Filed 10/30/15 In re B.N. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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 B.N., a Person Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,                                               E063302

         Plaintiff and Respondent,                                       (Super.Ct.No. RIJ1400011)

v.                                                                       OPINION

A.N. et al.,

         Defendants and Appellants.




         APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson,

Judge. Affirmed.

         Jarvis, Krieger & Sullivan and Siobhan M. Bishop for Defendants and Appellants.

         Gregory P. Priamos, County Counsel, Julie Koons Jarvi, Deputy County Counsel,

for Plaintiff and Respondent.




                                                             1
       Appellants S.N. (father) and A.N. (mother) appeal from a Welfare and Institutions

Code1 section 366.26 order terminating parental rights to their son, B.N. (the child). On

appeal, father and mother (the parents) contend that: (1) the sibling relationship

exception (§ 366.26, subd. (c)(1)(B)(v)) applied; (2) the court erred in refusing to allow

their daughter to testify about her relationship with the child; and (3) the beneficial

parental relationship exception (§ 366.26, subd. (c)(1)(B)(i)) applied. We affirm.

                       FACTUAL AND PROCEDURAL BACKGROUND

       The parents were married and decided to adopt children. They adopted their

oldest daughter, A.N., from China in 2005. She was 11 months old at the time. Mother

later became pregnant and gave birth to twin girls, T.N. and H.N. (the twins).

Subsequently, the parents were contacted about the child, who was available for adoption

from China. They received the child into their home on March 4, 2013.

       The child did not have a smooth transition into the parents’ home. He bonded

with father. However, he had issues accepting mother and in fact seemed to be “rejecting

her as [a] mother figure.” He would not respond to her requests or demands and would

withdraw from her. The child’s behavior caused stress and frustration for mother, which

led her to scream and yell at him. Mother did not know how to deal with the child’s

rejection. The parents discussed rescinding the adoption. Mother decided to give the

child time to see if things would change.

       1 All further statutory references will be to the Welfare and Institutions Code,
unless otherwise noted.



                                              2
       On January 3, 2014, the Riverside County Department of Public Social Services

(DPSS) filed a section 300 petition on behalf of the child and his sisters (the children).

A.N. was nine years old at the time, the twins were three years old, and the child was

three years old, as well. The petition alleged that the child came within the provisions of

section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (e)

(severe physical abuse of a child under five). The petition also alleged that A.N., T.N.,

and H.N. (the girls) came within the provisions of section 300, subdivisions (b) and (j)

(abuse of sibling). The petition included the allegation that, while in the care and custody

of the parents, the child sustained multiple fractures to various parts of his body,

including his left and right clavicle, upper left humerus bone, and lower left humerus

bone. The parents had no explanation for the injuries. The petition alleged that the girls

were at risk of similar harm.

       In the detention report, the social worker reported that DPSS received a referral on

December 30, 2013, regarding the child. Father brought the child to the emergency

room, and the child was initially diagnosed with a fractured left arm. The fracture was

highly suggestive of non-accidental trauma. Father reported that the child fell a couple

days prior and had been unable to use his arm. The social worker spoke with a nurse at

the hospital, who said that the police had been contacted regarding child abuse concerns.

After arriving at the hospital, a police officer spoke with father, who said that he had been

away from home on business for about one week. When he returned home, mother

informed him that she noticed the child was reluctant to use his left arm and his elbow



                                              3
seemed swollen. Mother said that a few days prior, she found the child lying on the floor,

while he was playing with his sisters. She assumed he fell. She checked him for injuries,

and he seemed fine. However, she became concerned when the child’s elbow swelled up

a few days later. They then decided to take him to the doctor.

       The police officer spoke with the emergency room doctor, Victoria Shooks, who

said that a skeletal survey was done and several fractures were noted. Some fractures

appeared to be at least six weeks old. Dr. Shooks said there was a fracture to the upper

left humerus bone, near the shoulder. It was the type almost seen exclusively in child

abuse cases, since it could only be explained by a tugging or pulling motion, and a

twisting action in an upward motion. There was another fracture to the lower left

humerus bone, which appeared to be the most recent fracture. This fracture and the

shoulder fracture were highly indicative of someone having grabbed the child with

significant force. Dr. Shooks and a radiologist agreed that the fractures were particularly

indicative of abuse. Dr. Mark Massi performed a child abuse and neglect exam and

similarly concluded that the child’s injuries were indicative of physical abuse and

neglect.

       On January 6, 2014, a juvenile court detained the children in foster care. The

court ordered visitation twice a week.

       Jurisdiction/Disposition

       The social worker filed a jurisdiction/disposition report on January 23, 2014, and

recommended that the children be declared dependents of the court, and that reunification



                                             4
services not be provided to either parent, pursuant to section 361.5, subdivision (b)(5) and

(b)(6). The social worker further reported that the child and A.N. were placed with the

paternal grandparents, and the twins were placed with a paternal uncle and aunt.

       The social worker filed an amended petition on April 17, 2014. The amended

petition deleted the allegations under section 300, subdivisions (a) and (b). At a hearing

on that date, the court found that the child came within section 300, subdivision (e), and

declared him a dependent of the court. It also denied reunification services to the parents

as to the child, pursuant to section 361.5, subdivision (b)(5) and (b)(6), and set a section

366.26 hearing for September 2, 2014. Regarding the twins, the court found true the

allegations under section 300, subdivision (j), and declared them dependents of the court.

The court removed them from the parents’ custody and ordered the parents to participate

in reunification services. The parties reached an agreement to have A.N. returned to the

parents. The court ordered her returned to the parents’ custody, subject to DPSS

supervision, on a family maintenance plan.

       Status Review Report

       On August 20, 2014, the social worker filed a combined report pursuant to

sections 366.26, 366.3, 366.21, and 364. The social worker recommended that the

parents be offered an additional six months of family maintenance services as to A.N. As

to the twins, she recommended that they be returned to the parents’ custody under a

family maintenance plan. Regarding the child, the social worker recommended that

parental rights be terminated. The social worker reported that the twins had been having



                                              5
overnight visits with the parents, and that the family consistently visited the child once a

month. They enjoyed the visits, and the visits went well. The social worker reported that

the children appeared to have a significant bond with the parents and each other. The

social worker further reported that the child had adjusted well to his prospective adoptive

home, where he had been placed since April 23, 2014. He was described as a “happy go

lucky, outgoing child.” He appeared happy to see his family at visits. However, he did

not cry with the transition back to his prospective adoptive family after the visits.

       The social worker filed an addendum report on August 23, 2014, and attached a

preliminary adoption assessment report. The social worker described the prospective

adoptive parents as mature and stable. The child was attached to them, sought their

attention and affection, and was easily comforted by them. The prospective adoptive

parents were also attached to him. They were committed to raising the child in a safe,

loving environment.

       Section 388 Petitions

       On August 28, 2014 and September 2, 2014, respectively, father and mother filed

section 388 petitions asking the court to return the child to them and provide services.

The petitions were summarily denied. However, at the six-month review hearing

regarding T.N. and H.N., the court returned the twins to the parents’ custody under a plan

of family maintenance.

       On November 20, 2014, the girls filed a section 388 petition, asking the court to

grant them standing to participate in the section 366.26 hearing scheduled for the child.



                                              6
They opposed the adoption of the child and wanted to be heard by the court. The court

denied the petition, stating that there had been no showing that the request would be in

the child’s best interest.2

       The social worker filed an addendum report on December 16, 2014, and stated that

there had been no new developments in the case. The social worker reported that she

observed the child with his prospective adoptive parents, and at visits with the parents

and the girls. The social worker stated that the child called his prospective adoptive

mother “mommy” and appeared to be content in her care. When he visited with the

parents and the girls, he also appeared content. The social worker stated that the child

appeared to interact equally well with both families. She thus continued to recommend

that the child remain with the prospective adoptive parents, and that the adoption be

finalized.

       Section 366.26

       The court held a contested section 366.26 hearing on January 16, 2015. Counsel

for the parents had requested that A.N. be permitted to testify regarding her relationship

with the child. The child’s counsel objected to having A.N. testify. County counsel

agreed that A.N. should not testify, arguing that the issue was not what was in A.N.’s best

interest or that she wanted to have continued contact with the child. Rather, the issue was

whether adoption was in the child’s best interest; thus, any testimony about how A.N. felt


       2The girls filed a notice of appeal from the denial, and that appeal is currently
pending before this court in case No. E062627.


                                             7
about not seeing the child was irrelevant. Counsel for A.N. argued that, because the child

could not give a direct statement regarding his interests due to his young age, the court

could obtain his interest indirectly through A.N. The court noted that it had read all the

documents filed in the current case and made clear that it had no doubt there was a close

relationship between the child and A.N., as well as the twins. Since there was evidence

in the record that the children were close, and there was no evidence to the contrary, the

court decided not to permit A.N. to testify.

       The social worker testified at the hearing. She said the parents had visits with the

child once a month. The last visit she supervised was on December 18, 2014. The visit

went well. The child was happy to see the girls and the parents. He appeared to have

more of an affinity for A.N. The children read with each other and played with toys, and

the parents brought snacks. The social worker testified that the child appeared to be

happy during the visits, but was fine when the visit ended. He said goodbye to everyone.

She testified that at the end of visits in general, the child was not particularly sad.

       Father also testified at the hearing regarding the visit on December 18. He said the

child called him “daddy” and mother “mommy.” Father said the child enjoyed the last

visit, as shown by his laughter. The child played with the parents and the girls. Mother

also testified that the child had pet names for his sisters. She said that when the child left

his sisters at the end of visits, he was sad.

       After hearing testimony and closing arguments, the court found it likely that the

child was going to be adopted. The court also found that there was a sufficient basis for



                                                8
terminating parental rights. The court stated that two exceptions to the termination of

parental rights had been argued—the sibling relationship exception and the parental bond

exception. It noted that the parents may have a bond, but it was clear that such bond did

not outweigh the benefits of adoption. The court further found that the siblings had a

close relationship. However, the child was clearly in a very good home, where he was

free from abuse, and where he was loved and cherished. Thus, the court found that

neither exception applied and that adoption was in the child’s best interest. The court

terminated parental rights and set adoption as the permanent plan.

                                           ANALYSIS

                      I. The Sibling Relationship Exception Did Not Apply

       The parents contend that the court erred in failing to apply the sibling relationship

exception under section 366.26, subdivision (c)(1)(B)(v). They also argue that the court

erred in not permitting A.N. to testify about her relationship with the child. We conclude

that the sibling relationship exception did not apply here.

       The sibling relationship exception applies when “[t]here would be substantial

interference with a child’s sibling relationship, taking into consideration the nature and

extent of the relationship, including, but not limited to, 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).) Thus,



                                             9
“the sibling relationship exception contains strong language creating a heavy burden for

the party opposing adoption. It only applies when the juvenile court determines that there

is a ‘compelling reason’ for concluding that the termination of parental rights would be

‘detrimental’ to the child due to ‘substantial interference’ with a sibling relationship.” (In

re Daniel H. (2002) 99 Cal.App.4th 804, 813.) To show a substantial interference with a

sibling relationship, the party opposing adoption “must show the existence of a

significant sibling relationship, the severance of which would be detrimental to the

child.” (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952 (L. Y. L.).) “Many siblings have

a relationship with each other, but would not suffer detriment if that relationship ended.”

(Ibid.)

          First, the parents argue that the court erred in not permitting A.N. to testify

regarding the child’s relationships with his sisters. They claim that her testimony

regarding what the children did together, how close they were, and how the child acted

when he saw A.N. and/or had to leave her, was relevant to determining whether the

detriment from ending the sibling relationship outweighed the benefit of adoption. We

agree with the trial court’s decision not to have A.N. testify. The social worker, father,

and mother all testified as to what the child and the girls did together at visits, how they

interacted, the nicknames the child called the girls, and how he reacted at the end of

visits. Furthermore, the court read all of the documents filed and clearly stated it had no

doubt that the child had a close relationship with A.N., as well as with the twins. Since




                                                10
the court acknowledged that the children were close, more testimony from A.N.

regarding their relationships was not necessary.

       Second, the parents failed to show the existence of a significant sibling

relationship. The evidence showed that all the siblings had close bonds, in general. At

visits, the child was happy to see the girls, and they played games together, laughed, read,

and ate together. However, the evidence did not demonstrate that the severance of their

relationship would be detrimental to the child. The child was adopted by the parents and

only lived with the girls for 10 months before he was removed from the home. Although

the child and A.N. were placed together with the paternal grandparents when they were

first removed, the child was placed with the prospective adoptive family less than three

months after that. Moreover, while the child had fun at the visits with the girls, he was

not sad when he separated from them. To the contrary, the social worker testified that the

child was fine when the visits ended. She testified that he said goodbye to everyone and

was not particularly sad. Thus, there was no evidence that the child would suffer

detriment if the relationships ended. (L. Y. L., supra, 101 Cal.App.4th at p. 952.) As

such, the parents have not sustained the burden of proof that termination of parental

rights would substantially interfere with the child’s sibling relationships. (See ibid.)

       “Moreover, even if a sibling relationship exists that is so strong that its severance

would cause the child detriment, the court then weighs the benefit to the child of

continuing the sibling relationship against the benefit to the child adoption would

provide.” (See L.Y.L., supra, 101 Cal.App.4th at pp. 952-953.) If parental rights were



                                             11
terminated here, the child would gain a permanent home through adoption. If parental

rights were not terminated, he would lose the permanent home his prospective adoptive

parents were ready to provide for him. Valuing the child’s continuing relationships with

his siblings over adoption would deprive him of the ability to belong to a family that

loved him and was able to provide a stable home for him. We conclude that the benefits

of adoption outweighed the benefits of the continuing the child’s sibling relationships.

       In sum, the court properly determined that the sibling relationship exception to the

termination of parental rights did not apply here.

            II. The Beneficial Parental Relationship Exception Did Not Apply

       The parents contend that the court erred in not applying the beneficial parental

relationship exception under section 366.26, subdivision (c)(1)(B)(i). We disagree.

       At a section 366.26 hearing, the court determines a permanent plan of care for a

dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the

permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

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 a compelling

reason for determining that termination of parental rights would be detrimental to the

child under one of the exceptions set forth in section 366.26, subdivision (c)(1)(B). One

such exception is the beneficial parental relationship exception set forth in section

366.26, subdivision (c)(1)(B)(i). (See In re Jerome D. (2000) 84 Cal.App.4th 1200,

1206.) This exception applies when the parents “have maintained regular visitation and



                                              12
contact with the child and the child would benefit from continuing the relationship.”

(§ 366.26, subd. (c)(1)(B)(i).) The phrase “benefit from continuing the relationship”

refers to a parent/child relationship that “promotes the well-being of the child to such a

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

new, adoptive parents. In other words, the court balances the strength and quality of the

natural parent/child relationship in a tenuous placement against the security and the sense

of belonging a new family would confer. If severing the natural parent/child relationship

would deprive the child of a substantial, positive emotional attachment such that the child

would be greatly harmed, the preference for adoption is overcome and the natural

parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575

(Autumn H).) It is the parent’s burden to show that the beneficial parental relationship

exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)

       The parents assert that they maintained consistent visitation with the child at every

opportunity available. They state that the child called them “mommy” and “daddy.”

They brought his favorite food and toys to the visits, they read with him, fed him, talked

with him, and played games with him. The parents further assert that they were the

child’s primary caretakers for nine months, prior to his removal.

       The parents cite In re Brandon C. (1999) 71 Cal.App.4th 1530 in support of their

position. However, that case is distinguishable. In that case, the Department of Children

and Family Services failed to provide information to the court about the quality of the

interactions between the mother and her children. Rather, the reports simply described



                                             13
“the regularity of the visits, with no evaluation of their success.” (Id. at p. 1538.) Thus,

the only evidence before the juvenile court concerning the mother’s relationship with her

children was the testimonies of the mother and the paternal grandmother that there was a

close bond, and that a continuation of contact would be beneficial to the children. (Id. at

p. 1537.) The appellate court noted that the Department of Children and Family Services

did not present any evidence to the contrary. (Ibid.) Therefore, the appellate court

affirmed the juvenile court’s finding that the beneficial parental relationship exception

applied. (Id. at p. 1538.)

       In contrast, here, the social worker provided information regarding the quality of

the parents’ relationship with the child. The social worker reported that father told her

the child did not have a smooth transition into the parents’ home, when they adopted him.

Although the child bonded with father, he had issues accepting mother and attaching to

her. Father said the child seemed to be “rejecting her as [a] mother figure.” The child

would often not listen or respond to her, and he would withdraw from her. Father

reported that mother would vent her frustration with the child by screaming and yelling at

him. The parents even discussed the possibility of rescinding the adoption, if the

situation did not improve. After the child’s removal, the parents consistently visited the

child once a month, and the visits went well. The social worker opined that the child

appeared to have a significant bond with the parents. However, although the parents’

interactions with the child during visits may have been appropriate, they, at best,

“amounted to little more than playdates for him with [] loving adult[s].” (In re Bailey J.



                                             14
(2010) 189 Cal.App.4th 1308, 1316.) The child was described as a “happy go lucky,

outgoing child.” Thus, he appeared happy to see his family at visits and had fun with

them. Significantly, while the child was happy with his family during visits, the social

worker reported that the child was also content in the prospective adoptive mother’s care,

and he called her “mommy.” The social worker reported that the child interacted equally

well with the parents and the prospective adoptive parents. The child did not cry at the

end of visits with the parents, and the social worker observed that he “transition[ed] very

well between the families.” Thus, although the visits may have gone well, the parents’

interactions with the child do not demonstrate that their relationship with him promoted

his well-being “to such a degree as to outweigh the well-being the child would gain in a

permanent home with new, adoptive parents.” (Autumn H., supra, 27 Cal.App.4th at p.

575.)

        The parents further compare themselves to the father in In re S.B. (2008) 164

Cal.App.4th 289. In that case, the appellate court reversed the order terminating parental

rights, finding that the father and his child had a strong bond, and the child would benefit

from continuing the relationship. (Id. at p. 300.) However, S.B. is readily

distinguishable. First, the father in S.B. was the child’s primary caregiver for three years.

(Id. at p. 298.) The child therefore had an emotionally significant relationship with him,

and for the first year after she was removed, she continued to display a strong attachment

to him. “She was unhappy when visits ended and tried to leave with [the father] when the




                                             15
visits were over.” (Ibid.) The record also showed that the child loved the father and

wanted their relationship to continue. (Ibid.)

        In contrast, the parents in the instant case adopted the child, and he only lived with

them for 10 months before he was removed from their care. He did not develop an

emotionally significant relationship with them, as evidenced by his difficult transition

into their home. (See ante.) Moreover, the child was not sad when visits with them

ended, and there was no evidence that he wanted his relationship with the parents to

continue. He easily went back with his prospective adoptive parents when the visits were

over.

        We further note that the evidence showed that the child and his prospective

adoptive parents had a strong attachment. The child was happy and well cared for, they

loved him, and they wanted to provide a permanent home for him. They were committed

to raising him in a safe and loving environment.

        Ultimately, the parents have not proffered any evidence to support a finding that

the child had a “substantial, positive emotional attachment such that [he] would be

greatly harmed” if the relationship was severed. (Autumn H., supra, 27 Cal.App.4th at

p. 575.) We conclude that the beneficial parental relationship exception under section

366.26, subdivision (c)(1)(B)(1) did not apply here.




                                              16
                                        DISPOSITION

       The court’s order is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                      HOLLENHORST
                                                                Acting P. J.


We concur:


McKINSTER
                          J.


KING
                          J.




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