Filed 8/7/13 In re Gabriel B. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re GABRIEL B., a Person Coming
Under the Juvenile Court Law.
D063710
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. NJ14200C)
Plaintiff and Respondent,
v.
GABRIELA B.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Michael J.
Imhoff, Commissioner. Affirmed.
Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel and Erica R. Cortez, Deputy County Counsel, for Plaintiff and Respondent.
Gabriela B. appeals the judgment terminating her parental rights to her two-and-
one-half-year-old son, Gabriel B. She contends the court erred by declining to apply the
sibling relationship exception (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(v))1 to
termination of parental rights. We affirm.
BACKGROUND
In August 2009, the San Diego County Health and Human Services Agency (the
Agency) filed dependency petitions for Gabriela's sons (together the siblings) Angel B.,
then nearly 10 years old, and Fernando A., then five and one-half years old. The petitions
alleged domestic violence between Gabriela and the siblings' father. In September, the
court made true findings on the petitions. In June 2010, Gabriel was born. In February
2011, at the siblings' 18-month review hearing, the court ordered the siblings returned to
Gabriela's care.
In August 2011, when Gabriel was one year old, the Agency filed a dependency
petition for him with the following allegations: Gabriela had resumed drinking alcohol to
excess, exacerbating the risk of domestic violence; she was in a new relationship with a
man, and had a history of exposing the siblings to domestic violence; and she had been
leaving Gabriel and the siblings home alone.
Gabriel was detained in Polinsky Children's Center for a few days and then moved
to a foster home. The Agency filed a supplemental petition (§ 387) for the siblings, and
they were detained in a different foster home.
1 All further statutory references are to the Welfare and Institutions Code.
2
In October 2011, the court made true findings on Gabriel's petition and ordered
him placed in foster care. At the six-month review hearing in April 2012, the court set a
section 366.26 hearing. In December, Gabriel was moved to the home of an approved
family that wished to adopt him. That family had not decided whether it would be
willing to care for the siblings.
The section 366.26 hearing for Gabriel and the siblings was held in February
2013. The Agency recommended permanent plans of adoption for Gabriel and Fernando,
and another planned permanent living arrangement for Angel.2 The Agency hoped to
find an approved family willing to accept the recommended permanent plans: adopt
Gabriel and Fernando; and care for Angel long-term. The siblings had a strong bond with
each other.
The court terminated parental rights to two-and-one-half-year-old Gabriel. The
court found there was a probability of adoption for 14-year-old Angel and eight-year-old
Fernando, but they were difficult to place for adoption because they formed a sibling
group. (§ 366.26, subd. (c)(3).) The court directed the Agency to search for an adoptive
home for Gabriel and the siblings together. The court set a further section 366.26 hearing
for the siblings, to coincide with a postpermanency planning review hearing for Gabriel.
DISCUSSION
The Agency has filed a motion to augment the appellate record with postjudgment
evidence and to dismiss this appeal as moot. The evidence consists of notices the Agency
2 At various times, each sibling said he did not wish to be adopted.
3
filed in the juvenile court on April 29, 2013, stating it had found an adoptive home for
Gabriel and the siblings, and planned to move the siblings on April 8 and Gabriel on
April 10 to that home. Gabriela opposes the motion, arguing it is untimely and citing the
general rule that judgments are reviewed according to the evidence that was before the
trial court. We grant the augmentation motion, and take into account the fact Gabriel and
the siblings were moved into a prospective adoptive home in April. The new evidence
does not render the appeal moot, however; it merely suggests that termination may not
substantially interfere with the relationship between the siblings and Gabriel. We decline
to dismiss the appeal.
If a child is adoptable,3 the court must terminate parental rights at the section
366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26,
subd. (c)(1).) Section 366.26, subdivision (c)(1)(B)(v), provides an exception when
termination would substantially interfere with the child's relationship with sisters or
brothers and the severance of the relationship would be so detrimental to the child to
outweigh the benefits of adoption. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-953;
§ 366.26, subd. (c)(1)(B)(v).) The juvenile court must "balance the beneficial interest of
the child in maintaining the sibling relationship, which might leave the child in a tenuous
guardianship or foster home placement, against the sense of security and belonging
adoption and a new home would confer." (In re L.Y.L., at p. 951, citing In re Autumn H.
(1994) 27 Cal.App.4th 567, 575.) Factors to be considered include whether the children
3 Gabriela does not challenge the adoptability finding.
4
were raised in the same home; whether they shared significant common experiences or
have existing close and strong bonds; and whether ongoing contact is in the child's best
interests, including his or her long-term emotional interests, as compared to the benefits
of adoption. (§ 366.26, subd. (c)(1)(B)(v).) "[T]he 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." (In re Valerie A. (2007) 152
Cal.App.4th 987, 1014.)
Here, the court found termination of parental rights would not substantially
interfere with Gabriel's relationship with the siblings and, in any case, the benefits he
would derive from adoption would outweigh any benefits from ongoing sibling contact.
Examining the evidence most favorably to the judgment, we conclude substantial
evidence supports the finding. (In re L.Y.L., supra, 101 Cal.App.4th at pp. 947, 952.)
Gabriel lived with the siblings for only six months, between February and August 2011.
He did not live with them for the first eight months of his life, or during the one and one-
half years between the date of his detention and the date of his section 366.26 hearing.
The Agency intended to find a single permanent placement for Gabriel and the siblings,
and during this case they had regular visits.4 Gabriel did not ask for the siblings between
visits. When he saw them, he did not run to greet them. He reacted to them as he did to
the social worker or any other friendly visitor. At the end of visits, Gabriel "just [walked]
4 Gabriel saw the siblings every other weekend and at other times. At the time of
the hearing, he had not seen them since "around Christmastime."
5
away and . . . only sometimes [said] bye." The social worker believed Gabriel did not
have a strong bond with the siblings.
Gabriela argues the Agency's efforts to place Gabriel with the siblings, and the
court's order that the Agency find one adoptive home for all three boys, are inconsistent
with the Agency's assertion and the court's determination that the sibling relationship
exception did not apply. There is no inconsistency. This appeal concerns Gabriel only.
The issue is whether, if termination would substantially interfere with the sibling
relationship, detriment would befall Gabriel, not the siblings. (In re Celine R. (2003) 31
Cal.4th 45, 54.) The hearing in the juvenile court, however, concerned all three boys, and
the Agency and the court focused equally on possible detriment to all of them. The
Agency made a recommendation and the court fashioned an order that took into account
the interests of Gabriel and the siblings.
DISPOSITION
The judgment is affirmed.
MCDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
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