Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD224631, JD224632, JD224822
SIMS, J.
Appellant M.H., mother of minors R.D., A.A., and A.D., appeals from the juvenile court’s orders terminating her parental rights and freeing the minors for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) Mother contends the juvenile court erred by finding that neither the beneficial parent-child relationship exception nor the sibling exception to adoption applied; she also contends the court improperly delegated its authority to decide the minors’ placement to the Sacramento County Department of Health and Human Services (DHHS). We shall affirm.
Undesignated section references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A.A. was born in July 2000; her father is J.A. A.D. was born in July 2004; R.D. was born in February 2006. Their father is An. D.
In July 2006, DHHS took R.D. (then five months old) and A.D. (then two years old) into protective custody. DHHS filed petitions as to both minors under section 300, citing subdivisions (b) (failure to protect), (e) (severe child abuse of child under five), and (j) (abuse of sibling) as to R.D., and subdivisions (b) and (j) as to A.D. The petitions alleged:
On or about July 20, 2006, mother claimed to have fallen on the kitchen floor while holding R.D.; during the fall, R.D.’s head allegedly struck the back of a chair, leading to swelling the next day. When examined at UC Davis Medical Center on July 22, 2006, R.D. was found to have sustained subarachnoid and subdural hemorrhaging, scalp soft tissue swelling, and a left frontal skull fracture. The injuries were inconsistent with mother’s explanation, pointed to nonaccidental child abuse, and would not ordinarily occur but for the parents’ unreasonable or neglectful acts or omissions.
On or about July 24, 2006, A.D. was examined at UC Davis Medical Center CAARE Center. The examining physicians noted failure to thrive, unusual facial appearance and expression, possible fetal alcohol syndrome, unusual rigid gait, and an upper respiratory infection. Additionally, A.D.’s sibling displayed multiple bruises, causing great concern in view of the sibling’s likely history of abuse.
The DHHS’s detention report noted that the emergency response social worker opined R.D.’s injuries could not possibly have occurred as M.H. said they did. An.D. claimed he did not see the injury happen and heard about it from M.H. M.H. told the social worker that a third child, A.A., was visiting her paternal grandmother in Washington state until the end of August 2006; A.A.’s father, J.A., was not married to M.H., did not sign the declaration of paternity, and was not listed on the child’s birth certificate.
On July 28, 2006, the juvenile court detained A.D. and R.D. pending a jurisdictional hearing (which, due to multiple continuances, did not take place until January 31, 2007).
On September 11, 2006, DHHS took A.A. into protective custody. The next day, DHHS filed a section 300 petition as to A.A., citing subdivisions (b) and (j). In addition to repeating the allegations of the prior petitions, this petition alleged: A.A. and the other minors had suffered ongoing neglect in M.H.’s home. They had gone unsupervised for hours at a time while M.H. slept, leading to A.A. wandering down the street unsupervised, A.D. breaking her right femur, the minors going unfed and unwashed, and A.A. presenting with untreated head lice as recently as July 2006. M.H. had failed to maintain a safe and stable living environment for them, placing them at severe risk of abuse and neglect in her care. J.A., A.A.’s father, had allowed her to return to M.H.’s care, knowing of the conditions in M.H.’s home. Furthermore, M.H. had subjected the minors to ongoing domestic violence involving both the fathers, including but not limited to the parents physically assaulting one another and extended-family members in the minors’ presence, placing the minors at severe risk of abuse or neglect in the parents’ home.
R.D. and A.D. had been detained in the same foster home since August 1, 2006. It was not possible to place A.A. in that home, so she was placed in another foster home through the same agency to facilitate visitation.
DHHS’s jurisdiction/disposition report as to A.D. and R.D. and its detention report as to A.A. further alleged: A.A. had not been placed into protective custody before only because she had been in Washington. M.H. denied all charges of abuse or neglect, yet the other minors had sustained serious physical injuries in her care, and she had had outbursts of anger throughout A.A.’s life. J.A. claimed that M.H. had assaulted him repeatedly. He had had no contact with A.A. for five years before her recent visit to Washington, but according to A.A.’s paternal grandmother, she had always looked dirty and seemed neglected by M.H.
The reports also detailed M.H.’s prior contacts with child welfare in Utah from 2002 through 2005 and in California in June 2006. The Utah contacts included two substantiated referrals for lack of supervision of A.A., and a referral for severe physical abuse as to A.D. (then one year old), who was hospitalized with a broken arm, allegedly caused by A.A. (The doctors concluded that it would have been very difficult for A.A. to have caused the injury.) The California referral, for general neglect in Placer County, was based on the minors’ “filthy” appearance and seasonally inappropriate clothing, R.D.’s appearance of malnutrition and failure to thrive, and the “bug bites” on his legs; this matter was still under investigation.
The jurisdiction/disposition report also recounted interviews with the minors’ maternal relatives.
At the jurisdictional hearing on January 31, 2007, the juvenile court sustained the petitions as to all three minors, finding a preponderance of evidence supported the allegations filed under section 300, subdivisions (a), (b), and (j).
At the dispositional hearing on February 5, 2007, the juvenile court ordered the minors placed in foster care and granted reunification services to M.H. and An.D., but not to J.A. The court found that M.H. had partially complied with her case plan and had made fair progress toward alleviating or mitigating the causes necessitating placement.
The social worker’s report as to R.D. and A.D. filed March 9, 2007, observed that they were doing well in placement and regularly saw A.A. The social worker recommended continuing reunification services for M.H., but terminating them for An.D., who had failed to participate in services, had a criminal record involving narcotics, and appeared unwilling or unable to address his case plan objectives. M.H. had participated in her case plan and had tested negative for drugs; however, she had not completed anger management, she still denied that the children had been abused, and she had not allowed Child Protective Services (CPS) to evaluate her home, in which An.D. also lived. Though she regularly visited the minors, she rarely showed them physical affection and did not seem responsive to suggestions from the social worker; visitation should therefore remain supervised. Additional services were recommended to help her gain insight into the underlying problems.
After a contested permanency review hearing on April 30, 2007, as to A.D. and R.D., the juvenile court continued reunification services for M.H. and terminated them for An.D.
On May 8, 2007, at the social worker’s request, the juvenile court ordered a psychological evaluation of M.H. so as to tailor services better to her.
On May 15, 2007, at a prepermanency hearing as to A.A., the juvenile court set the matter for a permanency hearing (§ 366.21, subd. (f)) on November 5, 2007. The court found that because M.H. still denied physical abuse, it was not likely that the minor could safely be returned home.
On August 6, 2007, M.H. filed a section 388 petition to request modification of the court’s current orders, asking that all the minors be placed with her and that she be allowed to discontinue drug testing. She claimed she had completed anger management and individual counseling, was participating in unsupervised visitation with A.A. and supervised visitation with R.D. and A.D., and had adequately addressed all issues that led to the dependency.
On August 24, 2007, the social worker furnished to the juvenile court the consultant’s report of psychologist Janice Nakagawa, which recommended that the minors not be returned to M.H.’s care. DHHS endorsed Dr. Nakagawa’s recommendation.
Dr. Nakagawa’s report stated: “It is the opinion of this evaluator that under no circumstances should reunification be considered for mother and her children. She presents as irresponsible and continues to present a potential danger to her children, because she has demonstrated she is quite capable of ignoring safety issues when it comes to vulnerable people (like children) for whom she supposedly was responsible. She may be inclined towards distortion if not prevarication in order to avoid taking personal responsibility for herself and her actions.” According to Dr. Nakagawa, M.H. was narcissistic with histrionic traits. She showed no remorse for what had happened to the minors. She now claimed for the first time that An.D. had injured the minors; nevertheless, she had continued to live with him until March 2007. What really caused the minors’ injuries was unknown, but “it would not be surprising if there were elements of collusion between Mother and Father regarding the events that occurred.”
After a contested permanency hearing (§ 366.21, subd. (f)) on March 6, 2008, as to all three minors, the juvenile court denied M.H.’s section 388 petition, ordered her reunification services terminated, and set the matter for a selection and implementation hearing (§ 366.26) 120 days later. The court found: (1) returning the minors to M.H. would create a substantial risk of detriment to their well-being; (2) there was not a substantial probability that they could be returned home within the next six months; and (3) M.H. had made only minimal progress in a court-ordered treatment plan. The court further found that the minors were adoptable and ordered a permanent plan of adoption.
More specifically, the court found that although M.H. had attended reunification services, she had given nine different accounts of how R.D. was injured, casting doubt on her credibility and her ability to protect the minors. She had never taken personal responsibility for R.D.’s injuries, casting doubt on her ability to reduce the risk of future physical abuse and neglect. Dr. Nakagawa’s evaluation, with which M.H.’s therapist did not disagree, stated that M.H. was a potential danger to her children and is capable of ignoring safety issues. M.H.’s diagnosis posed a serious question whether she had the capacity to complete the treatment objectives. M.H. had refused referrals to help her protect herself and the minors from An.D. Finally, M.H. admitted the minors could not live with her in her current residence.
In its oral ruling, the juvenile court stated on this point:
On March 13, 2008, M.H. gave notice of her intent to file a petition with this court under rule 8.450 of the California Rules of Court. But after she had failed to do so by June 9, 2008, we closed the matter on June 12, 2008.
On June 20, 2008, DHHS filed a selection and implementation report. According to the report, M.H. had been consistently having supervised twice-a-month visitation with the minors. At the April visitation supervised by the reporting social worker, M.H. was “caring towards the children” and the children were “excited to be around their mother”; however, “the children did not appear to be distressed at the time of separation from the mother, and... easily ran to their current caregivers.”
The minors currently lived in the same foster/adoptive home. R.D. and A.D., who had been there since October 17, 2006, appeared to be bonded with the current caregivers, but A.A., who had not been placed there until December 23, 2007, was “still adjusting to the placement.” Because A.A. had been diagnosed with attention deficit disorder and posttraumatic stress disorder, her therapist thought she would benefit from a home environment that would give her one-on-one attention. The minors’ current caregivers were the prospective adoptive parents for R.D. and A.D. The maternal grandparents, who lived outside Sacramento County, had asked to be considered as adoptive parents for the minors or for A.A. in particular. Even though placing A.A. there would separate her from her half siblings, it appeared a better option for her than the current placement, where she would have to compete for parental attention not only with R.D. and A.D. but also with the caregivers’ biological son and guardian son. A.A. had said she would very much like to live with her grandparents. However, M.H. did not approve of the proposal to place A.A. with them, feeling the minors should be kept together and questioning the grandparents’ sanity.
The therapist restated this opinion in writing on July 21, 2008. Her letter was filed with the juvenile court.
M.H.’s pretrial statement for the selection and implementation hearing asserted that there was a significant bond between her and the minors; they would benefit from a continued relationship with her; the siblings should not be separated; and the maternal grandparents could not address A.A.’s needs.
At the contested selection and implementation hearing on July 22, 2008, M.H. testified that she and the minors had supervised two-hour visits every two weeks. At the start of the visits, “[a]s soon as they see me they run screaming into the room, mommy, mommy, mommy.” They would spend the time playing games with her. They were happy while the visits lasted, then got sad. A.D. always said: “I want to go home with you, Mommy.” M.H. still wished she could have the minors back, but since that was not possible she wanted them to stay together and did not want A.A. placed with the grandfather.
The minors’ counsel concurred in DHHS’s recommendation that A.A. be placed with the grandparents. Counsel stated that they and the current caregivers had established a relationship and intended to maintain the siblings’ contact with each other.
M.H.’s counsel argued that M.H. and the minors (especially A.A.) had a strong bond, and termination of parental rights would be detrimental to the minors’ well-being. But if the minors were to be adopted they should be placed together, rather than sending A.A. several hundred miles away.
DHHS’s counsel asserted that by her own account M.H. was merely a “playmate” to the minors, not a parent. Furthermore, all of the minors had been out of M.H.’s care for almost two years already. The grandparents lived in Southern California, and they had already agreed with the current caregivers that visitation among the siblings would occur several times a year.
The juvenile court asked DHHS’s counsel if the minors’ current caretakers agreed with DHHS’s judgment that placement with the grandparents would be best for A.A. Counsel replied that the caretakers clearly wanted to adopt the other two minors, and would adopt A.A. as well if the court so decided, but had no problem with A.A. going to live with the grandparents.
The juvenile court orally ordered that M.H.’s parental rights be terminated. The court found by clear and convincing evidence that the minors were likely to be adopted by one or both sets of prospective adoptive parents; furthermore, M.H. did not play a parental role in the minors’ lives, and there was insufficient evidence of detriment to the minors to keep M.H.’s parental rights intact. The court said it would leave the issue of appropriate adoptive placements to DHHS’s discretion.
The court also terminated the parental rights of J.A., A.A.’s father.
In its written rulings after the hearing, the juvenile court modified its oral ruling to order A.A. placed with her maternal grandfather. The court continued to commit R.D. and A.D. to the custody of DHHS for placement.
DISCUSSION
I
M.H. contends that the juvenile court should have refrained from terminating her parental rights based on her beneficial relationship with the minors. We disagree.
“‘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. [Citation.]’ [Citations.] 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.) One such circumstance is that “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
The parent has the burden of establishing an exception to termination of parental rights. (Cal. Rules of Court, rule 5.725(e)(3); In re Zachary G. (1999) 77 Cal.App.4th 799, 809 (Zachary G.).) To meet this burden as to the beneficial parent-child relationship exception, it is not enough simply to show “some benefit to the child from a continuing relationship with the parent, or some detriment from termination of parental rights.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349 (Jasmine D.).) Nor is “frequent and loving” contact sufficient to overcome the preference for adoption; there must also be a significant, positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 (Beatrice M.).) Even a strong positive bond with a parent may be insufficient to defeat adoption if a child looks to a prospective adoptive parent to meet his or her needs. (Zachary G., supra, 77 Cal.App.4th at p. 811.) “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoption.” (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
On appeal, we uphold a juvenile court’s ruling declining to find an exception to termination of parental rights if supported by substantial evidence. (Zachary G., supra, 77 Cal.App.4th at p. 809.)
Substantial evidence supports the juvenile court’s finding on this issue. The minors had been out of M.H.’s home for almost two years by the time of the section 366.26 hearing (more than half of R.D.’s life and approximately half of A.D.’s life). According to Dr. Nakagawa’s assessment, with which the social workers and M.H.’s therapist agreed, M.H. had never had a proper parental relationship with the minors and her narcissistic personality made it unlikely that she could ever form such a relationship; in fact, her lack of attention to them had regularly put them at risk. Although M.H. visited them regularly and they enjoyed the visits, the social worker who supervised the visits characterized the interactions as those of playmates rather than of parent and child. Finally, A.D. and R.D. looked to their current caregivers and prospective adoptive parents to meet their needs, and A.A.’s need for one-on-one parental attention can be met in her grandparents’ home.
M.H. asserts that she satisfied both prongs of the statutory exception because (1) she maintained regular contact and visitation with the minors and (2) her relationship with them was “tender, caring, mutual, and full of love and affection.” Even if the evidence established both points, they would not be enough to overcome the statutory preference for adoption. (Jasmine D., supra, 78 Cal.App.4th at p. 1350; Zachary G., supra, 77 Cal.App.4th at p. 811; Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419.) And M.H.’s second point, which is unsupported by record citation, ignores the abundant evidence to the contrary.
M.H. relies heavily on her own account of her visitations with the minors, which she calls “uncontested” and “uncontradicted.” She appears to assert that because her testimony was uncontradicted, the juvenile court should not have disregarded it. We are not persuaded.
First, her testimony was not uncontradicted: although she claimed that A.D. was sad when the visits ended and always said she wanted to go home with her mother, the social worker’s report stated that the minors never seemed distressed when the visits ended and cheerfully returned to their current caregivers. Second, when the juvenile court terminated M.H.’s reunification services, it expressly found that she was not credible on any topic. A trier of fact is not required to accept even the uncontradicted testimony of a witness it has already found unworthy of belief.
M.H. also asserts that children benefit from having more than one significant relationship; such relationships should not be “disposed of”; adoptions often fail; and “[t]he biological family is the source of identity for a child.” These general reflections do not state grounds for overcoming the statutory preference for adoption and the substantial evidence in support of the juvenile court’s ruling.
M.H. has shown no grounds for reversal on this issue.
II
M.H. contends that the trial court should have refrained from terminating her parental rights because the sibling relationship exception to adoption applied. We disagree.
The sibling relationship exception to adoption applies if “[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 the 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).) A parent appealing the termination of parental rights has standing to raise this exception. (In re Erik P. (2002) 104 Cal.App.4th 395, 402 (Erik P.); see In re Asia L. (2003) 107 Cal.App.4th 498, 514-515.) As on the previous issue, our standard of review of the juvenile court’s finding that this exception did not apply is substantial evidence. (Id. at p. 403.)
DHHS asserts that M.H. may not raise this issue here because she did not properly raise it below. DHHS concedes that she cited it as an issue in her pretrial statement. However, according to DHHS, she did not argue it at the selection and implementation hearing, and the juvenile court had no obligation to consider it sua sponte; thus, it is forfeited on appeal. (Cf. In re Daisy D. (2006) 144 Cal.App.4th 287, 292 (Daisy D.); Erik P., supra, 104 Cal.App.4th at p. 403.) DHHS is mistaken.
M.H did not merely raise the issue in her pretrial statement. She testified that the minors should stay together, and her counsel so argued at the close of the hearing. Furthermore, since DHHS’s selection and implementation report extensively discussed the factual questions bearing on the issue, and counsel for the minors and DHHS discussed it further in argument, it is clear that the juvenile court was aware of all the factors that mattered to its decision. Thus, M.H. has not forfeited the issue.
On the merits, however, M.H.’s contention fails. The exception she urges “applies only when adoption would result in ‘substantial interference with a child’s sibling relationship.’ (§ 366.26, subd. (c)(1)(E) [now (c)(1)(B)(v)].)” (Daisy D., supra, 144 Cal.App.4th at p. 294.) Here, even if A.A. is placed separately from A.D. and R.D., the record shows that both sets of adoptive parents understand the importance of the sibling relationship and have worked together amicably to ensure that it will be maintained by regular visits.
Furthermore, even if there might be substantial interference with the sibling relationship, this does not decide the question: the juvenile court must then “‘weigh the child’s best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption.’ [Citation.]” (Daisy D., supra, 144 Cal.App.4th at p. 293.) Here, there is substantial evidence that A.A. would receive a significant benefit from adoption by her grandparents: the experts who addressed the question agreed that her psychological difficulties (attention deficit disorder and post-traumatic stress disorder) require one-on-one attention, which she cannot get if placed with her siblings (and two other minors living in the same household). Thus, the juvenile court could reasonably have concluded that even if the separate placement led to the discontinuance of A.A.’s relationship with her siblings, the benefit to A.A. from that separate placement would outweigh the detriment to her.
M.H. does not address any of the above evidence. She simply asserts that the minors have a strong bond, then discusses the theoretical advantages of maintaining sibling relationships, then distinguishes this case from one other case in which little or no sibling relationship existed. These arguments do not meet her appellate burden.
M.H. has shown no grounds for reversal on this issue.
III
Finally, M.H. contends, without separately heading or subheading the point, that the juvenile court erroneously delegated the decision whether the minors should stay together to DHHS. Arguments raised in appellate briefs without separate headings or subheadings are forfeited. (Cal. Rules of Court, rule 8.204(1)(B); Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1381, fn. 4.)
But even if the argument is properly before us, it lacks merit. M.H. does not cite to the record to support it. Nor does she mention anywhere in her brief that the juvenile court modified its orders after the selection and implementation hearing to order the placement of A.A. with her grandparents. There was no improper delegation to DHHS.
DISPOSITION
The judgment (orders after hearing) is affirmed.
We concur, BLEASE, Acting P. J., NICHOLSON, J.
A maternal uncle said that A.A. had told him in January 2005 that M.H. continued to tell her she broke A.D.’s leg, but she did not. The minors often had unexplained marks and bruises. A.A. was very quiet around her mother and appeared fearful of answering questions in her mother’s presence. He often brought food to M.H.’s house, and the children acted as if they were starving; she fed them only on her schedule. He had offered to keep A.A. when M.H. moved to California, but M.H. had declined the offer. M.H. had been violent her entire life, including toward family members; An.D., the younger minors’ father, was also violent.
Two maternal aunts gave similar accounts. However, the maternal grandmother believed M.H. had been wrongly accused.
“This case to me came down and hinged upon the credibility of the mother. I could not find [M.H.] to be credible. I believe the mother was very emotional when she testified. She was certainly tearful, which is consistent with the reports of other individuals. But her statement just remains very convoluted and unbelievable. She seems to recognize that, I should have told, that’s what I would do different, but doesn’t seem to recognize the remaining inconsistencies in her statement.
“She indicated she believed the father regarding the stories she was providing of the child’s injuries but then indicates that the father was violent. She indicates she has no idea how R[.] got hurt because the father gave her a number of different stories. She testified that she didn’t believe that the father fell with R[.] and hit his head on the chair. She testified at some point in time she did believe him initially because she loved him and trusted him, but her reason then for not being able to take the child for care was because he was violent. She didn’t get care for the child. The excuse for that alternated from, I kept an eye on him; I didn’t think the child needed care[;] to[,] I was simply unable to because I feared the father that at the time I apparently believed and trusted and didn’t have any doubts about.
“The evidence before me doesn’t even establish -- at this point in time, I just can’t find [M.H.] to even be credible enough to believe her assertions it was the father that did it. In my mind there’s still the very real question as to how this child was injured. Some of that is by virtue of the fact that the mother, while tearful, otherwise demonstrated very little affect in terms of what she’s testifying to in regard to what happened to her child. The nine different stories regarding what’s possibly happened to this child makes it very difficult [for] anybody to know what happened, and the mother has not demonstrated she’s in a position to be able to protect these children now or even in the foreseeable future.”