In re S.M. CA5 ( 2021 )

Filed 3/29/21 In re S.M. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re S.M., a Person Coming Under the Juvenile
Court Law.
TUOLUMNE COUNTY DEPARTMENT OF F081680
SOCIAL SERVICES,
(Super. Ct. No. JV8028)
Plaintiff and Respondent,
v. OPINION
D.M. et al.,
Defendants and Appellants.
THE COURT*
APPEAL from orders of the Superior Court of Tuolumne County. Donald I.
Segerstrom, Jr., Judge.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and
Appellant D.M.
Susan M. O’Brien, under appointment by the Court of Appeal, for Defendant and
Appellant James M.
Sarah Carrillo, County Counsel, and Maria Sullivan, Deputy County Counsel, for
Plaintiff and Respondent.
* Before Poochigian, Acting P.J., Franson, J. and Peña, J.
ooOoo-
D.M. (mother) appeals from orders after a Welfare and Institutions Code section
366.261 hearing, at which the juvenile court terminated her parental rights to daughter
S.M., now age three. Mother contends the juvenile court erred by failing to apply the
sibling relationship exception to adoption. She also contends, for the first time on appeal,
that although S.M.’s sisters were not dependents of the juvenile court, section 16002
regarding sibling placement was applicable to this matter, requiring reversal of all post-
dispositional orders, including the order terminating her parental rights. James M.
(father) does not raise any issues but joins in mother’s argument. We affirm.
SUMMARY OF FACTS AND PROCEDURE
Mother has three children: S.M., now age three, and at issue here, as well as two
older children, D.H., now age 12, and T.M., now age seven. Father is the presumed
father of both S.M. and T.M.
In April of 2019, sheriff’s deputies were investigating an elder abuse referral and
found S.M., then 17 months old, in the care of two individuals, both known to the
deputies due to prior arrests for possession and use of illicit substances. One of the
individuals reported that mother dropped S.M. off with them and left. The home where
S.M. was found included methamphetamine pipes and razor blades within the child’s
reach, as well as unidentified pills, hypodermic needles, a piece of tin foil with brown
residue, and a marijuana pipe and leaf clippings. Both individuals were arrested.
Mother was contacted by Tuolumne County Department of Social Services
(department) and asked to return to the residence. Mother admitted dropping S.M. off at
the home, stating she left the child there while she gave a friend a ride. She admitted
knowing that both the individuals were drug users and one of the two had been arrested a
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2.
week prior. She denied seeing any evidence of drug paraphernalia or use in the home,
although much of it was found in plain sight. Mother smelled “strongly” of alcohol and
she tested presumptively positive for methamphetamine, amphetamine, MDMA and
opiates. She was arrested for child endangerment and S.M. placed into protective
custody. It was later learned that mother started drinking alcohol at 10:00 a.m. that
morning.
Mother met with a social worker at the department the following day. Mother
informed the social worker that her two older children were staying with mother’s sister,
Heather G., who was going to file for guardianship. Mother had signed a safety plan for
the two older girls agreeing that she would not have any unsupervised contact with them.
Mother explained that father was in prison, and she admitted to prior child welfare
history with her oldest child, D.H.
Petition
The department filed a section 300 petition on April 15, 2019, alleging risk of
harm to S.M. due to mother’s substance abuse and leaving the child with an inappropriate
caregiver. The petition further alleged that father was incarcerated and unable to arrange
for the minor’s care. The petition also alleged that S.M.’s older sister D.H., had
previously been declared a dependent based on mother’s chronic substance abuse. While
she had successfully reunified with D.H., mother had recently tested positive again for
illicit substances.
Detention Hearing
Mother was present at the detention hearing on April 16, 2019. S.M. was ordered
detained pending a jurisdictional hearing. The department informed the juvenile court
that it was assessing potential placement with S.M.’s maternal aunt, Heather G., where
the two older siblings were living. Temporary care and custody of S.M. was vested with
the department. Heather G. applied for emergency placement of S.M. with her, which
3.
was granted on April 16, 2019. A family finding referral was made on May 6, 2019, in
order to identify other relatives for possible placement.
A jurisdiction hearing was set for May 7, 2019 but continued to perfect ICWA
notice until May 28, 2019.
Jurisdiction Hearing
The report prepared for jurisdiction indicated S.M. had been placed with Heather
G., where her siblings resided, pursuant to section 361.3.2
The report requested that the juvenile court take judicial notice of the petitions and
orders in mother’s previous 2012 and 2013 dependency cases regarding D.H. and T.M. It
was during D.H.’s dependency that mother gave birth to T.M. in 2013. A dependency
proceeding was initiated as to her, but she was left in mother’s home. Dependency
proceedings were terminated in June of 2014. The documents requested to be noticed
were attached to the report.
Father’s criminal history included a 2017 conviction for multiple felonies,
including battery with serious bodily injury. He was incarcerated and eligible for parole
in November 2019. Mother had multiple arrests and several convictions for various
2 Section 361.3 provides, in relevant part, that “[i]n any case in which a child is
removed from the physical custody of his or her parents pursuant to Section 361,
preferential consideration shall be given to a request by a relative of the child for
placement of the child with the relative .…” Section 361.3 further provides that, in
determining whether placement with a relative is appropriate, the court social worker and
the court shall consider, inter alia, the best interest of the child (id. at subd. (a)(1)); the
wishes of the parent, the relative, and child, if appropriate (id. at subd. (a)(2)); placement
of the siblings and half siblings in the same home as provided in Section 16002 (§ 361.3,
subd. (a)(4)); the good moral character of the relative and any other adult living in the
home, including whether any individual residing in the home has a prior history of
violent criminal acts or has been responsible for acts of child abuse or neglect (id. at
subd. (a)(5)); and the nature and duration of the relationship between the child and the
relative (id. at subd. (a)(6)).
4.
substance abuse related offenses between 2008 and 2017. She had an April 2019 arrest
for willful cruelty to a child stemming from the facts underlying this action.
At the jurisdiction hearing, mother submitted on the petition. The juvenile court
found the petition true and set disposition for June 11, 2019. The juvenile court took
judicial notice of the requested prior dependency case documents.
Disposition
Following mother and father’s request, a contested disposition hearing was set for
July 19, 2019.
The report prepared for the disposition hearing indicated that mother failed to
attend a June 28, 2019, child family team meeting to discuss S.M.’s placement. Heather
G.’s home had to be re-evaluated regarding appropriateness of emergency placement of
S.M. as Heather had recently separated from her boyfriend, a co-applicant for placement,
and she no longer had stable housing. She did not have her own transportation or
income, aside from the caregiver stipend she received for S.M.
Heather G. and maternal grandmother were both present at the team meeting, and
it was decided that mother would move out of maternal grandmother’s home and Heather
G. and the two older children would move in with maternal grandmother. Maternal
grandmother would have to apply for placement and be approved before S.M. could be
placed back in Heather G.’s care.
On July 2, 2019, S.M. was placed in temporary placement and efforts continued to
locate other potential relative placements.
Mother had been in and out of drug treatment and it was recommended that
mother be denied services, but that father be offered services.
At the July 19, 2019, disposition hearing, the juvenile court declared S.M. a
dependent, removed her from mother’s custody, and denied custody to father. It found
the temporary placement appropriate but added that the department was to make diligent
efforts to locate and contact relatives, and if they can be approved for placement, then the
5.
relative placement preference should be observed. Care, custody and control of S.M.
remained under the supervision of the department. It further denied services to mother
pursuant to section 361.5, subdivision (b)(13), due to previous drug abuse and treatment
within a certain time period. Services were ordered for father. A six-month review was
set for January 7, 2020.
Six-Month Review
The December 27, 2019, report prepared for the six-month review requested a
three-week continuance to gather information regarding father’s parole date. The prison
indicated father’s parole eligibility was October 2024, father claimed it was November
21, 2019. The department reasoned that, if father was released in early 2020, continued
services would be beneficial; if it was not until 2024, continued services would not be in
S.M.’s best interest.
While mother had not been offered services, she had entered a residential
treatment center but was discharged on October 14, 2019, after relapsing.
The report stated that S.M. had been moved from Heather G.’s home to her current
placement on July 2, 2019. The placement was not concurrent3 but another family that
often provided respite care for S.M. was interested in being a concurrent placement.
Heather G. was going through the resource family approval (RFA) process again but had
not yet been approved.
Following several requests, the review was continued to February 28, 2020. An
addendum report for the hearing recommended that services for father be terminated and
a section 366.26 hearing set. The report also stated that S.M. was to be moved shortly to
a concurrent home, with whom she had been staying periodically for respite care.
Heather G. had still not been approved for RFA placement.
3 A concurrent placement indicates a potential adoptive placement, while a
nonconcurrent placement does not.
6.
At the February 28, 2020, hearing, mother’s counsel reported that she had spoken
to a social worker and was told Heather G. and the parties were waiting for
documentation from law enforcement in order to process an exemption necessary for
RFA placement.
At the March 11, 2020, contested hearing, the juvenile court terminated father’s
services. At the time, the juvenile court specifically took judicial notice of father’s prior
child welfare case with T.M.
The juvenile court found that S.M. did not have any siblings under juvenile court
jurisdiction and that S.M.’s current out-of-home placement was appropriate. A section
366.26 hearing was set for June 30, 2020. Mother and father were both verbally noticed
of their writ review rights, but neither filed a Notice of Intent to File Writ Petition.
Section 366.26 Hearing
The section 366.26 report recommended that mother and father’s parental rights be
terminated, and adoption selected as S.M.’s permanent plan. S.M. was said to be
physically healthy, on-target developmentally, and advanced in language development.
She was happy and did not appear to have any mental or emotional issues.
S.M. had been moved from her non-concurrent foster placement to the home of
the respite foster home in January of 2020, as a concurrent home. She had to be moved
to another prospective adoptive placement in May of 2020, after the mother in the
previous home changed occupations which required lengthy travel out of the area.
However, this placement gave notice in June 2020 due to concerns over S.M.’s eating
habits and arguing with another two-year-old in the home. The former caregiver, with
whom S.M. had been placed from January through May, indicated they would like
placement again and were committed to providing permanency. S.M. had not yet been
moved at the time of the writing of the report.
Mother consistently visited S.M. In April and May, the visits had been via video
conferencing due to Covid-19 restrictions. Father had not participated in visitation and
7.
had only visited S.M. a few times through her life. S.M. participated in monthly visits
with her siblings, Heather G. and maternal grandmother.
Heather G. continued to pursue RFA, but the report indicated it was unlikely that
she would be approved due to an inability to get a criminal background and substance
abuse history clearance. The report concluded it was not in the best interest for S.M. to
be placed with her siblings because of Heather G.’s inability to be approved though
RFA.4
An adoption assessment specialist found S.M. to be an adoptable child. While she
was not placed in an adoptive home at that time, the assessment was based on her youth,
good health, and happy demeanor. The adoption assessment noted that S.M. had two
older siblings who were placed with Heather G. through legal guardianship. The
caretakers at the time of the assessment were open to arranging contact between S.M. and
her siblings. The adoption specialist opined that it was not in S.M.’s best interests to be
placed with her sisters due to Heather G.’s inability to obtain RFA.
An adoption assessment addendum indicated that the adoption specialist had
received a call on June 12, 2020, from S.M.’s former placement indicating that they
would like to provide permanency for S.M. The caregiver explained that her new
employment position would no longer require extensive travel. The caregivers expressed
their love for S.M. and that they were capable of dealing with her eating issues and did
not have young children in the home that S.M. felt compelled to compete with. After
thorough discussion, the adoption specialist determined that placing S.M. back into this
4 It was later clarified that the criminal and substance abuse history problem was not
with Heather G., but with maternal grandmother, with whom Heather G. resided and who
was the owner or legal occupant of the home. Heather G. did not have the resources to
care for D.H., T.M. and S.M. on her own, and for that reason she moved in with her
mother, the maternal grandmother. But maternal grandmother had licensing/RFA issues
that were never resolved, thereby precluding S.M. from residing with Heather G. and her
siblings.
8.
home was appropriate. The caregivers, however, were not interested in entering into a
written postadoption agreement for contact with S.M.’s birth family, including mother or
father.
After several continuances, the contested section 366.26 hearing was held August
21, 2020. Mother appeared in person, father by telephone. The juvenile court stated that
it had read and considered the section 366.26 report, the original adoption assessment,
and the addendum adoption assessment. At the department’s request, the juvenile court
admitted a toxicology report for mother and a letter from the RFA regarding maternal
grandmother’s application for approval. The department submitted on the evidence.
Mother called Heather G., who testified that S.M. had lived with her and her two
siblings for “four or five months” the previous year when she was in her own apartment.
S.M. was then removed when Heather G. broke up with her boyfriend and she was
“kicked out” of her apartment. Heather G. testified that she was going to move to
maternal grandmother’s but could not take S.M. there with her “because of the history of
the house,” which she described as “[a]ll the raids” conducted by probation. Heather G.
testified that she had been living at maternal grandmother’s for about a year with D.H.
and T.M.
According to Heather G., T.M. asked about S.M., but they had only visited her
once or twice when she was first removed, and the last visit was in April of 2020.
Heather G. testified that she did not request visits after April of 2020 because she was
“overwhelmed with those kids” and did not want to see S.M. when “all of this is going
around,” alluding to Covid-19.
Heather G. testified that she did want S.M. placed with her, but she had not talked
to the department about making this happen. Heather G. still lived with maternal
grandmother. Heather G. stated that she did not follow through on the RFA process for
permanent placement of S.M. after they originally placed S.M. with her on an emergency
9.
basis, as she did not think she had to. Maternal grandmother was applying with her, but
she stopped after they removed S.M.
When asked by the juvenile court to clarify her status with T.M. and D.H., Heather
G. replied that she had guardianship of them.
Maternal grandmother testified that S.M. lived with her from birth to age two,
until she was placed with Heather G. When asked if mother and S.M. still had a “mother-
daughter bond,” maternal grandmother replied, “[p]ossibly” “[j]ust because she hasn’t
been around her for a long time.”
According to maternal grandmother, the siblings were together when mother was
in the process of getting D.H. and T.M. back during the previous dependencies, and the
siblings had lived together most of S.M.’s life. Maternal grandmother testified that T.M.
loved S.M. and D.H., who has autism, is a bit more distant. The three had a video chat
about two weeks prior and had two such chats in the previous three months. When asked
if she thought there would be a problem if S.M. no longer had a relationship with her
sisters, maternal grandmother stated that S.M. might be “confused,” but “she’s a happy
girl; so I’m sure she’s going to be happy wherever she’s at.”
Mother called the social worker, who testified that S.M. was placed with Heather
G. shortly after she was removed from mother in April of 2019 and stayed with her until
late June 2019. A recent check of the application status of Heather’s RFA showed it was
not approved, so “they,” meaning Heather G. and maternal grandmother, could not be
considered. Maternal grandmother and Heather G. lived together in maternal
grandmother’s home, and they applied together. The social worker explained that the
RFA team is not a part of child welfare services. As such, it was not up to the social
worker to determine who can be approved for placement.
The social worker had no concerns about S.M.’s current placement, and she was
likely to be adopted by them. The social worker opined that terminating parental rights
would not be detrimental to S.M.’s relationship with her siblings because the “caregiver
10.
is really open to keeping communication with her siblings after adoption.” The social
worker had had numerous conversations with the caregivers about the importance of
maintaining birth family contact.
Mother testified that S.M. was currently two and a half years old, “brilliant, and
“talkative.” Mother testified regarding her own bond with S.M. and the nature of her
visits with her. A week later, following an adjournment, mother resumed the witness
stand and testified that she was currently clean and sober from drugs and alcohol, “[f]or
about a week and a half now.”
In closing, mother’s counsel argued that the department should have provided
Heather G. assistance in finding her own housing and having S.M. back in her care.
Counsel argued further that adoption should not occur, as to allow Heather G. a chance to
find alternative housing. When asked by the juvenile court how long this would take,
counsel suggested that “one of the exceptions” to adoption should apply and S.M. be
placed in guardianship.
The juvenile court found S.M. to be both generally and specifically adoptable by
clear and convincing evidence. The juvenile court found that, while mother maintained
visitation with S.M., it could not find that the benefit of maintaining visitation
outweighed the benefits of permanency, and the parent-child relationship exception did
not apply. It also found, after lengthy analysis, that mother had failed to show that the
benefit of maintaining sibling contact outweighed the benefits of adoption for S.M.
Parental rights were terminated.
DISCUSSION
I. THE SIBLING RELATIONSHIP EXCEPTION
Mother, joined by father, argues the juvenile court erred in not applying the sibling
relationship exception to termination of parental rights. We find no merit in the parents’
position.
11.
If a juvenile court finds that a child is likely to be adopted, adoption must be
ordered unless there is a “compelling reason” to apply one of the statutorily enumerated
exceptions. (§ 366.26, subd. (c)(1)(B).) One of the specified exceptions is the sibling
relationship exception, which applies where “[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).)5
Employing a two-step process, the juvenile court first determines whether
terminating parental rights would substantially interfere with the sibling relationship. (In
re L. Y. L. (2002) 101 Cal.App.4th 942, 952 (L. Y. L.).) If this first requirement is met,
“the court is then directed to weigh the child's best interest in continuing that sibling
relationship against the benefit the child would receive by the permanency of adoption.”
(Ibid.; § 366.26, subd. (c)(1)(B)(v).) “[E]ven 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.” (In re Celine R. (2003) 31 Cal.4th 45, 61 (Celine
R.).)
The parent opposing adoption has the burden of proving the statutory exception
for sibling relationships applies. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) This
is considered “a heavy burden.” (Ibid.) The authors of the legislation adding the sibling
relationship exception envisioned that its applicability would “‘likely be rare,’” meaning
5 If the juvenile court finds the sibling relationship exception applies, it must select
legal guardianship or long-term foster care rather than adoption. (§ 366.26, subd.
(c)(4)(A).)
12.
“that the child’s relationship with his or her siblings would rarely be sufficiently strong to
outweigh the benefits of adoption.” (L. Y. L., supra, 101 Cal.App.4th at p. 950; see In re
Valerie A. (2007) 152 Cal.App.4th 987, 1014 [“application of this exception will be rare,
particularly when the proceedings concern young children whose needs for a competent,
caring and stable parent are paramount”].)
The sibling relationship exception is “evaluated from the perspective of the child
who is being considered for adoption, not the perspective of that child’s siblings.” (In re
D.O. (2016) 247 Cal.App.4th 166, 174 (D.O.).)
We review the court’s factual findings underlying the sibling relationship
exception for substantial evidence and the court’s weighing of competing interests for an
abuse of discretion. (In re Isaiah S. (2016) 5 Cal.App.5th 428, 437–438; D.O., supra,
247 Cal.App.4th at p. 174.)6
“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. 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.” (L. Y. L., supra, 101 Cal.App.4th at p. 952, fn. omitted.)
In this case, substantial evidence supports the trial court’s conclusion that the
sibling relationship exception does not apply. The record supports both (1) a finding that
there would be no interference with the siblings’ relationship, and (2) a finding that S.M.
would not suffer detriment if her relationship with the siblings ended.
6 The question of what standard of appellate review applies to another statutory
exception to adoption (the beneficial parental relationship exception) is currently pending
before our Supreme Court. (In re Caden C. (2019) 34 Cal.App.5th 87, review granted
July 24, 2019, S255839.)
13.
Here, there is substantial evidence in the record to support a finding that
terminating the parents’ rights and ordering adoption would not substantially interfere
with S.M.’s sibling relationships. Mother provided no evidence to the contrary. The
juvenile court found the social worker’s testimony credible and, while not dispositive,
that S.M.’s caregivers intended to facilitate her existing relationship with her siblings,
despite not wishing to enter into a written postadoption agreement. This is an appropriate
factor for the juvenile court to consider in analyzing the sibling relationship exception,
because freeing the child for adoption terminates parental rights but not sibling
relationships. (See, e.g., D.O., supra, 247 Cal.App.4th at p. 175 [juvenile court may
consider assurances of continued sibling visits in determining whether there will be
substantial interference with a sibling relationship]; In re Jacob S. (2002) 104
Cal.App.4th 1011, 1019 [there was “no evidence that the relationships between any of the
siblings will necessarily cease upon termination of parental rights,” where prospective
adoptive parents were willing to allow siblings to continue their relationship],
disapproved on other grounds in In re S.B. (2009) 46 Cal.4th 529, 537, fn. 5.) There was
evidence from the social worker, from the adoption assessment specialist, and from the
caregivers that S.M. and the siblings would be able to stay in touch. The juvenile court
could properly credit this evidence.
There was also no substantial evidence of a bond between the children or that S.M.
would suffer detriment on terminating her sibling relationships. (See L. Y. L., supra, 101
Cal.App.4th at p. 952.) S.M. was about two and a half years old at the time of the
hearing. She had lived with her sisters from birth until taken into protective custody at 17
months. She was too young to have meaningful interactions with them, share common
interests or have an emotional connection with them. Since being removed, she had had
a few visits, but nothing since April 2020, four months previous. S.M. was doing well
and was a happy child in the home of her caregivers, apart from her siblings. The
14.
evidence amply supports a finding that S.M. would not suffer detriment from severing
her sibling relationships. (Ibid.)
The only contrary evidence provided by mother was her testimony, and the
testimony of maternal grandmother and Heather G., who mostly focused on the siblings’
relationship with S.M. rather than vice versa. Heather G. testified that T.M. is “always”
asking about S.M. Maternal grandmother, when asked about how the siblings are
together, replied that “T.M. loves her little sister” but that “D.H. is a little distant” due to
her autism.
On appeal, however, we review the record to determine whether substantial
evidence supports the juvenile court’s ruling, not mother’s position. In any event, the
evidence mother references show the siblings’ perspective, that is, the siblings may have
had a greater awareness and fondness for their baby sister. However, in analyzing the
sibling relationship exception, our focus is on the benefits and burdens to the adoptive
child, not the siblings. (Celine R., supra, 31 Cal.4th at p. 54.) We reject mother’s
arguments based on this record.
We further conclude the court did not abuse its discretion in finding that the
benefits of adoption outweighed the benefits of S.M.’s sibling relationships.
The purpose of the sibling relationship exception is to “preserv[e] long-standing
relationships between siblings which serve as anchors for dependent children whose lives
are in turmoil.” (In re Erik P. (2002) 104 Cal.App.4th 395, 404 [sibling relationship
exception did not apply for child removed as a newborn].) Here, the siblings never
served as “anchors” for S.M. Due mostly to her age and circumstances of removal, S.M.
relied almost entirely on her caregivers to meet her emotional and physical needs.
The juvenile court considered S.M.’s need for stability and permanence. While
mother argues that the three children had positive, healthy interactions, this is relevant
but fails to establish that the court abused its discretion when it weighed this factor
against the benefits of adoption. (See In re Daisy D. (2006) 144 Cal.App.4th 287, 293
15.
[“[A]lthough the minor clearly enjoyed the time she spent with her half siblings, there
was no evidence that the detriment she might suffer if visits ceased presented a
sufficiently compelling reason to forgo the stability and permanence of adoption by
caretakers to whom she was closely bonded.”].)
To summarize, given the limited nature and strength of the sibling bond between
S.M. and the siblings, the juvenile court had substantial evidence to support its finding
that their relationship was not so significant that its loss would be detrimental, and the
court did not abuse its discretion in determining that the benefits to S.M. of adoption
outweighed any bond she might have with the siblings. This was not an appropriate case
for application of the statutory exception. (§ 366.26, subd. (c)(1)(B)(v).)
II. THE APPLICABILITY OF SECTION 16002
Mother, joined by father, also contends that the juvenile court failed to apply
section 16002 to this case. We find no error.
Section 16002 states the legislative intent to “ensure the preservation and
strengthening of the child’s family ties by ensuring that when siblings have been removed
from their home, ... the siblings will be placed in foster care together, unless it has been
determined that placement together is contrary to the safety or well-being of any sibling.
The Legislature recognizes that in order to ensure the placement of a sibling group in the
same foster care placement, placement resources need to be expanded.” (§ 16002, subd.
(a)(1).) The department is required to “make a diligent effort in all out-of-home
placements of dependent children ... , to place siblings together in the same placement,
and to develop and maintain sibling relationships. If siblings are not placed together in
the same home, the social worker ... shall explain why the siblings are not placed together
and what efforts he or she is making to place the siblings together ....” (§ 16002, subd.
(b).)
Similarly, where “the court has ordered removal of the child from the physical
custody of the child’s parents pursuant to Section 361, the court shall consider whether
16.
there are any siblings under the court’s jurisdiction, ... the nature of the relationship
between the child and their siblings, the appropriateness of developing or maintaining the
sibling relationships pursuant to Section 16002, and the impact of the sibling
relationships on the child’s placement and planning for legal permanence.” (§ 361.2,
subd. (j); see also § 366, subd. (a)(1)(D)(i) [directing juvenile court to consider the same
matters at review hearings].)
Mother acknowledges that these principles apply to those instances where the
juvenile court has removed all the children from the custody of their parents and the
department has placed them in different settings. (In re A.R. (2012) 203 Cal.App.4th
1160, 1171.) As even understood by mother, all the children must be subject to the
jurisdiction of the juvenile court for section 16002 to apply. Here, only S.M. was subject
to the jurisdiction of the juvenile court.
Mother insists, however, that section 16002 applies here and that we must reverse
the termination of parental rights to some unspecified point early in the proceedings and
make efforts to “reunify” the siblings. As argued by mother, her case is “highly unusual”
and D.H. and T.M. are not subject to the juvenile court “only because [the department]
deliberately chose not to make them dependents and told Heather G. to pursue a
guardianship in lieu of making them subject to the juvenile court.” (Boldface omitted.)
Mother argues that, while the department may have been concerned about D.H. and T.M.,
“it elected to compel/coerce Heather G. to seek a guardianship over them with the threat
of making them dependents and with the possibility that parental rights over them might
also be terminated and she and the other members of her family would be forever cut off
from the three sisters.” Mother alleges the department did this because S.M. was a
toddler and could easily be placed for adoption, while her sisters were older and would
not be.
17.
Mother’s argument relies heavily on hearsay statements contained in the sister’s
guardianship files, which were not before the juvenile court.7 We reject mother’s
argument on two grounds. First, section 16002 is not applicable in this case because
S.M.’s siblings were not under the jurisdiction of the juvenile court. And second, mother
cannot now raise a legal theory on appeal that was not raised below. (In re Christopher
C. (2010) 182 Cal.App.4th 73, 82.) The hearing from which this appeal was taken was a
section 366.26 hearing, wherein placement was not an issue before the juvenile court.
Mother was given numerous opportunities to challenge the earlier placement orders in the
juvenile court but failed to do so.
Most importantly, however, mother ignores the department and trial court’s focus
throughout this case on Section 361.3, which mandates that for any case in which a child
is removed from his or her parents pursuant to section 361, like the present case,
preferential consideration shall be given to a request for placement by a relative of the
child. Preferential consideration is defined as “the first placement to be considered and
investigated.” (§ 361.3, subd. (c)(1).) Factors to consider shall include the best interests
of the child, the wishes of the parent, and placement of siblings and half siblings in the
same home, unless that placement is found contrary to the safety and well-being of any of
the siblings, as provided in Section 16002. (§ 361.3, subd. (a).)
As outlined above, S.M.’s maternal aunt Heather G. applied for and obtained
emergency placement of S.M. in April 2019. For financial reasons, Heather G. could not
continue to support S.M. and her two older siblings on her own, and they moved in with
Heather G.’s mother, S.M.’s maternal grandmother. Mother supported this placement, as
did the department, assuming that RFA approval was given. Because of concerns with
grandmother’s past criminal activity, the department had to seek other temporary
7 Mother’s request for judicial notice filed on December 16, 2020, is hereby denied.
(Evid. Code, § 452.)
18.
placement for S.M. pending RFA approval. RFA approval was never obtained because
of some past criminal issues involving grandmother, so placement with Heather G. and
her siblings proved impossible. The sibling preference was adequately and consistently
addressed by the department and the trial court.
DISPOSITION
The orders are affirmed.
19.