In Re Erik P.
Erik P. was detained in the hospital shortly after birth. His parents, who had previously lost custody of their other children, have never had custody of Erik. After the juvenile court terminated parental rights, Erik‘s father filed the instant appeal where he contends that, in light of recent legislation promoting the importance of sibling relationships (
FACTUAL AND PROCEDURAL BACKGROUND
Erik‘s mother has had a total of nine children and has lost custody of them all. Erik‘s six oldest half-siblings were previously placed with their father and the two youngest, Tiffany and Richard, were also dependents of the court. Richard, who was born with Down‘s syndrome, is Erik‘s full sibling. Appellant is both Richard and Erik‘s father, but has been excluded as Tiffany‘s father.
For reasons not relevant to the instant appeal, Erik‘s parents were determined to be unable to care for Erik or his siblings. Neither parent was offered reunification services, because both had failed to reunify with their other children. Both Richard and Tiffany had already been removed from their parent‘s care and were living in separate foster homes. Upon Erik‘s release from the hospital, he was immediately placed in the foster home where Richard was living. When Erik was two months old, however, Tiffany‘s adoptive family expressed a desire to adopt Erik as well, and the Department of Family and Children‘s Services (Department) moved him into that home, where he has remained since that time.
At the contested permanency planning hearing, the court found Erik adoptable and terminated all parental rights. The father now appeals this order.
DISCUSSION
Adoptability
First, the father contends that substantial evidence did not support the
Under the circumstances here, although the father did not object to the adoptability finding at the
The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. (
Erik was an attractive baby boy who resembled his siblings and who had no major physical or mental problems. Although born prematurely, his only problem was hypertonia, or increased tightness of muscle tone, which is treatable with physical therapy. In fact, his adoptive mother had been doing exercises with him and Erik was already showing improvement. Erik was also sleeping and eating well and looked like a healthy child.
Additionally, when Erik was only a few months old, the Department had successfully located an appropriate adoptive home for him with the family who had already adopted his half-sister. His social worker found that Erik was attached to his adoptive family and was responding well to the attention and affection he was receiving in the home. While, generally, the present existence or nonexistence of prospective adoptive parents is, in itself, not determinative, it is a factor in determining whether the child is adoptable. A prospective adoptive parent‘s is interest in adopting is evidence that the child‘s age, physical condition, mental state, and other matters relating to the child are not likely to discourage others from adopting the
The father contends that the juvenile court should also have considered the sibling relationship in making its adoptability determination. Yet the father fails to explain how, in light of recent legislation emphasizing the importance of sibling relationships, the existence of Erik‘s sibling relationship with Richard makes Erik less likely to be adopted. Nor does he provide any authority for this proposition. In fact, Erik‘s sibling relationship with his half-sister, Tiffany, actually made Erik more likely to be adopted, since Tiffany‘s family also wished to adopt Erik.
Section 366.26, subdivision (c)(1)(E) Exception2
Although, Erik‘s relationships with his siblings were not factors impacting his adoptability, the newly enacted sibling exception found in
At a
a. Standing
For the first time on appeal, the father contends that the exception in
While cases prior to the enactment of the
b. The Father Waived The Exception By Not Raising It At The Hearing
Even though it was the father‘s burden to raise any relevant exception at the hearing, he failed to do so. He now urges us to allow him to raise these issues for the first time on appeal because they are “pure question[s] of law.” Nothing could be further from the truth. The application of any of the exceptions enumerated in
c. The Exception Is Inapplicable To The Instant Case
Even if the father had not waived the exception, it is entirely inapplicable under the facts of this case.
1. Termination cannot “substantially interfere” with the sibling relationship
As an initial matter, terminating parental rights, here, can in no way interfere with the sibling relationship; just as retaining parental rights would in no way preserve the sibling bond. The father‘s parental rights as to Erik‘s brother, Richard, were previously terminated and Richard has been adopted. Where the parents’ continuing relationship with the dependent child, or absence thereof, can in no way affect the nature of the sibling relationship because the parent no longer has a relationship with the sibling, the exception does not apply. That is the case here.
2. The Sibling Relationship Is Not Sufficiently Substantial
Further, the relationship between Erik and Richard is not the type of sibling relationship the
These legislative goals would not be advanced here if the sibling relationship were preserved. Erik was placed in foster care as a newborn, immediately after his discharge from the hospital. He has no family history with his parents or other siblings. He was not torn away from a home, a school or friends. Additionally, the relationship between Erik and his brother could not serve as an anchor for Erik to his past. As a newborn, Erik spent only two months in the same home as his brother, before moving to his adoptive home with his half-sister, where he has spent the vast majority of his life.
Not only have Erik and Richard not been raised in the same home, Erik‘s father failed to present evidence of “a close and strong bond” between the boys. Under these circumstances, the benefit from the preservation of the relationship between Erik and Richard would not outweigh the benefit to Erik of being adopted by the family with which he has spent most of his life.
The Juvenile Court Adequately Addressed the Sibling Relationship
To the extent the father objects, in a general sense, to the permanent plan and its impact on Erik and Richard‘s relationship, his standing to do so is questionable. Cases decided prior to the enactment of the
In any case, we need not decide this issue here because the juvenile court had substantial evidence before it that visitation between Erik and Richard had been arranged and would be continuing. Erik and Richard‘s families had exchanged information and intended to continue to develop the relationship between the brothers.
By placing Erik in a home with his sibling, the juvenile court adequately complied with its mandate to consider and maintain sibling bonds. Finally, there is no basis from which to conclude that Erik‘s relationship with Richard was somehow more important than his relationship with Tiffany, or that the protection of that relationship better advanced the legislative intent to protect sibling bonds.
DISPOSITION
The order appealed from is affirmed.
WE CONCUR: PREMO, Acting P.J., and ELIA, J.