Opinion
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. JVSQ 06-6144
RUVOLO, P. J.
After prolonged, intermittently successful efforts to reunify the family of the minor in this case, the dependency court ultimately terminated the parental rights of the minor’s mother and father. A permanent plan for the minor’s older half-siblings had not yet been selected at the time of the hearing. However, the minor’s foster parents were prepared to adopt not only her, but also her half-sister, and possibly her half-brother as well.
On appeal from the order terminating their parental rights, the minor’s parents contend that the hearing should have been continued; that the counsel who represented all of the children rendered ineffective assistance due to a conflict of interest; that their parental rights should not have been terminated due to the risk that this would result in severing the minor’s bond with her half-siblings; and that there was insufficient evidence of the minor’s adoptability. We reject all of these contentions, and affirm the dependency court’s order.
Facts and Procedural Background
The dependency proceedings underlying this appeal began on June 5, 2006, when respondent Del Norte County Department of Health and Human Services (the Department) filed petitions alleging that Toni C., born in February 2000 (the minor), and her two older half-siblings, D.S. and H.S. (collectively the minor’s siblings), should be declared dependents of the court under Welfare and Institutions Code section 300, subdivisions (b) and (j). The petition as to the minor alleged that the parents had substance abuse and domestic violence problems that were endangering the lives and welfare of the minor and her siblings. When the petition was filed, the minor was six years old; D.S., a boy born in January 1995, was eleven years old; and H.S., a girl born in April 1997, was nine years old. The Department had investigated several prior alleged instances of neglect by the minor’s parents since June 2002, but this was apparently the first formal dependency petition. The dependency court expressly recognized, from the outset of the proceedings, that the minor and her siblings were bonded with one another and should not be split up.
The minor’s siblings have a different biological father, K.S., who did not take an active part in the siblings’ lives or in the dependency proceedings, and is not a party to this appeal. On September 29, 2006, the dependency court found that the minor’s father was a de facto parent of the minor’s siblings.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
Because this appeal involves only the termination of parental rights stage of the proceedings, we will not narrate the children’s two-and-one-half-year odyssey through the dependency system in detail. Suffice it to say that the results of the reunification services provided to the minor’s parents were intermittently promising, but reunification was ultimately unsuccessful. As a result, during the prolonged period between the filing of the petition and the termination of the minor’s parents’ parental rights, the minor and her siblings were returned to the custody of the minor’s parents, or to father alone, and then removed again. Meanwhile, in October 2006, mother had another son, J.C. (the baby), who had a different biological father from both the minor and her siblings.
We will refer to all four children collectively (that is, the minor, her siblings, and the baby) as the children. A separate dependency case was apparently filed with respect to the baby. The baby’s biological father is not involved in this appeal.
As relevant to the issues on appeal, by the time of the section 366.26 hearing as to the minor, which occurred on November 25, 2008, the minor’s history and situation were as follows: The minor had lived with her siblings for the first six years of her life, and had been placed together with them, or at least with H.S., during most of the dependency proceedings. A single attorney (the children’s counsel) had represented all of the children throughout the dependency proceedings. Since May or June 2008, the minor and H.S. had both been living with the same set of foster parents (the foster parents) who wanted to adopt them both. Although the two girls had only been placed with the foster parents for five months, they had known them as friends of the family for six years, and had a secure relationship with them. On July 9, 2008, reunification services had been terminated, and the section 366.26 hearing had been set.
D.S., now 13 years old, had been living with a relative until shortly before the hearing, but joined the minor and H.S. in the home of the foster parents the day before the section 366.26 hearing because of the relative’s failing health. The baby, now 2 years old, was with different foster parents, who were prepared to adopt him. The minor had been afforded frequent visitation with her siblings and the baby, and somewhat less frequents visits with her parents, or just with father.
The report prepared by the Department for the section 366.26 hearing indicated that the foster parents were willing to support the minor and H.S. in maintaining contact with D.S. and the baby after the adoption, and the caregivers for D.S. and the baby were also willing to cooperate in keeping the siblings in contact. H.S. was happy in the foster parents’ home and wanted to be adopted by them, but the minor was still ambivalent about the idea.
The Department’s recommendation, which was supported by the California Department of Social Services (DSS), was that the minor and H.S. be adopted together by the foster parents. DSS was of the opinion that removing the minor and H.S. from the home of the foster parents would be “seriously detrimental to [their] well being.” DSS’s adoption report noted that due to the children’s different ages and different histories with mother and father, there was a “stressful dynamic” when all of the children were together, which would have to be considered when creating a post-adoption contact agreement. Despite this difficulty, the foster parents were willing to enter into such an agreement.
On November 14, 2008, the Department informed the court that its efforts to give proper notice of the section 366.26 hearing to the biological father of the minors’ siblings had been unsuccessful. As a result, the hearing was continued as to H.S., and on November 25, 2008, the section 366.26 hearing was held for the minor only. Mother was not present, because she was ill. She had not yet been to the doctor, however, and had not provided her counsel with medical documentation, despite his admonition that the court would require it. In addition, she had been in the vicinity of the courthouse earlier that day. As a result, the court denied mother’s counsel’s request to continue the matter.
Father explained in his testimony, later in the hearing, that he had not been able to take mother to the doctor the day before because he did not have his car, and mother could not drive because her license was suspended. They had been at the courthouse earlier, even though mother was ill, so that mother could make her mandatory weekly appearance at drug court and avoid being incarcerated for missing it.
At the hearing, the court took testimony from Tedee-Ann Boylan, an adoption specialist who had performed the adoption assessment regarding the minor on behalf of DSS. Boylan was aware that D.S. had been moved into the same foster home with the minor and H.S. only a day before the hearing, but that did not change her recommendation that the minor be adopted by her current foster parents. She noted that even before the move, D.S. had been spending time at the foster parents’ home after school while his caregiver was at work, and was good friends with the foster parents’ biological son. Boylan believed there was a serious possibility that the foster parents would adopt D.S. as well as the minor and H.S., and that this outcome would have value if it could be worked out. She acknowledged that D.S. had some behavioral issues that needed to be worked out, but stated that he seemed to want to remain with the foster parents. She also confirmed that if D.S.’s behavioral issues could not be addressed satisfactorily, he probably would not be able to remain with H.S. and the minor, even in a different home from that of the current foster parents. D.S. had told her that if he could not stay with the foster parents, he would want to go to his paternal grandparents’ home. Boylan was confident that because the paternal grandparents were family members, they would cooperate in maintaining contact among the siblings even if they ended up in separate homes.
Boylan recounted that when she asked the minor whether she understood what adoption was, the minor responded that she wanted to stay with the foster mother, where she could “come home to a nice clean house” and have “nice things” such as bedding and toys. The minor also told Boylan that she had known the foster mother since she was two years old, and felt safe with her, whereas she had not felt safe with her biological parents because of their domestic violence and her mother’s drinking. Because of mother’s and father’s significant history of substance abuse and domestic violence, and the resulting instability, Boylan believed that the permanency provided by adoption would benefit the minor and her siblings.
The minor’s social worker, Georgia England, explained that the minor had told her that the foster parents had been friends of her family for a long time. The foster parents had pulled back from mother and father during the last couple of years due to some turmoil between the two couples, but had maintained contact with the minor and her siblings, who had often gone to the foster parents’ home even before the minor and H.S. were placed there. England testified about her observations of the minor’s interactions with the foster mother, which led England to believe that the two had a “very mutual” connection. The minor appeared to be very happy to be a part of the foster family, and had benefited greatly from the stability, security, and routine in the foster home. England opined that adoption by the foster family, as recommended by DSS, would be “an absolutely wonderful fit” for the minor, and was likely to occur. England could not think of a better placement for the minor, especially since the older relative who had initially expressed willingness to care for her was no longer able to do so due to failing health.
On cross-examination, England clarified the statement in her November 13, 2008 report regarding the minor’s ambivalence about being adopted. England explained that this did not indicate that the minor had any objection to the foster parents, but rather that due to her age, she could not quite comprehend that her hopes of reuniting with mother and father were not realistic. More recently, after having “some time to process this,” the minor had indicated to England that she did, in fact, want to be adopted.
Father testified that he believed it was important for the children to maintain their relationship with him because he was their father and they loved him, and with mother because she was “pretty much everything” to them and “[t]hey want their mother.” He opined that mother had “a lot of charisma with children” and “ha[d] been a very good mother at times, very caring.” He acknowledged, however, that there were “relationship problems”; that “the verbal and emotional abuse” was a “negative thing”; and that mother had not seen the minor since mother was most recently released from jail. A planned visit the day before had been cancelled because mother and father were “both pretty well mentally upset [and] distraught,” and did not think the children would like seeing them in that condition.
Father testified that he also believed the minor and her siblings, having grown up in the same house, should maintain their relationship with one another. He did not know whether or not the foster parents were interested in maintaining the sibling relationships. He loved his daughter, and believed that he had complied with his case plan with the exception of “two minor mistakes,” and therefore did not think his daughter should be adopted.
The children’s counsel represented to the court that on the preceding Friday, she had spoken with the minor, and the minor had surprised her a little by being “so definite... that she was going to be adopted.” The minor had told the children’s counsel that she understood adoption to mean that she would live with the foster mother until she was 18 years old. In argument, the children’s counsel stated that she “support[ed] keeping these children together because they are the only family each other has for sure,” and that “it appear[ed] that is likely to happen,” unless it proved necessary to separate them because of the problems with D.S. She averred that it was in the minor’s best interest to be freed for adoption, and that for the court to adopt “the goal of keeping these children together no matter what,... would be denying each child what that child needs... considered as an individual....”
Father’s counsel reiterated his request that the court defer the proceedings regarding the minor pending the resolution of the proceedings as to her siblings. He acknowledged, however, that there was “a good chance that adoption [would] protect these children[’]s sibling relationship,” and that the evidence indicated that if the foster parents proved unwilling to adopt D.S., that would probably be because of the problems with his interaction with his sisters, which would probably entail separating him from them in any event.
At the conclusion of the section 366.26 hearing, the dependency court expressed strong hopes that the minor and her siblings would retain their relationship into the future. Nonetheless, the court concluded that after considering the factors set forth in section 366.26, and specifically the exception under section 366.26, subdivision (c)(1)(B)(v) (the sibling relationship exception), there was no compelling reason that termination of parental rights would be detrimental to the minor. The court entered an order terminating mother’s and father’s parental rights as to the minor; declaring her permanent plan as placement with the foster parents with the goal of adoption; and ordering visitation between the minor and the other children, to be arranged by the children’s respective caregivers. Mother and father each appealed, raising different but overlapping issues.
Discussion
Denial of Continuance
At the section 366.26 hearing, father’s counsel moved to “suspend the hearings” because of the new information that D.S. had just been moved into the home of the foster parents who had been caring for, and sought to adopt, the minor and her sister H.S. Counsel noted that he would have no objection to the foster family ultimately adopting all three children together, but was concerned that if the section 366.26 hearing went forward as to the minor alone, without first ensuring that D.S. was willing to be adopted into the same family, there would be a “danger of severing [the minor] from her two siblings...,” who had all grown up together in the same household. With the court’s permission, father stated that D.S. did not like the foster mother, and that the minor and H.S. “always get in fights” when D.S. is with them. Mother’s counsel joined the motion, but none of the other counsel present supported the motion, and the court denied it. On appeal, father contends that this was error.
As father acknowledges, continuances in dependency proceedings are disfavored, and we review the lower court’s ruling on a motion to continue a hearing for abuse of discretion. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.) In arguing that the court abused its discretion here, father relies on In re John M. (2006) 141 Cal.App.4th 1564. In that case, the dependency court declined to place the teenage minor with his nonoffending, noncustodial father, who lived in another state, primarily because the minor did not want to live with his father. The Court of Appeal reversed, holding that the record did not reflect clear and convincing evidence that placement with the father would be detrimental to the minor. The court also held that the dependency court erred in denying a continuance in order to permit the father to present more information about his circumstances, his ability to meet the minor’s needs, and the availability of services for the minor in the vicinity of the father’s home.
In In re John M., supra, 141 Cal.App.4th 1564, the father’s motion for continuance was made at a disposition hearing held only two months after the initiation of the dependency proceedings. Here, by contrast, the proceedings had been pending for two and a half years by the time of the section 366.26 hearing, and the Department, the children’s counsel, and the dependency court were all justifiably concerned that the minors be placed into a stable, permanent situation as soon as possible. In addition, at the disposition stage of a dependency proceeding, nonoffending, noncustodial parents such as the father in In re John M., supra, 141 Cal.App.4th 1564, have a statutory right to the custody of their children in the absence of a clear and convincing showing of detriment. (§ 361.2, subd. (a); see In re Isayah C. (2004) 118 Cal.App.4th 684.) In contrast, when a dependency court selects a permanent plan under section 366.26, termination of parental rights is the norm, and the sibling relationship exception applies only if the court finds “a compelling reason for determining that termination would be detrimental to the child” (§ 366.26, subd. (c)(1)(B)) due to “substantial interference with the child’s sibling relationship....” (§ 366.26, subd. (c)(1)(B)(v).) For both of these reasons, In re John M., supra, 141 Cal.App.4th 1564, is distinguishable.
Moreover, because of the specific circumstances of this case, terminating parental rights to the minor separately, at an earlier date, did not pose a significant threat of “substantial interference” with the minor’s bond with her siblings. The only obstacle to termination of parental rights as to H.S. and her adoption by the same foster parents as the minor was a technical procedural one, so the dependency court had ample reason to conclude that terminating parental rights as to the minor would not affect her bond with her sister. As for D.S., whether or not he ended up in the same home with the minor and H.S. depended on his behavior, and that issue would not have been affected by postponing the hearing. In addition, if the foster parents decided that D.S. could not remain with them, the plan was to place D.S. with relatives who were willing to enter into a post-adoption contact agreement in order to maintain the minor’s and her siblings’ relationships with one another. In short, we find no abuse of discretion in the denial of father’s motion to continue the hearing.
Ineffective Assistance of Counsel for Minors
As already noted, the children were all represented by the same attorney. At the section 366.26 hearing, the children’s counsel concurred in the recommendation of the Department and DSS that it would be in the best interests of the minor to terminate mother’s and father’s parental rights so as to free the minor for adoption by the foster parents.
On appeal, father argues that the children’s counsel had a potential conflict of interest from the start, and that this ripened into an actual conflict when the minor’s section 366.26 hearing occurred earlier than that of her siblings and the baby. Father contends that at that point in the proceedings, the dependency court should have appointed separate counsel for the other children, because the minor’s interest in being freed for adoption conflicted with the interest of the others, particularly the siblings, in preserving their sibling relationship with the minor. Thus, father contends, the children’s counsel was not in a position to advocate for the siblings’ best interests, because to do so would have entailed a violation of counsel’s duty to advocate for the minor’s best interests.
The law in this area is well established, and was analyzed extensively in In re Zamer G. (2007) 153 Cal.App.4th 1253 (Zamer G.). A minor’s right to appointed counsel in dependency proceedings is guaranteed by section 317. That statute also provides that the attorney appointed to represent the minor cannot also “represent another party... whose interests conflict with the child’s interests.” (§ 317, subd. (c).) “In In re Celine R. (2003) 31 Cal.4th 45..., the California Supreme Court construed the phrase ‘whose interests conflict with the child’s interests’ in section 317, subdivision (c) to refer to an actual—not a potential—conflict of interest. [Citation.]... ‘When first appointing counsel [for multiple siblings] in a dependency matter, the court may generally appoint a single attorney to represent all the siblings. It would have to appoint separate attorneys if, but only if, there is an actual conflict among the siblings or if circumstances specific to the case—not just the potential for conflict that inheres in all multisibling dependency cases—present a reasonable likelihood an actual conflict will arise. If these specific circumstances exist, the court should appoint separate counsel at the outset rather than await an actual conflict and the possible disruption a later reappointment may cause. After the initial appointment, the court will have to relieve counsel from multiple representation if, but only if, an actual conflict arises.’ [Citation.]” (Zamer G., supra, 153 Cal.App.4th at pp. 1263-1264, fn. omitted.)
“Courts and dependency lawyers applying the standard [for conflicts of interest in dependency proceedings] confront two problems. The first is determining whether the circumstances in a particular multisibling dependency case give rise to a conflict. In civil or criminal cases involving multiple representation, a conflict typically arises when the circumstances of a particular case present ‘a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by... the lawyer’s duties to another current client....’ [Citations.] The difficulty faced by counsel representing minors in dependency proceedings—particularly lawyers representing children who lack the maturity to understand the proceedings or to participate meaningfully in the representation—is that the paramount duty of counsel for minors is not zealously to advocate the client’s objectives, but to advocate for what the lawyer believes to be in the client’s best interests, even when the lawyer and the client disagree. [Citations.]” (Zamer G., supra, 153 Cal.App.4th at pp. 1264-1265, original italics.) “Because the primary duty of a dependency lawyer representing minor siblings is to advocate for the minors’ best interests, it is conceivable that a dependency lawyer would not face a conflict in circumstances that would likely present a conflict in the civil or criminal context.” (Id. at p. 1266, italics omitted.)
As the Zamer G. court went on to explain, under the standard applicable in dependency proceedings, “a conflict becomes ‘actual’ when an attorney’s duties of loyalty, confidentiality, and zealous advocacy require the attorney to take or to refrain from taking some action to serve the ‘best interests’ of one minor client, but the attorney is unable to do so without violating a duty owed by the attorney to another client; or when the attorney is unable independently to evaluate the best interests of each minor client because of the minors’ conflicting interests. [Citations.]” (Zamer G., supra, 153 Cal.App.4th at p. 1267.)
In the present case, while there may have been a potential conflict, particularly with regard to D.S., the minor’s older half-brother, the record does not indicate that it had ripened into an actual conflict as of the date of the section 366.26 hearing. For the reasons explained by the adoption worker, the social worker, and the children’s counsel, terminating mother’s and father’s parental rights was in the best interests of all of the children, and so was maintaining the sibling bond. Moreover, for the reasons stated ante in connection with the denial of father’s motion to continue the hearing, terminating parental rights to the minor separately, at an earlier date, did not pose a significant threat to the preservation of the sibling bond for any of the children.
Accordingly, under the specific circumstances extant at the time of the section 366.26 hearing, the children’s best interests did not conflict, and there was therefore no obstacle to the children’s counsel’s continued joint representation of all of them. Even if there had been such an obstacle, father has not demonstrated that the asserted conflict was prejudicial, i.e., that there is a reasonable probability that the outcome of the hearing would have been different if separate counsel had represented each minor. Given the length of time that the proceedings had been pending, and the minor’s pressing need for permanence and stability, it is not reasonably possible that separate counsel arguing on behalf of the siblings would have been able to convince the court not to terminate parental rights as to the minor, or to continue the section 366.26 hearing until a later date. (See In re Celine R., supra, 31 Cal.4th at pp. 60-61.)
Application of Sibling Relationship Exception
Mother and father both argue that their parental rights should not have been terminated because the dependency court should have rejected adoption as the minor’s permanent plan under the sibling relationship exception. The burden of establishing the applicability of this exception is on the party that opposes the termination of parental rights. (In re Megan S. (2002) 104 Cal.App.4th 247, 252.) 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. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952-953.) “[T]he court may reject adoption under [the] sibling relationship [exception] only if it finds adoption would be detrimental to the child whose welfare is being considered.” (In re Celine R., supra, 31 Cal.4th at pp. 49-50.) Our standard of review on this issue is substantial evidence. (In re L.Y.L., supra, 101 Cal.App.4th at p. 947.)
Here, the minor’s parents failed to meet their burden of showing that the sibling relationship exception applied. As already noted in connection with the arguments regarding denial of a continuance and the asserted conflict of interest on the part of the children’s counsel, the termination of parental rights as to the minor here did not pose a significant threat to the preservation of her relationship with her siblings. She had already been placed in the same household with her sister H.S., and it is clear from the record that the intent of the Department and the dependency court was that both girls would remain together in that home, and would ultimately be adopted by the same couple who were currently serving as their foster parents. The girls’ relationship with their brother D.S. was problematic, but the foster parents and the social worker intended to attempt to remedy that situation if possible. Even if those efforts were not successful, D.S. was likely to be placed with relatives who were willing and able to maintain contact between him and his siblings even after the adoption, and the foster parents supported that goal.
The dependency court was obligated to, and did, weigh the detriment to the minor posed by the risk of disruption to her sibling relationships against the minor’s interest in the permanency and stability afforded by adoption. (See In re Erik P. (2002) 104 Cal.App.4th 395, 402; In re L.Y.L., supra, 101 Cal.App.4th 942.) In the present case, the risk of detriment was low, and was clearly outweighed by the benefit to the minor of bringing an end, through adoption, to the disruption in the minor’s life caused by the lengthy history of the dependency proceedings. Accordingly, the dependency court’s determination that the sibling relationship exception did not apply in this case is supported by substantial evidence.
Evidence of Adoptability
Mother argues that the dependency court erred in terminating her parental rights because the record did not supply clear and convincing evidence of the minor’s adoptability. Specifically, mother contends that the willingness of the foster parents to adopt the minor was not sufficient, because they had not yet been approved as adoptive parents even for the minor, much less for the sibling group of which the minor was a member. Our standard of review on this issue is whether there is substantial evidence that would justify a reasonable trier of fact in finding clear and convincing evidence of the likelihood that the minor would be adopted. (§ 366.26, subd. (c)(1); In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
It is not disputed that the foster parents had known the minor and her siblings for most of their lives, had cared for the minor and her sister H.S. for five months, strongly wanted to adopt both of them, and had received preliminary approval from DSS as a suitable adoptive family. These facts distinguish this case from In re B.D. (2008) 159 Cal.App.4th 1218 and In re Asia L. (2003) 107 Cal.App.4th 498, on which mother relies. Moreover, in the present case, unlike in In re B.D., supra, the minor was already bonded with the foster parents, was happy in their care, and had benefited from her placement in their home. Although the minor was originally somewhat conflicted about being adopted by the foster parents, she had apparently come to terms with it by the time of the section 366.26 hearing, and her sister H.S., with whom the minor had lived most of her life, was unequivocal about her desire for this outcome.
Mother cites In re Jerome D. (2000) 84 Cal.App.4th 1200 for the proposition that the willingness of one identified family that is willing to adopt a child is not sufficient, in and of itself, to show adoptability. In the present case, however, the record is far from devoid of additional evidence supporting the dependency court’s finding. The reports from the Department and from DSS showed that both the minor and H.S. were in good health, and were on track developmentally and academically. The minor’s third grade teacher reported that she was “an average student, a hard worker, sweet and a joy to have in the classroom.”
This evidence was sufficient to justify a finding of clear and convincing evidence of adoptability, in the absence of some evidence casting doubt on the validity of that finding. Mother’s briefs point to no such evidence, except for the possibility that adoption would separate the minor from her siblings. This possibility is entirely speculative, especially with regard to the minor’s joint adoption with H.S. It is clear from the record that the only reason H.S. was not freed for adoption at the same time as the minor, and by the same family, was a procedural problem with notice to H.S.’s biological father. H.S.’s biological father had no relationship with her, however, and had never participated in the dependency proceedings. Thus, he was highly unlikely to present an obstacle to her eventual adoption.
Mother also relies on the fact that the minor’s older brother, D.S., had been placed with the foster parents so short a time before the section 366.26 hearing that the effect of this placement on the overall picture was not reflected in the Department’s section 366.26 report or in DSS’s preliminary adoption assessment. If anything, this recent change increased the likelihood that the minor’s adoption by the foster parents would maintain her sibling bond not only with her sister H.S., but with her brother D.S. as well. Moreover, even if D.S.’s placement with the foster parents ultimately did not work out, it was uncontroverted that they would still be willing to adopt the minor and her sister, and to maintain post-adoption contact between them and D.S. Accordingly, mother’s argument does not persuade us that the record lacks clear and convincing evidence of the minor’s adoptability.
Disposition
The order terminating parental rights as to the minor is affirmed.
We concur: SEPULVEDA, J., RIVERA, J.