Opinion
E069439
03-06-2018
In re M.L. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.L., Defendant and Appellant.
Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J266516 & J266517) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
A.L. (mother) appeals from orders terminating her parental rights to her daughters M.L. and A.M. Although she phrases her arguments differently in her briefs, boiled down to their essence, mother's claims fall into three categories: (1) the social service agency's preliminary assessment of A.M.'s adoptability and of the prospective adoptive mother's suitability did not comply with the pertinent statutory requirements; (2) A.M. was not generally adoptable, and the record does not contain substantial evidence to support a finding that she was specifically adoptable; and (3) the juvenile court erred by not considering the sibling relationship exception before terminating mother's parental rights.
We conclude mother forfeited her challenges to the assessment report by not objecting to its adequacy in the juvenile court. Whether A.M. is generally adoptable is irrelevant because the record contains substantial evidence to support the juvenile court's implied finding that she was specifically adoptable. Finally, the juvenile court was not required to address the sibling relationship exception sua sponte, and mother forfeited her claim of error by not addressing the exception in the juvenile court. Therefore, we affirm the orders terminating mother's parental rights.
I.
FACTS
A. Detention.
A social worker with the San Bernardino County Children and Family Services (CFS) responded to the hospital based on a report that mother and M.L. had tested positive for amphetamines. Mother had given birth to M.L. in a riverwash and was transported to the hospital by paramedics. Mother received no prenatal care, and she had a history of chromic homelessness and drug use. She admitted to using methamphetamine a week before giving birth to M.L. Mother gave inconsistent stories about her living situation, telling nurses she lived with a friend but also saying she was homeless.
A.M., who was three years old at the time, was living with her paternal grandmother. Mother gave birth to A.M. in Nevada and came to the attention of the local child protective services. A.M. was born with medical issues because of mother's drug use. She was developmentally delayed, partially blind, and nonverbal. To prevent A.M. from being placed in a foster home in Nevada, the paternal grandmother agreed to care for her and traveled to Nevada to pick her up. The paternal grandmother reported that mother did not visit with A.M. or ask how the child was doing. The paternal grandmother was in the process of applying for legal guardianship of A.M. because the child needed medical care, but mother failed to sign the necessary authorizations. The paternal grandmother reported that she always saw mother on the streets using drugs. Mother refused the paternal grandmother's offers of help. The paternal grandmother told the social worker she was willing to care for M.L. and "would do anything to help." During the social worker's visit with A.M. at a paternal aunt's home, the child was dressed appropriately and well groomed. A.M. was nonverbal and made very few sounds, her eyes were crossed, and she appeared to be blind. The child was very attached to the paternal grandmother, she had memorized her surroundings, and she could walk around the house.
M.L. and A.M. have different fathers. Although she is only A.M.'s paternal grandmother, we will refer to her as the paternal grandmother throughout this opinion when discussing both children.
CFS determined the children needed to be detained. When informed of the decision to detain the children and provide mother with reunification services, mother told the social worker that she wanted both children to be placed with the paternal grandmother.
In petitions filed with the juvenile court, CFS alleged M.L. and A.M. were dependent children pursuant to Welfare and Institutions Code section 300 (all undesignated statutory references are to the Welfare and Institutions Code). In particular, CFS alleged mother was unable to adequately care for the children because of her drug use, and her unsafe and unstable lifestyle placed the children at risk of abuse, neglect, and/or harm. (§ 300, subd. (b).) (Amended petitions filed before the jurisdiction hearing contained the same allegations regarding mother.) CFS recommended the court detain the children and place them in the temporary care of the paternal grandmother subject to supervision. The juvenile court made a prima facie finding that the children were at risk of abuse or neglect. It then detained them and placed them in the care and custody of CFS.
B. Jurisdictional Finding.
In a report for the jurisdiction hearing, the social worker reported that both children had been placed in the paternal grandmother's home. The paternal grandmother was attentive to the children's needs and transported them to all necessary appointments and visits. The paternal grandmother did not report any concerns about the children. M.L. had no acute medical issues, though the paternal grandmother reported the child showed signs of prenatal drug exposure, such as shaking and being inconsolable. M.L. nonetheless was eating and sleeping well, and she appeared to be in overall good health. The social worker reported that A.M. had been diagnosed with bilateral nerve palsy and was blind. The child did not chew, so her food had to be crushed or pureed. A.M. was receiving physical and occupational therapy for her inability to chew food. A.M. appeared to be otherwise in good health, and the paternal grandmother reported the child slept and ate well.
The social worker reported that mother did not make herself available and failed to return the social worker's phone calls, so she did not start visiting the children until almost a month after the detention hearing. Mother was attentive to M.L. during her visits, but she was inattentive to A.M. and appeared to have no bond with A.M. The social worker reported that A.M. "sought out the paternal grandmother for comfort and appeared passive towards the mother." Mother informed the social worker that, if she was unable to reunify with the children, she would like the children to remain in the paternal grandmother's care.
At the jurisdiction hearing, the juvenile court sustained the allegations that the children were dependent children within the meaning of section 300, subdivision (b). The court ordered that the children remain in the paternal grandmother's care. The court subsequently appointed the paternal grandmother as A.M.'s educational representative.
C. Termination of Reunification Services.
In a report for the six-month status review hearing, the social worker recommended the juvenile court set a hearing under section 366.26 for selecting adoption as a permanent plan for the children. The social worker reported mother's ongoing drug use and transient lifestyle were a barrier to her ability to engage in reunification services or to communicate with CFS. Mother failed to engage in counseling and parenting education; she only sporadically attended substance abuse counseling; she tested positive for methamphetamine and THC; and she failed to report for numerous random drug tests. Although mother had attempted to bond with the children during her somewhat inconsistent visits, the social worker concluded mother was unable to provide the children with a safe and stable environment.
The social worker expressed doubt whether mother would be able to provide for A.M.'s developmental and medical needs into the future. A.M. had been in the care of her parental grandmother since birth and had lived with her sister M.L. since the dependency began. A.M. had been examined by physicians and the results of an MRI were abnormal. She was diagnosed with various medical issues, including disorder of the optic chiasm; bilateral optic nerve hypoplasia; partial blindness; involuntary eye movement; severe malnutrition; fetal drug exposure; a hernia; gross motor delay; premature puberty; difficulty swallowing; asthma; and speech or language developmental delay. The parental grandmother had been provided with a high-calorie diet to increase the child's weight, but the child had multiple food aversions and did not chew food. The social worker personally witnessed A.M.'s developmental delays, such as her inability to feed herself or perform personal tasks. A.M. was a tactile learner, licking and feeling objects and toys. Although the social worker reported that A.M. did not respond when the social worker tried to interact with her, A.M. laughed frequently, played with the parental grandmother, and actively sought out the parental grandmother for her physical and emotional needs. The social worker reported that A.M. was affectionate with the parental grandmother and hugged her without prompting.
The optic chiasm is the point where the optic nerves cross each other. (Stedman's Concise Medical Dict. (2d ed. 1994) p. 184, col. 2.)
Hypoplasia is underdevelopment of tissue, usually from decrease in the number of cells, or atrophy due to destruction of some of the elements of tissue or an organ. (Stedman's Concise Medical Dict., supra, p. 494, col. 2.)
The social worker reported that M.L. had no acute medical issues at that time and appeared to be happy and well adjusted. Both children had a strong attachment to the parental grandmother and had positively adjusted to their placement. Mother once more informed the social worker that, if she could not reunify with the children, she preferred that they remain in the paternal grandmother's care. The social worker reported that the parental grandmother was able and willing to adopt the children. She loved both children, enjoyed having them in her home, and was committed to them long-term. The social worker recommended the children remain in the parental grandmother's care. The social worker also opined that the children were adoptable.
At the six-month status review hearing, mother requested that the juvenile court not follow CFS's recommendation and instead grant her additional reunification services. Mother argued she had completed some reunification services and remained sober for 90 days. The juvenile court found that mother had been provided with reasonable services but failed to participate or make substantive progress on her case plan. The court found there was no reasonable probability that mother would reunify with the children within six months. Therefore, the court terminated reunification services and set a hearing under section 366.26 for selection of a permanent plan for the children. The court ordered that the children remain in the parental grandparent's care. The court also designated the parental grandmother as M.L.'s educational representative.
Mother filed a notice of intent to challenge by petition for writ of mandate the juvenile court's orders terminating her reunification services and setting a permanency hearing. When mother's counsel submitted a letter indicating she had found no arguable legal issues to support filing a petition for writ of mandate, this court dismissed the petition.
D. Permanency Hearing and Termination of Parental Rights.
In a report for the permanency hearing, the social worker recommended the juvenile court terminate mother's parental rights and free the children for adoption. The social worker reported that A.M. had recently been diagnosed with global developmental delay. M.L. continued to develop normally and had no acute medical issues. Both children continued to be well adjusted to their placement in the parental grandmother's home, and the children had a "secure attachment" to and "display[ed] love and affection" toward the parental grandmother. The social worker reported that mother's visits with the children had been positive overall, and the children had no negative reactions to the visits.
The social worker opined that both children were appropriate for adoption. The social worker reported there was a "mutual attachment" between the children and the parental grandmother, and the children recognized her as their parental figure. The parental grandmother expressed an interest in legalizing her parental relationship with the children. The parental grandmother told the social worker she had a "very close bond" with the children and had their bests interests at heart. The social worker observed the children and opined they were well cared for, and they looked to the parental grandmother "for comfort with the obvious expectation that their needs will be met."
The parental grandmother was assessed as a prospective adoptive parent. She was a divorced 53-year-old mother of five adult children (one deceased), and she worked in home health support services. The parental grandmother reported having no medical problems, and she had never been psychologically evaluated or attended counseling. The paternal grandmother admitted that she had been arrested for drug possession and credit card fraud some 22 years earlier. The parental grandmother denied having a history of child abuse, and she reported that she did not drink alcohol or use controlled substances. The parental grandmother lived in a one bedroom, one bathroom apartment. The children shared the bedroom, and the parental grandmother slept in the living room. The home had been approved by CFS's risk assessment unit. The home was childproofed, clean, and neatly kept. The parental grandmother described her neighborhood as peaceful. She reported that she enjoyed attending family sporting events and picnics in the park. On a typical day, the parental grandmother played with the children outside or took them to the park. She always took the children with her when she went out to run errands. The parental grandmother reported that she believed in teaching the children morals and values, and she would provide them with love and support. The paternal grandmother believed she was best suited to care for the children because she is their grandmother (she considered M.L. to be her granddaughter), and she believed the two sisters should grow up together. The paternal grandmother fully understood the legal and financial responsibilities of adoption.
At the permanency hearing, mother testified she loved and was bonded with the children. Mother testified she regularly visited the children, she was affectionate with them, and the children would be sad when the visits ended. Counsel for CFS argued mother had not been a stable or continuous presence in the children's life, that mother had not demonstrated an exception for termination of parental rights, and recommended the court terminate mother's parental rights. Mother argued terminating her parental rights would be detrimental to the children's well-being and asked the juvenile court to find an exception. Mother also requested that, if the court terminated her parental rights, it consider legal guardianship as an alternative to adoption. Counsel for the children requested the juvenile court follow CFS's recommendations and not find applicable an exception to the termination of parental rights. Counsel argued the children were adoptable, and that the parental grandmother had been providing them with a loving, caring home.
The juvenile court found mother had regularly visited with the children, but that terminating parental rights would not be detrimental to the children's well-being. Having found no other applicable exception, the court terminated mother's parental rights. The juvenile court found by clear and convincing evidence that the children were likely to be adopted.
Mother timely appealed.
II.
DISCUSSION
Mother contends A.M. is not generally adoptable, and that the social worker's preliminary assessment of A.M. inadequately addressed whether she was specifically adoptable. In addition, in the context of arguing the paternal grandmother's arrest history was potentially a legal impediment to her adopting the children, mother at least hints that the preliminary assessment failed to adequately address legal impediments. Finally, mother contends the juvenile court erred by not considering the sibling relationship exception before terminating her parental rights.
Mother did not object to the adequacy of the preliminary assessment on any ground in the juvenile court, so her claims of error regarding the report are forfeited. The record contains substantial evidence to support the juvenile court's implied findings that A.M. is specifically adoptable, and that the paternal grandmother is capable of caring for her. Finally, by not arguing in the juvenile court that the sibling relationship exception applied on the facts of this case, mother forfeited her claim on appeal.
A. Applicable Law.
Prior to a permanency hearing, the social worker must prepare a preliminary assessment report which assesses, inter alia, "the likelihood that the child will be adopted if parental rights are terminated." (§ 361.5, subd. (g)(1)(F); see §§ 366.21, subd. (i)(1)(G), 366.22, subd. (c)(1)(F); Cal. Rules of Court, rule 5.725(c).) The courts have described the preliminary assessment as "'a cornerstone of the evidentiary structure' upon which the court, the parents and the child are entitled to rely." (In re Valerie W. (2008) 162 Cal.App.4th 1, 11, quoting In re Crystal J. (1993) 12 Cal.App.4th 407, 413.) Relevant here, the preliminary assessment must include "a social history [of the prospective adoptive parent], including screening for criminal records and prior referrals for child abuse or neglect . . . ." (§ 361.5, subd. (g)(1)(D); see §§ 366.21, subd. (i)(1)(D), 366.22, subd. (c)(1)(D); see also In re Carl R. (2005) 128 Cal.App.4th 1051, 1062-1063.) The assessment must also include "[a]n evaluation of the child's medical, developmental, scholastic, mental, and emotional status," and it must address the prospective adoptive parent's "capability to meet the child's needs" and their "understanding of the legal and financial rights and responsibilities of adoption . . . ." (§ 361.5, subd. (g)(1)(C)-(D); see §§ 366.21, subd. (i)(1)(C)-(D), 366.22, subd. (c)(1)(C)-(D); see also In re Valerie W., supra, 162 Cal.App.4th at p. 12.)
The juvenile court may only terminate parental rights if it finds by clear and convincing evidence that the child was likely to be adopted within a reasonable amount of time. (§ 366.26, subd. (c)(1); In re Zeth S. (2003) 31 Cal.4th 396, 406.) "The question of adoptability usually focuses on whether the child's age, physical condition and emotional health make it difficult to find a person willing to adopt that child." (In re B.D. (2008) 159 Cal.App.4th 1218, 1231, citing In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) If a child is found to be generally adoptable, the court does not examine the suitability of a prospective adoptive home. (In re Carl R., supra, 128 Cal.App.4th at p. 1061; In re Scott M. (1993) 13 Cal.App.4th 839, 844.)
In some cases, a child who was not generally adoptable because of age, poor physical health, or physical, emotional, or development disability, may still be specifically adoptable because a willing prospective adoptive family has been identified. (In re R.C. (2008) 169 Cal.App.4th 486, 494.) In that situation, the juvenile court must inquire whether there are any legal impediments to the prospective adoptive parents adopting the child. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408-1409; In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) The most common legal impediment to adoption addressed in the published decisions is whether a prospective adoptive parent will be able to obtain consent to an adoption from an estranged spouse. (Fam. Code, § 8603, subd. (a); In re G.M. (2010) 181 Cal.App.4th 552, 561-563; In re Sarah M., at p. 1650.) Other relevant legal impediments to adoption are a prospective adoptive parent's prior felony convictions or referrals for child abuse or neglect. (Fam. Code, § 8712, subd. (c); see In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) In addition, when the child will require total care for their entire life, the court's assessment of adoptability must include consideration of the prospective adoptive parent's ability to meet the child's needs. (In re Carl R., supra, 128 Cal.App.4th at p. 1062.)
The appellate court in In re Carl R., supra, 128 Cal.App.4th 1051, wrote that such a child is at risk of becoming a "legal orphan," something the law abhors, if the child's relationship with his or her biological parents is severed, and the prospective adoptive parent is later unable to adopt the child because of a legal impediment or because he or she simply is incapable of caring for the child. (Id. at p. 1062 & fn. 6.) As this court has explained, the Legislature addressed that risk when it amended section 366.26 to provide that if a child is not adopted within three years of the termination of parental rights, the child may petition the juvenile court to reinstate parental rights. (§ 366.26, subd. (i)(3); In re I.I. (2008) 168 Cal.App.4th 857, 871.)
"On review, we determine whether the record contains substantial evidence from which the court could find clear and convincing evidence that the child was likely to be adopted within a reasonable time. [Citations.] The evidence must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citation.] We give the court's adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment of the trial court. [Citation.]" (In re B.D., supra, 159 Cal.App.4th at p. 1232.) The juvenile court's implied findings are also reviewed for substantial evidence. (See In re Aurora P. (2015) 241 Cal.App.4th 1142, 1166; see also In re Albert B. (1989) 215 Cal.App.3d 361, 375 [adoptability findings need not always be expressed].)
B. Adequacy of Assessment and Legal Impediments to Adoption.
In the report submitted for the permanency hearing, the social worker opined that both children were "appropriate for adoption." But, according to mother, the report did not address whether the children—A.M. in particular—were generally or specifically adoptable based on their needs. Likewise, the report indicated the paternal grandmother admitted she had been arrested for drug possession and credit card fraud 22 years earlier, and she denied having a history of child abuse. But as mother points out, the report did not state that the paternal grandmother had been screened for a criminal history or for prior referrals for child abuse or neglect. However, mother did not object to the adequacy of the social worker's report when it was admitted into evidence at the permanency hearing, and she did not argue her parental rights could not be terminated because potential legal impediments to adoption by the paternal grandmother had not been ruled out. Therefore, mother forfeited her challenge to the adequacy of the report and forfeited her argument about potential legal impediments to adoption.
"'"An appellate court will ordinarily not consider procedural defects or erroneous rulings in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method." [Citations.]'" (In re G.C. (2013) 216 Cal.App.4th 1391, 1398.) Dependency proceedings are not exempt from the rule of forfeiture. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Wilford J. (2005) 131 Cal.App.4th 742, 754.) Relevant for our purposes, the courts have found forfeiture when a parent fails to (1) raise in the juvenile court a legal impediment to adoption (In re R.C., supra, 169 Cal.App.4th at p. 493, fn. 2), (2) object to the complete absence of a statutorily required preliminary assessment of a foster family as prospective guardians (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502), and (3) object to the adequacy of assessment reports (In re I.P. (2014) 226 Cal.App.4th 1516, 1526; In re G.C., at p. 1399; In re Urayna L. (1999) 75 Cal.App.4th 883, 886-887; In re Crystal J., supra, 12 Cal.App.4th 407, 411-412).
In In re G.M., supra, 181 Cal.App.4th 552, the social worker identified a married great-aunt as a prospective adoptive parent for the children. (Id. at pp. 556-558.) In the report for the permanency hearing, the social worker indicated the great-aunt was married but separated. (Id. at p. 558.) The appellate court noted the record was silent whether the great-aunt was legally separated from her husband or whether she had secured or could secure her husband's consent to an adoption. Although the great-aunt appeared for the permanency hearing, "no one called her as a witness to resolve this potential issue one way or the other." (Id. at p. 560.)
On appeal, the mother in In re G.M. argued the juvenile court erred by not considering the potential legal impediment under Family Code section 8603 to adoption by the great-aunt before terminating parental rights and freeing the children for adoption. (In re G.M., supra, 181 Cal.App.4th at pp. 560-561.) The appellate court acknowledged that potential legal impediments to adoption are relevant in a permanency hearing when the social worker's opinion that a child was likely to be adopted is based in part on the willingness or commitment of an identified prospective adoptive parent. (Id. at p. 562.) For that reason, the mother could have examined the social worker and/or the great-aunt at the permanency hearing, and asked about the great-aunt's marital status and whether the great-aunt had obtained or could obtain her estranged husband's consent to an adoption. The juvenile court could then have considered such evidence when evaluating the likelihood that the children would be adopted within a reasonable period of time. (Id. at p. 563.) However, the mother made no such effort. (Ibid.) Therefore, the appellate court concluded the mother failed to properly preserve for appeal her claim of a legal impediment to adoption. (Id. at pp. 562-563, citing In re S.B., supra, 32 Cal.4th at p. 1293 & In re R.C., supra, 169 Cal.App.4th at p. 493, fn. 2.) Moreover, because the mother did not object to the adequacy of the department's preliminary assessment, she "forfeited the opportunity to now place the blame for the silent record on the department." (Id. at pp. 563-564, citing In re Crystal J., supra, 12 Cal.App.4th at pp. 411-412.)
Like the mother in In re G.M., mother did not object during the permanency hearing that the social worker's report was inadequate because it did not state whether the paternal grandmother was properly screened for criminal records and prior referrals for child abuse or neglect. Nor did mother argue that potential, undisclosed criminal records or prior referrals for child abuse or neglect might constitute a legal impediment to adoption, and that the juvenile court could not make a finding of adoptability and, consequently, could not terminate parental rights until a proper screening was conducted. Therefore, mother forfeited her argument on appeal. (In re G.M., supra, 181 Cal.App.4th at pp. 563-564.)
Moreover, CFS was entitled to the presumption under Evidence Code section 664 that it complied with its official duty to screen the parental grandmother when preparing the preliminary assessment. (Evid. Code, § 664 ["It is presumed that official duty has been regularly performed."]; D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1125 [social services agency entitled to presumption under Evid. Code, § 664 that it regularly performed its duty when preparing reports].) That presumption "'effectuates the policy of relieving governmental officials from having to justify their conduct whenever it is called into question.'" (Arthur v. Department of Motor Vehicles (2010) 184 Cal.App.4th 1199, 1206, fn. 3, quoting Jackson v. City of Los Angeles (1999) 69 Cal.App.4th 769, 782; see Evid. Code, § 605 [presumptions affecting burden of proof "implement some public policy"].)
The presumption of regularity is rebuttable and affects the burden of proof (Evid. Code, §§ 601, 660), meaning it "impose[s] upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact." (Evid. Code, § 606; see In re Levi H. (2011) 197 Cal.App.4th 1279, 1288, fn. 5.) Because mother did not affirmatively prove in the juvenile court that CFS failed to comply with its duty to screen the paternal grandmother, the presumed fact—that CFS did screen the parental grandmother as mandated by law—is now conclusive on appeal. (Page v. City of Santa Rosa (1937) 8 Cal.2d 311, 314 ["the legal presumption that official duty has been regularly performed is conclusive in the absence of contrary proof"]; In re Angelina E. (2015) 233 Cal.App.4th 583, 588 ["In the absence of evidence that the official duty was not performed, the presumption is conclusive."].)
C. Ability to Care for A.M.
Mother also contends there was no evidence in the record that the paternal grandmother was capable of caring for A.M.'s multiple health issues. To the extent mother argues the social worker's reports inadequately addressed A.M.'s medical needs and the paternal grandmother's capability to care for A.M., mother did not object to the adequacy of the reports, so such a claim is forfeited. (In re G.M., supra, 181 Cal.App.4th at p. 564.) In any event, there is ample, substantial evidence in the record to support the juvenile court's implied finding that the paternal grandmother was capable of caring for A.M.
The various reports submitted to the juvenile court, including the report for the permanency hearing, amply described the nature and severity of A.M.'s medical and developmental delays. The parental grandmother was well aware of A.M.'s special needs because she had cared for the child pretty much since birth and throughout these proceedings. The paternal grandmother went so far as to seek legal guardianship of A.M. so she could obtain medical care for the child when mother failed to sign necessary authorizations. The juvenile court had sufficient confidence in the paternal grandmother's ability to care for A.M. that it continually followed the social worker's recommendations (and mother's requests) that both children remain in the paternal grandmother's care, and it directed that the paternal grandmother be their educational representative. The record demonstrates that the paternal grandmother was more than willing and capable to take care of A.M., despite the child's special needs, for the rest of her life, and would provide her with a safe and loving home. And the paternal grandmother expressly acknowledged that she understood fully well the legal and financial responsibilities attendant to adopting the children.
D. Sibling Relationship Exception.
Finally, mother argues the juvenile court erred by not considering the sibling relationship exception before terminating her parental rights. During the permanency hearing, mother presented evidence to demonstrate she qualified for the beneficial relationship exception under section 366.26, subdivision (c)(1)(B)(i), because she regularly visited with the children, and the children would benefit from a continued parental relationship with mother. Counsel for CFS and for the children argued the exception did not apply, and the juvenile court agreed. Mother did not, however, ask the juvenile court to consider the sibling relationship exception. That omission is fatal to mother's claim on appeal.
If at a permanency hearing the juvenile court finds by clear and convincing evidence that a child is likely to be adopted, the court normally must terminate parental rights and select adoption as the permanent plan for the child unless it finds one of six specified exceptions is applicable. (§ 366.26, subd. (c)(1).) Relevant here, a juvenile court must not terminate parental rights 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 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).)
"'Reflecting the Legislature's preference for adoption when possible, the "sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a 'compelling reason' for concluding that the termination of parental rights would be 'detrimental' to the child due to 'substantial interference' with a sibling relationship." [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. [Citation.]' [Citation.] Parents have the burden of establishing the applicability of the exception. [Citation.]" (In re J.S. (2017) 10 Cal.App.5th 1071, 1080.)
The juvenile court is not required to consider the sibling relationship exception sua sponte, and a parent's failure to request consideration of the exception constitutes a forfeiture. (In re Daisy D. (2006) 144 Cal.App.4th 287, 292 [collecting cases].) "[N]othing in the legislative history nor in the language of the statute itself requires that the juvenile court give sua sponte consideration to the sibling relationship exception when no party has argued it applies. To the contrary, the statute does not distinguish the sibling relationship exception from the other statutory exceptions to adoption, which do not require sua sponte consideration by the juvenile court. [Citations.] And as the juvenile court [does] not have a sua sponte duty to consider the sibling relationship exception, [a parent's] failure to raise the exception at the section 366.26 hearing forfeits the issue for purposes of appeal." (Ibid.) Because the sibling relationship exception raises factual issues that are unsuitable for resolution on appeal, it is not exempt from the forfeiture rule as a pure question of law. (Ibid.; In re Erik P. (2002) 104 Cal.App.4th 395, 403.)
Mother did not request that the juvenile court consider the sibling relationship exception, so we conclude she has forfeited her appellate claim of error. Moreover, although we need not address the issue further, we agree with counsel for CFS that nothing in the record suggests the children will be separated. Throughout this dependency, the parental grandmother treated M.L. as her own grandchild and consistently expressed her desire and willingness to care for both children and to adopt them. (It should also be noted once more that mother herself consistently expressed her desire that both children remain in the parental grandmother's care.) On this record, mother's claims to the contrary are speculative at best.
To the extent mother might assert that her attorney rendered ineffective assistance of counsel by not requesting the juvenile court consider the sibling relationship exception, such a claim must fail. "Unless the record affirmatively establishes counsel had no rational tactical purpose for the challenged act or omission, we must affirm the judgment. [Citations.]" (In re Kristen B. (2008) 163 Cal.App.4th 1535, 1541.) Because the record in this case sheds no light on why mother's counsel did not raise the sibling relationship exception in the juvenile court, "we are not in a position to determine the sagacity of trial counsel's decision in this regard." (In re Daisy D., supra, 144 Cal.App.4th at p. 294.)
III.
DISPOSITION
The orders terminating mother's paternal rights are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.