Filed 8/7/13 In re Gabriel B. CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re GABRIEL B., a Person Coming
Under the Juvenile Court Law.
                                                                 D063710
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. NJ14200C)
         Plaintiff and Respondent,

         v.

GABRIELA B.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Michael J.

Imhoff, Commissioner. Affirmed.



         Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel and Erica R. Cortez, Deputy County Counsel, for Plaintiff and Respondent.
       Gabriela B. appeals the judgment terminating her parental rights to her two-and-

one-half-year-old son, Gabriel B. She contends the court erred by declining to apply the

sibling relationship exception (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(v))1 to

termination of parental rights. We affirm.

                                     BACKGROUND

       In August 2009, the San Diego County Health and Human Services Agency (the

Agency) filed dependency petitions for Gabriela's sons (together the siblings) Angel B.,

then nearly 10 years old, and Fernando A., then five and one-half years old. The petitions

alleged domestic violence between Gabriela and the siblings' father. In September, the

court made true findings on the petitions. In June 2010, Gabriel was born. In February

2011, at the siblings' 18-month review hearing, the court ordered the siblings returned to

Gabriela's care.

       In August 2011, when Gabriel was one year old, the Agency filed a dependency

petition for him with the following allegations: Gabriela had resumed drinking alcohol to

excess, exacerbating the risk of domestic violence; she was in a new relationship with a

man, and had a history of exposing the siblings to domestic violence; and she had been

leaving Gabriel and the siblings home alone.

       Gabriel was detained in Polinsky Children's Center for a few days and then moved

to a foster home. The Agency filed a supplemental petition (§ 387) for the siblings, and

they were detained in a different foster home.



1      All further statutory references are to the Welfare and Institutions Code.
                                             2
       In October 2011, the court made true findings on Gabriel's petition and ordered

him placed in foster care. At the six-month review hearing in April 2012, the court set a

section 366.26 hearing. In December, Gabriel was moved to the home of an approved

family that wished to adopt him. That family had not decided whether it would be

willing to care for the siblings.

       The section 366.26 hearing for Gabriel and the siblings was held in February

2013. The Agency recommended permanent plans of adoption for Gabriel and Fernando,

and another planned permanent living arrangement for Angel.2 The Agency hoped to

find an approved family willing to accept the recommended permanent plans: adopt

Gabriel and Fernando; and care for Angel long-term. The siblings had a strong bond with

each other.

       The court terminated parental rights to two-and-one-half-year-old Gabriel. The

court found there was a probability of adoption for 14-year-old Angel and eight-year-old

Fernando, but they were difficult to place for adoption because they formed a sibling

group. (§ 366.26, subd. (c)(3).) The court directed the Agency to search for an adoptive

home for Gabriel and the siblings together. The court set a further section 366.26 hearing

for the siblings, to coincide with a postpermanency planning review hearing for Gabriel.

                                      DISCUSSION

       The Agency has filed a motion to augment the appellate record with postjudgment

evidence and to dismiss this appeal as moot. The evidence consists of notices the Agency



2      At various times, each sibling said he did not wish to be adopted.
                                            3
filed in the juvenile court on April 29, 2013, stating it had found an adoptive home for

Gabriel and the siblings, and planned to move the siblings on April 8 and Gabriel on

April 10 to that home. Gabriela opposes the motion, arguing it is untimely and citing the

general rule that judgments are reviewed according to the evidence that was before the

trial court. We grant the augmentation motion, and take into account the fact Gabriel and

the siblings were moved into a prospective adoptive home in April. The new evidence

does not render the appeal moot, however; it merely suggests that termination may not

substantially interfere with the relationship between the siblings and Gabriel. We decline

to dismiss the appeal.

       If a child is adoptable,3 the court must terminate parental rights at the section

366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26,

subd. (c)(1).) Section 366.26, subdivision (c)(1)(B)(v), provides an exception when

termination would substantially interfere with the child's relationship with sisters or

brothers and the severance of the relationship would be so detrimental to the child to

outweigh the benefits of adoption. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-953;

§ 366.26, subd. (c)(1)(B)(v).) The juvenile court must "balance the beneficial interest of

the child in maintaining the sibling relationship, which might leave the child in a tenuous

guardianship or foster home placement, against the sense of security and belonging

adoption and a new home would confer." (In re L.Y.L., at p. 951, citing In re Autumn H.

(1994) 27 Cal.App.4th 567, 575.) Factors to be considered include whether the children



3      Gabriela does not challenge the adoptability finding.
                                              4
were raised in the same home; whether they shared significant common experiences or

have existing close and strong bonds; and whether ongoing contact is in the child's best

interests, including his or her long-term emotional interests, as compared to the benefits

of adoption. (§ 366.26, subd. (c)(1)(B)(v).) "[T]he application of this exception will be

rare, particularly when the proceedings concern young children whose needs for a

competent, caring and stable parent are paramount." (In re Valerie A. (2007) 152

Cal.App.4th 987, 1014.)

       Here, the court found termination of parental rights would not substantially

interfere with Gabriel's relationship with the siblings and, in any case, the benefits he

would derive from adoption would outweigh any benefits from ongoing sibling contact.

Examining the evidence most favorably to the judgment, we conclude substantial

evidence supports the finding. (In re L.Y.L., supra, 101 Cal.App.4th at pp. 947, 952.)

Gabriel lived with the siblings for only six months, between February and August 2011.

He did not live with them for the first eight months of his life, or during the one and one-

half years between the date of his detention and the date of his section 366.26 hearing.

The Agency intended to find a single permanent placement for Gabriel and the siblings,

and during this case they had regular visits.4 Gabriel did not ask for the siblings between

visits. When he saw them, he did not run to greet them. He reacted to them as he did to

the social worker or any other friendly visitor. At the end of visits, Gabriel "just [walked]




4      Gabriel saw the siblings every other weekend and at other times. At the time of
the hearing, he had not seen them since "around Christmastime."
                                              5
away and . . . only sometimes [said] bye." The social worker believed Gabriel did not

have a strong bond with the siblings.

       Gabriela argues the Agency's efforts to place Gabriel with the siblings, and the

court's order that the Agency find one adoptive home for all three boys, are inconsistent

with the Agency's assertion and the court's determination that the sibling relationship

exception did not apply. There is no inconsistency. This appeal concerns Gabriel only.

The issue is whether, if termination would substantially interfere with the sibling

relationship, detriment would befall Gabriel, not the siblings. (In re Celine R. (2003) 31

Cal.4th 45, 54.) The hearing in the juvenile court, however, concerned all three boys, and

the Agency and the court focused equally on possible detriment to all of them. The

Agency made a recommendation and the court fashioned an order that took into account

the interests of Gabriel and the siblings.

                                        DISPOSITION

       The judgment is affirmed.



                                                                          MCDONALD, J.

WE CONCUR:



BENKE, Acting P. J.



HALLER, J.



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