Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. Nos. J31380, J38354 & J38355
RUSHING, P.J.
Appellants Anthony G. and Kathleen K. are the parents of Anthony, Adam and Kelly G. and both have filed appeals following the denial of their petitions pursuant to Welfare & Institutions Code section 388 to reinstate reunification services following the trial court’s termination of their parental rights. Appellants make numerous arguments on appeal, focusing primarily on claims they received ineffective assistance of counsel and various stages of the dependency proceedings. Through this appeal, appellants seek to have the order terminating their parental rights reversed, and their reunification services resumed.
All further statutory references are to the Welfare & Institutions Code.
Statement of the Facts and Case
In September 2003, appellants were arrested as a result of a search warrant of their home. They were charged with possession of a controlled substance (Health & Saf. Code, § 11377), possession of paraphernalia (Health & Saf. Code, § 11364), possession of firearms when prohibited (Pen. Code, § 12021, subd. (c)(1)), and child endangerment (Pen. Code, § 273a, subd. (a)). Appellants’ three children were placed in protective custody at the time of appellants’ arrest, and on September 16, 2003, a petition was filed by the Monterey County Department of Social and Employment Services (Department), alleging that appellants’ children Anthony, age 9, Adam, age 7, and Kelly age 5, came within the provisions of section 300, subdivisions (b), (g), and (j).
On September 17, 2003, the children were ordered detained, and counsel was appointed for appellants.
At a pretrial hearing on October 12, 2003, the Department requested that visitation be temporarily suspended because “the parents have consistently been sabotaging the visits and the placement by telling the children not to listen to the social worker, the foster parents.” The court suspended visitation and ordered that resumption of visitation would be at the discretion of the Department. The matter was set for a jurisdiction/disposition hearing on November 14, 2003.
On November 14, 2003, appellants requested a contested jurisdiction/disposition hearing. The court ordered that both appellants submit to psychological evaluation, and that visitation of the children be suspended due the fact that the visits to date had been “destructive . . . to the children.” The matter was continued to December 2003 for a contested hearing.
On December 19, 2003, both appellants requested a continuance to retain private counsel. Specifically, father’s counsel requested a continuance to January 9, 2004, noting that his client had spoken to an attorney that he was “hopeful of retaining.” The court noted that the continuance request was based on the “speculation that there might be a new lawyer,” and denied the request. Appellants then submitted the matter, and the court sustained the petitions, adopting the recommended findings and orders, including finding that parental visits would be detrimental and ordering no visitation until the Department determined it to be safe. A six-month review hearing was set in May 2004.
At the six-month status review hearing held on May 14, 2004, the Department informed the court that father refused to take a recent drug test. The report prepared in advance of the hearing indicated that “[a]t no time has either parent ever acknowledged the dysfunction and chaos that led to the removal of the children,” and both parents had not acknowledged there was any drug problem. The report recommended continued services for the parents.
At the May 14th hearing, father requested a contested hearing on the issue of visitation. The court noted that there was already a visitation order in place, and informed counsel for appellants that they would need to file a section 388 petition to modify the previous order.
On July 20, 2004, the Department filed a section 388 petition requesting that reunification services be terminated, and the matter be set for a selection and implementation hearing pursuant to section 366.26. The section 388 petition alleged that appellants were sentenced to 365 days in jail as a result of the criminal convictions that gave rise to the dependency proceeding. In addition to incarceration, appellants were also ordered to participate in residential drug treatment when they completed their jail terms. The petition stated: “[t]here is simply not [enough] time for the parents to complete their jail sentence, [their] residential drug treatment program and case plan requirements prior to the expiration of the statutory reunification period.”
At the August 13, 2004 pre-trial hearing on the section 388 petition, the father and his attorney were present. There was also another attorney who was present and appeared for father. The court asked the new attorney if he was attorney of record to which the new attorney responded that he was not. After listening to the second attorney for a while, the court said: “Well, there is no such thing as a special appearance, I’m sorry to tell you that, but you’re not a party to this lawsuit. So, Mr. Nady [father’s counsel] is counsel of record as of this point.”
The father informed the court that he wanted to terminate Mr. Nady’s services because Mr. Nady had not communicated with him and was not representing him adequately. The court told father he could hire another attorney, or request a hearing to look into the adequacy of his current attorney’s representation. The court informed the father that the hearing could not be held that day, and he would have to request to have such hearing to be calendared in the future. The contested hearing on the section 388 petitions was set in September 2004.
At the contested section 388 hearing in September, both appellants were present and were still incarcerated. The Department submitted the matter on the petitions. The father’s attorney cross-examined the social worker, called the Director of Sun Street Center and father as a witness and introduced evidence. Mother’s attorney called mother as a witness and cross-examined the social worker. After considering the evidence, the court ruled that appellants were “a long way from even the first step in this case. And what we’ve been confronted with all along is denial on the part of both of these parents.” The court stated: “[appellants] have fought at every step the efforts of anyone to help them through their drug dependency issues . . . .” At the conclusion of the hearing, the court stated: “[t]his case is not even remotely close. Time is up. It’s up because the parents have stonewalled us all along.”
The court granted the section 388 petition, terminated reunification services, and set the matter for a section 366.26 hearing to terminated parental rights on January 7, 2005.
Following the termination of reunification services, father filed a timely notice of intent to file a writ petition pursuant to California Rules of Court, former rule 39.1B on September 17, 2004. Father listed himself as attorney of record on the notice. The court notified all attorneys of record, including father’s attorney, that a notice of intent to file a writ petition had been filed. On October 1, 2004, the clerk of the superior court mailed father, who was in county jail at the time, a copy of the record. Father did not timely file the writ petition, and in November, he filed a petition for extraordinary writ and a “Statement of Late Filing.” On January 24, 2005, this court denied father’s request to file a late writ petition on the ground that the court had lost jurisdiction over the matter.
On February 10, 2005, father filed a section 388 petition requesting the reinstatement of reunification services. The petition alleged a change of circumstances that he had been released from custody and now was able to “participate fully in reunification services, within the 18 month time frame. In response to father’s petition, the Department asserted that there was not a substantial likelihood that the children would be returned within the 10 month period given that 18 months would run out less than a month later, on March 12, 2005.
The court denied father’s section 388 petition on the ground that reunification could not occur within the 18 month statutory time lime, given that it was up in a month. The court stated: “[c]learly, I’m not going to grant reunification services at this point. It’s not only unlikely, in my opinion, it is impossible. It is impossible that reunification can occur between now and March . . . .” The court did allow supervised visitation with the children, provided the visitation was at the direction of the Department, and that father stipulate to drug testing prior to the visits.
The initial selection and implementation hearing pursuant to section 366.26 was set for March 11, 2005, and was continued a number of times. Throughout the continuances, the Department changed its recommendation for Anthony from adoption, to long-term foster care. The Department maintained adoption as a permanent plan for Adam and Kelly from the outset. By January 6, 2006, the Department recommended adoption as a permanent plan for all three children, and that parental rights be terminated as to all three. Anthony was now stating that he wished to be adopted with Adam, and Adam’s prospective adoptive family wanted this as well. The report further recommended that there be no further contact between the children and appellants based on a strong likelihood of interference by appellants if they were allowed contact.
On January 4, 2006, appellants filed section 388 petitions, seeking reinstatement of reunification services, visitation with the children and an order that the children be evaluated by a psychologist.
The court conducted a combined section 388 and section 366.26 hearing on January 6, 2006. The court approved adoption as a permanent plan for all three children, and terminated parental rights as to all three. The court stated in a written opinion that the Department had made “considerable efforts” to reunify the family, and that “[t]hese efforts failed because of the conduct of the parents and not as a consequence of any court order or lack of reasonable efforts on the part of the Department.” The court also found that there was no evidence that termination of parental rights would be detrimental to any of the children under the five exceptions in section 366.26.
Appellants filed notices of appeal from the order denying their section 388 petitions and the order terminating their parental rights.
Discussion
The focus of appellants’ appeal is that they received ineffective assistance of counsel at numerous stages throughout the proceedings, and in particular in regard to the court’s orders pertaining to visitation of the children. In addition, appellants assert that there was insufficient evidence to support a number of orders by the court.
Ineffective Assistance of Counsel in Dependency Proceedings
Appellants have the right to competent counsel at dependency proceedings (§ 317.5, subd. (a)) and a constitutional due process right to counsel at the dispositional and termination hearings because at these hearings critical decisions based on complex law were made which were determinative of his parental rights. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659-1667.) Appellants contend that their counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. As such, they have the burden of establishing this claim by a preponderance of evidence, by showing that trial counsel “ ‘(1) . . . failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates; and that (2) this failure made a determinative difference in the outcome, rendering the proceedings fundamentally unfair in that it is reasonably probable that but for such failure, a determination more favorable for [the parent's] interests would have resulted.’ [Citations.] In short, appellant has the burden of proving both that [counsel’s] representation was deficient and that this deficiency resulted in prejudice. [Citation.]” (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.)
“In general, the proper way to raise a claim of ineffective assistance of counsel is by writ of habeas corpus, not appeal.” (In re Dennis H., supra, 88 Cal.App.4th at p. 98, fn. 1.) That is because “[t]he establishment of ineffective assistance of counsel most commonly requires a presentation which goes beyond the record of the trial . . . [and] [a]ction taken or not taken by counsel at a trial is typically motivated by considerations not reflected in the record.” (In re Arturo A. (1992) 8 Cal.App.4th 229, 243.) Unless there simply could be no satisfactory explanation for trial counsel’s tactics, a party alleging ineffective assistance of counsel cannot seek review of his or her claim by way of direct appeal. (In re Darlice C. (2003) 105 Cal.App.4th 459, 463.)
Sufficiency of Evidence to Support the Orders
We review an order denying visitation for abuse of discretion and uphold the order if it is supported by substantial evidence. (See In re Daniel C.H. (1990) 220 Cal.App.3d 814, 839 [where substantial evidence supported the no-visitation order, the order was not an abuse of discretion].) “In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] ‘ “[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate].” ’ [Citations.]” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)
The October 10, 2003 Pre-Trial Hearing and Visitation Order
The Court made the following order at the hearing: “Visitation by the parents is suspended and will be from this point forward in the discretion of the Department.” The minute order states: “Parents[’] visitation is suspended pending further hearing or until an agreement is reached by the parties. Visitation is at the discretion of the Social Worker.”
Appellants assert their counsel were ineffective for failing to object to the order, because it vests too much authority in the Department, rather than the court. Additionally, appellants assert there was insufficient evidence to support the order.
The Department concedes that the order limiting visitation “appears to vest too much authority in the Department to resume visitation.” However, it asserts appellants cannot demonstrate their counsel’s act of not objecting to the order resulted in prejudice.
Specifically, the Department notes that appellants actually had two visits during the four week period between the October 10th hearing and the November 13th hearing, one on October 16, 2003, and another on November 7, 2003.
Because appellants had two visits during the period following the order, and they offer no additional explanation of prejudice, we find appellants have not shown that they were prejudiced by their counsel’s failure to object to the visitation order, and did not suffer ineffective assistance of counsel. Moreover, the record sheds no light on what considerations motivated counsel to take such a restrained approach in this case, and we cannot say that counsel’s failure to object was not the result of some tactical choice.
With regard to the claim of sufficiency of the evidence to support the order, we note the record demonstrates that during the two visits prior to the October 10th hearing, there were problems with appellants’ behavior noted by the social worker. Specifically, during the visit on September 22, 2003, the social worker had to interrupt the visit three times because appellants were making derogatory comments about the foster parents to the children, and were telling the children not to talk to anyone about everything. After the social worker interrupted, the mother continued to try to whisper to the children, requiring the social worker to sit in on the rest of the visit. The September 29, 2003 visit had to be stopped early due to appellants making inappropriate comments and questioning the children about the case.
We find the visits prior to the October 10th hearing and appellants’ behavior towards the children during those visits supports the court’s order suspending visitation.
The November 14, 2003 Contested Jurisdictional/Dispositional Hearing and Visitation Order
At the November 14, 2003 jurisdictional/dispositional hearing, the court ordered that visitation be suspended “pending evaluation and assessment of the children and the family by the Behavioral Health pending recommendations being put to the social worker by Behavioral Health mental health professionals, and than the Department can begin to reintroduce visits in their discretion as appropriate.”
This order was made in response to the Department’s request that visitation be suspended until the children were in therapy and the parents completed psychological evaluation. In making the order, the court found that “[t]he visits have been destructive at this point to the children. That’s clear . . . [¶] The children have been hard on each other, and they certainly have not [profited] from the visits so far.”
Like the October 10th hearing discussed, appellants assert their counsel were ineffective for failing to object to the November 13th order suspending visitation, because the order was an improper delegation of judicial authority, and that there was insufficient evidence to support the order.
Appellants have not demonstrated what considerations motivated counsel not object to the order, and we cannot say that counsel’s action was not the result of some tactical choice. Moreover, there is no evidence counsel’s failure to object resulted in prejudice to appellants. Indeed, the basis for the court’s decision to suspend visitation was appellants’ own conduct at prior visitations and the affects it was having on the children. Therefore, even if counsel objected, there is nothing to indicate the court would not have taken the same course.
Moreover, the court’s decision to suspend visitation was supported by substantial evidence. The court noted that it had read and considered the jurisdictional/dispositional report from the Department, that included information about the visits and the fact that appellants continued to communicate inappropriately with the children, including questioning them about the foster parents’ identity and telling them not to talk to anyone. In addition, the court considered the family assessment that stated in part: “[s]ince the children all appear to be acting out more after visits with their parents, it is recommended that visits remain suspended until the children can begin to feel safe enough to disclose more about their lived experiences.” Finally, the court considered a letter from the foster parents that indicated that appellants told the children “we got a new $10,000 lawyer and you’ll be home in two weeks,” and “you don’t need to obey your foster parents . . . .” Based upon this evidence, we find support for court’s November 13th order to suspend visitation.
In addition, we do not find the order was an improper delegation of the court’s judicial authority. The circumstances of this case are analogous to In re Chantal S. (1996) 13 Cal.4th 196 (Chantal S.), where the court upheld an order that provided for visits for the father “ ‘to be facilitated by [the daughter’s] therapist,’ ” and further provided that the father must attend therapy regularly and make satisfactory progress before any such visits “ ‘as determined by his therapist.’ ” (Id. at p. 202.) In Chantal S., the court observed that these orders represented the juvenile court’s conclusion that visitation was not appropriate until the father had made satisfactory progress in his therapy. Because the court set certain criteria for visitation, there was no improper delegation of authority. Similarly, here, the court set criteria for the visit by providing that it was authorized if therapeutically appropriate and thus in the children’s best interests. Although the timing and frequency of the visits are not defined, the order states that visitation can resume following an evaluation and assessment of the family, with recommendations being made to the social worker. As a result, the court’s November 13th order did not improperly delegate judicial authority.
Six-Month Review Hearing
Appellants assert a number of errors regarding the six-month review hearing, including that their counsel was ineffective for failing to object to the court’s finding that they had been provided reasonable reunification services, and that the trial court erred in requiring father to file a section 388 petition to contest the visitation order.
The basis for appellants’ argument that they were not provided reasonable reunification services is that the Department did not provide visitation between the parents and the children.
We have already evaluated the court’s basis for limiting visitation, and concluded that the orders were supported by substantial evidence. Therefore, to the extent appellants base their argument that they were denied reasonable reunification services because visitation was limited, their argument fails.
Moreover, the trial court did not err by requiring father to file a section 388 petition to contest the visitation order that was made prior to the six-month review hearing. The order that limited appellants’ visitation was made at the jurisdiction/disposition hearing, prior to the six-month review. While visitation is normally an issue at the review hearing, here, visitation had already been suspended prior to review. As a result, in order to amend that order, father would need to file a section 388 petition based on a “change in circumstance or new evidence . . . .” (Section 388, subd. (a).) The trial court did not err by requiring father to file a petition.
Termination of Reunification Services Hearings
Here, the Department filed a section 388 petition on July 20, 2004, after the six-month review hearing, but before the 12-month hearing to terminate services because both parents had been arrested, were incarcerated, and would remain incarcerated for longer than the statutory reunification period. Appellants make numerous arguments of error regarding the Department’s section 388 petition, including that the trial court erred in denying father’s request for a Marsden hearing, and in finding that reasonable reunification services had been offered to appellants.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On August 13, 2004, at the pre-hearing on the section 388 petition, father brought another attorney with him to court and asked the court to appoint the new attorney to represent him. The court declined, and explained to father that he would need to request a hearing on his current appointed counsel’s representation. The court further indicated that such hearing would have to be calendared for a different day. Father did not request to calendar such hearing.
On appeal, father asserts the trial court erred by denying his request for a hearing pursuant to Marsden, supra, 2 Cal.3d 118. While the record shows the court informed father of his right to request a Marsden hearing and that such hearing would need to be calendared on a different day, it does not show that father actually made such request for a hearing that was denied. The court never denied father’s request for a Marsden hearing.
Moreover, the court did not abuse its discretion in granting the Department’s section 388 petition to terminate reunification services and set the matter for a section 366.26 hearing. A trial court’s ruling on a section 388 petition is reviewed for abuse of discretion, and the ruling is not disturbed on appeal unless an abuse is shown. (In re Michael B. (1992) 8 Cal.App.4th 1698.)
Here, the record demonstrates the court considered the efforts made by appellants up to the hearing, and in keeping with the provision of section 361.5, subdivision (e)(1), that dictates the grant of reunification services when a parent or parents are incarcerated, determined that continued services were detrimental to the children. Specifically, the court noted with regard to appellants’ progress in the case: “we’re a very long way away from sobriety . . . on either of their parts to the point where we could even begin again with the kind of therapy intervention that is going to be necessary in order to help them understand how badly they’ve damaged their children, and how they would need to behave in the future if they were to avoid continuing to damage their children.”
Section 361.5, subdivision (e)(1)provides: “[i]f the parent . . . is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child.”
Based on the court’s finding related to appellants’ conduct and progress, we find no abuse of discretion in the court’s grant of the Department’s section 388 petition to terminate reunification services.
Appellants’ Section 388 Petition to Reinstate Reunification Services
Prior to the section 366.26 hearing to terminate parental rights, appellants filed a section 388 petition to reinstate reunification services. Appellants assert the trial court erred in denying the petitions to reinstate, on the ground that the court had discretion to continue reunification services beyond the statutory 18 month period.
It is true that in the exceptional case the court has the discretion to order more than 18 months of services. (In re Elizabeth R., (1995) 35 Cal.App.4th 1774, 1793-1799; In re Daniel G. (1994) 25 Cal.App.4th 1205, 1213-1214; In re Dino E. (1992) 6 Cal.App.4th 1768, 1777-1778; § 352.) However, the cases finding such circumstances have “uniformly involved some external factor which prevented the parent from participating in the case plan.” In re Elizabeth R., supra, 35 Cal.App.4th at pages 1790-1792, involved a mother who had worked hard to comply with the case plan but had been hospitalized during a critical stage of the reunification period. As a result, she could not participate in her case plan, necessitating a continuation of the reunification period beyond the 18-months.
Here, the record does not demonstrate the kinds of “extraordinary circumstances which militate[] in favor of extension of family reunification services beyond the 18-month limit.” (In re Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377 (Andrea L.) This case is more like Andrea L., where the mother’s cocaine relapse was not found to constitute the extraordinary circumstances or special needs necessary to support an extension of services beyond 18 months. As in Andrea L., appellants received reasonable family reunification services. Appellants’ failure to adhere to and progress on the case plan was not caused by forces over which they had no control. As a result, appellants are not entitled to an extension of reunification services beyond the 18-month statutory period.
Children’s Wishes
Mother asserts that counsel for the children was ineffective because counsel failed to interview the children about their wishes, and failed to advocate for Anthony who wished to be present at a court hearing.
Section 317, subdivision (e) dictates the requirements of counsel appointed to represent dependent children and provides in relevant part: “The counsel for the child shall be charged in general with the representation of the child’s interests. To that end, the counsel shall make or cause to have made any further investigations that he or she deems in good faith to be reasonably necessary to ascertain the facts . . . . He or she may . . . participate further in the proceedings to the degree necessary to adequately represent the child. In any case in which the child is four years of age or older, counsel shall interview the child to determine the child’s wishes and to assess the child’s well-being, and shall advise the court of the child’s wishes.”
Here, the record demonstrates that the children’s counsel did not interview the children about their wishes, and did not communicate the children’s wishes to the court. While counsel failed to follow the statutory requirement of advising the court as to the children’s wishes, mother has failed to show prejudice. Specifically, the court had ample information regarding the children’s wishes, including all of the reports filed with the court. Therefore, the children’s counsel’s failure to communicate the children’s wishes to the court was not prejudicial, because the court was well aware the children wished to be with their parents.
In addition, mother asserts children’s counsel failed to advocate for Anthony’s wish to attend the selection and implementation hearing on September 13, 2005; however, she fails to demonstrate prejudice from counsel’s failure. Specifically, the court had a report on Anthony’s wish to be present, the fact that he had changed his position on that wish, and the fact that Anthony’s therapist was of the opinion that his “behavior and emotional progress will be put at risk if he were to have physical contact with his parents at this time.”
It is clear from the evidence that children’s counsel was aware of Anthony’s wish to attend the hearing, and also that in Anthony’s therapist’s opinion, contact between Anthony and his parents was not recommended. The fact that he did not advocate for Anthony’s attendance at the hearing has not been shown to be prejudicial.
Section 366.26 Hearing to Terminate Parental Rights
When a hearing is held pursuant to section 366.26, the juvenile court must make one of four possible alternative permanent plans for the child (§ 366.26, subd. (b)(1)-(4)). The legislative preference for a permanent plan is adoption. (In re Brian R. (1991) 2 Cal.App.4th 904, 923-924.) To terminate parental rights and order adoption, the juvenile court must find by clear and convincing evidence that “it is likely the child will be adopted . . . .” (§366.26, subd. (c)(1).) We review the juvenile court’s findings under the substantial evidence standard. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224.)
“The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent ‘waiting in the wings.’ [Citations.] [¶] Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor 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, italics omitted.)
In this case, the children all had identified prospective adoptive parents at the time of the termination of parental rights. Adam had been placed in a home since June 2005 with foster parents that wished to adopt him. Adam’s foster family also wished to adopt Anthony, and was working on transitioning Anthony into their home. Moreover, Adam told the adoptions social worker many times that he wanted his foster home to become his permanent home. In addition, Kelly had been placed in a home since June 2005, and her foster parents had expressed a desire to adopt her, and she expressed the same desire that her foster family become her permanent home. Therefore, the court’s finding of adoptability is supported by the fact that there were identified available families expressing strong desire to adopt the children.
We find substantial evidence to support the trial court’s finding that the children were likely to be adopted at the section 366.26 hearing.
The Sibling Exception to Termination of Parental Rights
Appellants argue their counsel was ineffective for failing to assert the sibling exception to termination of parental rights in the trial court. The sibling exception described in section 366.26, subdivision (c)(1)(E) arises when “[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.” To establish this exception the 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 being adopted if the relationship ended. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952; see In re Celine R. (2003) 31 Cal.4th 45, 54.) If the parent makes this showing then the juvenile court balances the benefit to the child of continuing the sibling relationship against the benefit of adoption. (In re L.Y.L., supra,101 Cal.App.4th at pp. 952-953.)
Here, there is no evidence the sibling exception applies, because there is nothing to indicate the relationships among the children will be altered or end as a result of the termination of parental rights. Although the children are not all placed together, they are enjoying regular visits with each other. As of December 2005, Anthony was spending many weekends with Adam’s prospective adoptive family and this family, along with Kelly’s prospective adoptive parents were in regular contact to facilitate sibling visits. Therefore, even if the issue of the sibling exception was raised in the lower court, there is nothing to indicate that termination of parental rights would harm the sibling relationships such that it would outweigh the benefits of adoption for the children. We find no error in counsel’s failure to raise the sibling exception in the trial court.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.