Filed 4/2/15 In re J.M. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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.M. et al., Persons Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,                                            E061714

         Plaintiff and Respondent,                                       (Super.Ct.Nos. J216493 & J296494)

v.                                                                       OPINION

A.Y. et al.,

         Defendants;

A.M. et al.,

         Appellants.



         APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,

Judge. Affirmed.

         Sharon S. Rollo, under appointment by the Court of Appeal, for Appellants.

         Jean-Rene Basle, County Counsel, and Regina A. Coleman, Assistant County

Counsel, for Plaintiff and Respondent.

                                                             1
       Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant,

A.Y.

       Liana Serobian, under appointment by the Court of Appeal, for Defendant, C.M.

       Appellants and minors Andrew M. (Andrew) and K. M. (K.) appeal from the

juvenile court’s order terminating parental rights with regard to their younger siblings,

Paige M. (Paige) and Jenna M. (Jenna). On appeal, Andrew and K. argue that the sibling

relationship exception (Welf. and Instit. Code, § 366.26, subd. (c)(1)(B)(v)) applied. The

parents, C.M. (father) and A.Y. (mother), filed separate appellate briefs also arguing that

the sibling relationship exception applied, and they join in Andrew’s and K.’s brief.

Father also joins in mother’s brief. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       On August 7, 2010, the San Bernardino County Children and Family Services

(CFS) filed section 300 petitions1 on behalf of Jenna, Paige, K., Andrew, and V. M. (the

children). At the time, Jenna was three years old, Paige was four years old, K. was five

years old, Andrew was eight years old, and V. M. (V.) was nine years old. The petition

alleged that the children came within section 300, subdivisions (b) (failure to protect) and

(g) (no provision for support). The petitions included the allegations that mother and

father (the parents) had failed to provide adequate housing, food, clothing, and medical

treatment for the children, and that the parents’ whereabouts were unknown.



       1  Where the records for each child are duplicative, the first such record appearing
in the transcript will be cited.


                                             2
       Detention

       The social worker filed a detention report and stated that the children were

removed on August 8, 2007. At the time of removal, mother and the children had been

residing in a local park for four days. Two of the children appeared to be ill with chicken

pox. All of the children had varying degrees of sunburn, and they were extremely dirty.

The children were hungry.

       At a detention hearing on August 13, 2007, the court found a prima facie case to

detain the children.

       Jurisdiction/disposition

       The social worker filed a jurisdiction/disposition report on August 29, 2007,

recommending that the court declare the children dependents and provide both parents

with reunification services. The social worker reported that the children were placed

together in a foster home and were adjusting well.

       A contested jurisdiction/disposition hearing was held on September 12, 2007. The

matter was set contested by the parents, and the court ordered the parents and social

worker to participate in mediation. Neither parent went to mediation. On October 2,

2007, the court sustained the petition and declared the children dependents of the court.

The court found father to be the presumed father of the children. The court also ordered

the parents to participate in reunification services and visitation.

       Six-month Status Review

       The social worker filed a six-month status review report on April 2, 2008,

recommending that the parents continue to receive services. The parents were


                                               3
participating in substance abuse treatment, parenting education, and anger management.

The children remained placed together in the same foster home. Mother visited them on

a consistent basis, but father did not. The court continued the children as dependents and

continued the parents’ reunification services.

       12-month Status Review

       The social worker filed a 12-month status review report on September 12, 2008,

recommending that the children remain in their placement and the parents continue to

receive services. The children were still in the same foster care home together. The

parents were actively participating in their case plans. The court maintained the children

in their foster placement and continued reunification services.

       18-month Status Review

       The social worker filed an 18-month status review report on March 6, 2009, and

recommended that reunification services be terminated and a section 366.26 hearing be

set. The social worker reported that father experienced a relapse and tested positive for

illegal drugs on February 25, 2009. Furthermore, the parents had not been able to obtain

a residence that provided a safe environment for the children. Thus, due to the parents

exhausting the time limit for reunification services, the social worker recommended that

services be terminated and a section 366.26 hearing be set to establish a permanent plan

of legal guardianship. The social worker reported that the children had adjusted well to

their current foster home, and the concurrent plan would be legal guardianship with the

current caretakers, as a sibling group. The social worker stated that a possible alternative

plan would be adoption, but noted that adoption of such a large sibling group by one


                                             4
family would be difficult. Nonetheless, any alternative plan would have to keep the

siblings together, since they were bonded. The social worker opined that it would be

detrimental to separate them. At a hearing on April 9, 2009, the court found that the

parents had failed to complete the court-ordered treatment plan, and that custody by the

parents would create a substantial risk of detriment. The court further noted that the

statutory time for reunification had lapsed. The court terminated reunification services,

maintained the children in their current placement, and set a section 366.26 hearing.

       On July 9, 2009, at a nonappearance review hearing, CFS requested a change in

plan from guardianship to a Planned Permanent Living Arrangement (PPLA) due to the

fact that the current foster parents were no longer willing or able to take guardianship of

the children. The court ordered the children maintained in the current foster home under

a PPLA and continued the matter.

       Section 366.3 Postpermanent Review

       The social worker filed a section 366.3 post permanent plan review report on July

31, 2009, and recommended the children remain in a PPLA. The current foster parents

were no longer willing to go through with the guardianship, based on the loss of funding

with the change of plan. The children had been placed together in the same foster home

since their removal in August 2007, and they appeared to have a strong bond. The social

worker continued to pursue a more permanent plan, such as possible placement with

relatives.

       At a permanency planning hearing on August 11, 2009, the court continued the

children as dependents. It also found the permanent plan of placement in the current


                                             5
foster home with the specific goal of “independent living with identification of a caring

adult to serve as a lifelong connection” was appropriate.

       The social worker filed another status review report dated February 9, 2010,

stating that the current plan of PPLA remained appropriate. At the hearing on February

9, 2010, the court ordered the children maintained in their current placement.

       The social worker filed a status review report dated August 9, 2010, and stated that

the current plan of PPLA remained appropriate. However, the social worker reported

that, due to a referral alleging physical abuse, the children were moved on July 17, 2010,

to a different placement. They were now in the R. foster home. The prior foster parents

denied any abuse and were still willing to take the children back if the allegations were

determined to be unfounded. They were willing to take guardianship of all the children.

At a hearing on August 9, 2010, the court ordered the permanent plan of placement in the

R. foster home with the “specific goal of independent living with identification of a

caring adult to serve as a lifelong connection.”

       The social worker filed a status review report dated February 9, 2011,

recommending that the current PPLA for the children continued to be appropriate. The

social worker noted that the children had been placed together since their initial removal,

that they all had very close relationships, and that it was appropriate for them to remain

placed together. At the hearing on February 9, 2011, the court maintained in the children

in the R. home.




                                             6
       The social worker filed another status review report dated August 9, 2011, again

noting that the children had close relationships and kept each other out of trouble. The

court ordered that the children continue to stay in the R. foster home.

       In a status review report dated February 9, 2012, the social worker reported that

the children continued to do well in the R. home. The current foster parents were

considering adoption of the children. The children had not visited with either parent

since the last reporting period, since the parents’ whereabouts were again unknown. At

the hearing on February 9, 2012, the court found that the children’s current placement

remained appropriate.

       The social worker filed a status review report dated August 3, 2012, and

recommended that the court set a section 366.26 hearing. The children had still had no

contact with the parents. The current foster parents had requested to obtain legal

guardianship with the children. The social worker opined that the children were bonded

with each other and that separating them at that time would be detrimental to their well-

being. At a hearing on August 10, 2012, the court found that the current PPLA plan was

no longer appropriate, and it modified the permanent plan to legal guardianship. The

court continued the matter for a section 366.26 hearing. However, on September 21,

2012, the social worker informed the court that the current caregiver was no longer

interested in seeking legal guardianship. Thus, the court vacated the section 366.26

hearing.

       The social worker filed a status review report dated February 8, 2013 and noted

that the PPLA previously ordered by the court continued to be the appropriate permanent


                                             7
plan for the children. Although the foster mother again requested legal guardianship, the

children all stated they did not want legal guardianship with the current foster family.

The children were no longer happy in the home. V. ran away from the foster home and

was subsequently placed with the maternal stepgrandmother on September 25, 2012. The

other children continued to live in the R. family home. However, they believed that if the

foster mother was to take legal guardianship of them, they would no longer be able to

have contact with V. and the maternal stepgrandmother, since the foster mother refused

to have contact with them. The social worker was assessing the situation and opined that

it might be necessary to move the children to be closer to V. and the maternal step-

grandmother.

       On January 24, 2013, Andrew, K., Paige, and Jenna were moved out of the R.

family home. Andrew was moved to the maternal stepgrandmother’s home, where V.

was living. The three other children were moved together to the B. foster family home.

The B. family home was closer to the maternal stepgrandmother’s home, making it easier

to facilitate visits between the siblings. On February 8, 2013, the court approved the

separate placements.

       On May10, 2013, CFS reported that the maternal stepgrandmother had moved out

of the family home, leaving V. and Andrew with other family members. The maternal

stepgrandmother had been arguing with V. regularly. Placement was changed to

extended family members, Mr. and Mrs. R., who resided at the same address.




                                             8
       On June 19, 2013, CFS notified the court that it was suspected that Jenna, Paige,

and K. may have been sexually abused while in a previous foster home. A forensic

interview and exam were set for June 24, 2013.

       On July 11, 2013, a section 387 supplemental petition was filed concerning

Andrew. His current caregivers requested that he be removed from their home, due to his

inappropriate behavior and failure to follow the house rules. The court removed him

from the home and placed him in the C. foster home. The following week, K. was also

moved to the C. foster home, due to behavior issues.

       The social worker filed a status review report dated August 9, 2013, and explained

that K., Paige, and Jenna were previously in the B. home together; however, K. started

threatening Paige and attempted to drown her at the beach. Jenna had to pull Paige from

the water. Furthermore, K. had been taking her own things and placing them with

Paige’s things and saying that Paige was stealing. On July 14, 2013, K. gave a suicide

note to the foster parent. Law enforcement was called, and it was determined that K. was

not a threat to herself or her siblings. K. reported that she did not want to live with Paige

and Jenna. She was moved to the C. foster home where Andrew resided, in order to

separate her from them. Thus, Andrew and K. were placed together in the C. foster

home, Jenna and Paige were placed together in the B. foster home, and V. was in the

home of Mr. and Mrs. R. The social worker reported that all the children had open phone

contact and at least two visits a month.

       At the hearing on August 9, 2013, the court ordered the children to be maintained

in their respective foster homes.


                                              9
       On August 19, 2013, Paige and Jenna were moved to the C. foster home with

Andrew and K., after a referral alleged that foster mother B. had inflicted emotional

abuse on K., when she was living in that home.

       The social worker next filed a status review report dated February 7, 2014, and

recommended that a section 366.26 hearing be set to order legal guardianship for V. and

adoption for Andrew, K., Paige, and Jenna. All of the children had requested adoption

with their current caregivers, except V., who requested legal guardianship with Mr. and

Mrs. R. The court set a section 366.26 hearing for June 9, 2014, to determine the most

appropriate plan.

       Section 366.26 and Section 388

       The social worker filed a section 366.26 report on June 3, 2014. The social

worker recommended that the permanent plan for K., Paige, and Jenna be adoption. As

to Andrew, the social worker recommended that he remain in his current placement with

a PPLA. Andrew indicated that he wanted to remain living with his current caregivers,

but did not want the court to order adoption as his permanent plan. However, K., Paige,

and Jenna all stated that they wanted to be adopted by the current caregivers.

       At the section 366.26 hearing on June 9, 2014, the parents set the matter contested.

The social worker informed the court that V. now wanted to be adopted.

       The court held a hearing on July 2, 2014, with regard to V. The court terminated

parental rights and ordered adoption as the permanent plan. The court set a hearing for

August 4, 2014, for the other children.




                                            10
       The social worker filed an addendum report dated August 4, 2014, and

recommended with regard to Paige and Jenna, that parental rights be terminated and

adoption be ordered as the permanent plan. The social worker recommended that

Andrew and K. remain in a PPLA with the R. family. The social worker explained that

Andrew and K. had been placed in the R. family home with V. after an incident where

Andrew had become angry and aggressive with his foster mother. She requested him to

be removed from her home (the C. foster home). K. was then no longer interested in

being adopted with the C. family either. The social worker further noted that Paige and

Jenna had expressed their desires to remain in their current foster home and for the

adoption with their current foster parents to proceed. Paige and Jenna also stated that

they felt intimidated by their older siblings, V., Andrew, and K. Paige and Jenna

requested supervised visits and supervised phone calls with their siblings, so they would

not have to “feel intimidated or demoralized by their older siblings.” Paige and Jenna felt

like they were being harassed by their older siblings. They stated that once their

adoptions were finalized, they would be able to have sibling outings again, like day-long

beach trips.

       On August 8, 2014, Andrew and K. filed a section 388 petition requesting the

court to modify its order setting a section 366.26 hearing and to limit the permanent plan

for Paige and Jenna to legal guardianship or a PPLA. Rather than specifying the changed

circumstances and best interests of the child on the section 388 form, Andrew and K.

filed an attachment with the petition. The attachment did not state any changed

circumstances, but only asserted that their request was made in Paige’s and Jenna’s best


                                            11
interests. Andrew and K. alleged that they had lived together most of their lives, that

they had taken a protective role with their younger siblings, and that their sibling

relationships were important since they provided the only stability the children had.

Andrew and K. alleged that permanent separation from them would be detrimental to

their younger siblings.

       The court held a hearing on August 11, 2014. Following testimony from Andrew

and K., the court granted the section 388 petition in order to give Andrew and K. standing

to object to the adoption of Jenna and Paige and to present evidence at the section 366.26

hearing. The court then proceeded with the section 366.26 hearing. The court noted that

what made its decision difficult was that all of the children were articulate, and they all

knew what they wanted. However, the court stated that the question was whether

termination of parental rights or adoption would be detrimental to Paige and Jenna. The

court noted that they were 10 and 11 years old, and that they were currently in a home

where they wanted to be adopted by the caregivers. The court recognized there was a

sibling bond with their older siblings, but decided that the sibling bond did not override

the benefits of permanency and adoption. The court remarked that Paige and Jenna had

basically been in the system their whole lives, that they were now at an age where they

were able to make decisions regarding whether they wanted to be adopted, and that they

clearly wanted to be adopted. The court proceeded to terminate parental rights, as it was

in the best interests of Paige and Jenna. The court added that it hoped the prospective

adoptive parents would allow visitation and perhaps counseling with Andrew and K. “so

that there is some kind of repair of that relationship that has been damaged.” The court


                                             12
stated that there were perhaps some communication issues or jealousy between the

siblings, and that it was hopeful that there could be a relationship between Paige and

Jenna and their siblings at some point. The court further noted that Andrew and K. had

not met their burden of showing that termination of parental rights as to Paige and Jenna

would be detrimental or create a substantial interference with the sibling relationship.

The court then ordered adoption as the permanent plan for Paige and Jenna.

                                            ANALYSIS

                       The Sibling Relationship Exception Did Not Apply

       Andrew, K., and the parents contend that the court erred in failing to apply the

sibling relationship exception under section 366.26, subdivision (c)(1)(B)(v). We

conclude that the sibling relationship exception did not apply here.

       The sibling relationship exception applies when “[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).)

“[T]he sibling relationship exception contains strong language creating a heavy burden

for the party opposing adoption. It only applies when the juvenile court determines that

there is a ‘compelling reason’ for concluding that the termination of parental rights would

be ‘detrimental’ to the child due to ‘substantial interference’ with a sibling relationship.”


                                             13
(In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) “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 the child would receive by the permanency of adoption.” (In re L.Y.L. (2002)

101 Cal.App.4th 942, 952 (L.Y.L.).)

       To show a substantial interference with a sibling relationship, the party opposing

adoption “must show the existence of a significant sibling relationship, the severance of

which would be detrimental to the child. Many siblings have a relationship with each

other, but would not suffer detriment if that relationship ended. If the relationship is not

sufficiently significant to cause detriment on termination, there is no substantial

interference with that relationship.” (L.Y.L., supra, 101 Cal.App.4th at p. 952.)

       The evidence here showed that all the siblings, in general, had close bonds. By the

time of the section 366.26 hearing, Andrew, K., Paige, and Jenna had lived together for

most of their lives. When they were not living together, they visited each other regularly.

They had similar experiences while living in the same foster homes, and they had been

through the dependency process together. However, their relationships were not always

positive. In August 2013, the social worker reported that K. started threatening Paige and

attempted to drown her at the beach. It was also reported that K. had been taking her own

things and placing them with Paige’s things, and then she accused Paige of stealing.

Moreover, K. expressed that she did not want to live with Paige and Jenna. Thus, she

was moved to the C. foster home where Andrew resided, in order to separate her from

them. Additionally, Paige and Jenna reported that they felt intimidated, disturbed, and


                                             14
demoralized by Andrew and K. to the point that they requested supervised visits and

phone calls with their siblings. As the court noted, the relationships between Andrew and

K., and Paige and Jenna, were damaged and needed to be repaired.

       Furthermore, Andrew and K. failed to meet their burden of showing that

termination of parental rights would be detrimental to Paige and Jenna. “[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.” (In re Celine R. (2003) 31

Cal.4th 45, 54 (Celine R.).) At the section 388 hearing, Andrew merely testified that he

would be “heartbroken” if he had to wait until he was 18 to see his siblings, because he

wanted to see how they were growing up. When the court asked K. how it would change

her life if Paige and Jenna were adopted, K. said, “It would be really sad. We hardly see

them now.” Other than Andrew and K. being sad, there was no evidence of any

detriment to anyone.

       “Moreover, even if a sibling relationship exists that is so strong that its severance

would cause the child detriment, the court then weighs the benefit to the child of

continuing the sibling relationship against the benefit to the child adoption would

provide.” (L.Y.L., supra, 101 Cal.App.4th at pp. 952-953.) Here, if parental rights were

terminated, Paige and Jenna would gain a permanent home through adoption. If parental

rights were not terminated, Paige and Jenna would lose the permanent home their

prospective adoptive parents were ready to provide for them. There was no chance that

the parents would reunify with the children, since the statutory time for reunification had

lapsed and the court had terminated their reunification services in 2009. Thus, valuing


                                             15
Andrew’s and K.’s continuing relationships with their younger siblings over adoption

would deprive Paige and Jenna of the ability to belong to a family. As the court noted,

Paige and Jenna clearly wanted to be adopted. They were happy in their current home

and said they did not want to live anywhere else.

       Finally, we note Andrew’s and K.’s assertion that they were not asking for Jenna

and Paige to be moved from their placement to another home. Rather, they were

asserting that the court should have ordered a plan of legal guardianship, so that it could

enforce an order for sibling contact. Andrew and K. add that the prospective adoptive

parents had discontinued sibling contact before the section 366.26 hearing. It is unclear

whether the prospective adoptive parents would allow postadoption visits between the

siblings. Nonetheless, at this point in the proceedings, the focus was Jenna’s and Paige’s

need for permanency and stability. (Celine R., supra, 31 Cal.4th at p. 52.) Moreover, the

legislative preference is for adoption. (Id. at p. 53.)

       Considering that Jenna and Paige had lived in numerous foster homes over the

course of this lengthy dependency, and that they clearly wanted to be adopted by their

current caregivers, we conclude that the benefits of adoption outweighed the benefits of

continuing their relationships with Andrew and K.




                                              16
                                DISPOSITION

       The order is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                 HOLLENHORST
                                                           Acting P. J.


We concur:


KING
                          J.


MILLER
                          J.




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