Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Super. Ct. Nos. JD106050 & JD106604
Janet G. Sherwood, under appointment by the Court of Appeal, for Appellants.
B.C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Gomes, J.
Six-year-old K.T. and her five-year-old brother L.T. appeal from orders terminating their parents’ rights (Welf. & Inst. Code, § 366.26). At the section 366.26 hearing, the children’s attorney disputed the likelihood that K.T. would be adopted based on her age and by challenging the suitability of her prospective adoptive parents. The attorney also urged termination would be detrimental to her young clients based on their sibling relationship. The superior court was not persuaded. It found each child was generally adoptable and therefore rejected their bid to evaluate the suitability of K.T.’s prospective adoptive parents. It also determined the sibling relationship exception to adoption did not apply. (§ 366.26, subd. (c)(1)(E).)
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On appeal, the children criticize each of these determinations. They also contend the court abused its discretion by not considering K.T.’s placement as an issue at the section 366.26 hearing. On review, we disagree and will affirm.
PROCEDURAL AND FACTUAL HISTORY
Commencing in May 2002, when K.T. was two years old and L.T. was nine months old, respondent Kern County Department of Human Services (the department) received and substantiated referrals regarding their parents’ neglect and lack of supervision. By August 2002, the parents had separated. In the process, the mother kept the infant L.T. to live with her in Bakersfield while the father took the toddler K.T. to live with him in Taft.
The mother’s neglectful conduct led to additional referrals in late 2004. Her home, which she shared with her live-in boyfriend, three-year-old L.T. and her one-year-old son by another man, was filthy and posed a health and safety hazard. Then, in January 2005, she left both toddlers outside, lightly clothed and unattended. The boys eventually ran out onto a road and were nearly struck by a car. This incident led to their detention and the initiation of dependency proceedings. Underlying the mother’s neglect was her methamphetamine abuse.
At the detention hearing for L.T., the court asked his mother “[d]o you know where [L.T.’s father] is these days other than the [cell] phone number that we have?” The mother replied: “I don’t know. All I know is he’s in Taft.”
Later that same day, L.T.’s father contacted a department social worker, in apparent response to a message the social worker left on the father’s cell phone. The father stated he lived in Taft with his father and five-year-old K.T. The father added he did not visit his son very often and the mother visited K.T. when she could. K.T. stated she did not want to visit her mother because the mother’s live-in boyfriend “hits the kids, and [K.T.] is afraid.”
In considering whether to place L.T. with his father, the department discovered the father also abused methamphetamine and was facing recent drug charges. The department’s discovery eventually led to the initiation of separate dependency proceedings for K.T. and her detention on March 15, 2005.
Meanwhile, on March 8, 2005, the superior court conducted a combined jurisdictional and dispositional hearing in L.T.’s case. The court exercised its dependency jurisdiction (§ 300, subd. (b) [neglect]) over L.T. and the one-year-old, removed them from their mother’s custody, and ordered six-months of reunification services for each of the parents. L.T. and the one-year-old were in a foster home placement. At the time of the hearing, there were no pending applications for relative placement.
After K.T.’s detention, the paternal grandfather requested placement of all three children. The department denied his request for a number of documented reasons in April 2005. Meanwhile, the department placed K.T. in a separate foster home where she has remained ever since.
In late April 2005, the court exercised its dependency jurisdiction (§ 300, subds. (b) [neglect] & (j) [sibling neglect]) over K.T., removed her from her father’s custody, and ordered reunification services for the parents. Because other paternal relatives might seek placement of K.T., the court granted them an additional 10 days to do so. According to the record, no such applications were received.
K.T.’s and L.T.’s dependencies continued along separate procedural paths until June 2006. By that time, L.T. had been placed with a paternal uncle and aunt who were interested in providing him a permanent home. The court conducted a joint hearing in June 2006 on each child’s dependency. It made the necessary findings to terminate all reunification efforts as well as to set a section 366.26 hearing to select and implement a permanent plan for each child.
Social Study for Section 366.26 Hearing
In advance of the section 366.26 hearing, the department prepared a “SOCIAL STUDY” detailing its recommendation that the court find K.T., L.T. and their younger half-brother adoptable and order parental rights terminated. The department had identified each child’s caregivers as the prospective adoptive parents. The social study included an adoption social worker’s evaluation of each child and a preliminary assessment of each prospective adoptive family.
The adoption social worker opined that the children are adoptable due to their young age and absence of any significant medical problems or developmental delays. She described them as loving and healthy. The adoption social worker added that each child lived with committed prospective adoptive parents with whom he or she shared a bond. Further, it was the adoption social worker’s opinion if the current caretakers were unable to adopt the children for any reason, it would not be difficult to find another adoptive home for the children.
The adoption social worker also reported that neither child had a significant emotional attachment to the parents. The father apparently last visited with his children in October 2005. The mother took advantage of less than half of her opportunities to visit. In the six months leading up to the termination hearing, she visited the children on only four occasions, despite a court order for weekly visitation.
In addition, the adoption social worker stated the two children did not share a sibling relationship. They had been placed in different homes and, until March 2006, the contact between K.T. and her brothers was limited to the parents’ visits. Thereafter, the department supervised weekly, one-hour visits between the children. Their interactions with one another were described as appropriate. They viewed each other as playmates. The evaluation further noted all three children were eligible for adoption assistance program benefits based on their respective ages and their parents’ histories of substance abuse.
As the appellate issues do not pertain to the children’s younger half-brother, we make no further reference to him.
The adoption social worker interviewed both children, K.T. in July 2006 and L.T. in August 2006. The adoption social worker asked K.T. where she would like to live forever. “[K.T.] indicated that she wants to live forever with her ‘mamas’ and her ‘papa.’ These are names the child has for her caretakers.” When the adoption social worker interviewed L.T., she asked if he liked living with the caretakers. L.T. did not appear to comprehend the question and was unable to provide a concrete answer.
The social study next assessed each child’s prospective adoptive family. Because this appeal includes an issue regarding K.T.’s prospective adoptive family, we summarize their assessment as follows. K.T. had been placed with her prospective adoptive family for approximately 18 months. The adoptive parents were in their 40’s and had been married for more than 20 years. Both parents were employed, the adoptive mother as a school bus driver and the adoptive father as a substance abuse counselor. They had two daughters, one of whom still lived at home, and were legal guardians for two other children. The family lived in a four bedroom, two and a half bathroom home in an upper middle class location. K.T. shared a bedroom.
A check of criminal records revealed the following information about the adoptive father. As a juvenile, he was twice charged with robbery -- for which the dispositions were unknown -- and was once “convicted” of grand theft and given three years probation. This offense was reduced to a misdemeanor and dismissed pursuant to Penal Code section 1203.4. In the year he turned 18, he was charged with battery on a peace office (Pen. Code, § 243) and disturbing the peace (Pen. Code, § 415). The first charge was dismissed for insufficient evidence and the second resulted in a conviction with a grant of two years probation. The following year he was charged with transporting a controlled substance (Health & Saf. Code, § 1137, subd. (a)). The disposition was unknown. Then, in 1984, he faced two charges of use/under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) and one charge of misuse of a needle/syringe (Bus. & Prof. Code, § 4144). He in turn sustained a misdemeanor conviction and received 18 months of probation. In 1996, the county’s foster care licensing authority issued an exemption for the adoptive father’s criminal history.
A check of the child welfare service case management system revealed that, starting in 1999, there had been several referrals against adoptive parents, apparently in their capacities as foster parents. There were two referrals for general neglect as to the adoptive father. Both of these referrals were determined to be unfounded.
The adoptive mother meanwhile was the subject of multiple referrals. A 2002 referral for general neglect was “evaluated out, as it did not meet the criteria of abuse or neglect.” On one date in January 2004, there were three referrals for physical abuse and general neglect; she allegedly pulled on one child’s hair and slapped another child. The physical abuse referral proved to be “unfounded.” “However, the investigating social worker was unable to prove the validity of the general neglect allegations and determined the foster mother may have used inappropriate discipline techniques. The allegation of general neglect was substantiated against the foster mother.” Thereafter, there were two more general neglect referrals against the prospective adoptive mother, one from July 2004 proved to be “unfounded” and the other from 2005 was “evaluated out, as it did meet the criteria for abuse or neglect.”
The adoption social worker followed up on this information by inquiring whether any discipline had been imposed. She learned the prospective adoptive parents completed a class on discipline versus punishment in 2004 and were also required to review regulations described as “the Personal Rights section in the Title 22 regulations.”
In assessing the prospective adoptive parents’ motivation to adopt and capability to meet the needs of K.T., the adoption social worker reported the parents loved K.T. and were very bonded. Their bond was based on security and love. They considered her as “special” and wanted to see K.T. live a productive life as well as attend college in the future. They had demonstrated they were both capable of and committed to providing the best possible care for K.T. through adoption.
Section 366.26 Hearing
The court conducted the section 366.26 hearing in early November 2006. At the outset, the children’s attorney, Erin Dietrich, expressed concern about K.T.’s prospective adoptive parents, specifically the adoptive father’s criminal history and the exemption that issued as well as the adoptive couple’s “[Child Protective Services] history.” Dietrich asked the court to review in camera the adoptive father’s CLETS record as well as the couple’s CPS record. She also claimed K.T. was not a generally adoptable child and there was a sibling bond issue.
County counsel challenged Dietrich’s effort, arguing that the threshold issue was whether the children were adoptable and the evidence supported such a finding. County counsel further argued: the department’s preliminary assessment of the prospective adoptive parents sufficed; and Dietrich’s challenge to the couple’s suitability to adopt was not the proper subject of a section 366.26 hearing.
Following these arguments, the court made a tentative finding that there was clear and convincing evidence all three of the children were generally adoptable and no statutory exceptions applied. In light of its tentative finding, the court announced it would find the availability of prospective adoptive parents was irrelevant to the section 366.26 hearing.
Notably, Dietrich did not contest the tentative finding. She instead voiced her belief that there was a sibling bond between K.T. and L.T. which had not been addressed. The court reminded counsel that if it did find clear and convincing evidence of the children’s adoptability, the burden would be on the party opposing termination to show that termination would be detrimental on such a ground.
Dietrich claimed the department’s delivered service logs, which were described as 66 pages in length, supported her claim of a sibling bond. However, she did not offer them into evidence. Instead, Dietrich called the adoption social worker and the children’s current placement worker as witnesses in an apparent effort to introduce two entries from the logs. Initially unable to overcome the department’s hearsay objection, counsel elicited limited testimony from these witnesses.
Eventually, Dietrich laid a foundation to qualify the entries as official records. Although the court admitted the two entries under the official records exception to the hearsay rule, it sustained an objection to the statements contained in the entries on multiple hearsay grounds. Consequently, the court explained, although it admitted the actual entries into evidence, it was not considering their content as they constituted multiple hearsay. Because appellate counsel raises no issue regarding the court’s ruling, we have not considered the content of the two entries in our record review.
The adoption social worker testified she once observed K.T. and L.T. together. She also separately saw each child. When asked whether she knew if it was K.T.’s desire to live with the relatives with whom her brother was placed, the adoption social worker replied “No. She never indicated that to me.”
The placement worker saw both children in their respective placements as well as supervised one visit between them in September. During the supervised visit, the placement worker observed K.T. and L.T. having fun. “[a]s kids do” playing together. “They were primarily jumping all over the sofa, running around the room, rough housing, throwing toys.”
Following this testimony, the court accepted Dietrich’s offers of proof of what K.T. and L.T. would say if called as witnesses. The court did so, subject to whatever weight the court would give the statements, other evidence and argument. K.T. would testify that “she wants to live with her brother [L.T.] and her aunt and uncle in Taft. And that she doesn’t want to lose contact with her mother.” L.T. would testify that “he loves his sister 100 and wants to live with her.”
Dietrich next called the children’s mother as a witness. The mother confirmed that when she and the father separated in 2002, K.T. moved with him. When asked to describe the children’s relationship then, the mother replied “Well, [L.T.] was 11 months old.” After the separation, the children saw each other “[p]robably every weekend” for overnight visits. K.T. would come to visit. According to the mother, K.T. and L.T. knew each other as brother and sister. The two would play together, with L.T. following whatever his older sister did. The mother also claimed she tried to call K.T. every day and when she did so, K.T. would speak to L.T. as well.
Once their dependencies commenced, the children saw each other when they visited their parents. The mother described them as “bonded” in that they knew each other and played with one another as brother and sister. According to the mother, there were visits which L.T. missed and K.T. would ask where he was. Otherwise, the visits started with the children greeting one another and then playing. At the end, K.T. would kiss her brother goodbye. Asked if there was “any crying or tears,” the mother replied “Just from me.”
The father also testified about his children’s contact with one another. He claimed he took K.T. to Bakersfield “every chance I got which was at least every weekend if not more.” When the children saw each other, they would give one another a hug or kiss and then play side-by-side. According to the father, K.T. would ask to see her brother approximately every day. Since the children’s out-of-home placements, the father saw them together at visits. They wanted to constantly play. At the last visit the father attended, approximately four months earlier, the children had “[b]ig old smile [sic], hugs and kisses, and then went about their playing.” At the end when they had to part, “it was sad.”
Finally, the mother’s attorney recalled the adoption social worker to testify about a July 2006 conversation she and another worker had with K.T.’s prospective adoptive parents. The adoptive parents sought the social workers’ advice about telephone calls the adoptive parents were receiving from L.T.’s relative caregivers. According to the department’s delivered service log, the prospective adoptive father made a statement that it would be better if there was little or no contact with those relatives. The adoption social worker testified it was her recollection that the other social worker, not K.T.’s adoptive father, who actually made the little or no contact statement.
In closing argument, Dietrich claimed her client K.T. was not adoptable due to her age and the lack of evidence that anyone other than K.T.’s foster parents had been identified as prospective adoptive parents for K.T. The children’s attorney also asked the court not to terminate parental rights based on the sibling relationship between K.T. and L.T. Counsel for the parents made similar arguments. County counsel countered, urging the court to follow the department’s recommendations.
Upon submission, the court confirmed its tentative finding, by clear and convincing evidence, that each of the children was generally adoptable and the suitability of K.T.’s prospective adoptive parents was irrelevant. In addition, the court ruled it did not find a sibling relationship existed between any of the three children which was so strong that its severance would cause detriment. Further, even assuming termination would cause detriment, the court weighed the benefit to the children of continuing the sibling relationship against the benefit that adoption would provide and found the latter outweighed the former. The court then terminated parental rights to each of the three children.
DISCUSSION
Adoptability
The issue of adoptability posed in a section 366.26 hearing focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the child already be in a potential adoptive home or that there be a proposed adoptive parent “waiting in the wings.” (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.)
Usually, the fact that a prospective adoptive parent has expressed interest in adopting a dependent child is evidence that the child’s age, physical condition, mental state, and other relevant factors are not likely to dissuade individuals from adopting the child. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the child is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
Although the juvenile court must make its adoptability finding by clear and convincing evidence (§ 366.26, subd. (c)(1)), the “clear and convincing” standard of proof is not a standard for appellate review (Crail v. Blakely (1973) 8 Cal.3d 744, 750). The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal. (Ibid.)
In this case, there was substantial evidence of the likelihood of both K.T.’s and L.T.’s adoption. Six-year-old K.T. had no medical concerns or issues and was age-appropriate in terms of her development. In addition, there were no concerns regarding her emotional and mental health status. K.T. was enrolled in the first grade and there were no concerns regarding her scholastic needs.
For his part, five-year-old L.T. did not have any medical health concerns. There was conflicting evidence regarding his speech and language skills. In addition, L.T. was very active and had temper tantrums which were difficult to cope with and time-outs were ineffective. L.T., a kindergartener, was very happy to be in school and had made new friends.
In addition, each child lived with committed prospective adoptive parents with whom they shared a bond. Moreover, if the current caretakers were unable to adopt the children for any reason, the evidence was undisputed that it would not be difficult to find another adoptive home for the children.
Seizing upon the superior court’s specific finding that the children were generally adoptable, appellate counsel for K.T. and L.T. argues there was insufficient evidence to support the general adoptability finding as to each child. To support her claim, she relies on a very selective reading of the record, overlooking much of the above-cited evidence. Her argument is all the more remarkable because no one at trial challenged the department’s adoption assessment, let alone cross-examined the adoption social worker regarding the basis for her observations and opinions. In addition, appellate counsel buttresses her claim of insufficient evidence with a series of faulty legal arguments, as discussed below.
A.
As a preliminary matter, appellate counsel assumes the superior court’s specific finding that the children were generally adoptable is a proper matter for this court’s consideration. It is not. That finding is nothing more than the superior court’s reasoning which is not a matter for this court’s review (Davey v. Southern Pac. Co. (1897) 116 Cal. 325, 329). Rather, it is the superior court’s ruling or judicial action which is the proper subject of appellate review. (In re Sarah M., supra, 233 Cal.App.3th at pp. 1494-1495.)
In order for the superior court to terminate parental rights, the law required it to find by clear and convincing evidence that it was likely that each child would be adopted. (§ 366.26, subd. (c).) Thus, we reviewed the record for substantial evidence of the likelihood of the children’s adoption, not whether that likelihood existed because the child was generally adoptable or because there was a prospective adoptive parent committed to adopting the child.
B.
The overarching theme of appellate counsel’s argument is that a dependent child’s characteristics must be such that it is quite clear a number of different people would be interested in adopting that child. It is not enough, in counsel’s estimation, that there is one person or family who may be interested in adopting a particular child. Thus, appellate counsel contends absent evidence of a number of different people interested in adopting K.T. and L.T., the adoption social worker could not opine nor could the court find the children were adoptable. We disagree.
In crafting her argument, appellate counsel cites several decisions (In re Asia L. (2003) 107 Cal.App.4th 498; In re Brian P. (2002) 99 Cal.App.4th 616; In re Jerome D. (2000) 84 Cal.App.4th 1200; In re Tamneisha S. (1997) 58 Cal.App.4th 798; In re Amelia S. (1991) 229 Cal.App.3d 1060); none of these cases, however, mandates proof of other adoptive families interested in adopting the child in question. At most, in In re Asia L., supra, 107 Cal.App.4th at page 512 and In re Jerome D., supra, 84 Cal.App.4th at page 1205, the appellate courts noted there was no evidence of any approved families willing to adopt children, such as those in each case. Appellate counsel ignores the absence of any holding requiring such proof. She also overlooks the underlying circumstances in each of those decisions and their dissimilarity to the present case.
In In re Asia L., supra, 107 Cal.App.4th 498, the dependent children were not in an adoptive placement and had emotional and behavioral problems serious enough to make them difficult to place for adoption (§ 366.26, subd. (c)(3)). At best, their foster parents were willing to “explore the option of adoption.” (In re Asia L., supra, 107 Cal.App.4th at p. 512.) The Asia L. court considered such evidence “too vague” to support an adoptability finding. (Ibid.)
In In re Jerome D., supra, 84 Cal.App.4th at page 1205, the appellate court reversed an adoptability finding based on the willingness of a child’s stepfather to adopt him. The Jerome D. court held such evidence would not suffice because the adoption assessment failed to address the stepfather’s criminal and CPS history, which was not insubstantial, as required by section 366.22, subdivision (b)(4).
Neither of these opinions nor any of the other cited decisions stands for the proposition appellate counsel endorses. Moreover, each decision involves circumstances so factually distinct from the present case as to be of little or no benefit. Here, there was no evidence that K.T.’s or L.T.’s age, physical condition, and emotional state made it difficult to find a person willing to adopt. Instead, as previously noted, the undisputed evidence was each child was adoptable due to their young age and absence of any significant medical problems or developmental delays. Moreover, each child lived with committed prospective adoptive parents with whom they shared a bond. Finally, if their current caretakers were unable to adopt the children for any reason, it would not be difficult to find other adoptive homes for the children.
C.
Appellate counsel for the children further contends that the social study acknowledged both K.T. and L.T. were “special needs” children. Counsel relies on the social study’s statement that all three children were eligible for adoption assistance program benefits based on their respective ages and their parents’ histories of substance abuse. She reasons, therefore, the children are not generally adoptable. As discussed below, we conclude the children’s adoption assistance eligibility did not prevent the court from finding it was likely they would be adopted.
California’s Adoption Assistance Program (§§ 16115 et seq.) provides payments, not to exceed foster care maintenance payments, to adoptive parents enabling them to meet the needs of children who meet certain statutory criteria. (Ibid; § 16121.) The Legislature enacted this program to benefit foster home children by providing the stability and security of permanent homes, and, in so doing, achieving a reduction in foster home care. (§ 16115.5.) A child is eligible for program benefits if the child has:
“at least one of the following characteristics that are barriers to his or her adoption:
“(1) Adoptive placement without financial assistance is unlikely because of membership in a sibling group that should remain intact or by virtue of race, ethnicity, color, language, age of three years or older, or parental background of a medical or behavioral nature that can be determined to adversely affect the development of the child.” (§ 16120, subd. (a)(1).)
The state’s adoption statutory scheme, separately set forth in Family Code, section 8500 et seq., defines such a child as a “special-needs child.” (Fam. Code, § 8545.) It is this term which appellate counsel relies upon to argue that K.T. and L.T. are not generally adoptable.
The precise definition of such a “special-needs child” is “a child whose adoption without financial assistance would be unlikely because of adverse parental background, ethnic background, race, color, language, membership in a sibling group that should remain intact, mental, physical, medical, or emotional handicaps, or age of three years or more.” (Fam. Code, § 8545.)
We are not persuaded by appellate counsel’s argument. These provisions set forth criteria for public assistance. They do not amount to a statutory definition of an unadoptable child. They did not state that adoptive placement is unlikely because of certain factors, but rather that “adoptive placement without financial assistance is unlikely because.” (Emphasis added.) Counsel’s argument is also illogical given the legislative intent to promote adoption of foster children by overcoming potential financial barriers to adoption by foster families. In any event, the fact of the children’s eligibility amounts at most to potentially conflicting evidence. Conflicting evidence, however, is not a basis for reversal. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)
D.
Appellate counsel also questions the superior court’s decision specifically as to L.T. Citing the record references to his temper tantrums, she characterizes L.T. as suffering mental or emotional handicaps. Notably, there is no evidence that L.T.’s temper tantrums are a symptom of some mental or emotional handicap. There was indeed no question raised in the superior court about the likelihood of L.T.’s adoption. Moreover, appellate counsel concedes in her opening brief that the trial court could have reasonably found that L.T. was adoptable based on his prospective adoptive parents’ willingness to adopt. Thus, we fail to understand the point of appellate counsel’s argument. In any event, by arguing now over the meaning of L.T.’s temper tantrums, appellate counsel essentially asks this court to reweigh the evidence and draw a different conclusion. This, however, is not within our appellate purview. (In re Brison C., supra, 81 Cal.App.4th at pp. 1378-1379.)
E.
Appellate counsel repeats a claim made by her counterpart in the superior court, namely that K.T. is too old to be found adoptable. Trial counsel argued the point but introduced no evidence to support her position. To her credit, appellate counsel offers a theory to support her claim. According to appellate counsel, if K.T.’s prospective adoptive parents become unable or unwilling to adopt her, she will be at least seven years old. This is significant, in counsel’s estimation, because K.T. would qualify then as a hard-to-place child for adoption purposes under section 366.26, subdivision (c)(3). Setting aside whether the code provision actually supports counsel’s position, we conclude it is meritless. First, it is based on speculation. Second, it ignores the record evidence before the juvenile court that if the current caretakers were unable to adopt, it would not be difficult to find another adoptive home.
Section 366.26, subdivision (c)(3) provides:
F.
Finally, appellate counsel challenges the juvenile court’s decision not to consider the suitability of K.T.’s prospective adoptive parents. Had it done so, counsel contends, the court could not properly find K.T. was likely to be adopted. Although appellate counsel argues at length in this regard, she once again overlooks the fact that K.T. was not a child who might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability and whose adoptability was based solely on the existence of a prospective adoptive parent willing to adopt her. In such a case, an inquiry could have been made into whether there is any legal impediment to adoption by that parent. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) Otherwise, the issue is irrelevant at a section 366.26 hearing. (Ibid.)
Here, the evidence was undisputed that there were no concerns regarding K.T.’s physical, emotional and mental health status. The child who was only six-years-old was age-appropriate in terms of her development and was enrolled in the first grade with no concerns regarding her scholastic needs. Moreover, if the current caretakers were unable to adopt for any reason, the evidence was undisputed that it would not be difficult to find another adoptive home for K.T. While appellate counsel attempts to overlook this evidence, we do not. (In re Brison C., supra, 81 Cal.App.4th at pp. 1378-1379.) We conclude on this record that the juvenile court did not err by ruling that the suitability of K.T.’s prospective adoptive parents was irrelevant.
Sibling Relationship
Appellate counsel for the children also argues the court should have invoked the sibling relationship exception, defined in section 366.26, subdivision (c)(1)(E), and found termination would be detrimental to K.T. and L.T. According to counsel, the court’s finding no sibling relationship between any of the three children such that its severance would cause them detriment was not supported by substantial evidence. Relying largely on the parents’ testimony as well as the accepted offers of proof as to the children’s testimony, counsel claims there can be no doubt her clients shared a strong sibling relationship. She further contends there was no evidentiary basis on which the court could find the children would not suffer detriment. As discussed below, we disagree with appellant’s assessment of the record and conclude the court did not err.
To begin, appellant overlooks the superior court’s focus at this stage of dependency proceedings. Once reunification services are ordered terminated, the focus shifts to the child’s need for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Because each child was likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specifically designated circumstances, set forth in section 366.26, subdivision (c)(1), provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
In addition, although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) Rather, it is the burden of a party opposed to termination to show that termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, while appellate counsel decries the lack of evidence that K.T. and L.T. would not suffer detriment if their relationship were terminated, she overlooks her clients’ evidentiary burden to establish that they would suffer detriment.
Moreover, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence, as appellate counsel argues. Instead, it is whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) On review of the record, we find no abuse of discretion.
The so-called sibling relationship exception in section 366.26, subdivision (c)(1)(E), requires the court to find:
“There 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.”
In this case, there was relatively little evidence regarding the nature and extent of the children’s relationship. Certainly, they were not raised together in the same home, having lived apart since K.T. was a toddler and L.T. was an infant. As even the mother acknowledged about the children’s relationship before the couple’s separation, “Well, [L.T.] was 11 months old.”
There was also no evidence that they shared significant common experiences. At most, there was conflicting evidence regarding the children’s visits with one another before their respective dependencies. The parents testified the children regularly and frequently visited one another and played together. For instance, each parent claimed the children saw each other probably every weekend, if not more frequently, with the father delivering K.T. for visits to the mother’s home. However, at the outset of L.T.’s dependency, each parent made statements to the contrary. The mother told the court she did not know where the father was except that he lived in Taft. The father meanwhile told the department he did not visit his son very often and the mother visited K.T. when she could. K.T. did not want to visit her mother out of fear of the mother’s boyfriend.
As for existing close and strong bonds, the evidence was conflicting as well. The mother described them as “bonded” in that they knew each other and played with one another as brother and sister during their visits. On the other hand, the mother conceded the conclusion of their visits was difficult for her alone. Their father described an affectionate and caring relationship between the children. While he claimed the conclusion of the children’s visits was sad, it appears he was speaking for himself. Further, given the lapse in the parents’ visits with their children for much of the year preceding the termination hearing, their testimony hardly related to the current state of the children’s relationship and thus may have deserved little weight in the court’s mind. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860 [Issues of fact and credibility are for the trial court alone].) Meanwhile, the department’s social workers described the children as relating to one another as playmates, not as siblings.
There were the offers of proof that both children wished to live with each other. However, having proceeded by way of testimonial proffers, rather than calling her clients as actual witnesses, appellants’ trial counsel deprived the juvenile court an opportunity to observe the children and assess the strength of their wishes and their purported bond. As described by another court, children’s testimony can be “powerful demonstrative evidence.” (In re Naomi P. (2005) 132 Cal.App.4th 808, 824.) Meanwhile, there was the department’s evidence that K.T. wished to remain with her prospective adoptive parents and L.T. could not respond to questions about living his uncle and aunt.
Notably, absent from the record is any evidence that the children were distressed or suffered any harm by virtue of their limited contact with one another. Also, we note their trial counsel never sought an outside assessment of the children’s relationship, such as a bonding study, by a mental health specialist.
As the California Supreme Court explained in In re Celine R., supra, 31 Cal.4th at page 61:
“the ‘sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a “compelling reason” for concluding that the termination of parental rights would be “detrimental” to the child due to “substantial interference” with a sibling relationship.’ (In re Daniel H. [(2002)] 99 Cal.App.4th [804,] 813, quoting § 366.26, subd. (c)(1).)”
Here, the evidence simply did not compel a finding that termination would substantially interfere with a sibling relationship. Appellants failed to satisfy their heavy burden of proof.
Finally, as the Celine R. court added,
“even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption.” (In re Celine R., supra, 31 Cal.4th at p. 61.)
Thus, assuming for the sake of appellants’ argument that a strong sibling relationship in fact existed, we would still find no error. The court clearly weighed the benefits of both and found in favor of adoption. For this court to overturn that finding would amount to our reweighing the evidence which is not our role. (In re Brison C., supra, 81 Cal.App.4th at pp. 1378-1379.)
Placement
Last, appellate counsel for the children argues this appeal could have been avoided entirely had the juvenile court “considered the placement issues that Ms. Dietrich kept trying to raise.” In appellate counsel’s view, the court should have considered placing the children together with their paternal relatives for adoption purposes. On review, we conclude the juvenile court did not abuse its discretion.
Appellant’s trial counsel never asked the court to consider placing the children together. At most, Dietrich asked the court to conduct an in camera records review related to K.T.’s prospective adoptive parents and whether they would be able to adopt. K.T.’s current placement was not at issue. Indeed, placement is ordinarily not at issue in a section 366.26 hearing. The purpose of such a hearing is to select and implement a permanent plan for a dependent child. (§ 366.26.) Under these circumstances, we will not permit appellate counsel to argue the juvenile court erred in not being psychic. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)
DISPOSITION
The orders terminating parental rights are affirmed.
“If the court finds that termination of parental rights would not be detrimental to the child pursuant to paragraph (1) and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days. During this 180-day period, the public agency responsible for seeking adoptive parents for each child shall, to the extent possible, ask each child who is 10 years of age or older, to identify any individuals, other than the child's siblings, who are important to the child, in order to identify potential adoptive parents. The public agency may ask any other child to provide that information, as appropriate. During the 180-day period, the public agency shall, to the extent possible, contact other private and public adoption agencies regarding the availability of the child for adoption [and] conduct the search for adoptive parents . . . . For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the child’s membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more.” (Emphasis added.)