In re David M.

Filed 7/18/07 In re David M. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Merced County. Frank Dougherty, Judge.

Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant.

James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Plaintiff and Respondent.

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David M. is the presumed father of four dependent children, the younger three of whom the Merced County Superior Court freed for purposes of adoption. (Welf. & Inst. Code,  366.26.) He challenges the orders terminating parental rights on grounds the court should have found termination would be detrimental to the children based on their sibling relationship ( 366.26, subd. (c)(1)(E)). He also claims the lack of earlier visitation between him and the children was prejudicial error. On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

The mothers drug abuse and domestic violence between her and appellant led to the initiation of the underlying juvenile dependency proceedings in July 2004. The superior court exercised its dependency jurisdiction pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect) and (c) (serious emotional damage) over five children: the mothers seven-year-old son, Nicholas N., from a previous relationship as well as the mothers and appellants five-year-old daughter Anastasia M. and three younger sons David M., Alexander M. and Antonio M.

In August 2004, the superior court adjudged all five children dependents and removed them from parental custody subject to reunification services for the mother and appellant. Respondent Merced County Human Services Agency (the agency) initially placed all five children in the same foster home. However, this did not last for long. Anastasias behavioral problems led to her separation from her brothers sometime during the first six months of reunification efforts and the first of several placement changes. By May 2005, four-and-a-half-year-old David M. also experienced behavioral problems, resulting in his separate placement; his behavior thereafter dramatically improved. The mothers son Nicholas and the two youngest boys meanwhile remained in the same foster home throughout the balance of the proceedings.

At a status review hearing in October 2005, the court found that despite reasonable reunification services, neither parent had made satisfactory progress towards alleviating the problems necessitating the childrens removal. The court consequently terminated reunification services and set a section 366.26 hearing to select and implement a permanent plan for each child. The court also gave the parents, who were present in court, notice of their writ remedy ( 366.26, subd. (l)).

Only the mother filed a notice of intent to seek writ relief (Jennifer H. v. Superior Court; F049141). However, when she failed to file a timely petition, this court dismissed the writ proceedings. (Ibid.; dismissal order dated 12/06/05.)

In advance of the section 366.26 hearing, the agency prepared and filed a report recommending that the court find the four brothers adoptable and order termination of parental rights. The foster family with whom Nicholas, Alexander and Antonio had been placed was very committed to adopting the boys. Notably, Nicholas wrote two letters to the court, describing how much he wanted his foster parents to adopt him and his two youngest brothers. Davids foster family likewise was committed to adopting him. For his part, David made statements about how much he liked his foster family, although he missed his brothers, especially Nicholas. By contrast, Anastasia was not adoptable, in the agencys estimation, due to her significant behavioral problems. In addition, she wanted her mother. The agency proposed long-term foster care as a permanent plan for her.

Relevant to this appeal, the agency reported that it appeared Nicholas, Alexander and Antonio had continued relationships with their sister and brother who had each been placed in other homes. The siblings separation was determined early on to be in the best interests of all five children. Both sets of prospective adoptive parents would ensure that the four boys, described in the report as close-knit siblings, would have the opportunity to remain connected with each other. The boys contact with their sister would depend on her behavior and the other childrens best interests.

Based on its review of the agencys recommendation of separate permanent plans and placements, the court relieved the attorney assigned to represent all five children and appointed a separate attorney to represent Anastasia and another attorney for the brothers. The court also ordered the agency to prepare an addendum report to address how the children related to one another and the prospect that, although the brothers were likely to visit one another after adoption, there might be no future contact with their sister. It in turn continued the section 366.26 hearing.

In its addendum report, the agency reported that the two sets of prospective adoptive parents would encourage contact and visits between the brothers. By contrast, Nicholas, Alexander and Antonios prospective adoptive parents were more cautious about the boys continued contact with their sister. Her behavior during visits was disturbing especially to Nicholas and led to the boys confusion and disruptive behavior at both home and school. The two youngest boys had only a superficial relationship with her. David, on the other hand, did not appear disturbed by his sister and could discount or ignore her remarks. At the same time, he did not appear to be especially close to her.

As to the relationship between the brothers, the agency learned Nicholas especially missed David and looked forward to their visits. Nevertheless, Nicholas made it very clear he strongly desired to become a part of the family with whom he and his youngest brothers lived. He loved his foster parents very much. Although he was sad David would not be with him and the other brothers, Nicholas was happy for David in that he would be adopted by a family who loved him and whom he seemed to love.

Alexander and Antonio were much less connected to David based on their limited contact with him. They interacted with David more as a playmate than a sibling. Also, they remembered David was the bad brother who misbehaved and hurt them at times.

For Davids part, he told his prospective adoptive mother he loved his brothers but he was especially connected to Nicholas. He became sad and would occasionally cry after a visit with Nicholas. On the other hand, David was happy and contented between visits.

The court eventually conducted the section 366.26 hearing in September 2006. At the start, appellant divulged DNA testing recently conducted in the course of a family support proceedings excluded him as the father of Alexander and Antonio so that he no longer claimed to be their father.

The majority of the hearing revolved around each parents petition ( 388) seeking a return of custody. In the process, appellant testified that, despite a visitation order, the agency never offered him visits with the children. He had been incarcerated for a majority of the childrens dependency. Appellant claimed as a result he had not seen the children in two years. The court denied appellants modification petition. By comparison, evidence of the mothers efforts to address her drug abuse, coupled with the fact Anastasia was not adoptable and enjoyed seeing her mother, persuaded the court to reinstate reunification services between only the mother and daughter for six months. Appellants counsel asked the court to order visitation between him and Anastasia. The court deferred ruling on the issue until it received a report from the childs counselor on the effect of such visits.^[1]

On the issue of permanency planning for the brothers, only Anastasias counsel asked to be heard. She advised the court that Anastasia did not want to see her brother adopted. She does feel she had a bond with him and wants to be able to remain family with them.

The court responded:

And I understand that and the report seems to indicate that both prospective adoptive parents are willing to have continued contact with Anastasia as long as Anastasias behavior doesnt impair the development and ongoing relationship that the children would have with the adoptive parents and that seems to be, uhmm, that seems to be, uhmm, something that the court can rely on. These statements by the prospective adoptive parents appear to he genuine. Theres no reason to believe that they wouldnt follow through because they followed through in arranging visitation between the boys. So that in of itself tells me that the prospective adoptive parents will continue to seek and hope that visitation of Anastasia would occur.

The court thereafter found each of the boys adoptable and terminated parental rights as to each of them.

DISCUSSION

Appellant argues the court should have invoked the sibling relationship exception, defined in section 366.26, subdivision (c)(1)(E), and found termination would be detrimental to the children He claims there was substantial evidence to support such a finding, namely the evidence regarding Davids sense of loss regarding his older brother. Appellant also speculates that should the adoptive placement for the other boys fail, they may not remain together, which in turn would interfere with their strong sibling relationship.^[2] As discussed below, we disagree and conclude the court did not err.

To begin, appellant overlooks the superior courts focus at this stage of the dependency proceedings. Once reunification services are ordered terminated, the focus shifts to the childs need for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Because each of the four brothers was likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specifically designated circumstances, set forth in section 366.26, subdivision (c)(1), provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

In addition, although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) Rather, it is the burden of a party opposed to termination to show that termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

Moreover, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence, as appellant argues. Instead, it is whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) On review of the record, we find no abuse of discretion.

First, appellant is in no position to complain about the courts decision because he never asked the court to so exercise its discretion. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1339.) When the law does not require the juvenile court to act in a certain way, the parent bears the responsibility to care for his or her own interests by asking the court to exercise its discretion in a manner favorable to the parent. We will not permit a silent parent to argue that the juvenile court erred in not being psychic. (Ibid.)

Next, the so-called sibling relationship exception in section 366.26, subdivision (c)(1)(E), requires the court to find:

There would be substantial interference with a childs 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 childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption.

In this case, there was relatively little specific evidence regarding the nature and extent of the childrens relationship according to the factors set forth in section 366.26, subdivision (c)(1)(E). The children clearly knew each other and previously lived together. There was also evidence of a close relationship between David and his older brother in that the two missed one another and David sometimes cried at the end of their visits. Notably, however, it was undisputed that between visits, David was happy and contented.

As the California Supreme Court explained in In re Celine R., supra, 31 Cal.4th at page 61:

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, quoting 366.26, subd. (c)(1).)

Here, the evidence simply did not compel a finding that termination would substantially interfere with a sibling relationship. Appellant failed to satisfy his heavy burden of proof.

Finally, as the Celine R. court added,

even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. (In re Celine R., supra, 31 Cal.4th at p. 61.)

Were we to assume for the sake of argument that a strong sibling relationship in fact existed between David and his older brother, we would still find no error. The court clearly weighed the matter and found in favor of adoption. For this court to overturn that finding would amount to our reweighing the evidence, which is not our role. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)

Visitation

Appellant also claims his due process rights were violated because the absence of visits prevented him from arguing against termination based on a beneficial ongoing parent/child relationship. Remarkably, it was not until the section 366.26 hearing that appellant complained about a lack of visitation over the course of the childrens dependency. Even then, he did not seek any relief from the trial court, much less voice the due process claim he now makes. Thus, it appears he has forfeited his due process claim for appellate purposes. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)

In addition, appellants argument is little more than a clever attempt to avoid the impact of his failure to seek writ review when the superior court terminated reunification services. Visitation was one component of the courts service plan to reunify the family. Once the court determined reasonable services were provided to each parent and set the section 366.26 hearing, it was incumbent upon appellant to challenge the courts finding through the writ process ( 366.26, subd. (l)). Having failed to take advantage of his writ remedy, he waived the right to complain about the lack of visitation on appeal from the termination orders. (Ibid; In re Anthony B. (1999) 72 Cal.App.4th 1017, 1022.)

DISPOSITION

The orders terminating parental rights are affirmed.

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^*Before Levy, Acting P.J., Cornell, J., and Gomes, J.

^[1] In his opening brief, appellant challenged the courts deferral. He apparently has withdrawn the issue. During the pendency of this appeal, the court placed Anastasia with the mother and granted appellant visitation as arranged by the parents. Under these circumstances, the issue appears to be moot. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.)

^[2] Not only is appellants argument in this regard based solely on speculation and thus meritless, it likewise appears he lacks standing to voice any argument regarding the relationship between Nicholas, Alexander, and Antonio in whom he claimed no paternity interest.