Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. J209886 & J209885. James C. McGuire, Judge.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant Sonia C.
Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Sharon S. Rollo, under appointment by the Court of Appeal, for Minors A.M. and E.M.
OPINION
HOLLENHORST J.
I. INTRODUCTION
Sonia C. (mother) appeals from an order of the juvenile court terminating her parental rights as to her children, A.M. (born in 1994), and E.M. (born in 1996), under Welfare and Institutions Code section 366.26. Mother contends no substantial evidence supports the juvenile court’s finding that the children were adoptable because the children were part of a sibling set, and minimal evidence was provided concerning the extent of the sibling bond. We find no error, and we affirm.
All further statutory references are to the Welfare and Institutions Code.
Counsel for minors has filed a letter brief requesting that we affirm the juvenile court’s order.
II. FACTS AND PROCEDURAL BACKGROUND
In August 2006, the San Bernardino County Department of Children’s Services (Department) filed petitions alleging that the children came with the jurisdiction of the juvenile court under section 300. Both petitions alleged that (1) mother had substance abuse issues which adversely impacted her ability to care for and support the children (§ 300, subd. (b)); (2) mother was incarcerated and was unable to provide for the children’s care and support (§ 300, subd. (d)); and (3) a sibling had been abused, putting each child at risk of abuse (§ 300, subd. j)). The petition as to E.M. further alleged that the children’s father, Manuel M., had sodomized E.M. more than once; their older brother, David S., had sodomized and orally copulated E.M. more than once; and mother knew or should have known of the abuse. (§ 300, subd. (d).) The petition as to A.M. further alleged that mother’s boyfriend had bound A.M.’s hands and feet and had repeatedly kicked him, and that mother also kicked A.M. (§ 300, subd. (i).)
The father is not a party to this appeal, and facts relating primarily to father have been omitted from this statement of facts.
The detention report stated that E.M. had disclosed to a sheriff’s detective that her father had sodomized her and that David S. had made her orally copulate him and had also sodomized her. A.M. disclosed that he had witnessed the abuse of E.M. by David S. and stated that his mother had known about the abuse but had done nothing to stop it. The father had since moved to Mexico.
A.M. disclosed that mother’s boyfriend had tied A.M.’s hands and feet together with rope, kicked A.M. several times, including one kick to the head, and called him names. Mother had also kicked him while he was tied up. A.M. stated there had been little food at the house, and they had no running water in the house, but had to take cold showers using a garden hose. A.M. also stated he had frequently seen mother and her boyfriend smoking “crystal.” The boyfriend kept a “machine[-]type gun” at the house and often shot it into the air and shot out street lights.
Sheriff’s deputies had gone to the house and had found an AK-47 assault rifle with a loaded magazine clip and a pellet gun in clear view and accessible to anyone entering the home. Clothes and trash littered the floor, and there was little food and no running water except for a hose running from a neighbor’s lot. The toilet was full of fecal matter. Mother had a prior child welfare history, including an inconclusive report of general neglect in 2001 and substantiated reports of general neglect in May 2004, and caretaker absence/incapacity in September 2004. Mother had arrests in 1991 and 1992 for possession of controlled substance for sale, in 1993 and 1994 for possession of a controlled substance, and two arrests in 2005 for being under the influence of a controlled substance.
The juvenile court found a prima facie case had been established for detention out of the home. The Department was ordered to provide services to the family pending the development of a case plan. The court ordered visitation with mother once a week and as frequently as possible upon her release from custody.
The Department filed a jurisdiction/disposition report recommending that reunification services not be provided. A social worker had interviewed mother, who was then in detention on charges of child endangerment. Mother reported a history of drug abuse and related arrests and incarcerations. Mother also reported she was a “product of incest” — her father was also her grandfather, and her sister had also been born from the incestuous relationship. Mother denied she had been sexually abused, but admitted sexual abuse was a significant problem in her family. Mother’s oldest son, David S., had been molested by an older cousin, and David had molested E.M. and a cousin. Mother stated she believed A.M. had tied himself up and that she had tied him up in the past because he jumped all over the place and got “in [her] face.”
The report indicated that the children were in good health and appeared to be developing within normal limits. However, both needed mental health services to address their recent trauma. The children were placed together in a foster home and appeared to be adjusting well to their placement.
Reports from the sheriff’s department were attached to the jurisdiction/disposition report. In one report, David S. admitted to an officer that he had had anal sex with E.M. three times — twice at his grandmother’s house, and once at mother’s house. He also admitted forcing E.M. to perform oral sex twice and to performing a sex act with a younger cousin.
Amended petitions were filed in September 2006, adding allegations under section 300, subdivision (b), that the children were living in substandard conditions with no running water, debris strewn around the residence, and firearms within the children’s reach. An addendum report added details from an interview with E.M., in which E.M. stated that mother had been aware of the sexual abuse by father. An addendum report was filed in November 2006, in which the Department recommended reunification services for mother, but another addendum report filed in January 2007 again recommended that no services be provided.
Mother was released from custody on December 11, 2006, but did not contact the social worker until December 18 to request visitation with the children. The social worker provided mother with referrals to drug treatment facilities and advised her to enroll in a program. Mother provided the social worker with a telephone number, but that number was not working. Mother contacted the social worker again on December 27, and a visit was scheduled. The Department provided mother with a bus pass. Mother asked why she needed services and stated she did not believe her boyfriend had abused A.M. She became angry and walked out of the office.
Mother visited the children on January 3, 2007, but the visit went poorly. A.M. became upset and left the visit early. Mother demanded that he return, and the social worker explained she could not force him to return. E.M. became upset, and mother was crying. Mother asked E.M. where she was living and attending school. The social worker instructed mother not to ask such questions. After the visit, E.M. blamed herself that David S. was in jail because she had told on him. A.M. told the social worker he did not want to visit mother or to live with her.
The social worker met with mother on January 8, 2007, to go over her case plan. Mother said she did not do drugs and did not need to go to a drug program.
At the contested jurisdiction hearing on January 26, 2007, mother testified she had a drug problem and had last used speed three days earlier. Mother denied she had kicked A.M. Mother conceded the trailer where she and the children had been living had been dirty and unsafe. Mother had not witnessed her boyfriend abusing any of the children. Mother believed E.M. had been sexually abused by her brother and father. Mother claimed that A.M. had once tied himself up because A.M. “does things like that.”
A social worker testified about the children’s disclosures to her about their physical and sexual abuse. The social worker testified that A.M. had not had any problems with lying or serious misconduct while in foster care.
The court found not true the allegations that mother was incarcerated and that mother knew about father’s abuse of E.M. The court found true the remaining allegations in the petitions, as modified — the court found true that mother kicked A.M., but struck the words “in the back three times.”
At the disposition hearing, the court found that mother was not entitled to services under section 361.5, subdivision (b), because of the sexual and physical abuse of the children. The court set a section 366.26 hearing and suspended mother’s visitation with the children.
Mother filed a notice of intent to file writ petition on February 1, 2007. However, her attorney later filed a letter stating that he had reviewed the record and had found no legal or factual issues on which to base the writ.
On the court’s own motion, the record in case No. E042282 has been incorporated with the record in this case.
The Department filed an interim review report and adoptability assessment on April 3, 2007. The report stated that the children were appropriate to adopt because of their ages (E.M. was then 11 and A.M. was 12), and their current caretakers were interested in adopting them. The children were reported to be in good health, but both were behind in school because of their poor attendance when they lived with parents. They were both receiving tutoring and were catching up to their class levels. Both children were undergoing weekly therapy for the sexual abuse and domestic violence they had experienced while living with parents. The children appeared to be attached to the foster parents, and they wanted to live with them “forever.” The children had two older brothers, David S. and Julio. David S. was incarcerated for sexually abusing E.M., and Julio lived in Central California with the maternal grandmother.
The Department filed a section 366.26 report on May 1, 2007. The report stated that A.M. was about two years behind his grade level but was performing much better in school. He was receiving individual counseling and was “progressing slowly,” and “working on issues concerning his birth parents and redirecting his anger appropriately.” He demonstrated resentment and anger towards mother and often commented that he did not want to see or hear from her. E.M. was also behind in school but was advancing. She was undergoing therapy, and she tended to minimize the abuse she had experienced.
At the section 366.26 hearing, mother testified that she disagreed with the Department’s recommendation that the children be adopted. The juvenile court found the children adoptable and found that no exception to adoptability existed. The juvenile court terminated mother’s parental rights.
III. DISCUSSION
Mother contends no substantial evidence supports the juvenile court’s finding that the children were adoptable because the children were part of a sibling set, and minimal evidence was provided concerning the extent of the sibling bond. More specifically, mother contends the Department’s adoption assessment report failed to comply with statutory guidelines and contained an inadequate assessment of the history and quality of the children’s contact with their brother, Julio.
1. Background
The interim review report and adoptability assessment filed April 3, 2007, stated, under the heading “Sibling Bond Considerations”: “[E.M. and A.M.] have a close relationship with each other. According to [the foster mother], they don’t often play with one another, but they always want to know where the other one is. They have two older brothers not placed with them. One brother lives with his maternal grandmother and the other brother is incarcerated for sexual abuse. It is in the best interest of [E.M. and A.M.] that they have no contact with either of them at this time.”
Mother filed a pretrial at-issue memorandum on June 14, 2007. The only factual contention made in the memorandum was that “[l]imiting permanent plan is in children’s best interest.” No mention was made of the children’s relationship with their siblings.
Although mother testified at the section 366.26 hearing, she did not refer to the children’s brother, Julio, or the relationship between the children and Julio. During closing argument, her counsel stated, “Today’s sole issue is the bond between mother and children.”
2. Forfeiture
The Department contends that although mother has framed her challenge as an argument that the evidence was insufficient to support the juvenile court’s finding of adoptability, in reality, her challenge is to the adequacy of the adoption assessment. Although a challenge to the sufficiency of the evidence is not forfeited by failure to raise the issue in the juvenile court (In re Brian P. (2002) 99 Cal.App.4th 616, 623 (Brian P.), a challenge to the adequacy of the adoption assessment is so forfeited. (Ibid.). Mother failed to raise the issue of the adequacy of the adoption assessment in the juvenile court.
“‘[A] party is precluded from urging on appeal any point not raised in the trial court.’” (In re Aaron B. (1996) 46 Cal.App.4th 843, 846 (Aaron B.).) In Aaron B., the father appealed the termination of his parental rights, arguing that the adoption assessment had been inadequate. The court held the father had forfeited the right to raise the issue on appeal because he failed to object to the challenged report and failed to provide evidence supporting his position. (Id. at p. 846.) Similarly, in In re Crystal J. (1993) 12 Cal.App.4th 407, 412, the court held that the mother had forfeited a challenge based on deficiencies in the social worker’s report because she did not assert her challenge in the juvenile court. See also Brian P, supra, 99 Cal.App.4th at p. 623 [“[W]hile a parent may waive the objection that an adoption assessment does not comply with the requirements provided in section 366.21, subdivision (i), a claim that there was insufficient evidence of the child’s adoptability at a contested hearing is not waived by failure to argue the issue in the juvenile court”].) (Italics added.)
Although we conclude mother forfeited her challenge to the adequacy of the adoption assessment by failing to raise it in the juvenile court, we will nonetheless exercise our discretion to address the issue on the merits. (In re Sheena K. (2007) 40 Cal.4th 875, 887 & fn. 7.)
3. Standard of Review
In reviewing an order of the juvenile court terminating parental rights under section 366.26, “‘we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]’ [Citations.] We give the court’s finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. [Citation.]” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.)
4. Adequacy of Reports
Sections 366.22, subdivision (b)(2), 361.5, subdivision (g)(2), and 366.21, subdivision (i)(2), all address, in identical language, the information required to be in a social worker’s report prepared for a section 366.26 hearing: “A review of the amount of and nature of any contact between the child and his or her parents and other members of his or her extended family since the time of placement. Although the extended family of each child shall be reviewed on a case-by-case basis, ‘extended family’ for the purposes of this paragraph shall include, but not be limited to, the child’s siblings, grandparents, aunts, and uncles.” (§§ 366.22, subd. (b)(2), 361.5, subd. (g)(2), 366.21, subd. (i)(2).) (Italics added.) Thus, the report does not need to address a child’s contacts with siblings for his or her entire life, but only since the placement.
Here, the section 366.26 report contained a section entitled, “History of Contacts Between Child and Family.” That section of the report chronicles visits between the children and their relatives since their placement. Nothing more was required. We therefore reject mother’s challenge to the adequacy of the adoption assessment.
5. Sufficiency of Evidence of Adoptability
Before the juvenile court terminates parental rights and selects a permanent plan of adoption, the juvenile court must find, by clear and convincing evidence, that it is likely the child will be adopted. (§ 366.26, subd. (c)(1). “‘The issue of 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. [Citations.]’ [Citations] All that is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time. [Citation.]” (In re Zeth S. (2003) 31 Cal.4th 396, 406-407.) “[A] prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650.)
Here, the Department’s reports support the trial court’s finding of adoptability. Neither child had any medical problems. A.M. was described as a “very active intelligent child,” and E.M. was described as a “very sweet child.” Both children were making progress in overcoming educational delays caused by their erratic school attendance when under mother’s care. Moreover, the children had been placed with the prospective adoptive parents immediately after their removal from mother, and the reports indicated strong bonds had formed with the family. The prospective adoptive parents were aware of issues that might later arise with the children because of their past, and the prospective parents were prepared to get help for the children should such issues arise. The children desired to be adopted by the foster parents. Thus, the reports contained adequate evidence to support the trial court’s finding of adoptability.
Moreover, mother has cited to no authority that supports her contention that the juvenile court is required to consider a sibling bond in determining a child’s adoptability. To the contrary, section 366.26 and case law indicate that sibling bonds are a consideration in whether to find an exception to termination of parental rights after a finding of adoptability. (§ 366.26, subd. (c)(1)(E); In re Megan S. (2002) 104 Cal.App.4th 247, 251.) Mother provided no evidence in the juvenile court to establish the sibling bond exception, although it was her burden to do so, not the social worker’s burden to prove the absence of the exception. (Id. at p. 252.)
IV. DISPOSITION
The orders appealed from are affirmed.
We concur: RAMIREZ P.J., MILLER J.