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In Re R.H., A Person Coming Under the Juvenile Court Law. v. M.G

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)


December 1, 2011

IN RE R.H., A PERSON COMING UNDER THE JUVENILE COURT LAW. BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
M.G., DEFENDANT AND APPELLANT.

(Super. Ct. No. J33987)

The opinion of the court was delivered by: Hoch , J.

In re R.H.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

M.G. (mother) appeals from the juvenile court's orders terminating her parental rights to R.H. (the minor). She contends there was not substantial evidence the minor was adoptable and the sibling bond exception to adoption applied to this case. The record shows that the minor was adoptable. The minor had significant positive attributes and there was an identified prospective adoptive home. As to the sibling bond exception, mother did not raise this exception at the Welfare and Institutions Code*fn1 section 366.26 hearing. And, even if this issue were not forfeited, mother did not meet her burden to establish this exception to adoption. Accordingly, we affirm the orders terminating mother's parental rights.

SUMMARY OF RELEVANT FACTS AND PROCEDURAL HISTORY*fn2

As a result of mother's alcoholism, inappropriate sexual behavior, inability to protect the children from sexual abuse, and lack of adequate supervision, the minor and her five siblings were taken into protective custody in April 2008. The minor was three years old and her siblings ranged in age from eight to 17 years old. At the disposition hearing, the 17 year old was returned to mother and when he was 18 years old, dependency as to him was terminated. The minor, Ro.H. (brother) and M.H. (sister) were placed in one foster home (collectively referred to as the "younger siblings") and the two older siblings were placed together in a separate foster home.

In July 2008, the younger siblings had to be moved to a second foster home because of the "sexualized and defiant behaviors of [brother and sister]." The younger siblings were reported to have behavioral issues, hygiene issues, and sexualized behaviors. All three younger siblings refused to brush their teeth, the minor and her brother were unsure how to use toilet paper after going to the bathroom, and the minor would regularly urinate on herself.

The younger siblings were able to visit their older siblings during visits with mother. These visits initially occurred twice a week, but were reduced to once a week because of the children's antagonistic behavior and mother's inability to control them.

In April 2009, the children were all doing well in their respective foster care placements and were all physically healthy. The younger siblings sometimes fought, but their behavior was manageable. Brother and sister were having difficulty in school and during visits with mother and the older siblings. Sister also had conflicts with her younger siblings and bullied them.

In February 2010, the younger siblings remained in their foster placement and were doing well. The minor needed extensive dental work, but was otherwise healthy. She was in kindergarten and doing well socially, but academically, she was behind other students. Sister's difficult behavior in school, with her siblings, and with her foster parents was jeopardizing her placement in the home.

Reunification services for mother were terminated in April 2010 and the matter was set for permanency planning. The recommended permanent plan for the minor was adoption in a home identified as a prospective adoptive home for her. Brother was going to move out of the current foster placement and into placement with his older siblings. Sister was placed in a legal guardianship in October 2010.

The minor enjoyed kindergarten and her foster home. She continued to do well socially in school and played well with others. Although there were some reported educational delays, she appeared to be on track developmentally. The minor's kindergarten teacher requested the minor repeat kindergarten, because she was a young kindergartner with a limited attention span. She remained somewhat behind academically, particularly with respect to counting, and number and letter recognition, but her skills were growing daily. Her language skills were developing, she had learned her "ABCs" and she could write her name. Her teacher noted she was a pleasure to have in the classroom.

All in all, the minor was physically, mentally and emotionally healthy and stable. She still had some challenges emotionally when denied things, but this behavior was decreasing in her foster home. In general, she was well behaved and developing appropriately. She could run, swim, dance, swing, climb, and had successfully completed a gymnastics class over the summer. She dressed herself with little assistance, shared toys and cooperated with others, helped keep her room clean, and followed directions well. She was energetic and got along well with others. She had a friendly, bubbly personality and a sweet disposition. The minor's foster parents, who had parented her for over two years, stated she was easy to parent and they had no behavior problems with her. She was able to make healthy attachments to parental figures. The most significant parenting challenge was getting her to express herself, but she was also becoming less shy.

In the foster home, sister and the minor had difficulty getting along with each other. Brother and the minor got along well. However, the foster parents did not feel the minor and brother were particularly bonded to each other and strongly felt that separating them would not be detrimental to either child. The minor enjoyed visiting with the older siblings. When asked about the minor being adopted, her siblings wanted to be able to maintain contact, but were otherwise supportive.

At the section 366.26 hearing, mother generally objected to the termination of parental rights, arguing it was too early to terminate as the minor had been placed in the prospective adoptive home only recently. Mother also stated that the minor had been separated from brother for the first time only recently and that it was important for the children to maintain their relationships. The court found it was likely the minor would be adopted within a reasonable time and terminated parental rights.

DISCUSSION

I

Substantial Evidence of Adoptability

Mother contends there was not substantial evidence supporting the court's determination that the minor was either generally or specifically adoptable. She contends there was "a great deal of concern regarding whether the minor had some mental retardation like her mother," and the minor had been placed in the prospective adoptive home only for a month before parental rights were terminated. We are not persuaded.

At the section 366.26 hearing, the juvenile court must select a permanent plan for the minor, and of the available choices, adoption is the strongly preferred plan. (In re Valerie W. (2008) 162 Cal.App.4th 1, 13.) "To select and implement adoption as the permanent plan, [the court] must find, by clear and convincing evidence, the minor will likely be adopted within a reasonable time if parental rights are terminated." (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) We review the juvenile court's finding only to determine whether there is evidence from which a reasonable court could reach that conclusion. (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)

In assessing adoptability, the inquiry focuses on the traits and characteristics of the child, such as "whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) If, based on those factors, the court finds the child is difficult to place, but a willing prospective adoptive parent has been identified, the court may also consider whether there is any legal impediment to adoption by that parent. (Id. at p. 1650.) The existence of an identified prospective parent generally indicates the minor is likely to be adopted within a reasonable time; however, such a home is not necessary to support the finding of adoptability. (Id. at pp. 1649-1650.)

Here, the court did not find that the minor was a difficult child to place, and the record would not support such a finding. To the contrary, the minor is physically, mentally and emotionally healthy. She is developing well physically, can run, swim, dance, swing, and climb. While she has some reported educational delays, she appears to otherwise be on track developmentally, and those educational delays may be attributable simply to being a young kindergartener with a limited attention span. She had successfully learned the alphabet, could write her name, and her language skills were continuing to develop and improve. The minor is easy to parent and has no significant behavioral problems. She shares toys, helps keep her room clean, dresses herself with little assistance, and follows directions. She does well socially with others, makes healthy attachments to parental figures, and has a friendly, bubbly and sweet disposition. On this record, given the minor's significant positive attributes, and the existence of an identified prospective adoptive home, the court properly foundthat it was likely the minor would be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re A.A. (2008) 167 Cal.App.4th 1292, 1312-13.)

II

Sibling Bond Exception to Adoption

Mother next contends the juvenile court should have applied the sibling bond exception to adoption. (§ 366.26, subd. (c)(1)(B)(v).) Acknowledging it was her burden to establish the existence of the exception, she claims she met her burden because the minor "was shown to have a relationship with her siblings which would be interfered with by the termination of parental rights." However, this exception is not established merely because a sibling relationship will be interfered with by termination of parental rights. Rather, mother had to establish both that a significant sibling relationship would be interfered with and that interference would substantially outweigh the benefit to the minor of being adopted. (§ 366.26, subd. (c)(1)(B)(v).) Mother did not meet this burden.

Initially, we note mother did not raise this exception at the section 366.26 hearing. Her generalized objection to the termination of parental rights, and assertion that it is important for the siblings to maintain their relationships, does not, without more, constitute an assertion that the exception applied. In the absence of any evidence, or even argument, as to why the court should consider applying the exception and why the detriment to the minor from interference with the sibling bond outweighed the benefit of adoption, the juvenile court had no basis upon which to make its determination and we have no factual record from which to perform our role, assessing whether the trial court's determination is supported by substantial evidence. (In re Erik P. (2002) 104 Cal.App.4th 395, 403.) A parent's failure to assert a section 366.26, subdivision (c)(1)(B), exception as a basis for precluding termination of parental rights forfeits the issue on appeal. (Ibid.; see also In re Dakota S. (2000) 85 Cal.App.4th 494, 501.)

Even if mother had not forfeited the issue, the exception is inapplicable to this case. The "sibling bond exception," provides an exception to termination of parental rights 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).) We review the record for substantial evidence to support the court's findings. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953.) It was mother's burden to establish that a sibling bond exists and that its severance would be detrimental to the minor. (In re L.Y.L., supra, 101 Cal.App.4th at p. 952.)

The minor was removed from her home when she was three years old and placed in a home with two of her five siblings. As to the older siblings, she visited them once a week. Sometimes during those visits the children showed antagonistic behavior toward each other and other times the minor enjoyed the visits. There is no evidence there was any difficulty upon separation from the visits or any discussions about the older siblings between visits. As to the younger siblings, the minor, brother and sister had lived together all of their lives. In the foster home, sister and the minor had a relationship filled with conflict and had difficulty getting along. Although the minor and brother got along well, they were not particularly bonded and there was no evidence that separating them would be detrimental to either child. At the time of termination, the minor was six years old and her siblings were all significantly older at 20, 18, 15, 14 and 11 years old.*fn3 These age differences impact on the strength of their shared common experiences. There was no evidence the siblings were playmates, confidantes or that they relied upon each other or their relationships with each other to anchor them to normalcy. (Compare In re Jacob S. (2002) 104 Cal.App.4th 1011, 1018 [two sisters were close in age, playmates, confidants, and assumed a family leadership role at a very young age].)

On this record, mother did not meet her burden to establish the sibling bond exception to adoption.

DISPOSITION

The orders of the juvenile court terminating parental rights are affirmed.

We concur: BLEASE , Acting P. J. BUTZ , J.


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