Filed 8/17/15 In re N.H. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.H. et al., Persons Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,                                            E062975

         Plaintiff and Respondent,                                       (Super.Ct.No. J252325)

v.                                                                       OPINION

S.F.,

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,

Judge. Affirmed.

         Jack A. Love, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for

Plaintiff and Respondent.

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        Defendant and appellant S.F. (mother) appeals the trial court’s February 24, 2015,

order terminating her parental rights to two of her six children pursuant to Welfare and

Institutions Code1 section 366.26. She contends the court erred in finding the sibling

bond exception to adoption (§ 366.26, subd. (c)(1)(B)(v)) inapplicable. We affirm.

                    I. FACTUAL AND PROCEDURAL BACKGROUND

        In October 2013, mother’s children (I.L., age 15; J.L., age 12; E.L., age 9; R.F.,

age 6 (sometimes collectively referred to as “half siblings”); W.H., age 2 (born August

2011); and N.H., age 1 (born September 2012)2) came to the attention of San Bernardino

Children and Family Services (CFS), after CFS received referrals indicating the children

were left unsupervised without food, mother was abusing drugs and alcohol, and her

boyfriend may have been selling drugs out of the home. On December 5, 2013, CFS

filed petitions on behalf of all of the children pursuant to section 300, subdivisions (b)

(failure to protect) and (g) (failure to provide for children), alleging that mother had a

substance abuse problem and a history of domestic violence.3 On December 6, 2013, the

trial court found a prima facie case under section 300 and detained the children with

mother.

        1   All further undesignated statutory references are to the Welfare and Institutions
Code.

        W.H. and N.H. share the same “alleged” father, who was not involved in the
        2
proceedings and is not a party to this appeal.

        3 Where sibling documents are redundant, this opinion will cite to only one
sibling record in the clerk’s transcript and not the other.


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       On January 15, 2014, CFS filed an amended section 300 petition adding

allegations that the family home was dirty and mother was at risk of being arrested for

one child’s lack of attendance at school. The children were taken into protective custody.

J.L., E.L., and R.F. were placed with a maternal aunt, while I.L., W.H., and N.H. were

placed in a foster home. On January 16, the court detained the children and ordered

supervised visitation with mother, as well as sibling visitation. At the

jurisdiction/disposition hearing, the court sustained the allegations in the section 300

petition and ordered reunification services.

       According to the six-month status review report, mother was not complying with

her case plan and had visited the children only through mid-March 2014. By April,

mother’s whereabouts became unknown. The siblings consistently visited with each

other except for April and May 2014. On August 19, 2014, based on CFS’s

recommendation, the court terminated reunification services and set a section 366.26

hearing.

       According to the section 366.26 report filed on December 3, 2014, the children

were in good physical health; however, there had been multiple changes in their

placements. W.H. and N.H. had lived in four different homes for periods of time ranging

from one to five months. Although they had only been in their current placement since

October 27, 2014, the caregiver wanted to adopt them and was willing to maintain the

sibling relationship through regular visitation. W.H.’s and N.H.’s older half siblings

were not in adoptive homes and they did not want to be adopted or separated due to their


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strong sibling bond. CFS noted that mother had visited the children four times since

August 2014; however, she was overwhelmed when all six children were together and

relied on the two older children to manage the behaviors of their younger siblings.

       On December 17, 2014, the children’s attorney declared a conflict and new

attorneys were appointed, one for W.H. and N.H., and one for their half siblings. A

contested section 366.26 hearing was set.

       On January 26, 2015, the half siblings filed a section 388 petition requesting the

trial court to order legal guardianship, instead of adoption, for W.H. and N.H. The

petition asserted that the “benefit of retaining the sibling relationship outweighs the

benefit of being adopted.” They claimed the siblings had forged a bond by sharing

adverse family conditions, and the bond was strengthened by the older children taking

care of the younger ones. In opposition, CFS argued that it would be unfair to deny W.H.

and N.H. an opportunity to achieve permanency when their prospective adoptive parent

was maintaining the sibling relationship through visitation and contacts between the

siblings. The caregiver understood the importance of W.H.’s and N.H.’s relationship

with their older siblings. The trial court denied an evidentiary hearing on the section 388

petition, finding “the proposed change of order does not promote the best interest of

[W.H. and N.H.] because it appears that the sibling bond is not going to be terminated

because of the prospective adoptive parent’s willingness to make sure that [W.H. and

N.H.] continue to see their brothers.”




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       At the February 24, 2015, contested section 366.26 hearing, the trial court ordered

legal guardianship for I.L., and the dependency was terminated on her case. J.L., E.L.

and R.F. were placed together; the court found termination of parental rights would be

detrimental to those children because there would be a substantial interference with the

sibling bond relationship.

       Regarding W.H. and N.H., mother objected to termination of parental rights

because she did not “want to lose [her] kids” and she believed they had an attachment to

her other children. Mother said that during visits, W.H. and N.H. would run to their

siblings and everyone played together. N.H. liked to be held by his half siblings and

W.H. would give them “kisses and hugs.” Mother stated that when the children lived

with her, the older ones helped take care of the youngest. Mother described the past

sibling relationship as “[r]eally strong,” explaining “they love each other a lot.”

       The trial court found W.H. and N.H. were adoptable and that the parent-child

relationship exception to termination of parental rights did not apply. Regarding the

sibling bond exception, the court noted that W.H. and N.H. had not lived with their half

siblings for a “good portion” of their lives; they had “not shared significant common

experiences,” and their caregiver was willing to maintain the sibling relationship through

visits. Finding the sibling bond exception inapplicable, the court terminated the parental

rights to W.H. and N.H. and ordered adoption as the permanent plan.




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                                     II. DISCUSSION

       Mother contends the court erroneously refused to apply the sibling relationship

exception to adoption preference. We find no error.

A. Applicable Law

       At a section 366.26 permanency planning hearing, the juvenile court determines a

permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38,

50.) Permanent plans include adoption, guardianship, and long-term foster care. (In re

S.B. (2008) 164 Cal.App.4th 289, 296.) Adoption involves terminating the legal rights of

the child’s natural parents, but guardianship and long-term foster care leave parental

rights intact. (In re Autumn H. (1994) 27 Cal.App.4th 567, 574.) “‘Guardianship, while

a more stable placement than foster care, is not irrevocable and thus falls short of the

secure and permanent future the Legislature had in mind for the dependent child.’

[Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 53.) Adoption, where possible, is the

preferred permanent plan. (In re Autumn H., supra, at p. 573.)

       “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).) ‘[T]he burden is on the party

seeking to establish the existence of one of the section 366.26, subdivision (c)(1)




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exceptions to produce that evidence.’ [Citation.]” (In re Bailey J. (2010) 189

Cal.App.4th 1308, 1314 (Bailey J.).)

       “The sibling relationship exception applies where the juvenile court finds that

‘substantial interference with a child’s sibling relationship’ is a ‘compelling reason’ to

conclude that adoption would be detrimental to the child. In making this determination,

the court should take 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).)” (Bailey J., supra, 189

Cal.App.4th at p. 1317.) The mere existence of a sibling relationship is not enough to

apply the exception; the relationship must be “sufficiently significant” to cause detriment

upon its termination; otherwise, there is “no substantial interference” with the sibling

relationship. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952.)

       “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.” (In re L. Y. L., supra, 101 Cal.App.4th. at pp. 952-953.)




                                              7
B. Standard of Review

       Appellate courts have traditionally applied either the substantial evidence test or

the abuse of discretion test in considering challenges to juvenile court determinations of

whether one or more of the statutory exceptions to adoption preference applies. (In re

Scott B. (2010) 188 Cal.App.4th 452, 469.) There is little, if any, practical difference

between the two. (Ibid.) As explained in In re Jasmine D. (2000) 78 Cal.App.4th 1339:

“‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the

sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial

judge. The reviewing court should interfere only “‘if [it] find[s] that . . . no judge could

reasonably have made the order that he did.’ . . .”’ [Citations.]” (Id. at p. 1351.)

       More recently, courts have applied a composite standard of review, recognizing

that the determination whether an adoption exception applies entails both factual and

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

[substantial evidence standard applies to court’s factual determination whether a

beneficial relationship exists, and abuse of discretion standard applies to court’s

discretionary determination whether there is a compelling reason to apply the exception];

accord, In re K.P. (2012) 203 Cal.App.4th 614, 621-622; In re J.C. (2014) 226

Cal.App.4th 503, 530-531.)

C. Analysis

       In considering the sibling bond exception, the trial court considered the

prospective parent’s intent to maintain contact between W.H. and N.H. and their older


                                              8
siblings. Such consideration was appropriate. (In re Daisy D. (2006) 144 Cal.App.4th

287, 293; In re Salvador M. (2005) 133 Cal.App.4th 1415, 1422.) Here, the prospective

adoptive parent was committed to ongoing sibling visitation as demonstrated by her

facilitating sibling visits during the case. Mother’s claims to the contrary are not

supported by the record. Thus, she has failed to show that the termination of her parental

rights would substantially interfere with W.H.’s and N.H.’s relationship with their

siblings. (§ 366.26, subd. (c)(1)(B)(v).)

       Additionally, the record demonstrates other reasons why the sibling bond

exception does not apply. As the trial court observed, W.H. and N.H. had not lived with

their siblings for a “good portion” of their lives, and they had “not shared significant

common experiences.” W.H. was 29 months old and N.H. was 16 months old when they

were removed from mother’s care. As such, their memories, if any, of events shared with

their siblings are limited. W.H. and N.H. were toddlers who barely knew their half

siblings. While mother places great weight on the excitement W.H. and N.H. expressed

when visiting their siblings, such evidence merely shows that the siblings are good

playmates, not that they are intensely bonded to each other.

       Moreover, the best interests and long-term emotional interests of W.H. and N.H.

are better served by adoption. (§ 366.26, subd. (c)(1)(B)(v).) At the time parental rights

were terminated, W.H. was three years old and N.H. was two years old. Due to their

young ages, they needed more care than their older half siblings. They quickly bonded

with their caregiver, calling her mom. To impose a less permanent plan upon them


                                              9
would expose them to 15 more years of foster care and possible placement changes.

After parental rights are terminated, the objective is permanence and stability, best

advanced through adoption. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

       In sum, the court reasonably determined there was no compelling reason to apply

the sibling relationship exception.

                                      III. DISPOSITION

       The orders terminating parental rights and placing the W.H. and N.H. for adoption

are affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                HOLLENHORST
                                                                         Acting P. J.
We concur:

       MILLER
                                 J.

       CODRINGTON
                                 J.




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