In re T.D.M. CA1/1

Filed 9/30/20 In re T.D.M. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re T.D.M. et al., Persons Coming
Under the Juvenile Court Law.

DEL NORTE COUNTY A160071
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, (Del Norte County
Super. Ct. Nos. JVSQ17-6084,
Plaintiff and Respondent, JVSQ17-6086)
v.
C.H.,
Defendant and Appellant.

In this dependency matter, after C.H. (Mother) failed to reunify, the
juvenile court terminated her parental rights to T.T.M. Mother claims the
juvenile court erred in failing to find the sibling exception to adoption
pursuant to Welfare and Institutions Code1 section 366.26,
subdivision (c)(1)(B)(v). We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 2017, the Del Norte County Department of Health and Human
Services (Department) filed a section 300 juvenile dependency petition

All statutory references are to the Welfare and Institutions Code,
1

unless otherwise indicated.
concerning six-year-old T.T.M. The petition alleged Mother, the biological
father, and stepfather failed to protect T.T.M. and his biological siblings,2
failed to provide adequate food, clothing, shelter, or medical treatment, and
failed to provide regular care due to substance abuse.
Earlier in June 2017, Mother and T.T.M.’s biological father were pulled
over in their vehicle by the California Highway Patrol (CHP) because T.T.M.
and his two siblings were not in seat belts. The car smelled “very strongly” of
marijuana. Because the backseat had been removed, the children were
sitting on the floorboards. There were also two dogs in the car and it was full
of belongings. The children were dirty and appeared to be living in the car.
The CHP contacted the Department and placed the children in protective
custody. When interviewed, the children said Mother was drinking “sippys”
(little bottles of alcohol) and buying drugs. T.T.M.’s nine-year-old sister
reported Mother “was drunk and she hit me,” and said Mother “is always
drunk.” The children also disclosed the family was staying “in the wooded
area behind Safeway” without access to utilities or proper sanitation facilities
and that they had to go to the woods to use the bathroom.
Following a detention hearing, T.T.M. and his siblings were detained
and placed in foster care.
In the jurisdiction report, the social worker recounted Mother had had
over 25 prior referrals for child abuse and neglect, including referrals on two
different days shortly before law enforcement stopped the family. Several of

2 T.T.M.’s older siblings, his sister, J.M., and his brother, T.D.M., were
also dependents in the juvenile court. They are not involved in this appeal.
Although mother filed notices of appeal as to both T.T.M. and T.D.M, the
notice of appeal for T.D.M. states it pertains to both boys and identifies the
order appealed from as the termination of parental rights on April 10, 2020.
Mother’s parental rights were terminated as to T.T.M., not T.D.M., at the
April 10, 2020 hearing, and only T.T.M. is addressed in her briefs.

2
the reports that Mother had been drinking and abusing drugs had been
substantiated.
The court held a jurisdictional hearing in early July 2017, found that
T.T.M. and his siblings came within section 300, subdivision (b), and
continued the matter for a dispositional hearing.
In preparation for the hearing, the Department filed a disposition
report recommending the court declare the children dependents of the court,
remove them from their parents’ custody, and order the Department to
provide the parents with reunification services. The family, according to the
report, struggled maintaining stable and safe housing and had been living in
their car or in a tent in the bushes. The children appeared to be living with
their parents and Mother’s husband. The children had been placed in
separate foster homes and all were receiving counseling. T.T.M.’s brother
and sister were in their fifth and third foster homes respectively. T.T.M.
appeared to have adjusted well to foster care and had minimal behavior
issues. The children saw each other during visits with their parents.
The Department had referred the parents to alcohol and substance
abuse treatment, mental health counseling, and parenting classes. The
Department had, in addition, provided at least five hours of weekly visits.
Because the parents continued to talk to the children about the case and
their foster homes, despite the court order to the contrary, the Department
continued to supervise the visits.
At the dispositional hearing, the parties submitted the matter on the
report, after which the court declared the children dependents of the court. It
further found by clear and convincing evidence that there was a substantial
danger to the children’s physical or emotional well-being were they to be
returned to their parents’ care and ordered them placed in foster care. The

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court ordered the parents to comply with reunification services and continued
the matter for a six-month status review hearing.
The Department, in February 2018, filed its six-month status review
report, recommending the children remain in foster care. The children,
according to the report, were healthy and remained in separate foster care
placements, and saw each other at school and at visits with their parents. As
to T.T.M., while he was in counseling to address his anger outbursts and
learning how to keep his hands to himself and not physically assault his
peers and siblings, his behavior had improved both at home and school.
Mother said she was on the waiting list for drug and alcohol treatment
and had been seeing a counselor weekly but provided no verification. She
provided only one drug test which was positive for marijuana. Mother
believed she did not need services and, if the children were back in her home,
everything would be fine.
Though the parents initially visited regularly, after their move to
Mendocino County, they cancelled many visits. They had attended less than
half of the visits in the past four months.
The Department subsequently filed an addendum report. The social
worker reported that in February 2018, Mother’s 16-year-old son, Ronald H.,
told a law enforcement officer Mother had been drinking all day, and when
she drinks, “she gets hostile and violent” and “is a ‘fighter.’ ” He stated
Mother had escalated a verbal altercation to the point where Ronald felt he
had to call law enforcement. A Mendocino social worker confirmed Mother
was “ ‘highly intoxicated’ ” and “was unable to provide an intelligible
statement.”
In late February, the court held the six-month review hearing. After
finding that returning the children to their parents would create a

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substantial risk of detriment to them, the court ordered the children to
remain as dependents in foster care, continued reunification services, and set
the matter for a 12-month status review hearing.
The Department filed a 12-month status review report. The
Department recommended termination of reunification services and that the
children remain in foster care. T.T.M. was entering second grade and had
fewer behavioral issues in the past year at school. He was now placed with a
cousin of his father and still exhibited some behavioral issues, but the family
was able to work through them with him.
Mother’s situation, as explained in the report, had not improved
significantly. While Mother reported she had completed counseling, she had
provided no verification. She was attending weekly substance abuse
treatment in Fort Bragg, however, she tested positive periodically for alcohol
and marijuana. Since February 2018, she had attended 23 of 49 available
visits. And despite being warned, Mother continued to tell the children they
would be coming home soon.
In September 2018, the court held the 12-month status review hearing
at which it took the report into evidence and Mother and the social worker
testified. After finding by clear and convincing evidence that returning the
children to their parents would place them at a substantial risk of detriment,
the court terminated reunification services and continued the matter for a
section 366.26 hearing.
Thereafter we denied Mother’s writ petition challenging the court’s
findings and orders. (C.H. v Superior Court (Dec. 6, 2018, A155522) [nonpub.
opn.].)

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 In December 2018, the Department filed its assessment report for the
section 366.26 hearing. The Department recommended that the court
terminate parental rights and select adoption as T.T.M.’s permanent plan.
T.T.M.’s sister had been placed in the same home and the Department was
recommending adoption for her too. The social worker explained the
prospective adoptive family were relatives who had known T.T.M. since birth.
T.T.M. had been calling the adoptive mother “mom’ and he had a good
relationship with the family. The social worker noted, however, “[t]he days
following visitation is when the children’s behavior seem[s] to spike.” Since
August, Mother had canceled or failed to show for 15 visits.
The Department requested in February 2019 that the court suspend
Mother’s visitation because the children’s behavior deteriorated after visits,
during which Mother encouraged them to be disruptive in their foster homes
and at school and, as result, the visits were detrimental to the children’s
emotional and mental health. The social worker reported that T.T.M.’s
behavior at home and at school had escalated after visits with Mother.
In the meantime, Mother filed a request to change prior court orders
pursuant to section 388, asking to have her children returned to her because,
“It is better for children to be raised by their natural parents.”
Following a hearing on the request to suspend visits and Mother’s
section 388 request, in which the court heard testimony from the social
worker, Mother, and Mother’s 27-year-old son, Randy G., the court granted
the request to suspend visits with Mother and denied her section 388
petition.
The Department subsequently filed an addendum report requesting a
120-day continuance of the section 366.26 hearing to develop appropriate
permanent plans for the children. The court continued the hearing.

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 In June 2019, the Department filed an addendum to its assessment
report, recommending the court terminate Mother’s parental rights and
select adoption as T.T.M.’s permanent plan. As reported by the social
worker, T.T.M. remained in the placement with the paternal cousins. He was
receiving medication and his prospective adoptive parents reported his
“behaviors are calming down in the home.”
Shortly after this report was filed, the court held a section 366.26
hearing, terminated parental rights, and selected adoption as T.T.M.’s
permanent plan.
Mother filed an appeal from the order terminating her parental rights.
In November 2019, T.T.M.’s attorney filed a request to change prior court
orders to reinstate parental rights because the previous foster parents no
longer wanted to adopt T.T.M. On January 7, 2020, we dismissed the appeal
as moot. (In re T.T.M., case No. A157763.)
In January 2020, pursuant to section 388, Mother filed another request
to change court orders. Mother asked to be reunified with T.T.M. because she
claimed she had completed her outpatient substance abuse treatment
program and was clean and sober.
The adoption assessment report prepared for the section 366.26
hearing, and filed in March 2020, recommended that the court terminate
parental rights and select a permanent plan of adoption for T.T.M. The
adoption specialist reported T.T.M. continued to attend weekly counseling
and took medication for his attention deficit hyperactive disorder. Since
starting medication, the incidents of his physical altercations at school had
“greatly reduced.” And while his behavior had improved, he still had
difficulties with positively engaging with others and controlling his impulses.

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 T.T.M. had been placed with his prospective adoptive mother since
August 28, 2019. Although T.T.M. still required redirection in the home and
at school, the potential adoptive mother stated she had seen improvement in
the past few months in both settings. The social worker noted a “substantial
change” in T.T.M.’s behavior since he had been placed in his new foster home.
Overall, he appeared “more stable and calmer in his current home.” In his
previous placement, T.T.M.’s school called multiple times per week for
behavioral issues and disruptions, however, the current foster parent
reported that his school called only about once per month for behavioral
issues, and in general the teacher could address these issues. The report
went on to state that the current foster mother was committed to adopting
T.T.M. and understood and was willing to accept the legal and financial
responsibilities of adoption.
The adoption specialist noted the current foster parent was fostering
T.T.M.’s sister prior to her needing to move to a higher level of out-of-county
placement. The foster parent, nonetheless, remained in contact with T.T.M.’s
sister through phone calls and in-person visits approximately every three
months, due to the distance, thus allowing T.T.M. to have a relationship with
his sibling. He was able to share gifts, photos, and care packages with her.
Maintaining this sibling relationship appeared to be “vital to [T.T.M.].”
The adoption specialist personally spoke with T.T.M. in January 2020.
For the first time since meeting and working with him over the last year, “he
stated in a calm, assured manner, ‘I want to be adopted.’ ” When asked why
he wanted to be adopted at this time in this home, T.T.M. replied, “ ‘This is a
good home for me.’ ”
Importantly, the adoption specialist noted the potential adoptive
mother was committed to the child and committed to sibling contacts between

8
T.T.M. and his sister, as well as having his older brother spend the night at
their home approximately three times per month.
Although the potential adoptive mother had been informed she could
enter into a formal written agreement to arrange for continuing contact
between the birth relatives and T.T.M., she declined to do so, explaining she
did not feel a postadoption contract was necessary as she was willing to have
“openness with [T.T.M.’s] siblings and birth family members as long as it is
safe and appears to be in [T.T.M.’s] best interest.”
The adoption specialist concluded that T.T.M. appeared to have
“developed a trusting relationship with his potential adoptive [parent] and
would benefit from the establishment of a permanent parent/child
relationship through adoption.” The specialist further observed that T.T.M.
appeared to have “substantial emotional ties to his birth family and would
benefit from being raised by the potential adoptive parent who had
demonstrated a deep desire to support T.T.M.’s siblings bonds [sic] so that he
can remain connected to his relatives in the naturally occurring family
settings when possible.”
Following a hearing on April 3 and 6, 2020, in which the court heard
testimony from several witnesses, it denied mother’s section 388 petition.
Several days later, on April 10, the court held the section 366.26
hearing for T.T.M. The section 366.26 report and attachments were admitted
into evidence. Mother’s counsel submitted the matter on the report and
offered no argument.
Finding by clear and convincing evidence that it was likely T.T.M.
would be adopted, the court terminated parental rights and selected adoption
as his permanent plan.

9
 II. DISCUSSION
Mother contends the court erred in selecting adoption as the permanent
plan for T.T.M. following the selection and implementation hearing held
pursuant to section 366.26, because the sibling relationship exception to
adoption applies.
Initially, county counsel argues Mother failed to raise the sibling
relationship exception to adoption at any time during the section 366.26
hearing as she submitted the matter on the assessment report. Accordingly,
county counsel maintains Mother has forfeited her opportunity to raise this
exception in her appeal.
Even though it appears from the record that Mother has forfeited the
sibling relationship exception to adoption by failing to raise it in the juvenile
court, because the issue is not free from doubt, we will address the merits of
Mother’s contention.
As explained in In re Celine R. (2003) 31 Cal.4th 45 (Celine R.), “ ‘[o]nce
reunification services are ordered terminated, the focus shifts to the needs of
the child for permanency and stability.’ [Citation.] ‘A section 366.26 hearing
. . . is a hearing specifically designed to select and implement a permanent
plan for the child.’ [Citation.] It is designed to protect children’s ‘compelling
rights . . . to have a placement that is stable, permanent, and that allows the
caretaker to make a full emotional commitment to the child.’ [Citation.] ‘The
Legislature has declared that California has an interest in providing stable,
permanent homes for children who have been removed from parental custody
and for whom reunification efforts with their parents have been
unsuccessful.’ ” (Id. at pp. 52–53.)
“Whenever the court finds ‘that it is likely the child will be adopted, the
court shall terminate parental rights and order the child placed for adoption.’

10
[Citation.] The circumstance that the court has terminated reunification
services provides ‘a sufficient basis for termination of parental rights unless
the court finds a compelling reason for determining that termination would
be detrimental to the child due to one or more’ of specified circumstances.
[Citation.] The Legislature has thus determined that, where possible,
adoption is the first choice. ‘Adoption is the Legislature’s first choice because
it gives the child the best chance at [a full] emotional commitment from a
responsible caretaker.’ ” (Celine R., supra, 31 Cal.4th at p. 53.)
“[I]f the child is adoptable . . . adoption is the norm. Indeed, the court
must order adoption and its necessary consequent, 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 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.] At this stage of the dependency
proceedings, ‘it becomes inimical to the interests of the minor to heavily
burden efforts to place the child in a permanent alternative home.’
[Citation.] The statutory exceptions merely permit the court, in exceptional
circumstances [citation], to choose an option other than the norm, which
remains adoption.” (Celine R., supra, 31 Cal.4th at p. 53.)
Here, Mother does not dispute the court’s finding that T.T.M. is likely
to be adopted but contends that the beneficial sibling relationship exception
applies such that her parental rights should not have been terminated.
The beneficial sibling relationship exception applies where the court
concludes “[t]here would be substantial interference with a child’s sibling
relationship, taking into consideration the nature and extent of the

11
relationship, including, but not limited to, [(1)] whether the child was raised
with a sibling in the same home, [(2)] whether the child shared significant
common experiences or has existing close and strong bonds with a sibling,
and [(3)] whether ongoing contact is in the child’s best interest, including the
child’s long-term emotional interest, as compared to the benefit of legal
permanence through adoption.” (§ 366.26, subd. (c)(1)(B)(v).) The parent
bears the burden in the juvenile court of showing the exception applies. (In
re L. Y. L. (2002) 101 Cal.App.4th 942, 949.)
While any sibling relationship necessarily involves two or more
siblings, a court considering the exception must focus its analysis on the child
being considered for adoption, not the other siblings. (Celine R., supra,
31 Cal.4th at p. 54.) “The court is specifically directed to consider the best
interests of the adoptive child, not the siblings, and must ultimately
determine whether adoption would be detrimental to the adoptive child, not
the siblings.” (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) “ ‘The author
of the legislation adding the sibling relationship exception anticipated that
“use of the new exception ‘will likely be rare,’ ” meaning “that the child’s
relationship with his or her siblings would rarely be sufficiently strong to
outweigh the benefits of adoption.” ’ ” (In re D.O. (2016) 247 Cal.App.4th 166,
174 (D.O.).)
Application of the sibling relationship exception requires a two-step
analysis. First, the court must determine whether terminating parental
rights would substantially interfere with the sibling relationship. (D.O.,
supra, 247 Cal.App.4th at p. 173.) Second, if the court determines
termination would substantially interfere with the relationship, it must then
“ ‘weigh the child’s best interest in continuing that sibling relationship

12
against the benefit the child would receive by the permanency of adoption.’ ”
(Id. at pp. 173–174.)
To the extent Mother challenges “the juvenile court’s ultimate
determination, we apply the substantial evidence standard to the juvenile
court’s underlying factual determinations, and the abuse of discretion
standard to the court’s weighing of competing interests.” (D.O., supra,
247 Cal.App.4th at p. 174.)
The trial court here found that T.T.M.’s placement was “necessary and
appropriate and that the agency has complied with the case plan by making
reasonable efforts including whatever steps are necessary to finalize the
permanent plan.” Mother contends otherwise, arguing that at the time of
T.T.M.’s initial removal he had always resided in the same home with his
siblings, and after being separated, T.T.M. maintained regular face-to-face
contact with his older brother, with occasional overnight visits, regular
telephone contact with his sister, and occasional contact with his adult
brother. Because T.T.M. shared a close relationship with his siblings, Mother
maintains continuity of these relationships with his siblings is “extremely
important” to T.T.M.
The role of this court on appeal, however, is not to second-guess the
juvenile court’s decision or to reweigh the evidence. Instead, we consider
whether substantial evidence supports the trial court’s ruling that adoption
was “necessary and appropriate” and whether the court abused its discretion
in weighing the competing interests. We conclude the court did not err in
this regard.
The evidence strongly supports that termination of Mother’s parental
rights would not substantially interfere with the sibling relationship.
T.T.M.’s current foster parent understood that maintaining a sibling

13
relationship was vital to him. The foster mother had been fostering T.T.M.’s
sister prior to her needing a higher level of placement. And despite his
sister’s relocation to an out-of-county placement, the foster parent,
nonetheless, remained in contact with her through phone calls and in-person
visits approximately every three months. Significantly, the adoption
specialist indicated the potential adoptive mother (foster mother) was
committed to sibling contacts between T.T.M. and his sister, as well as
having his older brother spend the night at their home approximately three
times a month. Indeed, T.T.M.’s current foster mother’s willingness to
maintain his current relationship with his siblings is an important factor in
favor of the court’s final placement determination.
On appeal, Mother argues that while T.T.M.’s foster mother expressed
a willingness to maintain postadoption sibling contact, “this did not provide
the juvenile court with sufficient justification to formally terminate the
sibling relationship” because there was no “set agreement” guaranteeing
sibling visitation would take place following termination of parental rights.
Though the adoptive parent’s openness to visits may be well intended,
Mother asserts there is no enforcement mechanism since the court no longer
has jurisdiction over the matter.
Neither statute or nor case law require that the parties enter into an
enforceable agreement for visitation as a prerequisite to a court finding that
adoption would not cause substantial interference with a sibling relationship.
The law does acknowledge that, after being adopted, some adoptive children
may benefit from contact, direct or indirect, with birth relatives, including
siblings. To this end, Family Code section 8616.5, subdivisions (a) and (b)(1),
and 8714, authorize postadoption contact agreements executed between the
adoptive parents and the birth parents or parent, or siblings provided the

14
contact is beneficial to the children and the agreements are voluntarily
executed. However, at its core, such an open adoption is an agreement
between those individuals involved; it is not a mandate by the court.
As to postadoptive sibling contact, section 366.29 also represents
another limited exception. It authorizes the court, “[w]ith the consent of the
adoptive parent or parents,” to include in a final adoption order “provisions
for the adoptive parent or parents to facilitate postadoptive sibling contact.”
(§ 366.29, subd. (a).) The court, however, cannot require the adoptive parents
to do so. (Celine R., supra, 31 Cal.4th at p. 55.)
Because the adoptive parent in the instant matter was not required to
enter into a contact agreement, we reject Mother’s assertion that in the
absence of such an agreement, termination would interfere with the sibling
relationship.
Nor is Mother’s reliance on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.)
persuasive. In S.B., the appellate court reversed the trial court’s finding that
the beneficial parent-child relationship exception did not apply after
concluding the child would be greatly harmed by the loss of the significant
positive relationship she shared with her father. The father had complied
with every aspect of his case plan, frequently visited his daughter, and was
devoted to her. She loved him and wanted to live with him. (Id. at p. 295.)
The court distinguished the situation in S.B. explaining it is not
“analogous to the sibling relationship exception under section 366.26,
subdivision (c)(1)(B)(v), in which the court considers future sibling contact
and visitation. [Citation.] Unlike the parent-child relationship, sibling
relationships enjoy legal recognition after termination of parental rights.”
(S.B., supra, 164 Cal.App.4th at p. 300.)

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 Finally, Mother bore the burden of showing the sibling relationship
could not be maintained if her parental rights were terminated. (In re
L. Y. L., supra, 101 Cal.App.4th at p. 949.) Other than mere speculation that
T.T.M.’s second adoptive placement could fail because the first adoptive
placement failed due to his disruptive behavior and emotional and mental
health issues, Mother points to no evidence to meet her burden to
demonstrate a substantial interference with the sibling relationship. On the
contrary, as noted by the adoption specialist, in his current foster/adopt
placement, she had noticed a “substantial change” in T.T.M.’s behavior; he
appeared “more stable and calmer.” And, unlike his previous placement
where the school called multiple times per week for behavioral issues and
disruptions, the current foster parent reported his school called only about
once per month for behavioral issues, a significant improvement.
In short, substantial evidence supports the juvenile court’s decision to
terminate Mother’s parental rights because the sibling relationship exception
is not implicated.3
III. DISPOSITION
The order is affirmed.

3 Because we have concluded substantial evidence supports the court’s
determination that terminating parental rights would not substantially
interfere with the sibling relationship, we need not address whether the court
was required to weigh T.T.M.’s interests in continuing the sibling
relationship against the benefit he would receive by the permanency of
adoption.

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 MARGULIES, ACTING P. J.

WE CONCUR:

BANKE, J.

SANCHEZ, J.

A160071
In re T.D.M.

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