Filed 8/26/20 In re Anna Z. CA4/1


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                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                 DIVISION ONE

                                         STATE OF CALIFORNIA



 In re ANNA Z. et al., Persons
 Coming Under the Juvenile Court
 Law.
                                                                 D077267
 SAN DIEGO COUNTY HEALTH
 AND HUMAN SERVICES
 AGENCY,                                                         (Super. Ct. No. EJ4202A/B)

           Plaintiff and Respondent,

           v.

 DEBRA Z.,

           Defendant and Appellant.


         APPEAL from orders of the Superior Court of San Diego County,
Marian F. Gaston, Judge. Affirmed.
         Jamie A. Moran, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and
Respondent.
      Debra Z. appeals from orders terminating her parental rights and
selecting permanent plans of adoption for her children, Anna Z. and Mason Z.
(the children). The sole issue on appeal is whether the juvenile court erred in
not applying the sibling relationship exception to termination of parental

rights (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(v)).1 Under this
exception, a court may find that terminating parental rights would be
detrimental to a child because there would be substantial interference with
the child’s sibling relationship, taking into consideration various factors. The
court weighs the benefits of obtaining permanence through adoption with the
benefits of maintaining a significant sibling relationship in a lesser
permanent plan.
      We conclude the court did not err in declining to apply the sibling
relationship exception, and accordingly affirm the orders terminating
parental rights.
              FACTUAL AND PROCEDURAL BACKGROUND
      The siblings in this appeal, Anna and Mason, are currently 15 and
eight years old, respectively, and this is their second dependency case. They
are not biological siblings; rather, they became siblings by adoption.
      In 2004, when she was a baby, Anna was removed from her birth
parents and placed with Debra Z. (Mother). Anna was adopted by Mother in
2006 (there is no adoptive father). In May 2012, when Anna was nearly
eight years old, Mason was born, removed from his birth parents, and placed
with Mother, who adopted him in October 2015. The children had another
sibling by adoption, Olivia Z., who is now an adult.




1     Further statutory references are to the Welfare and Institutions Code.

                                        2
      Leading up to September 2017, Anna was reportedly suffering from
digestion issues, weight loss, and pain, among other symptoms. She relied on
intravenous feeding and increasing doses of opioid pain medication. In
September, Anna was admitted to a hospital’s intensive care unit for shock
and a severe vitamin deficiency caused by many months of not receiving her
vitamins and nutrition intravenously at home. While under the hospital’s
care (and away from Mother’s influence), Anna’s condition markedly
improved; she gained weight, weaned off pain medication, and began eating
normally. This was not the first time that Anna’s health had mysteriously
deteriorated at home but quickly improved when hospitalized.
      Anna’s treatment team was extremely concerned about her welfare
under Mother’s care and supervision. The healthcare providers suspected
Mother of negligence at best, and of fabricating or misreporting her
daughter’s symptoms at worst. Despite extensive testing, Anna had no
confirmed medical diagnosis to explain the severity of her reported pain, or to
require continuous use of intravenous feeding. Mother adamantly denied she
had done anything wrong and blamed healthcare providers for failing to
properly diagnose and/or treat her daughter.
      In October 2017, the San Diego County Health and Human Services
Agency (Agency) filed a petition on behalf of 13-year-old Anna, alleging she
was at substantial risk of serious physical harm due to Mother’s conduct
(§ 300, subd. (b)). The juvenile court detained Anna out of home. In
December 2017, the court issued a temporary no contact order, based on
Mother’s inappropriate, unsupervised communications with Anna. In
January 2018, the court made a true finding on the petition, removed Anna
from Mother’s care, ordered reunification services, and allowed for supervised




                                       3
visitation.2 By then, Anna had already gone from being a sickly,
malnourished invalid to a largely healthy, lively teenage girl.
      Mother underwent a psychological evaluation, in which she displayed

symptoms consistent with factitious disorder imposed on another (FDIA).3
Regarding this diagnosis, the evaluator noted that Mother “significantly
identifies herself as the mother of a medically fragile child. There are records
documenting years of numerous hospitalizations, invasive medical
procedures, and chronic administration of high doses of narcotic pain
medications for minor Anna . . . with many treatments based on parental
reports of symptoms. . . .” The assigned social worker believed that Mother
had deprived her daughter of a normal childhood and that Anna primarily
identified herself as a “sick kid.” Anna “appear[ed] to only know how to
relate to others on a level of healthy and sick.”
      In February 2018, the suspicious hospitalization of another child in
Mother’s guardianship (N.K.) caused the Agency to become concerned that
Anna’s adoptive sibling, five-year-old Mason, would be Mother’s next target.
The Agency filed a petition on his behalf (§ 300, subd. (j)). The court issued a
protective custody warrant for Mason and detained him out of home. He was
placed in foster care.




2    Mother waived her right to contest the petition and submitted the
matter to the court based on the Agency’s reports.
3    The diagnosis of FDIA was later confirmed by a second psychological
evaluation. The second evaluator described FDIA, also known as
Munchausen syndrome by proxy, as a “dangerous kind of maltreatment in
which [a] caretaker[], usually [a] parent[], deliberately and repeatedly
exaggerates, fabricates, [and/or] induces a [health] problem or problems in
someone that is under [his or her] care.”

                                        4
      In early April 2018, Anna was discharged from the hospital and placed
in the same foster home as Mason. While there, Anna thrived and was able
to successfully complete an outpatient eating disorder clinic. Mason,
however, began experiencing behavioral problems at school and at home in
the form of defiance and aggression. He was subsequently diagnosed with an
adjustment disorder and attention deficit hyperactivity disorder (ADHD) and
prescribed several medications to help with his symptoms. By June, the
Agency moved Mason to a different placement. Anna chose to stay in her
current foster home and visit with Mason.
      Mother was arrested and charged criminally with child endangerment.
She bailed out of jail, and a criminal protective order allowed her to have only
supervised contact with the children.
      In August 2018, the court made a true finding on Mason’s petition,
removed him from Mother’s care, and ordered reunification services.
      Throughout 2018 and into early 2019, Mother was unable to make
adequate progress on her case plan or gain insight into the protective risks.
She visited with the children in supervised settings. The children also
enjoyed weekly visits with each other, arranged by their caregivers. Anna
was doing very well, yet Mason was continuing to struggle daily with
aggressive behaviors. He moved through several placements. He was
destabilized by visits with Mother and frequently asked if he could stop
visiting her.
      Anna’s court appointed special advocate (CASA), who spent time with
her on a weekly basis, reported that Anna was benefitting, and would
continue to benefit, from being in a separate placement than Mason. Due to
his significant behavioral problems and Anna’s relatively passive nature,
Mason would divert caregivers’ time and attention to himself. In addition,


                                        5
Anna’s therapist did not believe Anna held a strong attachment to Mason but
cared about him for nostalgic reasons. Anna was emotionally closer to her
other adoptive sibling, Olivia, who was only two years older than Anna.
      In February 2019, the children’s counsel filed a section 388 petition to
terminate Mother’s services before Mason’s 12-month review hearing. The
following month, the court terminated her services and set a section 366.26
hearing. The court also discontinued visits between Mason and Mother due
to their negative effect on him.
      The date for the section 366.26 hearing was rescheduled to allow the
Agency time to assess the children’s permanent plans. Anna continued her
visits with Mother and, separately, with Mason and occasionally Olivia.
Sibling visits between Anna and Mason were positive; they would physically
play together (swinging and/or running around). Anna and Olivia “interacted
with each other like typical sisters . . . giggling and laughing . . . [and] taking
goofy pictures of each other.”
      In May 2019, Mason was placed in a home with foster parents who
were committed to adopting him. He would be the only child in the home and
have his parents’ full attention. When asked how he felt about being adopted
by his current foster parents, he responded by pointing to a “super happy
face” emoji. The Agency assessed him as generally and specifically adoptable
and recommended adoption as his permanent plan.
      Anna was separately placed in the same foster home as Olivia, who was
by then an adult. Several other children also lived in the home. The
caregivers had known Anna since she was five years old, loved her, and
wished to adopt her. In turn, Anna wanted to be adopted by them. Although
she was fond of Mason and wished to continue visiting him, Anna understood
that they could not be placed together due to his special needs. The Agency


                                         6
assessed Anna as specifically adoptable by her current caregivers and
recommended adoption as her permanent plan.
      Both Mason’s and Anna’s caregivers believed in continuing sibling
contact. The caregivers facilitated two visits a month.
      The contested section 366.26 hearing was held in February 2020. The
court received in evidence Agency and CASA reports without objection, and
heard live testimony from the Agency’s social worker, Anna, and Mother.
Since November 2019, Anna had declined all visits with Mother. Anna
articulated her understanding of what adoption meant and her desire to be
adopted by her current caregivers. Mother admitted she no longer had any
bond with Mason but claimed to still have a bond with Anna.
      After hearing the evidence and considering the arguments of counsel,
the juvenile court found the children adoptable, terminated Mother’s parental
rights, and ordered permanent plans of adoption. The court specifically
considered and rejected applicability of the sibling relationship exception,
discussing how the caregivers were committed to maintaining the sibling
relationship and that, in any event, the benefits of adoption outweighed the
benefits of their sibling relationship.
      Mother’s appeal followed.
                                  DISCUSSION
      A. Legal Principles Regarding Sibling Relationship Exception
      If a juvenile court finds that a child is likely to be adopted, adoption
must be ordered unless there is a “compelling reason” to apply one of the
statutorily enumerated exceptions. (§ 366.26, subd. (c)(1)(B).) One of the
specified exceptions is the sibling relationship exception, which applies
where, “[t]here would be substantial interference with a child’s sibling
relationship, taking into consideration the nature and extent of the


                                          7
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.” (§ 366.26, subd. (c)(1)(B)(v).)
      Employing a two-step process, the juvenile court first determines
whether terminating parental rights would substantially interfere with the
sibling relationship. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952 (L.Y.L.).)
If this first requirement is met, “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).) “[E]ven if adoption would interfere with a strong sibling
relationship, the court must nevertheless weigh the benefit to the child of
continuing the sibling relationship against the benefit the child would receive
by gaining a permanent home through adoption.” (In re Celine R. (2003)
31 Cal.4th 45, 61.)
      The parent opposing adoption has the burden of proving the statutory
exception for sibling relationships applies. (In re Daniel H. (2002)
99 Cal.App.4th 804, 813 (Daniel H.). This is considered “a heavy burden.”
(Ibid.) The authors of the legislation adding the sibling relationship
exception envisioned that its applicability would “ ‘likely be rare,’ ” meaning
“that the child’s relationship with his or her siblings would rarely be




                                        8
sufficiently strong to outweigh the benefits of adoption.” (L.Y.L., supra,
101 Cal.App.4th at p. 950.)4
      We review the court’s factual findings underlying the sibling
relationship exception for substantial evidence and the court’s weighing of
competing interests for an abuse of discretion. (In re Isaiah S. (2016)
5 Cal.App.5th 428, 437 (Isaiah S.); In re D.O. (2016) 247 Cal.App.4th 166, 174
(D.O.).)5
      B. Analysis
      Mother’s sole argument on appeal is that the juvenile court erred in not
applying the sibling relationship exception to termination of parental rights.
She contends that a lesser permanent plan, like long-term foster care or
guardianship, should have been ordered so that Anna and Mason could
continue their relationship. We reject Mother’s arguments and conclude the
juvenile court did not err in determining the sibling relationship exception
does not apply here.
            1. Substantial Interference With Sibling Relationship
      “To show a substantial interference with a sibling relationship the
parent must show the existence of a significant sibling relationship, the



4      If the court finds that the sibling relationship exception applies, it must
select legal guardianship or long-term foster care rather than adoption.
(§ 366.26, subd. (c)(4)(A).)
5     Mother contends only the substantial evidence standard of review
applies. The question of what standard of appellate review applies to another
statutory exception to adoption (the beneficial parental relationship
exception) is currently pending before our Supreme Court. (In re
Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839.)
Even if we had solely applied the substantial evidence standard of review, we
would still conclude the juvenile court did not err in declining to apply the
sibling relationship exception in the circumstances of this case.

                                        9
severance of which would be detrimental to the child. Many siblings have a
relationship with each other, but would not suffer detriment if that
relationship ended. If the relationship is not sufficiently significant to cause
detriment on termination, there is no substantial interference with that
relationship.” (L.Y.L., supra, 101 Cal.App.4th at p. 952.)
      In this case, substantial evidence supports the trial court’s conclusion
that the sibling relationship exception does not apply. The record supports
both (1) a finding that there would be no interference with the siblings’
relationship, and (2) a finding that the children would not suffer any
detriment even if their relationship was severed.
      First, there is substantial evidence in the record to support a finding
that terminating Mother’s parental rights and ordering adoption as the
children’s permanent plan would not substantially interfere with their sibling
relationship. The juvenile court found that, while not dispositive, “the
current caregivers have demonstrated their commitment to maintaining the
relationship between the children.” This is an appropriate factor for the
juvenile court to consider in analyzing the sibling relationship exception.
(See, e.g., D.O., supra, 247 Cal.App.4th at p. 175 [juvenile court may consider
assurances of continued sibling visits in determining whether there will be
substantial interference with a sibling relationship]; In re Jacob S. (2002)
104 Cal.App.4th 1011, 1019 [there was “no evidence that the relationships
between any of the siblings will necessarily cease upon termination of
parental rights,” where prospective adoptive parents were willing to allow
siblings to continue their relationship].) There was evidence from the social
worker, the children’s CASA, and Anna that the caregivers supported




                                       10
ongoing contact between the siblings.6 The juvenile court could properly
credit this testimony, and reject Mother’s conjecture that the caregivers
might not facilitate visits in the future.7
      Second, although there is some evidence of a bond between the
children, there is substantial evidence in the record that their relationship
was not sufficiently significant to cause detriment on termination. (See
L.Y.L., supra, 101 Cal.App.4th at p. 952.) Anna and Mason are not siblings
by birth, there is an eight-year age difference between them, they did not
share significant common interests, and they do not have a strong emotional

connection.8 The children lived together for about five years in Mother’s care
before the Agency’s intervention, but their shared experiences were plagued
by Mother’s life-threatening medical abuse and neglect of Anna.9 By the


6      Mother argues the children’s relationship “has already been harmed,”
pointing to a reduction in visits between the children during the dependency
proceedings. But this does not aid her position. To the extent there were
periods during the dependency case when the siblings had less contact,
without experiencing any associated difficulties, this bolsters a finding that
the sibling relationship exception does not apply. In addition, Mother fails to
acknowledge her role in the reduced contacts. Some visits between Anna and
Mason occurred concurrently with the children’s visitation with Mother, but
Mason’s relationship with Mother deteriorated to the point where he refused
visits, eventually leading the court to issue a no visitation order between
Mason and Mother in March 2019. There was a five-week period where the
children did not see each other because Mason was refusing to attend visits.
7     Mother’s counsel argued in closing that “[t]here is no guarantee that
either Mason’s caretakers or Anna’s caretakers will keep that relationship
going,” but Mother presented no evidence to support this assertion and meet
her burden of proving that the sibling relationship exception applies here.
8    According to Anna’s therapist, she did not have a strong attachment to
Mason.
9     Medical professionals opined that Mother’s actions were life
threatening to Anna. When she was hospitalized in 2017, she was in severe
                                        11
time of the section 366.26 hearing, Anna and Mason had lived apart for well
over two years and suffered no discernable distress from living apart. To the
contrary, the record shows that each child individually benefited from being
placed separately. Furthermore, the children wished to remain in their
separate placements and be adopted by their current caregivers. Anna
articulated an age-appropriate understanding of the meaning of adoption and
wanted to be adopted, even if that meant terminating her sibling
relationships. Mason similarly indicated his desire to be adopted. He had a
good time visiting with Anna and Olivia but was largely indifferent to
whether the visits continued. This evidence amply supports a finding that
the children would not suffer detriment from severing their sibling
relationship. (L.Y.L., supra, at p. 952.)
      Mother points to other evidence in the record to support her claim that
the court erred, contending the children had a good relationship, they enjoyed
their visits, and they cared about one another. On appeal, however, we
review the record to determine whether substantial evidence supports the
juvenile court’s ruling, not Mother’s position. We reject Mother’s arguments
based on this record.10




shock and near death. Anna’s perilous condition was evident to her siblings.
In October 2017, Olivia reported that Anna had spent the last few years of
her life on the couch because she lacked the energy to walk upstairs. Anna
screamed in pain “every day and every night,” and Olivia and Mason would
ask if she needed anything. Anna’s life revolved around being a “sick kid,”
and her primary way of relating to other people was “on a level of healthy
and sick.”
10     Mother has also failed to demonstrate how maintaining her parental
rights would promote the sibling relationship. She was under court order not
to visit Mason, and both children refused to visit her anymore. Mother has
not shown how preserving her parental rights would enhance the sibling
                                       12
            2. Benefits of Adoption Versus Maintaining Sibling Relationship
      We further conclude that the court did not abuse its discretion in
finding that the benefits of adoption outweighed the benefits of the children’s
sibling relationship.
      This was the second dependency case for each child. Despite their
significant struggles, Anna and Mason were now separately thriving in their
prospective adoptive homes. Anna’s horrific ordeal has already been
recounted ante. She was just beginning to process what her Mother had
done, and to realize that she was a victim of her Mother’s extreme medical
neglect. In addition to gaining this new insight regarding her Mother, she
was aware that she and her brother were differently situated and had
different needs. Anna was 15 years old by the time of the section 366.26
hearing, and she clearly articulated her preferences. She wished to gain
permanence through being adopted by her current caregivers, who she had
known since the age of five, and she understood that Mason was better off
living elsewhere. Her prospective parents provided Anna a home where she
felt safe and supported. In addition, in this home, Anna would have greater
contact with Olivia, to whom she held a stronger attachment. She was also
doing well in school, where she was engaged in typical teenage activities and
interactions with her peers.
      For Mason’s part, given his special needs and behavioral issues, it was
in his best interest to be adopted into a home where he was the only child.
Because Mason had seven prior placements, permanence and stability were
particularly important for him. Mason’s current caregivers, who were willing
to adopt him, were aware of his needs and able to meet them and provide a


relationship or be in either child’s best interest. (Isaiah S., supra,
5 Cal.App.5th at pp. 438-439.)

                                        13
stable home. He also had made significant progress in his new school,
supported by his prospective parents with whom he had already formed an
attachment. Although he enjoyed his visits with Anna, his long-term
emotional and developmental interests were better served by the permanency
of adoption rather than ongoing sibling contact.
      Because Mother only argues for a substantial evidence standard of
review, she does not specifically argue that the juvenile court abused its
discretion in finding that the benefits of adoption outweighed the benefits of
the children’s sibling relationship. Nonetheless, Mother’s arguments lack
merit and do not show any abuse of discretion. Mother notes the purpose of
the sibling relationship exception is to “preserve long-standing sibling
relationships that, ‘serve as anchors for dependent children whose lives are in
turmoil.’ ” (Citing In re Erik P. (2002) 104 Cal.App.4th 395, 404.) Although
the children enjoyed their visits, Mother has not demonstrated that they
served as “anchors” for one another such that the benefits of maintaining
their relationship outweighed the benefits of adoption. Similarly, Mother
generally contends the children had “good relationships” (according to their
respective court appointed special advocates); that their visits were positive
(according to the visitation monitor); and that Anna wished to continue
having a relationship with Mason (according to testimony by an Agency social
worker). But Mother fails to establish that the court abused its discretion
when it weighed these factors against the benefits of adoption. (See In re
Daisy D. (2006) 144 Cal.App.4th 287, 293 [“[A]lthough the [child] 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.”].) Contrary to Mother’s


                                      14
assertion that the juvenile court should have considered guardianship or
long-term foster care for the children, the court properly balanced “the
beneficial interest of the child[ren] in maintaining the sibling relationship,
which might leave the child[ren] in a tenuous guardianship or foster home
placement, against the sense of security and belonging adoption and a new
home would confer.” (L.Y.L., supra, 101 Cal.App.4th at p. 951.) Finally,
Mother argues that the “gap in ages” between the children should not serve
as an impediment to application of the sibling relationship exception. There
is no evidence that the juvenile court viewed the age difference as an
“impediment” to applying the sibling relationship exception, but the age
difference was nonetheless relevant to show the children had limited common
experiences.11
      Even if we assume the juvenile court erred in not applying the sibling
relationship exception as to Anna, each child must be considered separately.
(See Daniel H., supra, 99 Cal.App.4th at p. 813 [the court performs the best
interest analysis from the perspective of the adoptive child, not other
siblings].) Mother provided no evidence at all specific to Mason. When asked
about Anna’s sibling bond, Mother mentioned Olivia (who is now an adult),
and notably did not mention Mason. Mother also acknowledged that she has


11     The case cited by Mother on this point (In re Naomi P. (2005)
132 Cal.App.4th 808) is inapposite. That case involved a different procedural
posture; the appellate court was reviewing the juvenile court’s finding that
the sibling relationship exception applied where the court “had the
opportunity to observe the demeanor of the relevant witnesses” and “had
some doubts about [the] intentions [of Naomi’s prospective adoptive mother],
and of her appreciation of the importance of Naomi’s sibling relationships.”
(Id. at p. 824.) In this case, we review the juvenile court’s determination that
the sibling relationship exception does not apply, and Mother has failed to
meet her burden of demonstrating error or an abuse of discretion for the
reasons already discussed.
                                       15
no bond with Mason any longer.
      To summarize, given the limited nature and strength of the sibling
bond between Anna and Mason, the juvenile court had substantial evidence
to support its finding that their relationship was not so significant that its
loss would be detrimental, and the court did not abuse its discretion in
determining that the benefits to Anna and Mason of adoption outweighed any
bond they might have. This was not one of those rare cases providing a
“compelling reason” for application of the statutory exception. (§ 366.26,
subd. (c)(1)(B).)
                                 DISPOSITION
      The orders terminating parental rights are affirmed.




                                                                 GUERRERO, J.

WE CONCUR:




          BENKE, Acting P. J.




                O'ROURKE, J.




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