Filed 3/7/13 In re J.F. CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re J.F., a Person Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,                                               E057127

         Plaintiff and Respondent,                                       (Super.Ct.No. RIJ113748)

v.                                                                       OPINION

J.B.,

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson,

Judge. Affirmed.

         Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel,

for Plaintiff and Respondent.



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       J.B. appeals an order terminating her parental rights to her son, J.F., and freeing

the child for adoption. She contends that the juvenile court abused its discretion when it

failed to find the “sibling relationship” exception to the statutory preference for adoption

applicable to J.F.

       We will affirm the judgment.

                      FACTUAL AND PROCEDURAL HISTORY1

       On June 8, 2010, the Riverside County Department of Public Social Services,

Child Protective Services (CPS) filed a second amended juvenile dependency petition

alleging that J.B. (mother) had failed to protect her four sons, D.P., J.F., I.G. and N.D.

The children were seven, six, four, and two at the time. The petition alleged that mother

had an extensive history of abuse of methamphetamine; that she was currently pregnant

and had tested positive for amphetamine and methamphetamine; that she had an

extensive history with CPS, with prior substantiated allegations of general neglect and

substance abuse; and that she had failed to benefit from prior services. As to the alleged

fathers of D.P., J.F. and I.G., the petition alleged failure to support. As to the father of

N.D., the petition alleged that he had been provided services in the past and had failed to

benefit, in that he continued to neglect his child, and that he had an extensive criminal

history.




       1 The order freeing J.F. for adoption is the sole subject of this appeal. We will
discuss the entire family’s history to the extent that it is relevant to the issue mother
raises.


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       The three older children had been made dependents of the juvenile court in 2007,

while N.D. had been a dependent from his birth in January 2008 to October 2008.

Family reunification services were offered to mother and to N.D.’s father, and the

dependency as to N.D. was terminated on October 8, 2008, with joint legal custody for

the parents and sole physical custody for mother. Mother was ultimately able to

complete her case plan as to the older children, and that dependency was terminated on

December 31, 2009.

       The current proceeding commenced when mother, who was approximately five

months pregnant, came to a hospital with abdominal pain and spotting. She tested

positive for methamphetamine and amphetamine. I.G. was with her, and she claimed he

was her only child. She claimed that his father had custody, and that I.G. was visiting

her. CPS later determined that mother had been living with her mother, with all four of

her children.

       N.D. was placed with his father, and his dependency was later terminated with his

father being granted sole legal and physical custody. A dependency petition was filed

after the birth of mother’s fifth child, R.B. Reunification services were terminated in that

case at the sixth-month review hearing.

       The three older boys were placed together in foster care. All three had behavioral

and emotional problems, including aggressiveness toward their siblings and other

children. J.F. “appear[ed] to have difficulty understanding that violence is

inappropriate.” As a result of the children’s behavior, their original caregivers asked that

they be removed from the home. They were placed together in a new home. There, they


                                             3
continued to have behavioral problems, such as being physically aggressive with each

other and with the caregivers and being defiant. Nevertheless, CPS believed that they

were adjusting well to the new caregivers.

       An aunt who was being assessed as a possible placement reported that she was no

longer interested, and the children’s grandmother was not suitable in that she had an adult

living in the home with an extensive criminal history, which could not be exempted.

There were no other relatives known to CPS who were interested in being assessed for

placement.

       In March 2011, D.P. was moved to a new placement separate from his brothers.

J.F. and I.G. were also moved to a new placement. The previous caregiver requested the

change in placement because of the children’s behavioral problems and because she had

difficulty in dealing with mother. The children continued to have contact with one

another. They continued to be aggressive, although they were once again described as

adjusting well to their new caregivers. At the end of March, I.G. was removed from that

placement and placed separately from J.F. because of I.G.’s “escalating emotional and

behavioral problems.” However, he was placed next door to J.F. and the boys continued

to see each other daily.

       In a status review report dated July 8, 2011, CPS reported that D.P. and J.F

continued to be aggressive and were receiving therapy. J.F. was reportedly doing better.

I.G. continued to “throw tantrums and become[] violent when he does not get his way.”

He was also extremely oppositional and defiant at times and showed symptoms of

attention deficit/hyperactivity disorder (ADHD). His therapist had recommended that


                                             4
I.G. be evaluated to determine if he needed and could benefit from psychotropic

medications. I.G. was moved again on August 9, 2011.

       On August 24, 2011, mother’s reunification services were terminated with respect

to D.P., J.F. and I.G. The court determined that it was not appropriate to place D.P. with

his siblings.

       A nonrelative extended family member expressed an interest in adopting D.P. and

J.F., and stated that he might consider adopting I.G. in the future if his emotional and

behavioral problems stabilized. CPS recommended continuing the Welfare and

Institutions Code section 366.262 hearing for 120 days to permit assessment of the

prospective adoptive parent and to permit further assessment of I.G. to determine if he

was adoptable at that time.3

       D.P. and J.F. were placed together in the prospective adoptive home on March 9,

2012. CPS reported that despite some initial sibling rivalry and behavioral problems,

both boys adjusted extremely well to the placement. Both stated that they would like to

stay there and appeared very secure. The prospective adoptive parents were willing and

able to provide for their special needs.

       I.G. was placed in a group home. He had been placed for a short time in the same

foster home as D.P., but his severe emotional and behavioral problems persisted. He was


       2 All further statutory references shall be to the Welfare and Institutions Code,
unless otherwise indicated.

       3 This report refers to a prospective adoptive “parent.” Later reports show that the
prospective adoptive family consists of two parents.


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diagnosed with ADHD and oppositional defiant disorder. He was committed to Loma

Linda Behavioral Medical Center because of assaultive behavior and/or uncontrollable

and oppositional defiant behaviors, which posed a danger to I.G. or to others. He was

placed on medication, but it failed to control his outbursts and negative behavior or

stabilize his emotional functioning. Because I.G. had had eight failed placements and

had pervasive emotional and behavioral problems, CPS determined that I.G. had to be

placed in a group home where he could receive more intensive mental health services.

He was committed a second time to Loma Linda Behavioral Medical Center on April 9,

2012, and upon his release on April 13, 2012, he was placed in an appropriate group

home.

        The preliminary adoption assessment reported that the prospective adoptive

parents and their home were appropriate for D.P. and J.F. The prospective adoptive

parents stated that most of D.P.’s aggressive behaviors had declined since being placed in

their home, and that his tantrums were manageable. J.F. continued to have some anger

management issues and aggressive behaviors, but the prospective adoptive parents

reported that his tantrums were declining as he became more adjusted to their home.

They planned to enroll both boys in counseling.

        D.P. told the adoption worker that he liked living with the prospective adoptive

parents and wanted to stay there for the rest of his life. J.F. had some conflicting feelings

and said he would like to live with mother, but if that was not possible, he wanted to stay

with the prospective adoptive parents. He and D.P. both appeared bonded to the

prospective adoptive parents.


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       At the selection and implementation hearing on July 7, 2012, the juvenile court

continued the hearing for 60 days for D.P. in order to conduct DNA testing to determine

whether an alleged father was his biological father and to address other unspecified

issues. However, the court found that adoption was the appropriate permanent plan for

D.P. and J.F. The court found that I.G. was not adoptable at that time, and found that a

planned permanent living arrangement was the appropriate plan for I.G. The court

terminated parental rights and freed J.F. for adoption.

       Mother filed a timely notice of appeal challenging only the order terminating

parental rights with respect to J.F.

                                       LEGAL ANALYSIS

   MOTHER DID NOT MEET HER BURDEN WITH RESPECT TO THE SIBLING

     RELATIONSHIP EXCEPTION TO THE STATUTORY PREFERENCE FOR

                                         ADOPTION

       “Adoption must be selected as the permanent plan for an adoptable child and

parental rights terminated unless the court finds ‘a compelling reason for determining that

termination would be detrimental to the child due to one or more of the following

circumstances: [¶] . . . [¶] (v) There would be substantial interference with a child’s

sibling relationship . . . .’ (§ 366.26, subd. (c)(1)(B).)” (In re Bailey J. (2010) 189

Cal.App.4th 1308, 1314 (Bailey J.).) Under these provisions, “the court must order

adoption and its necessary consequence, termination of parental rights, unless one of the

specified circumstances provides a compelling reason for finding that termination of

parental rights would be detrimental to the child. The specified statutory circumstances


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. . . ‘must be considered in view of the legislative preference for adoption when

reunification efforts have failed.’ ” (In re Celine R. (2003) 31 Cal.4th 45, 53, italics

added (Celine R.).) “‘Adoption is the Legislature’s first choice because it gives the child

the best chance at [a full] emotional commitment from a responsible caretaker.’” (Ibid.)

       The parent has the burden of establishing by a preponderance of the evidence that

a statutory exception to adoption applies. (Bailey J., supra, 189 Cal.App.4th at p. 1314.)

To establish that the sibling relationship exception applies, the parent must show that

“[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).)

       Mother contends that the sibling relationship exception applies in this case

because J.F. had lived with D.P. and I.G. almost all his life, and they “shared the

significant emotional experience of disruption, dislocation, and family instability.” She

contends that this relationship is disrupted by freeing J.F. for adoption while leaving D.P.

as a part of the family with mother and I.G. She contends that J.F. will no longer have

visits with I.G. while D.P. continues to visit with I.G., because J.F. is no longer part of




                                              8
that family. She contends that termination of parental rights created a substantial

interference with J.F.’s relationship with I.G., resulting in detriment to J.F.4

       A juvenile court’s finding that the sibling relationship exception does not apply is

reviewed under a hybrid substantial evidence/abuse of discretion standard. The factual

finding, i.e., whether a bonded sibling relationship exists, is reviewed for substantial

evidence, while the court’s determination that the relationship does not constitute a

“compelling reason” (Celine R., supra, 31 Cal.4th at p. 53) for determining that

termination of parental rights would be detrimental is reviewed for abuse of discretion.

(Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315.)

       Since the proponent of the exception bears the burden of producing evidence of

the existence of a beneficial parental or sibling relationship, a challenge to a juvenile

court’s finding that there is no beneficial relationship amounts to a contention that the

“undisputed facts lead to only one conclusion.” (In re I.W. (2009) 180 Cal.App.4th 1517,

1529.) Unless the undisputed facts established the existence of a beneficial parental or

sibling relationship, a substantial evidence challenge to this component of the juvenile

court’s determination cannot succeed. (Bailey J., supra, 189 Cal.App.4th at p. 1314.)

       Here, mother has utterly failed to show that the evidence compels the conclusion

that termination of parental rights for J.F. disrupted his relationship with I.G. to J.F.’s

       4 Mother does not contend that termination of parental rights for J.F. will create a
substantial interference with his relationship with D.P. The only concern she expresses
with respect to D.P. is that if the DNA test establishes a biological connection with the
alleged father, “another monkey wrench will be tossed into the emotional turmoil.” She
does not explain how establishing biological paternity at this late stage of D.P.’s
dependency is likely to derail the prospective adoptive parents’ plan to adopt D.P.


                                               9
detriment. First, the record refutes the contention that it was the termination of parental

rights that disrupted J.F.’s relationship with I.G. or that J.F.’s relationship with I.G.

would have been closer or better maintained if J.F. remained a court dependent. I.G.’s

mental and emotional state had deteriorated before the section 366.26 hearing, to the

point that he required hospitalization twice and placement in a group home with the

resources to address his severe emotional problems. Thus, even if J.F. had remained a

court dependent, he would necessarily have been placed separately from I.G.

Accordingly, it was I.G.’s emotional problems that had disrupted his relationship with his

siblings, not the termination of parental rights. Second, mother has not shown that

termination of parental rights will disrupt J.F.’s relationship with I.G. in the long term.

J.F.’s prospective adoptive parents were willing to consider adopting I.G. as well, if his

emotional condition stabilized, and there is no evidence that the prospective adoptive

parents would refuse to allow J.F. to visit with I.G. or otherwise foster J.F.’s sibling

relationships after the adoption.

       In addition, mother has failed to demonstrate how it was an abuse of discretion to

determine that any potential disruption of J.F.’s relationship with I.G. constituted a

compelling reason not to terminate parental rights. A contention that the sibling

relationship is a “compelling reason” for finding detriment to the child calls for the

juvenile court to determine the importance of the sibling relationship in terms of the

detrimental impact that its severance can be expected to have on the child and to weigh

that against the benefit to the child of adoption. (Bailey J., supra, 189 Cal.App.4th at

p. 1315.) Mother does not point to any evidence that compels the conclusion that J.F.’s


                                              10
interests would be better served by remaining a court dependent or that doing so would in

any way promote his relationship with I.G., and we find none. Accordingly, the court did

not abuse its discretion in finding that the sibling relationship exception does not apply.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                                McKINSTER
                                                                                              J.

We concur:



RAMIREZ
                        P. J.



KING
                           J.




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