Filed 11/30/20 In re E.H. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re E.H., a Person Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES
AGENCY,
G059178
Plaintiff and Respondent,
(Super. Ct. No. 18DP1163)
v.
OPINION
MARIA H.,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Katherine E. Lewis, Judge. Affirmed.
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant
and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre,
Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
Maria H. (Mother) appeals from the juvenile court’s judgment terminating
her parental rights to her daughter E.H. Mother claims the court erred by not applying
the sibling relationship exception to terminating parental rights. We disagree and affirm
the judgment.
FACTS
In November 2018, the Orange County Social Services Agency (SSA) filed
an application for a protective custody warrant for newborn E.H. due to Mother’s open
dependency case with E.H.’s sister, 10-year-old C.H. C.H. was removed from Mother’s
custody because of Mother’s neglect and failure to protect C.H. from sexual abuse by
Mother’s boyfriend P.M., who was E.H.’s father (Father).1 To support its determination
E.H. was at risk, SSA cited to Mother’s decision to conceive and give birth to E.H. with
C.H.’s abuser, Father. The juvenile court denied SSA’s application, ruling it failed to
state facts sufficient to establish probable cause.
I. Detention
Two days later, SSA filed a petition and detention report. In the petition,
SSA alleged Mother failed to protect E.H. or stop the abuse of a sibling. (Welf. & Inst.
Code, § 300, subds. (b)(1), (j), all further statutory references are to the Welfare and
Institutions Code.) The petition alleged Mother received limited prenatal care during her
pregnancy with E.H., Father sexually abused E.H.’s older half-sibling C.H., Mother had a
history of substance abuse issues and criminal history, and Father had possible
unresolved mental health issues and a history of domestic violence and other criminal
activity.
Following a detention hearing, the juvenile court concluded a prima facie
case had been made and ordered E.H. detained. The court ordered six hours of
1
Father is not a party to this appeal.
2
supervised visitation per week for Mother. The court set a jurisdiction hearing in January
2019.
II. Jurisdiction & Disposition
In a jurisdiction/disposition report, the social worker stated one-month-old
E.H. had been placed with C.H. in their maternal aunt and uncle’s home; Mother had not
seen C.H. in six months. The social worker reported Mother said she did not believe
Father sexually abused C.H. because “he is not that type of person.” Mother did not
believe C.H.’s allegations and called her “a liar.” Mother stated she and Father agreed
that she would move out and find an apartment for her, C.H., and E.H., but Father would
continue to help Mother.
In addendum reports, the social worker reported Mother indicated Father
moved out of the apartment the previous month, and she had not communicated with him
since then. However, the maternal aunt told the social worker that she thought they were
still living together. Mother’s supervised visitation was increased from six to 10 hours
per week.
At the jurisdiction hearing, the juvenile court found the allegations true and
declared E.H. a dependent of the court pursuant to section 300, subdivisions (b) and (j).
The court set a six-month review hearing for August 13, 2019. The court ordered family
reunification services for Mother, which included a sexual abuse treatment program and
parenting education classes.
The following month, SSA was notified the caregivers had neglected E.H.
The social worker reported four-month-old E.H. suffered five seizures in the preceding
month, and it was not until the fifth seizure that her maternal aunt and uncle took her to
the emergency room. SSA substantiated the severe medical neglect allegations and
detained both E.H. and C.H. at Orangewood Children and Family Center (Orangewood).
In a 15-Day Review Report, the social work reported C.H.’s main concern was being able
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to visit E.H. who was residing in another cottage. The social worker indicated that at
staff’s encouragement, C.H. visited E.H. whenever she wanted.
III. Six-Month Review
In the six-month review report, SSA recommended terminating Mother’s
reunification services and finding suitable placement. The social worker reported E.H.
and C.H. were placed in a home with Dora A. The social worker stated Mother had made
very minimal efforts in complying with her case plan. Mother had not participated in
counseling services. Mother completed a parenting class, but the social worker could not
determine whether Mother gained any insights/knowledge because she failed to present
herself at scheduled monthly compliance appointments. Mother refused to participate in
the parenting education portion of the UCI Focus Sexual Abuse Counseling program.
Mother’s visitation was not consistent and her interactions during visitation were non-
engaging.
The social worker reported Mother continued to not believe Father sexually
abused C.H. Mother advised the social worker she continued to have a connection to
Father because he paid her rent. The social worker opined Mother had failed to gain
insight into the severity of C.H.’s sexual abuse trauma and had not developed protective
capacities. The social worker added Mother demonstrated “an inability to care or protect
the child, [E.H.], from future or potential abuse and neglect by [F]ather and others.”
The social worker reported that although Dora A. was able to provide for
all of E.H.’s needs, she was not interested in providing a permanent placement or home
for E.H. and C.H. Due to the sibling’s need for permanency and concurrent placement,
the social worker indicated SSA was considering an adoptive home. The social worker
stated E.H. and C.H. and the prospective adoptive parents completed a visit, which went
well, and the prospective adoptive parents were interested in moving forward. The social
worker reported E.H. and C.H. would soon be placed together with non-relative
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prospective adoptive parents and every effort would be made to maintain the siblings
together.
At the six-month review hearing, Mother and the social worker both
testified. At the conclusion of the hearing, the court found that by a preponderance of the
evidence return of E.H. to the parents would create substantial risk of detriment to her
safety, protection, or physical or emotional well-being. Additionally, the court found
reasonable services had been provided to Mother and her progress was minimal. The
court terminated Mother’s reunification services and set a section 366.26 hearing for
January 2020.
IV. Section 366.26 Hearing
In a December 2019, section 366.26 report, SSA recommended the juvenile
court terminate parental rights, find E.H. adoptable, refer her for adoptive placement, and
set a post-permanent plan review hearing. The social worker reported E.H. and C.H.
were placed in the care of the prospective adoptive parents (caregivers) three months
earlier.
The social worker reported E.H. was a 13-month-old baby girl with big
brown eyes, big cheeks, and thick black hair, who loved to smile and watch C.H. play.
E.H. liked to crawl and was very curious. Although E.H. was too young to make a
statement, she loved C.H. and her foster brother. E.H. had been diagnosed with
Hypotonia or floppy baby syndrome, which results in the child having low muscle tone
involving reduced muscle strength. She was delayed in her ability to support her weight
on her legs. E.H. had made progress in her development and she was now able to sit up
and support her weight for longer periods of time.
The social worker explained a nurse conducted a developmental screening
on E.H. and she scored below the cutoff in all five areas of development. E.H. was
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participating in early start infant programs at the Orange County Regional Center to
address her developmental delay.
The social worker reported E.H. was comfortable around her caregivers.
E.H. and C.H. were observed to be happy and relaxed in the home. When the social
worker conducted monthly face-to-face visits, the social worker asked C.H. if she felt she
and E.H. were safe in their current placement, and C.H. had expressed feeling safe with
their caregivers. E.H. appeared to have a positive attachment with her caregivers. The
social worker observed the home and E.H.’s living area to be clean. The social worker
reported the prospective adoptive parents had committed their time to care for the
children and they expressed interest in pursuing adoption of E.H. and C.H. The caregiver
ensured E.H. and C.H. attended all appointments related to their medical, mental health,
developmental, and educational needs.
The social worker stated the caregivers described Mother’s visitation since
E.H. and C.H. were placed with them as being “‘okay.’” The caregivers reported that
during visits Mother held E.H., changed her diaper, and fed her. Mother also sang to
E.H. to make her laugh. Mother talked to C.H. about E.H. and left C.H. playing with her
cell phone. Although Mother brought C.H. small gifts, Mother bought a name banner for
E.H. instead of C.H., who had asked for one. During this reporting period, Mother had
not been consistent in visitation.
The social worker reported the caregivers provided E.H. with her basic
necessities and special medical care for her epilepsy, and ensured E.H. was obtaining
services for her developmental delays. E.H., C.H., and the caregivers participated in
Wraparound services aimed at helping with the adjustment to the new placement and in
improving C.H.’s behaviors. The caregivers maintained monthly contact with the social
worker and adhered to the visitation plan for E.H. and Mother. E.H. appeared to be
comfortable with the caregivers, was doing well, and appeared to be adjusting favorably
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to her placement. She made progress in her development while in her current placement.
The social worker noted it was beneficial for E.H. to be placed together with C.H., since
E.H. has resided with C.H. since birth.
In an addendum report, SSA recommended the juvenile court determine
termination of parental rights was not detrimental to E.H.’s well-being, and she was
adoptable but difficult to place. SSA also informed the court there was now a need to
find a different adoptive family. The social worker met with the caregiver, who stated
she went from having no children to caring for three children with special needs in the
last year. The caregiver said it had been a big change, however, she was getting
accustomed to the transition. The caregiver indicated her husband was working two jobs
and she was the primary caregiver for the children. The caregiver stated her husband was
struggling with the transition of having three children in the home. The caregivers’ other
foster care child had cystic fibrosis and required special medical care. The caregiver
stated she and her husband were 100 percent sure they want to adopt E.H. However, they
were not confident they also wanted to adopt C.H. at that time. The caregiver stated she
wanted to adopt C.H. too, but her husband was apprehensive and felt he needed more
time to make the decision because he worried about her sexual trauma history. The
caregiver stated her husband was “‘very cautious’” with C.H. The social worker
suggested her husband work with C.H.’s therapist, but the caregiver said his work
schedule made it difficult for him to participate in the children’s services. The caregiver
reported they wished they had more time to make a decision about adopting C.H. The
caregiver stated she and her husband would be willing to try being C.H.’s legal guardians
for purposes of developing her permanent plan and indicated legal guardianship would
likely lead to them deciding to adopt C.H.
The social worker reported C.H.’s therapist stated C.H. was displaying
behavior that was normal for a child who was sexually abused. C.H. wanted the foster
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dad to hold her and sit close together, but the caregiver’s husband was feeling
uncomfortable. The therapist indicated C.H. attached easily and had difficulty with
boundaries. The therapist believed C.H. had a history of feeling rejection and was
sensitive towards her baby sister, E.H., because Mother demonstrated preferential
treatment towards E.H. Additionally, C.H. may had sensed the foster dad was giving
more attention to E.H.
The social worker reported she had a telephone meeting with the caregiver
to discuss the children’s permanent plan. The caregiver said she and her husband would
like more time to make a decision on adopting both E.H. and C.H. The caregiver said
they did not want to separate the siblings, but they would like more time to get to know
C.H. and feel confident in their decision to adopt her.
On the date scheduled for the section 366.26 hearing, the juvenile court
continued the matter to allow the social worker to assess adoption for both children or do
letters of guardianship for C.H.
In an addendum report prior to the scheduled hearing, the social worker
reported the caregivers were in the process of buying a home. The caregiver stated that if
they get approved to buy the new home, they will have more space, and everyone would
have their own room. They were planning to stay in Orange County so C.H. did not have
to move schools. The social worker reviewed the upcoming court hearing for both E.H.
and C.H. and stated it was SSA’s recommendation for the court to order adoption for
E.H. and legal guardianship for C.H. The social worker reviewed the guardianship letters
and obtained signed copies. The caregiver expressed she and her husband were happy
they would be the children’s forever home. The caregiver expressed the feeling is
“‘unreal’” and they are excited.
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Due to a COVID-19 emergency order, the juvenile court continued the
matter. On the date of the hearing, the court allowed counsel to appear by telephone.
The court continued the matter again.
In an addendum report, SSA recommended the juvenile court authorize
E.H. to move to Los Angeles County with the current prospective adoptive parents. The
social worker reported the caregiver’s husband was laid off due to COVID 19, and they
could no longer purchase a home in Orange County. The caregiver stated she had an
opportunity to move into a bigger home in Los Angeles County where they will be able
to save money and her husband had been offered a job that would bring them financial
security. The caregiver’s mother had a three-bedroom home the family could move into
for a very low monthly rent payment. The caregiver stated she would continue to drive to
Orange County for the children’s medical appointments and visitations.
At a May 2020 telephonic hearing, Mother objected to out-of-county
placement and requested a hearing. Mother was opposed to E.H. and C.H. living in Los
Angeles County and requested the court defer the issue until the next hearing date. SSA
requested the court authorize the caregivers plan to move to Los Angeles County with the
children. E.H.’s counsel agreed with authorizing the children to move to Los Angeles
County. The court authorized E.H. to move to Los Angeles County with the caregivers.
The court continued the section 366.26 hearing again.
In an addendum report, the social worker reported she had face-to-face
contact via video chat with the caregiver and C.H. and E.H. The social worker advised
the caregiver the court had approved the move to Los Angeles County. C.H. appeared to
be in a happy mood as evidenced by her smiling, giggling, and engaging in the meeting.
The caregiver was holding and feeding E.H. throughout the meeting. The family was
happy the court approved the move to Los Angeles County. C.H. stated she was
“‘excited,’” and had picked out special bedding and decorations for her new room. The
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social worker reported she had a second face-to-face contact via video chat with the
caregiver and C.H. and E.H. The children were clean and appropriately dressed, and the
home was sufficiently clean and organized. The caregiver said they would move into
their new home in Los Angeles County about two weeks later. The caregiver expressed
they would miss Orange County, but they were excited about having more space. The
caregiver’s husband started his new job as an apartment manager where he would have
job stability and flexibility for the children’s appointments. The caregiver stated she
continued to feel good caring for the children and their special medical needs. The
caregiver said they strongly believe they will adopt C.H. at some point in the future and
they would never want E.H. and C.H. to be separated.
At the section 366.26 hearing, the juvenile court admitted all the reports
into evidence, and Mother was the sole witness. Mother testified that throughout the
dependency proceedings she always visited E.H. Mother said that during visits she fed
E.H., changed her diaper, and brought her gifts. E.H. would always reach out to her and
would give her a kiss on the check. E.H. would also laugh with Mother. Mother would
walk around with E.H. showing her toys and would show her cartoons. When visits were
at the mall, Mother would put E.H. on all the playground toys. She also comforted E.H.
when she was sad, hungry, or upset. Mother testified C.H. and E.H. were very close and
loved each other very much. Mother said she wanted the two girls to be placed together.
Mother asked the court not to terminate her parental rights to either daughter.
At the conclusion of the hearing, the juvenile court found E.H. generally
and specifically adoptable by clear and convincing evidence. In considering the sibling
benefit, the court concluded there was no indication the sibling bond would be severed
should the caregivers adopt E.H. because the caregivers intended to keep the siblings
together. The court indicated it was mere speculation to think the caregivers would
someday sever the sibling bond because legal guardianship is not as permanent as
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adoption. The court opined it was just as likely that in the future the caregivers might
also want to adopt C.H. Alternatively, the court concluded that even in the unlikely event
the siblings were separated, E.H., then one year and seven months, would be sad, but that
sadness would not be so tremendous such that it would outweigh the benefits E.H. would
gain from adoption. The court found Mother had not met her burden in proving the risk
of harm caused by severing the sibling benefit relationship outweighed the benefits of
adoption for E.H. The court terminated Mother’s parental rights and selected adoption as
E.H.’s permanent plan, finding none of the exceptions to adoption applied. Mother filed
a timely notice of appeal.
DISCUSSION
Mother contends the juvenile court erred by failing to apply the sibling
relationship exception to adoption. We disagree.
“Adoption must be selected as the permanent plan for an adoptable child
and parental rights terminated unless the court finds ‘a compelling reason for determining
that termination would be detrimental to the child due to’” some specified statutory
exception. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.); § 366.26,
subd. (c)(1).) One such exception is the “substantial interference with a child’s sibling
relationship.” (§ 366.26, subd. (c)(1)(B)(v).)
Application of the sibling relationship exception calls for a two-step
analysis. “[T]he 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 (L.Y.L.).) It does so “by evaluating the nature and extent
of the relationship, including whether the child and sibling were raised in the same house,
shared significant common experiences or have existing close and strong bonds.” (Id. at
p. 952; § 366.26, subd. (c)(1)(B)(v).) “[T]he parent must show the existence of a
significant sibling relationship, the severance of which would be detrimental to the
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child.” (L.Y.L., supra, 101 Cal.App.4th at p. 952.) Second, “[i]f 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.”
(Ibid.; § 366.26, subd. (c)(1)(B)(v).) Application of the sibling relationship exception is
rare, “particularly when the proceedings concern young children whose needs for a
competent, caring and stable parent are paramount. [Citation.]” (In re Valerie A. (2007)
152 Cal.App.4th 987, 1014.)
Mother bears the burden of establishing the sibling relationship exception.
(Bailey J., supra, 189 Cal.App.4th at p. 1314.) We review the juvenile court’s finding on
whether adoption substantially interferes with sibling relationships for substantial
evidence. (Ibid.) We “draw all reasonable inferences in support of the findings [and]
consider the record most favorably to the juvenile court’s order,” without “evaluat[ing]
the credibility of witnesses, reweigh[ing] the evidence, or resolv[ing] evidentiary
conflicts.” (L.Y.L., supra, 101 Cal.App.4th at p. 947.) We review the court’s
“‘quintessentially discretionary’” balancing of the benefits of adoption against the
interference with sibling relationships for an abuse of discretion. (Bailey J., supra,
189 Cal.App.4th at p. 1314.) As our Supreme Court stated in In re Celine R. (2003)
31 Cal.4th 45, 52, “‘[o]nce reunification services are ordered terminated, the focus shifts
to the needs of the child for permanency and stability.’ [Citation.]”
I. Step One
The first step requires the juvenile court to determine whether terminating
parental rights would substantially interfere with the sibling relationship. In making this
determination the court evaluates the nature and extent of the relationship, including
whether the child and sibling were raised in the same house, shared significant common
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experiences, or have existing close and strong bonds. (L.Y.L., supra, 101 Cal.App.4th at
pp. 951-952.)
The most notable evidence of a bond between E.H. and C.H. is the fact they
have been cared for in the same house since E.H.’s birth, but this alone does not establish
a significant sibling relationship. (L.Y.L., supra, 101 Cal.App.4th at pp. 951-953
[consideration of all circumstances].) There is little evidence of shared common
experiences. The only other evidence of a sibling bond is E.H. loves her big sister C.H.
and while placed at Orangewood, C.H. wanted to and visited E.H. who was residing in
another cottage.
Although Mother indicates the caregivers do not want to adopt C.H., this is
only partially true. The caregivers do not want to adopt C.H. at this time, but they have
not ruled out adopting C.H. They simply indicated they needed more time to make that
decision. The caregivers were in complete agreement with serving as C.H.’s guardian as
they were making the adoption decision. In fact, they proposed it. The court found there
was no indication that if in the future the caregivers chose not to proceed with adoption,
they would seek to end the guardianship. Mother cites to the caregiver’s husband’s
failure to participate in services and apprehension with C.H. But during this time he
worked two jobs, and the caregiver stated after he obtained a new job, his schedule was
more flexible. The caregiver stated they never wanted E.H. and C.H. to be separated and
“strongly believe” they will adopt C.H. Simply put, they needed more time with C.H.
The court found it was sheer speculation the sibling relationship between E.H. and C.H.
was at risk if Mother’s parental rights were terminated. We agree.
The record does not reflect any likelihood termination of parental rights
would interfere with any existing sibling relationship. Considering all of the evidence,
we conclude substantial evidence supported the juvenile court’s finding Mother failed to
show a significant sibling relationship existed between the girls.
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DISPOSITION
The judgment is affirmed.
O’LEARY, P. J.
WE CONCUR:
IKOLA, J.
GOETHALS, J.
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