IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
January 13, 2011
IN RE A.R. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
J.R., DEFENDANT AND APPELLANT.
Super. Ct. Nos. JD229337, JD229338
The opinion of the court was delivered by: Hull,j.
In re A.R. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
J.R. (father) appeals from the juvenile court's order terminating his parental rights and directing adoption as to minors G.R. and A.R. (Welf. & Inst. Code, § 366.26; undesignated statutory references that follow are to the Welfare and Institutions Code.) Father contends the court applied the wrong standard in ruling that he had failed to establish the sibling relationship exception to adoption. Finding any error harmless, we affirm the trial court's order.
FACTS AND PROCEEDINGS
In view of father's sole contention, we are not required to recite the history of the case in depth.
These proceedings began in January 2008, when G.R. (a female aged seven), A.R. (a female aged six), N.R. (a male aged four), and J.R. (a male aged two) were detained in Yolo County. It was alleged that the minors' mother, with whom they lived, kept a filthy home, failed to clean or feed them, and allowed them to wander. Father, who was separated from mother, did not live there.
Although mother regained custody of the minors at the jurisdiction hearing in March 2008, section 387 petitions were filed thereafter, and the juvenile court placed the minors with the maternal great-grandmother in May 2008. At the disposition hearing in August 2008, the parents were granted reunification services.
The six-month review report noted that mother was not complying with her case plan and father needed substance abuse treatment.
In February 2009, the minors were removed from the great-grandmother's custody because she could no longer care for them; the girls were detained in one foster home, the boys in another. Section 387 petitions requesting an order for out-of-home placement were filed. After the Yolo County juvenile court sustained the petitions, the matter was transferred in April 2009 to Sacramento County, where both parents then lived.
The report prepared for the transfer-in dispositional hearing by the Sacramento County Department of Health and Human Services (Department) recommended termination of the mother's services. It stated that the minors were adjusting well to their placements, which were two or three miles apart, but the boys had developmental problems (speech delay and attention deficit hyperactivity disorder (ADHD)).
On July 22, 2009, the juvenile court terminated mother's services, but found father had not received reasonable services.
The Department's status report filed November 4, 2009, stated that father was participating "minimally" in services. The minors visited each other every other week and enjoyed their interactions. N.R., the older boy, still had emotional problems, including ADHD, possible posttraumatic stress disorder, and possible reactive attachment disorder. G.R., the older girl, also displayed ADHD-like behavior.
On January 15, 2010, the juvenile court terminated father's services and set a selection and implementation hearing.
The Department's selection and implementation report stated that both sets of caregivers were willing to adopt, but this was not recommended as to the boys because they had special needs and behavioral problems and their foster home had too many children in it. The girls were doing better than before, although they also had academic and behavioral problems.
On July 28, 2010, the juvenile court continued the selection and implementation hearing as to the boys only.
At the selection and implementation hearing as to the girls, held on August 2, 2010, father's counsel asserted that the sibling relationship exception to adoption applied, but presented no evidence. The minors' counsel stated that the girls' foster parents were willing to maintain their relationship with their brothers, and the girls wanted that to happen.
The juvenile court ruled that father had failed to show "clear and convincing evidence" to support the sibling relationship exception to adoption, "particularly in light of the fact that the care provider is willing to continue their sibling relationship." Finding no other impediment to adoption, the court terminated father's parental rights and set the matter for adoption as to the girls.
Father contends the judgment must be reversed because the juvenile court required him to establish the sibling relationship exception to adoption by the improperly high standard of "clear and convincing evidence," rather than the correct "preponderance of the evidence" standard. We disagree for three reasons: (1) Because father did not object to the court's statement below, the claim is forfeited; (2) Even if it is not forfeited, any error is harmless because father put on no evidence to support the claim; and (3) In any event, the court made a factual finding, supported by substantial evidence, which refutes the claim.
At the selection and implementation hearing, the juvenile court must choose one of four alternative permanent plans for a minor; the permanent plan preferred by the Legislature is adoption. If the minor is adoptable, the court must terminate parental rights absent a showing of detriment to the minor. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
The parent has the burden of establishing by a preponderance of the evidence that a statutory exception to adoption applies. (In re Valerie A. (2007) 152 Cal.App.4th 987, 998; In re Zachary G. (1999) 77 Cal.App.4th 799, 809; Cal. Rules of Court, rule 5.725(e)(3).) We uphold a juvenile court's ruling declining to find such an exception if the ruling is supported by substantial evidence. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.)
The sibling relationship exception to adoption applies if "[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).) A parent appealing the termination of parental rights has standing to raise this exception. (In re Erik P. (2002) 104 Cal.App.4th 395, 402.)
Since father was required to show only by a preponderance of the evidence that the sibling relationship exception to adoption applied, the juvenile court misspoke when it found he had not shown clear and convincing evidence to support the exception; however, father did not object. Failure to object to the misstatement of a standard of proof in dependency proceedings forfeits the objection on appeal. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558; see In re S.B. (2004) 32 Cal.4th 1287, 1293 [forfeiture should be excused rarely and only in cases presenting important legal issues].)
After ignoring this problem in his opening brief, father asserts in his reply brief that because there was no discussion of the standard of proof before the juvenile court ruled, he had no "adequate opportunity to seek clarifications or changes" in the court's intended ruling, and the issue is therefore not forfeited. (Cf. People v. Gonzalez (2003) 31 Cal.4th 745, 752.) He asserts further that the issue is not forfeited because the court's misstatement impacted his constitutional rights as a parent. Finally, he asserts that if trial counsel's failure to object forfeited the issue, counsel provided ineffective assistance and we should therefore consider the issue on the merits. We are not persuaded.
We do not consider arguments raised for the first time, without good cause, in the reply brief. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) Since the forfeiture problem was apparent on the face of the record, we can see no good reason why father did not address it in his opening brief. Therefore we do not consider his arguments against forfeiture.
But even if not forfeited, father's claim of reversible error lacks merit. Since he put on no evidence to show the sibling relationship exception to adoption, he manifestly failed to meet his burden. If the juvenile court had erred in the opposite direction by finding that father had not shown a scintilla of evidence to demonstrate the exception, that misstatement would have been equally harmless. So far as father asserts that the error was reversible per se or under the standard of harmless beyond a reasonable doubt, he cites no apposite authority holding that either standard applies in a juvenile dependency proceeding.
Finally, the court's factual finding that the current caregivers intended to maintain the sibling relationship, if unrefuted by contrary evidence, was sufficient to support the finding that there would be no substantial interference with the relationship. Father cites no such contrary evidence. Instead, he merely asserts, citing In re Valerie A., supra, 152 Cal.App.4th at page 1009, footnote 9: "The trial court does not have jurisdiction to enforce any visitation agreement once the girls are adopted and jurisdiction terminated." But the speculation that the caregivers might go back on their promise to maintain the sibling relationship is not evidence. Furthermore, if father had raised this possibility at the hearing, the Department could have presented evidence to support its belief that the caregivers' promise was reliable. He may not try to win reversal now by throwing out such speculation for the first time on appeal.
The judgment (order terminating parental rights and setting the matter for adoption) is affirmed.
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