Opinion
F043346.
11-19-2003
In re CRYSTAL A. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CARMEN R., Defendant and Appellant.
Kathleen M. Mallinger, under appointment by the Court of Appeal, for Defendant and Appellant. Phillip S. Cronin, County Counsel, and W. Richard Bailey, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Carmen R. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her daughters, Crystal (born in August 1997) and Teresa (born in July 1999). Appellant contends the court erred by not finding termination would be detrimental based on their sibling relationship. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Crystal and Teresa are appellants youngest of five children. In May 2002, respondent Fresno County Department of Children and Family Services (the department) detained all five children after 12-year-old Elvira, appellants oldest child, brought appellants drug paraphernalia to the school drug prevention officer. In turn, the department initiated these dependency proceedings under section 300, subdivision (b).
Elvira, Crystal and Teresa were placed in foster care, while appellants remaining two children were placed with their father. Elvira and Crystal initially lived in one foster home. Teresa lived in another.
After numerous continuances, the superior court in December 2002 adjudged the three sisters dependent children of the court and removed them from appellants custody. Due to appellants extensive history of drug abuse and resistance to prior court-ordered drug treatment, the court denied her reunification services (& sect; 361.5, subd. (b)(13)) and set a section 366.26 hearing to select and implement permanent plans for the three girls.
In anticipation of the section 366.26 hearing, the department prepared a report recommending that the court find Crystal and Teresa adoptable and terminate parental rights. Crystals and Teresas respective foster families wished to adopt them. The department recommended long-term foster care for Elvira.
At a hearing in early June 2003, minors counsel, on behalf of Elvira specifically, requested a consortium referral to reach a written agreement on sibling visitation. Counsel explained that Elvira wanted to maintain a sibling relationship with her younger sisters. The court ordered the referral and then made its permanent plan order of long-term foster care for Elvira.
The court eventually conducted the section 366.26 hearing for Crystal and Teresa in mid-June 2003. Days before the hearing, appellants trial counsel filed an issue statement advising the court that appellant contested the departments adoption recommendation. She felt she had a parent-child relationship with her youngest children and they would suffer if that relationship ended. At the hearing, counsel for appellant reiterated her position as expressed in the issue statement. She argued that visitation narratives revealed there was a relationship between appellant and her children. As an alternative argument, counsel asked that if the court selected adoption as Crystals and Teresas permanent plan that the mother would like to be part of the consortium for post-adoption visitation.
After further argument, the court included the mother in consortium referral and, having found Crystal and Teresa adoptable, terminated parental rights.
DISCUSSION
Appellant criticizes the court for not finding termination would be detrimental to Crystal and Teresa based on their relationship with one another and their other siblings. As discussed below, we conclude appellant has waived her right to make such an argument.
If there is clear and convincing evidence of adoptability, the statutory presumption at a section 366.26 hearing is that termination is in the dependent childrens best interests and therefore not detrimental unless the parent proves otherwise. (& sect; 366.26, subd. (b); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344.) Here, there is no dispute as to Crystals and Teresas adoptability. Although appellant did claim in the juvenile court that termination would be detrimental to the little girls, she based her claim exclusively on the existence of a parent-child relationship (§ 366.26, subd. (c)(1)(A)). She did not contend that termination would cause a substantial interference with the girls sibling relationship (& sect; 366.26, subd. (c)(1)(E)) nor did she make any effort to prove that statutory exception.
In her appellate briefing, appellant refers to one page of the reporters transcript to support her claim that she argued termination would substantially interfere with her childrens sibling relationship. Having carefully reviewed that transcript as well as the clerks transcript, we find no merit to appellants claim.
A juvenile courts finding that termination of parental rights would be detrimental amounts to an exercise of the courts discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) The parent bears the responsibility to care for his or her own interests by asking the court to exercise its discretion in a manner favorable to the parent. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.) When a parent does not do so, we will not permit the silent parent to argue that the juvenile court erred in not being psychic. (Ibid.)
Here, appellant did not look after her own legal rights by asking the juvenile court to exercise its discretion in favor of finding termination would be detrimental to Crystal and Teresa under section 366.26, subdivision (c)(1)(E). In other words, she did not assert that the court should find termination of her rights would create a substantial interference with a sibling relationship as defined in subdivision (c)(1)(E). Having asserted only that termination would be detrimental due to her relationship with her daughters, we conclude appellant has waived her appellate right to complain that the court should have found detriment under an alternative theory.
DISPOSITION
The order terminating parental rights is affirmed.