Filed 1/28/14 In re N.P. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re N.P. et al., Persons Coming Under the
Juvenile Court Law.
_________________________________                                        E059359

RIVERSIDE COUNTY DEPARTMENT                                              (Super.Ct.No. SWJ1100116)
OF PUBLIC SOCIAL SERVICES,
                                                                         OPINION
         Plaintiff and Respondent,

v.

J.P.,

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Donna L. Crandall,

Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to

art VI, § 6 of the Cal. Const.) Affirmed.

         Lisa A. Raneri, under appointment by the Court of Appeal, for Defendant and

Appellant.




                                                             1
       Leslie A. Barry, under appointment by the Court of Appeal, for Respondent

Minors.

       Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel,

for Plaintiff and Respondent.

       J.P. (Mother) appeals after the termination of her parental rights to N.P. and L.P. at

a Welfare and Institutions Code section 366.261 hearing and the ordered permanent plan

of adoption.

       Mother makes the following claims on appeal: (1) the juvenile court lacked

substantial evidence of the wishes of L.P. and N.P. as to whether they understood that

adoption would preclude contact with Mother or that legal guardianship was an

alternative plan to adoption as required by section 366.26, subdivision (h); (2) the

beneficial parent exception to terminating Mother’s parental rights (§ 366.26, subd.

(c)(1)(B)(i)) applied to preclude termination of her parental rights; (3) the sibling

exception to terminating Mother’s parental rights (§ 366.26, subd. (c)(1)(B)(v)) applied;

and (4) the juvenile court erred by finding N.P. was adoptable.2




       1     All further statutory references are to the Welfare and Institutions Code
unless otherwise indicated.
       2       N.P. and L.P. were appointed counsel on appeal. Minors’ counsel has filed
a brief agreeing with the respondent that the juvenile court orders should be upheld.




                                              2
       We affirm the juvenile court’s order terminating Mother’s parental rights and

finding N.P. and L.P. adoptable.

                                                 I

                      PROCEDURAL AND FACTUAL BACKGROUND

       A.     Detention

       L.P. (who was 5 years old) and N.P. (who was 11 years old) were put into

protective custody on February 14, 2011, along with their older half sister, La.P (who was

12 years old)3 by the Riverside County Department of Public Social Services (the

Department). There were a series of incidents which led to the children being detained.

       On January 22, 2011, a social worker responded to the home occupied by the

family. It was reported that Mother had beat La.P a week before. Mother held La.P on

the couch and punched and choked her. Mother claimed that La.P had Multiple

Personality Disorder and Dissociative Disorder. On the day of the incident, La.P had

become enraged and violent and Mother was trying to restrain her. If she hit La.P, it was

only in self defense. La.P had a “busted lip” from the incident but La.P claimed she bit

her own lip during the struggle. She confirmed her Mother’s story.

       Another referral was received on January 27, 2011. Mother had been seen

choking and hitting La.P. The children’s stepfather, who also lived in the house, had

been seen throwing La.P against a wall. N.P. had been encouraged by Mother to hit La.P


       3      La.P is not a subject of the instant appeal but since Mother has raised the
sibling exception, her behavior and placement are relevant to the issues raised on appeal.


                                             3
with a broom. Stepfather and Mother were suspected of using methamphetamine.

Stepfather had been reported to shoot pellets from an air gun at the children.

       On January 28, 2011, it was reported that Mother had previously attempted to

commit suicide by taking 50 antidepressants and other pills. La.P had not been regularly

attending school.

       A social worker went to the house on January 31, 2011. Mother and stepfather

denied abusing the children. Mother was attempting to get psychological counseling for

La.P. Stepfather used marijuana to help with pain but did not have a medical marijuana

card. He considered shooting pellets at the children to be fun but agreed he would stop.

Mother admitted that she had previously attempted to commit suicide.

       La.P was interviewed at school on February 1, 2011. She denied she was hit or

beaten by Mother or stepfather. La.P accepted responsibility for the altercations with

Mother. La.P reported that A.H., who was her father, sexually abused her when she was

“little.” N.P. and L.P. were interviewed the same day. N.P. denied knowing about any

drug or alcohol abuse in the home. He also denied that Mother and stepfather hit him.

L.P. said it was fun at home and that there were no problems at home.

       A report was received on February 14, 2011, that Mother had beaten the stepfather

with a chair and punched him in the face. It was reported that Mother had attempted to

commit suicide by taking an entire bottle of prescription medication. She was currently

hospitalized. Mother was combative and in an altered state when she was admitted. She

was in critical condition and placed on a ventilator. She was being moved to an intensive

care unit. The children were present during the altercation and the suicide attempt.

                                             4
       Stepfather reported that in the evening on February 13, he was sitting in the living

room on the couch. Mother emerged from the bedroom and started yelling at him. She

began beating him. N.P. was sitting on a nearby chair. She pulled the chair from

underneath N.P., causing him to fall on the floor. N.P. hit his knee and had a small bruise

on his knee. Mother hit stepfather in the chest with the chair. She dropped the chair and

hit him with her fists. She ordered stepfather to pack his things and leave. He refused

because the children needed him.

       Mother went back to the bedroom. She sat on the bed and started swallowing her

prescription medications. Stepfather asked her what she was doing, and she said, “I am

just trying to be happy.” Stepfather dialed 911. Both Mother and stepfather tested

positive for marijuana.

       N.P. and La.P were present when Mother was hitting stepfather and both children

were crying. The children were all taken into protective custody. After being taken into

custody, La.P stated she had been watching television with N.P. in the living room. La.P

said that Mother came out yelling at stepfather. Mother started hitting stepfather with the

chair. Mother hit stepfather with her fists. La.P and N.P. were crying. N.P. essentially

confirmed the story of stepfather and La.P. He was hurt on his knee but the wound was

healing. L.P. had heard yelling and saw Mother being taken away in an ambulance.

       Mother was able to speak with the social worker on February 15. She stated she

had a miscarriage on February 2 that caused her to be depressed. She was taking

antidepressants. She awoke on Feburary 13 and stepfather was smoking marijuana in the

bedroom. She was mad and told him she did not want the children to be taken away

                                             5
because of his “stupidity.” She did not recall anything regarding her beating the

stepfather. She did not recall taking all of her medication. Mother denied smoking

marijuana despite her drug test showing otherwise.

       Mother claimed that R.P., who was the father of N.P. and L.P., was abusive

toward the children. While Mother was married to R.P., he was abusive to her. Between

2007 and 2009, La.P had been admitted to a children’s psychiatric hospital. La.P claimed

during her hospitalization that she had been molested by A.H. when she was nine years

old. Mother believed that A.H. was incarcerated. Mother was being evaluated by mental

health professionals before being released from the hospital.

       R.P. contacted the Department once he found out the children had been removed

from Mother. He had an interest in all of the children living with him. He denied any

abuse of Mother or the children.

       On February 16, 2011, a section 300 petition was filed by the Department against

A.H., R.P. and Mother. It alleged against Mother, under section 300, subdivision (b), that

she had unresolved mental health issues, she had attempted suicide in the presence of the

children, she engaged in domestic violence with the children’s stepfather, and she abused

controlled substances in the home, including marijuana. As for A.H, it alleged he had a

prior criminal history and was incarcerated, and had failed to protect La.P despite

obvious awareness of her mental health issues. It was alleged against R.P. that he had

failed to protect N.P. and L.P. when he must have been aware of Mother’s mental health

problems. The petition also alleged against A.H. and Mother a failure to provide support

for the children.

                                             6
       At a detention hearing held on February 17, 2011, the juvenile court found a prima

facie case and ordered La.P, N.P. and L.P. detained. R.P. was named the presumed father

of N.P. and L.P., and A.H. was named the alleged father of La.P.

       B.     Jurisdictional/Dispositional Report and Hearing

       In a jurisdictional/dispositional report filed on March 9, 2011, the Department

recommended that Mother, A.H. and R.P. be granted reunification services. It was also

recommended that the children remain detained together. Mother was to submit to a

psychological evaluation.

       R.P. reported that he was granted joint legal custody of N.P., L.P. and La.P in New

Mexico. Mother took the children to California without his permission. There were

unsubstantiated reports to New Mexico social services while the children lived with him

and Mother between 2000 through 2009. These included reports of filthy conditions in

the home, poor supervision, La.P having trouble at school, physical abuse by R.P. against

N.P. and La.P, and physical abuse by Mother against La.P. R.P. denied abusing the

children.

       On March 20, 2010, New Mexico Social Services received a referral that Mother

had attempted suicide while the children were present. R.P. took custody of the children.

A.H. had numerous prior convictions. A.H. was interviewed and claimed he had been off

parole for three years. He had been looking for La.P for five years but could not find her.

A.H. wanted custody of La.P.

       N.P. stated that R.P. beat him and his siblings, and locked them in the house. N.P.

liked being in foster care because the people were nice to him. N.P. claimed the house in

                                             7
New Mexico was haunted; ghosts followed him around the house and La.P talked to

them. L.P. liked her foster home.

       Mother admitted she had attempted suicide and it was not a “smart” decision. She

denied that she used drugs. She believed her mental health issues were more intense than

just depression. Stepfather claimed that he was the one who took care of the children.

Mother just stayed in her bedroom. Stepfather insisted that Mother had a serious mental

illness. Stepfather’s ribs were broken when Mother hit him with the chair. He and

Mother were getting a divorce and he would not be considered for placement.

       The jurisdictional/dispositional hearing was conducted on March 14, 2011. The

petition was amended to strike the section 300, subdivision (g) allegations and an

allegation against A.H. The juvenile court found the allegations in the amended petition

true after R.P., A.H. and Mother waived their rights to a hearing. R.P., A.H. (who was

declared the biological father of La.P) and Mother were granted reunification services.

       C.     Six-Month Status Review Report

       A six-month status review report was filed on September 1, 2011. It was

recommended that La.P be placed with A.H. under Family Maintenance. At the time of

the report, La.P was in a different foster home than N.P. and L.P.

       Mother was living with a friend. Mother reported that she was pregnant with

another baby. The father of the baby was “Mr. Lopez.” Mother was participating in

services but was not benefiting from them. Mother reported that La.P lied and had

mental problems. Mother had failed to participate in a psychological evaluation or



                                            8
individual therapy. Mother could not take medication for her mental illness since she

was pregnant.

       A.H., who was married, wanted placement of La.P in their home. La.P wanted to

be placed with A.H. and did not want to be with Mother. La.P got into an argument with

her foster brother in her new foster home and La.P threw a remote control at the boy’s

face. La.P felt bad and went into her room. She cut her arm with a bottle-cap opener.

She cut her wrist with a ball point pen. She was taken to the hospital. She was

prescribed medication by the mental health hospital.

       N.P. was enrolled in honor classes at school. The social worker recommended

therapy for N.P. L.P. was doing well in school.

       N.P. was mature for his age. He had adjusted well to his placement. He was not

sure he wanted to be with either R.P. or Mother. L.P. had reported that R.P. had asked

her to touch him in the groin area. N.P. and L.P. were going to be moved because the

foster mother was sick.

       Mother had visited regularly with N.P. and L.P. She oftentimes brought the

children very expensive gifts. However, Mother was not attentive during visits,

oftentimes talking on her telephone or talking to the social worker.

       At the six-month review hearing held on September 13, 2011, La.P was placed

with A.H. on a Family Maintenance plan. Her case was transferred to San Bernardino

County. Mother’s reunification services were continued for N.P. and L.P.

       On November 7, 2011, it was reported by Mother’s roommate that she had left

town and stolen items from her. Mother missed a visit on November 3, 2011, and never

                                             9
contacted the social worker. Mother had been sporadic in her visits with L.P. and N.P.

She brought inappropriate music and movies for the children. A.H. had reported that

La.P had been caught having sex at school with another student and had given her

psychotropic medication to other students.

          D.    12-Month Review Report and Hearing

          The 12-month review report filed on February 28, 2012, recommended that

Mother’s and R.P.’s reunification services be terminated. It also recommended that a

section 366.26 hearing be set and that the permanent plan be adoption.

          Mother delivered her new son, K.B.,4 on January 14, 2012. He was also detained

by the Department.

          On February 3, 2012, Mother was arrested for inducing a minor to sell drugs and

child endangerment.5 She pleaded guilty and was scheduled to be sentenced on March

14, 2012. She was currently incarcerated.

          N.P. was developing normally. He was doing well in most of his classes at school.

He showed no signs of mental illness but he did receive counseling to differentiate

between fantasy and reality. L.P. was developing normally and doing well in school.

Both were adjusted to their foster care.




          4     K.B. is not a subject of the instant appeal.
          5     The record contains no details as to the circumstances surrounding this
arrest.


                                              10
       Mother had not attended individual counseling. A psychiatric evaluation was

completed on November 16, 2011, by the Riverside County Department of Mental Health

and she was found not to need therapy or medication. Mother had regularly attended

visitation since November 14, 2011, until her incarceration. Both N.P. and L.P. were

thriving in the foster home.

       An addendum report was filed on March 29, 2012. Mother had been sentenced to

a three-year prison sentence.

       On April 4, 2012, Mother waived her rights to a hearing and submitted on the

reports. Mother was incarcerated and expected to serve at least one year in custody. The

juvenile court terminated reunification services for Mother and ordered monthly

visitation. N.P. and L.P. were present at the hearing and were interested in possibly being

placed with R.P. His reunification services were continued.

       An addendum report was filed on September 21, 2012. It was recommended that

reunification services be terminated as to R.P. Mother was still incarcerated. N.P. was

reported as developing normally and was doing well in school. He had been diagnosed

with ADHD but was not taking medication. He still displayed behaviors of living in a

fantasy world. L.P. was also developing normally and was doing well in school.

       During the reporting period, R.P. had not contacted the Department and had not

spoken with the children. No visitation between Mother and the children occurred due to

her incarceration and the decision by the Department that it would be harmful for the

children to visit her in prison. N.P. had told a social worker he would like to visit Mother



                                            11
in prison. N.P. had cried for “hours” when he received a letter from Mother. He had to

read the letters with his therapist.

       The contested review hearing was conducted on November 6, 2012. R.P. was not

present and the parties submitted on the reports filed. R.P.’s reunification services were

terminated. The matter was set for a section 366.26 hearing. Adoption was the

permanent plan. The juvenile court noted that placement of L.P. and N.P. with La.P was

not a consideration because she was on a different track since she had been placed with

her father.

       On December 7, 2012, the Department filed an ex parte application requesting an

order for a psychological evaluation of N.P. N.P. was being aggressive with other

children and having difficulties with socialization. There was a chance he suffered from

Asperger’s Syndrome. Finding an adoptive home for N.P. and L.P. was difficult due to

his behavior.

       E.       Section 366.26 Report

       The section 366.26 report was filed on January 17, 2013. N.P. was now 13 years

old and L.P. was 7 years old. Additional time was needed to find an adoptive home for

N.P. and L.P. N.P. had an active imagination and liked to tell stories. He was very

sensitive. He was upset by information from his Mother that he knew was false. He was

doing well in school. A psychological evaluation was pending for N.P. N.P. was an avid

reader and loved science fiction.

       N.P. and L.P. had expressed that they wanted to live in their former foster home

and be adopted by the former foster mother. The former foster mother had been

                                            12
contacted, she expressed interest in adopting them, and they were returned to her care.

N.P. and L.P. were happy to be back with the foster mother.

       N.P. and L.P. had one visit with Mother while she was in prison, which took place

through a glass window and over the telephone. Mother told the children she would be

out of custody and they would be returning to her care. She blamed her incarceration on

La.P, who she claimed told lies about her. N.P. and L.P. started crying. Mother knew

she had two years to complete on her sentence. The Department recommended that no

further visitation be authorized.

       N.P. and L.P. were happy about being with the foster mother but were confused by

Mother’s promises. One of the service providers disagreed that N.P. needed a

psychological evaluation and refused to approve the evaluation.

       On February 4, 2013, the matter was continued in order to find a suitable adoptive

home. At the hearing, the juvenile court noted, “I’m not sure, no matter what happens,

whether [N.P.] is going to agree to be adopted at any point, which is his right. He must

consent. I’m not so sure whatever we do or the Department does, whether he’s going to

want to agree to that.” Minor’s counsel had no comment on N.P.’s wishes.

       The Department filed an addendum report on the day of the hearing requesting a

restraining order against Mother to protect the children and the foster mother. They also

requested that visitation be terminated. An anonymous phone call was received by the

Department that reported that Mother had paperwork in prison reflecting the address of

the foster mother. Upon her release, Mother planned to pick up the children and take



                                            13
them to Las Vegas. The Department’s request for a restraining order against Mother was

denied.

       The juvenile court admonished Mother not to promise anything to N.P. and L.P.

and visitation was continued. The juvenile court suggested that the Department consider

legal guardianship if N.P. would not agree to the adoption.

       An addendum report was filed on May 9, 2013. The recommendation was to

terminate Mother’s parental rights and free N.P. and L.P. for adoption. The prospective

adoptive mother, the former foster mother, had custody of N.P. and L.P. since December

2012. She loved the children and wanted to adopt them. A preliminary adoption

assessment had been completed.

       N.P. was still receiving counseling. The report stated, “[N.P.] states that he likes

living with the prospective adoptive mother and states that this means he gets to change

his name. He is happy that the prospective adoptive mother wants to adopt him.” L.P.

was very excited to be adopted by the foster mother. She was very bonded to the foster

family. The prospective adoptive mother had two children close to the children’s ages

and they were like siblings to N.P. and L.P. The prospective adoptive mother worked

and had the means to support N.P. and L.P. She had a very supportive family who would

help her.

       The prospective adoptive mother was amenable to exchanging photographs and

letters with the birth family. She was not willing to maintain face-to-face contact. Both

N.P. and L.P. called her “mom.” They both wanted to be adopted.



                                             14
       F.     Section 366.26 Hearing

       The section 366.26 hearing was held on July 8, 2013. None of the parties involved

were present. The Department submitted on the reports. Minors’ counsel did not object

to the reports and agreed with the recommendations. Mother’s counsel requested that

Mother’s parental rights not be terminated and that the parental bond exception be

applied. The juvenile court found “clear and convincing evidence” that the children

would be adopted. The parental rights of Mother and R.P. were terminated and L.P. and

N.P. were freed for adoption.

                                                   II

                          AGREEMENT TO ADOPTION BY MINORS

       Mother claims that section 366.26, subdivision (h) required that the juvenile court

consider the wishes of N.P. and L.P. prior to freeing them for adoption and terminating

Mother’s parental rights. Further, section 366.26, subdivision (c)(1)(B)(ii) provided an

exception to termination of her parental rights if N.P. objected to the adoption.

       Section 366.26, subdivision (h)(1) provides as follows: “At all proceedings under

this section, the court shall consider the wishes of the child and shall act in the best

interests of the child.” Section 366.26, subdivision (c)(1)(B)(ii) provides an exception to

the termination of parental rights when a child 12 years of age or older objects to the

termination of parental rights.

       Mother claims that the juvenile court needed to inquire further of L.P. and N.P.

about the consequences of adoption. Mother insists that the record is silent as to whether

N.P. and L.P. were aware of the difference between legal guardianship and adoption, and

                                              15
that they were aware that adoption would preclude further contact with Mother. Mother

has forfeited this issue by failing to raise it in the juvenile court. (See In re Amanda D.

(1997) 55 Cal.App.4th 813, 819-820 [“[Father] raised no issue below that the juvenile

court should have obtained the minors’ testimony regarding their wishes for a permanent

plan. [Citation.] He is precluded from presenting it here”].) Moreover, the party

claiming an exception to adoption has the burden of raising the issue below and by failing

to do so “waived the right to raise the issue on appeal.” (In re Rachel M. (2003) 113

Cal.App.4th 1289, 1295.) Mother failed to claim in the juvenile court that the section

366.26, subdivision (c)(1)(B)(ii) exception applied, and thus has forfeited the claim on

appeal.

       Even considering the issue on the merits, Mother cannot prevail. “[I]n considering

the child’s expression of preferences, it is not required that the child specifically

understand the proceeding is in the nature of a termination of parental rights.” (In re Leo

M. (1993) 19 Cal.App.4th 1583, 1593 (Leo).) “To ask . . . children to choose whether

they ever see their natural parent again or to give voice to approving that termination”

can traumatize youngsters and is not statutorily compelled. (Ibid.) Instead, “[w]hat the

court must strive to do is ‘to explore the minor’s feelings regarding his/her biological

parents, foster parents, and prospective adoptive parents, if any, as well as his/her current

living arrangements. . . .’” (In re Amanda D., supra, 55 Cal.App.4th at p. 820.) The

“evidence need not be in the form of direct testimony in court or chambers; it can be

found in court reports prepared for the hearing. [Citation.]” (Ibid.) If the record contains

no direct evidence of the child’s thoughts on the matter, but includes evidence from

                                              16
which the child’s feelings can be inferred, the court may draw such inferences. (Leo, at

pp. 1593-1594.)

       While a court must consider the child’s wishes, it must also act in the child’s best

interest. (§ 366.26, subd. (h)(1).) A “child’s wishes are not necessarily determinative of

the child’s best interest [citation].” (In re C.B. (2010) 190 Cal.App.4th 102, 125.) An

appellate court may presume the juvenile court performed its statutory obligation, if that

presumption is supported by sufficient evidence in the record. (Leo, supra, 19

Cal.App.4th at p. 1594.)

       Here, N.P. and L.P. were not present at the section 366.26 hearing and did not

provide direct testimony as to their preference for placement. However, there was ample

evidence in the reports reviewed by the juvenile court that L.P. and N.P. wished to be

adopted. N.P. and L.P. had asked to be placed back with the prospective adoptive

mother. Once in her care, N.P. expressed on several occasions he wanted to be adopted

and was excited to change his name. L.P. was very excited about being adopted by the

prospective adoptive mother.

       Even if the children were advised that legal guardianship would allow them to

maintain contact with Mother, and they expressed their preference for legal guardianship,

this would not have been in their best interests. (In re C.B., supra, 190 Cal.App.4th at p.

125.) Mother attempted suicide on two prior occasions and had injured N.P. during the

altercation with stepfather. Mother made no progress in her plan and was sporadic in her

visitation. During the dependency proceeding, she was convicted of child endangerment

and inducing a minor to sell drugs. She was sentenced to three years in prison. Mother

                                             17
upset the children during visitation, lying to them about her circumstances. Based on the

foregoing, even if the juvenile court erred by failing to fulfill its duty under section

366.26, subdivision (h) by inquiring further of N.P. and L.P., any error was harmless.

       Further, the exception pursuant to section 366.26, subdivision (c)(1)(B)(ii) was not

applicable. The record supports that N.P. wanted to be adopted by the foster mother.

The reports filed by the Department set forth that N.P. wanted to change his name and

was happy that he was being adopted. This report was filed after the juvenile court had

stated at a hearing that it was not sure that N.P. would agree to the adoption. The reports

establish that N.P. did not object to the adoption, and Mother’s speculation that he was

not properly informed as to the consequences of the adoption simply is not supported by

the record.

       The juvenile court properly determined that it was in the children’s best interests

to be freed for adoption.

                                                   III

                    BENEFICIAL PARENT AND SIBLING EXCEPTIONS

       Mother argues that the beneficial parent exception of section 366.26, subdivision

(c)(1)(B)(i) and the sibling exception under section 366.26, subdivision (c)(1)(B)(v)

applied to preclude the termination of her parental rights.

       At the section 366.26 hearing, Mother’s counsel stated that Mother wished to take

care of her children upon release from custody. Mother’s counsel stated, “So I would just

simply at this time object to any termination of parental rights and ask the Court to

consider any exceptions including the parent/child relationship exception, your Honor.”

                                              18
Mother’s counsel provided no further argument and the juvenile court found the

exception was not applicable

       A.     Standard of Review

       At the section 366.26 hearing, the sole issue “‘is whether there is clear and

convincing evidence that the child is adoptable.’ [Citations.]” (In re Josue G. (2003) 106

Cal.App.4th 725, 733; see § 366.26, subd. (c).) “Adoption, where possible, is the

permanent plan preferred by the Legislature. [Citation.]” (In re Autumn H. (1994) 27

Cal.App.4th 567, 573.) If the court finds that a child may not be returned to his or her

parents and is likely to be adopted, it must select adoption as the permanent plan, unless it

finds that termination of parental rights would be detrimental to the child under one of the

seven exceptions set forth in section 366.26, subdivision (c)(1)(A) and (c)(1)(B)(i)

through (v). (See In re Jamie R. (2001) 90 Cal.App.4th 766, 773.)

       Appellate courts have differed on the correct standard of review for determining

the applicability of a statutory exception to termination of parental rights. (Compare,

e.g., In re Autumn H., supra, 27 Cal.App.4th at p. 576 [applying substantial evidence

standard]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [applying abuse of

discretion standard]; In re K.P. (2012) 203 Cal.App.4th 614, 621-622 [applying

substantial evidence standard of review to whether beneficial parent-child relationship

exists and applying abuse of discretion to standard to whether that relationship provides a

compelling reason to apply exception]; accord, In re Bailey J. (2010) 189 Cal.App.4th

1308, 1314.) The “practical differences” among these various standards of review “are



                                             19
not significant” (In re Jasmine D., at p. 1351), and, on this record, our conclusion would

be the same under any one of them.

       B.     Beneficial Parent Exception

       The parental benefit or “beneficial relationship” exception is set forth in section

366.26, subdivision (c)(1)(B)(i). The exception applies where “‘[t]he parents . . . have

maintained regular visitation and contact with the minor and the minor would benefit

from continuing the relationship.’ [Citation.]” (In re Derek W. (1999) 73 Cal.App.4th

823, 826.)

       “The parent must do more than demonstrate ‘frequent and loving contact[,]’

[citation] an emotional bond with the child, or that parent and child find their visits

pleasant. [Citation.] Instead, the parent must show that he or she occupies a ‘parental

role’ in the child’s life.” (In re Derek W., supra, 73 Cal.App.4th at p. 827.) “The

‘benefit’ prong of the exception requires the parent to prove his or her relationship with

the child ‘promotes the well-being of the child to such a degree as to outweigh the well-

being the child would gain in a permanent home with new, adoptive parents.’

[Citations.]” (In re K.P., supra, 203 Cal.App.4th at p. 621.) “‘The burden falls to the

parent to show that the termination of parental rights would be detrimental to the child

under one of the exceptions. [Citation.]’ [Citations.]” (In re C.B., supra, 190

Cal.App.4th at p. 122.)

       Initially, Mother’s visitation with N.P. and L.P. was not consistent. During the

early period of the dependency, Mother visited with N.P. and L.P., but was reported to

not be attentive, spending much of her time on the telephone or talking to the social

                                             20
worker. It was later reported that Mother was sporadic in her visitation. When she did

attend visits, she brought inappropriate gifts, music and movies. Finally, Mother was

incarcerated on February 3, 2012, and had only one visit with the children after her

incarceration.

       Mother blames the lack of visitation on the Department not wanting to have the

children visit her in prison. However, prior to her incarceration, Mother had missed

visitation. Moreover, Mother could blame only herself for becoming incarcerated.

Additionally, when the children visited with her, she told them lies and made them upset.

Throughout the dependency proceedings, Mother did not maintain consistent visitation,

and therefore, fails to meet her burden of establishing the first prong of the parental bond

exception.

       Moreover, even if we were to consider that Mother maintained visitation, she

cannot show that their relationship “‘promotes the well-being of the child to such a

degree as to outweigh the well-being the child would gain in a permanent home with

new, adoptive parents.’ [Citations.]” (In re K.P., supra, 203 Cal.App.4th at p. 621.)

       Here, although Mother had been present for a large portion of the lives of N.P. and

L.P., this did not mean the relationship was beneficial. “The factors to be considered

when looking for whether a relationship is important and beneficial are: (1) the age of

the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive

or negative effect of interaction between the parent and the child, and (4) the child’s

particular needs.” (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.)



                                              21
        Mother had a history of mental illness and she had attempted suicide on two

occasions. During her altercation with stepfather, she showed no concern for N.P.,

pushing him from his chair and hurting his knee. Mother was arrested during the

dependency proceeding for inducing a minor to sell drugs and child endangerment.

Mother’s visits with N.P. and L.P. and her letters to N.P. caused the children to be upset.

Although there was some bond between Mother and N.P. and L.P., she simply did not

occupy a role of a parent. Mother failed to meet her burden of establishing that the

parental bond exception was applicable as to preclude termination of her parental rights.

        C.      Sibling Exception

        Section 366.26, subdivision (c)(1)(B)(v) provides an exception to the termination

of parental rights if the court finds a compelling reason for determining that termination

would be detrimental to the child due to a “substantial interference with a child’s sibling

relationship, . . . ”

        The juvenile court undertakes a two-step analysis in evaluating the applicability of

the sibling relationship exception. First, the court is directed “to determine whether

terminating parental rights would substantially interfere with the sibling relationship by

evaluating the nature and extent of the relationship, including whether the child and

sibling were raised in the same house, shared significant common experiences or have

existing close and strong bonds. [Citation.] If the court determines terminating parental

rights would substantially interfere with the sibling relationship, the court is then directed

to weigh the child’s best interest in continuing that sibling relationship against the benefit



                                             22
the child would receive by the permanency of adoption.” (In re L.Y.L. (2002) 101

Cal.App.4th 942, 951-952.)

       “[T]he concern is the best interests of the child being considered for adoption, not

the interests of that child’s siblings.” (In re Naomi P. (2005) 132 Cal.App.4th 808, 822.)

“Indeed, 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. [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 61.)

       Initially, Mother has waived her claim by failing to raise the exception in the

juvenile court. The party claiming an exception to adoption has the burden of raising the

issue below and by failing to do so “waived the right to raise the issue on appeal.” (In re

Rachel M., supra, 113 Cal.App.4th at p. 1295.)

       Even if we were to consider the claim, it is clear that N.P. and L.P. were bonded to

La.P. However, La.P had severe mental issues and presented a danger to herself and

possibly N.P. and L.P. La.P had spent several years in a psychiatric facility in New

Mexico because she was cutting herself and hearing voices. She was hospitalized during

the dependency proceedings because she cut her own arm. She had also been violent

with a foster child at her placement. La.P presented a real danger to N.P. and L.P.

       Further, La.P was placed with her own father, A.H., and he did not want to take

custody of all of the children. Even after La.P was placed with A.H., it was reported that

she got caught having sex at school and giving other students her psychotropic

medication. La.P’s future was uncertain. Continuing the sibling relationship did not

                                            23
outweigh the benefit N.P. and L.P. would receive by gaining a permanent home through

adoption. (In re Celine R., supra, 31 Cal.4th at p. 61.) The sibling bond exception did

not apply.

                                                  IV

                                    ADOPTABLITY OF N.P.

       Mother’s final claim is that the juvenile court erred by finding that N.P. would be

adopted within a reasonable time.

       We have previously stated that adoption is the permanent plan preferred by the

Legislature. (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) “The juvenile court

may terminate parental rights only if it determines by clear and convincing evidence that

it is likely the child will be adopted within a reasonable time. [Citations.] ‘“‘“Clear and

convincing” evidence requires a finding of high probability. The evidence must be so

clear as to leave no substantial doubt. It must be sufficiently strong to command the

unhesitating assent of every reasonable mind. [Citations]’” [Citations.]’ [Citation.]

Review of a determination of adoptability is limited to whether those findings are

supported by substantial evidence. [Citation.]” (In re Carl R. (2005) 128 Cal.App.4th

1051, 1060-1061; see also In re Asia L. (2003) 107 Cal.App.4th 498, 509-510.)

       General adoptability “focuses on the minor, e.g., whether the minor’s age, physical

condition, and emotional state make it difficult to find a person willing to adopt the

minor.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) “[I]t is not necessary that

the minor already be in a potential adoptive home or that there be a proposed adoptive

parent ‘waiting in the wings.’ [Citations.]” (Ibid.)

                                             24
       “[I]n some cases a minor who ordinarily might be considered unadoptable due to

age, poor physical health, physical disability, or emotional instability is nonetheless likely

to be adopted because a prospective adoptive family has been identified as willing to

adopt the child.” (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) Thus, a child may

be “deemed adoptable based solely on the fact that a particular family is willing to adopt

him or her . . . .” (In re Carl R., supra, 128 Cal.App.4th at p. 1061.)

       Here, N.P. had been with the prospective adoptive mother for a period of nine

months in 2011, and was returned to her care in December 2012. By the time of the

section 366.26 hearing, N.P. had been in the adoptive mother’s care for over six months.

The adoptive mother was excited about adopting N.P. and loved him. The fact that N.P.

was sought to be adopted by the adoptive mother supports that he was adoptable. (In re

Carl R., supra, 128 Cal.App.4th at p. 1061.)

       We disagree with Mother that N.P. suffered from a mental illness that precluded

him from being found generally adoptable. N.P. did have an imagination, but was also

reported as being an avid reader and that he liked science fiction books. N.P. was

enrolled in honor classes at school and was doing well in school. One report requested a

psychological evaluation for N.P. because he was having trouble with socialization and

was aggressive with other children. However, another report stated that an evaluation for

N.P. was denied and not needed. The record does not support a finding that N.P. was so

emotionally unstable as to be found unadoptable. We find the juvenile court properly

determined that both N.P. and L.P. were adoptable.


                                             25
                                                V

                                        DISPOSITION

       The juvenile court’s judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                      RICHLI
                                                               Acting P. J.

We concur:


KING
                          J.


MILLER
                          J.




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