated assertion on appeal that "many things can happen over the

next 16 years" is speculative. (See, e.g., In re Daisy D., supra, 144 Cal.App.4th at p. 293

["it was anticipated that the minor would be adopted by her paternal grandparents, who

intended to maintain contact between the minor and her half siblings. Appellant's

assertion that animosity between her and the paternal grandparents would lead to a

13 cessation of sibling visits after the adoption is speculative and unsupported by the

record."]; In re Jacob S., supra, 104 Cal.App.4th at p. 1019 ["The grandparents have said

they . . . are open to maintaining ties between [the adoptive children] and their siblings.

The grandparents have done so thus far, and there is no evidence they intend to stop once

they have adopted [the adoptive children]."]; In re Salvador M., supra, 133 Cal.App.4th

at p. 1422 ["there is nothing in this record to suggest that the brothers' relationship would

be terminated, as both [the mother] and the grandmother have indicated they recognize

the value of the sibling relationship"].)

In any event, the juvenile court cited five evidentiary bases (discussed above)

supporting its conclusion. Notably, the court did not rely solely on unsupported

assurances from the caregivers that they would allow future visits; rather, the court cited

the caregivers' proven track record of facilitating visits, and the paternal grandmother's

commitment to the mother's new baby (who is related to D.O. but may not be related to

the paternal grandmother). The court did not err.

Even if the juvenile court erred in determining there would be no substantial

interference with the sibling relationship, the error would not be prejudicial because it

does not appear reasonably probable appellants would have obtained a more favorable

result absent the error. (See In re Jonathan B. (1992) 5 Cal.App.4th 873, 876; People v.

Watson (1956) 46 Cal.2d 818, 836.) Appellants cite the Siblings' stipulated testimony

and the juvenile court's finding that there was "some evidence" that D.O. feels a sibling

14 bond.5 At most, this establishes the existence of a sibling relationship;6 it says nothing

about the detriment, if any, D.O. would suffer if that relationship were substantially

interfered with, or whether that detriment would outweigh the benefits to D.O. of the

stability and permanence of adoption. In the case of a two-year-old dependent who spent

only the first year of her life with her siblings and then visited them only twice each

month during the second year, we find it is not reasonably probable that the juvenile court

would have resolved that balancing test in the Siblings' favor. (See, e.g., In re Daisy D.,

supra, 144 Cal.App.4th at p. 293 [finding no prejudice where "the minor was just over

one and one-half years old when she was placed separately from her half siblings in the

home of the paternal grandparents. In the ensuing two years, the minor had visits with

her half siblings between two and four times a month. And although the minor clearly

enjoyed the time she spent with her half siblings, there was no evidence that the detriment

she might suffer if visits ceased presented a sufficiently compelling reason to forgo the

stability and permanence of adoption by caretakers to whom she was closely bonded."].)

5 Although the focus of the sibling relationship exception is the impact on the adoptive child and not her siblings (see In re Celine R., supra, 31 Cal.4th at pp. 54-55), "evidence of the [siblings'] relationship with the child . . . might be relevant as indirect evidence of the effect the adoption may have on the adoptive child" (In re Naomi P. (2005) 132 Cal.App.4th 808, 823).

6 Although substantial evidence supports the juvenile court's finding of a sibling bond, the record suggests the bond may not have been a strong one. Je.O. acknowledged that "sometimes [D.O.] knows [him] and sometimes she doesn't." Y.O. acknowledged that D.O. used to cry at the end of visits but has "gotten over it," and that she (Y.O.) does not "know how [D.O.] would feel if [D.O.] couldn't see [Y.O.] again." 15 DISPOSITION

The order is affirmed.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

MCDONALD, J.

16 Filed 5/3/16

CERTIFIED FOR PUBLICATION

In re D.O., a Person Coming Under the Juvenile Court Law. D069105 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. SJ11191D) Plaintiff and Respondent,

JESSICA A., ORDER CERTIFYING OPINION Defendant and Appellant, FOR PUBLICATION

THE COURT:

The opinion in this case filed April 11, 2016, was not certified for publication. It

appearing the opinion meets the standards for publication specified in California Rules of

Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is GRANTED. IT IS HEREBY CERTIFIED that the opinion meets the standards for publication

specified in California Rules of Court, rule 8.1105(c); and

ORDERED that the words "Not to Be Published in the Official Reports" appearing

on page 1 of said opinion be deleted and the opinion herein be published in the Official

Reports.

HALLER, Acting P. J.

Copies to: All parties