Filed 5/31/13 In re E.F. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re E.F., a Person Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,                                               E057300

         Plaintiff and Respondent,                                       (Super.Ct.No. RIJ120646)

v.                                                                       OPINION

D.L.et al.,

         Defendants and Appellants.




         APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

         Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and

Appellant D.L.

         Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and

Appellant L.F.



                                                             1
         Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel,

for Plaintiff and Respondent.

         D.L. (Mother) and L.F. (Father) appeal after the termination of their parental rights

to their daughter, E.F., at a Welfare and Institutions Code section 366.26 hearing.1

They claim on appeal as follows:

         1.     Father, joined by Mother, claims that the juvenile court erred by finding

that the beneficial parent-child exception of section 366.26, subdivision (c)(1)(B)(i) did

not apply.

         2.     Father, joined by Mother, contend that the juvenile court erred by finding

that the sibling exception pursuant to section 366.26, subdivision (c)(1)(B)(v) did not

apply.

         We affirm the juvenile court‟s order terminating parental rights.

                                                I

                    PROCEDURAL AND FACTUAL BACKGROUND

         A.     Detention

         E. was born in April 2008. She had a brother, J.L., who was born in December

2005.2 Father was the biological father of E.; J. had a different biological father.



         1   All further statutory references are to the Welfare and Institutions Code
unless otherwise indicated.
         2     J. is not a subject of the instant appeal but will be referred to only as it
pertains to the detention of E. and the subsequent termination of parental rights.


                                                2
       On November 15, 2010, Riverside County Department of Public Social Services

(the Department) received a referral for allegations of physical abuse of J. J. had

disclosed to the reporting party that Mother had burned him on the face with a lighter

because she was mad at him. J. had an open wound on his lower right jaw. The injury

was in a perfect circle and resembled a cigarette burn.

       A social worker talked to J. on November 15. J. did not appear to be able to

discern between the truth and a lie, but the social worker interviewed him anyway. J.

claimed that he was disciplined at home by being burned. The wound was the size of a

dime. J. mentioned that Father and Mother frequently argue.

       The social worker interviewed Mother and Father. Both denied causing the injury

to J. J. had told Mother he received the injury when a friend had stabbed him with an

object. When the social worker confronted Mother with the accusation that she burned

him with a lighter, she responded, “If that‟s what [J.‟s] saying, then . . . I don‟t know . . .

what can I say?” J. told Father that a neighbor friend stabbed him with a knife. Mother

and Father did not investigate the incident.

       Mother and Father had been involved in domestic violence in the past, but there

were no recent reports of violence. They initially denied any current drug or alcohol

abuse. When asked to take a drug test, Father admitted that he had used

methamphetamine two times in the previous two weeks. He claimed Mother did not use

methamphetamine. Mother later admitted that she and Father used methamphetamine

together on November 12, 2010. She admitted that she had spanked E. and J. with a


                                               3
wooden spoon. Father disciplined by spanking them on the bottom. E. had no marks or

bruises.

       E. and J. were placed with another family member. A child abuse neglect (CAN)

examination was conducted on J. The injury to his face was consistent with being burned

by a lighter. J. also had patterned scars on his back, abdomen, legs, and arms that were

consistent with being hit by a belt. It was concluded by the examining doctor that J. had

been physically abused. Mother and Father denied abusing J. Mother was cited for

misdemeanor child endangerment. E. and J. were detained and placed together in the

same foster home.

       Father had some prior convictions, including possession of drug paraphernalia and

burglary.

       On November 18, 2010, the Department filed a section 300 petition against

Mother and Father. It alleged under section 300, subdivision (b) for E. that the parents

engaged in domestic violence and abused methamphetamine, which impacted their ability

to parent her. In addition, it alleged under section 300, subdivision (j) that J. had been

abused and that E. faced a similar risk of harm.

       At a detention hearing held on November 19, 2010, the juvenile court found a

prima facie case and ordered E. detained. A guardian ad litem was appointed for her.

Supervised visitation was ordered for one time a week for one hour.




                                              4
       B.     Jurisdictional/Dispositional Report and Hearing

       In a jurisdictional/dispositional report filed on December 9, 2010, the Department

recommended that E. remain in foster care and that Father and Mother be granted

reunification services.

       On December 1, 2010, the social worker spoke with J., and he again claimed that

Mother burned his face with a lighter. E. refused to speak with the social worker. The

Department was not given authorization to interview Father and Mother. Father declined

to be interviewed, stating, “Just for the fact that we give up information and it will get

twisted and misused. That‟s what happened at the beginning of the case.” Mother stated,

“It‟s not in my favor. I hope and pray that the truth comes out.”

       E. had no developmental delays. She was very shy. At a visit on December 1,

2010, Father was very nurturing toward E. Mother was more focused on talking about

her case with the social worker present than on visiting with E. Mother also spoke with

the foster mother rather than playing with E. and J.

       Mother and Father were both referred to the Family Preservation Center (the FPC)

for substance abuse counseling, drug testing, counseling, and parenting. Mother

cancelled several appointments, and Father never called the FPC.

       The jurisdictional/dispositional hearing was conducted on December 22, 2010.

Father and Mother objected to the petition but presented no affirmative evidence. The

juvenile court found the allegations in the petition true. Mother and Father were granted

six months of reunification services. E. and J. were declared a sibling set.


                                              5
       C.     Review Reports and Hearings

       In the six-month status review report filed on June 2, 2011, it was recommended

that reunification services continue for Father and Mother. E. and J. were placed in a

new home on April 14, 2011, due to a change in the prior family‟s circumstances. The

children had transitioned well into the new home.

       Mother and Father were not married but had been together for four years. They

lived together. Both Mother and Father reported being unemployed and had no source of

income.

       J. had been reported to exhibit aggressive outbursts and temper tantrums but was

otherwise developing normally. On February 14, 2011, J. was diagnosed with

oppositional defiant disorder.

       E. was developmentally on target. She had good eating and sleeping habits.

Although she was shy, once she warmed up to a person, she was talkative.

       Mother had attended only one counseling session. She had completed parenting

classes. She had failed to attend domestic violence classes. She had missed some of her

substance abuse classes but was participating. She tested positive for methamphetamine

on January 4, 2011. She was negative on the next three tests but failed to appear for a

test on May 18, 2011.

       Father had attended only one counseling session. He completed a parenting class.

He had not attended domestic violence classes. He was attending some of his substance

abuse classes. He tested positive for methamphetamine on February 10, 2011. He tested


                                            6
negative at one subsequent test, and results were pending for another subsequent test.

He, too, failed to appear for a test on May 18, 2011.

       In January and February 2011, Father and Mother had been late to visits, brought

visitors, and discussed the case details with the children. The visits were moved to be

supervised by the Department. E. and J. looked forward to visiting their parents. Father

and Mother were loving and affectionate but also redirected the children when necessary.

However, they continued to be late to visits and missed one visit.

       At the six-month review hearing conducted on July 7, 2011, reunification services

were continued for six months despite the juvenile court‟s concerns regarding the

parent‟s progress on the case plan. Both Mother and Father stated at the hearing that they

had been irresponsible but were willing to complete whatever services were necessary to

regain custody of the children. The juvenile court warned them that they must complete

their services before the 12-month review hearing.

       On September 13, 2011, the Department brought an application for psychotropic

medication to be administered to J. J.‟s violent behavior was “disruptive,” and the foster

mother was unable to control him. She feared for the safety of E. and other children in

the home. The juvenile court ordered administration of the drugs.

       The Department filed a 12-month status review report on December 8, 2011, and it

was recommended that reunification services be terminated. E. and J. remained together

in the same foster home.




                                             7
          Mother and Father were unemployed and homeless. They were having problems

with their relationship. Mother accused Father of having a romantic relationship with her

sister.

          J. had behavioral problems. He had been suspended from school a number of

times. He got into disagreements over little things with E. and his foster siblings. He

told the foster mother he was acting this way in order to get returned to the care of his

parents. J. had been seen by a psychologist who stated J. demonstrated defiance, physical

aggression, and angry outbursts. His angry behavior had decreased somewhat since he

started taking medication. Despite the improvement, the foster mother wanted J.

removed from her home.

          E. was developing normally and had no emotional issues. It was reported that J.

had acted sexually inappropriately with E. J. touched her private areas and made sexual

comments to her. He also had pushed her and yelled at her. The foster mother did not

leave them alone together. E. was needy and wanted attention due to J.‟s actions.

          Mother‟s therapist had recommended that she be referred for possible

psychotropic medication due to her depression and behaviors. Mother had failed to get

evaluated for the medication. She was inconsistent in her attendance at therapy. She had

not completed her domestic violence/anger management course or her substance abuse

program. She failed to appear for random drug tests on nine occasions.

          Father completed no individual counseling. He did complete some domestic

violence classes and some substance abuse counseling. He was eventually dismissed


                                              8
from the substance abuse program for not following rules. Father also missed nine

random drug tests.

       During the reporting period, Father and Mother had been more sporadic and

inconsistent in their visitation. They had fought in front of E. and J. during a visit. The

visits were changed so that Father and Mother attended separately. Unsupervised visits

were not possible. When visits did occur, they were appropriate, and the children were

happy to see Mother and Father.

       The Department was concerned that Mother and Father continued to abuse illegal

substances. It was considering separate placement for J. and E. due to J.‟s behavior.

       On December 22, 2011, the review hearing was held. Mother objected to anything

in the reports about her having mental health problems, as she had never been evaluated.

Father also objected and argued he was completing some services. The juvenile court

terminated reunification services. A section 366.26 hearing was set.

       D.     Separating the Sibling Set

       On February 3, 2012, the Department filed an ex parte application to separate the

sibling set. J. had increased his sexualized behavior toward E. since the last hearing. In

November 2011, J. snuck into E.‟s room, but E. initially denied any sexual abuse. At the

end of December 2011, J. was found lying in bed next to E. E. told the foster mother that

J. touched her private area. E. reported that J. was “groping” her vagina on several

occasions, including the times he was found in her bed. E. reported that she was afraid of

J. The juvenile court issued an order granting the request.


                                              9
       E.     Section 366.26 Reports and Hearing

       On April 9, 2012, the Department filed a report for the section 366.26 hearing. E.

was moved to a prospective adoptive home on February 29, 2012, away from J.

       Mother reported that she was attending Alcoholics Anonymous/Narcotics

Anonymous meetings and living with her sponsor. J. appeared to be less aggressive due

to his new foster home, the medication and counseling. However, J. had been sexually

inappropriate with his foster siblings.

       E. was doing well in her new placement. She had bonded with her new family

and was happy. The family was willing to adopt E. The Department reported that it was

better to keep E. and J. separated.

       During this reporting period, Father and Mother had been consistent in monthly

visitation, and it had been appropriate. Mother had arranged a birthday party for J. at one

visit. A continuance was requested and granted in order for an adoptive assessment to be

done for the family adopting E.

       An addendum report was filed on August 9, 2012. The Department recommended

termination of parental rights to E. and adoption as the permanent plan. An adoptive

home had not been found for J. E. was in her prospective adoptive home and was

thriving.

       Mother had missed one of the visitations. On another occasion she only showed

up for the last 10 minutes of a two-hour visit. Father had also missed one visit.

Moreover, Father had gotten angry with E. at a visit for calling the adoptive parents


                                            10
“mom” and “dad.” Visitation between E. and J. was appropriate. E.‟s adoptive parents

were considering continuing visitation with J. after the adoption as long as he did not act

inappropriately.

       E.‟s adoptive family provided a stable home environment and were a close-knit

family. They were open to sibling contact.

       On September 13, 2012, the section 366.26 hearing was conducted, as will be set

forth in more detail, post. Mother‟s and Father‟s parental rights to E. were terminated,

and she was freed for adoption. E. was “emotional” during her final visit with Mother

and Father. Mother and Father thereafter appealed.

                                             II

             EXCEPTIONS TO TERMINATION OF PARENTAL RIGHTS

                           PURSUANT TO SECTION 366.26

       Father, joined by Mother, argue that the beneficial parent exception of section

366.26, subdivision (c)(1)(B)(i) and that the sibling exception to adoption under section

366.26, subdivision (c)(1)(B)(v) applied. The juvenile court erred by terminating their

parental rights.

       A.     Additional Factual Background

       At the section 366.26 hearing, Father testified. Father claimed when the visits

were two times per week, he was consistent with visitation and was on time. At the

visits, E. called Father “Papa” or “daddy,” she hugged him, and she was happy to see

him. She always asked him when she was going back to live with him. She told him that


                                             11
she loved him. E. cried at the end of visitation. Father always brought activities and

snacks. He believed there was a strong parent/child bond. Father felt that E. would

benefit from continuing the relationship. He asked for legal guardianship.

       Father also testified that E. and J. had a strong bond; ongoing contact between

them was in their best interests. Father thought it was hard for E. not to be with J. Father

insisted that he was consistent with the monthly visitation.

       Father argued that the beneficial parental exception applied. He claimed that E.

cried at the end of visits and that he acted appropriately during the visits. E. would

benefit from continuing the relationship. E. had only been in her current placement for

six months, and the bond with Father outweighed the permanency of adoption. Father

also argued that the sibling exception applied. E. and J. were raised in the same home

and had common experiences. If the juvenile court terminated parental rights, there was

no guarantee of keeping up the relationship between E. and J. Mother also argued that

there was a parental/child bond and joined in Father‟s arguments.

       The juvenile court found by clear and convincing evidence that “termination of

parental rights would not be detrimental to the minor in that none of the exceptions

contained in Welfare and Institutions Code Section 366.26 (c)(1), (a) or (b) are applicable

to this case . . . .” It was clear to the court that Father loved E. but could not complete the

services necessary to reunite him with her. E. had clearly bonded with the adoptive

family. The juvenile court also noted that “an important fact” as to the sibling issue was

that J. had sexually victimized E. and it was appropriate to keep them separate.


                                              12
       B.     Standard of Review

       At the section 366.26 hearing, the sole issue “„is whether there is clear and

convincing evidence that the child is adoptable.‟ [Citations.]” (In re Josue G. (2003) 106

Cal.App.4th 725, 733; see § 366.26, subd. (c).) “Adoption, where possible, is the

permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th

567, 573.) If the court finds that a child may not be returned to his or her parents and is

likely to be adopted, it must select adoption as the permanent plan, unless it finds that

termination of parental rights would be detrimental to the child under one of the seven

exceptions set forth in section 366.26, subdivision (c)(1)(A) and (c)(1)(B)(i) through (v).

(See In re Jamie R. (2001) 90 Cal.App.4th 766, 773.)

       C.     Parental Benefit Exception

       The parental benefit or “beneficial relationship” exception is set forth in section

366.26, subdivision (c)(1)(B)(i). The exception applies where “„[t]he parents . . . have

maintained regular visitation and contact with the minor and the minor would benefit

from continuing the relationship.‟” (In re Derek W. (1999) 73 Cal.App.4th 823, 826.)

       “The parent must do more than demonstrate „frequent and loving contact[,]‟

[citation] an emotional bond with the child, or that parent and child find their visits

pleasant. [Citation.] Instead, the parent must show that he or she occupies a „parental

role‟ in the child‟s life.” (In re Derek W., supra, 73 Cal.App.4th at p. 827.) “The

„benefit‟ prong of the exception requires the parent to prove his or her relationship with

the child „promotes the well-being of the child to such a degree as to outweigh the well-


                                             13
being the child would gain in a permanent home with new, adoptive parents.‟

[Citations.]” (In re K.P. (2012) 203 Cal.App.4th 614, 621.) “„The burden falls to the

parent to show that the termination of parental rights would be detrimental to the child

under one of the exceptions. [Citation.]‟ [Citations.]” (In re C.B. (2010) 190

Cal.App.4th 102, 122.)

       “We review the trial court‟s findings for substantial evidence. [Citation.]” (In re

Dakota H. (2005) 132 Cal.App.4th 212, 228; see also In re Bailey J. (2010) 189

Cal.App.4th 1308, 1314.) “„On review of the sufficiency of the evidence, we presume in

favor of the order, considering the evidence in the light most favorable to the prevailing

party, giving the prevailing party the benefit of every reasonable inference and resolving

all conflicts in support of the order.‟ [Citation.]” (In re C.F. (2011) 193 Cal.App.4th

549, 553.) Thus, “a challenge to a juvenile court‟s finding that there is no beneficial

relationship amounts to a contention that the „undisputed facts lead to only one

conclusion.‟ [Citation.] Unless the undisputed facts established the existence of a

beneficial parental . . . relationship, a substantial evidence challenge to this component of

the juvenile court‟s determination cannot succeed.” (Bailey J., at p. 1314.)

       The juvenile court here summarily denied that the exception applied. It is not

clear if it concluded that Father and Mother failed to maintain visitation or if it concluded

that there was not a beneficial relationship. The evidence supports both conclusions.

       Throughout the proceedings, Mother and Father were inconsistent with visitation.

In the first six months, Mother and Father were consistently late to visitation. They


                                             14
brought other visitors to visitations. They missed a visitation. In the 12-month review

hearing report, it was reported that they were sporadic and inconsistent in their visitation.

Mother and Father fought at a visit.

       In the section 366.26 report, the Department noted that Mother and Father had

been more consistent in their monthly visits but still missed one visit. Since the visits

were monthly, this meant they did not see E. for two months. Mother had shown up for

only 10 minutes of one visit. Father had gotten angry at E. during a visit because she was

calling the foster parents “mom” and “dad.”

       While some of the visits were appropriate and E. looked forward to them, the

record establishes that Mother and Father missed several visitations and had been late to

many visits. They argued at visits. The juvenile court certainly could have concluded

that Father and Mother had not maintained consistent visitation.

       Moreover, even if the juvenile court found that Father and Mother maintained

consistent visitation, they cannot prove their relationship with E. benefitted her to such a

degree as to outweigh the well-being she would gain in a permanent home with adoptive

parents. (In re K.P., supra, 203 Cal.App.4th at p. 621.) “The factors to be considered

when looking for whether a relationship is important and beneficial are: (1) the age of

the child, (2) the portion of the child‟s life spent in the parent‟s custody, (3) the positive

or negative effect of interaction between the parent and the child, and (4) the child‟s

particular needs.” (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.) Mother

and Father did not show that their relationship with E. was important and beneficial.


                                              15
       Father and Mother came to the attention of the Department due to serious injuries

on J. from where Mother burned him with a lighter. He had other marks that were

evidence of past physical abuse. E. faced the potential of being physically abused if she

remained in the custody of Father and Mother. Mother was abusive, and Father

apparently did nothing to stop her.

       Additionally, Mother and Father had tested positive for methamphetamine once

during the proceedings, and they each missed nine drug tests. The juvenile court could

reasonably be concerned that Father and Mother were using methamphetamine. If they

were using drugs, they could not provide a stable home environment for E.

       The record certainly shows that E. had an emotional attachment with her parents,

and especially Father. Nevertheless, this attachment did not meet her needs, and she

faced harm by remaining in the care of Father and Mother.

       Moreover, even if Mother and Father could establish a beneficial relationship, they

cannot show that termination of the parental relationship was detrimental to E. (In re

Bailey J., supra, 189 Cal.App.4th at p. 1315.) We review this determination under an

abuse of discretion standard. (Ibid.)

       E. was thriving in her adoptive home. She no longer was being sexually abused

by J. and did not face the threat of being abused by Mother. Father and Mother certainly

could be continuing to abuse drugs as they failed to drug test. Based on the foregoing,

the juvenile court did abuse its discretion by finding that the parental benefit exception

did not apply in this case.


                                             16
         D.     Sibling Exception

         Father, joined by Mother contend that the juvenile court erred by finding that the

sibling exception to adoption pursuant to section 366.26 subdivision (c)(1)(B)(v) did not

apply.

         Section 366.26, subdivision (c)(1)(B)(v) provides an exception to the termination

of parental rights if the court finds a compelling reason for determining that termination

would be detrimental to the child due to a “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.” (§ 366.26, subd. (c)(1)(B)(v).)

         The juvenile court undertakes a two-step analysis in evaluating the applicability of

the sibling relationship exception. First, the court is directed “to determine whether

terminating parental rights would substantially interfere with the sibling relationship 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. [Citation.] If the court determines terminating parental

rights would substantially interfere with the sibling relationship, the court is then directed

to weigh the child‟s best interest in continuing that sibling relationship against the benefit


                                              17
the child would receive by the permanency of adoption.” (In re L.Y.L. (2002) 101

Cal.App.4th 942, 951-952.) “[T]he concern is the best interests of the child being

considered for adoption, not the interests of that child‟s siblings.” (In re Naomi P. (2005)

132 Cal.App.4th 808, 822.)

       “Indeed, even 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. [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 61.) We review the

court‟s finding on this issue for substantial evidence. (In re L.Y.L., supra, 101

Cal.App.4th at p. 953.)

       The evidence establishes that E.‟s need for a permanent, stable home away from

J.‟s explosive and sexual behaviors outweighed any sibling relationship.

       Here, J. and E. did initially live in the same home together until they were detained

when E. was two years old and J. was five years old. They were also initially placed in

the same foster home and declared a sibling set. However, they had to be separated and

the sibling set was dissolved because J. was sexually inappropriate with E. J. would

sneak into E.‟s room and touch her vagina. He also made sexual comments to her. J.

pushed E. and yelled at her. E. was afraid of J. Although there was some bond between

J. and E., the damage to E. was immeasurable if she remained with J.

       Father contends that J. never touched E. at the visitations. However, these visits

were supervised. Moreover, when J. touched E., he snuck into her room in the middle of


                                             18
the night. The juvenile court could reasonably conclude that J. had acted inappropriately

with E.

       In addition to the sexually inappropriate behavior, J. continued to escalate his

violent behavior throughout the dependency proceeding. J. had trouble with his various

foster parents who could not control him. Even after termination of parental rights to E.,

J. had to be moved out of his placement due to aggressive behavior. He left bruises on

the foster mother‟s arm, and the foster parents called law enforcement because they could

not control J. E. was becoming needy due to J.‟s violent behavior. Once E. was moved

to the adoptive home away from J., she began to thrive.

       Finally, the adoptive parents of E. agreed to maintain some sort of sibling

relationship between E. and J. assuming that he did not act inappropriately with her. As

such, some sibling relationship would be maintained.

       Based on the foregoing, we conclude substantial evidence supports the juvenile

court‟s decision not to apply the sibling exception to the termination of parental rights in

this case.3 The juvenile court properly terminated parental rights for Father and Mother.




       3      Mother makes an additional claim that if we reverse the termination of
Father‟s parental rights, we must reverse the termination of her parental rights. Since we
uphold the juvenile court‟s order, we need not address the issue.


                                             19
                                          III

                                   DISPOSITION

     The juvenile court‟s orders are affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                 RICHLI
                                                          J.

We concur:


RAMIREZ
                     P. J.


HOLLENHORST
                        J.




                                          20
