Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. Nos. JV 320035-A, JV 320035-B, JV 320035-C, JV 320035-D
Marchiano, P.J.
Jay L. (Father) appeals from orders entered by the Lake County Superior Court, Juvenile Division, that terminated his parental rights with regard to Shiloh L. (born June 2001) and Isiah L. (born Dec. 2002). Father claims there was insufficient evidence for the prerequisite finding that the minors were likely to be adopted. Father additionally asserts the existence of a strong bond between Shiloh and Isiah and their older half siblings, Angel L. (born Aug. 1995) and Keanu L. (born Jan. 1999), who are also dependent minors in this proceeding. He contends the juvenile court failed to give this bond due regard and hence erred by failing to find that the “sibling relationship” exception precluded the termination of his rights. (See Welf. & Inst. Code, § 366.26, subd. (c)(1)(E).) To ensure our consideration of the merits of the latter argument, Father raises alternate objections: a denial of effective assistance of counsel on his part, and a conflict of interest on the part of the attorney appointed to represent the four minors. As discussed below, we find no prejudicial error and affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Background
The Lake County Department of Social Services (Department) initiated this proceeding in mid-June 2004. At the outset the juvenile court detained Shiloh, who was a little over three years of age, and Isiah, who was only 17 months old. Some two weeks later, it detained Angel and Keanu, who were eight and five years of age, respectively. The four minors had been living with Father, their presumed father, and Leina L., the mother of Shiloh and Isiah. An amended petition identified Jasmine K., a resident of Hawaii, as the mother of Angel and Keanu. The Department placed Shiloh and Isiah in one foster home, and Angel and Keanu in another.
On July 6, 2004, the court sustained the allegations of the amended petition, establishing jurisdiction over the children pursuant to section 300, subdivisions (a), (b), (d), (g), and (j). The court entered dispositional orders for reunification services in August of that year.
The parties are well acquainted with the facts underlying the allegations of the original petition, as amended, as well as those underlying the allegations of two later petitions mentioned below. The issues presented by this appeal do not require that we state them here.
In March 2005, following the six-month status review hearing, the court returned the children to the custody of Father and Leina and ordered family maintenance services. Less than two months later, however, the Department filed a supplemental petition under section 387 and the court detained the minors once again. In late May 2005, the court entered jurisdictional and dispositional orders directing the resumption of reunification services.
About six months later, in mid-November 2005, the Department filed a subsequent petition under section 342, which as later amended stated new allegations under section 300, subdivisions (d) and (j). The juvenile court then held a combined hearing to establish jurisdiction on the subsequent petition and conduct a status review on the original and supplemental petitions. At the conclusion of this hearing on March 20, 2006, the court terminated reunification services for Father and Leina and set the matter for a section 366.26 hearing.
Father and Leina filed separate notices of intent to challenge these orders, and subsequently filed a joint petition for extraordinary writ in propria persona. This court gave their trial counsel an opportunity to submit supplemental briefing (see Cal. Rules of Court, rule 8.450(c)), and ultimately entered an order denying the petition. (Leina L. v. Lake County Superior Court (A113429, May 17, 2006), and Jay L. v. Lake County Superior Court (A113430, May 17, 2006).)
In its report prepared for the section 366.26 hearing, the Department incorporated two adoption assessments, one for Shiloh and Isiah and one for Angel and Keanu. The assessment for Shiloh and Isiah concluded it was likely they would be adopted together, and identified their foster parents as prospective adoptive parents. But the assessment for Angel and Keanu, noting there was no prospective adoptive parent, concluded they would be difficult to place for adoption because they were older, needed a single placement, and had special needs. The Department accordingly recommended the termination of parental rights as to Shiloh and Isiah, but asked the court to allow further time to find an appropriate placement for Angel and Keanu by continuing the section 366.26 hearing as to them.
On July 17, 2006—the first day of the section 366.26 hearing—the juvenile court continued the hearing as to Angel and Keanu until December 11, 2006. On July 24, 2006, the court concluded the section 366.26 hearing as to Shiloh and Isiah, terminating Father’s and Leina’s parental rights to these minors. Father appeals the latter orders. (§ 395.)
Father filed a separate notice of appeal on August 3, 2006, appealing the orders of July 24, 2006, as to Angel and Keanu (Case Nos. JV 320035-A, and JV 320035-B of the Lake County Superior Court). There were, however, no orders as to Angel or Keanu entered on that date.
Discussion
A. The Adoptability Finding
At a hearing to select a permanent plan for a child pursuant to section 366.26, the juvenile court “shall terminate parental rights and order the child placed for adoption” if it has found “by a clear and convincing standard[] that it is likely the child will be adopted.” (§ 366.26, subd. (c)(1).) Accordingly, at the conclusion of the hearing on July 24, 2006, the juvenile court terminated Father’s and Leina’s parental rights as to Shiloh and Isiah after finding “there is clear and convincing evidence” that these minors were likely to be adopted.
Father claims the evidence was insufficient to support this finding. In his view, the evidence shows (1) Shiloh and Isiah belong to a sibling group that includes Angel and Keanu; (2) they have both been victims of domestic violence and physical and sexual abuse; (3) Shiloh, as a consequence, exhibits aggressive and sexually inappropriate behavior; and (4) both Shiloh and Isiah are in therapy. He reasons that such factors make their adoption unlikely.
In reviewing the juvenile court’s adoptability finding, we examine the record to determine whether there is substantial evidence to permit a reasonable judge to make the finding under the clear and convincing evidence standard. (In re Erik P. (2002) 104 Cal.App.4th 395, 400 (Erik P.); see also In re Brian P. (2002) 99 Cal.App.4th 616, 623-624 (Brian P.).) We view the evidence in the light most favorable to the court’s determination, resolving conflicts in its favor and drawing only those reasonable inferences favorable to it. (See In re Jasmine C. (1999)70 Cal.App.4th 71, 75; In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
The adoption assessment submitted for Shiloh and Isiah reported that Shiloh had previously exhibited sexualized behavior, a symptom of sexual abuse. But it also noted that, “after several months” in foster care, he had begun to show “increased social adjustment” including behaviors indicative of “emotional security.” It stated further that, while still “emotional at times,” Shiloh had not exhibited sexualized behavior for several months and was “learning to ‘stand up for himself’ in appropriate ways.” The assessment said that Isiah’s mental and emotional status “appear[ed] to be good.” It reported that each child had had “a few therapy sessions with a counselor through [the county department of] mental health,” but there was no available documentation of these sessions.
The assessment also found each child’s medical condition to be “good overall.” Shiloh reportedly had an eye condition that could require future surgery, but otherwise he was “active,” had a healthy appetite, and slept well through the night. He displayed “no notable indicators of developmental delay.” Isiah reportedly had no serious or chronic medical conditions and was “meeting developmental milestones.” He, too, exhibited a healthy appetite and had no difficulty sleeping through the night.
While both children were still too young to be interviewed concerning their preference for placement, the assessment noted that the two showed they were “increasingly comfortable” in their foster care placement. Their current foster parents had demonstrated an understanding of the responsibilities that adoption entailed, and were “very committed” in their desire to adopt Shiloh and Isiah. These parents were deemed “suitable” to adopt them because they were in good health, had been married for 20 years, and had no criminal record or child abuse record. Shiloh and Isiah, for their part, had “established a positive and trusting relationship” with their prospective adoptive parents. The assessment thus concluded it was likely that Shiloh and Isiah would be adopted.
Viewing such evidence in the light most favorable to the juvenile court’s ruling, it is evident to us that Father’s objections lack merit. The assessment found Isiah’s mental and emotional condition to be good notwithstanding his history of abuse, and it found that Shiloh’s mental and emotional condition had improved significantly after several months of stabile foster care. It is not reasonable to infer that their mental or emotional condition is impaired simply because they have participated in therapy sessions. Further, we note that an inquiry into the adoptability of a child focuses on that child, taking into account such factors as his or her age, physical health, and mental health. (Erik P., supra, 104 Cal.App.4th at p. 400 .) Thus, the fact that Shiloh and Isiah belong to a larger sibling group may provide a basis for establishing a statutory exception to the termination of parental rights, as we discuss further below. It does not, however, affect their adoptability. (Id. at p. 401.)
Father argues additionally that the foster parents’ desire to adopt Shiloh and Isiah is not itself a sufficient indicator of adoptability absent evidence that others are also willing to adopt. He cites In re Jerome D. (2000) 84 Cal.App.4th 1200 (Jerome D.) as support for this proposition. That decision is distinguishable, however. In Jerome D., the adoption assessment was based on the fact that the child’s stepfather had expressed a willingness to adopt. The reviewing court held that this individual’s desire to adopt was not by itself sufficient to support a finding of adoptability, because he had not yet been sufficiently approved for adoption. In particular, his preliminary assessment did not include a screening for the existence of criminal records or referrals indicative of child neglect or abuse. (Id. at p. 1205; see § 366.22, subd. (b)(4).) Here, the Department had completed a preliminary assessment approving the prospective adoptive parents, and had found that they had “no criminal or child abuse record.” When an approved foster caregiver is committed to adoption, this fact indicates the child is “likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650; see also In re J. I. (2003) 108 Cal.App.4th 903, 911.)
We conclude there is substantial evidence to support the finding of adoptability. Viewed in the light most favorable to the juvenile court’s ruling, it is sufficient to permit a reasonable judge to make that finding under the clear and convincing evidence standard.
B. Applicability of the “Sibling Relationship” Exception
The fact that the juvenile court “has continued to remove the child from the custody of the parent . . . and has terminated reunification services[ is] a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] [t]here would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (§ 366.26, subd. (c)(1)(E).)
Father argues there was “strong evidence” before the juvenile court indicating the applicability of the foregoing “sibling relationship” exception. He adverts the facts that Shiloh and Isiah lived with Angel and Keanu for their entire lives prior to their initial detention, they returned to live briefly with Angel and Keanu during the course of these proceedings, and during the time they were separated maintained contact with them in the form of visits. Father suggests that a strong bond between Shiloh and Isiah on one hand and Angel and Keanu on the other is to be presumed from these facts. He reasons the proposed adoption of Shiloh and Isiah will necessarily sever that bond, and urges consequently that the juvenile court erred by failing to find that the “sibling relationship” exception applied to preclude termination of his parental rights.
At a section 366.26 hearing, once the social services agency has established that the child is likely to be adopted, the burden shifts to the parents to show that the termination of parental rights would be detrimental to the child based on one or more of the exceptions set out in section 366.26, subdivision (c)(1)(A)-(F). (Erik P., supra, 104 Cal.App.4th at p. 401.) In this case, Father sought to establish the “beneficial relationship” exception set out in subdivision (c)(1)(A). But, as Father concedes, he did not raise the issue of the “sibling relationship” exception set out in subdivision (c)(1)(E).
Ordinarily a party who fails to raise an issue with the trial court is deemed to have forfeited the right to raise it for the first time before a reviewing court. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Father requests that we nonetheless exercise our discretion to reach the issue. We are to exercise such discretion with special care in dependency proceedings, however, and do so only when the issue involves an important question of law. (Id. at pp. 1293-1294.) The issue here—the applicability of an exception set out in section 366.26, subdivision (c)(1)—is by no means a pure question of law, but calls for a detailed analysis of the particular facts. (See Erik P., supra, 104 Cal.App.4th at p. 403.) Father’s failure to raise the “sibling relationship” exception below effectively deprived the juvenile court of an opportunity to make an inquiry quintessentially within its province as trier of fact. Under such circumstances Father must be deemed to have forfeited his right to raise the issue for the first time here. (Erik P., supra, at p. 403.)
Father asks, at the very least, that we reverse the order terminating his parental rights and remand the matter so that the juvenile court may—belatedly—address the issue of the “sibling relationship” exception. To do so, however, would be contrary to the legislative policy to resolve dependency matters expeditiously, unless there is a showing that a new proceeding would have a different outcome. (See In re Jesusa V. (2004) 32 Cal.4th 588, 625.) As discussed below—in connection with Father’s claim of ineffective assistance of counsel—we conclude Father has not made such a showing.
C. Ineffective Assistance of Counsel
Father argues that, because his appointed trial counsel failed to raise the issue of the “sibling relationship”exception at the section 366.26 hearing, he was deprived of his statutory and constitutional rights to effective assistance of counsel.
In raising this objection, Father has the burden to show, first, that he was denied effective assistance of trial counsel, in that his counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law. Second, he must demonstrate actual prejudice, showing it is reasonably probable there would have been a different result in the absence of the error. This test is essentially the same whether Father grounds his claim on his statutory right or his constitutional right. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668 [statutory claim under section 371.5]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711-1712 [constitutional due process claim].)
Under the first prong of this test, Father must establish that the performance of his trial counsel was unreasonable under prevailing professional norms. We examine this issue in light of all the circumstances, including his counsel’s perspective at the time of the claimed error, and our standard of review is highly deferential. (Kimmelman v. Morrison (1986) 477 U.S. 365, 381.) When the claim is made, as here, on direct appeal, it is cognizable only if it is clear from the record that there can be no satisfactory reason for the challenged act or omission. (In re Darlice C. (2003) 105 Cal.App.4th 459, 463.)
We find the following circumstances to be pertinent, and indicative of Father’s counsel’s perspective at the time of the section 366.26 hearing. The Department’s report submitted at that hearing stated it was likely Shiloh and Isiah would be adopted and for this reason recommended the termination of parental rights as to them. On the other hand, the report recommended that the section 366.26 hearing be continued as to Angel and Keanu, because additional time was needed to determine an appropriate permanent plan for them. Jasmine, the mother of Angel and Keanu, appeared at the outset of the section 366.26 hearing to express her interest in having custody of these two minors. An older full sibling to Angel and Keanu, Elvis L., was already in her custody and care in Hawaii, as was an older daughter who was a half sibling to the three boys. Counsel for the Department expressed approval of such a placement, if it was approved by Hawaii’s social service agency pursuant to the Interstate Compact on Placement of Children. (See Fam. Code, § 7900 et seq.) If, however, that state’s agency ultimately rejected the placement, counsel noted the Department would seek “to move forward with trying to find another long-term permanent arrangement” for Angel and Keanu. Father made it clear at this point that he had no opposition to having Angel and Keanu placed with Jasmine in Hawaii. In fact, his trial counsel informed the court that Father “would love to see [Angel and Keanu] go home with their mother to Hawaii.” Father himself explained that he wanted Angel and Keanu “[t]o be with [their] older brother, because I want to see [these] boys all together.” By contrast, Father’s trial counsel stated Father did not “want to lose” Shiloh and Isiah. Thus, at the conclusion of the first day of the section 366.26 hearing, the court continued the hearing as to Angel and Keanu in order to await Hawaii’s approval or rejection of their proposed placement with Jasmine. It was on the second day of the hearing, on July 24, 2006, that Father’s counsel presented his opposition to the proposed termination of his parental rights to Shiloh and Isiah, by seeking to prove the application of the “beneficial relationship” exception under section 366.26, subdivision (c)(1)(A). At the beginning of this day’s session, counsel for the Department noted he had received an e-mail message from Hawaii’s agency, indicating it would be rejecting the proposed placement of Angel and Keanu with Jasmine. The court commented that the mother “still ha[d] some time . . . to get her situation better settled to accept the children,” although the agency’s message did not “bode well” for her prospect for approval.
Thus, around the time that Father’s counsel was preparing to oppose the plan of adoption for Shiloh and Isiah, Father expressed approval of a plan that, by virtue of the significant geographic separation it entailed, would necessarily interfere with any sibling relationship between Shiloh and Isiah on one hand, and their half siblings on the other. Father apparently preferred this plan to one that would not result in such interference, because it would give Angel and Keanu an opportunity to renew their relationship with their older, full sibling. This plan was still viable on the day Father’s counsel appeared to present the opposition she had prepared. Thus, at that time, any assertion of the “sibling relationship” exception would have been inconsistent with Father’s express position on the placement of Angel and Keanu. For this reason, it is not unreasonable to suppose that counsel’s failure to assert that exception was a tactical decision. We conclude, in turn, that the record does not support Father’s contention that there can be no satisfactory reason for counsel’s failure to raise the “sibling relationship” exception.
Even if we assume, for the sake of argument, that Father satisfied the first prong of the test, he must still demonstrate actual prejudice. On this point, we note that the record does not include events subsequent to the orders of July 24, 2006, including the outcome of the section 366.26 hearing as to Angel and Keanu. On the other hand, the Department’s report submitted at the section 366.26 hearing for Shiloh and Isiah showed that the prospective adoptive parents had facilitated contacts with Angel and Keanu and were “open to facilitating ongoing sibling contact in the future.” It also showed that the foster parent of Angel and Keanu had similarly facilitated such contact. In other words, the record before us does not support Father’s proposition that adoption will necessarily give rise to “substantial interference” with the sibling relationship between Shiloh and Isiah on one hand, and Angel and Keanu on the other.
More importantly, the juvenile court is required to consider “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).) That is, even if adoption will substantially interfere with a sibling relationship, the court must weigh the benefit to the child of continuing that relationship against the sense of security and belonging that adoption would provide. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951; see also In re Celine R. (2003) 31 Cal.4th 45, 61 (Celine R.).) The court must further apply the “sibling relationship” exception only if it finds that the termination of parental rights would be so “detrimental to the child” as to constitute a “compelling reason” not to terminate them. (§ 366.26, subd. (c)(1).) Overall, these requirements impose a heavy burden on any party opposing adoption by invoking the “sibling relationship” exception. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.)
As we have previously noted, Shiloh and Isiah were separated from their older half siblings when they were still very young. They continued to be separated for some nine months, lived again with Angel and Keanu for a period of less than two months, and then returned to a separate placement for another 15 months. During the periods of separation, their contact with Angel and Keanu was limited to weekly supervised visits with their parents and visits facilitated by the foster parents. The record indicates that Shiloh and Isiah had developed “substantial emotional ties” to their prospective adoptive parents, such that separation from them was “likely [to] be difficult.” Yet, there is no similar indication that they had developed or maintained strong ties with Angel and Keanu. Conversely, the record indicates Angel was “protective” of Keanu, yet does not indicate that he or Keanu had developed or maintained strong ties with Shiloh and Isiah. There is, in other words, little or no basis in the record for the juvenile court to make the necessary finding of detriment—that Shiloh and Isiah “felt such a bond with [their siblings] that they should not be adopted.” (Celine R., supra, 31 Cal.4th at p. 61.)
Further, we note again the evidence that adoption was likely for Shiloh and Isiah, but would be difficult for Angel and Isiah. Hence, a decision to keep all four minors in the same placement, in order to preserve their relationship, would effectively eliminate for Shiloh and Isiah any prospect of enjoying the benefit of an otherwise likely adoption. By the same token, if the minors remained in separate placements, the selection of a more tenuous plan of guardianship or long-term foster care would deprive Shiloh and Isiah of the immediate benefit of adoption by parents to whom they are already attached, but would serve only to insure the continuation of a sibling relationship necessarily limited in nature.
In light of the circumstances, we see no reasonable probability that the juvenile court would have reached a different result if Father’s counsel had raised and argued the “sibling relationship” exception of section 366.26, subdivision (c)(1)(E), and conclude that Father has not met his burden to show actual prejudice.
D. Conflict of Interest
Initially, the juvenile court in a dependency proceeding involving multiple minor siblings may appoint a single attorney to represent all of the minors, unless there is an actual conflict of interest among them, or the specific circumstances present a reasonable likelihood that an actual conflict will arise. After the initial appointment, the court is required to relieve the attorney from multiple representation only when an actual conflict arises. (Celine R., supra, 31 Cal.4th at p. 58; see § 317, subd. (c).)
Here, the juvenile court appointed a single attorney to represent the four children. Father concedes there was “probably” no initial conflict of interest among them. But in his view an actual conflict arose once the Department proposed a plan of adoption in the cases of Shiloh and Isiah and a continuance in the cases of Angel and Keanu. Father reasons, in effect, that by advocating adoption for Shiloh and Isiah, the minors’ attorney was unable to advocate in favor of Angel’s and Keanu’s interest in opposing the adoption so as to preserve their sibling relationship. Hence, he claims the juvenile court erred by failing to appoint separate counsel for each pair of siblings before proceeding with the section 366.26 hearing.
The decision in Celine R., involved multiple representation of an older child and her two younger half siblings. After the social services agency recommended adoption for the younger siblings, the older sibling told their counsel she would be “very hurt and very saddened” if she were to be “separated from her sibling group totally” as a result of the adoption of her younger siblings. (Celine R., supra, 31 Cal.4th at pp. 50-51.) By contrast, there is nothing in the record of this proceeding to show that Angel or Keanu ever voiced a similar concern. We agree with the Supreme’s Court’s observation that “[c]hildren’s interests are not always adversarial, and . . . should not always be treated as such.” (Celine R., supra, 31 Cal.4th at p. 56.) Hence, we do not accept the assumption implicit in Father’s contention, that an actual conflict of interest arose because Angel’s and Keanu’s interests were necessarily to oppose the adoption of their half siblings so as to preserve the sibling relationship.
See also Carroll v. Superior Court (2002) 101 Cal.App.4th 1423 (Carroll), in which the Court of Appeal held that one minor’s “expressed wish to maintain a sibling relationship” with another required counsel to advise that minor on the issue of the “sibling relationship” exception of section 366.26, subdivision (c)(1)(E), and that this duty was in actual conflict with the same counsel’s duty to advise the other minor concerning her interest in the “stability provided by adoption.” (Carroll, supra, at pp. 1426-1427, 1428.)
Even if we were to assume that an actual conflict of interest did arise when the Department recommended adoption for Shiloh and Isiah, Father has not made the necessary showing of actual prejudice. We will not reverse a juvenile court’s order based on its failure to appoint separate counsel for multiple minors, unless it appears reasonably probable there would have been a different result had the error not occurred. (Celine R., supra, 31 Cal.4th at p. 60.) We have previously concluded it is not reasonably probable that the juvenile court would have reached a different result if Father’s counsel had raised and argued the “sibling relationship” exception. Even if separate counsel for Angel and Keanu had additionally advocated the application of this exception, we reach the same conclusion for the same reasons.
Disposition
The orders of July 24, 2006, are affirmed.
We concur:
Swager, J., Margulies, J.