Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. Nos. JV040201-1, JV040201-2.
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Shirley W. (Mother) and William C. (Father) appeal the juvenile court’s order terminating their parental rights to their children Drake C. and W.C. and freeing the children for adoption pursuant to Welfare and Institutions Code section 366.26. Mother and Father raise the following claims of error: (1) both parents contend that termination of parental rights would be detrimental to Drake and W.C. under former section 366.26, subdivision (c)(1)(E) because it would interfere with their relationships with their teenage half-siblings, Elizabeth G. and Benjamin G., (2) Father claims that the juvenile court erred in evaluating the sibling relationship issue because it erroneously believed it could order Drake’s and W.C.’s prospective adoptive parents to enter a binding contract requiring postadoption sibling contact, (3) Mother argues that termination of parental rights would be detrimental to Drake and W.C. under former section 366.26, subdivision (c)(1)(A) because Mother has maintained visitation and contact with Drake and W.C. and they would benefit from continuing their relationship with Mother, and (4) Mother contends that the juvenile court should have ordered guardianship instead of adoption as the permanent plan for Drake and W.C. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Effective January 1, 2008, the Legislature amended and renumbered portions of section 366.26, including the two exceptions to termination of parental rights that are at issue in this appeal. The substantial interference with sibling relationships exception in former section 366.26, subdivision (c)(1)(E) was renumbered as section 366.26, subdivision (c)(1)(B)(v). The beneficial parental relationship exception in former section 366.26, subdivision (c)(1)(A) was renumbered as section 366.26, subdivision (c)(1)(B)(i). The text of these exceptions and the other relevant portions of section 366.26 is unchanged. Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Original Petition
On November 5, 2004, the Humboldt County Department of Health and Human Services, Social Services Branch (Department) filed a section 300 petition on behalf of Drake C. (born in 2001) and W.C. (born in 2000). At that time, Drake and W.C. lived with their Mother and their two older half-siblings. The petition alleged that Father had committed two acts of domestic violence in the presence of Drake and W.C. and that W.C. had been injured during one of the incidents. Mother had a history of domestic violence with Father but had failed to obtain a restraining order against him. The juvenile court sustained the allegations as to Mother in January 2005.
The disposition report identified Mother’s and Father’s underlying problems as substance abuse and domestic violence. The report also noted that Mother and Father had been the subject of numerous previous referrals for alleged abuse and neglect of Drake C., W.C., and their half-siblings, and that both parents had criminal records. At the disposition hearing in June 2005, the court ordered family maintenance services for Mother and allowed the children to remain in Mother’s home.
In September 2005, the court found Father to be the presumed father of Drake and W.C. and sustained the allegations of the petition as to Father. The court also entered a restraining order against Father at the request of the Department, prohibiting him from having contact with Drake C. and W.C. and their half-siblings except for supervised visits. The court entered the disposition orders as to Father in November 2005.
In its November 2005 dispositional orders, the court ordered that the children remain in Mother’s home, continued family maintenance services for Mother and ordered family reunification services for Father. The court continued services to both Mother and Father at the 6-month review hearing in February 2006.
B. The Supplemental Petition and the Termination of Services
On or about April 21, 2006, Mother was arrested for transport and sale of a controlled substance and a violation of probation. The Department filed a section 387 supplemental petition alleging Mother could not care for the children because she was incarcerated. The children were detained and placed in foster care.
At the time of the jurisdictional hearing on the supplemental petition in May 2006, Drake’s and W.C.’s older half-siblings, Elizabeth and Benjamin, who had also been placed in foster care, were runaways whose whereabouts were unknown. The court sustained the allegations of the supplemental petition and maintained Drake’s and W.C.’s placement in foster care. Pursuant to the stipulation of the parties, the court also ordered bi-weekly supervised jail visits between the children and Mother.
In July 2006, after the disposition hearing, the court ordered reunification services for Mother and Father. The court also approved the visitation schedule outlined in the disposition report, which provided for Drake and W.C. to have supervised jail visits with Mother, supervised visits with Father, and unsupervised visits with Elizabeth and Benjamin, who were not in the same foster care placement as the younger children.
In her criminal case, Mother participated in a statutory drug treatment program. She was released to a safe and sober house on August 1, 2006, after agreeing to attend and complete a Healthy Moms program. On August 14, 2006, she was arrested after testing positive for methamphetamine and was returned to custody.
On September 22, 2006, the court entered an order again permitting bi-weekly supervised jail visits between the children and Mother.
On December 7, 2006, after the 6-month review hearing, the juvenile court terminated reunification services for Father as a result of Father’s refusal to participate in services for anger management and substance abuse and his failure to participate in supervised visits with the children since April 2006. The report for the 6-month review hearing stated that Drake and W.C. were still having supervised jail visits with Mother and were visiting Elizabeth on weekends.
Mother was released to a residential treatment program on December 4, 2006. Drake and W.C. visited her there on December 10. On December 14, Mother left the program without permission. Her whereabouts were unknown until she was arrested in February 2007. On February 22, Mother told the social worker she would not participate in drug treatment or the drug court. She planned to serve out her sentence and participate in outpatient treatment after her release.
At the 12-month status review hearing on May 7, 2007, the court terminated services for Mother and set a section 366.26 permanency planning hearing.
Mother and Father filed petitions for extraordinary writ relief challenging the court’s May 7, 2007 orders. This court dismissed Father’s petition because Father had not filed a timely notice of appeal from the December 2006 order terminating his reunification services. (William C. v. Superior Court (July 23, 2007, A118047) [nonpub. opn.].) This court affirmed the juvenile court’s orders terminating services to Mother and setting the section 366.26 hearing. (Shirley W. v. Superior Court (Aug. 17, 2007, A118048) [nonpub. opn.].)
C. The Permanency Planning Hearing
In its August 7, 2007 report for the section 366.26 permanency planning hearing, the Department recommended that the court terminate parental rights and select adoption as the permanent plan for Drake and W.C. The report stated that Drake and W.C. were in their fourth foster care placement, that the end of the earlier foster placements was not the result of the children’s behavior, and that the current foster parents wished to adopt Drake and W.C. The current foster home appeared to be a loving and nurturing environment. The report also stated that there were no suitable relatives or extended family members available for placement of the children and that long-term foster care was not an appropriate permanent plan given that the children were adoptable and living with a foster family that wished to adopt them.
The Department’s section 366.26 report also attached an adoption assessment prepared by the Adoptions Services Bureau of the State Department of Social Services. The adoption assessment concluded that Drake and W.C. were adoptable and recommended termination of parental rights and selection of a permanent plan of adoption. The assessment also stated that the foster parents were experienced parents who were already rearing three other children, that they were very committed to Drake and W.C. and appeared to be demonstrating good parenting practices, and that an affectionate bond was developing between Drake and W.C. and the foster parents. The adoption assessment noted that the foster parents had been informed of the option of entering into a written agreement governing postadoption contacts between Drake and W.C. and their birth family. The foster parents were willing to maintain postadoption contact with Drake’s and W.C.’s biological relatives, including their siblings, but were not willing to enter into a formal agreement governing postadoption contacts.
Finally, a report filed by Court Appointed Special Advocates (CASA) opined that the foster home was a stable and loving home and recommended termination of parental rights and selection of adoption as the permanent plan.
On September 13, 2007, the Department submitted to the court an addendum to its report, which included updated information about postadoption visitation. The addendum stated that the foster parents had told the Department that they “recognize the importance of honoring birth families as an integral element in children’s lives.”
As to sibling visitation, the addendum stated that, after parental rights were terminated, visits between Drake and W.C. and their siblings would take place on a quarterly basis and would be supervised by the Department or the State Adoptions Services Bureau. However, this specific reference to sibling visitation facilitated by the Department appears to refer only to visitation after parental rights are terminated but prior to finalization of the adoption, rather than to postadoption visits.
The juvenile court held the section 366.26 permanency planning hearing in October 2007. On October 26, after three days of testimony and argument, the court terminated Mother’s and Father’s parental rights to Drake and W.C. and ordered adoption as the permanent plan for Drake and W.C.
Mother and Father filed timely notices of appeal.
II. DISCUSSION
A. Legal Framework and Standard of Review
Once reunification services have been terminated, the “‘focus shifts to the needs of the child[ren] for permanency and stability,’” and the juvenile court must select a permanent plan for the children under section 366.26. (In re Celine R. (2003) 31 Cal.4th 45, 49, 52 (Celine R.); quoting In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The Legislature has established that, where possible, adoption is the preferred permanent plan. (§ 366.26, subd. (b); In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) “‘Adoption is the Legislature’s first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.’” (Celine R., supra, 31 Cal.4th at p. 53, quoting In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.); accord In re Zachary G. (1999) 77 Cal.App.4th 799, 809 (Zachary G.) [“there is a strong preference for adoption over nonpermanent forms of placement”].)
At a section 366.26 hearing, if there is clear and convincing evidence that the children are likely to be adopted, the court must terminate parental rights and place the children for adoption unless one of the exceptions specified in section 366.26, subdivision (c)(1) applies. (§ 366.26, subd. (c)(1); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250 (Cynthia D.).) The parents have the burden to show that the termination of parental rights would be detrimental to the children under one of the statutory exceptions. (Zachary G., supra, 77 Cal.App.4th at p. 809; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
Here, the record establishes that Drake and W.C. are likely to be adopted. Accordingly, section 366.26 required the juvenile court to terminate parental rights unless Mother or Father established the applicability of one of the exceptions in section 366.26, subdivision (c)(1).
The juvenile court did not make an explicit finding that Drake and W.C. are likely to be adopted. However, neither Mother nor Father contested this issue in the juvenile court, and neither does so on appeal. In any event, there is overwhelming and uncontradicted evidence in the record that Drake and W.C. are likely to be adopted. The Department’s section 366.26 report, which the juvenile court received in evidence, concluded that Drake and W.C. are adoptable and that their foster parents wish to adopt them. The adoption assessment prepared by the State Adoptions Services Bureau, which was attached to the Department’s report, reached the same conclusion, finding that the children are adoptable and that their foster parents are ready and willing to adopt them. Finally, the report submitted by CASA also noted that the foster parents wish to adopt Drake and W.C.
In the context of her argument that the court should have selected guardianship rather than adoption as the permanent plan, Mother raises general arguments about the suitability of the foster parents as prospective adoptive parents. Asserting that the foster parents may be overburdened because they already have three children, Mother suggests that the proposed adoptive placement could fail. However, these arguments about the foster parents are not relevant to the issue of whether Drake and W.C. are likely to be adopted. (In re Scott M. (1993) 13 Cal.App.4th 839, 841, 844 [“General suitability to adopt is a subjective matter which does not constitute a legal impediment to adoption and, thus, is irrelevant to the issue of whether the minors are likely to be adopted.”]); In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650-1651.) Accordingly, termination of parental rights was required unless a statutory exception applied.
As noted above, Mother and Father contend that the juvenile court should have applied two of the statutory exceptions: (1) both parents argue that the exception for substantial interference with sibling relationships set forth in section 366.26, subdivision (c)(1)(E) applies, and (2) Mother argues that the exception for a beneficial parental relationship set forth in section 366.26, subdivision (c)(1)(A) applies. The juvenile court ruled that neither exception applied.
In reviewing a juvenile court’s ruling on the applicability of the statutory exceptions to termination of parental rights, courts have routinely applied the substantial evidence standard of review. (E.g., Autumn H., supra, 27 Cal.App.4th at p. 576 [parental relationship exception]; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 (L.Y.L.) [sibling relationship exception]; In re Megan S. (2002) 104 Cal.App.4th 247, 250-251 (Megan S.) [same].) However, Division Three of this court held in Jasmine D. that the appropriate standard is abuse of discretion. (Jasmine D., supra, 78 Cal.App.4th at p. 1351; accord In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) The Jasmine D. court noted that, to apply an exception to termination of parental rights, the juvenile court must find a “‘compelling reason for determining that termination would be detrimental to the child,’” which is “a quintessentially discretionary determination.” (Jasmine D., supra, 78 Cal.App.4th at p. 1351, quoting § 366.26, subdivision (c)(1).) The Jasmine D. court noted, however, that the practical differences between the two standards of review are not significant in the context of reviewing termination orders, and that both standards give broad deference to the trial court’s judgment. (Jasmine D., supra, 78 Cal.App.4th at p. 1351.) We need not address the issue here, as we would affirm under either standard.
Although the Jasmine D. court was addressing the beneficial parental relationship exception, its analysis would apply equally to the sibling relationship exception, which also requires the juvenile court to find a “compelling reason” to apply the exception. (§ 366.26, subd. (c)(1).)
B. The Sibling Relationship Exception
Mother and Father contend that the juvenile court should have found that termination of parental rights would be detrimental to Drake and W.C. under section 366.26, subdivision (c)(1)(E) because it would interfere with Drake’s and W.C.’s relationships with their older half-siblings, Elizabeth and Benjamin. We affirm the juvenile court’s decision that the sibling relationship exception did not apply.
As the Department notes in a footnote, Elizabeth and Benjamin did not have standing to participate in the section 366.26 hearing as parties or to assert the applicability of the sibling relationship exception because they did not file a petition under section 388, subdivision (b) seeking permission to do so. (In re Hector A. (2005) 125 Cal.App.4th 783, 791, 793.) The juvenile court nevertheless permitted them to appear through their counsel, who called them as witnesses and argued that the sibling relationship exception applied. Elizabeth’s and Benjamin’s lack of standing does not affect our review of the juvenile court’s judgment. Mother and Father did have standing to assert the sibling relationship exception (L.Y.L., supra, 101 Cal.App.4th at p. 951), which both of them did. Accordingly, the juvenile court was required to address the issue, and it is properly before us.
1. Legal Standard
Section 366.26, subdivision (c)(1)(E) provides for an exception to termination of parental rights 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)(E).)
This provision creates a “heavy burden” for the party opposing adoption. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) To establish the applicability of the sibling relationship exception, the parents must first show that termination of parental rights would “substantially interfere” with the sibling relationship. (L.Y.L., supra, 101 Cal.App.4th at p. 951.) This requires proof of a “significant sibling relationship, the severance of which would be detrimental to the child.” (Id. at p. 952, fn. omitted.) If such a strong sibling relationship exists, the court then “weighs the benefit to the child of continuing the sibling relationship against the benefit to the child adoption would provide.” (Id. at pp. 952-953; see also Celine R., supra, 31 Cal.4th at p. 61, citing L.Y.L. with approval.) “The court must balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer.” (L.Y.L., supra, 101 Cal.App.4th at p. 951.) In making these determinations, the court may consider only the possible benefits and detriments to the child being considered for adoption, not the child’s siblings. (Celine R., supra, 31 Cal.4th at p. 54; In re Daniel H., supra, 99 Cal.App.4th at p. 813.) The sibling relationship exception, like the other exceptions in section 366.26, subdivision (c)(1), must be considered in light of the legislative preference for adoption, which remains the “norm.” (Celine R., supra, 31 Cal.4th at p. 53.)
2. The Juvenile Court's Ruling
Here, the juvenile court considered the factors outlined in section 366.26, subdivision (c)(1)(E), and weighed the benefits to Drake and W.C. of preserving the sibling relationship against the benefits of adoption. The court first noted that Drake and W.C. had been in the dependency system (first while residing with Mother and then in foster care placement) for about half their lives. The court found that Drake and W.C. did have a close and strong bond with Elizabeth and Benjamin and that they had lived together for the first part of Drake’s and W.C.’s lives. However, given Drake’s and W.C.’s young ages and the length of the dependency proceedings in this case, the court found that the common experiences shared by the siblings did not weigh strongly against terminating parental rights. In addition, the court noted that there were allegations in the Department’s report that Elizabeth’s and Benjamin’s conduct had had a negative influence on the younger children, and the court stated that, if Elizabeth and Benjamin did not receive proper support and guidance, the relationship could turn into an unhealthy bond.
The court then concluded that Drake’s and W.C.’s need for the permanency and stability of adoption outweighed the interference with their sibling relationships that might result from the termination of parental rights. The court found that a permanent plan other than adoption, such as guardianship, would leave Drake and W.C. in limbo and would not allow them to settle into their new placement or to know what to expect in the future. The court stated that a guardianship would hold out in Mother’s and the older siblings’ minds the possibility that they might someday regain custody of Drake and W.C. This situation would require Drake and W.C. to “hang on and let go” at the same time, which children cannot do. Under these circumstances, the court found that, while ongoing contact between Drake and W.C. and their older siblings would be in Drake’s and W.C.’s best interests, it would not be in their long-term best interests unless it occurred within the structure of a permanent plan of adoption.
In concluding that the benefit of preserving Drake’s and W.C.’s relationships with their siblings did not outweigh the benefits of adoption, the court noted that the prospective adoptive parents were committed to maintaining Drake’s and W.C.’s relationships with Elizabeth and Benjamin. The court also encouraged the prospective adoptive parents to enter into an agreement setting out clear rules for postadoption visitation and contact between the two sets of siblings. The court believed that clear guidelines would assist Elizabeth and Benjamin in providing appropriate, positive influences for the younger children, and would also benefit Drake and W.C. and the prospective adoptive parents. Finally, after ordering the termination of parental rights, the court ordered the Department to meet with State adoptions personnel and the prospective adoptive parents “to discuss establishing a post-adoptive sibling contact agreement that would be mutually agreeable to all parties so that the sibling relationship between the older children and the younger children can be maintained in an organized way.”
3. Analysis
Mother and Father have failed to show that the juvenile court’s decision to reject the sibling relationship exception was an abuse of discretion or was not supported by substantial evidence. Both parents point to evidence showing that, as the juvenile court found, Drake and W.C. had a significant sibling bond with their older siblings, lived with them for the first part of Drake’s and W.C.’s lives, and shared numerous activities during that time. For example, Elizabeth and Benjamin testified that they helped their younger siblings get dressed, taught them to ride bicycles and play sports, read with them, and played games with them. However, in making this argument, Mother and Father focus only on the first part of the analysis under section 366.26, subdivision (c)(1)(E), the existence of a significant sibling relationship. (See L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.) The second step in the analysis is a weighing process in which the juvenile court determines whether the interference with the sibling relationship caused by termination of parental rights would outweigh the permanency and stability of adoption. (See L.Y.L., supra, 101 Cal.App.4th at pp. 951-953.) As noted above, the juvenile court thoughtfully addressed that issue and concluded that the tenuous nature of a guardianship or other nonpermanent placement would leave Drake and W.C. uncertain about their status and their future and that they would be better served by the stability of adoption.
The record supports the juvenile court’s conclusion that Drake’s and W.C.’s need for stability was paramount. Drake and W.C. had been in the dependency system for about half of their lives and had been in four foster care placements since Mother’s arrest in April 2006. Moreover, the evidence before the court, including the reports submitted by the Department, the State adoptions caseworker, and CASA, showed that the prospective adoptive parents were providing a loving and stable home for Drake and W.C.
There also was evidence supporting the court’s conclusion that the relationship between Drake and W.C. and their older siblings, while strong, had the potential to become an unhealthy relationship if Elizabeth and Benjamin did not receive appropriate support and guidance. Both Elizabeth and Benjamin had experienced difficulties in the dependency system and had run away from foster care placements. On one occasion in February 2007, Elizabeth, during a visit by Drake and W.C., left her placement and took the younger children with her to stay with friends at a motel, where the police and the social worker picked up the younger children the next day. The State adoption agency’s report also stated that during a visit by Drake and W.C. to Elizabeth’s and Benjamin’s placement in Modesto in June 2007, the older siblings took Drake and W.C. to a movie that was inappropriate for their age, told them they could have certain gifts “‘when you come home to your real family,’” and used “‘gang language.’” After this visit, Drake and W.C. were more clingy and needed reassurances from their foster parents. This evidence provides additional support for the juvenile court’s conclusion that Drake’s and W.C.’s long-term best interest would be to have ongoing sibling contacts within the structure of a permanent plan of adoption.
Finally, it was appropriate for the juvenile court to consider the prospective adoptive parents’ willingness to maintain the sibling relationship. Where there is evidence that sibling contact will continue after termination of parental rights, even if there is no guarantee of such future contact, the court may consider this contact in determining whether termination would substantially interfere with the sibling relationship and whether such interference would outweigh the benefits of adoption. (See, e.g., Megan S., supra, 104 Cal.App.4th at p. 254 [where social worker had located 25 possible adoptive homes for child that would allow her to have continued contact with her sister, there would be no substantial interference with their relationship]; In re Jacob S. (2002) 104 Cal.App.4th 1011, 1019 [grandparents who intended to adopt two siblings were willing to continue contact with other siblings]; In re Valerie A. (2007) 152 Cal.App.4th 987, 1014 [although sibling visits had stopped due to safety concerns, the prospective adoptive mother was willing to consider future contacts, and thus “termination of parental rights did not necessarily foreclose the continuation of the sibling relationships”].) Here, the State adoption assessment reported that the prospective adoptive parents were willing to maintain contact with Drake’s and W.C.’s siblings. In addition, the addendum to the Department’s report noted that the prospective adoptive parents recognized the importance of honoring an adopted child’s birth family. This evidence that sibling contact would likely continue further supports the court’s ruling that any potential interference with Drake’s and W.C.’s sibling relationships that might result from the termination of parental rights did not outweigh the benefits of adoption.
C. Postadoption Sibling Contact Agreement
Father contends that the juvenile court incorrectly believed it could order the prospective adoptive parents to enter into a contract providing for postadoptive sibling contact. Father claims that this alleged misunderstanding led the court to abuse, or fail to exercise, its discretion in addressing the applicability of the sibling relationship exception under section 366.26, subdivision (c)(1)(E). Specifically, Father asserts that the court, because of its alleged mistaken belief that it could protect Drake’s and W.C.’s relationships with their siblings by ordering a postadoption contact agreement, did not weigh the benefits of the sibling bonds against the benefits to Drake and W.C. of adoption, as was required under the statute. We disagree.
As Father notes, the juvenile court cannot order prospective adoptive parents to enter into an agreement providing for postadoption sibling contact, as such agreements require the consent of the prospective adoptive parents. (§ 366.29, subd. (a); § 366.26, subd. (a).) Moreover, if the parties do agree to include in a final adoption order a provision for postadoption sibling contact, the prospective adoptive parents may terminate the contact if they determine that it “poses a threat to the health, safety, or well-being of the adopted child . . . .” (§ 366.29, subd. (b).)
However, the record does not support Father’s claim that the juvenile court ordered, or believed it could order, the parties to enter into a postadoption contact agreement. The court stated that it believed it would be beneficial for Elizabeth and Benjamin, as well as for Drake and W.C. and the prospective adoptive parents, to have a clear agreement or understanding as to the ground rules and expectations for postadoption sibling visits. This was especially true in light of the allegations in the prehearing reports that Elizabeth’s and Benjamin’s conduct had had a negative influence on Drake and W.C., which the court attributed to the older siblings’ not having received adequate guidance as to appropriate conduct. The court therefore encouraged the parties to enter into an agreement setting out such guidelines and expressed its hope that they would do so. Finally, after making its oral ruling terminating parental rights, the court ordered the Department to meet with State adoptions personnel and the prospective adoptive parents “to discuss” setting up a postadoptive sibling contact agreement that would be agreeable to all parties. The court did not order the parties to enter an agreement, nor did it suggest it believed it had the power to do so. It was permissible for the court to encourage the prospective adoptive parents to consider and discuss the terms for postadoption sibling visitation, even though it could not, and did not, order them to agree to such visitation. (Celine R., supra, 31 Cal.4th at p. 55 [court can “encourage the adoptive parents to agree to visits among the siblings,” although it cannot require them to do so].)
The court also did not state that its decision to reject the sibling relationship exception and terminate parental rights was based on a belief that it could order a contact agreement. Father is incorrect in asserting that the juvenile court, because of its alleged belief that it could use a postadoption contact agreement to protect the sibling relationship, failed to “reach the question” of whether the benefit to Drake and W.C. of maintaining the sibling relationship outweighed the benefits of adoption. As discussed above, the court expressly addressed this issue, discussed the factors listed in section 366.26, subdivision (c)(1)(E), and concluded that (1) Drake’s and W.C.’s interest in the permanency and stability of adoption was paramount, and (2) ongoing sibling contact would only be in Drake’s and W.C.’s long-term best interests if it occurred within the structure of the permanent plan of adoption.
Father notes that the court referred to a passage in a practice guide on dependency proceedings that opines that, in light of the availability of postadoption sibling contact agreements, the necessity for and wisdom of the sibling relationship exception in section 366.26, subdivision (c)(1)(E) is questionable. However, this reference by the court does not assist Father. The juvenile court did not order a contact agreement and did not state that its decision to reject the sibling relationship exception and terminate parental rights was based on a belief that it could order a contact agreement.
In his reply brief, Father asserts that, because the juvenile court did not have authority to compel the prospective adoptive parents to permit sibling visits, it abused its discretion in considering the prospective adoptive parents’ willingness to permit such visits. Father is incorrect. As discussed above, although the juvenile court cannot order or guarantee the continuation of sibling contacts, it can consider the prospective adoptive parents’ willingness to permit such contacts when it assesses whether termination of parental rights would substantially interfere with sibling relationships and whether any such interference would outweigh the benefits of adoption. (Megan S., supra, 104 Cal.App.4th at p. 254; In re Jacob S., supra, 104 Cal.App.4th at p. 1019; In re Valerie A., supra, 152 Cal.App.4th at p. 1014.) Here, the juvenile court appropriately considered the fact that the prospective adoptive parents were willing to facilitate contacts to maintain Drake’s and W.C.’s relationships with Elizabeth and Benjamin.
Father asks this court to depart from the holdings of these cases and to hold that a juvenile court may not consider the possibility of future sibling contacts in addressing the sibling relationship exception. We decline Father’s invitation, and we agree with the cited cases that a juvenile court may consider the possibility of future sibling contacts in determining whether to apply the sibling relationship exception.
Finally, both Father and the Department refer to, and ask this court to consider, postjudgment evidence relating to the prospects for postadoption sibling visitation. Father and the Department cite an interim review report that the Department filed in the juvenile court on November 27, 2007, one month after the court terminated parental rights on October 26, 2007. The interim review report states that (1) the Department and State adoptions personnel met with the prospective adoptive parents on November 14, 2007 to discuss sibling visitation, (2) at that meeting, the prospective adoptive parents confirmed that they do not wish to enter into a formal sibling contact agreement, consistent with the position they had taken before the section 366.26 hearing, but that they are willing to provide opportunities for sibling contacts and to incorporate Benjamin and Elizabeth into certain family activities for that purpose, and (3) later that day, the social worker and the prospective adoptive parents met with Benjamin and explained the guidelines for future sibling visits.
We decline to consider the interim review report on this appeal, because the information in that report was not before the juvenile court when it issued its order terminating parental rights. The general rule is that an appeal reviews the correctness of a judgment as of the time the judgment was made and on a record of the evidence that was before the trial court when it made its decision. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) This rule applies to appeals from orders terminating parental rights, although an exception could be made in “rare and compelling” cases. (Id. at pp. 399, 405, 413-414.) We find no exceptional circumstances here, and the parties have identified none.
The November 27, 2007 interim review report is included in the record on appeal that was transmitted to this court by the juvenile court on January 9, 2008. Nevertheless, the report was, of course, not before the juvenile court when it terminated parental rights on October 26, 2007.
In In re Salvador M. (2005) 133 Cal.App.4th 1415, the appellate court distinguished In re Zeth S. and considered a postjudgment report filed with the juvenile court by a county social services agency where the information in the report showed that one of the issues raised on appeal by the parent was moot. (In re Salvador M., supra, 133 Cal.App.4th at pp. 1422-1424.) Here, the interim review report filed by the Department does not demonstrate that the issues raised by Mother and Father are moot.
D. The Beneficial Parental Relationship Exception
Mother argues that the juvenile court should have declined to terminate parental rights based on the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(A). We affirm the juvenile court’s decision.
Section 366.26, subdivision (c)(1)(A) provides for an exception to termination of parental rights when “the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) This exception thus requires a parent to make two showings: (1) that he or she has visited regularly with the child and (2) that the child would benefit from continuing the parent-child relationship. (§ 366.26, subd. (c)(1)(A).) In determining whether a parent has established the second of these elements, the juvenile court determines whether the benefit to the child of continuing the relationship outweighs the benefits of adoption. (Autumn H., supra, 27 Cal.App.4th at p. 575.) It is not sufficient for the parent merely to show “some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (Jasmine D., supra, 78 Cal.App.4th at p. 1349.) Instead, the child’s relationship with the biological parent 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 other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (Autumn H., supra, 27 Cal.App.4th at p. 575; accord Jasmine D., supra, 78 Cal.App.4th at pp. 1344-1345, 1347-1350; In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) Finally, the relationship between the biological parent and the child must be a parental relationship, not merely a friendly or familiar relationship. (Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Brittany C., supra, 76 Cal.App.4th at p. 854 [“[A] child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent.”].)
Here, the juvenile court ruled that the exception did not apply, noting that Mother, “by her own actions, absented herself from [Drake’s and W.C.’s] lives.” Mother’s challenges to the ruling are not persuasive. As to the visitation element, Mother notes that during the period of her incarceration beginning in April 2006, the children visited her in jail. However, as the Department notes, this does not necessarily demonstrate a strong effort by Mother to visit with the children, as the Department arranged the visits with jail personnel and brought the children to see Mother. When Mother was released to a residential treatment facility in December 2006, the children visited her there once, but Mother then left the facility without permission on December 14 and had no contact with the Department and no visits with Drake and W.C. until after she was rearrested on February 11, 2007. This record demonstrates, at best, an inconsistent commitment by Mother to visitation and contact with Drake and W.C.
As to the second element of this exception, Mother has not shown that the juvenile court erred in concluding that the benefits of adoption would outweigh the benefit to Drake and W.C. of continuing their relationship with Mother. Mother’s only argument on this point is that she cared for the children when they lived with her before she was incarcerated and that “[t]here was never even a hint that she had been a bad mother to them.” However, as the Department notes, there were multiple referrals to the Department about Mother’s care of the children even before the Department filed its original dependency petition in November 2004. Moreover, since April 2006, Mother’s only contact with the children was in periodic jail visits, and Mother apparently did not provide any care for the children during that time, leading the juvenile court to observe that this case is similar to those in which courts have found that the relationship at issue was a friendly relationship but not a parental relationship.
More importantly, even if Drake’s and W.C.’s relationship with Mother was somewhat beneficial to them, the record supports the conclusion that the benefit of adoption outweighed the benefit of continuing the relationship with Mother and that the permanency and stability of adoption would best meet Drake’s and W.C.’s needs. After being in the dependency system since November 2004 and in four foster care placements since Mother’s arrest in April 2006, Drake and W.C. were in a loving and stable home with foster parents who wanted to adopt them. Against this backdrop, the juvenile court found, in the context of discussing the sibling relationship exception, that a permanent plan other than adoption, such as guardianship, would leave Drake and W.C. in limbo and would not be in their best interests. This conclusion was supported by the record and also supports the juvenile court’s decision not to apply the beneficial parental relationship exception.
E. Guardianship
Mother argues broadly that the juvenile court erred in selecting adoption as the permanent plan for Drake and W.C. because guardianship would have provided a better alternative. However, she does not tether this argument to any of the exceptions to termination of parental rights specified in section 366.26, subdivision (c)(1). As noted above, at a section 366.26 hearing, if the children are adoptable, the court must terminate parental rights and order adoption as the permanent plan unless the parents establish that one of the statutory exceptions applies. (§ 366.26, subd. (c)(1); Cynthia D., supra, 5 Cal.4th at pp. 249-250.) Adoption is the preferred permanent plan because guardianship is “‘not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.’” (Zachary G., supra, 77 Cal.App.4th at p. 809, quoting Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 251.) There is no independent “best interests” exception to adoption distinct from the statutory exceptions and no basis for considering other placement options if no statutory exception applies. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1069-1071.) Because Drake and W.C. are adoptable and none of the statutory exceptions applies, the juvenile court was required to order adoption as the permanent plan and could not have ordered guardianship.
Mother notes that the juvenile court in In re Brandon C. (1999) 71 Cal.App.4th 1530, approved a permanent plan of guardianship, and the appellate court affirmed. However, the court ordered guardianship only after concluding that the beneficial parental relationship exception to termination of parental rights in section 366.26, subdivision (c)(1)(A) applied. (71 Cal.App.4th at p. 1533.)
Mother also presents a collection of related arguments about the presumptions and proof requirements she claims applied in the juvenile court. None of these arguments has merit. First, Mother contends that, under Santosky v. Kramer (1982) 455 U.S. 745 (Santosky), the Department was required to prove by clear and convincing evidence that termination of her parental rights was appropriate because she was unfit to raise her children. In Santosky, the United States Supreme Court reviewed a New York statutory scheme that permitted termination of parental rights upon proof by a preponderance of the evidence that the parents had “permanently neglected” the child. (Santosky, supra, 455 U.S. at p. 747.) The Supreme Court held that, in light of parents’ liberty interest in raising their children, due process required the use of the clear and convincing evidence standard at the “factfinding” stage of the New York proceedings where the focus was on determining parental “fault” and where “the focus emphatically [was] not on [the children or the foster parents].” (Id. at pp. 747-748, 753, 758-761.) However, in Cynthia D., our Supreme Court distinguished Santosky and ruled that, in a section 366.26 hearing, due process does not require proof of parental fault or unfitness by a clear and convincing evidence standard. (Cynthia D., supra, 5 Cal.4th at pp. 253-256.) Under the California statutes, by the time dependency proceedings have reached the stage of a section 366.26 hearing, there have already been multiple findings of parental unfitness, and the focus has shifted from the interests of the parents to the interests of the adoptable child. (5 Cal.4th at pp. 253-254, 256.) Accordingly, at a section 366.26 hearing, the only two prerequisites to termination of parental rights are (1) clear and convincing evidence that the child is adoptable, and (2) a previous decision to terminate reunification services. (5 Cal.4th at pp. 249-250.) Here, the juvenile court previously terminated reunification services to both Father and Mother, based in part on findings that returning Drake and W.C. to Father’s and Mother’s custody would be detrimental. Moreover, it is undisputed that Drake and W.C. are adoptable. No further proof of parental fault or unfitness was required.
Second, in a related argument, Mother argues generally that dependency law favors reunification of children with their biological parents whenever possible, and that termination of parental rights and placement for adoption is only appropriate if it is “the least detrimental alternative for the child.” However, once reunification services are ordered terminated, the focus shifts away from reunification to the child’s need for permanency and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Accordingly, the purpose of the section 366.26 hearing is to select the appropriate permanent plan for the children, not to consider further efforts at reunification. (5 Cal.4th at p. 309 .) Moreover, at a section 366.26 hearing, there is no requirement that the Department prove that termination of parental rights is the least detrimental alternative for the child. Instead, adoption is the preferred permanent plan (§ 366.26, subd. (b); Autumn H., supra, 27 Cal.App.4th at p. 573), and the statutory exceptions to termination of parental rights are the mechanisms the Legislature has selected to ensure that termination “is in the child’s best interests and is the least detrimental alternative.” (In re Carl R., supra, 128 Cal.App.4th at p. 1070; In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1165 [statutory exceptions are a “final check” to ensure termination is in the child’s best interests and is the least detrimental alternative].) Because no exception applies here, there was no need for the juvenile court to make any further inquiry into whether termination of parental rights was the least detrimental alternative for Drake and W.C.
III. DISPOSITION
The juvenile court’s October 26, 2007 order terminating parental rights and ordering adoption as the permanent plan for Drake and W.C. is affirmed.
We concur: JONES, P. J., NEEDHAM, J.