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In Re Michael C. et al., Persons Coming Under the Juvenile Court v. Michelle A

December 1, 2010

IN RE MICHAEL C. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
MICHELLE A., DEFENDANT AND APPELLANT.



The opinion of the court was delivered by: Simons, Acting P.J.

In re Michael C.

CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Michelle A. (Mother) appeals an order terminating her parental rights over her three sons: Michael C.,*fn1 born in 1998; Cody S., born in 2000; and Troy S., born in 2002.*fn2 (Welf. & Inst. Code, § 366.26.)*fn3 Mother contends the juvenile court's finding that the minors were adoptable is not supported by substantial evidence, the court erred in failing to apply the continuing beneficial relationship exception to parental termination (§ 366.26, subd. (c)(1)(B)(i)), the court erred in failing to proceed by way of former section 366.26, subdivision (b)(3)),*fn4 the court erroneously failed to continue the section 366.26 hearing (.26 hearing), and failed to comply with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. §§ 1901, 1912(a)).

In August 2007, the minors were declared dependents of the court.*fn5 The minors remained in foster care with reunification services to Mother. In August 2007, Cody was placed with Troy and Michael. Reunification services were terminated in October 2008. In July 2009, the minors were placed with their maternal great uncle and aunt, Jonathan and Julie C., in Sacramento County.

In August 2009, Mother filed a section 388 petition seeking to have the minors placed with her or reinstatement of reunification services. She asserted she had maintained suitable housing, had done volunteer and paid work, the minors' placement had been moved away from Humboldt County and new information had come to light regarding allegations of her sexual abuse of Michael. Several days later, the Department filed a section 388 petition seeking the court's approval of the minors' placement with their relative caregivers in Sacramento County. Both section 388 petitions were set for hearing on December 3, 2009, together with the post permanency planning review hearing.

The Department's September 2009 status review report stated that the Department had researched possible visitation centers near the relative caregivers to support the minors' visitation with Mother. The minors were doing well in this placement and the relative caregivers were being assessed as adoptive parents. The Department supported assessing the current caregivers as adoptive parents and selecting adoption by them as the permanent plan, and recommended setting a .26 hearing.

On December 4, 2009, following a contested hearing on the parties' section 388 petitions, the court denied Mother's section 388 petition, granted the Department's section 388 petition, and set a .26 hearing for April 5, 2010.

We include other pertinent facts in our discussion of the issues raised by Mother.

DISCUSSION

I. The Finding of Adoptability Is Supported by Substantial Evidence

Appellant contends the court's finding that the minors were adoptable is not supported by substantial evidence. She argues the Department's report and adoption assessment did not comply with the statutory guidelines of section 366.26 and failed to include adequate assessments of the history and quality of sibling contact between the three minors and their half-siblings. Therefore, the court could not conduct the requisite analysis regarding the nature and extent of the sibling bond in making its adoptability finding.

The juvenile court may terminate parental rights only after determining by clear and convincing evidence that it is likely the children will be adopted within a reasonable time. (§ 366.26, subd. (c)(1).) We review a finding of adoptability for substantial evidence. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1060-1061.) In doing so we review the record in the light most favorable to the court's findings and draw all evidentiary inferences that support the court's determination. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.)

Whenever the juvenile court orders a .26 hearing, it must direct the appropriate agency to prepare an assessment. (§ 366.21, subd. (i).) The assessment must include, inter alia, a review of the amount of and nature of any contact between the child and his or her parents or legal guardians and other members of his or her extended family since the time of placement. The extended family of each child must be reviewed on a case-by-case basis, and " 'extended family' " includes the child's siblings, grandparents, aunts and uncles. (§ 366.22, subd. (c)(1)(B).)

Deficiencies in an adoption assessment go to the weight of the evidence, and "if sufficiently egregious may impair the basis of a court's decision to terminate parental rights." (In re Crystal J. (1993) 12 Cal.App.4th 407, 413.) An adoption assessment is sufficient if it substantially complies with ...


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