Filed 9/30/20 In re T.D.M. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re T.D.M. et al., Persons Coming 

Under the Juvenile Court Law.

DEL NORTE COUNTY 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES, 

Plaintiff and Respondent,

v.

C.H.,

Defendant and Appellant.

 A160071

 (Del Norte County

Super. Ct. Nos. JVSQ17-6084, 

JVSQ17-6086)

In this dependency matter, after C.H. (Mother) failed to reunify, the 

juvenile court terminated her parental rights to T.T.M. Mother claims the 

juvenile court erred in failing to find the sibling exception to adoption 

pursuant to Welfare and Institutions Code1 section 366.26, 

subdivision (c)(1)(B)(v). We affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

In June 2017, the Del Norte County Department of Health and Human 

Services (Department) filed a section 300 juvenile dependency petition

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

unless otherwise indicated. 
2

concerning six-year-old T.T.M. The petition alleged Mother, the biological 

father, and stepfather failed to protect T.T.M. and his biological siblings,

2

failed to provide adequate food, clothing, shelter, or medical treatment, and 

failed to provide regular care due to substance abuse. 

Earlier in June 2017, Mother and T.T.M.’s biological father were pulled 

over in their vehicle by the California Highway Patrol (CHP) because T.T.M.

and his two siblings were not in seat belts. The car smelled “very strongly” of 

marijuana. Because the backseat had been removed, the children were 

sitting on the floorboards. There were also two dogs in the car and it was full 

of belongings. The children were dirty and appeared to be living in the car. 

The CHP contacted the Department and placed the children in protective 

custody. When interviewed, the children said Mother was drinking “sippys” 

(little bottles of alcohol) and buying drugs. T.T.M.’s nine-year-old sister

reported Mother “was drunk and she hit me,” and said Mother “is always 

drunk.” The children also disclosed the family was staying “in the wooded 

area behind Safeway” without access to utilities or proper sanitation facilities 

and that they had to go to the woods to use the bathroom. 

Following a detention hearing, T.T.M. and his siblings were detained 

and placed in foster care. 

In the jurisdiction report, the social worker recounted Mother had had 

over 25 prior referrals for child abuse and neglect, including referrals on two 

different days shortly before law enforcement stopped the family. Several of 

2 T.T.M.’s older siblings, his sister, J.M., and his brother, T.D.M., were 

also dependents in the juvenile court. They are not involved in this appeal. 

Although mother filed notices of appeal as to both T.T.M. and T.D.M, the 

notice of appeal for T.D.M. states it pertains to both boys and identifies the 

order appealed from as the termination of parental rights on April 10, 2020. 

Mother’s parental rights were terminated as to T.T.M., not T.D.M., at the 

April 10, 2020 hearing, and only T.T.M. is addressed in her briefs. 
3

the reports that Mother had been drinking and abusing drugs had been 

substantiated. 

The court held a jurisdictional hearing in early July 2017, found that 

T.T.M. and his siblings came within section 300, subdivision (b), and 

continued the matter for a dispositional hearing. 

In preparation for the hearing, the Department filed a disposition 

report recommending the court declare the children dependents of the court, 

remove them from their parents’ custody, and order the Department to 

provide the parents with reunification services. The family, according to the 

report, struggled maintaining stable and safe housing and had been living in 

their car or in a tent in the bushes. The children appeared to be living with 

their parents and Mother’s husband. The children had been placed in 

separate foster homes and all were receiving counseling. T.T.M.’s brother 

and sister were in their fifth and third foster homes respectively. T.T.M.

appeared to have adjusted well to foster care and had minimal behavior 

issues. The children saw each other during visits with their parents. 

The Department had referred the parents to alcohol and substance 

abuse treatment, mental health counseling, and parenting classes. The 

Department had, in addition, provided at least five hours of weekly visits. 

Because the parents continued to talk to the children about the case and 

their foster homes, despite the court order to the contrary, the Department 

continued to supervise the visits. 

At the dispositional hearing, the parties submitted the matter on the 

report, after which the court declared the children dependents of the court. It 

further found by clear and convincing evidence that there was a substantial 

danger to the children’s physical or emotional well-being were they to be

returned to their parents’ care and ordered them placed in foster care. The 
4

court ordered the parents to comply with reunification services and continued 

the matter for a six-month status review hearing. 

The Department, in February 2018, filed its six-month status review 

report, recommending the children remain in foster care. The children, 

according to the report, were healthy and remained in separate foster care 

placements, and saw each other at school and at visits with their parents. As 

to T.T.M., while he was in counseling to address his anger outbursts and 

learning how to keep his hands to himself and not physically assault his 

peers and siblings, his behavior had improved both at home and school. 

Mother said she was on the waiting list for drug and alcohol treatment 

and had been seeing a counselor weekly but provided no verification. She 

provided only one drug test which was positive for marijuana. Mother 

believed she did not need services and, if the children were back in her home, 

everything would be fine. 

Though the parents initially visited regularly, after their move to 

Mendocino County, they cancelled many visits. They had attended less than 

half of the visits in the past four months. 

The Department subsequently filed an addendum report. The social 

worker reported that in February 2018, Mother’s 16-year-old son, Ronald H.,

told a law enforcement officer Mother had been drinking all day, and when 

she drinks, “she gets hostile and violent” and “is a ‘fighter.’ ” He stated 

Mother had escalated a verbal altercation to the point where Ronald felt he 

had to call law enforcement. A Mendocino social worker confirmed Mother 

was “ ‘highly intoxicated’ ” and “was unable to provide an intelligible 

statement.” 

In late February, the court held the six-month review hearing. After 

finding that returning the children to their parents would create a 
5

substantial risk of detriment to them, the court ordered the children to 

remain as dependents in foster care, continued reunification services, and set 

the matter for a 12-month status review hearing. 

The Department filed a 12-month status review report. The 

Department recommended termination of reunification services and that the 

children remain in foster care. T.T.M. was entering second grade and had 

fewer behavioral issues in the past year at school. He was now placed with a 

cousin of his father and still exhibited some behavioral issues, but the family 

was able to work through them with him. 

Mother’s situation, as explained in the report, had not improved 

significantly. While Mother reported she had completed counseling, she had 

provided no verification. She was attending weekly substance abuse 

treatment in Fort Bragg, however, she tested positive periodically for alcohol 

and marijuana. Since February 2018, she had attended 23 of 49 available 

visits. And despite being warned, Mother continued to tell the children they 

would be coming home soon. 

In September 2018, the court held the 12-month status review hearing 

at which it took the report into evidence and Mother and the social worker 

testified. After finding by clear and convincing evidence that returning the 

children to their parents would place them at a substantial risk of detriment, 

the court terminated reunification services and continued the matter for a 

section 366.26 hearing. 

Thereafter we denied Mother’s writ petition challenging the court’s 

findings and orders. (C.H. v Superior Court (Dec. 6, 2018, A155522) [nonpub. 

opn.].) 
6

In December 2018, the Department filed its assessment report for the 

section 366.26 hearing. The Department recommended that the court 

terminate parental rights and select adoption as T.T.M.’s permanent plan. 

T.T.M.’s sister had been placed in the same home and the Department was 

recommending adoption for her too. The social worker explained the 

prospective adoptive family were relatives who had known T.T.M. since birth. 

T.T.M. had been calling the adoptive mother “mom’ and he had a good 

relationship with the family. The social worker noted, however, “[t]he days 

following visitation is when the children’s behavior seem[s] to spike.” Since 

August, Mother had canceled or failed to show for 15 visits. 

The Department requested in February 2019 that the court suspend 

Mother’s visitation because the children’s behavior deteriorated after visits,

during which Mother encouraged them to be disruptive in their foster homes 

and at school and, as result, the visits were detrimental to the children’s 

emotional and mental health. The social worker reported that T.T.M.’s 

behavior at home and at school had escalated after visits with Mother. 

In the meantime, Mother filed a request to change prior court orders 

pursuant to section 388, asking to have her children returned to her because,

“It is better for children to be raised by their natural parents.” 

Following a hearing on the request to suspend visits and Mother’s 

section 388 request, in which the court heard testimony from the social 

worker, Mother, and Mother’s 27-year-old son, Randy G., the court granted 

the request to suspend visits with Mother and denied her section 388 

petition. 

The Department subsequently filed an addendum report requesting a 

120-day continuance of the section 366.26 hearing to develop appropriate 

permanent plans for the children. The court continued the hearing. 
7

In June 2019, the Department filed an addendum to its assessment 

report, recommending the court terminate Mother’s parental rights and 

select adoption as T.T.M.’s permanent plan. As reported by the social 

worker, T.T.M. remained in the placement with the paternal cousins. He was 

receiving medication and his prospective adoptive parents reported his 

“behaviors are calming down in the home.” 

Shortly after this report was filed, the court held a section 366.26 

hearing, terminated parental rights, and selected adoption as T.T.M.’s 

permanent plan. 

Mother filed an appeal from the order terminating her parental rights. 

In November 2019, T.T.M.’s attorney filed a request to change prior court 

orders to reinstate parental rights because the previous foster parents no 

longer wanted to adopt T.T.M. On January 7, 2020, we dismissed the appeal 

as moot. (In re T.T.M., case No. A157763.) 

In January 2020, pursuant to section 388, Mother filed another request 

to change court orders. Mother asked to be reunified with T.T.M. because she 

claimed she had completed her outpatient substance abuse treatment 

program and was clean and sober. 

The adoption assessment report prepared for the section 366.26 

hearing, and filed in March 2020, recommended that the court terminate 

parental rights and select a permanent plan of adoption for T.T.M. The 

adoption specialist reported T.T.M. continued to attend weekly counseling 

and took medication for his attention deficit hyperactive disorder. Since 

starting medication, the incidents of his physical altercations at school had 

“greatly reduced.” And while his behavior had improved, he still had 

difficulties with positively engaging with others and controlling his impulses. 
8

T.T.M. had been placed with his prospective adoptive mother since 

August 28, 2019. Although T.T.M. still required redirection in the home and 

at school, the potential adoptive mother stated she had seen improvement in 

the past few months in both settings. The social worker noted a “substantial 

change” in T.T.M.’s behavior since he had been placed in his new foster home. 

Overall, he appeared “more stable and calmer in his current home.” In his 

previous placement, T.T.M.’s school called multiple times per week for 

behavioral issues and disruptions, however, the current foster parent 

reported that his school called only about once per month for behavioral 

issues, and in general the teacher could address these issues. The report 

went on to state that the current foster mother was committed to adopting 

T.T.M. and understood and was willing to accept the legal and financial 

responsibilities of adoption. 

The adoption specialist noted the current foster parent was fostering 

T.T.M.’s sister prior to her needing to move to a higher level of out-of-county 

placement. The foster parent, nonetheless, remained in contact with T.T.M.’s 

sister through phone calls and in-person visits approximately every three 

months, due to the distance, thus allowing T.T.M. to have a relationship with 

his sibling. He was able to share gifts, photos, and care packages with her. 

Maintaining this sibling relationship appeared to be “vital to [T.T.M.].” 

The adoption specialist personally spoke with T.T.M. in January 2020. 

For the first time since meeting and working with him over the last year, “he 

stated in a calm, assured manner, ‘I want to be adopted.’ ” When asked why 

he wanted to be adopted at this time in this home, T.T.M. replied, “ ‘This is a 

good home for me.’ ” 

Importantly, the adoption specialist noted the potential adoptive 

mother was committed to the child and committed to sibling contacts between 
9

T.T.M. and his sister, as well as having his older brother spend the night at 

their home approximately three times per month. 

Although the potential adoptive mother had been informed she could 

enter into a formal written agreement to arrange for continuing contact 

between the birth relatives and T.T.M., she declined to do so, explaining she 

did not feel a postadoption contract was necessary as she was willing to have 

“openness with [T.T.M.’s] siblings and birth family members as long as it is 

safe and appears to be in [T.T.M.’s] best interest.” 

The adoption specialist concluded that T.T.M. appeared to have 

“developed a trusting relationship with his potential adoptive [parent] and 

would benefit from the establishment of a permanent parent/child 

relationship through adoption.” The specialist further observed that T.T.M.

appeared to have “substantial emotional ties to his birth family and would 

benefit from being raised by the potential adoptive parent who had 

demonstrated a deep desire to support T.T.M.’s siblings bonds [sic] so that he 

can remain connected to his relatives in the naturally occurring family 

settings when possible.” 

Following a hearing on April 3 and 6, 2020, in which the court heard 

testimony from several witnesses, it denied mother’s section 388 petition. 

Several days later, on April 10, the court held the section 366.26 

hearing for T.T.M. The section 366.26 report and attachments were admitted 

into evidence. Mother’s counsel submitted the matter on the report and 

offered no argument. 

Finding by clear and convincing evidence that it was likely T.T.M.

would be adopted, the court terminated parental rights and selected adoption 

as his permanent plan. 
10

II. DISCUSSION

Mother contends the court erred in selecting adoption as the permanent

plan for T.T.M. following the selection and implementation hearing held 

pursuant to section 366.26, because the sibling relationship exception to 

adoption applies. 

Initially, county counsel argues Mother failed to raise the sibling 

relationship exception to adoption at any time during the section 366.26 

hearing as she submitted the matter on the assessment report. Accordingly, 

county counsel maintains Mother has forfeited her opportunity to raise this 

exception in her appeal. 

Even though it appears from the record that Mother has forfeited the 

sibling relationship exception to adoption by failing to raise it in the juvenile 

court, because the issue is not free from doubt, we will address the merits of 

Mother’s contention. 

As explained in In re Celine R. (2003) 31 Cal.4th 45 (Celine R.), “ ‘[o]nce 

reunification services are ordered terminated, the focus shifts to the needs of 

the child for permanency and stability.’ [Citation.] ‘A section 366.26 hearing 

. . . is a hearing specifically designed to select and implement a permanent 

plan for the child.’ [Citation.] It is designed to protect children’s ‘compelling 

rights . . . to have a placement that is stable, permanent, and that allows the 

caretaker to make a full emotional commitment to the child.’ [Citation.] ‘The 

Legislature has declared that California has an interest in providing stable, 

permanent homes for children who have been removed from parental custody 

and for whom reunification efforts with their parents have been 

unsuccessful.’ ” (Id. at pp. 52–53.) 

“Whenever the court finds ‘that it is likely the child will be adopted, the 

court shall terminate parental rights and order the child placed for adoption.’
11

[Citation.] The circumstance that the court has terminated reunification 

services provides ‘a sufficient basis for termination of parental rights unless 

the court finds a compelling reason for determining that termination would 

be detrimental to the child due to one or more’ of specified circumstances. 

[Citation.] The Legislature has thus determined that, where possible, 

adoption is the first choice. ‘Adoption is the Legislature’s first choice because 

it gives the child the best chance at [a full] emotional commitment from a 

responsible caretaker.’ ” (Celine R., supra, 31 Cal.4th at p. 53.) 

“[I]f the child is adoptable . . . adoption is the norm. Indeed, the court 

must order adoption and its necessary consequent, termination of parental 

rights, unless one of the specified circumstances provides a compelling reason 

for finding that termination of parental rights would be detrimental to the 

child. The specified statutory circumstances—actually, exceptions to the 

general rule that the court must choose adoption where possible—‘must be 

considered in view of the legislative preference for adoption when 

reunification efforts have failed.’ [Citation.] At this stage of the dependency 

proceedings, ‘it becomes inimical to the interests of the minor to heavily 

burden efforts to place the child in a permanent alternative home.’

[Citation.] The statutory exceptions merely permit the court, in exceptional 

circumstances [citation], to choose an option other than the norm, which 

remains adoption.” (Celine R., supra, 31 Cal.4th at p. 53.) 

Here, Mother does not dispute the court’s finding that T.T.M. is likely 

to be adopted but contends that the beneficial sibling relationship exception 

applies such that her parental rights should not have been terminated. 

The beneficial sibling relationship exception applies where the court 

concludes “[t]here would be substantial interference with a child’s sibling 

relationship, taking into consideration the nature and extent of the 
12

relationship, including, but not limited to, [(1)] whether the child was raised 

with a sibling in the same home, [(2)] whether the child shared significant 

common experiences or has existing close and strong bonds with a sibling, 

and [(3)] whether ongoing contact is in the child’s best interest, including the 

child’s long-term emotional interest, as compared to the benefit of legal 

permanence through adoption.” (§ 366.26, subd. (c)(1)(B)(v).) The parent 

bears the burden in the juvenile court of showing the exception applies. (In 

re L. Y. L. (2002) 101 Cal.App.4th 942, 949.) 

While any sibling relationship necessarily involves two or more 

siblings, a court considering the exception must focus its analysis on the child 

being considered for adoption, not the other siblings. (Celine R., supra, 

31 Cal.4th at p. 54.) “The court is specifically directed to consider the best 

interests of the adoptive child, not the siblings, and must ultimately 

determine whether adoption would be detrimental to the adoptive child, not 

the siblings.” (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) “ ‘The author 

of the legislation adding the sibling relationship exception anticipated that 

“use of the new exception ‘will likely be rare,’ ” meaning “that the child’s 

relationship with his or her siblings would rarely be sufficiently strong to 

outweigh the benefits of adoption.” ’ ” (In re D.O. (2016) 247 Cal.App.4th 166, 

174 (D.O.).) 

Application of the sibling relationship exception requires a two-step 

analysis. First, the court must determine whether terminating parental 

rights would substantially interfere with the sibling relationship. (D.O., 

supra, 247 Cal.App.4th at p. 173.) Second, if the court determines 

termination would substantially interfere with the relationship, it must then 

“ ‘weigh the child’s best interest in continuing that sibling relationship 
13

against the benefit the child would receive by the permanency of adoption.’ ” 

(Id. at pp. 173–174.) 

To the extent Mother challenges “the juvenile court’s ultimate 

determination, we apply the substantial evidence standard to the juvenile 

court’s underlying factual determinations, and the abuse of discretion 

standard to the court’s weighing of competing interests.” (D.O., supra, 

247 Cal.App.4th at p. 174.) 

The trial court here found that T.T.M.’s placement was “necessary and 

appropriate and that the agency has complied with the case plan by making 

reasonable efforts including whatever steps are necessary to finalize the 

permanent plan.” Mother contends otherwise, arguing that at the time of 

T.T.M.’s initial removal he had always resided in the same home with his 

siblings, and after being separated, T.T.M. maintained regular face-to-face 

contact with his older brother, with occasional overnight visits, regular 

telephone contact with his sister, and occasional contact with his adult 

brother. Because T.T.M. shared a close relationship with his siblings, Mother

maintains continuity of these relationships with his siblings is “extremely 

important” to T.T.M. 

The role of this court on appeal, however, is not to second-guess the 

juvenile court’s decision or to reweigh the evidence. Instead, we consider 

whether substantial evidence supports the trial court’s ruling that adoption 

was “necessary and appropriate” and whether the court abused its discretion 

in weighing the competing interests. We conclude the court did not err in 

this regard. 

The evidence strongly supports that termination of Mother’s parental 

rights would not substantially interfere with the sibling relationship. 

T.T.M.’s current foster parent understood that maintaining a sibling 
14

relationship was vital to him. The foster mother had been fostering T.T.M.’s 

sister prior to her needing a higher level of placement. And despite his 

sister’s relocation to an out-of-county placement, the foster parent, 

nonetheless, remained in contact with her through phone calls and in-person

visits approximately every three months. Significantly, the adoption 

specialist indicated the potential adoptive mother (foster mother) was 

committed to sibling contacts between T.T.M. and his sister, as well as 

having his older brother spend the night at their home approximately three 

times a month. Indeed, T.T.M.’s current foster mother’s willingness to 

maintain his current relationship with his siblings is an important factor in 

favor of the court’s final placement determination.

On appeal, Mother argues that while T.T.M.’s foster mother expressed 

a willingness to maintain postadoption sibling contact, “this did not provide 

the juvenile court with sufficient justification to formally terminate the 

sibling relationship” because there was no “set agreement” guaranteeing 

sibling visitation would take place following termination of parental rights. 

Though the adoptive parent’s openness to visits may be well intended, 

Mother asserts there is no enforcement mechanism since the court no longer 

has jurisdiction over the matter. 

Neither statute or nor case law require that the parties enter into an 

enforceable agreement for visitation as a prerequisite to a court finding that 

adoption would not cause substantial interference with a sibling relationship. 

The law does acknowledge that, after being adopted, some adoptive children 

may benefit from contact, direct or indirect, with birth relatives, including 

siblings. To this end, Family Code section 8616.5, subdivisions (a) and (b)(1),

and 8714, authorize postadoption contact agreements executed between the 

adoptive parents and the birth parents or parent, or siblings provided the 
15

contact is beneficial to the children and the agreements are voluntarily 

executed. However, at its core, such an open adoption is an agreement 

between those individuals involved; it is not a mandate by the court. 

As to postadoptive sibling contact, section 366.29 also represents 

another limited exception. It authorizes the court, “[w]ith the consent of the 

adoptive parent or parents,” to include in a final adoption order “provisions 

for the adoptive parent or parents to facilitate postadoptive sibling contact.” 

(§ 366.29, subd. (a).) The court, however, cannot require the adoptive parents 

to do so. (Celine R., supra, 31 Cal.4th at p. 55.) 

Because the adoptive parent in the instant matter was not required to 

enter into a contact agreement, we reject Mother’s assertion that in the 

absence of such an agreement, termination would interfere with the sibling 

relationship. 

Nor is Mother’s reliance on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.) 

persuasive. In S.B., the appellate court reversed the trial court’s finding that 

the beneficial parent-child relationship exception did not apply after 

concluding the child would be greatly harmed by the loss of the significant 

positive relationship she shared with her father. The father had complied 

with every aspect of his case plan, frequently visited his daughter, and was 

devoted to her. She loved him and wanted to live with him. (Id. at p. 295.) 

The court distinguished the situation in S.B. explaining it is not 

“analogous to the sibling relationship exception under section 366.26, 

subdivision (c)(1)(B)(v), in which the court considers future sibling contact 

and visitation. [Citation.] Unlike the parent-child relationship, sibling 

relationships enjoy legal recognition after termination of parental rights.” 

(S.B., supra, 164 Cal.App.4th at p. 300.) 
16

Finally, Mother bore the burden of showing the sibling relationship 

could not be maintained if her parental rights were terminated. (In re 

L. Y. L., supra, 101 Cal.App.4th at p. 949.) Other than mere speculation that 

T.T.M.’s second adoptive placement could fail because the first adoptive 

placement failed due to his disruptive behavior and emotional and mental 

health issues, Mother points to no evidence to meet her burden to 

demonstrate a substantial interference with the sibling relationship. On the 

contrary, as noted by the adoption specialist, in his current foster/adopt 

placement, she had noticed a “substantial change” in T.T.M.’s behavior; he

appeared “more stable and calmer.” And, unlike his previous placement 

where the school called multiple times per week for behavioral issues and 

disruptions, the current foster parent reported his school called only about 

once per month for behavioral issues, a significant improvement. 

In short, substantial evidence supports the juvenile court’s decision to 

terminate Mother’s parental rights because the sibling relationship exception 

is not implicated.3

III. DISPOSITION

The order is affirmed. 

3 Because we have concluded substantial evidence supports the court’s 

determination that terminating parental rights would not substantially 

interfere with the sibling relationship, we need not address whether the court 

was required to weigh T.T.M.’s interests in continuing the sibling 

relationship against the benefit he would receive by the permanency of 

adoption. 
17

MARGULIES, ACTING P. J.

WE CONCUR:

BANKE, J.

SANCHEZ, J.

A160071

In re T.D.M.