Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County Nos. DP016854, DP016855, DP016856, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
Nicole Williams, under appointment by the Court of Appeal, for the Minor A.W.
Leslie A. Barry, under appointment by the Court of Appeal, for the Minors S.M. and S.R.
OPINION
MOORE, ACTING P. J.
The juvenile court did not err in not appointing separate counsel for the minor and her siblings, but even had the court erred, the mother has not shown the outcome would have been different had separate counsel been appointed. Nor did the court err in denying the mother’s petition under Welfare and Institutions section 388 or denying the mother’s request to apply the benefit or sibling relationship exceptions in section 366.26, subdivision (c)(1)(B)(i) & (v). (All statutory references are to the Welfare and Institutions Code.) We affirm.
I
FACTS
Minor A.W. was born in 2003. On April 4, 2008, A.W.’s 19-month-old sibling, S.R., fell off a bunk bed and was hospitalized for his second skull fracture in six months. A.W. and another sibling, S.M., born in 2005, were taken into protective custody by Orange County Social Services Agency (SSA) “due to allegations of general neglect.” A few weeks later, the mother gave birth to a fourth child.
The home was found to be dirty and unsafe. SSA’s report states: “The condition of the family home was unsanitary and posed several safety hazards, to include, but not limited to rodent infestation, exposed electrical wires, and cleaning supplies/paint thinner, and knives within reach of the children. The Social Services Agency has a lengthy history with the family and the condition of the home has been a chronic issue.” A.W. told the social worker the mice “have really sharp teeth and they bite [her] sometimes.”
C.M., the mother of the children, was convicted of petty theft in 2001 and driving without a license in 2003. T.W., A.W.’s father, was arrested for driving under the influence in 2002. In 2005, he was convicted of possessing marijuana, and in 2006, he was convicted of trespass. P.R., S.R.’s father, was arrested three times for thefts. There was insufficient identifying information for S.M.’s father, as the mother did not know his last name or date of birth, so a criminal record investigation could not be completed for him.
SSA had contact with the family on 11 previous occasions since 2003. The social worker said “the children should be assessed for detainment due to the mother posing a risk due to her untreated mental illness.” Since 2007, however, the family has been receiving voluntary services but “failed to benefit from services, resulting in the children being taken into protective custody.”
After the present detention, A.W. was placed with her paternal grandparents. They told SSA they “are committed to the adoption” of A.W.
The mother filed a petition under section 388. She requested that her “children be returned to [her] care and custody. In the alternative, [she requested] increased unmonitored visits including extended unmonitored visits including weekend and overnight visits.” The court gave lengthy and detailed reasons for its decision. Among the reasons is that the court saw results “inconsistent with mother having fully benefited from the things that she’s participated in and completed.” The court noted that when the mother was given an opportunity to have unsupervised visits with the children in a nonstructured environment, and “immediately we’ve got some problems with mom not supervising the children properly in parking lots. We have problems with mother not supervising the children properly in a park setting where there’s a lake and we’ve got a little child, such as [S.R.], who is very energetic, I guess, and not providing the appropriate supervision there.” The court commented that “when mom is given the opportunity to, actually, use all the skills that she’s been provided over the course of this case, she doesn’t, in an uncontrolled setting, seem to implement those skills.” Regarding A.W. specifically, the court expressed concern about the mother’s telling her daughter not to tell the social worker she was pregnant and not to mention they went to the mother’s boyfriend’s house during visits. The court stated: “To place the burden on a seven-year-old child, to say to that child, look. Mommy is going to have a baby, but you can’t tell anybody. You have to keep this secret with me, that is terribly inappropriate. And frankly, having her in a position where if she says the wrong thing about what occurred during a visit, for instance, oh, well, you know, what did you do on that visit? Oh, we went to Richard’s and we did this. And then to have her now in the middle of all this and having to decide where her loyalties lie and to have to decide on how to, now, deal with the problem because she doesn’t want to see her mom in trouble, I think - I think that was terribly inappropriate of mother.” The court said: “I think that the evidence that these children, especially [A.W.], need a structured and a stable and permanent home is without equivocation....”
The court discussed the mother’s codependency issues, and stated: “I really don’t see that there’s any real evidence that mother would be ready to take custody of these children within any particular time. There’s no evidence of that. The other - and I do have to be cognizant of the fact that this case has gone on for over two years now.” The court denied the mother’s petition.
The juvenile court conducted a hearing under section 366.26. SSA’s recommendation was for the court to find A.W. adoptable, terminate parental rights, make a finding that termination is not detrimental and refer A.W. for adoption.
A.W. testified during the hearing. By then, she was seven years old. She was asked how she feels about the mother and responded, “I really like her.” She later said she loves her. A.W. said she likes playing games with her brother and sister. She said she likes to see the mother, and when asked where she wants to see her, A.W. responded: “Usually, like, at the McDonald’s place ‘cause they have a good play place there.”
In ruling, the court stated A.W. is “absolutely adorable, ” and found “beyond a reasonable doubt” that she is adoptable. The court noted that “it’s not often we have a situation where siblings are dispersed quite so widely as these siblings are. We have one child who is with the father. We have another child with a grandparent. And we have two other children who are waiting to find out what their placement will be.” The court found that everyone concerned was committed to maintaining a sibling relationship among the children and concluded the mother failed to show termination of parental rights would substantially interfere with the sibling relationships.
The court continued with its findings: “With respect to the subsection 1 dealing with the parental benefit exception, clearly as all counsel I think had acknowledged the mother has been consistent, I mean rock solid consistent, in her taking advantage of all visitation which has been offered to her for the full extent of that visitation. So I think that clearly with respect to that first prong that the mother has met her burden with respect to that.” The court discussed the second prong separately for each child: “With respect to [A.W.] the analysis becomes much more difficult. There is a lot of evidence to suggest that [A.W.] truly looks forward to her contact with her mother, that she enjoys the contact with her mother, that her testimony was that she in fact would like to live with her mother.... [¶] The question is whether or not that relationship between the mother and [A.W.] is a parental relationship.” The court explained its concern: “And mother’s description of the relationship almost sounds more like she sees [A.W.] as a girlfriend. We can tell each other anything but we can share secrets. We have a good time. We have good things to talk about. It truly is of a friendly - status of a friendly visitor under those circumstances.” The court noted a psychologist’s report said A.W.’s problems “were mainly as a result of the neglect and having her life unsettled and not having permanency and stability, ” and that “the best thing we can do for her is find her a permanent and stable home.” The court concluded the relationship the mother has with A.W. “based on frequent and friendly contact is not parental in nature.”
After the hearing, the court terminated parental rights and placed A.W. for adoption. The court found that section 366.26, subdivision (c)(1)(B)(i) & (v) do not apply.
II
DISCUSSION
Ineffective Assistance of Counsel/Conflict
The mother argues minors’ counsel’s representation of the conflicting interests of A.W. and her siblings presented a conflict of interest. She contends “multiple representation of all of the children prevents trial counsel from representing the independent and conflicting interests” of the children, and the court “had a sua sponte duty to ensure no conflict of interest prevented any one of the children’s interests from being brought by that child’s attorney.”
For the sake of her argument, we assume the mother has standing to raise the issue of ineffective assistance of counsel on behalf of A.W. In analyzing her argument, we will also assume she has not forfeited her conflict claim by not raising it in the juvenile court.
“When first appointing counsel in a dependency matter, the court may generally appoint a single attorney to represent all the siblings. It would have to appoint separate attorneys if, but only if, there is an actual conflict among the siblings or if circumstances specific to the case-not just the potential for conflict that inheres in all multisibling dependency cases-present a reasonable likelihood an actual conflict will arise. If these specific circumstances exist, the court should appoint separate counsel at the outset rather than await an actual conflict and the possible disruption a later reappointment may cause.” (In re Celine R. (2003) 31 Cal.4th 45, 58.) “A court should set aside a judgment due to error in not appointing separate counsel for a child or relieving conflicted counsel only if it finds a reasonable probability the outcome would have been different but for the error.” (Id. at p. 60.)
“The following circumstances, standing alone, do not necessarily demonstrate an actual conflict of interest or a reasonable likelihood that an actual conflict of interest will arise: [¶] (i) The siblings are of different ages; [¶] (ii) The siblings have different parents; [¶] (iii) There is a purely theoretical or abstract conflict of interest among the siblings; [¶] (iv) Some of the siblings appear more likely than others to be adoptable; or [¶] (v) The siblings may have different permanent plans.” (Cal. Rules of Court, rule 5.660(c)(1)(C).)
In the present case, the siblings each have different fathers and it is likely they will be placed with different families. However, the juvenile court was satisfied all concerned were committed to maintaining a strong sibling relationship among the children. All of the children were similarly situated in that they were unsafe as a result of neglect. Even if the juvenile court should have appointed separate counsel, and we are not making that determination, the mother has shown no prejudice to A.W. as a result of not having separate counsel. Thus, there is no indication things would have been different had A.W.’s counsel represented her alone. Under the circumstances in the record before us, we cannot conclude the mother’s argument has merit.
Section 388 Petition
The mother next argues the court erred when it denied her motion under section 388. She contends the court did not analyze the evidence correctly.
“Section 388 allows a person having an interest in a dependent child of the court to petition the court for a hearing to change, modify, or set aside any previous order on the grounds of change of circumstance or new evidence.” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250. “‘[S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence’ is required. [Citation.]” (Ibid.) It “shall set forth in concise language any change of circumstance or new evidence that are alleged to require such change of order or termination of jurisdiction.” (§ 388, subd. (a).) “‘There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children.’” (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.) “[T]his statutory scheme itself is constitutional because of its many safeguards.” (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) We review the denial of a section 388 petition after an evidentiary hearing under the abuse of discretion standard. (In re S.R. (2009) 173 Cal.App.4th 864, 866.) We reverse only if under all the evidence (including reasonable inferences from the evidence), viewed most favorably to the ruling, no reasonable judge could have made that ruling. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
The court’s stated reasons for denying the mother’s motion under section 388 consume almost eight pages of the court reporter’s record. It is clear the court understood the nuances of the situation and carefully analyzed the mother’s motion. We cannot find that no reasonable judge could have denied the mother’s motion under section 388. Under these circumstances, we cannot conclude the court abused its discretion in denying the motion.
Section 366.26 (c)(1)(B) Exceptions
The mother next contends the juvenile court erred in not applying the exceptions under section 366.26, subdivision (c)(1)(B)(i) & (v). She argues she “maintained regular visitation with her children and she would benefit from continuing the relationship.” She also argues that “in this case, the social worker not only recommended continuing contact between [A.W.], the other children, and Mother, but also between [A.W.] and her siblings.”
The purpose of the California dependency system is to protect children from harm and preserve families when safe for the child. (§ 300.2.) If reunification is not possible within the statutory timeframe, the child must be provided a stable, permanent home by adoption, guardianship or placement in long-term foster care. (§§ 366.21, 366.22, 366.26.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 574.)
After finding a child is adoptable, the court is not mandated to terminate parental rights if “(B) 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: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. [¶]... [¶] (v) 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)(B)(i) & (v).)
This court applies the substantial evidence test to determine whether a section 366.26, subdivision (c)(1)(B) exception applies. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333-1334.) “If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.]” (Id. at p. 1333.) “[W]e draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion. [Citations.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]” (Id. at pp. 1333-1334.)
Under the parental benefit exception, the juvenile court may decline to terminate parental rights if “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The parent must demonstrate more than incidental benefit to the child. In order to overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child’s life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) When determining whether the exception applies to bar termination of parental rights, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. However, if severing the existing parental relationship would deprive the child of “a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
With regard to A.W., the court stated: “When you look at the overall picture, you’ve got to realize that the best thing we can do for her is find her a permanent stable home.” The juvenile judge also stated: “[T]he problems that this little girl was having at the time were mainly as a result of the neglect and having her life unsettled and not having permanency and stability.” Recognizing the mother visited regularly with A.W. and loves the child, and drawing all inferences in support of the juvenile court’s order, we cannot conclude there is a lack of substantial evidence to support the court’s finding the benefit exception inapplicable here.
The sibling exception to termination of parental rights applies when the parent demonstrates “[t]here would be substantial interference with a child’s sibling relationship....” (§ 366.26, subd. (c)(1)(B)(v); In re L. Y. L. (2002) 101 Cal.App.4th 942, 952.) To determine whether this exception applies, the court considers “the nature and extent of the sibling 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.’ [Citation.]” (In re L. Y. L., supra, at p. 951.)
Here the court made a specific finding there was not adequate evidence to indicate interference with the sibling relationship. The court also found that everyone concerned was committed to maintaining the sibling relationship. The evidence demonstrates S.M. lived in the same home as A.W. from birth until S.M. was four years old. S.R. lived with A.W. and S.M. for the first 20 months of his life. By the time of the section 366.26 hearing, S.M. and S.R. had been living separate from A.W. for over a year and saw each other once a week during the mother’s visits. Thus it appears the children have a shared sibling relationship. However, there is no evidence adoption will interfere with that relationship. We cannot conclude the court erred in not applying the section 366.26, subdivision (c)(1)(B)(v) exception.
III.
DISPOSITION.
The orders are affirmed.
WE CONCUR: FYBEL, J., IKOLA, J.