Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD221677, JD221678, JD221679, JD221680.
MORRISON, Acting P.J.
Rosemary G., mother of the minors (appellant), appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395 [further undesignated statutory references are to this code].) Appellant contends there was insufficient evidence the minors were adoptable and in any case, both the sibling and benefit exceptions to termination of her parental rights applied. We affirm.
FACTS
The minors, Anthony, 17 months, Patrick, 4, Desiree, 6, and Destiny, 9, were removed from parental custody in January 2005, after two of the minors were physically abused. All the minors were initially placed together but, due to aggressive and defiant behaviors, they were separated and had multiple placements over the next 12 months. Finally, all four minors were placed with a paternal uncle in February 2006. When the parents failed to reunify, the court terminated services in February 2007 and set a section 366.26 hearing to select a permanent plan for the minors.
Three months later, the minors were removed from the paternal uncle’s care pursuant to a supplemental (§ 387) petition. At a combined section 366.26 and section 387 hearing, the juvenile court sustained the section 387 petition, found termination of parental rights would not be detrimental but that the minors were hard to place due to their ages and the sibling group. Although initially placed together after removal, the minors were again separated with the two boys in one home and the two girls in another. In October 2007, all the minors were placed out of county in a proposed foster/adoptive home.
During this time, appellant gave birth to a fifth child, Madison.
The report for the continued section 366.26 hearing stated that appellant rarely called or contacted the minors when they lived with the paternal uncle and her visits had been sporadic after the minors were returned to foster care. While the minors rarely asked about appellant they were upset when she failed to appear for visit. Three of the four minors were on medication for attention deficit hyperactivity disorder. All four minors were in therapy. Desiree had shown improvement in controlling her anger and impulsive behavior; Anthony was working on his aggression issues; Patrick was working on self-esteem issues; and Destiny was dealing with loss and abandonment. Destiny was excited about the prospect of adoption. All four minors liked the prospective adoptive parents and wanted to live with them. Although three of the children were more than seven years old, the social worker believed the minors were generally adoptable because they had no serious behavioral problems or significant medical issues which made them difficult to place. The social worker noted there had been little difficulty in finding a home for the sibling group and believed that if the current placement did not work for some reason, another placement could be found. There was an approved home study for the current placement and all the minors said they wanted to be adopted.
At the hearing in November 2007, minors’ counsel told the court that the minors had thought carefully about the proposed permanent plan. Counsel stated Destiny was old enough to object to adoption but wanted a permanent home, not guardianship or foster care, and Desiree felt the same.
Appellant testified, explaining her missed monthly visits with the minors was due in part to her pregnancy and stated she did not agree with adoption as a permanent plan. She testified she did want an opportunity to raise her children but ultimately wanted whatever was best for them. Neither appellant nor her counsel raised the potential of any exception to the plan of adoption. The court adopted the recommended plan, terminating parental rights and freeing the minors for adoption.
DISCUSSION
I
Appellant argues there was insufficient evidence the minors were likely to be adopted within a reasonable time because the four children in the sibling group have behavioral and developmental problems and they have been in the prospective adoptive placement only a short time.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
“If the court determines, based on the assessment . . . and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.” (§ 366.26, subd. (c)(1).)
Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) “[T]here must be convincing evidence of the likelihood that the adoption will take place within a reasonable time.” (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) The fact that a prospective adoptive family is willing to adopt the minor is evidence that the minor is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
It is only if the characteristics of the child make it so difficult to find a family willing to adopt the child that the child is likely to be adopted only if the prospective adoptive parents are willing to do so that any inquiry into the existence of a legal impediment to adoption by the prospective adoptive parents may be relevant at the section 366.26 hearing. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650; In re Scott M. (1993) 13 Cal.App.4th 839, 844; Fam. Code, § 8600 et seq.) “General suitability to adopt is a subjective matter which does not constitute a legal impediment to adoption.” (In re Scott M., supra, at p. 844.)
Three of the minors of the sibling group of four, were somewhat older than what many consider a “good” age for adoption and each of the minors was in therapy for various issues. However, each minor was showing improvement, there currently were no serious behavior problems, and each minor expressed a desire for the permanency of adoption. The social worker had found a prospective adoptive home for the sibling group fairly quickly and believed it would not be difficult to find another if necessary. The prospective parents had been dealing with the minors for several weeks by the time of the hearing and appeared to be committed to them. It is always possible to speculate on possible future scenarios of disaster, however, based upon the current facts, substantial evidence supported the juvenile court’s finding that the minors were likely to be adopted.
II
Appellant contends that either the sibling exception or the benefit exception to the preference for adoption was established and the court therefore erred in terminating parental rights. We note at the outset that neither exception was raised in the juvenile court and the issues have been forfeited. (In re S. B. (2004) 32 Cal.4th 1287, 1293, fn. 2; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) In any case, even if the issues had been properly presented to the juvenile court, appellant could not have prevailed.
“‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption.’” “If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) (Original italics.) There are only limited circumstances which permit the court to find a “compelling reason for determining that termination of parental rights would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Melvin A. (2001) 82 Cal.App.4th 1243, 1252; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; Cal. Rules of Court, rule 5.725(e)(3); Evid. Code, § 500.)
(a) Benefit Exception
One of the circumstances in which termination of parental rights would be detrimental to the minor is: “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).) The benefit to the child must promote “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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Even frequent and loving contact is not sufficient to establish this benefit absent a significant positive emotional attachment between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Brian B. (1991) 2 Cal.App.4th 904, 924.)
Here, appellant could not have sustained her burden of showing regular visitation and contact with the children. As the social worker’s report quoted Destiny’s reaction to appellant’s failure to appear at yet another visit: “She never comes.” Absent regular contact, appellant could not have established the elements of the exception even if there had been evidence that the minors had a positive emotional attachment to her. Such evidence was not before the court.
(b) Sibling Exception
A second circumstance under which termination of parental rights would be detrimental is 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).)
The court must consider the interests of the adoptive child, not the siblings, in determining whether termination would be detrimental to the adoptive child. (In re Celine R. (2003) 31 Cal.4th 45, 49-50; In re Daniel H. (2002) 99 Cal.App.4th 804, 812.) “To show a substantial interference with a sibling relationship the parent 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.” (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952; fn. omitted.)
The sibling exception clearly does not apply to the four minors who are the adoptive children since they are placed together and termination of parental rights will not sever the sibling bonds. Speculation that the siblings will be separated should the placement fail does not constitute evidence of an exception to the preference for adoption as a permanent plan. To the extent appellant argues the sibling exception with respect to her baby, Madison, she cannot establish the statutory factors which would demonstrate the existence of any meaningful sibling relationship between the baby and any of the adoptive children. The juvenile court did not err in failing to apply either exception and properly terminated parental rights.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: ROBIE, J., CANTIL-SAKAUYE, J.