In re E.B. CA3

Filed 9/4/20 In re E.B. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re E.B. et al., Persons Coming Under the Juvenile C091370
Court Law.
EL DORADO COUNTY HEALTH AND HUMAN (Super. Ct. Nos.
SERVICES AGENCY, SDP20180019 &
SDP20180020)
Plaintiff and Respondent,
v.
A.H.,
Defendant and Appellant.
A.H., mother of the minors (mother), appeals from the juvenile court’s orders
terminating her parental rights and freeing the minors for adoption. (Welf. & Inst. Code,
§§ 366.26, 395.)1 We will affirm the juvenile court’s orders.
1 Undesignated statutory references are to the Welfare and Institutions Code.
1
FACTUAL AND PROCEDURAL BACKGROUND
In April 2018, mother admitted to long-term use of methamphetamine, as did her
boyfriend in whose care she left the minors. Pursuant to a voluntary service plan between
mother and the El Dorado County Health and Human Services Agency (Agency), mother
entered into Progress House to address her extensive substance abuse problem. The
Agency initially allowed the minors, E.B. (then age 6) and M.B. (then age 7), to
accompany mother at Progress House. However, on June 15, 2018, mother signed a
voluntary placement agreement to temporarily place the minors in foster care because she
“could not cope any longer.” Just four days later, mother informed the Agency she was
leaving the program. When the social worker encouraged mother to seek individual
counseling and offered to assist mother in self-referring to behavioral health, mother
refused. On June 21, 2018, mother left Progress House and the drug treatment program
against staff advice.
On June 21, 2018, the Agency filed dependency petitions on behalf of the minors
pursuant to section 300, subdivision (b). The petitions were amended twice, eventually
alleging failure to protect pursuant to subdivision (b) and no provision of support
pursuant to subdivision (g). In part, the amended petitions alleged mother had an
extensive substance abuse problem from which she failed or refused to rehabilitate, and
she left the agreed-upon drug treatment facility in violation of her agreement.
The Agency reported it was unable to find an appropriate placement for both
minors in the same home but was able to place them in separate homes that were close
together and afforded them daily interactions with each other. Mother met with the social
worker on June 28, 2018, and reported she was 82 days clean and sober. When asked to
submit to a drug test, mother eventually agreed but admitted she would test positive for
marijuana. The social worker referred mother for an alcohol and other drug (AOD)
assessment, individual counseling, and drug testing. The social worker expressed
concern that mother continued her relationship with her boyfriend who was known to the
2
Agency as a long-term drug user with a significant child protective services history.
Mother countered that she and her boyfriend were “strong together” and “strong in their
recovery.”
After leaving Progress House, mother made minimal progress in attempting to
establish ongoing services. She also tested positive for marijuana. Communication with
the Agency was infrequent and difficult due to mother’s lack of a telephone or a known
address. Mother’s behavior and her continued involvement with her boyfriend inhibited
her ability to safely care for and protect the minors.
The juvenile court found true the allegations in the amended petitions, striking the
allegation that mother’s whereabouts were unknown. The court continued the minors in
out-of-home placement and ordered twice-weekly supervised visits and weekly telephone
calls.
According to the disposition reports filed July 30, 2018, and August 1, 2018,
mother had not engaged in services to address her substance abuse issues, had not yet
scheduled an AOD assessment, was still testing positive for marijuana, was not keeping
scheduled therapy appointments, and was living in an unhealthy and unsafe environment.
She attended only two of the four scheduled visits with the minors and had only one
telephone call. Mother was referred for an AOD assessment but arrived late. She was
scheduled for an intake session for counseling services and provided a bus pass but failed
to attend.
At the August 1, 2018, disposition hearing, the court ordered continued out-of-
home placement of the minors and continued reunification services to mother.
At the September 26, 2018, case compliance hearing, pursuant to a request from
minors’ counsel, the juvenile court ordered mother to have a psychological evaluation.
Mother completed the evaluation with Dr. Eugene Roeder on October 22, 2018. Dr.
Roeder found mother was experiencing a moderately severe mental disorder and required
professional, clinical care. He noted her test results were most consistent with
3
generalized anxiety disorder and bipolar disorder in addition to psychoactive substance
abuse. Dr. Roeder concluded that in order for mother to successfully reunify with the
minors, her underlying psychological problems needed to be adequately addressed, as
well as her substance abuse disorder and her interpersonal challenges.
On November 16, 2018, the Agency requested that the court change its visitation
order to once per week due to mother’s cancellation of numerous visits with the minors.
Based on the agreement of the parties, the court changed mother’s visitation schedule
accordingly.
According to a status review report filed January 30, 2019, E.B.’s foster parent
reported an incident between E.B. and the foster parent’s five-year-old daughter during
which E.B. pulled down the young girl’s pants and tickled her private parts. E.B. asked
her to touch his private parts, but she said no. E.B. then put his hand over her mouth,
grabbed her hand, and put it down his pants. When E.B. was questioned about the
incident, he immediately started screaming, “ ‘no,’ ” but later admitted it. The foster
parent gave a seven-day notice to remove E.B. from the home. This was reportedly the
second time E.B. had been caught sexually acting out.
Mother reportedly tested positive for alcohol and continued to use marijuana for
“ ‘emotional balance.’ ” She made some progress in her case plan objectives but
struggled to follow through with substance abuse services. The Agency assessed a
substantial risk of returning the minors to mother who had engaged in some services but
had not yet fully addressed all of the issues and lacked the insight to acknowledge her
shortcomings.
On February 20, 2019, the juvenile court continued mother’s reunification services
for an additional six months.
The Agency reported on March 29, 2019, that mother engaged in a number of
group and individual alcohol and drug treatment sessions but was later discharged due to
her failures to attend. Mother missed several drug tests and tested positive for alcohol
4
and marijuana as recently as January and March 2019. The Agency recommended
mother make an appointment for a mental health assessment and medication evaluation,
but she failed to do so. She was attending individual counseling but had a number of
unexcused absences from her parenting education class. She had difficulty abiding by the
decreased visitation order of once per week, and on several occasions refused to attend
visits after they were scheduled. The Agency became concerned due to mother’s desire
to end visits earlier than scheduled, and the topics about which mother spoke with the
minors, including child predators on the Internet. On one occasion, the visit had to be
terminated because mother was yelling at and threatening the social service aide. The
Agency noted that M.B. described visits with mother as “ ‘happiness.’ ”
On April 24, 2019, the Agency filed a section 388 petition requesting a decrease in
mother’s visitation with the minors from four to two hours weekly due to cancellation or
early termination of visits by mother and cancellation of visits due to mother’s
inappropriate behavior. The petition argued mother’s cancellation of visits resulted in
behavioral issues with the minors, including crying spells, angry outbursts, and
bedwetting.
On May 3, 2019, minors’ counsel filed a section 388 petition requesting the court
terminate mother’s reunification services and set the matter for a section 366.26 hearing.
The petition argued mother failed to visit with the minors and “minimally engaged in her
case plan.” The petition further argued the minors were “being negatively affected by
mother’s failure to visit with them,” mother was unable or unwilling to care for the
minors before their removal, and the minors needed “a stable and permanent home.”
In a memorandum filed May 21, 2019, the Agency reported that mother had an
AOD reassessment which recommended that she engage in residential drug treatment for
30 days and then transition to intensive outpatient services by spending 90 days in
transitional living. Mother was provided with the information and a spot became
available for her at Community Recovery Resources, but mother refused to enter
5
treatment. Mother participated in parenting classes through March 2019. Although the
social worker informed mother she could participate in free parenting classes, mother
stated she would resume classes when she was financially able to enroll online. Mother
also participated in individual counseling and was reportedly improving in her ability to
regulate her emotions and reduce her emotional reactivity. Mother submitted to random
drug testing on numerous occasions, each time producing positive results for marijuana.
Regarding court-ordered supervised weekly visits with the minors, mother
cancelled two visits, ended one visit 20 minutes early, and did not confirm two visits
within the required time period. Otherwise, visits were reported to be appropriate.
The hearing on the two pending section 388 petitions commenced on May 29,
2019. With regard to the minors’ petition to terminate mother’s reunification services,
mother’s individual therapist, Marcella Araiza, testified mother participated in weekly
counseling for nearly eight months and was learning to regulate her emotions. However,
Araiza acknowledged mother did not want to attend visits because the “adoption” sign on
the front of the building upset her, and that not calling or showing up for visits because
mother was upset at the prospect of adoption was not proper regulation of mother’s
emotions. She also acknowledged that mother was not demonstrating she understood the
impact of substance abuse on the minors when she twice opted not to go into drug
rehabilitation despite being told to do so. Araiza opined that mother would need at least
six more months to manage her mental health symptoms to enable her to care for the
minors. Araiza testified she believed mother had not used methamphetamine for over
one year, but acknowledged mother continued to use marijuana for sleep.
At the conclusion of the hearing, the parties agreed and the juvenile court ordered
that mother would participate in residential drug treatment and ongoing outpatient
treatment, the social worker would have the discretion to increase or decrease the
frequency and duration of visits, and mother’s reunification services would continue until
the next review hearing scheduled for July 31, 2019.
6
The July 2019 status review report stated the minors continued to be placed in
separate foster homes within close proximity to one another, had frequent sibling
visitation, were doing well in their respective placements, and had developed close and
loving relationships with their respective foster parents. However, the respective foster
parents raised concerns about sexualized behaviors between the two minors, including
showing each other their private parts. In addition, both minors suffered with emotional
and mental health concerns. M.B. suffered from enuresis, encopresis, crying spells,
anxiety, and emotional dysregulation, some of which tended to increase during times of
inconsistent visitation with mother. E.B. suffered from nightmares and angry outbursts
which tended to increase when mother’s visitation is inconsistent. The minors expressed
their strong desire to be adopted by their foster parents in the event there was no
reunification with mother.
Mother continued to live with her boyfriend, was unemployed, and was not in
compliance with her case plan. She continued to test positive for marijuana and, although
she was prescribed medication to treat her anxiety and depression, it was unclear whether
she was taking the medication or experiencing any benefits from it. During the reporting
period, mother missed over 20 random drug tests. Since her last parenting class in March
2019, mother did not participate in any additional in-person or online parenting classes.
Mother regularly participated in individual counseling but had not made any progress in
her treatment goal to stay sober and live free from drug dependency due to her marijuana
use.
Following the court’s May 29, 2019, order for mother to enter residential drug
treatment followed by intensive outpatient services, mother ignored the social worker’s
inquiries about whether she planned on entering residential treatment. As of the date of
the report, mother had yet to do so.
While mother’s visits with the minors were reportedly appropriate and the minors
looked forward to visits, mother’s visitation was inconsistent which tended to negatively
7
impact the minors. The minors displayed “a great sense of sadness and disappointment”
when mother cancelled visits. The March 19, 2019, visit had to be terminated early due
to mother’s failure to follow visitation rules, her verbal threats, and other actions making
the visitation supervisor feel unsafe.
Based on mother’s lack of progress in the issues that led to removal of the minors,
and mother’s inconsistency in visitation, the Agency recommended that the court
terminate mother’s reunification services and proceed with a permanent plan of adoption.
12-month Contested Review Hearing
At the 12-month review hearing on August 14, 2019, therapist Araiza testified she
had worked with mother in individual counseling every week for over a year. Araiza
testified mother was able to utilize the tools she learned to regulate her emotions. She
felt mother made substantial progress because mother was able to regulate her emotions,
she was sober from methamphetamine, she never talked about drinking alcohol, she was
able to manage her anxiety, and she was less emotionally reactive. Araiza admitted she
based her opinions of mother’s sobriety on mother’s self-reporting and without the
benefit of any outside information. Araiza opined that, with an additional three to five
months of time, mother could complete all of her goals.
On cross-examination, Araiza testified that the only reason mother gave for why
the minors were taken away from her was the fact that she was using methamphetamine.
When asked if mother understood the impact substance abuse had on the minors, Araiza
stated mother knew it upset the minors, but she also felt she was doing a good job taking
care of the minors even though she was high. Araiza testified she could not say mother
had made enough progress to alleviate the risk of relapsing if the minors were returned to
her care.
Araiza testified mother explained she cancelled visits because M.B. saw the
adoption sign on the visitation building and “really got upset” and mother did not want to
have visits in that building. Araiza admitted it was not good parenting for mother to stop
8
seeing the minors because she was upset about the adoption sign, to not show up for
visits after the minors were told they would see mother and were pulled out of school and
brought to the visitation facility, or to routinely cut visits short.
The juvenile court found that, while mother had done “a lot of hard work and
made some changes,” her progress was nonetheless “minimal” and return of the minors to
her care would create a substantial risk of detriment. Thus, the court terminated mother’s
reunification services, set the matter for a section 366.26 hearing, and made visitation
orders.
Section 366.26 Report
The section 366.26 report filed November 26, 2019, stated the minors remained in
their respective foster homes, where they had been since February 2019. Mother was
reportedly inconsistent in her visitation throughout the case. At times she prioritized the
minors and attended visits as scheduled; at other times, she did not take advantage of the
orders allowing her to spend time with the minors. When she did attend visits, she was
generally appropriate during part or all of the visits. She demonstrated having a positive
connection to the minors during visits but on occasion struggled to maintain appropriate,
positive emotions and terminated the visit early. It was noted that, over the recent several
months, mother had difficulty managing emotions sufficiently to maintain a positive
presence during visits.
The minors reportedly maintained a connection to mother and a desire to maintain
contact. However, having been unable to rely on mother to provide them a stable
relationship, as evidenced by frequently missed visits, the minors established new and
healthy attachments to their respective foster parents, who had maintained consistency
and provided the minors with a stable living environment. There had been a consistent
pattern of loving interactions between M.B. and her foster parents, as well as consistent
communication that everyone wanted to “finish the adoption process and be a family all
together.” The report noted M.B. was happy and connected to her foster parents and
9
wanted to be adopted. The same was true for E.B., who reportedly formed and continued
to develop a healthy connection to his foster parents.
The report set out each minor’s statement concerning placement and potential
adoption. M.B. indicated she desired to be adopted by her foster parents and she “nodded
her head vigorously and appeared very excited with a huge smile on her face when she
was asked if she wanted to be adopted.” When asked what she understood adoption to
mean, M.B. stated it meant she would become the foster parents’ child forever. M.B.
noted “it would be difficult not to see her mother anymore and she would be sad but that
it would be ‘okay’ because she would have the foster-adoptive mother forever.” The
foster parents noted M.B. had taken to spontaneously saying, “ ‘after I’m adopted’ ” and
then filling in something she would like to do such as travel out of the country to see her
adoptive cousins who live outside the United States. M.B. consistently expressed a
positive desire and intention to be adopted and seemed to look forward to it.
E.B. immediately gave the “thumbs up” and exclaimed, “ ‘yea’ ” when asked if he
wanted to be adopted. It was explained that being adopted would likely mean he would
not see his mother again for a long time and potentially never see her again. E.B. said,
“ ‘that’s okay because I still have this one,’ ” indicating his foster mother. E.B. explained
that adoption meant he would be “ ‘living with other parents’ and it would be forever.”
He seemed to understand that his foster parents would become his family and it was his
desire to move forward with the adoption. When mother reportedly asked E.B. during a
visit how he felt about adoption, E.B. sidestepped the question by saying he was
“ ‘sappy’ ” about it (meaning “ ‘sad and happy’ ”) and changed the subject. Like his
sister, E.B. began making statements such as “ ‘when I am adopted’ ” and finishing with
a statement of something he would like to do such as travel out of the state to watch his
foster father play championship games. E.B. consistently made positive statements about
being adopted and that he looked forward to the day it was final.
10
Concluding it would be more detrimental to maintain mother’s parental rights and
continue without the permanence of adoption, the Agency recommended termination of
parental rights with a permanent plan of adoption by the current foster parents.
Section 366.26 Hearing
At the section 366.26 hearing on January 29, 2020, mother testified that she did
not want her parental rights terminated. She testified her relationship with M.B. was
“[d]eep” and described her relationship with E.B. as “[f]un and silly.” When asked how a
continuing role in E.B.’s life would benefit him, mother answered, “Just being a positive
support” and being there in the event of a medical issue requiring a blood transfusion.
The Agency argued, and minors’ counsel agreed, that the minors were adoptable,
both generally and specifically, and that mother did not meet her burden to demonstrate
the beneficial parental relationship exception applied. Mother’s counsel argued the
exception applied and objected to termination of mother’s parental rights.
The juvenile court adopted the Agency’s recommended findings and orders, found
the minors adoptable, terminated parental rights, and identified adoption as the
appropriate permanent plan.
DISCUSSION
Mother raises a myriad of claims asserting failures by the juvenile court and the
Agency, several of which challenge the court’s adoptability finding and the subsequent
order terminating parental rights. Several claims assert the applicability of various
statutory exceptions to adoption as the permanent plan. The final claim asserts any
failure by mother to raise these issues in the juvenile court was the result of prejudicial
ineffective assistance of counsel.
The Agency argues mother forfeited all or portions of her claims and, in any event,
the claims lack merit. The Agency further argues mother was afforded effective
assistance of counsel.
11
As we will explain, some of mother’s claims have been forfeited, the claims which
have not been forfeited lack merit, and mother received effective assistance of counsel.
I
Consideration of the Minors’ Wishes
Mother contends there is insufficient evidence the juvenile court considered the
wishes of the minors. In particular, she claims there was insufficient evidence the social
worker determined whether the minors understood the benefits and detriments of
adoption versus guardianship, that termination of parental rights would be final and
irrevocable, and that there was no guarantee they would be adopted by their current
caregivers. Mother also contends the juvenile court was required to ascertain the minors’
respective preferences between adoption and guardianship and failed to do so.
To terminate parental rights, “the [juvenile] court must find by clear and
convincing evidence that it is likely that the child will be adopted.” (In re Asia L. (2003)
107 Cal. App. 4th 498, 509; see also § 366.26, subd. (c)(1).) There must be “convincing
evidence of the likelihood that adoption will take place within a reasonable time.” (In re
Brian P. (2002) 99 Cal. App. 4th 616, 624.) “Although a finding of adoptability must be
supported by clear and convincing evidence, it [(i.e., the determination that it is likely the
child will be adopted within a reasonable time)] is nevertheless a low threshold.” (In re
K.B. (2009) 173 Cal. App. 4th 1275, 1292.)
In reviewing the juvenile court’s finding for substantial evidence, we give it the
benefit of every reasonable inference and resolve any evidentiary conflicts in favor of
affirming. (In re I.I. (2008) 168 Cal. App. 4th 857, 869.) That is, we must determine
whether the record contains substantial evidence from which the court could find clear
and convincing evidence that each child was likely to be adopted within a reasonable
time. (In re B.D. (2008) 159 Cal. App. 4th 1218, 1232.) If so, “[i]t is irrelevant that there
may be evidence which would support a contrary conclusion.” (In re K.B., supra,
173 Cal.App.4th at p. 1292.)
12
Here, the juvenile court found the minors adoptable and terminated parental rights,
identifying adoption as the appropriate permanent plan. Mother claims the court failed to
consider the minors’ wishes as required by section 366.26, subdivision (h), which
provides that, in all section 366.26 proceedings, “the court shall consider the wishes of
the child and shall act in the best interests of the child.” (§ 366.26, subd. (h)(1).) We
disagree.
Section 366.26, subdivision (h) requires that the court “ ‘consider the child’s
wishes to the extent ascertainable’ ” prior to terminating parental rights. (In re Leo
M. (1993) 19 Cal. App. 4th 1583, 1591 (Leo M.).) “But the evidence need not be in the
form of direct testimony in court or chambers; it can be found in court reports prepared
for the hearing.” (In re Amanda D. (1997) 55 Cal. App. 4th 813, 820.) What the court
must strive to do is “to explore the minor’s feelings regarding his/her biological parents,
foster parents, and prospective adoptive parents, if any, as well as his/her current living
arrangements. . . . [A]n attempt should be made to obtain this information so that the
court will have before it some evidence of the minor’s feelings from which it can then
infer his/her wishes regarding the issue confronting the court.” (Leo M., supra,
19 Cal.App.4th at p. 1592.)
Here, the juvenile court confirmed it read and considered the social worker’s
report and recommendations and took judicial notice of all prior findings, orders, and
judgments in the case. There was sufficient evidence in the section 366.26 report upon
which the court relied to ascertain the minors’ wishes. Both minors were happy and
connected to their respective foster parents and wanted to be adopted. When asked
whether she wanted to be adopted by her foster parents, M.B. “nodded her head
vigorously and appeared very excited with a huge smile on her face.” M.B. was able to
explain that adoption meant she would become the foster parents’ child forever. She
acknowledged it would be difficult not to see her mother anymore and she would be sad
“but that it would be ‘okay’ because she would have the foster-adoptive mother forever.”
13
She often talked about what she would like to do “ ‘after I’m adopted,’ ” and consistently
expressed her desire to be adopted. Similarly, E.B. gave the “thumbs up” and exclaimed,
“ ‘yea’ ” when asked if he wanted to be adopted. He was able to explain that adoption
meant he would be living with other parents and would likely not see his mother again for
a long time if ever, but said, “ ‘that’s okay because I still have this one,’ ” indicating his
foster mother. Like his sister, E.B. understood his foster parents would become his
family and it was his desire to move forward with the adoption, and he often talked about
what he would like to do “ ‘when I am adopted.’ ”
Mother claims the social worker failed to determine whether the minors
understood adoption versus guardianship, the finality and irrevocability associated with
termination of parental rights, and that there was no guarantee they would be adopted by
their current caregivers. To the extent mother challenges the adequacy of the section
366.26 assessment report, her failure to object on that basis in the juvenile court has
forfeited her claim on appeal. “ ‘ “An appellate court will ordinarily not consider
procedural defects or erroneous rulings in connection with relief sought or defenses
asserted, where an objection could have been, but was not, presented to the lower court
by some appropriate method.” [Citation.]’ [Citation.]” (In re G.C. (2013)
216 Cal. App. 4th 1391, 1398.) “This is the general rule, because any other rule would
allow a party to deliberately stand by in silence and permit the proceedings to reach a
conclusion in which the party could acquiesce if favorable and avoid if unfavorable.
[Citations.] The forfeiture doctrine has been applied in dependency proceedings in a
wide variety of contexts, including cases involving failures to obtain various statutorily
required reports [citation].” (Ibid.) As relevant here, “failure to object to the admission
of improper or inadequate evidence waives the right to raise the issue on appeal. (9
Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 307, p. 317.)” (In re Crystal J. (1993)
12 Cal. App. 4th 407, 411; accord In re Aaron B. (1996) 46 Cal. App. 4th 843, 846; In re
Urayna L. (1999) 75 Cal. App. 4th 883, 886.)
14
Mother argues, without citation to authority, that the juvenile court was required to
obtain the minors’ respective preferences between adoption and guardianship. Claims
made without citation to authority must be deemed forfeited. (Cal. Rules of Court, rule
8.204(a)(1)(B) [each point in appellate brief must be supported by argument and, if
possible, by citation of authority]; Atchley v. City of Fresno (1984) 151 Cal. App. 3d 635,
647 [lack of authority or analysis constitutes forfeiture].) In any event, section 366.26,
subdivision (h) neither expressly requires, nor does it contain language compelling that it
be inferred, that a court must ascertain whether a child prefers adoption over
guardianship, or vice versa. What the court must strive to do is “to explore the minor’s
feelings regarding his/her biological parents, foster parents, and prospective adoptive
parents, if any, as well as his/her current living arrangements.” (Leo M., supra,
19 Cal.App.4th at p. 1592.) There is sufficient evidence the juvenile court did so here.
II
Sibling Relationship Exception to Adoption
Mother contends that, in assessing the minors’ bests interests and whether
termination of parental rights would be detrimental to them, the Agency and the juvenile
court improperly relied on “the illusory promise and premise of ongoing sibling
visitation,” requiring reversal and remand for the court to reconsider whether termination
of parental rights was appropriate.
The Agency argues mother’s claim is a veiled attempt to raise the applicability of
the sibling relationship exception to adoption, a claim mother forfeited for not raising it
below and, in any event, the claim lacks merit. We agree with the Agency.
Taking issue once again with the content of the Agency’s assessment report,
mother argues the report improperly relied on the promise or expectation of continuing
posttermination visitation between the siblings by including statements regarding the
close friendship and connection between the minors’ respective foster families and that it
was “anticipated this connection will continue so the children have the opportunity to
15
maintain their familial connection in spite of living in separate homes.” Again, to the
extent mother challenges the adequacy of the section 366.26 assessment report, her
failure to object on that basis in the juvenile court has forfeited her claim on appeal. (In
re Crystal J., supra, 12 Cal.App.4th at p. 411; In re Aaron B., supra, 46 Cal.App.4th at p.
846; In re Urayna L., supra, 75 Cal.App.4th at p. 886.)
To the extent mother is claiming the applicability of the sibling relationship
exception to adoption, she has forfeited that claim as well by failing to assert it in the
juvenile court. (In re Daisy D. (2006) 144 Cal. App. 4th 287, 291-292; In re Erik P.
(2002) 104 Cal. App. 4th 395, 403; In re Christopher B. (1996) 43 Cal. App. 4th 551, 558;
In re Dakota S. (2000) 85 Cal. App. 4th 494, 501-502.)
III
Forfeiture
Acknowledging her counsel did not raise the issue of the sibling relationship
exception to adoption in the juvenile court, mother makes four claims as to why we
should nonetheless reach the issue. None have merit.
First, mother claims, without citation to specific authority, that the Agency put the
matter at issue based on its inclusion of information in its report about the sibling
relationship and the connection between the two respective foster families. Claims made
without citation to authority must be deemed forfeited. (Cal. Rules of Court, rule
8.204(a)(1)(B); Atchley v. City of Fresno, supra, 151 Cal.App.3d at p. 647.) In any event,
the fact that the Agency’s report included information regarding the bond between the
minors does not excuse mother’s forfeiture of her claim. It was mother’s burden to prove
one of the exceptions to adoption applied. (In re Isaiah S. (2016) 5 Cal. App. 5th 428,
437-438; In re Zachary G. (1999) 77 Cal. App. 4th 799, 809.) Mother put on no evidence
to show the sibling relationship exception to adoption applied. By not raising the
exception, the Agency and the minors were prevented from having a full and fair
opportunity to present evidence on the issue at the hearing. We will not review the
16
evidentiary support for the findings when the Agency and the minors were not provided a
fair opportunity to present an adequate record in response. (See People v. Adam (1969)
1 Cal. App. 3d 486, 489.)
Second, mother asserts the oft-cited rule that forfeiture can be excused when there
is an important legal issue, the resolution of which would further the minors’ interests.
She argues the important legal issue is whether the Agency’s “reliance on the
unenforceable promise and expectation of continuing sibling visitation by foster parents
is proper.” Mother’s argument is not well taken. The section 366.26 report, a 25-page
document, includes several references to the relationship between the respective foster
families and their commitment to continued visitation and contact between the two
minors after termination of parental rights. It was mother’s burden to affirmatively
demonstrate substantial interference with the sibling relationship. The evidence that the
current foster families intended to maintain the sibling relationship to the extent possible
was unrefuted by mother with any contrary evidence. In addition to the section 366.26
report, the juvenile court considered mother’s testimony and the court’s previous findings
and orders in the case. There is no indication in the record that the court gave any
particular weight to the foster families’ statements of commitment to continued sibling
visitation. Again, if mother took exception to all or any portion of the report, it was
incumbent upon her to lodge an objection and attempt to correct the record as she saw fit.
She did not do so.
Third, mother restates her earlier claim that the Agency improperly relied on the
expectation of continuing visitation and contact between the two minors’ respective
foster families. As previously discussed, the claim lacks merit.
Fourth, mother asserts that any failure to raise the issue in the juvenile court was
the result of ineffective assistance of counsel. The burden is on mother to establish both
that counsel’s representation fell below prevailing professional norms and that, in the
absence of counsel’s failings, a more favorable result was reasonably probable. (People
17
v. Ledesma (1987) 43 Cal. 3d 171, 215-218; Strickland v. Washington (1984) 466 U.S.
668, 694 [80 L. Ed. 2d 674, 698]; In re Kristen B. (2008) 163 Cal. App. 4th 1535, 1540.)
We must affirm the judgment unless the record “affirmatively establishes counsel had no
rational tactical purpose for the challenged act or omission . . . .” (Kristen B., at p. 1541.)
In addition, we may reject mother’s claim if she cannot show it is reasonably probable the
result would have been more favorable to her but for trial counsel’s alleged failings. (In
re N.M. (2008) 161 Cal. App. 4th 253, 270.)
Here, mother cannot establish either prong. Mother argues there could be no
tactical reason for counsel not to raise the issue of the sibling relationship exception. We
disagree. The sibling relationship exception applies only when adoption would result in
“substantial interference with a child’s sibling relationship.” (§ 366.26, subd.
(c)(1)(B)(v).) It is undisputed that the minors had a close bond with one another. As
demonstrated by the record, the minors were initially placed together but were then
separated in February 2019 and placed with separate foster families due to more than one
incident of sexualized behavior between them. Thereafter, despite being placed in
separate homes, the minors were able to see each other frequently, visit at each other’s
houses, and engage in numerous activities while under the supervision of their respective
foster parents. It was anticipated that the minors would be adopted by their respective
foster parents who intended to maintain contact and visitation between the two minors, a
fact that was not refuted by mother. While mother spends a great deal of time discussing
authority regarding the juvenile court’s lack of jurisdiction to order continuing visitation
after termination of parental rights and that continued visitation and contact between
siblings is not guaranteed, there was no evidence before the court that adoption would
interfere with the minors’ relationship. Consequently, trial counsel had a rational tactical
reason not to assert the exception and it is not reasonably probable the result would have
been more favorable to mother had her counsel done so. Mother has not met her burden
to establish ineffective assistance of counsel.
18
Lastly, we reject mother’s assertion, made under the section heading arguing
against forfeiture of the sibling relationship exception, that the Agency should have
recommended a plan of legal guardianship rather than adoption. Aside from violating the
rule of appellate procedure that each point must be stated under a separate heading (Cal.
Rules of Court, rule 8.204(a)(1)(B)), mother ignores the rule that where, as here, the
juvenile court finds the minors adoptable and no exceptions apply, “it is presumed, even
in the absence of a specific finding by the court, that adoption is the choice that is in the
child’s best interests,” and “ ‘the less desirable and less permanent alternatives of
guardianship and long-term foster care need not be pursued.’ [Citation.]” (In re Jose V.
(1996) 50 Cal. App. 4th 1792, 1799.)
For all of these reasons, mother has forfeited her claim on appeal and, in any
event, the claim lacks merit.
IV
Visitation Orders Prior to Section 366.26 Hearing
Mother contends she was deprived of her right to due process and an ability to
establish the beneficial parental relationship exception to adoption due to the juvenile
court’s “elimination of meaningful visitation” pending the section 366.26 hearing.
The Agency argues mother is precluded from raising her contention because she
did not first raise it in a writ petition as required by section 366.26, subdivision (l).
We conclude mother is precluded from raising this contention because she did not
raise it in a petition for an extraordinary writ following the juvenile court’s order setting
the section 366.26 hearing at which the contested order was made.
“Section 366.26, subdivision (l) bars review of a [setting] order unless the parent
has sought timely review by extraordinary writ.” (In re Rashad B. (1999) 76 Cal. App. 4th
442, 447, fn. omitted.) The bar applies to all orders issued at a “hearing at which a
setting order is entered.” (In re Anthony B. (1999) 72 Cal. App. 4th 1017, 1023.)
19
An order setting a permanency planning hearing date cannot be appealed at any
time unless the appellant previously filed a petition for extraordinary writ review raising
the same issue. (§ 366.26, subd. (l)(1)(A)-(B); Cal. Rules of Court, rules 8.450 & 8.452.)
The failure to file a timely petition for writ review precludes any subsequent review of
the findings and orders made pursuant to section 366.26, even if the contention relates
only to contemporaneous orders that would otherwise be appealable. (See § 366.26,
subd. (l)(2); In re Rashad B., supra, 76 Cal.App.4th at pp. 447-448; Karl S. v. Superior
Court (1995) 34 Cal. App. 4th 1397, 1403-1404 [time requirements are mandatory].)
At the 12-month review hearing on August 14, 2019, the juvenile court terminated
mother’s reunification services, set the matter for a section 366.26 hearing, and made
visitation orders decreasing the frequency of mother’s visits with the minors over a
period of months. Mother was present with counsel, who objected to the visitation order.
Mother was orally advised of the requirements for challenging the court’s order by way
of writ petition, along with the time frame for so doing, and was served in person at the
hearing with the appropriate writ notices and forms. Mother, however, did not file a
petition for extraordinary writ. By not seeking review of the visitation order in a timely
manner by extraordinary writ, she is barred from challenging the order entered at that
hearing in this appeal.
Mother acknowledges these rules but argues her challenge should nonetheless be
decided because (1) the controversy was not ripe by the time the writ petition was due,
(2) failure to pursue an extraordinary writ is excusable for good cause, especially where
the validity and sufficiency of the writ advisement is in question, and (3) the failure to
file a writ petition resulted from ineffective assistance of counsel. None of these
arguments are persuasive.
As for the first assertion, mother argues the controversy was not ripe because, at
the time of the August 2019 hearing, it was unknown whether, among other things,
visitation would be increased or decreased, whether mother would have suffered
20
prejudice from reduction of visitation, or whether the reduction in visitation would in fact
have resulted in a deprivation of mother’s constitutional rights. However, these
arguments could be made in every case involving a visitation order made when the
section 366.26 hearing is set. And mother cites no authority for the proposition that this
exception to the general forfeiture rule of ripeness circumvents the specific statutory
mandate of section 366.26, subdivision (l). In any event, the fact that mother objected to
the visitation order strongly suggests that mother had enough information to know a
challenge needed to be made within the requisite time constraints.
As to the second assertion, mother argues there is good cause to allow the
challenge because the writ advisement was made as to the termination of services and
setting the section 366.26 order but before the visitation order was made, thus creating
uncertainty as to whether the visitation order was encompassed in the setting order. The
claim is specious. At the contested August 14, 2019, hearing, the Agency’s
recommendations regarding, among other things, termination of reunification services
and decreasing visitation were at issue. The issue of visitation was discussed at length
during the hearing and by mother’s counsel during closing arguments. Mother’s counsel
raised an objection to the proposed language in the visitation order immediately after the
court issued the writ advisement, requiring a brief discussion amongst the parties and the
court about the details of the visitation order. In response to the parties’ agreement, the
court referred to the portion of the Agency’s proposed order and modified that proposed
order. The court’s written order includes the visitation order with those interlineated
modifications. We conclude there is no good cause to excuse mother’s failure to pursue
an extraordinary writ.
Regarding mother’s third assertion of ineffective assistance of counsel, mother
refers us to the arguments in section IV of her opening brief, but this section contains no
assertion of ineffective assistance of counsel. Mother has not met her burden to establish
ineffective assistance of counsel.
21
V
Ineffective Assistance of Counsel
Finally, mother contends that, in the event we deem any of her previous claims to
be forfeited due to the inaction of her counsel, we should reach the merits of those claims
due to ineffective assistance of counsel. As already explained in this opinion, we
conclude some of mother’s claims have been forfeited, the claims that have not been
forfeited lack merit, and mother received effective assistance of counsel.
DISPOSITION
The juvenile court’s orders are affirmed.
/s/
HOCH, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
MAURO, J.
22