Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Albert J. Garcia, Commissioner, Ct. No. CK36970
Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minors.
DOI TODD, J.
Defendant and appellant Alma F. appeals from the order made pursuant to Welfare and Institutions Code section 366.26 terminating her parental rights to minors Andrea F. and Jesus F. She contends that the juvenile court erred in failing to determine sua sponte that a conflict existed because a single attorney represented her five children. We affirm. Appellant waived this issue by failing to raise it below. But even absent waiver, the record reveals no conflict of interest in the children’s representation that affected the termination of appellant’s parental rights.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant’s children Alma and Beatriz—then ages two and eight months, respectively—were detained in January 2000 in a prior proceeding and were ordered into a permanent plan of long term foster care. In June 2002, appellant gave birth to Andrea. On October 30, 2003, the juvenile court granted appellant’s section 388 petition and returned Alma and Beatriz to her care.
Just over one month later, on December 5, 2003, appellant brought Beatriz to the hospital due to extensive reddish swelling approximately four inches in diameter around both eyes. She also had black and blue bruises on her legs, arms and cheeks and behind one ear. The physician who treated Beatriz assessed the injuries as being consistent with physical abuse and contacted the police. Appellant said she did not know how the injuries occurred. Beatriz reported to the physician that appellant told her not to say anything about how she had received her injuries. Her sister Alma said that she was sometimes afraid of appellant.
Police arrested appellant for felony child abuse. On December 9, 2003, the juvenile court detained Andrea pursuant to a section 300 petition and Alma and Beatriz pursuant to a section 342 petition. At that hearing, the juvenile court appointed the attorney (minors’ counsel) who already represented Alma and Beatriz to represent Andrea. Also on December 9, 2003, appellant gave birth to Jesus, who was detained on December 15, 2003. The juvenile court appointed minors’ counsel to represent Jesus. Two weeks later, at minors’ counsel’s request, the juvenile court ordered the Department to conduct an investigation pursuant to the Interstate Compact on the Placement of Children (ICPC) (Fam. Code, § 7900 et seq.) regarding placement of all four children with a maternal aunt in Mexico.
The Department’s January 15, 2004 jurisdiction/disposition report indicated that Alma was in one foster home, while Beatriz, Andrea and Jesus were in another. A social worker had interviewed Alma, who reported that she saw appellant hit Beatriz and put cockroaches in both Beatriz’s and Andrea’s mouths. Beatriz also stated that appellant had hit her and added: “My mom put a roach in my mouth, but I spit it out. . . . She is a bad mother and I don’t like her.” Both Alma and Beatriz said that they did not want to live with appellant. At that point, the whereabouts of two fathers identified by appellant were unknown. Appellant denied committing any physical abuse.
At the January 29, 2004 jurisdictional/dispositional hearing, the trial court admitted into evidence all prior reports, a police report and photographs of the children. It sustained all petitions as pled. The juvenile court declared Andrea and Jesus to be dependents of the court pursuant to section 300, subdivisions (a), (b) and (j), and terminated the home of parent order as to Alma and Beatriz. Pursuant to section 361.5, subdivision (b)(6), appellant did not receive any reunification services. The juvenile court ordered reunification services for a father who had recently appeared in the action. At the urging of minors’ counsel, the court further reiterated its order that an ICPC be conducted on the maternal aunt in Mexico for all children.
On June 24, 2004, the juvenile court conducted a review hearing pursuant to section 366.22 as to Alma and Beatriz and set the matter for a section 366.26 hearing.
In a July 29, 2004 review report, the Department reported that Andrea and Jesus were doing well in their foster home and behaving better since Beatriz had been removed from the home in May 2004. Appellant remained incarcerated. At that point, father was interested in caring for the children and the Department recommended that he be provided with additional family reunification services and more liberalized visitation. At the July 2004 hearing, the juvenile court increased father’s unmonitored visitation and, at minors’ counsel’s request, further ordered the Department to ensure that sibling visits occurred between all four children.
In January 2005, the Department reported that appellant had been released from prison on December 31, 2004 and had her first visit with Andrea and Jesus on January 6, 2005, which was appropriate. Father continued to have unmonitored all-day visits with the children. Though he wanted Andrea and Jesus in his care, he did not have appropriate housing for them to live with him.
All four children last visited with each other on September 30, 2004, before Alma and Beatriz moved to live with their maternal aunt in Mexico. According to the Department: “The children Alma and Beatriz were always excited to see their siblings [Andrea] and Jesus and they would hug and kiss them. The child [Andrea] would get excited and try to play with them. The child Jesus did not walk yet at that time, but they would give him a toy and give him a kiss.”
At the January 27, 2005 hearing, the juvenile court continued father’s visitation and allowed appellant to have monitored visitation, but specifically ordered that father and appellant not visit together. Appellant visited regularly for the next few months. Father stopped visiting in February 2005. On May 3, 2005, father was arrested and charged with assault with a deadly weapon after he shook, pushed and tried to cut appellant while she was four months pregnant. On the basis of that incident, the Department filed a petition under section 388 to modify father’s visits from unmonitored to monitored.
In its July 2005 review report, the Department indicated that the social worker had contacted the maternal aunt in Mexico once a month in April, May and June; each time she stated that she was unable to care for Andrea and Jesus. She reiterated that inability in July 2005, stating that she needed to focus on Alma and Beatriz. At the July 11, 2005 review hearing, the juvenile court terminated father’s reunification services and set the matter for a section 366.26 selection and implementation hearing, with adoption identified as the permanent plan. One week later, the juvenile court granted the Department’s section 388 petition and modified father’s visitation from unmonitored to monitored.
In November 2005, the Department reported that appellant continued to have monitored visitation for three hours per week and that she was affectionate with Andrea but not with Jesus. It also reported that Andrea’s and Jesus’s foster parents—who had initially indicated they were interested in adopting the children but recently decided they were not—had changed their minds again and now did want to adopt the children. They had cared for the children for the past two years and were committed to providing them with a permanent home. Both Andrea and Jesus had received regional center services—Andrea for speech delays and Jesus for global delays. Both were found likely to be adopted.
Later in November 2005, the Department reported that appellant had given birth to a baby girl, Alondra, in September 2005. In a separate proceeding, Alondra was declared a dependant of the juvenile court and placed with Andrea’s and Jesus’s foster parents. As of January 2006, the children were doing well in their foster placement and appellant continued to have weekly monitored visits with them.
On February 6, 2006, the foster parents’ adoption home study was denied. The juvenile court directed the Department to remove the children from their placement immediately, to replace them and to locate a suitable adoptive home. One month later, the Department reported that Andrea and Jesus were having difficulty adjusting to their new foster placement, but that it had located a prospective adoptive home for them together with Alondra. Appellant continued to have weekly monitored visitation, though she had recently missed a visit without explanation. Also in March 2006, appellant’s parental rights as to Alondra were terminated.
The Department placed all three children with their prospective adoptive parents in April 2006. The children adjusted well. Appellant began to miss more visits and had only visited with the children twice during the previous four months. Appellant had one visit with the children in July 2006. The visit went well, though Andrea started to cry when appellant left.
Although appellant had requested that the juvenile court hold a contested section 366.26 hearing, she failed to appear in court for the hearing on August 29, 2006. The juvenile court admitted the Department’s exhibits into evidence. In response to the juvenile court’s request for argument, appellant’s counsel stated: “No direction.” By clear and convincing evidence, the juvenile court found that Andrea and Jesus were likely to be adopted and terminated appellant’s parental rights. It transferred care, custody and control of the children to the Department for adoptive planning and placement.
Appellant timely appealed from the order terminating her parental rights. We granted the Department’s request to take judicial notice of a minute order in a subsequent hearing on October 30, 2006, in which the juvenile court terminated appellant’s parental rights as to Alma and Beatriz. Appellant did not appeal from that order.
DISCUSSION
For the first time in this action, appellant challenges the termination of her parental rights as to Andrea and Jesus on the ground that the juvenile court erred in failing to appoint separate counsel for those children. She claims the error was prejudicial because separate counsel could have elicited information that would have supported the application of the sibling relationship exception to termination set forth in section 366.26, subdivision (c)(1)(E). Even if appellant had preserved this claim for appeal by raising it below, we would find no error. Moreover, even if there had been some error, we would conclude that it was not prejudicial. We apply the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836 to a claim of error for the failure to appoint separate counsel for each sibling in a dependency proceeding. (In re Celine R. (2003) 31 Cal.4th 45, 59–60.)
Appellant did not raise the issue of separate counsel below when minors’ counsel was appointed to represent Andrea and Jesus or at any other time during the proceedings. For this reason, we need not consider the issue: “In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal.” (In re Christopher B. (1996) 43 Cal.App.4th 551, 558; accord, In re Anthony P. (1995) 39 Cal.App.4th 635, 640–642 [issue of sibling visitation waived if not raised in juvenile court]; In re Heidi T. (1978) 87 Cal.App.3d 864, 876 [issue of right to separate counsel for minors waived if not raised in juvenile court].)
Even if the issue had been preserved for our review, we would find no error. In In re Celine R., supra, 31 Cal.4th at page 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).) The existence of “multi-sibling permanent plans do[es] not necessarily involve an actual conflict” of interest. (Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1429.) Moreover, a “theoretical potential conflict of interest” is not enough to require the appointment of separate counsel. (Ibid.) Only if the best interest of one or more of the children conflict with the best interest of one or more siblings would an actual conflict of interest exist. (Id. at p. 1430.)
Here, there was neither an actual conflict of interest between the children nor a reasonably likelihood of one arising. Appellant suggests that an actual conflict arose when it became clear that Andrea and Jesus could not be placed with the maternal aunt with whom Alma and Beatriz were placed. We disagree. “[T]he obligation of counsel for a dependent minor is to pursue whatever is in the minor’s best interest.” (In re Candida S. (1992) 7 Cal.App.4th 1240, 1253.) The record demonstrates that minors’ counsel fulfilled her obligation by advocating for placements that served the best interest of each child. Indeed, the evidence showed that all children adjusted better once Alma and Beatriz were in one placement and Andrea and Jesus in another. Moreover, Andrea and Jesus were placed with their sibling Alondra, who had resided with them since she was born. The mere fact that the siblings were in two separate placements did not amount to an actual conflict. (See id. at pp. 1252–1254 [no actual conflict where counsel represented multiple siblings in different placements, some of whom wanted visitation with each other and some who did not].)
Finally, even if we were to find some reasonable likelihood of an actual conflict, we would conclude that the failure to appoint separate counsel was harmless error. Appellant contends that any error must be deemed prejudicial, reasoning that separate counsel could have sought to introduce evidence regarding the nature and quality of the relationship between the siblings, which could have supported the application of the sibling relationship exception contained in section 366.26, subdivision (c)(1)(e) and thereby prevented the termination of her parental rights. This contention is nothing more than speculation and is belied by the record.
The sibling relationship exception to terminating parental rights applies when the juvenile court finds there is a compelling reason for determining that termination would be detrimental to a child because: “There would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (§ 366.26, subd. (c)(1)(E).) This provision “contains strong language creating a heavy burden for the party opposing adoption.” (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) To invoke application of the exception, a parent must show: (1) the existence of a significant sibling relationship; (2) termination of parental rights would substantially interfere with that relationship; and (3) it would be detrimental to the child if the relationship ended. (In re L. Y. L (2002) 101 Cal.App.4th 942, 952.) Once the parent can show that a sibling relationship is so strong that its severance would be detrimental to the adoptive child, the court must then determine whether the benefit to the child of continuing the sibling relationship outweighs the benefit of adoption. (Id. at pp. 952–953.)
There is nothing in the record before us to indicate that separate counsel for the children could have assisted appellant in meeting her burden. There was no significant sibling relationship between Alma and Beatriz on the one hand and Andrea and Jesus on the other. Andrea lived with Alma and Beatriz for only one month when she was one year old, and Jesus never lived with them. They shared few, if any, common experiences. Although the Department reported that the children enjoyed their visits with each other before Alma and Beatriz were placed with their aunt in Mexico, there was no evidence of any type of strong bond or sibling relationship. Further, there was no indication that termination of appellant’s parental rights would interfere with any relationship. At the time of the section 366.26 hearing in this case, Alma and Beatriz’s permanent plan had been identified as adoption. Appellant’s parental rights to Alondra—the sibling with whom Andrea and Jesus resided—had already been terminated. Finally, there was no indication that Andrea and Jesus will suffer any detriment if they are unable to continue their relationship with Alma and Beatriz.
But even if there had been some showing that termination of appellant’s parental rights would interfere with the sibling relationship, separate counsel would have had no basis to assert that the benefit of such relationship outweighed the benefit that Andrea and Jesus would receive by gaining a permanent home through adoption. (In re L. Y. L., supra, 101 Cal.App.4th at pp. 952–953.) These circumstances are akin to those in In re Celine R., supra, 31 Cal.4th 45, where the court concluded that the failure to appoint separate counsel for three siblings was harmless error. There, the siblings lived together only for a short time when they were very young and, even if the younger siblings were not adopted, there was no possibility of them living with their older sibling. (Id. at p. 61.) Because the evidence did not support the application of the sibling relationship exception under section 366.26, subdivision (c)(1)(E), the appellate court found “it very unlikely that separate counsel would have convinced the court to make a different ruling when joint counsel failed.” (In re Celine R., supra, at p. 61.) The same is true here: There is no possibility that separate counsel could have successfully advocated for the application of the sibling relationship exception to the termination of appellant’s parental rights.
DISPOSITION
The order terminating appellant’s parental rights as to Andrea and Jesus is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.