Opinion
G044812 Super. Ct. No. DP015777 Super. Ct. No DP015778
10-21-2011
In re NATALIE I. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. GABRIEL I. et al., Defendants and Appellants.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant Karina M. Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant Gabriel I. Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, Richard Y. Lee, Judge. Affirmed.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant Karina M.
Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant Gabriel I.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
Karina M. (mother) and Gabriel I. (father) appeal from an Orange County Juvenile Court order terminating parental rights to two of their daughters, Natalie (born February 2003) and Sarah (born August 2006). (See Welf. & Inst. Code, § 366.26; all further statutory references are to this code, unless otherwise stated.) The parents contend the juvenile court erred by not applying the benefit (§ 366.26, subd. (c)(1)(B)(i)) and sibling bond (§ 366.26, subd. (c)(1)(B)(v)) exceptions to termination of parental rights. They also assert the girls held conflicting positions as to the best permanent plan, and should have been represented by separate counsel at the section 366.26 hearing. As we explain, parents' contentions lack merit, and we therefore affirm the juvenile court's order.
I
FACTUAL AND PROCEDURAL BACKGROUND
In August 2007, then four-year-old Natalie and three older siblings, Monique (born June 1996), Gabriel (June 1998), and Joseph (June 1999), lived with their paternal grandmother. One-year-old Sarah lived with the parents. On August 4, police officers took the four older children into protective custody because of the grandmother's physical abuse. The Orange County Social Services Agency (SSA) filed a petition alleging the children had suffered serious physical harm inflicted intentionally, and were at risk of suffering serious physical harm or illness resulting from the parents' failure or inability to protect them. (§ 300, subds. (a) & (b).) The petition noted the parents had a history of substance abuse and domestic violence, and the parents had voluntarily placed the children with the grandmother in 2005 because they had been unable to care for them. The petition also alleged violence had occurred between the parents and the grandmother in the children's presence. At the time SSA filed the petition, the grandmother's petition for legal guardianship of the children was pending in the family court.
The court continued the jurisdiction hearing several times. In the interim, the parents submitted to drug testing, and participated in other available services, including parenting and domestic violence classes. In January 2008, the social worker recommended conditionally releasing the children to mother's care under a CRISP plan (Conditional Release to Intensive Supervision Program). The social worker expressed concern that father had left the home for several weeks and missed several drug testing appointments, domestic violence classes, and counseling sessions. Father claimed he had been working in Los Angeles as a limousine driver and staying with friends who lived closer to work. The social worker stated "his behavior pattern has been to escape when his family is under stress."
In mid-January 2008, the parents pleaded no contest to the amended allegations of the petition. The children were released to their parents under a CRISP plan. The CRISP social worker described the parents as very cooperative, and the children appeared well cared for. At the disposition hearing in February 2008, the court ordered custody of the children to remain vested with the parents under SSA's supervision and scheduled a six-month review for July 2008.
In April, the parents informed the social worker they "no longer wanted to be with each other" and that father might move out. In May, father reported frustrations with mother's parenting choices, complaining she did not feed the children appropriately and dropped them off at the paternal grandmother's home so she could "go out and party."
In August 2008, father tested positive for methamphetamine, and authorities placed him in federal custody, pending a deportation hearing. Mother lost her job in September, and tested positive for methamphetamine on three occasions in late October and early November 2008, and missed other drug tests.
The social worker and others observed mother did not appear to have been using drugs, and the children seemed well cared for. The social worker referred mother for random, drug testing and a drug treatment program. The social worker noted the "strong family relationship among the children and between the children and their mother," but classified mother's cooperation with the case plan as moderate.
Mother missed a random drug test in late December 2008, and another in early January 2009. The court ordered drug patch testing for mother, and continued the review hearing to February. The patch test results were negative. In February, the court found continued supervision was necessary and scheduled a review hearing for August 2009.
On April 13, a week or so after mother was taken off the drug patch, Gabriel brought a methamphetamine pipe to school, and reported it belonged to mother. Police arrested her for child endangerment (Pen. Code, § 273a, subd. (b)). Based on reports from several of the children, SSA filed a supplemental petition (§ 387) alleging mother had been abusing drugs and alcohol, and used inappropriate physical discipline on her children. Mother subsequently pleaded no contest to these allegations.
SSA recommended denying additional reunification services to mother (§ 361.5, subd. (b)(13)), but advised her to reenroll or continue with various programs. SSA recommended reunification services for father, who had been deported to Mexico in early July 2009, but had returned to the United States at the end of the month. The social worker directed him to submit to drug tests, enter a drug treatment program, attend Narcotics Anonymous meetings, and enroll in parent education.
At the disposition hearing July 28, 2009, the juvenile court adopted SSA's recommendations and found that reunification services need not be provided to mother. It scheduled a six-month review for November 2009.
In mid-July, SSA moved Natalie and Sarah from their daycare provider's home to a new foster home. As of October 2009, the social worker characterized father's cooperation and progress with the case plan as moderate, but described him as "highly motivated to reunify." He had enrolled in parenting and drug treatment, and all random drug tests had been negative. He displayed attentiveness to his children's needs. The social worker coordinated family visits between father and the children, although arranging visits posed challenges because of father's immigration status, and the existence of a felony arrest warrant.The children reported they missed living together as a family, even when it was "'crazy.'" The social worker also noted Natalie and Sarah had "connected very strongly" with the foster family.
A felony arrest warrant had issued for father based on a charge of second degree burglary filed in June 2007. The social worker noted the warrant had "great effect" on father because he had recently reentered the United States, and arrest or detention would most likely result in federal incarceration for several years followed by another deportation.
At the review hearing in December 2009, the court found continued supervision was necessary, return of the children to the parents would be detrimental, and reasonable services had been provided. Father agreed to an amended case plan, including a referral for individual counseling to address anger management and domestic violence issues. The court set a 12-month review hearing for May 2010.
As of May 2010, father was enrolled in parenting, drug and alcohol treatment, and domestic violence counseling. He remained in compliance with program requirements, but had "some attendance issues" and was granted an extension to complete the program. The social worker advised unsupervised visits with the children could not occur until father resolved the outstanding arrest warrant. Father also missed five drug tests which SSA considered positive, and tested positive for barbiturates in late December 2009. Concerning the barbiturates, father explained a neighbor had given him a Mexican pain pill to treat a hand injury. He also missed 13 of 36 visits with the children, often without providing notice. Asked why he missed a visit, father stated, "'I have a life.'" He was currently employed and living with a girlfriend and her children.
Mother, who no longer received reunification services, pleaded guilty to charges of child endangerment and possession of drug paraphernalia, and was placed on probation. She had not sought to initiate contact with the children, nor did she submit proof the criminal court had modified a protective order that prevented her from contacting the children.
Both Natalie and Sarah openly demonstrated they enjoyed living in their foster placement, and displayed a close bond with each other. The foster parents told the social worker they favored continued contact among the siblings if they adopted the girls, but noted the older children seemed to enjoy the sibling visits more than Natalie and Sarah.
The social worker recommended terminating father's reunification services because there was not a substantial probability father would gain the return of his children within the next six months. Although the children desired to reunify, "factors such as employment, transportation, an outstanding arrest warrant, [and] acquiring the resources to provide for the health and safety of five children ranging in age from [three to 13]" were difficult obstacles for father to overcome, especially since he appeared to "have his focus elsewhere."
At the June 2010 permanency review hearing (§ 366.21, subd. (g)), the court terminated father's reunification services and scheduled a section 366.26 hearing for October 2010. Father was arrested on his outstanding warrant in late July 2010.
In her initial report for the section 366.26 hearing, the social worker recommended long-term foster care for the older siblings, who were deemed not adoptable and now lived together in a new foster placement. The social worker also recommended terminating parental rights and placing Natalie and Sarah for adoption, observing that it was likely their foster parents would adopt them.
In October 2010, the court found the three older siblings were not adoptable and ordered long-term foster care. In November, counsel for the four older children declared a conflict as to Natalie, and the court appointed the lawyer representing Sarah to also represent Natalie.
At the section 366.26 hearing in January 2010, the social worker testified a strong maternal bond between mother and the girls did not exist. Nor was Sarah strongly bonded to the older children because of her young age and lack of exposure to them, and would not suffer detriment if she did not see her older siblings again. Natalie and Monique appeared to share a strong bond at times, although Monique could be "mean" and mistreat her younger sister. The older girls' bond derived from Monique's de facto parenting of Natalie, which the social worker observed was unhealthy for Natalie. The younger girls asked to visit the older children, but did not ask about them. The girls' caretakers were committed to continued visitation with the parents and siblings and believed it was important. Natalie and Sarah appeared strongly bonded to one another. Sarah was too young to understand adoption, but Natalie was adamant she wanted her foster parents to adopt her.
Father, who was incarcerated when he testified and acknowledged he would be deported again, described his relationship with his children. He lived with Natalie after his release from prison and deportation when she was 10 months old. Natalie returned to the United States with her mother and older siblings in 2005, when Natalie was two years old, and Father returned seven months later. His mother assumed care of the children seven days a week while the parents tried to put their lives together, although he and mother lived nearby and spent time with the children. He described his relationship with Natalie as "[l]ove, care, attention, fully supportive." When not working, he stayed home to exercise his parental role. He visited Natalie twice a week when she was in protective custody until reunited with her in early 2008.
Father also described the relationship between Natalie and her siblings. He acknowledged Natalie felt Monique was rude to her, but she told him she loved Monique and wanted to live with her older siblings. Natalie always "counted on" Gabriel because he always "commits, stand[s] up, stop[s] what he's doing to be there for his sisters." Natalie asked to see her brothers whenever she visited father, and if she could not see her older siblings anymore, it "would really ruin her stability, her attitude . . . her motivation and moving forward. She would just be broken hearted." Natalie cried when Monique explained her foster parents were probably going to become Natalie and Sarah's parents and she might not see her older siblings again. Father stated the bond between Monique and Natalie was a "10" on a scale of 1-10, the bond with Gabriel was a 10, and the bond with Joseph was a 9. He testified Sarah's bond to her older siblings was similar to Natalie's.
Father acknowledged missing a third of scheduled visits while out of custody, as recounted in the May 2010 social services report. He explained he had changed jobs, could not drive, and had to wait for buses. When he was "in the streets," he visited twice a week for two hours each time. Most visits included all the children. He brought food, read to the girls, and played with them. Natalie would run to him and made him art or craft presents. She "has a very strong heart" for him, and always looked forward to his next visit. Natalie called him "dad," and Sarah called him "daddy." But father felt badly when Sarah called her foster parent "daddy[] Randy" during a visit and looked to him for support. Later, Sarah recognized father as her "real daddy" or "daddy no. 1." He recalled one visit where Sarah fell off a slide, and sought him out for comfort. He also recalled Sarah announcing she wanted to stay with him and not go home with the foster father.
After he was incarcerated in July 2010, the girls visited once a week. A glass barrier separated him from the girls, but Sarah always ran to the phone to be the first to grab it. The girls performed dance moves and sang for him. Sarah wanted to go behind the glass and hug him. Natalie said, "'[H]i dad, I love you,'" and he and the girls talked about everyday occurrences. Natalie wanted to come home, was tired of living with the foster parents, and complained about not seeing Monique and her brothers.
Father acknowledged the girls were developing a bond with the foster parents. He wanted what was best for his girls, but sought to retain his parental rights and did not want the girls adopted. He planned to return to the United States and was concerned about the girls "keeping in communication with their brothers and sisters . . . ."
Mother testified Natalie lived with her older siblings most of her life, until SSA placed her with the foster parents. When mother visited with the younger girls a week earlier, they asked about their older siblings. The children were strongly bonded and "it will never change." The court had modified her restraining order and authorized monthly visits (two hours), but she only visited the girls twice. Mother felt the younger girls should not be separated from their older siblings because "they've always been together, and if they separate them, Natalie will really be heart-broken." Mother believed the foster parents would allow Natalie and Sarah to maintain contact with their siblings.
A visitation monitor testified father acted appropriately during jail visits with the girls. Both girls looked forward to seeing their father, and appeared happy before and during visits, but were generally happy to leave afterwards. Both girls expressed affection and love for their father. Natalie sometimes felt sad because she had difficulty in competing with the older siblings for her father's attention. Natalie's interaction with her older siblings varied: sometimes she was happy, other times she appeared upset. The girls showed affection toward their older siblings, regularly hugging and touching during visits. Sarah said she missed her "sisters." Neither girl expressed a desire for more visits with their father or siblings, or to visit outside of the jail setting. The girls referred to father as "dad" or "daddy" or "papi."
Natalie, nearly eight years old, testified in chambers that her "dad," the foster father, brought her to court. She felt good living with her foster parents, and there was nothing about it she did not like. She wanted to stay there forever, or at least until she was 18. She visited father twice a week, on Tuesdays and Thursdays. Sometime her older siblings joined in the visits at the jail. She expressed little interest in whether her siblings joined her in visiting father and initially stated she did not care if she saw them more often. But she also said she would like to see them once a week. Her favorite sibling was Sarah. She would be "okay" if she was not able to visit her father and older siblings every week, but she would like to see them and sometimes wished they lived with her. She would be sad if she could not see her parents or older siblings anymore, and wished she had been able to visit their parents during the holidays. She liked doing Monique's hair and makeovers. Her older siblings told her to be smart, and to keep her desk clean. Among her older siblings, she felt closest to Joseph. They talked about what they did when they were younger, and she recalled how they walked across the street together to get free donuts when they lived with their parents. She liked living with her parents and would miss them if she could not see them anymore. She recalled crying once when she was six because she missed her mom. She liked talking to father, usually about sports or school, and felt she could tell him anything.
In February 2011, the juvenile court terminated parental rights. The court found Natalie and Sarah were adoptable and that termination of rights would not be detrimental notwithstanding parental and sibling relationships.
II
DISCUSSION
A. The Juvenile Court Did Not Err in Finding the Benefit Exception Inapplicable
Father contends the juvenile court should have declined to terminate parental rights because the evidence demonstrated the children would have benefitted from continuing their relationship with father. Section 366.26 provides that after reunification efforts have failed and the court finds the child is likely to be adopted, "the court shall terminate parental rights" (§ 366.26, subd. (c)(1)) unless specified circumstances exist. One exception is where "[t]he court finds a compelling reason for determining that termination would be detrimental" because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, (c)(1)(B)(i).) A parent may avoid termination of parental rights only if the parent has maintained regular contact and visitation with the child, and the child would benefit from continuing the relationship. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1007 (Valerie A.).)The conjunctive phrasing of the statute imposes a mandatory duty on courts not to apply the benefit exception unless a parent has satisfied both prongs. (In re Amanda D. (1997) 55 Cal.App.4th 813, 821.) "[T]he burden is on the party seeking to establish the existence of one of the section 366.26, subdivision (c)(1) exceptions to produce that evidence." (In re Megan S. (2002) 104 Cal.App.4th 247, 252 (Megan S.).)
Each parent adopts the arguments made by the other. (Cal. Rules of Court, rule 8.200(a)(5).)
The juvenile court found father did not maintain regular visitation and contact with Natalie and Sarah: "[T]he evidence showed that [father] did make all of his visits since May 2010. At first blush, it might appear that [he] met his burden [to maintain regular visitation and contact]. However, [he] was incarcerated since May 2010. Given his incarceration, and the fact that the [children] were brought to him at the jail, the court discounts this evidence. Of more significance is [his] pattern of visitation while he was out of custody, and more importantly, when he had the freedom of choice either to make visits or not." The court noted father missed 13 of 36 visits, and that "he offered a variety of reasons . . . . , including . . . that he was concerned about being rearrested . . . . [T]he court cannot overlook the fact that when he was available and free, he made the conscious decision to miss [the] visits. On this record, the court finds [he] failed to meet his burden of showing regular visits or contact . . . ."
Father asserts the juvenile court erroneously discounted the jail visits with his children, citing statutes requiring visitation for incarcerated parents (§ 361.5, subd. (e)(1)(C); see also § 366.21, subd. (h) [continuing visitation even after termination of reunification services].) He complains the court ordered visits while he was incarcerated, but "when it came time to weigh the results, the court declared the process legally insignificant, or at least less significant." He also contends "there seems to be no authority for the notion that a parent fails the standard when he exercises 63 percent of his visits," many of the missed visits occurred in April 2010, but he was "largely consistent in his visits before experiencing serious difficulties in April and eventually becoming incarcerated." He also complains the court overlooked a lengthy history where he was largely consistent in his visitation and committed to his children despite significant difficulties.
Father's arguments essentially challenge the sufficiency of the evidence to support the trial court's decision. (In re C.F. (2011) 193 Cal.App.4th 549, 553 (C.F.).) "„On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.' [Citation.]" (Ibid.)
Generally, sporadic visitation is insufficient to satisfy the first prong of the parent-child relationship exception to adoption. (C.F., supra, 193 Cal.App.4th at p. 554; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) Between December 2009 and May 2010, father missed 13 of 36 visits with the children, often without providing notice. By this point, father was living with a girlfriend and her children. Asked why he missed a visit, father stated "I have a life." Given father's record of visitation and contact while out of custody, and his reasons for missing visits, the juvenile court could reasonably classify father's visits and contact as sporadic, and thus substantial evidence supports the juvenile court's finding on this prong. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 450.)
But assuming for the sake of argument father's visitation and contact was regular, the second prong of the test requires the child "benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The benefit exception "does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.).) To the contrary, once the mandated period for reunification has passed the parent bears the burden of proving that termination of parental rights will be detrimental to the child. (Id. at p. 1350.) After reunification efforts end, the Legislature's preferred permanent plan calls for termination of parental rights and subsequent adoption. (In re Jose V. (1996) 50 Cal.App.4th 1792, 1799; In re Cody W. (1994) 31 Cal.App.4th 221, 227-231.) "Adoption is the Legislature's first choice because it gives the child the best chance at . . . commitment from a responsible caretaker. [Citations.]" (In re Jasmine D., supra, at p. 1348.) Thus, the benefit prong of section 366.26, subdivision (c)(1)(B)(i), is satisfied only if "the relationship 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 Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.) "In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) The court's balancing of competing considerations must be performed on a case-by-case basis, taking into account variables such as the child's age, "'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. [Citation.] . . .'" (Jasmine D., supra, 78 Cal.App.4th at pp. 1349-1350; Autumn H., at pp. 575-576.)
We will not disturb the juvenile court's balancing of interests unless no substantial evidence supports it (In re Cliffton B. (2000) 81 Cal.App.4th 415, 425), or the court abused its discretion (Jasmine D., supra, 78 Cal.App.4th at p. 1351; see In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 [substantial evidence standard of review applies to existence of a beneficial parental or sibling relationship; abuse of discretion standard applies to whether existence of relationship constitutes a compelling reason for determining that termination would be detrimental]; see In re C.B. (2010) 190 Cal.App.4th 102, 123 (C.B.) ["'the trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious'"].)
Father contends his "relationship with Natalie and Sarah displays exactly the qualities that courts have looked for in parent-child interactions." He complains the juvenile court erred in characterizing the relationship as "more friendship than that of parent-child." Father notes SSA did not remove Sarah from his and mother's care in August 2007, finding she was well cared for, and that Natalie's first request when she was removed from the paternal grandmother's home was to live with her father. The social worker found he was appropriately parental in caring for and interacting with the children. He cites statements by social workers at various times that Natalie was happy, content, and attached to her parents. Father complains the court erroneously focused on the "amount of time father had custody of the children, rather than on the parental bond between them." (See In re Casey D. (1999) 70 Cal.App.4th 38, 52 [beneficial relationship can arise without daily contact].) He also notes the social worker in her initial written report for the section 366.26 hearing recommended continued visitation with the parents and paternal grandmother as "the children all have a connection and state they are close . . . ."
The juvenile court acknowledged the parents loved their children and the children reciprocated, but noted "ample evidence" demonstrated the parents were "largely absent during" their children's lives. The court recounted father's history of incarceration, the brief periods when father actually lived with the children, and concluded the "evidence clearly demonstrates that neither [parent] had a long, continuous parental relationship with either Natalie or Sarah."
The court found "the strength and quality of Sarah's relationship with her parents was "not very good." The court observed Sarah, who lived out of her parents' home for more than half her young life, displayed "hesitancy and reluctance" during initial visits, and appeared more bonded to the foster parents. The court found the parents had not occupied a parental role, and termination of parental rights would not deprive Sarah of a substantial, positive emotional attachment. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108; Autumn H., supra, 27 Cal.App.4th at p. 575.)
The juvenile court noted Natalie had "a stronger bond with" father than Sarah, and wanted to "share some of her accomplishments" with him. She testified she would be sad if she could not see her parents anymore. She liked talking to father and felt she could tell him anything, and wished she had seen her parents over the recent holidays. But the juvenile court cited the visitation monitor's testimony that while the girls enjoyed their visits, they were generally happy to leave afterwards, and did not express a desire for more visits with their father or siblings, or to visit outside of the jail setting. Also, Natalie referred to her foster father as "dad" at the section 366.26 hearing, looked to the foster parents to fulfill her needs, stated she felt good living with the foster parents, and there was nothing about it she did not like. Natalie expressed her desire to live with her foster parents forever, or at least until she turned 18.
The foregoing facts amply support the trial court's conclusion the potential benefits of adoption outweighed maintaining the existing parental relationship. Father's sporadic presence in his daughter's lives, evidence the girls were thriving in a foster home where they had been living for more than 18 months, and Natalie's statements and testimony indicated that while she might be dejected not to see father again, she would not suffer substantial detriment or harm if the parental relationship was severed.
Father's reliance on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.) is misplaced. There, the juvenile court found father had maintained consistent and appropriate visitation with his daughter throughout the dependency proceedings and they shared an emotionally significant relationship. (Id. at p. 298.) The father had been S.B.'s primary caretaker for three years and, when she was removed from his custody, the father complied with every aspect of his case plan. (Ibid.) The record showed that "S.B. loved her father, wanted their relationship to continue and derived some measure of benefit from his visits." (Id. at pp. 300-301.) An expert who had conducted a bonding study of father and daughter testified that, due to their "'fairly strong'" bond, "there was a potential for harm to S.B. were she to lose the parent-child relationship." (Id. at pp. 295-296.) The appellate court concluded that "[b]ased on this record, the only reasonable inference is that S.B. would be greatly harmed by the loss of her significant, positive relationship with [the father]. [Citation.]" (Id. at p. 301; see also In re Amber M. (2002) 103 Cal.App.4th 681, 689-691 [termination of parental rights reversed where experts opined children had a primary beneficial relationship with parent that clearly outweighed benefit of adoption]; In re Scott B. (2010) 188 Cal.App.4th 452 [court found compelling reason to reverse order terminating parental rights where nine-year-old child had consistent weekly visits with mother, and court appointed special advocate that found disrupting the close mother-daughter relationship would prove detrimental to an emotionally vulnerable child who repeatedly insisted on living with her mother].)
Here, the evidence of potential detriment does not require reversal of the judgment. There was no testimony from a psychological expert or other disinterested person suggesting termination of parental rights would be detrimental. (C.B., supra, 190 Cal.App.4th at p. 125.) As stated in In re Jason J. (2009) 175 Cal.App.4th 922, the same appellate court that decided S.B., "The S.B. opinion must be viewed in light of its particular facts. It does not, of course, stand for the proposition that a termination order is subject to reversal whenever there is 'some measure of benefit' in continued contact between parent and child." (Jason J., at p. 937.)
Finally, father notes the social worker's testimony she felt the prospective parents would allow parental visits after adoption factored into her detriment analysis, and argues this was "troubling because a prospective adoptive parent's unenforceable promise to continue visits should not be considered when determining if parental rights should be terminated." (S.B., supra, 164 Cal.App.4th at p. 300.) The social worker, however, testified she would recommend termination of parental rights even if the adoptive parents would not allow parental visitation. More importantly, nothing suggests the juvenile court relied on the foster-adoptive parents' intent to continue visits in determining whether to terminate parental rights.
In sum, the evidence reflects at most "some benefit" in maintaining father's relationship with Natalie and Sarah. The evidence in this case therefore did not show the father-daughter relationship outweighed the well-being gained in a permanent home with adoptive parents. B. The Juvenile Court Did Not Err in Finding the Sibling Relationship Exception Inapplicable
Mother argues (see ante, fn. 2) the court abused its discretion by freeing Natalie and Sarah for adoption because they "were bonded to their older siblings . . . to such a degree that their separation was detrimental."
As noted above, section 366.26 provides that after reunification efforts have failed and the court finds the child is likely to be adopted, "the court shall terminate parental rights" (§ 366.26, subd. (c)(1)) unless specified circumstances exist. The court may not terminate parental rights where "[t]here 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." (§ 366.26, subd. (c)(1)(B)(v).)
"Reflecting the Legislature's preference for adoption when possible, the 'sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a "compelling reason" for concluding that the termination of parental rights would be "detrimental" to the child due to "substantial interference" with a sibling relationship.' [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. [Citation.]" (In re Celine R. (2003) 31 Cal.4th 45, 61 (Celine R.); C.B., supra, 190 Cal.App.4th at p. 129.) The focus is on the best interests of the child being considered for adoption, not on the interests of the child's siblings. (In re Naomi P. (2005) 132 Cal.App.4th 808, 822.) The application of this exception is rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount. (Valerie A., supra, 152 Cal.App.4th at p. 1014; In re L.Y.L. (2002) 101 Cal.App.4th 942, 950.) The burden rests on the party seeking to establish the exception. (Megan S., supra, 104 Cal.App.4th at p. 252; In re Daniel H. (2002) 99 Cal.App.4th 804, 813.)
Here, it was undisputed the children, especially Natalie, had lived with the older siblings for much of their lives, had common experiences, and shared a close relationship. As far back as 2008, the social worker had noted the "strong family relationship among the children . . . ." But Natalie and Sarah were separated from the older siblings in April 2009, and by the section 366.26 hearing date, they had lived apart from their siblings for 21 months without evident distress. Although the girls previously reported they missed living together as a family, even when it was "'crazy,'" the girls subsequently "connected very strongly" with the foster family, who observed the older children seemed to enjoy sibling visits more than Natalie and Sarah.
Thus, the juvenile court found the girls did have a bond with their older siblings, but these ties were not strong enough to harm the girls if severed. Substantial evidence supports the court's conclusion. The social worker testified Sarah was not strongly bonded to her older siblings given she had fewer opportunities to interact with them at her young age. Natalie felt closer to her older siblings, but her strongest bond was with Sarah. She periodically voiced a desire to see her siblings, but testified she did not care whether they joined her in visiting father. She also expressed indifference about seeing her siblings more often.
The record therefore supports the juvenile court's finding that assuming a significant relationship existed between the girls and their older siblings, severance of these ties would not be detrimental, and the benefits of legal permanence through adoption outweighed the benefits in maintaining ongoing contact. Accordingly, the court could reasonably conclude Natalie and Sarah's best interests were served by the permanency of adoption. (Valerie A., supra, 152 Cal.App.4th at pp. 1013-1014.) C. No Error in Counsel Representing Both Natalie and Sarah at Section 366.26 Hearing
A determination the sibling relationship exception is inapplicable does not necessarily prevent postadoption sibling contact. (See Fam. Code, § 8616.5; § 366.26, subd. (a); see also § 366.3, subd. (g)(7) [report for section 366.3 hearing after termination of parental rights must include "[w]hether the final adoption order should include provisions for postadoptive sibling contact pursuant to Section 366.29"]; § 366.29, subd. (a) ["With the consent of the adoptive parent or parents, the court may include in the final adoption order provisions for the adoptive parent or parents to facilitate postadoptive sibling contact"].) The foster parents repeatedly stated they favored continued contact with the siblings if they adopted the girls.
For the first time on appeal,mother argues the juvenile court should have pointed separate counsel at the section 366.26 hearing because Natalie and Sarah held conflicting positions concerning the best permanent plan. Mother asserts Natalie's bond with her older siblings was stronger than Sarah's because Natalie had lived with the older children longer and "shared several common experiences, including dealing with [mother's] substance abuse struggles and encountering physical abuse . . . ." The parents contend preservation of the sibling bond "was a critical component of Natalie's stability and emotional health" and a plan of legal guardianship rather than adoption appeared to be the best plan for Natalie, "which would have allowed her to continue in her desired placement with the prospective adoptive parents and Sarah, while at the same time assuring she maintained contact with her older siblings." They argue "minors' attorney was required to take action to serve the 'best interests' of Sarah [arguably adoption], but was unable to do so without violating a duty owed to Natalie."
SSA responds the parents forfeited the issue by failing to raise it in the juvenile court. The parents reply the juvenile court's duty to appoint conflict-free counsel under section 317 "should not require any prompting by the parent to trigger its application." Generally, the failure to raise an objection in the juvenile court forecloses review on appeal. (See In re Heidi T. (1978) 87 Cal.App.3d 864, 876 [parent did not object to trial court's failure to appoint counsel for minors].) We address the issue to forestall any claim trial counsel performed ineffectively, and because it lacks merit in any event.
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A primary responsibility of court-appointed minors' counsel is "to advocate for the protection, safety, and physical and emotional well-being of the child." (§ 317, subd. (c).) Counsel must not represent another party "whose interests conflict with the child's interests." (Ibid.) "[C]ounsel's paramount duty is to serve the minor's best interests, rather than the minor's wishes. . . ." (In re Zamer G. (2007) 153 Cal.App.4th 1253, 1265 (Zamer G.).)
California Rules of Court, rule 5.660(c)(1)(A), provides, "The court may appoint a single attorney to represent a group of siblings involved in the same dependency proceeding." A separate attorney should be appointed where "[a]n actual conflict of interest exists among those siblings; or [¶] (ii) Circumstances specific to the case present a reasonable likelihood that an actual conflict of interest will arise among those siblings." (Cal. Rules of Court, rule 5.660(c)(1)(B).) The rule sets forth circumstances that, standing alone, do not necessarily demonstrate an actual conflict of interest or a reasonable likelihood that an actual conflict of interest will arise: the siblings are of different ages; the siblings have different parents; there is a purely theoretical or abstract conflict of interest among the siblings; some of the siblings appear more likely than others to be adoptable; the siblings may have different permanent plans; the siblings express conflicting desires or objectives, but the issues involved are not material to the case; or the siblings give different or contradictory accounts of the events, but the issues involved are not material to the case. (Cal. Rules of Court, rule 5.660.)
In Celine R., supra, 31 Cal.4th 45, the Supreme Court discussed the circumstances requiring separate counsel for siblings. The court concluded the juvenile court "may appoint a single attorney to represent all of the siblings unless, at the time of appointment, an actual conflict of interest exists among them or it appears from circumstances specific to the case that it is reasonably likely an actual conflict will arise. After the initial appointment, the court must relieve counsel from the joint representation when, but only when, an actual conflict of interest arises." (Id. at p. 50; see also Zamer G., supra, 153 Cal.App.4th at p. 1264 [this holding "was codified and expanded upon in California Rules of Court, rule 5.660(c)"].)
As noted above, after reunification efforts end, the Legislature's preferred permanent plan becomes termination of parental rights and subsequent adoption. (In re Jose V. (1996) 50 Cal.App.4th 1792, 1799; In re Cody W. (1994) 31 Cal.App.4th 221, 227-231.) "Adoption is the Legislature's first choice because it gives the child the best chance at . . . commitment from a responsible caretaker. [Citations.]" (Jasmine D., supra, 78 Cal.App.4th at p. 1348.) Where the child is likely to be adopted, the court must terminate parental rights unless "the court finds a compelling reason for determining that termination would be detrimental to the child . . . ." (Id. at p. 1343.)
Here, adoption was in the best interests of both girls. As explained above, minors' counsel may have reasonably determined neither girl was likely to suffer detriment from termination based on parental and sibling relationships. Thus, counsel could responsibly advocate on behalf of both girls because their best interests did not conflict. (Zamer G., supra, 153 Cal.App.4th at p. 1266.)
Neither case cited by the parents supports the notion Natalie and Sarah required separate counsel. In In re Barbara R. (2006) 137 Cal.App.4th 941 (Barbara R.), one of the parent's two daughters was subject to the Indian Child Welfare Act. The 11-year-old girl with Indian ancestry desired adoption by her caretakers, her four-year-old half sister's paternal grandparents, but adoption entailed the possible loss of substantial tribal financial and cultural benefits. At the section 366.26 hearing, minors' counsel objected to any evidence concerning the older girl's tribal interests and rights as not relevant to the issues involved in a section 366.26 proceeding. The court rejected mother's contention the siblings had divergent interests creating an actual conflict requiring separate counsel. The appellate court concluded the girls did not have adverse interests because both girls were attached to each other and emotionally invested in adoption by the grandparents, who had committed to adopting them.
In Zamer G., supra, 153 Cal.App.4th 1253, the agency removed five children, fathered by three different men, from the home based on physical abuse by the stepfather's physical abuse of his three stepchildren. The court appointed a single attorney for the noninjured stepchildren and the stepfather's two natural children. The stepfather asserted there was a conflict "because [the stepchildren] allegedly had been abused by" the stepfather and presumably would testify against him, and the minors' attorney volunteered he had received confidential information from the stepchildren. (Id. at p. 1261.) The appellate court affirmed the juvenile court's order disqualifying minors' counsel. The court noted held the juvenile court reasonably found an actual conflict existed between the stepchildren and the natural children because the stepchildren provided statements relating to the stepfather's abuse of the stepchildren, and to advocate reunification services for the natural children, minors' attorney would have to dispute the accuracy or reliability of the statements made by the stepchildren.
Neither Barbara R. nor Zamer demonstrate the lawyer representing Natalie and Sarah had an actual conflict. The best interests of both girls required counsel to argue for adoption. In pursuing this goal, counsel was not faced with the prospect of harming one client by advocating for the other, as in Zamer G. Simply put, there was no evidence of an actual conflict of interests between Natalie and Sarah requiring separate counsel.
III
DISPOSITION
The order terminating parental rights is affirmed.
ARONSON, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
FYBEL, J.