Filed 2/21/18 In re M.G. CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

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

FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES,

Plaintiff and Respondent,

v.

C.V.,

Defendant and Appellant.

F076317

(Super. Ct. Nos. 15CEJ300262-6, 15CEJ300262-7, 15CEJ300262-8)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Brian M. Arax, Judge.
Beth A. Sears, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
-ooOoo-

Appellant C.V. (mother) appealed from the juvenile court’s order terminating her parental rights (Welf. & Inst. Code, § 366.26) as to her daughters, M.G., R.G. and A.G., now four-, three- and one-year-old, respectively. After reviewing the juvenile court record, appellant’s court-appointed counsel informed this court she could find no arguable issues to raise on mother’s behalf. This court granted mother leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844 (Phoenix H.).)
Mother filed a letter but failed to address the termination findings or orders or set forth a good cause showing that any arguable issue of reversible error arose from the section 366.26 hearing. (Phoenix H., supra, 47 Cal.4th at p. 844.) Consequently, we dismiss the appeal.
PROCEDURAL AND FACTUAL SUMMARY
Dependency proceedings were initiated in October 2015 when mother’s then three-year-old daughter, F.P., was treated at the hospital for profuse vaginal bleeding that took the physicians more than two hours to stop. She did not require surgery but sustained vaginal tearing.
Mother stated she was upstairs with her daughters, F.P., two-year-old M.G. and 10-month-old R.G., in the apartment she shared with her boyfriend, Michael, when F.P. was injured. Michael, M.G. and R.G.’s father, was downstairs with mother’s four minor sons, including five-year-old D.P. She went downstairs briefly and returned to find F.P. bleeding. F.P. told her that D.P. put a stick in her. D.P. told the investigating police officer he stuck the wooden stick inside his sister’s “butt.” A wooden towel rod with blood on it was taken into evidence. The maternal aunt agreed to take custody of D.P. while the Fresno County Department of Social Services (department) continued to investigate the matter.
The department discovered the older children displayed sexualized behavior and the parents did not take measures to address the problem or protect the children from each other. In addition, mother stated she was aware of the problem but chose not to act. The department also learned that the parents engaged in domestic violence. Consequently, the department took all seven children into protective custody.
The juvenile court ordered the children detained pursuant to an original dependency petition, alleging mother and Michael failed to protect them. (§ 300, subd. (b).) The petition also alleged Frank P., the father of the four boys and F.P., failed to provide for his children’s support. (§ 300, subd. (g).) The allegation was dismissed.
On November 2, 2015, the department received information from an anonymous source that Michael sexually abused F.P. and that mother was covering for him. The source also stated that Michael had a history of child sexual abuse. F.P. recounted during a forensic interview that “Papi,” referring to Michael, put the stick into her “pee pee thing” while mother was gone. She described how he removed her clothes, placed her on the bed and put his “pee pee thing” into her “pee pee thing.”
Mother admitted lying about being home when F.P. was assaulted but had no reason to believe Michael was responsible because F.P. accused D.P. and D.P. admitted to it. Michael was arrested and charged with sexual intercourse or sodomy with a child under the age of 10. (Pen. Code, § 288.7, subd. (a).)
In January 2016, the department filed a first amended petition, asserting additional grounds for dependency jurisdiction under section 300, subdivisions (d) (sexual abuse) and (i) (cruelty) based on allegations Michael sexually abused F.P. and mother failed to protect her. The juvenile court sustained the petition, ordered the children removed from parental custody and ordered mother and Frank to participate in reunification services. The court denied Michael services under section 361.5, subdivision (b)(6) (severe sexual abuse) and set the six-month review hearing for August 2016.
In March 2016, mother gave birth to Michael’s daughter, A.G. The department took A.G. into protective custody out of fear that Michael, with whom mother maintained contact, would abuse A.G. as he abused F.P. A.G. was placed with a paternal aunt where she remained.
The juvenile court provided mother reunification services for the children, including A.G., until November 2016 when it terminated her services as well as Frank’s and set a section 366.26 hearing. The court denied Michael services as to A.G. at the dispositional hearing because he was her alleged father and not entitled to them. (§ 361.5, subd. (a).) None of the parents challenged the setting order by extraordinary writ petition.
The department informed the juvenile court M.G., R.G. and A.G. were adoptable and recommended the court terminate parental rights and free them for adoption by their prospective adoptive parents. The department recommended legal guardianship for mother’s sons and F.P. with their care providers.
In July 2017, the juvenile court conducted a contested section 366.26 hearing. Mother attempted to prove that terminating her parental rights would be detrimental under the parent/child and sibling relationship exceptions to adoption. (§ 366.26, subd. (c)(1)(B)(i) & (v).) She did not challenge the appropriateness of legal guardianship for her oldest five children.
Social worker Dezha Kendall testified she observed three visits between mother and the children. M.G. and R.G. played together and A.G. sat in mother’s lap or on the floor. M.G. also played with F.P. but not with her brothers. She never asked for any of her siblings. Kendall never saw R.G. play with her siblings. She did not believe M.G., R.G. or A.G. would suffer if their relationships with their siblings were terminated. She also testified the three younger girls had developmental needs that she believed were best met in an adoptive home.
Mother testified she missed only two visits in 2017. During visits, she played with the children and colored with them. She had a strong bond with M.G., who expressed love for her and sat on her lap. Mother described R.G. as “real real close” to her. During visits, mother hugged, cuddled and kissed the girls.
The juvenile court found the children were likely to be adopted if parental rights were terminated. The court also found mother regularly and consistently visited the children and shared a loving parent/child bond with them. The court concluded, however, that the benefits of maintaining a relationship with mother did not outweigh the benefit to them of adoption. As to the sibling relationship, the court found the five older children would be deeply affected by a severance of parental rights but also concluded that the benefit of adoption outweighed the benefit of maintaining the sibling relationship. The court terminated mother’s parental rights as to M.G., R.G. and A.G. and appointed legal guardians for the five older children.
DISCUSSION
Section 366.26 governs the proceedings at which the juvenile court must select a permanent placement for a dependent child. If the court determines it is likely the child will be adopted, the statute mandates termination of parental rights unless the parent opposing termination can demonstrate that one of the statutory exceptions applies. (§ 366.26, subd. (c)(1)(A) & (B).)
Mother’s trial counsel attempted to show that the exceptions found in section 366.26, subdivision (c)(1)(B)(i) and (v), the parent/child beneficial relationship and sibling relationship exceptions, respectively, applied in mother’s case. The beneficial relationship exception applies where the evidence supports “a compelling reason for determining that termination would be detrimental to the child [because the parent maintained] … [¶] … regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The sibling relationship exception applies where “[t]here would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship .…” (§ 366.26, subd. (c)(1)(B)(v).)
The parent has the burden of proving the statutory exception to adoption applies. (In re Breanna S. (2017) 8 Cal.App.5th 636, 646.) When the juvenile court finds the parent has not established the existence of the requisite beneficial relationship, our review is limited to determining whether the evidence compels a finding in favor of the parent on this issue as a matter of law. (Id. at p. 647.) When the juvenile court concludes the benefit to the child derived from preserving the relationship is not sufficiently compelling to outweigh the benefit achieved by the permanency of adoption, we review that determination for abuse of discretion. (In re J.S. (2017) 10 Cal.App.5th 1071, 1080.)
Here, the juvenile court concluded it would not be detrimental to terminate mother’s parental rights because the benefit of adoption to her daughters outweighed the benefit of maintaining the parent/child and sibling relationships. In order to prevail on appeal, mother would have to show that the juvenile court’s decision to terminate her parental rights was an abuse of discretion given the evidence.
Mother does not contend the juvenile court abused its discretion. Rather, she argues the children will be emotionally unstable if her relationship with them is terminated and points to evidence the older siblings were heartbroken when their three younger sisters did not show up for visits. She also disputes evidence the children had no trouble separating from her after visits and she was less attentive to M.G. and R.G. She contends the children were emotionally distressed every time they separated from her and she attended the children equally. In effect, she asks this court to reweigh the evidence, which we cannot do. In any event, she raises no challenge to the juvenile court’s exercise of its discretion in concluding the benefit of adoption outweighed all other considerations.
If an appellant fails to raise a claim of reversible error or other defect, we may dismiss the appeal. (In re Sade C. (1996) 13 Cal.4th 952, 994.) We do so in this case.
DISPOSITION
This appeal is dismissed.