In re J.S. CA2/5

Filed 10/3/13 In re J.S. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re J.S., a Person Coming Under the B246727
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK81873)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

Plaintiff and Respondent,

v.

APRIL S.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Terry
Truong, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant
and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and
Sarah Vesecky, Deputy County Counsel for Plaintiff and Respondent.
 J.S. was adjudged a dependent of the juvenile court. Pursuant to Welfare and
Institutions Code, section 366.26, subdivision (c)(1),1 the court terminated the parental
rights of her mother April S. (mother) and ordered J.S. placed for adoption. Mother
contends the court’s order was erroneous because there existed two statutory exceptions
to the requirement that the juvenile court order adoption: (1) mother has a beneficial
relationship with J.S. (§ 366.26, subd. (c)(1)(B)(i)); and (2) adoption would substantially
interfere with the child’s relationship with her siblings (§ 366.26, subd. (c)(1)(B)(v)). We
hold the juvenile court properly found neither exception applicable and affirm the court’s
order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mother and Michael S. (father) are the parents of J.S., born in October, 2009.
Mother and Michael H. are the parents of Leslie (13), Michael (11), James (9), and Sean
(7).
On April 15, 2010, the Department of Children and Family Services (DCFS) filed
a petition pursuant to section 300, subdivisions (a), (b), (g), and (j) regarding the minors.
On May 17, 2010, Michael H. pled no contest to a count alleging his children were at risk
as a result of his inability to provide them with the necessities of life. On August 11,
2010, mother and father pled no contest to an amended petition alleging: father
inappropriately physically disciplined J.S.’s siblings; mother and father engaged in
physical altercations in the children’s presence; mother did not protect the children from
father; father abused alcohol in the children’s home; and the parents’ conduct put J.S. and
her siblings at risk of harm. The juvenile court sustained the amended petition, declared
the children dependents of the court, removed them from their parents’ custody, and
ordered them suitably placed. All five children were placed with Michael H.’s mother,

1
All further statutory references are to the Welfare and Institutions Code.

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Loretta C., and her husband Cesar M., with whom they had resided for the past three
years. The court also ordered visitation and family reunification services.
At the status review hearings conducted during 2010 and 2011, the juvenile court
found mother was in partial compliance with her case plan. Though mother had
completed a parenting class, her visits with J.S. were inconsistent as was her attendance
at domestic violence counseling. Father had been arrested in September 2011 for
warrants related to domestic violence and driving under the influence of alcohol. At the
contested 12-month review hearing held pursuant to section 366.22, subdivision (a) on
November 22, 2011, the court terminated reunification services, stating it did not believe
mother or father “had made any progress in the case. None whatsoever.” The court
concluded mother had “no idea what domestic violence is all about.” The court indicated
the permanent plan for J.S. was adoption by Loretta C., and set the section 366.26 hearing
for March 20, 2012.
On that date, the court continued the hearing in order for DCFS to interview
Leslie, Michael and James regarding their views about being adopted. During a
subsequent interview, Leslie (who was then 12 years old) indicated she wanted to remain
with her caregivers, but not be adopted.
After additional continuances, the contested section 366.26 hearing was held on
November 5, 2012. Mother testified2 she and the children had a close bond and said she
would feel “really bad” if her parental rights were terminated. Mother attributed her
inconsistent visits to her work schedule. Mother testified she prepared meals for J.S. at a
friend’s home and brought the food to her visits. Mother also stated she and J.S. engaged
in preschool activities and that she was responsible for disciplining the child during the
visits.
The remainder of the evidence presented at this hearing consisted principally of
Leslie’s testimony concerning her ambivalence about being adopted by her grandmother.

2
Although the hearing concerned all five minors, we only recount the testimony
relevant to J.S., as this appeal is limited to termination of mother’s parental rights to J.S.

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Leslie also testified that she loved J.S., and it would make her sad if J.S. were no longer
legally her sister because she “[would not] be able to play with her.”
In closing arguments, father’s attorney objected to J.S. being adopted: “We’d ask
the court to find an exception applies for the child Leslie and that, as a result of that, that
there’s an exception for all of the children through a sibling exception [and] that [J.S.]
should not be adopted because she does have a relationship with Leslie, as Leslie testified
to. So we’d ask the court not to terminate parental rights today.” Mother’s counsel
joined in father’s counsel’s arguments.
The court stated: “With regards to Leslie, Michael, James, and Sean, I do find that
it would be detrimental for this court to terminate parental rights of those children.” The
court continued the older children’s case so that DCFS could address legal guardianship
with Kin-Gap. The court then turned to J.S., stating: “[J.S.] is the one that I am having
difficulty with. I do believe that -- well, I do not believe that the (c)(1)(B)(i) exception
applies to [J.S.]. Neither parent has ever, as far as I can tell, parented, really parented
[J.S.]. [¶] The issue I have is the sibling exception, but I also don’t find that there would
be a substantial interference, which is what I would have to find in order for this court to
find a sibling exception to this case. The children are all residing with the same
caregiver. They have resided with the same caregivers throughout the pendency of this
case. And as a result, I just do not have sufficient evidence before me to either find
detriment if I were to terminate parental rights over her or that there would be a sibling
exception in this case.” The court continued the case to permit DCFS to explore
Loretta C. and Cesar M. views on adopting J.S. while taking legal guardianship of the
other four minors.
At the continued hearing on January 17, 2013, father’s counsel reiterated his
client’s objection to the termination of parental rights and asked the court to find that
there was an exception to adoption. Mother’s counsel stated, “mother also objects to the
adoption of [J.S.] and would ask the court to find that there is a sibling exception.” The
court determined no exception to adoption was demonstrated and terminated mother’s
and father’s parental rights to J.S.

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 Mother timely appealed the order.

II. STANDARD OF REVIEW

The Sixth District Court of Appeal in In re Bailey J. (2010) 189 Cal.App.4th 1308,
discussed the split of authority concerning the standard of review applicable to a juvenile
court’s ruling on whether an exception to termination of parental rights under
section 366.26, subdivision (c)(1)(B) applies in a given case. “In In re Jasmine D. (2000)
78 Cal.App.4th 1339 (Jasmine), the First District Court of Appeal acknowledged that
most courts had applied the substantial evidence standard of review to this determination.
[Citation.] However, the First District concluded that the abuse of discretion standard of
review was ‘a better fit’ because the juvenile court was obligated to make ‘a
quintessentially discretionary determination.’ [Citations.]” (In re Bailey J., supra, 189
Cal.App.4th at p. 1314.)
“In our view, both standards of review come into play in evaluating a challenge to
a juvenile court’s determination as to whether the parental or sibling relationship
exception to adoption applies in a particular case. Since the proponent of the exception
bears the burden of producing evidence of the existence of a beneficial parental or sibling
relationship, which is a factual issue, the substantial evidence standard of review is the
appropriate one to apply to this component of the juvenile court’s determination. Thus,
as this court noted in In re I.W. (2009) 180 Cal.App.4th 1517, a challenge to a juvenile
court’s finding that there is no beneficial relationship amounts to a contention that the
‘undisputed facts lead to only one conclusion.’ (In re I.W., [supra, 180 Cal.App.4th] at p.
1529.) Unless the undisputed facts established the existence of a beneficial parental or
sibling relationship, a substantial evidence challenge to this component of the juvenile
court’s determination cannot succeed.” (In re Bailey J., supra, 189 Cal.App.4th at
p. 1314.)
“The same is not true as to the other component of these adoption exceptions. The
other component of both the parental relationship exception and the sibling relationship

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exception is the requirement that the juvenile court find that the existence of that
relationship constitutes a ‘compelling reason for determining that termination would be
detrimental.’ (§ 366.26, subd. (c)(1)(B), italics added.) A juvenile court finding that the
relationship is a ‘compelling reason’ for finding detriment to the child is based on the
facts but is not primarily a factual issue. It is, instead, a ‘quintessentially’ discretionary
decision, which calls for the juvenile court to determine the importance of the
relationship in terms of the detrimental impact that its severance can be expected to have
on the child and to weigh that against the benefit to the child of adoption. [Citation.]
Because this component of the juvenile court’s decision is discretionary, the abuse of
discretion standard of review applies.” (In re Bailey J., supra, 189 Cal.App.4th at
p. 1315.)
Our colleagues in Division Seven of this Court found persuasive In re Bailey J.’s
approach to reviewing the parental relationship and sibling exceptions to adoption set
forth in section 366.26, subdivision (c)(1)(B). (In re K.P. (2012) 203 Cal.App.4th 614,
621-622.) We do as well and apply this mixed standard of review here.

III. DISCUSSION

“Adoption must be selected as the permanent plan for an adoptable child and
parental rights terminated unless the court finds ‘a compelling reason for determining that
termination would be detrimental to the child due to one or more of the following
circumstances: [¶] (i) The parents have maintained regular visitation and contact with
the child and the child would benefit from continuing the relationship. [¶] . . . [¶] (v)
There would be substantial interference with a child’s sibling relationship . . . .’
(§ 366.26, subd. (c)(1)(B).)” (In re Bailey J., supra, 189 Cal.App.4th at p. 1314.) Under
these provisions, “the court must order adoption and its necessary consequence,
termination of parental rights, unless one of the specified circumstances provides a
compelling reason for finding that termination of parental rights would be detrimental to
the child. The specified statutory circumstances—actually, exceptions to the general rule

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that the court must choose adoption where possible—‘must be considered in view of the
legislative preference for adoption when reunification efforts have failed.’ [Citation.]”
(In re Celine R. (2003) 31 Cal.4th 45, 53.) “‘Adoption is the Legislature’s first choice
because it gives the child the best chance at [a full] emotional commitment from a
responsible caretaker.’ [Citation.]” (Ibid.)
The parent has the burden of establishing a statutory exception to adoption applies.
(In re Bailey J., supra, 189 Cal.App.4th at p. 1314; Cal. Rules of Court, rule 5.725(d)(4).)
The burden of proof is preponderance of the evidence. (In re Aaliyah R. (2006) 136
Cal.App.4th 437, 449.)

1. Beneficial Relationship Exception

To prove that the beneficial relationship exception applies, “the parent must show
more than frequent and loving contact, an emotional bond with the child, or pleasant
visits—the parent must show that he or she occupies a parental role in the life of the
child. [Citation.]” (In re I.W., supra, 180 Cal.App.4th at p. 1527.) Moreover, it is not
enough simply to show “some benefit to the child from a continued relationship with the
parent, or some detriment from termination of parental rights.” (In re Jasmine D., supra,
78 Cal.App.4th at p. 1349.) There must be a significant, positive emotional attachment
between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418–1419.)
Even where such an attachment exists, it does not bar adoption if the child looks to
a prospective adoptive parent to meet her needs. (In re Zachary G. (1999) 77
Cal.App.4th 799, 811.) The parent must prove that the parental relationship “promotes
the well-being of the child to such a degree as to outweigh the well-being the child would
gain in a permanent home with new, adoptive parents.” (In re Autumn H. (1994) 27
Cal.App.4th 567, 575.) “In other words, the court balances the strength and quality of the
natural parent/child relationship in a tenuous placement against the security and the sense
of belonging a new family would confer.” (Ibid.) “‘When the benefits from a stable and
permanent home provided by adoption outweigh the benefits from a continued

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parent/child relationship, the court should order adoption.’” (In re Jasmine D., supra, 78
Cal.App.4th at p. 1350; In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Factors courts
consider in determining the applicability of the parental relationship exception include:
(1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3)
the positive or negative effect of interaction between the parent and the child, and (4) the
child’s particular needs. (In re Angel B. (2002) 97 Cal.App.4th 454, 467; In re
Autumn H., supra, 27 Cal.App.4th at p. 576.) “Because a section 366.26 hearing occurs
only after the court has repeatedly found the parent unable to meet the child’s needs, it is
only in an extraordinary case that preservation of the parent’s rights will prevail over the
Legislature’s preference for adoptive placement.” (In re Jasmine D., supra, 78
Cal.App.4th at p. 1350.)
Mother did not assert in the juvenile court that the beneficial parent relationship
exception precluded J.S.’s adoption. Rather, she relied solely on the sibling exception to
argue against termination of her parental rights. She therefore forfeited the right to raise
the beneficial relationship issue on appeal. (In re Cheryl E. (1984) 161 Cal.App.3d 587,
603 [appellant cannot complain that trial court failed to do that which it was not asked to
do].) In any event, even if the issue were not waived, the evidence clearly demonstrates
mother failed to carry her burden of establishing the applicability of the exception in this
case.
Mother acknowledges her visitation with J.S. was not consistent, but maintains
“there were reasons for her inability to maintain a consistent visitation schedule,” and
states “in the context of her limitations, [mother] had regular visits and contact with
[J.S.].” To prove the existence of a beneficial parental relationship, mother cites her
testimony that there was a close bond between her children and herself, and that the
DCFS reported she was appropriate with J.S. during their visits and there was no
evidence that the visits negatively affected J.S. Mother fails to mention the social
worker’s report prepared for the section 366.26 hearing, which noted J.S. was
“indifferent” to visits with mother, and did not cry or otherwise object when they came to
an end. As noted above, a challenge to the juvenile court’s finding of no beneficial

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relationship amounts to a contention that the undisputed facts lead only to the conclusion
that such a relationship existed. (In re I.W., supra, 180 Cal.App.4th at p. 1529.) That
cannot be said of the evidence presented here. In short, substantial evidence supports the
juvenile court’s finding that mother and J.S. did not share the beneficial relationship
contemplated by section 366.26, subdivision (c)(1)(B)(i).

2. Sibling Relationship Exception

Section 366.26 provides for an exception to termination of parental rights if it
would result in a “substantial interference with a child’s sibling relationship, taking into
consideration . . . whether ongoing contact is in the child’s best interest, . . .” (§ 366.26,
(c)(1)(B)(v).) “If the court determines terminating parental rights would substantially
interfere with the sibling relationship 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. [Citation.]” (In re L.Y.L. (2002) 101 Cal.App.4th 942,
952.) “When considering the sibling relationship exception, the concern is the best
interests of the child being considered for adoption, not the interests of that child’s
siblings.” (In re Naomi P. (2005) 132 Cal.App.4th 808, 822.) “[T]he application of [the
sibling relationship 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, italics added.)
Here, J.S. and her four siblings had lived together and would remain in the same
home even if J.S. but not her siblings were adopted by Loretta C. and Cesar M. Thus, as
the juvenile court concluded, there was no risk of substantial interference with the sibling
relationship on account of J.S.’s adoption. The juvenile court’s factual finding to that
effect is supported by substantial evidence.

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 IV. DISPOSITION

The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KUMAR, J.*

We concur:

MOSK, Acting P. J.

KRIEGLER, J.

*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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