Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J06-00213
Pollak, J.
Mother P.P. and father G.R. appeal from an order terminating their parental rights to their now four-year-old son, M.R. They contend the court erred in concluding that the child’s relationship with neither his siblings nor his mother was sufficient to outweigh the benefits of adoption. In addition, they contend that a conflict of interest in the joint representation of M.R. and his older siblings prevented the siblings from presenting their objections to the termination of parental rights. We affirm.
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 M.R., then 16 months old, and his seven siblings, whose ages then ranged from three to 14 years, came within Welfare and Institutions Code section 300, subdivision (b). The children were detained and placed in foster care. M.R. was initially placed in a foster home with one of his brothers. However, a few months later the brother’s special needs required that the brother be moved to a different foster home.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
At the jurisdictional hearings, the court found that M.R. had suffered or was at risk of suffering serious physical harm or illness due to father’s history of serious domestic violence and serious and chronic alcohol abuse, and that mother had failed to protect the child 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. Over time, mother’s visitation with M.R. increased to an additional unsupervised weekly and occasionally overnight visit. The social worker reported that M.R. “enjoys playing with his siblings during family visits” and that “[t]he parents interact positively with the children and the children enjoy seeing each other.”
In advance of the 18-month review hearing set in August 2007, the social worker recommended that reunification services be terminated and a section 366.26 hearing be scheduled. The social worker recommended a case plan of adoption for M.R and long-term foster care for the other siblings. M.R.’s foster parents had requested to adopt M.R. 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. The report indicates that M.R. “interacts well with his brothers and sisters during the visits . . . and likes to ‘rough-house’ with them.” M.R. also “enjoys seeing his parents and appears very attached to his mother during the supervised visits.” At the contested hearing, the court terminated reunification services and set a section 366.26 hearing.
On January 14, 2008, the contested permanent plan hearing was held. The Bureau recommended adoption as the permanent plan for M.R. The attorney for the minors concurred in the recommendation and added that M.R.’s siblings “really want what is best for him, and while it’s sad for them, they recognize that it’s best for [M.R.] 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 [M.R.].” She did not believe a conflict of interest existed between M.R. and his 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 [M.R.] 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. Thereafter, the court terminated parental rights. The court explained that the parents had two years to reunify with M.R. but were unsuccessful and that based on the young age of the child, it was necessary to consider the future of the child. The court emphasized that while the parents had visited regularly with M.R., any incidental benefits from the visitation “doesn’t even come close to overcoming the need for this child for a permanent, loving, stable home.” With regard to M.R.’s relationship with his siblings the court stated, “I have certainly considered sibling visitation, and I will take the characterization given to this court by the minor’s attorney that they’re playmates—they play. This child was . . . one and a half years old when he was removed from his siblings. He hasn’t lived in the same home with the siblings except for one—for a very short—period of time since he was removed. So I certainly do not find that there’s such a strong sibling bond. He certainly didn’t have it before they were removed, and I certainly do not find it since.” Both parents filed timely notices of appeal.
While this appeal was pending, M.R.’s 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 sibling, 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. 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 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 minor’s attorney represented to the court that the siblings had been advised of the Bureau’s recommended permanent plan of adoption and that the older children, at least, had not expressed a desire to object. If the siblings truly did not object to M.R.’s adoption, no conflict would arise in the joint representation. The parents, however, question 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 M.R. They suggest that counsel’s belief that adoption was in M.R.’s best interest 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. 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, the overwhelming evidence supports the court’s finding that the sibling relationship exception was not applicable in this case. There is no likelihood that if the older siblings had been separately represented additional evidence regarding the strength of the siblings’ relationship with M.R. would have been forthcoming or would have altered that conclusion.
M.R. was less than 18 months of age when he was removed from the home. By the time the permanency planning hearing was held he had been living apart from his siblings for just under two years. While he had visited regularly with his siblings throughout the dependency proceedings, those visits were limited to a few hours twice a month. The fact that he seemed to enjoy the visits does not mean that he had a sufficiently strong bond with his siblings to outweigh the benefits of adoption. The record contains numerous statements by the older children demonstrating their strong bonds with each other and with M.R. While with his own attorney J.R. might have made known his opposition to M.R.’s adoption, it is doubtful that he would have provided the court with additional factual information. Indeed, additional testimony in this respect most likely would have been cumulative. The termination of the siblings’ legal relationship with M.R. undoubtedly was painful for the older siblings. However, the fact that his siblings loved and felt a strong bond to their baby brother does not mean that M.R.’s attachment to his siblings was of a similar depth. 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 45, 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.)
In re Naomi P. (2005) 132 Cal.App.4th 808, 823, cited by the parents, is distinguishable. The question in that case was not whether an asserted conflict of interest was prejudicial, but whether substantial evidence supported the court’s finding that the sibling relationship exception applied. The relationship in that case between Naomi, who was of similar age to M.R., and her older siblings was significantly different from the relationship between M.R. and his siblings. Naomi’s placement was close to her grandmother’s home where her older siblings were placed, enabling weekly visitation with her siblings at her foster home and overnight weekend visits with her siblings at the grandmother’s home. (Id. at pp. 812-813, 814.) No such proximity or frequency of contact existed here and, unlike the situation in Naomi P., the juvenile court as the trier of fact did not make the findings necessary to invoke the sibling relationship exception. Whether or not the record here would have supported contrary findings, the record amply supports the findings the court did make and there is no reason to believe the findings would have differed had the other siblings been separately represented and opposed the adoption.
Accordingly, any error in having permitted joint representation of the minors is harmless. Moreover, substantial evidence supports the court’s finding that the sibling relationship exception to the termination of parental rights was not applicable.
2. Parental Beneficial Relationship Exception
Parents contend that the court erred in determining that mother’s relationship with M.R. was not sufficient to support application of the beneficial relationship exception found in section 366.26, subdivision (c)(1)(B)(i), which provides an exception to the termination of parental rights where “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” “A beneficial relationship is one that ‘promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.’ ” (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) The parent has the burden of proving that the exception applies and he or she “must do more than demonstrate ‘frequent and loving contact[,]’ [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a ‘parental role’ in the child’s life.” (In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) “The existence of this relationship is determined by ‘[t]he age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child's particular needs.’ ” (In re Jerome D., supra, at p. 1206.)
The court found that mother had maintained regular visitation with M.R., but concluded that while the visits were “nice,” any incidental benefit from visitation “doesn’t even come close to overcoming the need for this child for a permanent, loving, stable home.” The record supports the court’s conclusioN.M.R. was only 16-months at the time of his removal. By the time of the hearing he had spent more of his life living with his foster-adopt family than with his mother. While it was reported that he “smiles from ear to ear” when he sees his mother and identifies her as such, the trial court’s conclusion that their bond is insufficient to justify depriving M.R. of the benefits of adoption is not unreasonable, particularly in light of M.R.’s young age.
In re Jerome D., supra, 84 Cal.App.4th 1200, relied on by mother, is distinguishable. In that case the appellate court found that there was no substantial evidence to support the court’s determination that Jerome’s relationship with his mother was insufficient to preclude termination of her parental rights. In contrast to the facts of this case, “[a]t the time of the section 366.26 hearing, Jerome was nearly nine years old. He had lived with Mother for the first six and one-half years of his life and expressed his wish to live with her again. For at least two months, he had been having unsupervised overnight visits in her home. He called her ‘mom’ or ‘mommy.’ There was apparently no woman in his life other than Mother with whom he had a beneficial relationship.” (Id. at p. 1207.) In addition, an expert witness reported that following an observation of Jerome and his mother, he “concluded that Jerome ‘identifie[d] her as mother’ and they shared a ‘strong and well[-]developed’ parent-child relationship and a ‘close attachment’ approaching a primary bond.” (Ibid.) The relationship between M.R. and his parents at the time of the section 366.26 hearing was, quite clearly, far less developed than was true in Jerome D.
DISPOSITION
The judgment terminating parental rights is affirmed.
We concur: McGuiness, P. J., Jenkins, J.