Opinion
A131456
12-13-2011
In re G.A., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY Plaintiff and Respondent, v. G.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. OJ07008447)
Appellant G.M., mother of G.A., a six-year-old girl, seeks reversal of the trial court's order terminating her parental rights and approving the recommended plan of adoption regarding G.A. pursuant to Welfare and Institutions Code section 366.26.Mother argues the juvenile court erred by not applying the "parent-child relationship" and "sibling relationship" exceptions to termination of her parental rights, and by not providing G.A. with separate legal counsel from her two siblings. We affirm.
All statutory references herein are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
We summarize those facts relevant to the issues raised in this appeal.
The Section 300 Petition
In August 2007, a petition was filed pursuant to section 300 in Yolo County Superior Court alleging that G.A., then 22 months old, came within section 300, subdivision (b), based on mother's methamphetamine and marijuana abuse and failure to provide stable housing for G.A., and on father's substance abuse.
The record indicates mother began using drugs in early adolescence, sold and used methamphetamine by age 16, and used heroin and other drugs. She admitted to using methamphetamine during her pregnancy with G.A. in 2005 and tested positive for methamphetamine and THC before and after giving birth to her daughter Ge.A. in 2007. In July 2007, G.A., Ge.A., and J.M., mother's oldest daughter, were detained and placed in foster care.
Mother also has a son who lives with his father; they are not relevant to this case.
In October 2007, jurisdiction over the girls was sustained, the case was transferred to Alameda County, and mother entered a residential treatment program. Respondent, the Alameda County Social Services Agency (Agency), placed J.M. and G.A. in the home of J.M.'s paternal aunt and uncle, and Ge.A. was placed with a non-relative extended family member.
The Agency asserts, and mother does not contest, that the aunt is referred to in the record by two different names.
The Evidence of Sexual Abuse
Over the following months and years, J.M. and G.A. indicated that they were sexually abused; the three siblings also engaged in sexualized behaviors, including with each other. In late 2007 and early 2008, the aunt reported a number of statements and actions by J.M. and G.A. that indicated they had been sexually abused, including that J.M. and possibly G.A. had been molested by their maternal grandmother's boyfriend, that J.M. engaged in sexualized behaviors, and that both J.M. and G.A. heavily masturbated to the point that their vaginas were swollen and irritated. The aunt also reported that G.A. had told her that "bad people hurt me down there," "the really mean monster guys," and that G.A. placed toys inside her vagina at bath time. G.A. also told her that her mother once "[e]at her," and gave her a "raspberry" on her privates.
In the first quarter of 2008, J.M. told her therapist that she did not want to go back to live with her mother because she allowed bad men to touch her and would make her do bad things with men "for stuff." She identified "Uncle Jerm" and "Daddy Luis" as having kissed her on the lips, "humped" her, and physically abused her. She said her "Daddy George" was the only man who had sex with mother without wanting to have sex with her, and was adamant that she did not want mother to have sex with anyone so that she would not have to have sex too. She displayed aggression towards G.A., and said she had touched G.A.'s private parts in the bathtub. J.M. also told a child welfare worker that her private parts had been touched by her mother's ex-boyfriend, Luis, and Uncle Jerm. The worker also reported it was "likely" that J.M. had been molested by her maternal grandmother's boyfriend, William P.
During two interviews in the first quarter of 2008 with Abuse Listening, Interviewing and Coordination (CALICO), G.A. and J.M. did not disclose any sexual abuse. The Agency reported the CALICO investigation results were inconclusive, but that J.M. was expressing classical symptoms of some kind of chronic trauma, principally sexual abuse, and that both she and G.A. demonstrated a tendency towards sexualized behavior that was abnormal for children their age.
In April 2008, the court ordered that mother's visits with the children be reduced to twice a month, supervised, and the maternal grandmother was barred from contact without prior approval from the Agency. Reunification services were terminated as to father, but continued for mother.
Mother told the Agency that her mother's boyfriend, William P., had sexually abused her when she was a young child. She was not sure he lived with her mother but suspected he did, and did not know if he had molested anyone else. She identified George A. as G.A.'s and Ge.A.'s father, Luis as her ex-boyfriend and a heroin addict, and Uncle Jerm as Herman, her cousin's boyfriend.
In May 2008, the Agency reported J.M.'s therapist was concerned that J.M. might be developing Dissociative Identity Disorder because she talked in therapy through imaginary friends, and changed her character, appearance, carriage, and tone of voice when doing so. She disclosed that her mother had forced her to watch "humping" movies, and had her urinate in a cup, apparently for a drug test, and had been recently found masturbating on a soccer field.
The Section 342 Petition
In June 2008, the juvenile court found the following petition allegations, brought pursuant to section 342 by the Agency, to be true:
"Sometime in January 2008, J.M. was observed 'blinking her eyes, flipping her hair, and shaking her butt' at a man in a McDonald's restaurant;
"On or about January 7, 2008, after having difficulty sleeping, [G.A.] sat up in bed and stated 'that man that hurt me down there is my grandpa.' When the Child Welfare Worker asked the mother about this on or about February 4, 2008, she disclosed that she, too, was sexually molested by the maternal grandmother's boyfriend when she was a child, and that the maternal grandmother is now married to him;
"On or about December 14, 2007, J.M.'s and [G.A.'s] caretaker reported that while bathing together, J.M. put a bath toy in [G.A.'s] vagina;
"J.M. is displaying symptoms of Dissociative Identity Disorder (multiple personalities) in her therapy sessions, which diagnosis is consistent with having suffered repeated trauma, including that of sexual molestation[; and]
"J.M. and [G.A.] have an established pattern of masturbation, and J.M. attempted to masturbate while in therapy on or around April 23, 2008;
"On or about March 14, 2008 and March 21, 2008, J.M. disclosed to her therapist that she has been sexually and physicall[y] abused on numerous occasions by her 'Daddy Luis' and her 'Uncle Jerm,' both of whom she stated kisse[d her] on the lips and then proceed[ed] to 'hump' her."
G.A. was committed to the care and custody of the Agency for placement. Soon thereafter, the Agency reported that the mother's sexual abuse perpetrator evaluation gave no indication that she was a sexual perpetrator and requested that unsupervised visitation be allowed, which request was granted.
In September 2008, the Agency reported to the court that J.M. had been moved to another home at the aunt's request because J.M. had been touching G.A.'s privates inappropriately during the night. G.A. remained in the care of the aunt and uncle. G.A.'s therapist said G.A. attempted to insert a carrot and other objects into a doll's vaginal area during a therapy session. Her therapy sessions were increased because of the stress she felt from J.M. touching her private area.
The Agency also reported that mother admitted she had J.M. urinate into a cup for a relative's drug test because mother was using drugs at the time and was making bad choices. She admitted to having sex while watching pornography in the same room as the children, but denied they were in bed with her and said she thought they were asleep. In response to G.A.'s therapist's concern that G.A. was confused about what was appropriate touching, mother said she did not think G.A. was exposed "too much." An August 2008 psychological evaluation report indicated mother was skeptical about the possibility that her children were sexually abused.
The Children and Mother are Reunited
In October 2008, the Agency reported that mother was in a transitional housing program, with Ge.A. in her care. She had overnight visits with G.A. and J.M. J.M. had apologized to G.A. for touching her vagina and promised not to do so again. The Agency recommended returning G.A. and Ge.A. to mother, giving the Agency discretion to begin a trial visit for J.M., and family maintenance services; the court adopted these recommendations.
In December 2008 and July 2009, the Agency reported mother remained in the transitional housing program and was employed. By April 2009, the three siblings were living with mother at the transitional housing program. By July 2009, G.A. was "very bonded" to her sisters and mother.
Mother's Relapse and January 2010 Arrest
In December 2009, the Agency reported that mother left the transitional housing program after testing positive for methamphetamine. She had repeatedly tested positive for methamphetamine and THC, missed various meetings and referrals, been fired from her job, and was unemployed. She and the girls were living in Oakland with several housemates. Mother said G.A. had had a doctor's appointment to be cleared for day care, but did not provide the doctor's contact information, and G.A. was not present when the Agency conducted two unannounced visits in December 2009.
In January 2010, mother was arrested for being in possession of a known stolen vehicle with her children in the vehicle's back seat. She left the girls in the care of an adult who gave them to their maternal grandmother, who lived with William P. G.A.'s father's retrieved them a few days later. The court adopted the Agency's detention recommendations, prohibited contact between the girls and the maternal grandmother and William P., and ordered that mother's visitations be supervised. G.A. was placed with the aunt and uncle, J.M. with a former foster parent, and Ge.A with a maternal cousin.
At a January 2010 CALICO interview, G.A. said William P. put things inside her, and identified her eyes and inner thighs as the places where he put things, said that her mother told her she did not want her, and appeared very anxious and uncomfortable when asked about staying with her maternal grandmother and being touched in her private parts. She answered most questions, "I don't know." When reassured that the CALICO center was a safe place to talk, she said it was not because mother had taken her there before. J.M. denied that the children were taken to the maternal grandmother's house after mother's arrest.
The Section 387 Petition
The Agency filed a petition pursuant to section 387 regarding the three girls. The Agency's amended petition recounted mother's arrest, that the children were found sitting on broken glass in a stolen vehicle, in which a methamphetamine pipe was found; that after the arrest they were ultimately left in the care of the maternal grandmother, who lived with William P.; that mother had been terminated from her treatment program for noncompliance and had tested positive for methamphetamine; that mother had allowed her children to interact with William P., although he reportedly had molested her as a child and her children; and that mother had not followed through with individual therapy for her children. In March 2010, the court found the allegations to be true, as amended. Around this same time, it was reported that a child care provider said that when the children were still in mother's care, she once bathed G.A. and Ge.A. together, and G.A. attempted to put bath toys inside Ge.A.'s vagina.
Also in March 2010, the court held a disposition hearing. Mother did not appear except by counsel. Counsel for the minors agreed that services should be terminated, and mother's counsel submitted on the issue. The court set aside its order of placement with the mother, terminated services as to the mother, ordered the children removed from her custody, allowed the mother visitations, and set a date for a section 366.26 hearing.
Events Leading Up to the Section 366.26 Hearing
The girls lived in separate placements until the section 326.26 hearing and mother entered a residential treatment program in March 2010. In July 2010, the Agency reported that G.A. had frequent temper tantrums and nightmares. Her therapist reported that the aunt and uncle were very receptive to feedback and suggestions, and were doing an excellent job in being emotionally supportive to G.A. The couple ensured that G.A. participated consistently in therapy, were capable of meeting her special needs, and understood the emotional impact of her past sexual abuse. They expressed love and commitment towards her, and G.A. appeared happy and comfortable, and turned to them for comfort. G.A. missed her mother, but seemed fearful of her.
In September 2010, the Agency reported that G.A. shared a close bond with the aunt and uncle, turned to them for love, comfort, and support, and said she liked living, and felt safe, with her "auntie" and "uncle." The couple indicated that they wanted to adopt G.A.
The Agency also reported that the girls missed their mother, told their mother they loved and missed her, and were affectionate, playful and in good spirits during visitations together. Mother shared elements of Native American culture with them. She taught them a Native American song, braided their hair, and said a Native American prayer with them in which she expressed her love and gave them sage to rub on their bodies, reportedly a traditional Native American practice.
The court found that G.A. was not an "Indian Child" under the Indian Child Welfare Act.
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The Agency also reported that G.A. visited a few times with J.M. The aunt reported that G.A. appeared afraid of J.M., and G.A. was observed seeming cautious about J.M. during an Agency-supervised visit. J.M.'s caretaker said J.M. continued to demonstrate jealousy and the caretaker was concerned about her lying and stealing behavior. A May 2010 psychological report indicated that J.M. reported having imaginary friends that she could hear and see, and had difficulty separating fantasy and reality; she was diagnosed with Posttraumatic Stress Disorder, and did not meet the criteria for Multiple Personality Disorder. J.M. indicated that she enjoyed living with her caretaker and felt safe with her.
J.M.'s caretaker reported that J.M. said in September 2010 that her mother was present five to six times when she was sexually abused and did not stop the abuse, although J.M. begged her to do so. J.M. confronted her mother the next month about not intervening, and mother denied being present, which upset J.M. J.M. subsequently said she wanted to kill herself, but stabilized with the help of her therapist and caretaker; she then indicated she only wanted to be adopted if she could stay with her caretaker, with whom she wanted to live "forever." She did not want to visit G.A. in the aunt's home.
During 2010, G.A. also visited frequently with her younger sister, Ge.A., and they went on family trips together. However, their parental grandmother reported that during a mid-2010 visit, there was a sexualized incident between the two and the grandmother's three-year-old son. She reported other incidents of sexualized play between G.A. and Ge.A. as well, and G.A.'s caretaker was asked not to allow any further unsupervised visits to the grandmother's home. Ge.A, it was reported, had previously experienced physical, emotional, and possibly sexual abuse. She had frequent nightmares, was aggressive towards older children, and engaged in sexualized behaviors. In the latter part of 2010, it was reported that Ge.A. cried, broke things, and increased her bedwetting after her mother's visits.
The 2011 Agency and CASA Reports
In preparation for the section 366.26 hearing in March 2011, the court received reports from the Agency and Court Appointed Special Advocates (CASA). It was reported that G.A., then about five and a half years old, was attending kindergarten and doing well; was not engaged in sexualized behaviors, although she continued to feel uncomfortable when left alone in a room; and only had nightmares twice a week, although they increased when J.M. visited overnight. The aunt and uncle were providing a loving, nurturing environment, were capable of meeting her special needs, and "very much" wanted to adopt her. G.A. occasionally called them "mommy" and "daddy" and indicated she wanted to live with them until she grew up, although the Agency considered her too young to understand adoption. The couple understood the importance of G.A. maintaining her relationships with her birth family members and were open to maintaining contact with them. G.A. still wanted to see her mother, but also seemed angry and bitter towards her.
The Agency reported that mother did not call G.A. from September through November 2010, other than on G.A.'s birthday. From July 2010 until the section 366.26 hearing in March 2011, mother visited with G.A. approximately 10 or 12 times (the report refers to each amount), with seven of these also including J.M. or Ge.A., or both. In late 2010, she called the aunt and said she was putting the visits "on hold" because she needed to "figure things out" after her father's passing away, and spoke to G.A. and Ge.A. for a few minutes on Christmas Day. She visited G.A. once in January 2011, the last month reported on by the Agency in its March 2011 report to the court.
The Agency reported that, while the three girls had sibling relationships, it was not in their best interest to live together because of the past abuse and neglect, which had led to sexual acting out between them. Each of them had "developed a significant and important relationship" with their respective caretakers, and it would be detrimental to move any of them. Regarding G.A., the Agency reported that she had clinical symptoms of anxiety and Posttraumatic Stress Syndrome, and had weekly individualized therapy sessions. She continued to be irritable, had meltdowns and tantrums and trouble sleeping, experienced nightmares, and feared certain situations. The Agency recommended termination of parental rights and a permanent plan of adoption for her.
Regarding J.M., then about nine and a half years old, the Agency recommended that the court order a planned permanent living arrangement with her present foster mother with a goal of legal guardianship. Regarding Ge.A., then three and a half years old, the Agency reported that her relative caretaker wanted to become her legal guardian. It recommended that the court order a permanent plan of legal guardianship and appoint the caretaker as legal guardian.
The Section 366.26 Hearing
At the section 366.26 hearing in March 2011, mother appeared with counsel. Counsel for the Agency asked the court to order termination of parental rights regarding G.A., approve the recommended plans for G.A. and J.M., and order a short continuance regarding Ge.A. because her proposed legal guardian was not present that day to sign necessary paperwork.
The minors were represented by the same counsel. She requested that the court order a mediation regarding sibling visitations to provide a structure for them to continue. The court ordered the mediation.
Minors' counsel said she supported the three separate plans because of the commitments to ongoing contact between the children. She acknowledged the situation was "not common," but did not think the matter rose to the level of significantly interfering with the sibling relationship because of these commitments and the fact that the sisters had already spent a considerable amount of time separate from each other. She said J.M. did not object to G.A.'s adoption.
Counsel for mother and counsel for father each opposed the recommendations for G.A., but did not present any evidence. Mother's counsel argued G.A.'s adoption impacted the sibling group and the two siblings who were not being adopted. She questioned J.M.'s sentiment about G.A.'s adoption because she was only nine years old, and stated, "I don't know that any of us know how this might impact these girls as they grow up and how it's going to impact their relationship," and "we don't know what kind of impact this may have on the children." She urged the court not to "rush" and to proceed more cautiously by putting the matter over. Father's counsel made a similar argument.
The court terminated parental rights regarding G.A., adopted the recommended plans for G.A. and J.M., found clear and convincing evidence that G.A. was likely to be adopted, and ordered the continuance regarding Georgina. It ordered that G.A. remain a dependent of the court, continued her matter for six months for a dependency status review, and set the likely date for finalizing her permanent plan as March 2, 2012. Mother filed a timely notice of appeal challenging the court's termination of her parental rights regarding G.A. and approving the recommended plan of adoption for G.A.
DISCUSSION
I. The Parent-Child Relationship Exception
Mother first argues for reversal of the juvenile court's order because the court did not apply the parent-child relationship exception contained in section 366.26, subdivision (c)(1)(B)(i) to termination of her parental rights. We disagree. A. Forfeiture
As a preliminary matter, the Agency argues that mother has forfeited her parent-child relationship claim by not raising it in the juvenile court. We agree.
As the People point out, "a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.] [¶] Dependency matters are not exempt from this rule." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted, superseded by statute on grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962; see In re Aaron B. (1996) 46 Cal.App.4th 843, 846 [father's failure to object to an adoption assessment report below waived related appellate claim].) The People base their forfeiture argument on this rule.
Mother contends that her general objection to the adoption was sufficient to preserve her claim. This argument, unsupported, by any legal authority, is unpersuasive in light of the case law we have discussed.
Mother also points out that a challenge to the sufficiency of the evidence is not forfeited by failure to object below, citing In re Brian P. (2002) 99 Cal.App.4th 616, 623 [a parent is not required to object to the social service agency's failure to carry its burden of proof on the question of adoptability]. This is correct, but it does not apply here because mother's parent-child relationship claim requires that she has the burden of showing the exception applies. In short, mother has forfeited her parent-child relationship exception claim. B. The Merits of Mother's Claim
Even assuming no forfeiture for the sake of argument, mother's claim lacks merit. She argues the parent-child exception should have been applied because she consistently visited G.A. and her "visitation was overwhelmingly positive for the child and created a mother-daughter bond which, if broken, would irreparably harm" G.A. We disagree.
The juvenile court "shall" terminate parental rights and order the child placed for adoption unless it finds a "compelling reason for determining that termination would be detrimental to the child" due to one or more statutorily defined circumstances. (§ 366.26, subdivision (c)(1)(B).) One circumstance is that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subdivision (c)(1)(B)(i).) A parent asserting this exception must show "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.).)"[T]he parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. [Citation.] The parent must . . . prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229 (Dakota H.).) "The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond." (Autumn H., at pp. 575-576.)
As the parties acknowledge, appellate courts are split on whether to apply the abuse of discretion (see In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.)) or substantial evidence (see Autumn H., supra, 27 Cal.App.4th at pp. 575-576) standard of review when considering rulings regarding section 366.26, subdivision (c)(1)(B). However, the practical differences between the two "are not significant." (Jasmine D., at p. 1351.) In both cases, " '[b]road deference must be shown to the trial judge. The reviewing court should interfere only " 'if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did.' . . ." ' " (Ibid.) It makes no difference which standard applies here because the juvenile court did not err under either one.
Mother cannot find support for her claim prior to her January 2010 arrest in light of her inability to remain sober and provide a safe, stable home for G.A. Events after her arrest do not provide sufficient support for her claim either.
In the period immediately after her release from jail, mother's whereabouts were unknown to the Agency; it was reported that she "entered a plea bargain and settled on charges of vehicle theft," although she told the Agency the charges were dropped. She visited with G.A. in February, but did not seek authorization to call G.A. on a consistent basis until late April 2010. Although weekly supervised phone contact was approved, she did not call until a month later and stopped calling G.A. after June 2010 except for G.A.'s birthday and on Christmas Day. As we have indicated, the Agency reported that she visited G.A. approximately 10 or 12 times, including one time between February and June 2010, and not at all in September, October, or December 2010.
Mother also does not establish that severing the parent-child relationship would deprive G.A. of a relationship that promotes G.A.'s well-being to such a degree as to outweigh the well-being G.A. would gain in a permanent home with new, adoptive parents. (Autumn H., supra, 27 Cal.App.4th at p. 575.) The juvenile court could reasonably conclude from the evidence that mother is not capable of providing G.A. with security, safety, stability, consistency, structure, or permanence. G.A. was repeatedly in and out of her mother's care, and in the care of others for almost half her life. In January 2010, G.A. stated that her mother said she did not want her.
As the Agency points out, there also was strong evidence that G.A.'s relationship with her mother was not to her benefit. Evidence indicates that G.A. and J.M. were sexually abused while in their mother's care, and that mother minimized or denied the occurrence of the abuse. J.M.'s accounts of her sexual abuse and her resulting emotional difficulties are as disturbing as anything this court has reviewed in child dependency cases. It is reasonable to believe G.A. would face the possibility of such horrendous abuse if she were allowed to remain in her mother's care. Also, that she was found in January 2010 with mother in a stolen vehicle sitting on broken glass indicates the hazards mother exposed her to when she was in mother's care.
G.A.'s turbulent behavior also reflected the trauma and abuse she experienced while in her mother's care. In the first part of 2010, she had frequent tantrums and nightmares, acted out sexually, and seemed fearful of her mother. Although she improved, as of the section 366.26 hearing she continued to have difficulties as a result of the neglect and sexual abuse she endured.
The record indicates that G.A. and mother had positive interactions, bonded, and expressed affection for each other, and that as of the section 366.26 hearing, G.A. still wanted to see her mother. However, G.A. was also disturbed by some of the interactions with her mother and, by March 2011, did not rely on her mother to meet her physical or emotional needs. In 2008, after unsupervised visits with her mother started, G.A. upon her return had daily nightmares, cried, and asked not to go on further visits with her mother. In January 2010, she reported that mother said she did not want her. In July 2010, it was reported that G.A. missed her mother, but also seemed fearful of her.
In light of these facts, mother did not establish that the benefits of her relationship outweighed the benefits of adoption to G.A. G.A.'s caretakers, the aunt and uncle, were committed to adopting her, had developed a close and loving relationship with G.A., provided a stable and nurturing environment for her, understood her special needs, and received very positive evaluations from the Agency and CASA. It was reported that the uncle was of American Indian descent and the family was mindful of G.A.'s cultural needs. They were also open to ongoing contact between G.A., her siblings, and her parents.
The mother does not make any contentions that outweigh these significant benefits. Mother claims that her unique mix of Native American "history and traditions" are important for G.A. to retain, but this is not a basis for any particular exception, and G.A.'s adoptive family is sensitive to her cultural needs. Mother notes that she is now in a program and that G.A. has expressed a desire to see her. This is insufficient to overcome the benefits adoption offers under the circumstances. (Dakota H., supra, 132 Cal.App.4th at p. 229 ["the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits"].) Assuming no forfeiture has occurred, the court did not err by not applying the parent-child relationship exception, whether evaluated under an abuse of discretion or substantial evidence standard of review.
II. The Sibling Exception
Mother also argues that the juvenile court should have applied the so-called "sibling exception" to termination of her parental rights. (§ 366.26, subd. (c)(1)(B)(v).) We disagree.
The "sibling exception" applies if the court finds a compelling reason for determining that termination of parental rights would be detrimental to the child because "[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, subdivision (c)(1)(B)(v).) "If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption." (In reL.Y.L. (2002) 101 Cal.App.4th 942, 951-952.) "[T]he concern is the best interests of the child being considered for adoption, not the interests of the child's siblings." (In re Naomi P. (2005) 132 Cal.App.4th 808, 822.)
As we have already indicated, appellate courts are split as to whether the abuse of discretion or substantial evidence standards of review apply here, but the differences between the two are not significant. (Jasmine D., supra, 78 Cal.App.4th at p. 1351.) It makes no difference which standard applies here because the juvenile court did not err under either one.
Mother argued below that the sibling relationship would be negatively affected by G.A.'s adoption, but did not offer evidence to support her argument. The court did not err in rejecting this argument for several reasons.
First, G.A.'s relationships with her sisters were limited by the fact that she shared a household with them for only part of her life. The Agency points out that at the time of the section 366.26 hearing, G.A. lived with her younger sister, Ge.A., then about three and a half years old, for approximately one and a half years and with her older sister, J.M., no more than three years and nine months.
Second, there was evidence that G.A.'s sibling relationships were problematic. When G.A. and J.M. lived together with the aunt and uncle, J.M. displayed aggression towards G.A, reportedly hitting and pushing her. After G.A. visited with mother, J.M. shoved G.A. as she walked down the stairs, hit her, and put a bar of soap in G.A.'s vagina. In June 2008, J.M.'s therapist reported that J.M. had a personality, named "Joe," who was violent and hurt G.A, and opined that one of J.M.'s "coping mechanisms" was to hurt G.A. Soon thereafter, the aunt requested that J.M. be moved immediately because she was touching G.A.'s private parts inappropriately during the night, and G.A.'s therapy sessions were increased to deal with the resulting stress. In 2010, G.A. was observed to be afraid and cautious of J.M. during visits and had increased nightmares when J.M. was allowed overnight visits with her. After September 2010, J.M. indicated she did not want to visit G.A. at her foster home. She did not object to G.A.'s adoption.
While the record indicates that G.A. had a strong attachment to Ge.A., there were also reports of sexualized behavior between the two. A care provider sitter reported that when she bathed the two together prior to mother's arrest, G.A. attempted to put bath toys inside Ge.A.'s vagina. The paternal grandmother reported sexualized incidents between G.A. and Ge.A. that led to an end to such visits. Caretakers reported finding G.A. undressed and showing her private parts to Ge.A. Also, Ge.A. was observed acting aggressively towards older children and engaging in sexualized behaviors.
Third, mother does not establish that termination would substantially interfere with G.A.'s relationships with her sisters. As the Agency points out, "an order terminating parental rights has no effect on the relationships between the child and other biological relatives," including sisters. (In re Miguel A. (2007) 156 Cal.App.4th 389, 394.) The adoptive parents have indicated a commitment to enabling visits between G.A. and her siblings. Also, there was no assurance that mother would be reunified with any of her children.
Fourth, even if there were substantial interference with these problematic sibling relationships, it would not outweigh the benefits G.A. would receive by the permanency of adoption. The record indicates that she has endured a good deal of chaos, trauma, and abuse while in her mother's care, but that she nonetheless has shown significant and steady improvement while she has been placed in the loving, stable, supportive home provided by the aunt and uncle. This demonstrates that the benefits of the permanency of adoption by such a family outweighs the benefits G.A. would receive from continuing her sibling relationships in their present form.
Mother emphasizes the time G.A. lived with her sisters, and contends G.A.'s relationships with her sisters were "important and meaningful," that they bonded with each other, visited with each other with and without mother, and were observed having positive interactions, playing with, hugging, and kissing each other during visits. She also points out that G.A. reported that her sisters were important persons in her life. Mother contends the social worker recommending adoption ignored the evidence of these bonded relationships and instead "recommended that the sibling relationships be destroyed[.]" These contentions are not a basis for reversing the juvenile court's decision in light of the ample evidence supporting its ruling. Mother in effect asks us to reweigh the evidence, which we will not do under either a substantial evidence or abuse of discretion standard. (Dakota H., supra, 132 Cal.App.4th at p. 228 [substantial evidence]; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 [abuse of discretion].) The juvenile court did not err under either a substantial evidence or abuse of discretion standard of review.
III. Mother's Conflict of Interest Claim
Finally, mother argues that the legal counsel appointed to represent her children at the section 366.26 hearing had an actual conflict of interest that "prevented appointed counsel from representing any of the children in accordance with the standards required by a child advocate." Again, we disagree.
The People argue we do not need to address the merits of this argument because mother did not raise it first in the juvenile court, thereby forfeiting the claim, and that mother has no standing to raise issues about the siblings' posttermination visitation. We assume for the sake of argument that she did not forfeit her claim and has standing to raise her appellate claim. However, mother may raise claims regarding G.A. only because her notice of appeal is limited to the juvenile court's ruling regarding G.A. alone. (See, e.g., Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 504 ["jurisdiction of the Court of Appeal is limited in scope to the notice of appeal and the judgment appealed from"].)
A minor has the right to representation from appointed counsel in dependency proceedings pursuant to section 317. (§ 317.) "[T]he 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." (In re Celine R. (2003) 31 Cal.4th 45, 50 (Celine R.).)
Mother argues that G.A., J.M., and Ge.A. "held such divergent interests—three different placements with three different permanent plans—it was impossible for her to zealously advocate for any one of them, without undermining the case of any other of them." However, as the People point out, this argument conflicts with our Supreme Court's instruction in Celine R., supra, 31 Cal.4th at page 50. Pursuant to California Rules of Court, rule 5.660(c)(2), "[s]tanding alone, the fact that siblings have different permanent plans, does not necessarily demonstrate an actual conflict of interest." (In re T.C. (2010) 191 Cal.App.4th 1387, 1391.)
Mother fails to identify any actual conflict of interest involving G.A. She raises questions about what J.M. and Ge.A. thought of the disposition of their own circumstances and of the impact of the adoption plan on their relationship and visitation rights with G.A. In doing so, she quotes from Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, in which the appellate court stated, "The clearest actual conflict of interest among siblings in the dependency system, especially with the adoption of [the sibling relationship exception], arises when advocacy for one minor's best interests is for termination of parental rights and advocacy for another's best interests is against termination of parental rights." (Id. at p. 1430.)
Mother's argument is unpersuasive for two reasons. First, questions regarding J.M. and Ge.A's interests are not within the scope of this appeal, which is limited to the order regarding G.A. Second, the argument is inconsistent with the instruction contained in In re T.C., supra, 191 Cal.App.4th 1387. The T.C. court noted that Carroll preceded our Supreme Court's ruling in Celine R., supra, 31 Cal.4th 45, which "calls into question . . . the continued viability of that portion of the decision in Carroll." (In re T.C., at p. 1391.) The In re T.C. court held that "the sibling relationship exception allows consideration only of whether severing the sibling relationship would cause detriment to the child being considered for adoption and not whether it would cause detriment to the child's siblings." (Ibid.)
Mother argues that In re T.C.'s instruction is "confined to its unique facts"; legally incorrect because "children share reciprocal legally-protected interests at a section 366.26 hearing and counsel's duty of advocacy should not be conflated with the duty of the juvenile court to weigh the applicability of the sibling exception"; "operates on the false assumption that zealous advocacy on the part of a non-adoptable child against the adoption of a sibling would produce no salient information on . . . the quality and nature of the sibling bond"; and assumes that the sibling exception is the only issue relevant at the section 366.26 hearing. We disagree. Nothing in In re T.C. indicates it should be limited to its particular facts, and its analysis relies significantly on our Supreme Court's discussion in Celine R., supra, 31 Cal.4th 45. (In re T.C., supra, 191 Cal.App.4th at pp. 1391-1392.) Just as important, mother offers little, if anything, besides speculation about the postadoption sibling relationships (the only issue she raised at the section 366.26 hearing), making her argument unpersuasive in any event.
Mother also contends that the record "is unclear about what [G.A.] felt about adoption and whether she understood that the Agency was recommending her relationship with J.M. and Ge.A. be destroyed," and contains "very little information about how minor's counsel reconciled" the purportedly "competing interests" of the siblings. She asserts that ensuring contact between the siblings would be difficult to maintain, that Ge.A.'s permanent plan, having not been determined, made it "impossible for counsel to know if Ge.A.'s future caretaker would facilitate sibling contact," and that assurances of postadoption contact are very difficult, if not impossible to enforce, and "essentially illusory in their legal effect." Therefore, mother argues, notwithstanding existing rules that enable enforcement of postadoption contact agreements (e.g., the incorporation of Family Code, § 8616.5 into Welf. & Inst. Code, § 366.26, subd. (a)), counsel's "reliance on the promise of future postadoption sibling contact was misplaced."
These contentions and arguments are not rooted in evidence of an actual conflict of interest and are highly speculative. They are not a basis for reversal. As we have already noted, the termination of mother's parental rights regarding G.A. did not destroy the sibling relationships, either as a matter of law or under the circumstances. Whatever uncertainties might have existed at the time of the hearing, all indications were that the parties involved would work to maintain contact among the siblings.
Finally, assuming the court erred, mother does not show it was prejudicial to G.A.'s interests. "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." (Celine R., supra, 31 Cal.4th at p. 60.) Mother argues error is reversible error, relying on In re Patricia E. (1985) 174 Cal.App.3d 1, 10, but our Supreme Court specifically disapproved of this holding. (Celine R., at p. 60.) She otherwise offers no real argument for why the purported error was prejudicial. We have no doubt any error was harmless because the court's rulings were clearly in G.A.'s best interests.
DISPOSITION
The juvenile court's order appealed from is affirmed in its entirety.
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Lambden, J.
We concur:
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Kline, P.J.
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Richman, J.