Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD227809
RAYE, J.M.M. and J.R., parents of the minor, appeal from orders of the juvenile court terminating their parental rights and freeing the minor for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) Appellants contend that reversal is required because reversal of the order terminating the parents’ rights as to the siblings in In re S.R. (2009) 173 Cal.App.4th 864 completely undermines termination of parental rights in this case. We disagree and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS
The minor, R.R., was born during a pending dependency proceeding involving the minor’s siblings based upon risk to the siblings from parental domestic violence. Appellants had failed to reunify with the siblings and services in that case had been terminated when the Sacramento County Department of Health and Human Services (Department) filed a detaining petition for this minor. The newborn minor was placed in foster care. The court denied services in this case and set a section 366.26 hearing.
The report for the hearing stated the six-month-old minor was healthy, was developing normally, and enjoyed the attention of her siblings, with whom she was placed. The Department assessed she was likely to be adopted due to her age, lack of problems, and the willingness of the current caretakers to adopt her. A caregiver information form filed six weeks after the report stated the minor might have some delays and an evaluation by Alta Regional Center was pending. The caregiver form further stated the minor had been placed with her siblings for four months and they were developing a bond with her.
At the section 366.26 hearing, the father testified that he had changed and asked for an opportunity to show he was a good father. Counsel for the father argued for a permanent plan of guardianship to give the parents an opportunity to reunify with the minor. After hearing the testimony and argument, the court, focusing on the minor’s best interests, concluded there was no alternative to adopting the Department’s recommendation to terminate parental rights. The court stated “I cannot find that it is anything else than in her best interests to go forward with a plan of adoption with this child being in a home with her siblings.” The court identified the current caretakers as the prospective adoptive parents and ordered a permanent plan of adoption, terminating parental rights.
DISCUSSION
I
Focusing on the court’s statement during its ruling that referred to the minor’s “being in a home with her siblings,” appellants argue reversal is required because the “foundation” of the order has been undermined by reversal of the order terminating parental rights in the sibling case. We disagree.
Appellants have requested this court take evidence of events that occurred after the termination order, specifically this court’s order reversing the order terminating parental rights as to the siblings in In re S.R., supra, 173 Cal.App.4th 864. We decline to take additional evidence pursuant to Code of Civil Procedure section 909, and to the extent that appellants are requesting judicial notice, we deny the request as unnecessary.
Contrary to appellants’ characterization, we do not read the juvenile court’s remarks as either placing a limitation on the minor’s adoptability or acknowledging an exception to the preference for adoption that might come into play were the siblings not to be adopted. The juvenile court’s comments are nothing more than a statement of existing facts. Consequently, the status of the siblings’ case is of no relevance to the issues in this case. Appellants’ argument also may be interpreted as a challenge to the adoptability finding and an assertion of the sibling exception to the preference for adoption. Neither argument is successful.
Adoptability
“‘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.]’ [Citation.] 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.) Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) “[T]here must be convincing evidence of the likelihood that the adoption will take place within a reasonable time.” (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) The fact that a prospective adoptive family is willing to adopt the minor is evidence that the minor is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
Here, the minor was eight months old at the time of the section 366.26 hearing, healthy, and without significant problems. While an assessment from Alta Regional Center was pending, there was no indication that the nature or degree of any delays she might have, which had only recently come to light, were of such severity as to make it unlikely she would be adopted. The current caretaker had expressed interest in adopting her and there was no evidence this interest had waned. Because the minor was likely to be adopted in a reasonable time, the court was required to select a permanent plan of adoption unless evidence of an exception to the preference for adoption was adduced.
Sibling Exception
There are only limited circumstances that permit the court to find a “compelling reason for determining that termination [of parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) One such circumstance is when “[t]here would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (§ 366.26, subd. (c)(1)(B)(v).) The court must consider the interests of the adoptive child, not the siblings, in determining whether termination would be detrimental to the adoptive child. (In re Celine R. (2003) 31 Cal.4th 45, 49-50; In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) “To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. [Fn. omitted.] Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.)
The facts before the court did not establish the sibling exception. The minor was an infant and had lived with her siblings for only about six months at the time of the hearing. Due to her young age, she did not share common experiences with them except insofar as they shared the same home. The siblings were beginning to bond to her and she enjoyed their attention. However, this evidence does not show a strong bond or a significant relationship that if severed by adoption would cause detriment to the minor. The juvenile court could not have found the sibling exception applied to defeat the preference for adoption. The juvenile court did not err in terminating parental rights and freeing the minor for adoption.
DISPOSITION
The orders of the juvenile court are affirmed.
I concur: NICHOLSON, J.
I respectfully dissent from the analysis and result of the majority opinion. The majority opinion affirms the judgment terminating the parental rights of R.R. and placing her for adoption.
Here is the way I see it:
R.R. was born in July 2008.
R.R. has three siblings who are now eight years old, six years old and five years old respectively.
R.R.’s placement with her older siblings, who were dependants of the court and had had their parental rights terminated, was crucial to the court’s decision to terminate parental rights and place R.R. for adoption.
Thus, the selection and implementation report stated, “The child is placed with her three older siblings. This arrangement seems to work well and no problems were reported, despite the age differences between them.” The report continues, “The child is currently placed with her three siblings. The child gets a lot of attention from her older siblings and no problems were reported.” The report says further, “The child was placed with the current caregivers along with her three older siblings and they have been providing a stable environment for the child.”
A “Caregiver Information Form,” filed after the selection and implementation hearing, reported: “R[.] is placed with her three biological siblings. Her siblings interact with her daily and are forming family bonds with her. She has been in placement for four months and is very comfortable and thriving well within the family.”
At the conclusion of the selection and implementation hearing, the minor’s counsel argued as follows: “I am asking the court to adopt the recommended findings and orders. This child is already eight months old and has been bonding with a family and siblings. [¶]... [¶]... I don’t see how it’s in the interest [sic] for this child to be pulled from the siblings and a new family that it’s been with for the past eight months.”
In a similar vein, County Counsel, representing DHHS, argued as follows: “I would add that adoption is the preferred plan. We have a home here where R[.] has three other biological siblings in the home.”
In ordering the termination of parental rights and in placing R.R. for adoption, the juvenile court said, “I also have no doubt that both parents have a lot of love for this child, but I cannot find that it is anything else than in her best interests to go forward with a plan of adoption with this child being in a home with her siblings.”
From the foregoing, it is manifestly clear that the minor’s placement with her older siblings was a crucial consideration leading the juvenile court to terminate parental rights and to place R.R. for adoption so that she could remain with her three older siblings with whom she was forming a bond.
However, in May 2009, after R.R.’s selection and implementation hearing, this court, in an opinion by Justice Nicholson, reversed the orders terminating parental rights and placing the older siblings for adoption. (In re S.R. (2009) 173 Cal.App.4th 864.) This court held that the juvenile court erred in first ordering a bonding study and then modifying its order so as not to require a bonding study when it was disclosed that the parents did not speak English and no psychologist could be found who spoke Spanish adequately to perform the bonding study. (Id. at p. 869.)
We do not know what has happened to the older siblings after the termination of their parental rights was reversed in In re S.R. So far as the record discloses, and in light of In re S.R., the situation is as follows: the parental rights of R.R. have been terminated, and she will be placed for adoption, but the parental rights of her three older siblings have not been terminated and they may not be placed for adoption. This creates the very strong probability that R.R. and her three older siblings will not remain in the same household. However, this was precisely the situation that led the juvenile court to terminate R.R.’s parental rights, i.e., so she could be placed with her three older siblings.
It seems to me that the only sensible thing to do is to reverse the orders terminating R.R.’s parental rights and placing her for adoption, and remand to the juvenile court for consideration of the situation in light of whatever circumstances may exist with respect to the three older siblings. R.R. and her three siblings should remain together.
SIMS, Acting P. J.