Filed 5/25/16 Certified for Partial Pub. 6/13/16 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re K.L. et al., Persons Coming Under the
Juvenile Court Law.
MARIN COUNTY HEALTH AND
HUMAN SERVICES DEPARTMENT,
Plaintiff and Respondent, A145648
v.
(Marin County Super. Ct.
D.J., Nos. JV 25305A, JV 25306A,
Defendant and Appellant. JV 25307A)
In re K.L. et al., Persons Coming Under the
Juvenile Court Law.
MARIN COUNTY HEALTH AND
HUMAN SERVICES DEPARTMENT,
Plaintiff and Respondent, A145970
v.
(Marin County Super. Ct.
D.J., Nos. JV 25306A, JV 25307A)
Defendant and Appellant.
These consolidated appeals arise from dependency proceedings involving three
siblings: (1) K.L. (Older Brother), a boy born in October 2003, (2) K.L. (Sister), a girl
1
born in November 2005, and (3) K.L. (Younger Brother), a boy born in June 2009. The
children were removed from the custody of their mother, D.J. (Mother), in early 2011,
and the juvenile court terminated reunification services to Mother later that year. In
January 2015, after having spent several years in placements that included a guardianship
and foster care, the children were living in three different homes, and the juvenile court
determined those placements were appropriate. In May 2015, Mother filed a petition
under Welfare and Institutions Code section 3881 asking the court to modify the
children‘s placements and order that they be placed with their maternal grandmother
(Grandmother). The court denied the petition. The court later terminated Mother‘s
parental rights as to Sister and Younger Brother, and selected adoption as the permanent
plan for Sister and Younger Brother.
In these consolidated appeals, Mother challenges the order denying her section
388 petition and the order terminating her parental rights as to Sister and Younger
Brother. Mother contends (1) the court erred by denying her section 388 petition without
holding an evidentiary hearing, (2) there was not clear and convincing evidence Younger
Brother was adoptable, and (3) the court should have applied the sibling relationship
exception to termination of parental rights set forth in section 366.26,
subdivision (c)(1)(B)(v). We affirm the juvenile court‘s orders.
I. BACKGROUND
A. The First Phase of Dependency Proceedings
1. Detention
On February 18, 2011, the Marin County Health and Human Services Department
(the Department) filed a juvenile dependency petition on behalf of the children, alleging
Mother had failed or was unable to supervise or protect them adequately (see § 300,
subd. (b)). According to the petition and a subsequent detention report prepared by the
Department, Mother left the children at home unsupervised on the evening of February
16, 2011. Younger Brother (then 20 months old) turned on the gas stove, causing a fire
1
All statutory references are to the Welfare and Institutions Code unless otherwise
stated.
2
in the apartment. Older Brother (then seven years old) and Sister (then five years old) ran
to get help, leaving Younger Brother alone in the apartment. Neighbors were able to put
out the fire safely. Neighbors reported (and Older Brother and Sister confirmed) that
Mother frequently left the children alone in the home. Younger Brother had been seen
wandering around the apartment complex without assistance or supervision. Mother was
arrested for felony child endangerment. The children were taken into protective custody
and placed in foster care.
Police officers and a social worker who responded to the apartment after the fire
reported it was in disarray. The apartment smelled of marijuana, and the officers found
marijuana buds and residue in the apartment, some of which were accessible to the
children.
The social worker spoke with Mother, who reported that the children‘s father
passed away in August 2009. Mother stated she had been depressed since his death.
Mother acknowledged the condition of her home. She acknowledged leaving her
children at home unsupervised.
On February 17, 2011, the social worker spoke with the children‘s maternal aunt
(Aunt). Aunt stated she had been concerned about the children for some time. Aunt
believed Mother had a problem with marijuana; she had heard from Older Brother and
the family‘s neighbors that Mother frequently left the children alone; and Mother had told
Aunt that, just a few days earlier, Younger Brother had wandered out of the apartment
while Mother was taking a nap, and a neighbor had found him in the street. Aunt stated
she wished to be considered as a placement option for the children, and the Department
began the assessment process. Mother supported placement of the children with Aunt.
The Department noted it had received referrals in 2008 and 2009 alleging neglect
of the children. Although the Department had found those referrals to be unsubstantiated,
the social workers who had investigated the referrals had noted some concerns, including
the unkempt condition of the home, Mother‘s statement she suffered from depression,
and her statement she had smoked marijuana since she was a teenager to cope with stress.
3
In its February 2011 detention report, the Department noted these earlier reports
―indicat[ed] that [Mother‘s] substance use and depression have been ongoing issues.‖
The Department concluded Mother had a history of negligent and inadequate
supervision of the children. The Department recommended continued detention of the
children until Mother could address the issues that had put the children at risk. On
February 22, 2011, consistent with the Department‘s recommendation, the court ordered
the children detained and ordered that reunification services be provided to Mother.
2. Jurisdiction and Disposition
On March 21, 2011, the court amended the petition to eliminate an allegation
about Mother‘s use of marijuana, and Mother submitted to the court‘s jurisdiction based
on the amended petition. The court sustained the amended petition and ordered
continued visitation and services.
In its April 2011 disposition report, the Department reported the children had been
moved to the home of Aunt. At the disposition hearing, the court ordered the children
removed from Mother‘s physical custody. The court ordered the Department to provide
reunification services to Mother.
3. The Termination of Reunification Services
In an October 2011 report for the six-month review hearing, the Department
recommended that reunification services to Mother be terminated. Mother had been
evicted from her apartment in September 2011 for failure to pay rent, despite having the
means to do so. Mother participated in supervised visits with the children for the first
few months after they were detained. But after visitation became unsupervised, Mother‘s
efforts to visit and call the children declined dramatically. Mother failed to submit to
drug testing for several months, finally testing negative in October 2011. She failed to
remain in therapy. She did not comply with other components of her case plan, including
arranging for a physical examination and maintaining a clean and safe home environment
for the children.
On October 17, 2011, the court found Mother had made minimal progress in
addressing the problems that had led to the children‘s removal from Mother‘s custody.
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The court terminated reunification services to Mother and set a section 366.26
permanency hearing.
4. The Guardianship
In its February 2012 report for the section 366.26 hearing, the Department
recommended guardianship as the permanent plan for the children. The Department
recommended the children remain with Aunt, who wished to serve as their guardian
rather than to adopt them. The children‘s court appointed special advocate (CASA)
reported that, in December 2011, Grandmother had moved in with Aunt and the children.
At the section 366.26 hearing on February 22, 2012, the court adopted the
Department‘s recommendation and selected guardianship as the permanent plan for the
children. The court appointed Aunt the legal guardian of the children. The court issued
letters of guardianship on March 27, 2012.
In August 2012, the Department recommended that the court dismiss the
dependency proceedings and order that Aunt remain the guardian of the children.
Although Aunt experienced stress from caring for the three children, it appeared to the
Department that she was handling the adversity well. On July 31, 2012, Aunt stated that
Mother had only visited the children three times since the beginning of 2012. On August
20, 2012, the court dismissed the petition and terminated the dependency proceedings.
B. The Second Phase of Dependency Proceedings
1. The Termination of the Guardianship
In May 2014, the Department filed section 388 petitions seeking reinstatement of
dependency proceedings and termination of Aunt‘s guardianship of the children. In the
section 388 petitions and in subsequent reports, the Department stated that, in March
2014, dependency petitions alleging Aunt had physically abused the children had been
filed and sustained in Contra Costa County. According to the Department, the court in
Contra Costa County sustained an allegation that Aunt ―has used inappropriate physical
discipline on the child (all 3 children) and the child is frightened to return to the home.‖
While the children were living with Aunt, there were three referrals and five calls of
concern about the children‘s welfare, including allegations that Aunt frequently yelled
5
and cursed at the children, telling them they were stupid and that she hated them. There
were also allegations that Aunt had hit the children and pulled Sister‘s hair. During the
proceedings in Contra Costa County, the children were removed from Aunt‘s home and
placed with their godparents. In April 2014, the Contra Costa County Superior Court
transferred the matter back to Marin County.
At a hearing on June 30, 2014, the court in Marin County granted the
Department‘s section 388 petitions, reinstated the Marin County dependency
proceedings, dismissed the petitions that had been filed in Contra Costa County, and
terminated Aunt‘s guardianship. The court denied a request by Mother for reunification
services. The court set a section 366.26 hearing for October 27, 2014, to select a new
permanent plan for the children. The section 366.26 hearing was later continued to
January 5, 2015.
2. Placement Changes
In September 2014, five-year-old Younger Brother was removed from the
godparents‘ home in Sacramento for safety reasons, after he engaged in aggressive
behavior in the home and at school. Younger Brother bit another child in the godparents‘
home on several occasions. He also choked himself, put glass in his mouth, stomped on
the small family dog, and punched Older Brother, then 10 years old, in the stomach hard
enough to cause him to vomit. At school, Younger Brother punched his teacher, hit other
students and threw a book at a classmate‘s face.
Upon his removal from the godparents‘ home, Younger Brother was placed in a
foster home in Marin County. The children‘s CASA believed Younger Brother should
instead be placed in a therapeutic foster home. In October and December 2014, the
Department reported it was searching for an intensive treatment foster care home for
Younger Brother, preferably located near his siblings. As of December 2014, he was
being assessed for an individualized education plan (IEP) at school. He was diagnosed
with post-traumatic stress disorder.
In November 2014, it came to the attention of the godparents and the Department
that Older Brother had engaged in inappropriate sexual behavior with other children in
6
the home. He was removed from the godparents‘ home and placed in an intensive
therapeutic foster care home in Sacramento County. He was participating in individual
therapy and receiving therapeutic behavioral services.
Sister remained in the godparents‘ home.
3. Visitation
In late 2014, the court suspended visitation between the children and Mother, Aunt
and Grandmother pending a determination by the children‘s therapists that visitation
would be appropriate. In its report for a December 8, 2014 review hearing, the
Department recommended that visitation remain suspended. The Department stated that
earlier visits with Aunt and Grandmother had been emotionally taxing for the children.
Older Brother and Sister stated Aunt did things in the visits ―to ‗make them feel bad.‘ ‖
The Department stated Grandmother ―has been unable to protect the children from their
aunt, and recently left them with their aunt when she was supposed to be monitoring the
visit.‖ While Mother had not caused the children direct harm during her visits, she had
been inconsistent in visiting with them. The children had been frustrated during a recent
visit at a family party when Mother spent more time with other adults than with the
children. Finally, the Department recommended a temporary suspension of visits among
the siblings, in light of Older Brother‘s sexualized conduct.
At the December 8, 2014 hearing, the court left in place the order suspending
visitation pending further input from the children‘s therapists. The court also suspended
visitation among the siblings.
4. The Section 366.26 Hearing in January 2015
In its report for the section 366.26 hearing set for January 5, 2015, the Department
recommended adoption as the permanent plan for all three of the children. The
Department did not request termination of parental rights, but instead asked for a 180-day
continuance of the hearing to allow time to find appropriate adoptive homes for Older
Brother and Younger Brother. Sister remained in the home of her godparents, who
wanted to adopt her. But the Department asked for a 180-day continuance as to Sister as
7
well, to allow the household to adjust to the recent changes in the composition of the
household and the new routine.
At the hearing, the court found there was clear and convincing evidence that each
of the children would be adopted. The court selected adoption as the permanent
placement goal and ordered that efforts be made to find appropriate adoptive families.
(See § 366.26, subd. (c)(3).) The court set a hearing for June 29, 2015 for the
Department to report on its efforts to locate adoptive families for the children.
5. Mother’s Section 388 Petitions
On May 8, 2015, the Department filed notices of the continued section 366.26
hearing. In the notices, the Department stated it recommended (1) termination of parental
rights and selection of adoption as the permanent plan for Sister and Younger Brother,
and (2) establishment of a legal guardianship for Older Brother.
On May 20, 2015, Mother filed section 388 petitions asking the court to change
the children‘s placements and place them with Grandmother. Specifically, the petitions
requested that the court modify its January 5, 2015 order confirming that the children‘s
placements were necessary and appropriate and ordering the matter continued for the
purpose of seeking adoptive homes for the children. The petitions stated Grandmother
had acquired a home that was large enough to house all three children. The court set a
hearing on the petitions for June 8, 2015.
The children‘s CASA filed a memorandum opposing the section 388 petition and
stating that all three children were doing well in their placements. At the June 8, 2015
hearing, the Department‘s counsel and the attorneys for the children also stated they
opposed Mother‘s request. After hearing argument and after questioning Mother‘s
counsel about the proposed change of placement, the court concluded that the petition did
not present sufficient information to warrant holding an evidentiary hearing, and that the
requested change was not in the best interests of the children.
Mother appealed the court‘s order denying her section 388 petitions
(No. A145648).
8
6. The Termination of Parental Rights as to Sister and Younger Brother
In a June 2015 report for the section 366.26 hearing, the Department
recommended that the court terminate Mother‘s parental rights as to Sister and Younger
Brother and select adoption as their permanent plan. The Department recommended that
the court order a planned permanent living arrangement for Older Brother, who was
doing well in his therapeutic foster placement.
The Department reported that Sister remained in the home of her godparents, who
wanted to move forward with adopting her. Younger Brother, who had been living in a
therapeutic foster home since January 2015, was in the process of transitioning to an
adoptive home in Solano County. While Younger Brother continued to have challenging
behavioral issues, he had made significant progress in his most recent foster placement.
The prospective adoptive parents had spent a significant amount of time getting to know
Younger Brother since early April 2015 and were committed to moving forward with
adopting him. Younger Brother was to move into the home on June 13, 2015.
In a supplemental report filed in July 2015, the Department reported that Younger
Brother had moved into his prospective adoptive placement and was doing well there.
The Department believed that, if this family could not adopt Younger Brother for any
reason, the Department would be able to find another adoptive home for Younger
Brother. The Department concluded both Younger Brother and Sister were adoptable.
While acknowledging that placement of the children in three separate homes ―does
interrupt the sibling relationship,‖ the Department stated that, due to the children‘s unique
needs, placing them in three separate homes had been necessary and was in each child‘s
best interest. The Department also stated the caregivers for all three children favored
maintaining the sibling relationships and had facilitated visits among the children. The
Department concluded that, for Sister and Younger Brother, the benefit of adoption
outweighed the benefit of maintaining the sibling relationships by placing the children in
less permanent placements.
At the section 366.26 hearing on July 23, 2015, the court admitted into evidence
the Department‘s and the CASA‘s reports for the hearing, and the social worker and
9
Mother testified. The court ordered a planned permanent living arrangement for Older
Brother, and ordered that he remain a dependent of the court. As to Sister and Younger
Brother, the attorneys for the children and their CASA supported the Department‘s
recommendation that the court select adoption as the permanent plan. After hearing
argument, the court found clear and convincing evidence Sister and Younger Brother
were likely to be adopted. The court terminated Mother‘s parental rights as to Sister and
Younger Brother and selected adoption as their permanent plan.
Mother appealed the orders terminating her parental rights as to Sister and
Younger Brother (No. A145970). We granted Mother‘s motion to consolidate her two
appeals.
II. DISCUSSION
A. The Denial of the Section 388 Petition
1. Legal Standards
Under section 388, a parent may petition to modify a prior order ―upon grounds of
change of circumstance or new evidence.‖ (§ 388, subd. (a)(1); see Cal. Rules of Court,
rule 5.570(a).) The juvenile court shall order a hearing where ―it appears that the best
interests of the child . . . may be promoted‖ by the new order. (§ 388, subd. (d).) ―Thus,
the parent must sufficiently allege both a change in circumstances or new evidence and
the promotion of the child‘s best interests.‖ (In re G.B. (2014) 227 Cal.App.4th 1147,
1157.)
―A prima facie case is made if the allegations demonstrate that these two elements
are supported by probable cause. [Citations.] It is not made, however, if the allegations
would fail to sustain a favorable decision even if they were found to be true at a hearing.
[Citations.] While the petition must be liberally construed in favor of its sufficiency
[citations], the allegations must nonetheless describe specifically how the petition will
advance the child‘s best interests.‖ (In re G.B., supra, 227 Cal.App.4th at p. 1157.) In
determining whether the petition makes the required showing, the court may consider the
entire factual and procedural history of the case. (In re Jackson W. (2010) 184
Cal.App.4th 247, 258.)
10
After the termination of reunification services (which in this case occurred in
October 2011), the goal of family reunification is no longer paramount, and ― ‗the focus
shifts to the needs of the child for permanency and stability‘ [citation], and in fact, there
is a rebuttable presumption that continued foster care is in the best interests of the child.
[Citation.] A court hearing a motion for change of placement at this stage of the
proceedings must recognize this shift of focus in determining the ultimate question before
it, that is, the best interests of the child.‖ (In re Stephanie M. (1994) 7 Cal.4th 295, 317
(Stephanie M.).)
We review a juvenile court‘s decision to deny a section 388 petition without an
evidentiary hearing for abuse of discretion. (In re Anthony W. (2001) 87 Cal.App.4th
246, 250.)
2. Analysis
Mother‘s section 388 petitions, which were unsupported by any declarations or
other evidence, did not state a prima facie case that required the juvenile court to hold an
evidentiary hearing. Mother alleged that Grandmother had acquired a home large enough
to house all three children. Assuming this development constituted a change in
circumstances for purposes of section 388, Mother did not make a prima facie showing
the proposed modification—removing the children from their placements and placing
them with Grandmother—would be in the children‘s best interests. (See Stephanie M.,
supra, 7 Cal.4th at p. 317 [section 388 petitioner seeking to change a child‘s placement
must show a change of circumstances or new evidence and that a change in placement is
in the child‘s best interests].) The petitions contained only conclusory allegations on this
point. Significantly, Mother did not allege that any of the children‘s current or
prospective placements was inadequate. Instead, Mother alleged placing the children
with Grandmother would be in their best interests because the children are ―comfortable
with‖ Grandmother, who ―can provide stability and a permanent placement for the
children. All three children would be able to live together and grow up together, a
necessity they are deprived of in their current living situation, in three separate homes.‖
In light of the history of the dependency proceeding, the court did not err in concluding
11
that these broad assertions did not constitute a prima facie showing that the proposed
placement changes would be in the best interests of the children.
First, Mother‘s assertion that placing the three children together would be in their
best interests did not require the juvenile court to hold an evidentiary hearing. In its
report for the section 366.26 hearing in January 2015, the Department explained that,
although the children had been placed together during most of the period since their
removal from Mother‘s custody, ―safety concerns and the behaviors the children are
exhibiting have made this impossible at this time.‖ Specifically, the Department noted
that Older Brother had been sexually inappropriate with Sister and with other children in
the godparents‘ home, ―requiring him to be placed in a home with no other children.‖ He
was removed from the godparents‘ home in November 2014 and placed in an intensive
therapeutic foster care home. Younger Brother was removed from the godparents‘ home
in September 2014 and placed in a separate foster home after he ―exhibit[ed] aggressive
behaviors at home and at school that require a significant amount of attention from any
caregiver to meet his current needs.‖
The record thus established that both boys needed a significant amount of
individualized attention and support. Sister remained in the godparents‘ home. She was
doing well there, and the godparents wanted to adopt her. In light of the specific and
differing needs of the three children as established by the history of the dependency case,
Mother‘s categorical assertion in her section 388 petition that the children would be
better off if they were moved to a single home did not constitute a prima facie showing
that the proposed move would be in the children‘s best interests and did not require the
juvenile court to hold an evidentiary hearing.
Second, in light of the children‘s specialized needs as illustrated by the history of
the dependency case, Mother‘s general statements that the children are comfortable with
Grandmother and that Grandmother can provide them with stability did not require the
court to hold an evidentiary hearing. Mother‘s petition did not articulate any basis for
concluding Grandmother would be better equipped than the children‘s caregivers to
address their needs. Indeed, as the record of the dependency case showed, and as the
12
juvenile court noted in denying Mother‘s petitions, Grandmother lived with Aunt during
part of the period when Aunt emotionally and physically abused the children, and
Grandmother apparently was unable to protect the children. After the children were
removed from Aunt‘s home, Aunt reportedly made the children feel bad during visits by
questioning their loyalty to their family. Grandmother was responsible for monitoring
visits between the children and Aunt, but on one occasion Grandmother had a conflict
with Aunt and left the children ―in the care of [Aunt] unsupervised.‖ For these reasons,
visits were temporarily suspended in late 2014.2
Finally, as to each of the three children, Mother did not allege facts that would
rebut the presumption that continued foster care was in their best interests at this
advanced stage of the dependency proceedings. All three children reportedly were doing
well in their placements. Sister had lived with her godparents since early 2014 and was
doing well there. The godparents wanted to adopt her. Mother alleged no facts in her
section 388 petition that would rebut the presumption that it would be in Sister‘s best
interest to remain in her suitable and stable placement with her godparents. Indeed,
Mother acknowledges on appeal that changing Sister‘s placement ―may not have had
obvious utility‖ in light of her stable placement.
As Mother notes, Older Brother and Younger Brother have experienced more
placement changes than Sister, and they were not in adoptive placements when Mother
filed her section 388 petitions. But Mother‘s petitions did not present a prima facie
2
In her appellate brief, Mother notes Grandmother had supervised visits with
Sister (in late March 2015) and with Older Brother (in early April 2015). These visits
went well, and both Sister and Older Brother were excited to see Grandmother. But even
if Mother had alleged these facts in her petitions, the court‘s decision not to hold an
evidentiary hearing would not have been an abuse of discretion. In light of the history of
the dependency case (including Grandmother‘s presence during the children‘s placement
with Aunt, and the children‘s unique needs), the fact the children enjoyed recent
supervised visits with Grandmother did not constitute a prima facie showing that
removing the children from their placements and placing them with Grandmother would
be in their best interests.
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showing that removing Older Brother and Younger Brother from their placements and
placing them with Grandmother would be in their best interests.
Older Brother had been removed from the godparents‘ home in November 2014
due to his sexualized conduct, and had been placed in an intensive therapeutic foster
home with no other children. He was reportedly doing well there, and the foster family
was addressing his specialized needs. The children‘s CASA volunteer reported that
Older Brother‘s foster family had been ―able to provide a caring and supportive
environment for [Older Brother], while at the same time providing structure and well
defined limits.‖ Nothing in Mother‘s petitions suggested that Grandmother would be
better able to provide the structure and support that were necessary in light of Older
Brother‘s unique needs, or that it would be in Older Brother‘s best interest to be removed
from his foster family.3
Younger Brother was removed from the godparents‘ home in September 2014 due
to his aggressive behavior and was placed in a foster home in Marin County. The
children‘s CASA volunteer raised concerns about that foster home, and the Department
sought to place Younger Brother in an intensive therapeutic foster home. In January
2015, Younger Brother was removed from his foster placement and placed in an
emergency foster home, also in Marin County. According to the children‘s CASA
volunteer, there was a ―significant turnaround in [Younger Brother‘s] behavior‖ after he
was placed in the emergency foster home. The foster parents in the emergency foster
home ―provided [Younger Brother] with a caring but structured environment, where
[Younger Brother] appears to feel safe.‖ In February 2015, a prospective adoptive home
was located for Younger Brother. The Department, in conjunction with Younger
3
It is not clear whether such a move would have been possible in any event.
According to a memorandum filed by the children‘s CASA and a subsequent report filed
by the Department, Older Brother‘s sexualized conduct resulted in juvenile delinquency
proceedings in Sacramento County. On May 21, 2015 (the day after Mother filed her
section 388 petitions in the Marin County dependency proceedings, and prior to the June
8, 2015 oral arguments on the petitions), the Sacramento juvenile court ordered that
Older Brother remain in his current foster placement with no other children.
14
Brother‘s service providers, decided that a slow, planned transition to the new home was
in Younger Brother‘s best interest. Beginning in April 2015, Younger Brother had
several visits with the potential new parents and siblings, including overnight stays.
These transitional visits went well. Younger Brother‘s move into his new placement was
to be made after Younger Brother finished the school year (kindergarten), and was
scheduled for June 13, 2015. Mother‘s petition alleged no facts that would support a
conclusion that Grandmother would be better able to address Younger Brother‘s unique
needs than the foster parents in his emergency foster placement, or that it would be in
Younger Brother‘s best interest to be removed from that placement. Nor did the petition
allege facts supporting a conclusion that it would be in Younger Brother‘s best interest to
disrupt the transition to his prospective adoptive home, a transition that already was
underway when Mother filed her petition in late May 2015.
In a memorandum of points and authorities submitted with her section 388
petition, Mother argued the relative placement preference in section 361.3 supported her
placement request. In her opening appellate brief, Mother refers briefly to that
memorandum, and suggests the juvenile court should have considered the ―possible
application‖ of section 361.3 in the selection of Younger Brother‘s new placement (i.e.,
the prospective adoptive home to which he was transitioning when Mother filed her
petition).
We reject this argument. Section 361.3 did not apply to the selection of Younger
Brother‘s adoptive placement. Section 361.3 establishes a relative preference that applies
in selecting a temporary placement when a child is removed from parental custody, or
thereafter when a new placement of the child is necessary.4 (§ 361.3, subds. (a), (d); In re
4
When it applies, section 361.3 requires social workers and juvenile courts to give
―preferential consideration‖ to a request by a relative for placement of a dependent child
with the relative. (§ 361.3, subds. (a), (d).) ― ‗Preferential consideration‘ means that the
relative seeking placement shall be the first placement to be considered and investigated.‖
(§ 361.3, subd. (c)(1); accord, In re Sarah S. (1996) 43 Cal.App.4th 274, 286.) The
relative placement preference established by section 361.3 does not constitute ―a relative
placement guarantee.‖ (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.) Section
15
Lauren R. (2007) 148 Cal.App.4th 841, 854, 857; In re Sarah S., supra, 43 Cal.App.4th
at p. 284.) The section 361.3 relative placement preference does not apply where, as
here, the social services agency is seeking an adoptive placement for a dependent child
for whom the court has selected adoption as the permanent placement goal. (In re Lauren
R., supra, 148 Cal.App.4th at pp. 854–855.) At the section 366.26 hearing in January
2015, the court selected adoption as Younger Brother‘s permanent placement goal
pursuant to section 366.26, subdivision (c)(3), and ordered the Department to attempt to
find an appropriate adoptive family for him. The Department located an adoptive home
for Younger Brother in February 2015; he began visits with the prospective adoptive
parents in April 2015; and he was scheduled to move into the home on June 13, 2015.
That process did not trigger the relative placement preference in section 361.3, because
Younger Brother‘s prospective adoptive placement ―did not constitute a necessary new
placement within the meaning of the relative placement preference. There is no relative
placement preference for adoption.‖ (In re Lauren R., supra, 148 Cal.App.4th at
pp. 854–855.)
In concluding that an evidentiary hearing on Mother‘s petitions was not warranted,
the juvenile court noted that ―for once these children are each receiving individualized
attention that they have desperately needed for a long, long time.‖ The court further
stated: ―I can appreciate the importance and the preference for placing children together;
but that is by no means absolute and it has to be weighed against their individual best
interests, which is how I am looking at it here.‖ The record of the dependency
proceeding, as outlined above, supports the court‘s conclusion that the children‘s separate
placements were in their best interests in the circumstances of this case. In light of that
record, the general assertions in Mother‘s petitions that the children would be better off if
they were removed from their placements and placed together with Grandmother did not
361.3 identifies factors the court and social worker must consider in determining whether
the child should be placed with a relative. (§ 361.3, subd. (a)(1)–(8).)
16
constitute a prima facie showing that required the juvenile court to hold an evidentiary
hearing on the petitions.
B. The Order Terminating Parental Rights as to Sister and Younger Brother
Where reunification services have failed and a hearing pursuant to section 366.26
is held, the court must determine whether the child is likely to be adopted; if so, with
limited exceptions, the court must terminate parental rights and order the child placed for
adoption. (§ 366.26, subd. (c)(1).) Mother contends there was not sufficient evidence
supporting the juvenile court‘s finding that Younger Brother is likely to be adopted. She
also argues, as to both Sister and Younger Brother, that the court erred in not applying the
sibling relationship exception to termination of parental rights set forth in section 366.26,
subdivision (c)(1)(B)(v). We reject both claims of error.
1. Adoptability
As noted, ―[o]nce reunification services are ordered terminated, the focus shifts to
the needs of the child for permanency and stability.‖ (In re Marilyn H. (1993) 5 Cal.4th
295, 309.) To select adoption as a child‘s permanency plan at a section 366.26 hearing,
the juvenile court must find by clear and convincing evidence that it is likely the child
will be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Zeth S. (2003) 31
Cal.4th 396, 406.) The fact the child is not yet placed with a family prepared to adopt the
child ―shall not constitute a basis for the court to conclude that it is not likely the child
will be adopted.‖ (§ 366.26, subd. (c)(1); accord, In re B.D. (2008) 159 Cal.App.4th
1218, 1231.) The adoptability inquiry ―focuses on the minor, e.g., whether the minor‘s
age, physical condition, and emotional state make it difficult to find a person willing to
adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a
potential adoptive home or that there be a proposed adoptive parent ‗waiting in the
wings.‘ ‖ (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).) ―Usually, the
fact that a prospective adoptive parent has expressed interest in adopting the minor is
evidence that the minor‘s age, physical condition, mental state, and other matters relating
to the child are not likely to dissuade individuals from adopting the minor. In other
words, a prospective adoptive parent‘s willingness to adopt generally indicates the minor
17
is likely to be adopted within a reasonable time either by the prospective adoptive parent
or by some other family.‖ (Id. at pp. 1649–1650.)
When the juvenile court‘s adoptability finding is challenged on appeal, we
determine whether the record contains substantial evidence from which the court could
find clear and convincing evidence that the child was likely to be adopted within a
reasonable time. (In re B.D., supra, 159 Cal.App.4th at p. 1232.) We draw all
reasonable inferences supporting the juvenile court‘s adoptability finding and resolve any
evidentiary conflicts in favor of the court‘s order. (In re Autumn H. (1994) 27
Cal.App.4th 567, 576 (Autumn H.).)
Substantial evidence supports the juvenile court‘s finding that Younger Brother
was likely to be adopted. In its supplemental report for the July 23, 2015 permanency
hearing, the Department stated that Younger Brother ―is an extremely bright, inquisitive,
and likeable six year old little boy,‖ but acknowledged that he had exhibited aggressive
and challenging behavior. Similarly, the children‘s CASA volunteer stated Younger
Brother ―is a sweet, bright boy, but shows the effects of the neglect and abuse he
experienced‖; the CASA volunteer noted Younger Brother had engaged in violent and
disruptive behavior. On appeal, Mother argues Younger Brother‘s behavior undercuts a
conclusion he is adoptable. We conclude that, in light of evidence that Younger
Brother‘s behavior had improved and that his prospective adoptive parents wanted to
adopt him, substantial evidence supports the juvenile court‘s finding Younger Brother is
adoptable.
As Mother notes in her appellate brief (and as we outline above), when Younger
Brother was placed with his godparents in 2014, he engaged in aggressive behavior at
home and at school, including biting and hitting other children, punching his teacher, and
stomping on the family dog. In September 2014, he was removed from the godparents‘
home and placed in a foster home in Marin County. While in that placement, Younger
Brother continued to display troublesome behaviors.
But there was evidence that, after Younger Brother was moved to an emergency
foster home in January 2015, his behavior improved significantly. The children‘s CASA
18
volunteer reported there was ―a significant turnaround in [Younger Brother‘s] behavior
since he was placed in the emergency foster home.‖ The foster parents in that home
provided Younger Brother with a caring and structured environment, and were ―able to
provide him one on one attention[.]‖ In that environment, and with the assistance of
counseling, Younger Brother ―responded by making very significant progress in his
behavioral issues.‖ While he continued to ―experience issues with angry outbursts,
particularly when frustrated, these outbursts are far fewer and shorter in duration than in
the past.‖ The Department similarly reported in its July 2015 addendum report that,
―[a]lthough [Younger Brother] has presented with many challenging behaviors, he has
demonstrated a lot of growth and has made strides in decreasing his aggressive behavior
over the past five months. In addition to behavioral changes in the home, [Younger
Brother] has begun integrating himself into the general classroom and [has] made
improvements in his peer relations.‖ This evidence that Younger Brother was responsive
to appropriate care and attention and that his behavior was improving supports the
juvenile court‘s conclusion he was adoptable.
In addition, as noted, Younger Brother was placed with prospective adoptive
parents who were committed to adopting him. While such a placement is not a
prerequisite to a finding of adoptability (Sarah M., supra, 22 Cal.App.4th at p. 1649), the
prospective adoptive parents‘ interest in adopting Younger Brother is evidence that his
age, physical condition, mental state, and other characteristics are not likely to dissuade
individuals from adopting him, and that he is likely to be adopted within a reasonable
time either by the prospective adoptive parents or by another family (id. at pp. 1649–
1650). Consistent with this conclusion, the social worker stated she believed that, if
Younger Brother‘s current caregivers could not adopt him for any reason, the Department
would be able to find another adoptive home for him, in light of the improvement in his
behavior.
On appeal, Mother contends there was not sufficient evidence that the prospective
adoptive parents had the ability or training to meet Younger Brother‘s emotional needs
and handle his behavioral issues. We note there was evidence the prospective adoptive
19
parents were equipped to address Younger Brother‘s needs. The Department reported the
prospective adoptive parents have previously adopted other children, one of whom had
―equally, if not more challenging behaviors than [Younger Brother].‖ The new
caregivers are ―highly skilled and trained to deal with children with very difficult
behaviors.‖ The CASA report similarly noted the prospective adoptive parents ―are
experienced in dealing with the types of issues that [Younger Brother] has exhibited, and
have the potential to provide the type of consistent and structured environment, and
loving care, that [Younger Brother] needs at present.‖ In any event, as noted, the focus of
the adoptability inquiry is on the child and whether his characteristics will make him
difficult to adopt, rather than on the suitability of the prospective adoptive home. (Sarah
M., supra, 22 Cal.App.4th at pp. 1649–1650.) The prospective adoptive parents‘ interest
in adopting Younger Brother supports a conclusion he was likely to be adopted within a
reasonable time, either by the prospective adoptive parents or by another family.
2. The Sibling Relationship Exception
Under section 366.26, subdivision (c)(1), the denial of reunification services ―shall
constitute a sufficient basis for termination of parental rights‖ unless ―(B) [t]he court
finds a compelling reason for determining that termination would be detrimental to the
child due to one or more of the following circumstances: [¶] . . . [¶] (v) There 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.‖
This provision creates a ―heavy burden‖ for the party opposing adoption. (In re
Daniel H. (2002) 99 Cal.App.4th 804, 813.) To establish the applicability of the sibling
relationship exception, a parent must first show that termination of parental rights would
―substantially interfere‖ with the sibling relationship. (In re L.Y.L. (2002) 101
Cal.App.4th 942, 951.) This requires proof of a ―significant sibling relationship, the
20
severance of which would be detrimental to the child.‖ (Id. at p. 952.) If such a strong
sibling relationship exists, the court then ―weighs the benefit to the child of continuing
the sibling relationship against the benefit to the child adoption would provide.‖ (Id. at
pp. 952–953.) ―The court must balance the beneficial interest of the child in maintaining
the sibling relationship, which might leave the child in a tenuous guardianship or foster
home placement, against the sense of security and belonging adoption and a new home
would confer.‖ (Id. at p. 951.) In making these determinations, the court may consider
only the possible benefits and detriments to the child being considered for adoption, not
the child‘s siblings. (In re Celine R. (2003) 31 Cal.4th 45, 54.) The sibling relationship
exception, like the other exceptions in section 366.26, subdivision (c)(1), must be
considered in light of the legislative preference for adoption, which remains the ―norm.‖
(In re Celine R., supra, 31 Cal.4th at p. 53.)
In reviewing determinations on the applicability of the sibling relationship
exception and other exceptions to adoption, some appellate courts have applied the
substantial evidence standard of review (In re L.Y.L., supra, 101 Cal.App.4th at p. 947),
while other courts have concluded the abuse of discretion standard is appropriate (In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1351), and some have applied a combination of
the two standards (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314–1315). On the
record before us, we would affirm under either standard. (See In re Jasmine D., supra,
78 Cal.App.4th at p. 1351 [practical differences between standards are not significant].)
The Department acknowledged in its reports that the children have significant
relationships with each other. But the reports also explained that the children‘s behavior
and specific needs made it impossible to keep them in the same placement. Due to his
sexualized conduct and juvenile delinquency proceedings, it was not possible to place
Older Brother with either of his siblings. And it would be detrimental to remove Sister
from her godparents‘ home to place her with Younger Brother (who had been removed
from the godparents‘ home due to his aggressive behavior). The Department concluded
placement of the children in three separate homes was necessary and in each child‘s best
interest. The Department reported, however, that the children‘s current caregivers had
21
facilitated contact and visitation among the children, and were in favor of maintaining the
sibling relationships.
In this context, the Department concluded, and the juvenile court reasonably could
conclude, that the permanency and stability that adoption would confer on Sister and
Younger Brother outweighed the disruption of their sibling relationships that could occur.
Noting that Sister and Younger Brother ―have experienced a lot of unpredictability, loss,
and disruption over their young lives,‖ the Department concluded they ―are in need of a
stable, loving, and predictable home environment with caregivers who can meet their
individualized needs.‖ Both children were placed in prospective adoptive homes that the
Department believed would meet their needs. Sister had been living with her godparents
for over one year and was thriving in their home. The Department stated that Sister
referred to her caregivers as her parents, and referred to the other children in the home as
her siblings. She had expressed a desire to be adopted. Younger Brother had recently
transitioned to his prospective adoptive placement and was doing well there. He
appeared to be happy and comfortable in his new placement, showed affection for his
caregivers, and enjoyed interacting with the two older children in the home.
The Department concluded Sister and Younger Brother ―deserve the safety and
stability of a permanent home through the plan of adoption.‖ The court similarly
concluded that termination of parental rights was in Sister‘s and Younger Brother‘s best
interests, and that adoption was the appropriate permanent plan for them. In light of the
record before it, the court reasonably could conclude that the alternative—declining to
terminate parental rights and leaving Sister and Younger Brother in less secure
guardianship or foster home placements—was not in their best interests. (See In re
L.Y.L., supra, 101 Cal.App.4th at p. 951.)
III. DISPOSITION
The order denying Mother‘s section 388 petition is affirmed. The order
terminating Mother‘s parental rights as to Sister and Younger Brother is affirmed.
22
_________________________
Streeter, J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Reardon, J.
A145648, A145970/In re K.L.
23
Filed 6/13/16
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re K.L. et al., Persons Coming Under the
Juvenile Court Law.
MARIN COUNTY HEALTH AND A145648
HUMAN SERVICES DEPARTMENT,
(Marin County
Plaintiff and Respondent, Super. Ct. No. JV 25305A, JV 25306A,
v. JV 25307A)
D.J.,
Defendant and Appellant.
In re K.L. et al., Persons Coming Under the
Juvenile Court Law.
MARIN COUNTY HEALTH AND A145970
HUMAN SERVICES DEPARTMENT,
(Marin County
Plaintiff and Respondent, Super. Ct. No. JV 25306A, JV 25307A)
v.
ORDER CERTIFYING OPINION
D.J., FOR PARTIAL PUBLICATION
Defendant and Appellant.
THE COURT:
The opinion in the above-entitled matter filed on May 25, 2016, was not certified
for publication in the Official Reports. For good cause, the request for partial publication
is granted.
1
Pursuant to California Rules of Court, rules 8.1105, 8.1110 and 8.1120, the
opinion in the above-entitled matter is ordered certified for publication in the Official
Reports with the exception of part II.B of the opinion.
Dated: _________________ ________________________________
Ruvolo, P.J.
2
In re K.L et al. (A145648, A145970)
Trial court: Marin County Superior Court
Trial judge: Hon. Faye D‘Opal; Hon. Beverly K. Wood
Counsel:
Jamie A. Moran, by appointment of the Court of Appeal under the First District Appellate
Project independent case system, for Defendant and Appellant.
Steven M. Woodside, County Counsel, Mari-Ann G. Rivers, Deputy County Counsel, for
Plaintiff and Respondent.
3