In re I.R.

Filed 6/8/07 In re I.R. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselmann II, Judge.

Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.

B.C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.

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Jennifer G. appeals from an order terminating her parental rights (Welf. & Inst. Code,  366.26) to her son, I.R.^[1] She contends the court should have found that termination would substantially interfere with her sons sibling relationship and thus would be detrimental to him. On review, we disagree and will affirm.

PROCEDURAL AND FACTUAL HISTORY

At his birth in July 2005, I.R. tested positive for Phencyclidine (PCP). Respondent Kern County Department of Human Services (the department) consequently detained I.R. Aware that appellant also had two daughters, ages three and four years old, the department investigated further and detained the two girls based on appellants neglect of them.

On September 7, 2005, the Kern County Superior Court, having found all three children came within its dependency jurisdiction ( 300, subd. (b)), adjudged them dependents and removed them from parental custody. The court also ordered reunification services for appellant.

The following day, the department placed six-week-old I.R. for the first time with his older sisters in a foster home. Over the following 13 months, the children remained placed together in that foster home.

Despite the departments provision of reasonable reunification services, appellant failed to participate regularly and made no progress to correct the problems underlying her childrens dependency. Because I.R. was less than three years old when he was initially removed from appellants physical custody and he and his older sisters were removed at the same time, the court, at the six-month-review stage, found the three children to form a sibling group. ( 366.21, subd. (e);  361.5, subd. (a)(3).) Based on the sibling group finding and appellants failure at reunification, the court terminated reunification services. It in turn set a section 366.26 hearing to select and implement permanent plans for each of the children.

In advance of the original section 366.26 hearing date, the department prepared a report recommending that the court find the children likely to be adopted and order parental rights terminated. Relevant to this appeal, the department reported that the foster family initially expressed a desire to adopt all three children, if reunification efforts failed. However, the foster parents recently changed their minds about adopting the sisters.

The couple remained committed to adopting I.R. despite some developmental delays that he suffered. They loved him and shared a significant bond with him. They were the only parental figures he had known.

By contrast, the foster parents believed I.R.s older sisters, then four and five years of age, also had special needs and it would be too much of an undertaking to care for all three children, along with the couples two biological children.^[2] The foster parents nonetheless were committed to providing the sisters with a home until the department could identify a new prospective adoptive family for them.

Notably, the two sisters only interacted with one another. There appeared to be no significant bond between them and I.R. According to the department, separating the sisters from I.R. would have no detrimental effect on their well being. By contrast, separating the sisters was not an option, as they appeared to share a significant bond and attachment.

As a result of this new information, the court appointed separate attorneys for I.R. and the sisters as well as continued the section 366.26 hearing. In a supplemental report filed in time for the continued hearing date, the department advised that it continued to recommend that the sisters be separated from I.R. According to the department, the sisters were significantly older than I.R. and were bonded to each other. Meanwhile, I.R. had a significant bond with his foster parents and the stability of a permanent placement for him superseded any bond between him and his sisters. As for the sisters, the department had identified a new family interested in providing them an adoptive home. The department had initiated visits between the new family and the sisters, in anticipation of transitioning the sisters into the new familys home.

At the continued section 366.26 hearing, all of the parties submitted on the evidence contained in the departments reports. For her part, appellant argued against termination by claiming she shared a beneficial relationship particularly with her daughters ( 366.26, subd. (c)(1)(A)). I.R.s attorney argued in favor of termination. He did express some concern, as did the sisters attorney, that the foster parents were no longer committed to adopting all three children. Nonetheless, counsel clarified he was not arguing an exception to adoption in I.R.s case based on a sibling relationship ( 366.26, subd. (c)(1)(E)). I.R.s attorney suggested the court find all three children adoptable but set the hearing out 180 days ( 366.26, subd. (b)(2)) to see if a home that would adopt all three children could be found. Having said that, he conceded there was no legal basis to find that termination would be detrimental in I.R.s case based on any exception under section 366.26, subdivision (c)(1). The sisters attorney likewise asked the court to set out their section 366.26 hearing for 180 days.

Following these closing arguments, the court found clear and convincing evidence that all three children were adoptable. In the case of I.R., the court ruled the sibling-relationship exception did not apply and terminated parental rights. As for the sisters, the court found good cause to continue the section 366.26 hearing for 180 days in order for the department to seek adoptive parents for both sisters, who could maintain their sibling relationship.

DISCUSSION

According to appellant, I.R. lived with his sisters nearly his entire life. That, coupled with scholarly and legislative concerns for maintaining sibling relationships, amounts, in appellants opinion, to substantial evidence that termination of her parental rights would be detrimental to I.R. Alternatively, appellant argues there was insufficient evidence to support the courts determination that the sibling-relationship exception ( 366.26, subd. (c)(1)(E)) did not apply in I.R.s case. For the reasons outlined below, we disagree.

Once the court terminates reunification efforts, it shifts its focus to a dependent childs needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the child is 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 specified circumstances in section 366.26 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.)

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.) It is the parents burden to show that termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not whether there was substantial evidence to support a detriment finding or there was insufficient evidence to support a finding of no detriment, as appellant argues here. Rather, the question 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.

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.

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).)

In this case, no one offered any evidence, yet alone argued, that termination would substantially interfere with I.R.s sibling relationship. Indeed, there is very little evidence regarding the nature and extent of I.R.s relationship with his siblings. As summarized above, the record reveals that from the time I.R. was six weeks old and for the following 13 months, he lived in the same foster home with his sisters. For appellant to restate this fact as evidence that I.R. lived with his sisters nearly his entire life and necessarily shared significant-common experience borders on the disingenuous given his very young age, if nothing else. Further, appellant overlooks the evidence that the sisters, who were older than I.R., only interacted with one another. There appeared to be no significant bond between them and I.R.

Furthermore, it was undisputed that separating the sisters from I.R. would have no detrimental effect on him.

Given the lack of any substantive evidence about the nature and extent of I.R.s relationship with his older sisters, it was incumbent upon appellant to introduce such evidence to order to carry her heavy burden. Having failed to do so, she is in no position now to argue the superior court erred.

DISPOSITION

The order terminating parental rights is affirmed.

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^*Before Harris, Acting P.J., Levy, J., and Kane, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] According to the record, the sisters had some minimal developmental delays, most notably varying degrees of language delay.