Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. CK71319 Daniel Zeke Zeidler, Judge.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant B.M.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant M.M.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent. Roni Keller, under appointment by the Court of Appeal, for Minors.
JOHNSON, J.
Mother B.M. and Father M.M. appeal the dependency court’s denial of their section 388 petitions and termination of parental rights to their two youngest children A.M. and J.M. They contend the dependency court erred in summarily denying their section 388 petitions, in finding the beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i) and the sibling exception of section 366.26, subdivision (c)(1)(B)(v) did not apply, and in not removing conflicted counsel for the minor children in this case. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Mother and Father have four children: Jordan L., born in 2000; Ebony M., born in 2002; A.M., a boy born in 2005; and J.M., a girl born in 2007.
1. Detention
On January 13, 2008, DCFS received a referral that Ebony had been sexually abused by her “Uncle Louie.” Further, Ebony and her siblings had been left for two weeks with Tabitha A., a friend of Mother’s, because the parents had been evicted from their apartment and were “running the streets and doing drugs.” Tabitha told the parents Ebony had been molested, but the parents dismissed her concerns and did not have Ebony medically examined until the next day. The children were taken into protective custody. Ebony’s medical examination was consistent with sexual abuse.
“Uncle Louie” is the children’s great uncle.
The detention report stated that the parents were married, and Father was the biological father of Ebony, A.M. and J.M. The father of Jordan was unknown. The parents had prior history with DCFS dating from 2002, which included reports of physical abuse (hitting) and neglect. The parents’ whereabouts at the time of detention was not known. Jordan suffered from a learning disability.
On January 16, 2008, DCFS filed a section 300 petition alleging Mother and Father’s failure to protect Ebony from sexual abuse by an unrelated male. The petition further alleged that Mother and Father left the children Jordan, Ebony, A.M. and J.M. with an unrelated adult without making any plan for the children’s ongoing care and supervision.
At the January 16, 2008 detention hearing, the court appointed counsel for the parents and for the minor children. After Father admitted to being the biological father of Jordan, as well as the other three children, the court found that he was the presumed father of all four children. Mother explained that they did not take Ebony to the hospital right away the day Tabitha informed them of possible sexual abuse because they had to get their medical paperwork and on the way to the hospital got a flat tire. By that time, Tabitha had called the police. The court detained the children, ordered monitored visitation, family reunification services, no contact with Uncle Louie, and a pre-release investigation on Mother, Tabitha, and the children’s grandmother and aunt.
2. Jurisdiction and Disposition.
The DCFS’s first amended petition alleged physical abuse of Jordan based on evidence Jordan had been hit with a belt; failure to protect based on Ebony’s sexual abuse and the parents’ neglect and failure to provide support for all of the children in leaving them with Tabitha; and abuse of a sibling based on Ebony’s sexual abuse. (§ 300, subds. (a), (b), (d), (g), (j).)
DCFS’s jurisdictional report stated the children were placed in the foster home of Sandra U. The report detailed Mother’s prior referrals. DCFS interviewed Ebony, who was unable to function at the five-year-old level and verbally communicated at the three-year-old level. DCFS was unable to obtain from her any statements regarding the allegations. DCFS did not interview Jordan because he was unable to communicate.
The first referral, dated February 13, 2002, was based on a report that Mother was observed hitting Jordan. The referral was closed as inconclusive.
DCFS interviewed both parents. Father told the social worker that “Uncle Louie” was his mother’s brother and that the only reason Ebony claimed Uncle Louie abused her was “‘she has not seen him in awhile and if she is thinking of someone then she will say their name.’” Father did not have any idea who might have abused Ebony, but stated that “‘she did it to herself, ’” or that it might have been Tabitha’s son. His explanation of his lackluster response the day Ebony was taken to the hospital was confused and rambling. Father admitted spanking Jordan one time after Jordan had used a profanity at school, and Father claimed the marks the doctor found on Jordan’s buttocks were from his pants because they were too big and often fell down. When confronted with a positive drug test, Father admitted smoking marijuana. Father had no stable employment history, and prior convictions for domestic violence.
Mother told the social worker that the day Tabitha told her Ebony had been abused, she took Ebony into the bathroom and looked at her. Ebony was “‘not understanding and [was] just naming off names.’” Mother offered no rational explanation for the delay in getting Ebony medical treatment, and also claimed that Ebony had abused herself, or that it might have been Tabitha’s son. Mother claimed she was the one who spanked Jordan the time after his teacher reported Jordan was using profanity. Originally from Missouri, Mother was raised in foster homes, and had been diagnosed as borderline schizophrenic, and bipolar. She had held very few jobs and lived a transient lifestyle since moving to Los Angeles at age 16.
Tabitha told the social worker that she first noticed a problem with Ebony in early January 2008. Ebony was acting out sexually and when Tabitha would give Ebony a bath, Ebony would say “‘[o]uch, ’” and was scratching herself. One day a friend of Tabitha’s came to her apartment and Ebony tried to kiss him on the mouth.
Ebony’s medical examination disclosed that she had a laceration at her vaginal opening. The nurse told the social worker that with such an injury, it could not be determined whether it was caused by sexual abuse, that such an injury would heal very quickly, and would not have been caused by scratching.
A medical examination of Jordan disclosed old marks on his skin consistent with belt marks. Jordan was a client of Regional Center due to developmental delays, and attended elementary school where he was not functioning at grade level. His teacher reported he became easily frustrated and had toilet training issues. Ebony also had developmental delays with limited communication skills and was referred to the Regional Center. Ebony attended kindergarten, where her teacher reported she was very quiet and withdrawn with little verbal communication. A.M. was developing normally and appeared to be a “typical two year old.” J.M. was a calm baby and did not cry or fuss during the social worker’s visits to the foster home.
DCFS concluded that the children could not safely be returned to their parents’ home because the parents lived a transient lifestyle, did not attempt to obtain a medical examination for Ebony, and used corporal punishment.
At the jurisdictional hearing on February 8, 2008, the court ordered the children were not to be separated.
At the continued jurisdictional hearing held April 10, 2008, the parents pleaded no contest to the allegations of the amended petition, the court found that the children are persons described by section 300, subdivisions (a), (b), (g), and (j). The court ordered monitored visitation at least twice a week, and ordered Mother to participate in parental education for children with special needs, individual counseling, and to participate in the children’s therapy and Regional Center evaluation and treatment. The court ordered Father to attend and complete parental education for children with special needs, submit to weekly random drug testing, individual counseling, weekly Alcoholics Anonymous meetings, and to participate in the children’s therapy and Regional Center evaluation and treatment. The court ordered that the parents not use corporal punishment.
The court sustained the amended petition as to counts alleged under section 300, subdivisions (a), (b), and (g), dismissed the count alleged under subdivision (d), sustained one count alleged under subdivision (j) and dismissed the other count.
3. Reunification, July 8, 2008 to September 29, 2009.
DCFS’s July 8, 2008 progress report stated the children were residing together in a foster home. A Team Decision Meeting was held May 6, 2008 because the foster mother wanted Jordan removed from her home because of behavioral problems. After withdrawing the request, the foster mother renewed it on June 16, 2008 because Jordan’s behavior was detrimentally affecting his siblings. After discussion with the social worker, the foster mother agreed to continue with Jordan’s placement. Jordan and Ebony were clients at Regional Center. Mother and Father had been attending joint counseling, but stopped because they could not pay the $15 fee. The social worker provided them with information for free counseling, and other agencies so they could begin compliance with their case plan. The parents had enrolled in parenting classes and were doing very well. DCFS referred Mother to a parenting class for children with special needs. However, Father was not complying with his drug testing, and had three positive tests, including the most recent results dated June 18, 2008. Father had not signed up for a support group. The parents were visiting with the children twice weekly, where they interacted regularly with the children and would hug and kiss them often.
On March 15, 2008, the children were moved to a new foster home, a licensed foster parent who was a friend of Mother and Father.
DCFS observed that the parents were “initiating the service objectives of their case plan, ” but downplayed the developmental delays of Jordan and Ebony. The family’s transient lifestyle contributed to the lack of continuity of services for the children, yet the parents possessed a positive connection with the children, who were consistently excited to see their parents. The parents were in regular contact with DCFS about the status of the children’s educational assessments and medical treatment, but at times arrived at the social worker’s office on the wrong days or times for appointments, and relayed information incorrectly from service providers. DCFS recommended a psychiatric evaluation of the parents.
At the hearing, the court ordered a section 730 evaluation of the parents, which was to include psychological testing to determine mental health and developmental issues and recommendation of services. The court also ordered DCFS to attempt to increase the frequency of the parents’ visits. The court scheduled a review hearing for September 15, 2008.
DCFS’s status review report for the September 15, 2008 hearing stated that Father had been arrested on July 23, 2008 for outstanding warrants. The foster mother reported being overwhelmed caring for the needs of the children. However, DCFS determined it was in the best interests of the children to remain in the current placement, as Ebony’s therapist and the caregivers had noticed dramatic improvements and breakthroughs in the children during the last month. DCFS found the future risk of neglect and abuse remained high, as Father had only partially participated in his case plan, and both parents were homeless. DCFS reported that “[s]afety threats remain as suspicions of sexual abuse by an unknown perpetrator continue to exist, as noted by the children’s exhibition of sexualized behavior, including an incident in which Jordan attempted to insert his finger into the rectum of a female student at school.” Additionally, the parents’ own possible developmental delays and emotional instability affected their ability to supervise and protect the children, leading DCFS to conclude the parents were not able to care for the children at that time.
Regional Center had reported that Jordan had difficulty with fine motor skills and a short temper. He had behavioral problems relating to toilet issues, and had difficulty with pronouncing words. At school, Jordan achieved below grade level, but was a friendly child who was attached to his siblings. Ebony was very quiet, achieving below grade level in school, and had qualified for special education services as developmentally disabled. Ebony was attending therapy twice a week. A.M., who was now three, was in preschool and played well with his older siblings. He had been evaluated for possible sexual abuse, but the findings were non-specific. J.M., who was one, was thriving.
Mother and Father had been attending parenting classes, and were in partial compliance with individual counseling. Mother had attended 10 classes as of June 2008. The social worker’s request for additional funding for counseling for Mother was approved. Father was enrolled in a drug and alcohol counseling program. Father had missed his most recent drug tests, or had positive results for cannabinoids. Due to his arrest on July 15, 2008, Father was not currently testing, and had not visited the children. Mother had been consistently visiting, and the visits went well.
DCFS believed that both Mother and Father were in the initial stages of addressing the issues that had brought them to the attention of DCFS. Although Mother was participating in parenting classes, in DCFS’s opinion she had “not yet had the opportunity to explore and process her own case history of being a foster child.” Two of the parents’ four children required additional support services and intense supervision due to developmental needs. DFCS opined that the future risk of harm remained high due to Father’s partial compliance with his case plan and positive drug tests. Mother was participating in parenting and visiting, but was homeless. The parents’ own developmental delays affected their ability to supervise and care for the children.
DCFS’s last minute information for the court disclosed that the foster mother came home intoxicated on September 9, 2008 with the children. An argument took place in the foster home and the foster mother was arrested and placed in jail. The children were separated and placed in two emergency foster homes because DCFS was unable to locate a home that would take a four-child sibling set. Jordan and A.M. were in the same home, while Ebony and J.M. were placed together. The court continued the matter to October 1, 2008.
Mother’s psychological evaluation was completed on September 16, 2008, and recommended that she receive intensive long-term therapy, continue with parenting education, and receive a referral to a support group for parents with special needs children. The psychologist, Dr. Tucker, remarked that although DCFS had peformed “Herculean tasks” in providing services to Mother, the combination of a lack of available resources and Mother’s numerous symptoms “resulted in obstacles to treatment she cannot surmount.” Dr. Tucker further suggested that Mother receive a least a year of counseling, and after Mother received some experience in therapy that she and Father be evaluated for further services.
DCFS’s report for the October 1, 2008 hearing stated that the children remained in two separate foster homes. Jordan and A.M. were placed together, while Ebony and J.M. were placed together. DCFS believed it had located a foster home that would take all four children. Ebony and J.M. were doing well in their placement, and Jordan’s behavior at school had improved. However, the distance between the two placements was a hindrance to sibling visits, and as a result, DCFS wished to move Ebony and J.M. closer to Jordan and A.M.’s placement. In addition, Father was unable to visit due to his incarceration.
DCFS’s last minute information for the October 1, 2008 hearing stated that Ebony’s therapist had requested she remain in her current placement because of the strides Ebony was making in therapy. Ebony’s therapist stated that Jordan had been acting out sexually in front of Ebony, and that Ebony was adjusting well to being placed separately from her brothers. As a result, the therapist recommended the sibling set remain separated.
The court modified its prior placement order to provide that DCFS was to attempt to place all four children together if it became appropriate, and ordered DCFS to facilitate visitation for Father if he remained incarcerated, to refer Mother to a support group for parents with special needs children, and to arrange for a parenting coach for Mother. The court continued the matter to March 10, 2009.
DCFS’s review report for March 10, 2009 stated that the children remained separately placed in two foster homes. Jordan and A.M. had been moved from their foster placement, but returned when the foster mother completed her home study. They told the social worker they felt safe in the home. However, in January 2009, a referral indicated the foster mother had pinched Jordan on the neck for walking too slow. The children were placed in a new foster home. Further, Ebony and J.M. were placed in a new home after their foster mother reported that her own daughter was feeling neglected. Mother had begun individual counseling with a therapist. She had completed parenting classes in October 2008. Father was released from prison on January 9, 2009. During his incarceration, he completed 12 parenting sessions and seven personal relationship sessions, and had two visits with the children at the prison. After his release, Father resumed visitation, and had two-hour visits with the children on Fridays.
On February 3, 2009, a team decision meeting was held. DCFS determined that Mother was capable of unmonitored visitation with Ebony and J.M. DCFS outlined a plan whereby Jordan and A.M. would remain placed together, and the social worker would explore placing A.M. with Ebony and J.M. in the same home. The foster mothers were coordinating visitation with the siblings. A second TDM held March 3, 2009 addressed the issue of Jordan and A.M. sharing a bedroom, which DCFS discouraged because of Jordan’s acting out behavior. In addition, DCFS addressed obtaining services for the children, continued reunification, and the parents’ visitation with the children. A separate TDM with Father was held on March 3, 2009 addressed his progress with his case plan and his visitation plan. DCFS was concerned with Father’s lack of “‘follow through’” in completing his case plan. Father disclosed that he has a memory deficit and it was difficult for him to understand information provided to him, and that he was a former client of Regional Center, receiving special educational services as a child. DCFS determined that a psychological evaluation of Father was required, and that Father would continue his case plan, including random drug testing and visitation. Mother continued to comply with her case plan, was participating in therapy, and Father was participating in drug and alcohol counseling. The parents continued to visit with the children. DCFS recommended continued reunification.
At the March 10, 2009 hearing, the court noted that the parents had worked hard to comply with their case plan, which it found “impressive.” Nonetheless, the court noted that the “clock was ticking” and admonished the parents to continue with their case plans. The court ordered a 730 evaluation of Father.
On May 14, 2009, Father’s psychological evaluation was completed. Father informed the psychologist he was raised in various foster homes, he had completed 11th grade, and had received special education since he was nine years old. Father had worked as a cook, janitor, and security guard, and recounted he had suffered some sexual abuse as a child. Father was diagnosed as bipolar, with attention deficit disorder, impulse control disorder, and polysubstance abuse. Medication was recommended as the best course of treatment for Father.
DCFS’s report for the July 13, 2009 hearing stated that Jordan was placed in a new foster home, that of Ms. B. A.M. was in the foster home of Mr. and Mrs. N., and Ebony and J.M. continued to be placed in the home of Mrs. L. DCFS reported that Jordan had been moved from his prior foster home because he was exhibiting aggressive behaviors, including cursing, hitting, and throwing things. Jordan was targeting much of his aggression at A.M., resulting in his placement in a separate home. Both Jordan and A.M. were doing well in their new placements. Ebony and J.M. were well behaved and following the rules at their foster home. Ebony’s social skills and grooming skills had improved.
Mother continued to participate in her court-ordered plan. She attended therapy, and had a parent partner (Ms. Ayala) to assist her in obtaining her own housing and employment. Mother and Father had been accepted as a couple by Integrated Recovery Network and obtained housing. Mother told the social worker she wanted to reunify with her children, but during interviews with the social worker, Mother continued to struggle with identifying her children’s needs and the importance of providing a safe and stable environment. Mother minimized Father’s drug use, and contended his arrests for domestic violence were a “misunderstanding.” DCFS discontinued Mother’s unmonitored visitation because she permitted Father to attend a visit with her. Father had multiple unexcused absences from his drug treatment program during March to June 2009, and had tested positive for marijuana in May 2009.
Jordan was making progress with grooming and communication skills, but still had toileting issues. He had mild mental retardation, and was behaving poorly at school. Medication had been recommended in order to treat ADHD and enuresis. Jordan was displaying less physical aggression, and was responding well to the structure of his foster placement with Ms. B. Ebony was making progress in meeting her developmental milestones, attending school and was compliant in doing her homework. A.M. and J.M. were not receiving services and were doing well. Both parents were visiting consistently. Jordan expressed his love for Mother and Father and that he enjoyed visiting with them.
DCFS asserted that the risk of harm to the children was high if they were returned to the parents. Mother continued to minimize Father’s previous arrests for domestic violence as well as his substance abuse, and Mother lacked insight into the serious needs of the children and age appropriate expectations. As a result, DCFS recommended that reunification services be terminated as to Mother. In addition, although Father had enrolled in services, his participation in drug treatment and testing was inconsistent. Father’s psychological assessment indicated he was in need of further testing to determine whether he needed medication. “Given that father continues to struggle with his own recovery and mental health status, it is not likely that he has the mental capacity nor the parenting skills to care for his four young children at this point in time.” DCFS recommended reunification services be terminated for Father. DCFS identified adoption as the goal if the parents were unable to reunify.
DCFS’s last minute information for the July 13, 2009 hearing stated that Jordan was receiving therapy twice a week to reduce aggressive behaviors. He had been prescribed medication for ADHD and enuresis. His therapist recommended he remain in his current placement because any disruption in his routine could cause regression to previous behaviors and affect his mental health. Ebony was also receiving therapy focused on sexual abuse trauma to reduce her sexualized behavior. Her behavior had improved and her tantrums and irritability had deceased. Her therapist recommended she remain in her current placement because any disruption in her routine could cause regression to previous behaviors and affect her mental health. Mother’s parent partner reported that Mother was severely depressed, and as a result unable to obtain employment or an apartment. Further, her parent partner was concerned about Mother’s emotional stability.
DCFS’s report for the continued August 13, 2009 hearing stated that the children remained in their foster home placements. Father’s psychological testing was ongoing. Jordon was experiencing difficulties with some of his medications, and his medication had been discontinued while his dosages were being evaluated.
DCFS’s report for the continued September 29, 2009 hearing reported that Mother and Father were residing together in a shelter. Mother was on the waiting list for a single room, but there were no vacancies for a year-round room at the shelter where Mother could move with the children. Mother had been unable to obtain employment, and if the children were returned to her, her welfare funding would be limited because she had exhausted her Aid to Families with Dependent Children and she would only receive Supplemental Security Income for Jordan and CalWorks. In addition, Mother’s individual therapy had been terminated due to lack of funding. Mother and father continued to participate in joint therapy, and were participating in the process. They were committed to working towards improving their relationship and providing a safe environment for the children. Mother’s parent partner (Ms. Ayala) reported Mother’s relationship with Father was no longer of concern because the relationship had stabilized due to the parents’ receipt of couples counseling. However, Mother remained overwhelmed when managing more than one child. Father continued to participate in his individual therapy, but had two positive tests for cannabis in August 2009.
Jordan was receiving new medication for ADHD and his behavior was improving slowly. Ebony was no longer displaying aggressive behaviors. DCFS noted that Mother’s housing situation and lack of employment had not improved; she was living in a transient shelter and had no prospects for finding permanent housing. DCFS recommended the children remain in their placements, and continued to recommend termination of reunification services.
At the continued September 29, 2009 hearing, the court was informed Jordan had been in an automobile accident and was in the hospital with four pins in his leg. Mother’s therapist Ms. Potter testified that Mother had made progress in her treatment plan because she was more able to handle emotionally frustrating situations. She did not believe Mother posed a risk to the children if they were to be placed with her. The court noted that although Mother had complied with her case plan, even with all the services being provided to her, including the parent partner, she had not yet become stable in her housing or employment, and observed Mother’s case plan had not worked. The court found father had partially complied with his case plan but he did not have a sufficient level of progress to warrant additional services. The court found reasonable services had been provided to the parents, and terminated reunification. The court set a section 366.26 hearing for January 26, 2010.
3. Permanency Planning.
DCFS’s report for the January 26, 2010 hearing stated that the children remained in their foster placements. Jordan was a client of Regional Center and receiving services. Jordan was responding well to structure. Ebony was not currently receiving services from Regional Center. The two younger children, A.M. and J.M, were doing well and were not receiving any services. The parents’ visitation had been consistent since the children were detained. DCFS recommended termination of parental rights and adoption as the permanent plan. Although no adoptive match had been found, DCFS was attempting to find a home which would take all four children together.
On January 26, 2010, the court continued the matter to July 12, 2010 pending identification of an adoptive home, and scheduled a review of the permanent plan for March 24, 2010.
DCFS’s report for the March 24, 2010 hearing stated that the social worker had met with Mother and Father, who continued to reside at the shelter. The parents stated they intended to remain at the shelter until they could find more suitable housing and be reunited with their children, and did appear to understand the court had terminated reunification services and ordered that the children were not to be returned to them. The children continued to visit with their parents, with visitation taking place at A.M.’s foster family agency or monitored by Mrs. L., who was Ebony and J.M.’s caregiver.
DCFS reported that Jordan continued to be placed with Ms. B., which was his eleventh placement. Jordan was a client of Regional Center and was diagnosed with mild mental retardation. His current caregiver was interested in becoming his legal guardian. Ebony and J.M. remained placed with Mrs. L., which was their fifth placement. Ebony was receiving special education services and was being evaluated for Regional Center Services. Mrs. L. was interested in becoming their guardian because she did not want to disrupt Ebony’s relationship with Mother. A.M. resided with Mr. and Mrs. N., his eleventh placement. A.M. was developmentally on target and not receiving any services. Mr. and Mrs. N. were not interested in adoption. DCFS was working to finding adoptive placements, and had identified a family interested in A.M. and J.M.
DCFS reported that efforts to find an adoptive home to take all four children had been unsuccessful due to the number of siblings and the older siblings’ issues. Jordan and Ebony had made solid attachments to their current caregivers. Jordan’s and Ebony’s caregivers had established a positive ongoing relationship to allow for sibling contact, and the prospective adoptive family of A.M. and J.M. was interested in continuing the sibling relationship with Jordan and Ebony. DCFS believed it was highly unlikely it would find an adoptive family willing to take all four children.
At the hearing, Mother asked for unmonitored visitation. The court ordered DCFS to evaluate Mother’s request, found the current placements necessary and appropriate, and continued the matter to July 12, 2010.
4. Section 388 Petitions and Section 366.26 Hearing.
DCFS’s July 12, 2010 section 366.26 report stated that the children remained in their foster placements. Jordan remained a client of Regional Center, and was behaving better at school. Nonetheless, he continued to display inappropriate behavior at times, including swearing at school, refusing to wake up in the morning, and stalking female students when those students went to use the restroom. As a result, Jordan had been referred for sexual abuse therapy. Ebony was not performing well academically at school, and her caregiver reported Ebony will receive tutoring. A.M. and J.M. were doing well.
An adoptive home had been identified for A.M. and J.M., whom DCFS deemed to be highly adoptable. The approved family was very interested in adopting them. Jordan and Ebony’s current caregivers had expressed an interest in becoming their respective legal guardians.
At a TDM, DCFS discussed Mother’s problems with unmonitored visitation. Mother refused to take responsibility for her actions in permitting Father to visit concurrently, and made excuses, saying that she did not feel Father was being treated fairly. As a result, Mother’s unmonitored visitation had been terminated. Mother and Father continued to visit the children on a monitored basis consistently, with the parents visiting at the home of Mrs. L. and with A.M. once a week at his foster family agency. DCFS’s assessment was that the parents continued to live unstable lives and had failed to comply with their service plan. Jordan and Ebony were attached to their caregivers, and A.M. and J.M. were doing well.
On July 12, 2010, the children’s Court Appointed Special Advocate (CASA) reported that Jordan had been diagnosed with mild mental retardation, had ADHD, and was autistic. He was taking medication and receiving therapy. Ebony had posttraumatic stress disorder but was not a Regional Center client; she was also receiving therapy. The parents were living in a homeless shelter in North Hollywood, had unmonitored visits once a week with Jordan, Ebony and J.M., but visited separately with A.M. due to scheduling problems. Sibling visits with all four children were conducted once a month with Mother. Jordan and Ebony stated they missed their parents. Jordan stated he would like to live with his parents, but Ebony would like to stay where she was. Jordan’s caregiver reported that he was both physically and verbally abusive when he came to live with her, but he had improved. His caregiver believed he would do better in a non-public school where his needs could be addressed. Jordan would ask about his parents, but when he saw them, he would be distant and would ask to leave after a short time. The CASA noted that Jordan’s troubles were likely the result of environmental factors, including early abuse, homelessness, as well has his autism disorder. He had numerous absences from school during the period June 2005 to 2007. Ebony’s foster mother reported that Ebony needed a lot of attention, that she called Mr. and Mrs. L. “Mom” and “Dad, ” and was eating well. Her foster mother had applied for tutoring. Jordan’s teacher reported he was showing improvement at school, but Ebony’s teachers reported she was having difficulty at school and refused to turn in complete homework.
Mother was living in a homeless shelter, had no car, job, and until recently, no cell phone. Mother wanted her children back and wanted to have unsupervised visits with all four at the same time and to take them to church. The CASA recommended that Ms. B. be appointed Jordan’s legal guardian, that the parents’ educational rights be limited with respect to Jordan and Ebony, and that Mr. and Mrs. L. be appointed legal guardians for Ebony.
At the July 12, 2010 hearing, the court continued the matter to September 13, 2010 pending receipt of the guardianship papers for Jordan and Ebony, and a contested section 366.26 hearing on A.M. and J.M.
DCFS’s September 13, 2010 report stated that A.M. and J.M. had been placed in their prospective adoptive home on September 9, 2010. The court identified Jordan and Ebony’s caretakers as their educational decisionmakers, and continued the matter to October 20, 2010 for a contested hearing.
Father filed a section 388 petition on October 8, 2010, seeking reinstatement of reunification services and unmonitored visitation, based upon his participation in parenting, drug treatment, and psychological counseling. Father alleged he had been taking medication and visiting consistently. Mother filed a section 388 petition seeking additional reunification services, alleging she had completed parenting, counseling, and visited consistently with the children. In support of her petition, Mother attached materials from her therapist stating that although Mother was no longer receiving therapy due to lack of funding, she continued to communicate with her therapist on facebook and via occasional phone calls. In addition, Mother provided a letter from Integrated Recovery Network stating she would be moving to a one-bedroom apartment effective October 1, 2010.
The court set the matters for hearing concurrently with the continued section 366.26 hearing.
DCFS’s last minute information for the October 20, 2010 hearing stated that at recent visits, Mother was more interested in the computer than in the children, and consistently arrived 30 minutes late to her visits with Ebony. Jordan no longer wanted to visit with Mother. In addition, Jordan’s caretaker was no longer interested in legal guardianship, although she would continue to be his caregiver. As a consequence, DCFS recommended long-term foster care for Jordan.
Attached to the last minute information is a letter dated the previous year, September 10, 2009, from Ms. Ayala, Mother’s parent partner, stating her progress in reunification had been “limited” and that Mother became “overwhelmed” when dealing with more than one child.
At the October 20, 2010 hearing, Mother argued she had been participating in counseling and had obtained housing. The court denied the petitions, noting that Father had failed to comply with his case plan, and the quality of Mother’s visitation had been poor the past few visits. The court found no change in circumstances or any progress on behalf of either parent towards complying with their case plan.
The court conducted a contested section 366.26 hearing. Mother testified that she visited the children once a week at the foster care agency for two hours. During visitation, Mother would play with the children and read with them. The children called her “Mommy” and were happy to see her at visitation. Mother believed the relationship between the four children was very strong. The children would ask about each other. Mother believed it was important for the children to maintain their relationship with her because she could provide what they needed better than anyone else. She was concerned that the children would not be able to continue seeing one another. Father testified that he was a “comfort zone” for the children, and was a “father figure” when he visited with the children. Father agreed with Mother’s argument why parental rights should not be terminated.
The parents argued that the beneficial relationship and sibling exceptions applied, and parental rights should not be terminated. They asked the sibling visits be continued. The children’s counsel recommended that parental rights be terminated. The court found Jordan and Ebony were not adoptable and that guardianship was not appropriate for Jordan. The court ordered Jordan into long-term foster care, and granted guardianship for Ebony. The court found a.m. and J.M. to be adoptable, and any bond that they had did not outweigh the benefit of permanent adoption. The two younger children have lived with their siblings for two and a half years, and did not have common experiences or bonds with their siblings, and as a result whatever bond they might have did not outweigh the benefits of adoption. Further, the parents’ role in A.M. and J.M’s life did not outweigh the benefits of permanence in adoption. The court terminated parental rights as to these two children.
DISCUSSION
I. SECTION 388 PETITIONS.
Mother argues the court abused its discretion in denying her section 388 petition because she complied with her case plan and had obtained housing at the time she filed her petition. She contends she showed changed circumstances because the background of her case establishes that she completed all court-ordered services, and at the time reunification was terminated in September 2009, the only outstanding question was whether she would have adequate housing for her children if they were returned to her. (See In re P.C. (2008) 165 Cal.App.4th 98, 105.) Furthermore, she challenges on multiple points the accuracy of DCFS’s reasons for recommending denial of her petition, which she contends consisted of “outright misinformation” of suspect validity, including that DCFS relied on erroneous reports from her parent partner in evaluating the quality of her visitation and biased statements from Ms. B. Father contends that he had made substantial strides in his case plan by clearing up his old warrants and staying out of trouble, by being actively involved in therapy, consistently visiting, and when he attended unsupervised visitation, there was no problem with his behavior.
As a threshold issue, Mother failed to raise below the numerous objections she has to the foundation and credibility of DCFS’s evidence. As a consequence, those issues are forfeited because 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. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) “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.” (Ibid.) Dependency matters are not exempt from this rule. (See, e.g., In re Dakota S. (2000) 85 Cal.App.4th 494, 502 [failure to obtain supervising agency’s assessment of prospective guardian under § 366.22, subd. (b) ].) Although application of the forfeiture rule is not automatic, “the appellate court’s discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.” (In re S.B., supra, 32 Cal.4th at p. 1293.) Here, because Mother could have easily brought such evidentiary objections to the attention of the court at the section 388 hearing, we see no reason not to apply the forfeiture rule to Mother’s failure to raise her evidentiary objections below.
A party may petition the court under section 388 to change, modify or set aside a previous court order. “The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child’s best interests.” (In re Jackson W. (2010) 184 Cal.App.4th 247, 257; In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The section 388 determination is made with reference to the seriousness of the problem leading to the dependency and the reason for its continuation; the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and the nature of the change of circumstance, the ease by which it could be achieved, and the reason it did not occur sooner. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530–532.) After termination of services, the focus shifts from the parent’s custodial interest to the child’s need for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) “Whether a previously made order should be modified rests within the dependency court’s discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established.” (In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.) We review the denial of a section 388 petition for abuse of discretion. (In re Kimberly F., supra, 56 Cal.App.4th 519, 522.)
Mother’s arguments do not persuade us the dependency court erred in denying her section 388 petition and refusing to reopen and extend further reunification services. Mother minimizes the substantial difficulties she has had in caring for her children, her current inability to assume the care of two children with behavioral and educational problems, and the issues that led to these proceedings in the first place, and she mischaracterizes the dependency court’s decision as solely based upon the parents’ lack of financial resources. The record discloses Mother and Father’s transient lifestyle formed a substantial basis of the children’s detention because it resulted in their inability to provide and care for the children. Throughout these proceedings, the parents have continued to maintain a transient lifestyle and have no employment. While the parents have made substantial strides in complying with their case plan by attending therapy and taking parenting classes, neither parent has shown the ability to care for Jordan or Ebony, who both have substantial needs. Thus, they did not show sufficient changed circumstances to warrant the reinstitution of further reunification services.
In addition, prolonging the reunification period would not be in the best interests of the children. A.M. and J.M. were young enough at the time of detention to have avoided the trauma that continues to plague Jordan and Ebony, and as a result, those children were placed in a preadoptive home and are thriving. Disrupting this preadoptive placement with its promise of future stability to provide further reunification to the parents would not be in these children’s best interests. Similarly, with respect to Jordan and Ebony, further reunification would not promote their best interests. They are currently in stable placements with caregivers who can tend to their emotional, physical and educational needs. Both children suffered substantial trauma from sexual abuse, and have yet to overcome its consequences in the form of acting out, toileting issues, poor school performance, and other personality problems. In addition, Jordan is mildly retarded and has ADHD. In sum, we find no error in the dependency court’s denial of the parents’ section 388 petitions.
II. TERMINATION OF PARENTAL RIGHTS.
Mother and Father both argue that two substantial exceptions to the termination of parent rights in this case exist.
Mother complains that Jordan was not present at the section 366.26 hearing to testify about his wishes. Mother has forfeited any challenge to any alleged omission in this regard by failing to raise it in the dependency court. (In re S.B., supra, 32 Cal.4th at p. 1293.)
With respect to the parental exception, Mother contends that she maintained regular and extensive parental contact with her children, and there was a loving and strong emotional bond worthy of preserving. She further contends the existence of such a bond does not depend upon daily contact, but the quality of the contact. Father argues that he and Mother diligently attended to their children’s needs during visits, and the older children wanted the relationship to continue.
With respect to the sibling exception, Mother argues that there was a strong sibling bond that should not have been disregarded solely because DCFS could not adoptively place all the children together, or because the children were placed in separate homes. All of the children were very bonded to each other, and consistently asked about each other at visitation. Furthermore, DCFS failed to determine the younger children’s feelings about the loss of their parents and siblings. Father contends that the children had grown closer during the proceedings, and due to the constant change in foster placements, had only each other to cling to. Further, the court failed to consider the detriment suffered by Ebony and Jordan from the loss of A.M. and J.M.
Section 366.26 directs the dependency court in selecting and implementing a permanent placement plan for a dependent child. The express purpose of a section 366.26 hearing is “to provide stable, permanent homes” for dependent children. (§ 366.26, subd. (b).) If the court has decided to end parent-child reunification services, the legislative preference is for adoption. (In re Celine R. (2003) 31 Cal.4th 45, 53 [“if the child is adoptable... adoption is the norm”]; see In re Marilyn H., supra, 5 Cal.4th at p. 307 [once reunification efforts have been found unsuccessful, the state has a “compelling” interest in “providing stable, permanent homes for children who have been removed from parental custody” and the court then must “concentrate its efforts... on the child’s placement and well-being, rather than on a parent’s challenge to a custody order”].) When the court finds by clear and convincing evidence the child is likely to be adopted, the statute mandates judicial termination of parental rights unless the parent opposing termination can demonstrate one of six enumerated exceptions applies. (§ 366.26, subd. (c)(1)(B); see Celine R., at p. 53 [“court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child”]; In re Matthew C. (1993) 6 Cal.4th 386, 392 [when child adoptable and declining to apply one of the statutory exceptions would not cause detriment to the child, the decision to terminate parental rights is relatively automatic].)
To satisfy the parent-child exception to termination of parental rights in section 366.26, subdivision (c)(1)(B)(i), a parent must prove he or she has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i); see In re Derek W. (1999) 73 Cal.App.4th 823, 826 [“parent has the burden to show that the statutory exception applies”].) The “benefit” prong of the exception requires the parent to prove his or her relationship with the child “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 [“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”].) No matter how loving and frequent the contact, and notwithstanding the existence of an “emotional bond” with the child, “the parents must show that they occupy ‘a parental role’ in the child’s life.” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418–1419.) The relationship that gives rise to this exception to the statutory preference for adoption “characteristically aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Moreover, “[b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The sibling relationship exception found in section 366.26, subdivision (c)(1)(B)(v), is similarly rigorous. The purpose of the sibling exception is to preserve longstanding sibling relationships that serve as “anchors for dependent children whose lives are in turmoil.” (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) In considering the availability of this exception, the court is directed “to determine whether terminating parental rights would substantially interfere with the sibling relationship by evaluating the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds. [Citation.] 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 re L.Y.L. (2002) 101 Cal.App.4th 942, 951–952; In re Celine R., supra, 31 Cal.4th at p. 61.) “[T]he concern is the best interests of the child being considered for adoption, not the interests of that child’s siblings.” (In re Naomi P. (2005) 132 Cal.App.4th 808, 822; Celine R., at pp. 49–50.)
We review for substantial evidence the juvenile court’s findings that the parent-child and sibling relationship exceptions are inapplicable. (See, e.g., In re Cliffton B. (2000) 81 Cal.App.4th 415, 424–425 [in an “[a]dmittedly... very close case, ” trial court’s conclusion was supported by substantial evidence and would not be disturbed]; In re L.Y.L., supra, 101 Cal.App.4th at p. 953.)
We find substantial evidence supports the dependency court’s conclusion that neither exception applied. With respect to the parental exception, the parents’ contact with A.M. and J.M. had been limited because the children were taken from the parents at the ages of two years and less than one year. Although Mother and Father visited them consistently throughout the reunification period, they have not shown they occupied a parental role in these children’s lives. The record discloses the visits were no more than visits. On the other hand, the benefit to the children of adoption is strong. The children have been placed together in an adoptive home where they are thriving, free from the influences of the parents’ transient lifestyle.
With respect to the sibling exception, the record reflects that the children were bonded with each other, as they often asked about each other. However, the record also reflects significant negative factors from the sibling relationships, as evidenced by the behavior Ebony and Jordan exhibited when they resided in homes with their younger siblings. Jordan and Ebony, due to their years with the parents, have special needs, while A.M. and J.M. do not, having been taken from home at a young age. There is no evidence the younger siblings would be detrimentally affected by the separation. Conversely, the benefits to A.M. and J.M. of being adopted into a stable, loving home outweigh the benefits of the limited positive sibling contact they have had with their older siblings.
III. CONFLICT OF INTEREST OF CHILDREN’S COUNSEL.
Both parents argue that any potential for conflict matured into actual conflict when DCFS selected adoption as the permanent plan for A.M. and J.M. and placed them in a preadoptive home, and the conflict required separate representation for the children. Separate counsel was mandatory because counsel argued for termination of parental rights with respect to two of the children, but not with respect to the other two. (Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1430; In re Zamer G. (2007) 153 Cal.App.4th 1253, 1264.) They contend they have standing to raise the issue because protecting the children’s interest has an impact on their parent-child relationship. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1377–1378.) DCFS argues that the conflict issue was not raised by any party, and for that reasons does not respond to the parents’ assertions on appeal. The children argue that the parents forfeited the issue by failing to raise it below; there was no conflict; and any error was harmless because neither Jordan nor Ebony had grounds to prevent the younger children from being adopted, it was not in A.M. or J.M’s interests to forgo adoption in order to maintain contact with the older children, and it was in the younger children’s best interests to be placed in a different home than the older children.
In In re Celine R., supra, 31 Cal.4th at p. 50, the Supreme Court concluded that one attorney may be appointed to represent all siblings in a dependency case “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.” Following the initial appointment, the juvenile court “must relieve counsel from the joint representation when, but only when, an actual conflict of interest arises.” (Ibid.; see also Rules Prof. Conduct, rule 3-310(C)(2).) A conflict arises when the attorney seeks a course of action for one sibling that has adverse consequences to the other sibling. (In re Barbara R. (2006) 137 Cal.App.4th 941, 953; see also In re Zamer G., supra, 153 Cal.App.4th at p. 1267 [an actual conflict arises “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”].) “The clearest actual conflict of interest among siblings in the dependency system, especially with the adoption of [former] section 366.26, subdivision (c)(1)(E) [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.” (Carroll v. Superior Court, supra, 101 Cal.App.4th at p. 1430.)
But we need not decide whether there was an actual conflict in this case, or whether the issue was waived, or whether the parents have standing to raise it, because in any event, any error was harmless. (In re Celine R., supra, 31 Cal.4th at p. 59 [failure to appoint separate counsel for separate siblings is subject to harmless error analysis].) The Supreme Court has instructed that an appellate 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.” (Id. at p. 60.) Here, there is no reasonable probability of a different outcome in this case because the only interests of the siblings that were adverse were based on the question of whether the two younger siblings, A.M. and J.M., would be adopted and hence no longer able to maintain their sibling relationship with Jordan or Ebony. The record reflects that it was in the younger siblings’ best interest to be adopted; it was highly unlikely, given their behavioral problems, that Jordan or Ebony would be adopted; and finally, given the parents’ inability to maintain stable housing or employment, it was highly unlikely that any of the children would be returned to them.
DISPOSITION
The orders of the superior court are affirmed.
We concur: ROTHSCHILD, Acting P. J., CHANEY, J.
The second referral, dated September 19, 2003, was based on a report that Mother was “‘smacking’” Jordan in the face and neglecting the children. Mother’s home was filthy and she did not change Jordan’s diaper, resulting in a severe diaper rash. After meeting with Mother, DCFS closed the referral as unfounded.
The third referral, dated September 29, 2003, based on red marks on Jordan’s buttocks, was closed as unfounded.
The fourth referral, dated January 7, 2004, was based on a report of marks on one of the children’s arms and a neighbor’s report that “[i]t sounds as if mother is throwing the child around the house.” There was food and clothing all over the floor, and trash bags against the wall. After conducting an interview and observing no marks on the children, the parents cleaned the home, and DCFS closed the referral as unfounded.
The fifth referral, dated January 9, 2004, was based on a report from Jordan’s school that Jordan had been missing a lot of school, and came to school one week very dirty and smelling like urine. DCFS closed the referral as unfounded after observing no marks or other signs of abuse on the children.
The sixth referral, dated February 18, 2004, was based on a report of crying coming from Mother’s apartment. It was closed as unfounded.
The seventh referral, dated March 21, 2005, based on the report the children were coming to school with dirty clothes, was closed as unfounded.
The eighth referral, dated November 21, 2005, based on a report the parents were hitting the children, was closed as unfounded.
The ninth referral, dated December 3, 2005, based on a report Mother hit Jordan, was dismissed as inconclusive.
The tenth referral, dated February 6, 2006, based on marks observed on Jordan while his diaper was being changed, resulted in a voluntary case being opened. The family had a voluntary family maintenance case with DCFS from February 13, 2006 through March 30, 2007, during which time the family was given family preservation services. It appeared the home stabilized, and after the maximum amount of time had elapsed, the case was closed.