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In Re D.M., et al., Persons Coming Under the Juvenile Court Law. v. Tomas L

April 24, 2012


(Super. Ct. No. J515947) APPEAL from a judgment of the Superior Court of San Diego County, Carol Isackson, Judge. Dismissed in part; judgment affirmed.

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


Tomas L., a minor also involved in this dependency proceeding, appeals a judgment terminating parental rights over his younger half-siblings, D.M. and Noah M., and selecting adoption as the preferred permanent plan. (Welf. & Inst. Code, § 366.26.)*fn1 Tomas challenges the sufficiency of the evidence to support the court's findings of adoptability and the inapplicability of the sibling relationship exception to the adoption preference. (§ 366.26, subd. (c)(1)(B)(v).) We conclude substantial evidence supports the court's ruling on the sibling relationship exception. Further, as a matter of apparent first impression, we conclude Tomas lacks standing on the adoptability finding because it does not affect any cognizable right of Tomas. We affirm the judgment, and dismiss the portion of the appeal pertaining to the issue of adoptability for lack of jurisdiction.


In September 2009 the San Diego County Health and Human Services Agency (the Agency) removed D.M., then seven years of age, and her younger brother, Noah, from the custody of their mother, Erika R., and filed petitions on behalf of them under section 300. The petitions alleged the children were exposed to an assault by their mother against her boyfriend that resulted in her arrest. Erika had a history of domestic violence, more than two dozen referrals to child protective services, and a dependency case between 2005 and 2007 that ended in reunification. The court made true findings and sustained the petitions. The children's half-sibling, Tomas, then age 10, was also made a dependent of the juvenile court.*fn2

D.M. and Noah were placed together in foster care. Tomas could not be placed with them because he has behavioral problems. During the dependency proceedings, Tomas was admitted to a psychiatric facility and deemed a danger to himself and others. He was "described as being out of control, breaking windows, throwing various objects at staff and striking staff multiple times. He attempted to cut [his] wrists with broken glass." On his release he was placed in a licensed group home, where he had "several incidences of aggression towards peers and staff."

By the time of the six-month review hearing, Erika was no longer incarcerated. She had been provided with reunification services, and the court continued services for another six months. At the 12-month review hearing in January 2011, the court terminated Erika's services and scheduled a permanency planning hearing under section 366.26. Erika did not seek writ review. The record indicates she moved to Mexico before the section 366.26 hearing.

When the Agency prepared its assessment report, the foster parents of D.M. and Noah wished to adopt them. The report states: "If parental rights are terminated, [D.M.] and Noah are adoptable based on their young age, good health, charming personalities, and good looks. There are currently [seven] approved adoptive families in San Diego County who have indicated that they would like to adopt a sibling group with similar characteristics of those of [D.M.] and Noah. There are 56 approved adoptive families out of county for both [D.M.] and Noah."

Tomas filed a petition under section 388, objecting to a permanent plan of adoption for D.M. and Noah because it would terminate their sibling relationship with Tomas. He requested standing to appear and be heard at the section 366.26 hearing. (§ 388, subd. (b).)

The Agency's addendum report advised that D.M. and Noah had been separated from Tomas since October 22, 2009; D.M. and Noah had weekly visits with Tomas, and they reported that they enjoyed seeing Tomas, but he "often fights with them and they do not like this"; and the foster mother reported they did not ask for Tomas during the week, sometimes did not want to visit Tomas, and after visits they often returned home "complaining about something that happened during the visit." The social worker understood "Tomas continues to have a lot of behavioral problems so at this point placement together is not an option because Tomas needs a higher level of care." The social worker believed that while D.M. and Noah love Tomas, "they do not share a significant sibling relationship in which it would be detrimental [to D.M.] and Noah to sever the sibling relationship," and it would be detrimental not to move forward with adoption because D.H. and Noah "are great children who are doing well in their placement and deserve to grow up in a stable and loving family."

Further, the addendum report states that if the current foster parents did not adopt D.H. and Noah, there were 12 approved adoptive families in San Diego County interested in adopting two children with similar characteristics. Further, there were 69 potential out-of-county prospective adoptive families.

In a second addendum report, the Agency advised that D.M. and Noah's foster parents had decided not to adopt them. The foster mother said she loved the children, but felt the Agency was "placing so much stress and pressure" on her. Both children told the social worker they still wanted to be adopted, even if they would have less or no contact with Tomas. D.M. said she did not want to live with Tomas because "he bothers me." Noah agreed he did not want to live with Tomas, explaining, "he hits me." The report states, "[D.M.] and Noah deserve the chance to grow up in a permanent home with loving parents. They have been waiting for many years and are more than ready to be placed in an adoptive home. . . . [¶] Although the Agency has not located an adoptive home for the children it is clear that [D.M.] and Noah are adoptable. Both children are healthy, developmentally on target, have great personalities and are good looking."

At a hearing in August 2011, the court granted Tomas's section 388, subdivision (b) petition and granted him standing to appear. The court then proceeded to the section 366.26 matter. The court found by clear and convincing evidence that D.M. and Noah are likely to be adopted within a reasonable time, and none of the exceptions to the adoption preference applies, including the sibling relationship exception. ...

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