Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. Nos. J0600212, J0600215
Pollak, J.
Mother P.P. and father G.R. appeal from an order terminating their parental rights to their now six-year-old daughter, M.P., and mother appeals from an order terminating her parental rights to another daughter, and M.P.’s half-sister, seven-year-old A.P. They contend the court erred in failing to recognize that a conflict of interest in the joint representation of the sisters and their five older siblings prevented the siblings from presenting their objections to the termination of parental rights. We affirm.
Although the petition indicated that the minor had the same last name as her father, the order terminating parental rights confirmed that her true last name is that of her mother. Accordingly, we refer to her as M.P. in this appeal.
The two minors are referred to collectively as the sisters.
FACTUAL AND PROCEDURAL BACKGROUND
On January 30, 2006, the Contra Costa County Bureau of Children and Family Services (the Bureau) filed a petition alleging that the sisters, then three and four years old, and their six siblings, whose ages then ranged from one to 14 years, came within Welfare and Institutions Code section 300, subdivision (b). The children were detained and placed in foster care. The sisters were placed together in a foster home and have remained together essentially throughout the proceedings. They have never been placed in a home with any of their siblings.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
At the jurisdictional hearings, the court found that the sisters had suffered or were at risk of suffering serious physical harm or illness due to mother’s failure to protect the children from exposure to domestic violence and from father’s substance abuse. Although the petition did not allege that mother also had a substance abuse problem, after mother tested positive for methamphetamine on five occasions in March 2006, the court ordered her to participate in a 90-day treatment program.
Reunification services were provided for both mother and father. The provision of reunification services was extended at the six-month review hearing in September 2006 and at the 12-month review hearing in March 2007. During the first six-month period, the children together visited twice a month for one hour with their mother and once a month for one hour with their father. When the parents were reunited, the family continued twice monthly visitation. The social worker reported that “[a]lthough the visits are at times described as very busy, all the children interact well and enjoy seeing each other.”
In advance of the 18-month review hearing set in August 2007, the social worker recommended that a section 366.26 hearing be scheduled. The social worker recommended a case plan of adoption for the youngest sibling and long-term foster care for the other siblings, including the sisters. The social worker explained that while the sisters’ current foster parent had requested to be appointed the legal guardian for the girls, the permanency planning review team agreed to refer the sisters for adoption and recommended a plan of long-term foster care until a prospective adoptive family could be located. The report indicates that unsupervised visitation was suspended following the parents’ relapse in May 2007. At that time, mother tested positive for methamphetamine and father was belligerent and refused to complete his drug test. Thereafter the parents had supervised visits twice a month at the Bureau’s office. At the hearing, the court terminated reunification services and set a section 366.26 hearing. The parties agreed that the plan for the sisters was for long-term foster care with a goal of adoption.
On January 14, 2008, a contested permanent plan hearing was held for the youngest sibling. The Bureau recommended adoption as the permanent plan. The attorney for the minors concurred in the recommendation and added that the siblings “really want what is best for him, and while it’s sad for them, they recognize that it’s best for [him] to stay in the home where he has been, really, for most of his life now.” The parents objected to the attorney’s representation of all of the minors, asserting that there was a conflict of interest between the children. The minors’ attorney clarified that she had not “heard from any of the [siblings] that they would want to object to a permanent plan of adoption for [the minor].” She did not believe a conflict of interest existed between the youngest child and his older siblings. She represented that “the children [that] are old enough to express a feeling about it have expressed that they want what’s best for [him] and that they recognize that adoption is the appropriate plan for him . . . .” The court accepted the attorney’s representations regarding the children’s wishes and found that there was no conflict of interest.
Parents appealed from the termination of the minor’s parental rights arguing, among other things, that a conflict of interest in the joint representation of the siblings prevented the minors’ attorney from objecting to the termination of parental rights on the basis of the sibling relationship exception. This court affirmed the judgment terminating parental rights on the ground that even if a conflict existed, the failure to appoint separate counsel for the children was harmless. (In re M.R. (Jan. 23, 2009, A120450) [nonpub. opn.].)
At the section 366.26 hearing in July 2008, the Bureau submitted a report recommending termination of parental rights with regard to the sisters and adoption as the permanent plan. In March 2008, the sisters were placed together in a prospective adoptive home and have since formed a strong reciprocal relationship with their prospective adoptive family. Both sisters call their prospective adoptive family mommy and daddy.
The section 366.26 hearing was held on July 8, 2008. Although both parents were given notice of the hearing, neither appeared. Father’s counsel requested a continuance. She explained that she had numerous telephone contacts with father and that father intended to attend the hearing. The court denied the request, finding that there was no good cause for a continuance. Father’s attorney objected to the Bureau’s recommendations. Mother’s attorney indicated that he had no contact with mother and, therefore, could not object or agree to the Bureau’s recommendations. The attorney for the siblings, which included the sisters, agreed with the Bureau’s recommendations. The court found that the sisters were likely to be adopted and terminated parental rights. Parents filed timely notices of appeal.
While this appeal was pending, the sisters’ now 17-year-old brother J.R. filed a request with this court pursuant to Code of Civil Procedure section 909 for an order making additional factual determinations, including findings that he was not properly advised of the consequences of the termination of parental rights on his legal relationship with his siblings, and that had he been properly advised, he would have objected. He also filed a request for judicial notice of events that have occurred subsequent to the section 366.26 hearing.
DISCUSSION
1. Father’s Request for a Continuance
A juvenile court may continue a dependency hearing at the request of a parent for good cause and only for the time shown to be necessary. (§ 352, subd. (a); Cal. Rules of Court, rule 5.550.) “Courts have interpreted this policy to be an express discouragement of continuances.” (In re Karla C. (2003) 113 Cal.App.4th 166, 179.) Father does not dispute that he had actual notice of the hearing and had been ordered by the court to appear, but contends that the court nonetheless abused its discretion when it denied his attorney’s request for a continuance when he failed to appear at the hearing. He notes that he had appeared at all prior hearings and his attorney informed the court that he intended to appear at the section 366.26 hearing. He suggests that at a minimum his attorney should have been granted a “short continuance so counsel could contact his office to determine if [father] had contacted his office.” Father’s counsel, however, did not make any such request. While defendant faults the court for failing to “attempt to determine whether he had been unavoidably delayed, perhaps due to traffic, a bus delay, or some other reason,” father does not claim that his failure to appear was in fact due to unavoidable delay. He made no motion for reconsideration in the trial court on the ground that his absence was due to circumstances beyond his control. The record reflects that father was given notice that the hearing was scheduled for 9:00 a.m., and prior to denying the request the court confirmed that as of 9:25 a.m. father had failed to appear. In the absence of any explanation for father’s failure to appear, the court did not abuse its discretion in denying the request for continuance. (See In re Angela R. (1989) 212 Cal.App.3d 257, 265-266 [court did not abuse its discretion in denying counsel's motion for continuance of juvenile court permanency planning hearing where record supported finding that mother had actual notice of hearing date but did not attend].)
2. Conflict of Interest/Sibling Relationship Exception
The parents contend that a conflict of interest in the joint representation of the minor children prevented the minors’ attorney from objecting to the termination of parental rights on the basis of the sibling relationship exception. “Under section 317, subdivision (c), the primary responsibility of minor’s counsel is to advocate for the protection, safety, and physical and emotional well-being of the child. Minor’s counsel is also charged with the duty to ‘investigate the interests of the child beyond the scope of the juvenile proceeding and report to the court other interests of the child that may need to be protected by the institution of other administrative or judicial proceedings.’ [Citations.] [¶] The court should initially appoint a single attorney to represent all siblings in a dependency case unless there is an actual conflict of interest or a reasonable likelihood that an actual conflict of interest would develop. [Citation.] After the initial appointment, the court should relieve an attorney from representing multiple siblings only if an actual conflict of interest arises during the proceedings. [Citation.] According to the Advisory Committee comment to rule [5.660 of the California Rules of Court], ‘Attorneys have a duty to use their best judgment in analyzing whether, under the particular facts of the case, it is necessary to decline appointment or request withdrawal from appointment due to a purported conflict of interest.’ [Citation.] [¶] . . . A conflict arises where minor’s counsel seeks a course of action for one child with adverse consequences to the other.” (In re Barbara R. (2006) 137 Cal.App.4th 941, 953.) In Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1428, the court found that an actual conflict of interest existed where recommendations for different permanent plans for two minors required the attorney to argue both for and against the adoption of a sibling. The court explained, “By way of example only, Francisco’s expressed wish to maintain a sibling relationship with Reyna requires his attorney to counsel him on whether to invoke section 366.26, subdivision (c)(1)[(B)(v)] and pursue any rights conferred on him by that section. However, the same attorney could not pursue Francisco’s interests by opposing a permanent plan of adoption for Reyna on the ground it would sever their sibling relationship, and simultaneously independently evaluate and advocate whether Reyna’s best interests would be served by the stability provided by adoption.” (Ibid., fn. omitted.)
Here, the same attorney represented all of the minors throughout the proceedings. As set forth above, the potential conflict of interest first arose at the January 2008 hearing at which parental rights were terminated with respect to the youngest child. At that time, the attorney represented to the court that the siblings had been advised of the Bureau’s recommended permanent plan of adoption for that child and that the older children, at least, had not expressed a desire to object. The parents objected to the appointment of a single attorney to represent all of the minors, but the court found that there was not an actual conflict of interest. The asserted conflict of interest was not raised again prior to the termination of parental rights with respect to the sisters in July 2008.
The parents question, as they did in the prior appeal, whether the siblings were properly advised of all of their options and of the consequences of termination of parental rights on the siblings’ legal relationship with the sisters. They suggest that counsel’s belief that adoption was in the sisters’ best interests may have colored her conversations with the older siblings. While nothing in the record supports the parents’ surmise, J.R.’s motion seeks to provide the missing evidentiary support for this argument. However, it is unnecessary to take additional evidence or to make the requested factual findings. As we concluded in the prior appeal, assuming that an actual conflict existed and that J.R. would have objected to the recommended permanent plan had he been properly advised, the failure to have appointed separate counsel undoubtedly was harmless.
J.R.’s motion for additional findings of fact on appeal therefore is denied. (In re Zeth S. (2003) 31 Cal.4th 396, 405 [“ ‘Absent exceptional circumstances,’ ” an appellate court should not make findings of fact].) His request for judicial of notice of the various changes in the minors’ representation following the entry of the termination order is also denied because the subsequent events are not relevant to the issues in the current appeal. (Ibid.)
“A court should set aside a judgment due to error in not appointing separate counsel for a child or relieving conflicted counsel only if it finds a reasonable probability the outcome would have been different but for the error.” (In re Celine R. (2003) 31 Cal.4th 45, 60.) The parents argue that had separate counsel been appointed for the siblings, an attorney not affected by the conflict may well have successfully objected to the termination of parental rights in order to maintain the sibling relationship. Under section 366.26, subdivision (c)(1)(B), if the court finds the minor adoptable, it must terminate parental rights unless it also “finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] . . . [¶] (v) There would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” Contrary to the parents’ argument, there is no basis on which to believe that assertion of the sibling relationship exception would have prevented the termination of parental rights. There also is no likelihood that if the older siblings had been separately represented additional evidence regarding the strength of the siblings’ relationship with the sisters would have been forthcoming or would have altered this conclusion.
The sisters were only three and four years old when they were removed from the parents’ home. By the time of the permanency planning hearing, they had been living apart from their siblings for more than two years. While they had visited regularly with their siblings throughout the dependency proceedings, those visits were limited to a few hours twice a month. The fact that they seemed to enjoy the visits does not mean that they had a sufficiently strong bond with the siblings to outweigh the benefits of adoption. As the trial court noted, both children expressed a clear wish for the prospective adoptive family to be their “forever mommy and daddy.” The record contains numerous statements by the older children demonstrating their strong bonds with each other and with their sisters. While with his own attorney J.R. might have made known his opposition to the sisters’ adoption, it is doubtful that he would have provided the court with additional factual information. The court was very familiar with this family and additional testimony in this respect most likely would have been cumulative. As we observed previously, the termination of the siblings’ legal relationship with the sisters undoubtedly was painful for the older siblings. While a court “should carefully consider all evidence regarding the sibling relationship as it relates to possible detriment to the adoptive child, . . . the ultimate question is whether adoption would be detrimental to the adoptive child, not someone else.” (In re Celine R., supra, 31 Cal.4th at p. 55.) The sibling relationship exception does not “permit a court to not choose an adoption that is in the adoptive child’s best interest because of the possible effect the adoption may have on a sibling.” (Id. at p. 54.) Accordingly, any error in having permitted joint representation of the minors is harmless.
Based on this conclusion, mother’s argument that her trial attorney rendered ineffective assistance by failing to object to the joint representation must also be rejected.
DISPOSITION
The judgment terminating parental rights is affirmed.
We concur: McGuiness, P. J., Jenkins, J.