In re T.H.

Filed 3/16/07 In re T.H. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Kevin P. (father or appellant) appeals from the orders terminating his parental rights as to T.H. and K.P. and approving the permanent plan of adoption. He contends that the trial court erred by failing to apply the sibling relationship exception of Welfare and Institutions Code^[1]section 366.26, subdivision (c)(1)(E), with respect to the childrens half-sibling, E.H.^[2] We affirm.

I. BACKGROUND

On May 26, 2004, the Del Norte County Department of Health and Social Services (the Department) filed a section 300 petition alleging that Melonie H. (mother) had a substance abuse problem; that she tested positive for methamphetamine twice during her pregnancy with T.H.; that she failed to obtain consistent prenatal care; that T.H. tested positive for amphetamines and marijuana at birth; that mothers boyfriend, Kevin P. (appellant herein), had his parental rights terminated as to another child in a different county; and that the Department had received past referrals on the family for general neglect of T.H.s sibling, E.H. On May 26, 2004, the Department also filed a non-detained petition under section 300, subdivisions (b) and (g) for E.H.

A detention hearing was held on May 27, 2004. Father and mother (parents) appeared and each was ordered to submit to drug testing. The trial court ordered that T.H. be placed in out-of-home placement; E.H. was ordered to remain in mothers care.

At the June 11, 2004, jurisdictional hearing, father and mother denied the allegations in the petition; both parents agreed to participate in dependency drug court. The trial court authorized the Department to return T.H. to parents home. The matter was continued for a further jurisdictional hearing.

Father and mother were present at the July 9, 2004, jurisdictional hearing and submitted on the Departments jurisdiction report. The court sustained the allegations of the petition and continued the placement of T.H. and E.H. in mothers home. The dispositional hearing was held on August 6, 2004. The court declared the children dependents of the court, ordered family maintenance services, and set the six-month review hearing for January 21, 2005. Father and mother were ordered to continue weekly participation in the dependency drug court.

On December 3, 2004, the Department filed a section 387 supplemental petition, alleging that father and mother continued to have unaddressed substance abuse problems, that they both tested positive for methamphetamine, and that they both had been noncompliant with the court-ordered case plan and dependency drug court. The court ordered that the children be placed in protective custody.

The Departments disposition report regarding the section 387 petition stated that T.H. and E.H. were placed together in a licensed foster home. The Department reported that T.H. was adjusting well to the foster home, but E.H. was having a harder time adjusting to the placement. The Department stated that father had not been participating in his case plan.

The disposition hearing was held on January 7, 2005. The court determined that the children continued to be dependents of the court, ordered reunification services, and set the six-month review hearing for June 17, 2005. The Department reported that father and mother had failed to submit to the required drug tests; each was ordered to serve five days in the county jail for contempt of court.

The Departments interim review report stated that mother had made significant progress in her case plan. The Department stated that father had been sanctioned in drug court for failing tests and for missing meetings. However, in recent weeks, father had appeared to be trying to make progress. The Department also reported that mother was seven months pregnant. The Department recommended that the children be reunified with parents on a trial placement.

An interim review hearing was held on April 1, 2005. The court authorized the trial placement of the children with father and mother. K.P. was born later that month.

At a May 6, 2005, hearing, mother reported that she had been living in a motel because she had been evicted from her apartment. The Department reported that T.H. and E.H. had been detained and recommended that the children remain detained.

On May 17, 2005, the Department filed a petition under section 300, subdivisions (b), (g), and (j) for K.P., alleging that mother failed to access prenatal care during her pregnancy with K.P., that mother had a chronic substance abuse problem and had tested positive for methamphetamine on May 9, 2005, that father had a chronic substance abuse problem, that father was currently incarcerated and unable to provide care and supervision of K.P., that parents had been unwilling to participate in court-ordered services, that parents had a history of neglect regarding K.P.s siblings, that K.P.s siblings had been declared dependents of the court, and that fathers parental rights of another child had been terminated.

The Departments detention report stated that mother had twice tested positive for methamphetamine during her pregnancy with K.P. The Department reported that K.P. had been placed in protective custody due to mothers positive drug test and continual use of illegal drugs; mother and K.P. had been homeless at the time K.P. was placed in protective custody. The Department reported that K.P. had been placed in the same foster home with his siblings. The Department recommended that K.P. remain detained. The Department reported that father was incarcerated for possession of a controlled substance and two probation violations. The detention hearing was held on May 17, 2005. The court ordered that K.P. be placed in out-of-home placement.

A contested jurisdictional hearing regarding K.P. was scheduled for July 14, 2005. However, neither parent appeared for the July 14 hearing. The court sustained the allegations of the petition, and set a disposition hearing for July 29, 2005.

The Departments report for the six-month review hearing regarding T.H. and E.H. stated that all three children were living in the same foster home, and that the foster parents indicated an interest in adopting all three children. The Department reported that E.H. was very attached to his mother and became quite emotional when the visits were over. However, T.H., having lived with the foster family for most of her life, did not exhibit a strong bond with mother. Fathers whereabouts were unknown; mother was reported to have been living in a tent in her sisters backyard. The Department reported that father and mother had failed to avail themselves of reunification services. Mother consistently missed scheduled supervised visitations with the children. The Department recommended that reunification services be terminated and a concurrent plan of adoption be implemented.

The review hearing regarding T.H. and E.H. was held on July 21, 2005. The court adopted the Departments recommendations and terminated reunification services. The court set a section 366.26 hearing for November 4, 2005.

The Departments disposition report for K.P. indicated that parents had not visited him during the first three weeks of his detention. The Department reported that, from the end of May to the middle of July, parents had attended fewer than half of the scheduled visits. As of July 15, 2005, no further visitation had been scheduled; parents had not contacted the Department to reestablish a visitation schedule. Parents had not availed themselves of any services offered by the Department. The Department stated that K.P. had been placed with his two older siblings, who interacted very affectionately with him. The Department requested K.P. be declared a dependent of the court and that no reunification services be provided pursuant to section 361.5, subdivision (b)(10) due to parents failure to reunify with K.P.s siblings. The Department recommended a concurrent plan of adoption.

The disposition hearing was held on August 12, 2005. The court declared K.P. a dependent of the court, denied reunification services, and set a section 366.26 hearing for December 16, 2005.

The Departments report for the section 366.26 hearing regarding T.H. and E.H. indicated that no adoptive parents had been identified for E.H.^[3] However, the current foster parents had expressed an interest in adopting T.H. and her younger sibling, K.P. The Department requested a 60-day continuance to determine whether a placement with relatives would be appropriate. Fathers sister, Jennifer B., had recently learned about the childrens status and had requested a placement package. The Department stated that it would investigate possible placement of T.H. and K.P. with Jennifer B. The Department reported that it recently had contacted E.H.s biological father, Jose R. Jose R. did not know that E.H. had been returned to foster care or that E.H. might be adopted. Jose R. expressed a sincere interest in E.H. and asked the Department to consider placing E.H. with him.

The Departments report for the section 366.26 hearing regarding K.P. noted that K.P. was only days old when detained. The Department reported that the foster parents, with whom K.P had been placed since birth, were highly motivated to adopt both K.P. and T.H. The foster parents, having been the primary caregivers for most of the childrens lives, were highly committed to the children. However, despite the obvious bond between K.P. and his foster parents, the Department requested a continuance to assess the viability of the recent request for relative placement with fathers sister.

The Departments adoption assessments for T.H. and K.P. recommended that parental rights be terminated and a plan of adoption be ordered. The assessments noted that the children lived together in the same foster home, along with their half-sibling, E.H. The foster family was very committed to T.H. and had expressed a desire to adopt her; T.H. had lived with the foster family for 11 months. The foster family was also very committed to K.P., who had been residing with them since birth. The assessments noted that T.H. and K.P. appeared to have substantial emotional ties to the prospective adoptive family and that removal from the current home would be seriously detrimental to the childrens well being.

The reports of the court appointed special advocates for children (CASA) recommended that parental rights be terminated and a permanent plan of adoption be ordered for T.H. and K.P. CASA recommended that E.H. be transitioned to his biological fathers custody. CASA reported that fathers sister, Jennifer B., had contacted the Department about seeking placement of T.H. and K.P. CASA stated that Jennifer B. had never met T.H. and had seen K.P. once when he was a newborn. Jennifer B. lived in a three-bedroom house with two other adults and three children. Jennifer B. stated that she was financially strained and was concerned about taking on two more children. CASA expressed concern about uprooting the children from the only stable home that they had known and placing them with a family they did not know. CASA recommended that there be an effort to maintain contact among the three siblings. CASA reported that E.H. and T.H. had a strong sibling bond, and that E.H. was very protective of T.H.

The section 366.26 hearing regarding T.H. and K.P. was held on February 23, 2006. At the hearing, a social worker from the Department testified that fathers sister, Jennifer B., was not committed to providing a long-term placement for the children. The social worker explained that Jennifer B.s expectation was that father would become clean and sober and would care for his children. The court terminated fathers and mothers parental rights as to T.H. and K.P. and found clear and convincing evidence that they were likely to be adopted. The court ordered adoption as the permanent plan for T.H. and K.P.

II. DISCUSSION

Father argues that the court erred in terminating his parental rights without first considering the adverse effects on the childrens sibling relationships with E.H. In support of this argument, he asserts that the Departments adoption assessments failed to include adequate information about the extent and significance of the sibling relationships. Father also contends that the court did not address the bonds among the three children, and failed to order postadoption visitation at the termination hearing.

In juvenile dependency proceedings, when reunification efforts fail, as they have in this case, the court must terminate reunification efforts and set the matter for a hearing pursuant to section 366.26 for the selection and implementation of a permanent plan. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249 . . . .) The first choice for permanency, if possible, must be to terminate parental rights and order that the child be placed for adoption . . . . [] We thus see that if the child is adoptable . . . adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the . . . circumstances [specified in section 366.26, subdivision (c)(1)(A-F)] provides a compelling reason for finding that termination of parental rights would be detrimental to the child. . . . The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption. ([In re] Celine R. [(2003)] 31 Cal.4th [45,] 53. (In re Hector A. (2005) 125 Cal.App.4th 783, 790-791.)

On appeal, father does not claim there is insufficient evidence to support a finding that T.H. and K.P. are adoptable. Rather, father urges application of section 366.26, subdivision (c)(1)(E), which provides for an exception to the termination of parental rights where [t]here would be a 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. (See also In re L. Y. L. (2002) 101 Cal.App.4th 942, 947-948.)

As an initial matter, the juvenile court did not have a sua sponte duty to consider the sibling relationship exception. (In re Daisy D. (2006) 144 Cal.App.4th 287, 292.) At no time during the juvenile court proceedings did father or his counsel argue the applicability of this exception or challenge the sufficiency of the adoption assessments. Accordingly, fathers failure to raise the sibling relationship exception at the section 366.26 hearing forfeits the issue for purposes of appeal. (Ibid.; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339; In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886.)^[4]

Despite an abundance of authority to the contrary (see In re Daisy D., supra, 144 Cal.App.4th at p. 292; In re Erik P. (2002) 104 Cal.App.4th 395, 403; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252;see also In re S.B. (2004) 32 Cal.4th 1287, 1293), father urges that his claim is cognizable on appeal. Father argues that he preserved his right to raise the sibling relationship exception because he objected to the termination of his parental rights and presented undisputed evidence that it was in his childrens interest to maintain their sibling relationships with each other and with E.H.

Even assuming that the issue has been preserved on appeal, it nonetheless fails on the merits. Under section 366.26, subdivision (c)(1)(E), the court must first determine whether termination of parental rights would substantially interfere with a sibling relationship; and if so, the court must then weigh the childs best interest in continuing that relationship against the benefit of adoption. (In re L. Y. L., supra, 101 Cal.App.4th at pp. 951-952.) The parent bears the burden of showing the existence of a significant sibling relationship, the severance of which would be detrimental to the child. (See id. at p. 952.)

Here, the Departments reports for the section 366.26 hearing included the adoption assessments of the children. The adoption assessments acknowledged a relationship among the three children, but did not address the issue of whether continued sibling contact was in the childrens best interest. However, the CASA reports recommended that there be an effort to maintain contact between the three siblings. The CASA reports further noted that E.H. and T.H. had a strong sibling bond, and that E.H. was very protective of T.H.

While the record indicates that T.H. and E.H. had a strong sibling bond, there is no evidence that K.P., who was less than a year old at the time of the section 366.26 hearing, had a significant relationship with E.H. Even assuming that the record established a significant sibling relationship among all of the children, it does not support applying the statutory exception to the rule that the court must terminate parental rights and choose adoption when reunification efforts have failed. (See In re Celine R., supra, 31 Cal.4th at p. 53.) Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) [T]he sibling relationship exception permits the trial court to consider possible detriment to the child being considered for adoption, but not a sibling of that child . . . . Nothing in [section 366.26, subdivision (c)(1)(E)] suggests the Legislature intended to permit a court to not chose an adoption that is in the adoptive childs best interests because of the possible effect the adoption may have on a sibling. (In re Celine R., supra, 31 Cal.4th at p. 54.) Father had the burden of showing a strong sibling relationship among the children and a detriment to the younger children (T.H. and K.P.) being considered for adoption. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017.) Father failed to show that adoption would be detrimental to T.H. and K.P. because there would be a substantial interference with their sibling relationships with E.H. To the contrary, the record demonstrated that although all three children had lived together for the majority of their young lives, and that continued sibling visitation was recommended, the benefits of the permanence of adoption for T.H. and K.P. far outweighed any interference with their sibling relationships that might occur. In addition, because E.H.s father had expressed a sincere interest in having the child placed with him, there was a very real possibility the siblings would be separated in any event.

Moreover, contrary to fathers implied assertion, the Departments adoption assessments were not deficient for failing to analyze the extent or significance of the sibling bond. Section 366.22, subdivision (b)(2) requires a review of the amount of and nature of any contact between the child and his or her parents and other members of his or her extended family since the time of placement. The childs siblings are included within the term extended family. (Ibid.) Here, the adoption assessments included the fact that T.H. and K.P. lived together in the same foster home with their half-sibling, E.H. While we agree that the assessments provided a minimal review of the sibling relationships, the Department did not have the burden of establishing the sibling relationship exception. (See In re Lorenzo C., supra, 54 Cal.App.4th at pp. 1343-1344 [agency did not have burden of establishing  366.26, subd. (c)(1)(A) exception].) Rather, the burden to establish the exception was on the party seeking to prevent termination of parental rights, in this case, father. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)^[5]

Finally, to the extent father appears to claim that the trial court erred in failing to order postadoption visitation, this contention is without merit. Assuming, without deciding, that father even has standing to raise this claim (see In re Erik P., supra, 104 Cal.App.4th at p. 405), section 366.29, subdivision (a), upon which he relies, provides:  When a court, pursuant to Section 366.26, orders that a dependent child be placed for adoption, nothing in the adoption laws of this state shall be construed to prevent the prospective adoptive parent or parents of the child from expressing a willingness to facilitate postadoptive sibling contact. With the consent of the adoptive parent or parents, the court may include in the final adoption order provisions for the adoptive parent or parents to facilitate postadoptive sibling contact. In no event shall the continuing validity of the adoption be contingent upon the postadoptive contact, nor shall the ability of the adoptive parent or parents and the child to change residence within or outside the state be impaired by the order for contact. ( 366.29, subd. (a), italics added.) There is nothing in this provision that required the court to address postadoption visitation when terminating parental rights under section 366.26. (In re Hector A., supra, 125 Cal.App.4th at p. 799.)

III. DISPOSITION

The orders are affirmed.

________________________

RIVERA, J.

We concur:

___________________________

RUVOLO, P.J.

___________________________

SEPULVEDA, J.

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^[1]All further statutory references are to the Welfare and Institutions Code.

^[2]The trial courts orders with respect to E.H. are not presently before us. All of the children have a common mother; appellant is not the biological father of E.H. Neither mother nor E.H.s biological father is a party to the instant appeal.

^[3]Although the record indicates that the foster parents initially were interested in adopting all three children, no explanation is given regarding their decision to adopt only the two younger children.

^[4]Contrary to fathers assertion, the trial court was not required to make an express finding on the sibling relationship exception. A court is required to make an express finding as to the statutory exceptions ( 366.26, subd. (c)(1)(A)-(F)) only when it finds terminating parental rights would be detrimental to the child. ( 366.26, subd. (c)(1), final par.; see In re Jesse B. (1992) 8 Cal.App.4th 845, 851[absent contrary indication in record, finding of no detriment is implied from entry of termination order].)

^[5]Father also argues that the trial court erred in terminating his parental rights and severing the sibling bond despite the availability of a paternal relative who could have cared for all three children together until [he] was out of jail and able to reunify. This contention is without merit. By the time of the section 366.26 hearing, reunification services had been terminated and the focus had been shifted to the needs of the children for permanency and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Moreover, the record reflects that fathers sister was unwilling to make a long-term commitment to the children, the children did not know her, and she had financial concerns about taking on additional children in her already full household.