Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. CK56698 Albert Garcia, Referee.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Mother appeals from a judgment terminating her parental rights to her son, a dependent child of the juvenile court, pursuant to Welfare and Institutions Code section 366.26. She claims that the trial court erroneously denied her motion, made on the day of the section 366.26 hearing, to continue that hearing. We find that the trial court’s denial of that request for a continuance did not abuse its discretion. Mother also claims that the denial of the continuance forced her to proceed with ineffective counsel, but Mother has not shown either that counsel was ineffective or that counsel’s ineffective assistance caused her prejudice. We find no error and affirm the judgment.
Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
Detention:
Nickey J., age 11, and Christopher J., age 2, the children of appellant Maria J. (Mother), came to the attention of the DCFS when security at a hotel in Reseda reported to police that Nickey and Christopher were left alone in a hotel room. Nickey stated that Mother was homeless and he and Christopher stayed with an aunt, uncle, and their daughter. Nickey also stated that he had not attended school for the previous two years because his mother had been homeless for that period. The aunt stated that Mother left the children with her two weeks earlier, and was in San Francisco and San Jose, but could provide no emergency information for Mother. She contradicted Nickey’s statement that Mother visited the children the previous day and said he attended school regularly. A woman claiming to be the children’s mother arrived at about 9:00 p.m., stating that she was there to pick up her children. She was later revealed to be the children’s aunt, not their mother.
The uncle was upset about DCFS intervention and offered the CSW $2,000 to return the children. When the CSW refused, the uncle offered to give a new car to the CSW, who again refused. The next day the uncle told the CSW if he did not get care of the children he would kill himself or pay someone $500 to kill him in court and the CSW would be responsible. The DCFS also learned Nickey was a prior dependent child in San Diego County. The DCFS concluded that the children’s safety was of immediate concern and that Mother had failed to protect the children from serious harm, and detained Nickey and Christopher on September 6, 2004.
The juvenile court found a prima facie case was established to detain Nickey as a person described by section 300, subdivisions (b) and (c) and to detain Christopher as a person described by section 300, subdivision (b), and ordered them detained.
Christopher’s father was located, and said he had served 19 months in jail for theft of elder/dependent adult; he had previously been convicted of prostitution and possessing a controlled substance, and had been arrested for battery. He had lost contact with Mother and Christopher. Nickey’s father’s whereabouts were unknown. Mother’s whereabouts was unknown.
Petition:
The DCFS filed a first amended petition on October 21, 2004. It alleged that Nickey and Christopher were persons described by section 300, subdivisions (b) [children suffered or risked suffering physical harm or illness due to parent’s failure or inability to supervise or protect children] and (g) [children suffered or risked suffering serious emotional damage resulting from parent’s leaving minor without care, support, or supervision] and that Nickey was a person described by section 300, subdivision (c) [child suffered or risked suffering serious emotional damage because parent failed to insure that Nickey regularly attended school].
Adjudication and Dispositional Hearings:
On January 18, 2005, the juvenile court sustained allegations of the amended petition pursuant to section 300, subdivisions (b), (c), and (g), and found that the children were left without provision for support and had no parents to maintain care, custody, and control, and that the parents’ whereabouts were unknown. The juvenile court ordered custody of the children taken from the parents and placed with the DCFS, no reunification services for Mother pursuant to section 361.5, subdivision (b)(1), monitored visitation for the parents, and individual counseling for Nickey and Christopher.
At the dispositional hearing on March 24, 2005, the juvenile court declared Nickey and Christopher dependent children of the juvenile court. The matter was set for a section 366.26 permanent plan hearing on July 19, 2005. This hearing did not occur until January 8, 2009.
On June 24, 2005, the DCFS filed an ex parte application to continue the July 19, 2005, section 366.26 hearing. The DCFS alleged that the children’s placements were disrupted on April 17, 2005, causing the permanent plan to need re-evaluation. The juvenile continued the hearing to October 28, 2005.
On July 19, 2005, the DCFS stated that foster parent Marisela M. reported that Nickey might be sexually touching Christopher, who told her “Nickey licks my pee pee.” Marisela M. also caught Nickey secretively calling for Christopher to come to his room late at night, and found them sleeping together in the morning. She also reported that Nickey became easily frustrated with Christopher and was sometimes physically aggressive toward him, pushing and hitting him. Christopher was examined, but no physical evidence of sexual abuse was found. Christopher told the evaluator, “Nickey licks my pee pee.”
While living in Marisela M.’s home, Nicky and Christopher had monitored visits with their maternal grandmother, Patricia J. She visited consistently, but often violated visitation rules by not observing time restraints set for phone calls and by allowing unauthorized family members to speak with the children. Patricia J. and other relatives repeatedly called, harassed the foster family, and threatened the foster parents. The police intervened. The DCFS determined the home unsafe and removed the children on April 16, 2005. The children were separately placed because of Nickey’s suspected sexual abuse of and aggressive behaviors toward Christopher.
Mother had no contact with the DCFS during this period. At a six-month review hearing on July 26, 2005, the juvenile court ordered the DCFS to provide permanent placement services to the children and parents, ordered sibling visits, and set a review of permanent plan hearing for January 18, 2006.
In an ex parte application filed on September 29, 2005, the DCFS stated that it would recommend termination of parental rights with adoption for the children, and requested vacation of an October 28, 2005, section 366.26 hearing and for the matter to be set for a new hearing in 120 days for the DCFS to obtain Nickey’s birth certificate and publish notice to the mother and father. The juvenile court granted the application and set a permanent plan hearing for January 18, 2006.
For an October 28, 2005, progress hearing, the DCFS reported that Nickey and Christopher remained separately placed. The DCFS could not locate Mother. On October 19, 2005, Christopher’s foster care gave a 7-day notice because of his behavior problems.
The DCFS explored placing the children with relatives as a permanent plan. No one was yet willing to adopt Christopher, who was diagnosed as autistic and had problems sleeping, and whose therapist believed he suffered from reactive attachment disorder.
As of January 18, 2006, the children remained separately placed. Christopher adjusted well to his latest foster home and his behavior had drastically improved. Mother had not contacted the DCFS or her children since this dependency case began. The DCFS had two applicants interested in adopting Christopher. Maternal grandmother Patricia J. stated she was interested in adopting them. The DCFS was working with her as a possible placement, although her prior felony convictions raised concerns. The DCFS was also concerned about whether Patricia J. could protect Christopher and monitor Nickey if both children were placed with her. The DCFS recommended a plan of adoption for Christopher and a plan of long-term foster care for Nickey if he could not be adopted by a relative.
In the January 18, 2006, hearing, the juvenile court ordered weekly sibling visits and gave the DCFS discretion to permit unmonitored visits with the grandmother. The juvenile court ordered a permanent plan of planned permanent living arrangement with foster care, and set a review of permanent plan hearing for July 12, 2006.
Mother’s Section 388 Petition:
On April 3, 2006, Mother contacted a CSW and stated that she wanted to visit with the children and to be part of the case. On April 7, 2006, Mother filed a section 388 petition seeking modification of visitation orders to include visits for Mother. The petition stated that Mother intended to relinquish her rights to the maternal grandmother and for the maternal grandmother to have legal guardianship. The juvenile court denied the petition, finding that it failed to state facts supporting the allegations, new evidence or a change of circumstances, or that the requested modification would promote the children’s best interests.
July 12, 2006, Review Hearing:
For the July 12, 2006, hearing, the DCFS reported that in an April 27, 2006, meeting, the CSW told Mother she could start unmonitored visits the next week and that maternal grandmother could act as monitor. Mother stated that during the dependency case she was incarcerated for embezzlement and for violating parole by failing to pay money she owed.
On June 16, 2006, the DCFS learned that the foster parent reported that an alternate caretaker, while babysitting, heard Christopher ask another boy in the foster home to massage him. The other boy massaged Christopher’s feet, and then Christopher said, “Up here and give me a hug.” The caretaker found the other boy on top of Christopher, whose pants were down. The foster parent overheard Christopher, on June 12, 2006, ask the other boy to lie on the floor, then pat and pinch his buttocks and begin to remove the boy’s pants. The foster parent asked what they were doing and Christopher said they were playing doctor. On June 16, 2006, the CSW informed the maternal grandmother that since her unmonitored visits had begun, Christopher acted out sexually with another child in his foster placement and touched the other child inappropriately. The other child was removed as a result. Because of these allegations, the maternal grandmother was to visit the children separately with no other family members present, including Mother. Mother stated she was going to be out of the state for awhile and wanted to visit the children when she returned.
On July 12, 2006, the juvenile court ordered a permanent plan of planned permanent living arrangement with foster home and a specific goal of a less restrictive setting, and set the matter for a review hearing on January 10, 2007. On November 17, 2006, the juvenile court allowed placement of Nickey with his maternal grandmother.
January 10, 2007, Review Hearing:
For the January 10, 2007, hearing, the DCFS reported that Nickey was placed with his maternal grandmother and Christopher was placed in foster care. Although Christopher’s behavior continued to improve, on December 21, 2006, after a visit with his brother and grandmother, Christopher took twice as long to settle down and he became more defiant and increasingly failed to follow his caregiver’s directions. Individual counseling did not appear to help Christopher, and the CSW and a foster family child social worker recommended he be assigned a new therapist.
Mother visited with Nickey and Christopher on December 17, 2006. Otherwise Christopher’s parents had not visited him during this period.
On January 10, 2007, the juvenile court ordered a permanent plan for Nickey of permanent placement with maternal grandmother, and for Christopher of planned permanent living arrangement in foster care. The juvenile court set the matter for a progress hearing on February 21, 2007, and a review of permanent plan hearing on July 11, 2007.
February 21, 2007, Hearing:
For the February 21, 2007, hearing, the DCFS stated that Christopher’s therapist reported that things had worsened in his placement. Christopher had exhibited hypersexual behavior with his therapist. During a short period when he was placed in another home, Christopher disrobed in front of the other children. The DCFS reported that the maternal grandmother had very limited insight into issues of allegations of sexual abuse and defended Nickey and herself. Her position placed Christopher at increased risk of being victimized if placed with her, as she was not open to the possibility that Nickey molested Christopher and was biased in favor of Nickey. Christopher’s visits with Nickey were suspended, after which Christopher’s behavior improved and he no longer exhibit hypersexual activity.
On February 21, 2007, the juvenile court ordered monitored visits of at least three hours a week between Nickey and Christopher. In February and March 2007, attempts to set up monitored sibling visits were unsuccessful. As of March 8, 2007, there had been no sibling visits since February 20, 2007.
On March 28, 2007, the juvenile court ordered the DCFS to arrange sibling visits. On April 22, 2007, Christopher visited with Nickey and maternal grandmother for two hours. Christopher wanted to be with Nickey all the time, but did not show much affection to his grandmother. The monitor observed that there was no communication with Christopher about his school, what he was learning, or what activities he enjoyed.
Former foster parents of Christopher expressed interest in adopting him, and although they desired no contact with maternal grandmother and did not want her to know their identity or where they lived, they were willing to continue sibling visits as long as they were not monitors of those visits. The former foster parent had previously asked for Nickey and Christopher to be removed from her home after the maternal grandmother had left threatening phone messages. The former foster parent tried to locate Christopher for two years, felt Christopher was part of her family, and stated that Christopher called her Mom and her husband Dad. As of July 11, 2007, the DCFS reported that Christopher’s behavior improved, there were no additional problems after monitored visitation with Nickey. The DCFS was starting visitation with prospective adoptive applicants for Christopher.
Nickey continued placed with his maternal grandmother, but the DCFS had concerns about this placement. These concerns included other people living in the home who had not been live scanned, Nickey not attending school or counseling regularly, and for a brief period no visitation with Christopher. Mother was not in contact with the DCFS during this period. Christopher and Nickey had visited one time each in March, April, and June of 2007. A visit was scheduled for May 16, 2007, but it was reported that Nickey wanted to go to the mall instead of visiting Christopher. A monitor reported that there was no communication between maternal grandmother and the children, and instead everyone played during visits. The monitor also observed that Christopher cried more for Nickey than for his grandmother, but Nickey stayed away and liked to play with kids his own age.
In a July 11, 2007, hearing, the juvenile court set the matter for a progress hearing on October 12, 2007, and a review of permanent plan hearing on January 9, 2008. The juvenile court appointed a Court Appointed Special Advocate (CASA) for Christopher on September 17, 2007.
The CASA reported that Mother’s whereabouts were unknown. A potential family wanted to adopt Christopher, but had concerns because when Christopher’s adoption was previously announced, maternal grandmother left several threatening phone messages for the family. The family wanted to see if the maternal grandmother would become aggressive and threatening if adoption of Christopher were announced again. Christopher knew that a family wanted to adopt him and wanted to live with them and have a mother and father. Christopher also wanted to see Nickey, with whom he seemed to have a close relationship. Nickey showed a caring nature toward Christopher by watching out for him, offering help, and using patience when Christopher acted up. The CASA viewed “it as a detriment if Christopher could not see Nickey on a consistent basis.”
The CASA reported that the maternal grandmother said Mother had disappeared and she did not know if she was dead or alive. As the CASA left the last monitored visit, the maternal grandmother said, “Be careful.... Be very careful.”
Before the January 9, 2008, hearing, Christopher’s CASA reported that Christopher had transitioned to living with his adoptive family. Mother’s whereabouts remained unknown.
In the January 9, 2008, hearing, the juvenile court ordered sibling visits to continue with strict monitoring, and set a review of permanent plan hearing for Nickey and a progress hearing for Christopher for February 22, 2008, and review of permanent plan hearing for Christopher for July 9, 2008.
In a February 2008, report, Christopher’s CASA reported that Christopher was living in his prospective adoptive home. His prospective adoptive parents wanted more consistent and appropriate therapy for Christopher to help stop him acting out sexually, and were concerned for the safety of their four children. Christopher looked forward to seeing Nickey on visits.
Christopher’s CASA again reported on July 9, 2008, that Christopher, now six years old, looked forward to seeing Nickey, but did not have much to say when asked about his visits with Nickey.
For the July 9, 2008, hearing, the DCFS reported that Christopher remained placed with prospective adoptive parents. He exhibited sexual acting out behavior. The prospective adoptive parents stated they were committed to adopting Christopher, but felt additional resources were needed to address his behavior. His behavior with siblings at home continued to improve. Christopher continued to see Nickey on a monthly basis; the monitor stated that the children got along during visits. Mother had no contact with the DCFS in this period. The prospective adoptive parents supported sibling visitation after adoption was finalized.
In a July 29, 2008, report, the CASA reported that the maternal grandmother cancelled the previous two sibling visits because Nickey wanted to go fishing instead of seeing Christopher.
On July 29, 2008, the trial court set a section 366.26 hearing for Christopher on November 25, 2008.
On August 22, 2008, the DCFS reported that Nickey and Christopher had monthly monitored visits, which the children enjoyed. Following the visits, it was reported that Christopher’s behavior occasionally had regressed.
On August 28, 2008, the DCFS reported that the home study for Christopher’s prospective adoptive parents was approved, and the case would be ready for adoptive placement when termination of parental rights took place.
Nickey’s Section 388 Petition:
On November 24, 2008, Nickey filed a section 388 petition seeking an order allowing presentation of evidence that pursuant to section 366.26, subdivision (c)(1)(B)(v) the adoption of Christopher would substantially interfere with the sibling relationship between Nickey and Christopher. The petition alleged it would be detrimental to sever ties between Nickey and Christopher and that Christopher’s prospective adoptive parent had not supported post-adoptive familial contact and had tried to have no communication with Nickey or his maternal grandmother.
On November 25, 2008, the CASA reported that since October 17, 2008, Christopher had shown defiant, disrespectful behavior toward his teacher and other students three to four times a day, he might fall behind in school if he did not receive more structure and direction at home, he had crying and yelling tantrums at home about homework three to five times a week, regional center behavior therapy had not yet started, and the foster family had stated they would not continue sibling visitation after adoption unless the DCFS coordinated and paid for the monitor. The CASA reported that Christopher wanted to spend more time with Nickey.
Christopher’s prospective adoptive parents expressed their commitment to facilitate post-adoption sibling visits and had identified a monitor. They emphasized that the issue was not about funding the monitor, but about protecting their confidentiality from the children’s biological family members. Christopher’s therapist visited the prospective adoptive family weekly for in-home counseling of Christopher, and stated that the prospective adoptive parents loved and cared about Christopher and met his demanding special needs. Christopher made significant behavior improvement since being placed in that home and had developed a secure emotional attachment to the family. Previously on October 9, 2008, Christopher’s therapist stated that for the previous several months Christopher had improved behavior at school, fewer tantrums, and increased awareness of appropriate personal boundaries. His caregiver reported, however, that Christopher’s symptoms of angry outbursts, tantrums, and inappropriate behavior at school were exacerbated by visits with Nickey.
On November 25, 2008, the DCFS reported that formerly Nickey and Christopher visited once a month, but their last visit was in June 2008. They had a monitored phone conversation on October 22, 2008. Nickey did not appear interested in his conversation with Christopher, making it necessary for the CSW to direct Nickey’s attention to his call with Christopher five different times.
Mother had made no contact with her children or the DCFS in this period. Her whereabouts were unknown.
On November 25, 2008, the juvenile court set the matter for a contested section 366.26 hearing on January 8, 2009, and ordered the DCFS to prepare a report addressing Nickey’s section 388 petition.
The DCFS report on Nickey’s section 388 petition stated that Nickey and Christopher lived together for two years before their detention. Christopher was two years old when they were detained on September 9, 2004. The children were initially placed together, but their “acting out” behavior caused them to be separately placed on April 26, 2005. Thus they lived together for the first three years of Christopher’s life. Christopher would turn seven in March 2009. The DCFS concluded that there was no indication that Nickey and Christopher shared significant common experiences nor had they shown a close bond. The children enjoyed their visits, but this was not enough to stop adoption of Christopher. Christopher’s unique needs included being diagnosed with autism and his sexual acting out. These caused many re-placements until he returned to the home of the prospective adoptive caregivers, who provided appropriate care and met his special needs. Christopher adjusted well to their home and referred to them as his parents and to their children as his brothers and sisters. The DCFS concluded that while Nickey and Christopher had sporadic visitation, their bond was not significant enough to justify halting Christopher’s adoption.
Mother appeared for the first time at the January 8, 2009, hearing. The juvenile court appointed an attorney to represent Mother, stated that the case was ready for trial, and recessed for one hour and twenty minutes, at which time the hearing on Nickey’s section 388 petition commenced. Mother’s attorney requested a continuance, stating that she had only spoken briefly with Mother and had no copies of the section 388 petition and other reports. Mother’s attorney argued that it would violate Mother’s due process rights for the juvenile court to proceed without the attorney’s review of the court file, and because the court was hearing the issue of termination of Mother’s parental rights it would be ineffective assistance of counsel for Mother’s attorney to proceed. The trial court denied the request for a continuance.
Over Mother’s objection, the remaining parties stipulated to Christopher’s testimony that he loved Nickey, looked forward to visits with Nickey, looked to Nickey as a role model, and wanted to continue visiting with him in the future.
The prospective adoptive parent and current caregiver, Marisela M., testified that Christopher had lived in her home for about a year, and he and Nickey had lived in her home for about eight months when Christopher was 2 and Nickey was 10 and 11. Christopher said he wanted to continue visits with Nickey, and Marisela M. stated that she would allow those visits.
Christopher’s CASA testified that Christopher told her he wished he could see Nickey more often. The foster mother told the CASA she would like to have monitored visits for Nickey and Christopher, and she wanted help paying for the monitor. The CASA believed it would be in Christopher’s best interest to continue visiting with Nickey, because Christopher loved Nickey and showed great emotion and happiness in those visits. The CASA testified that Christopher received everything he needed in his adoptive home, and that his foster mother was a passionate advocate to make sure Christopher received the services he was legally entitled to.
Nickey testified that he visited Christopher a week or two earlier, but had not seen him for three or four months before that. When Christopher first saw Nickey at visits, he ran to Nickey and hugged him. During visits, Christopher told Nickey he wanted to come home with Nickey.
The juvenile court found that Nickey had not met the burden regarding the sibling relationship exception and denied the section 388 petition.
The juvenile court then proceeded with the section 366.26 hearing. Mother’s attorney again requested a continuance, which the juvenile court denied. The juvenile court found it was likely Christopher would be adopted, that it would be detrimental to him to return him to his parents’ custody, ordered parental rights terminated, and ordered care, custody, and control of Christopher transferred to the DCFS for purposes of adoption planning and placement.
Mother filed a timely notice of appeal.
ISSUE
Mother claims that denial of her request to continue the section 366.26 hearing denied her due process right to a fair hearing and forced her to proceed without competent counsel.
DISCUSSION
Section 317.5, subdivision (a) entitles a party represented by counsel at dependency proceedings to competent counsel. Here, Mother claims that the denial of a continuance deprived her of representation by competent counsel.
a. The Trial Court’s Denial of a Continuance Was Not an Abuse of Discretion
Section 352, subdivision (a) governs motions to continue dependency hearings. It authorizes the juvenile court to continue any hearing “provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his... custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance.... [¶] In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance.”
Here no written motion was made two days before the hearing date. The oral motion relied on the fact that Mother’s attorney received the case only earlier that day, and Mother’s counsel had spoken with Mother for a brief period, received no copies of the report other than the section 388 petition and two other reports, and had not reviewed the court file. Section 352, subdivision (a), however, required the juvenile court to give substantial weight to Christopher’s need for prompt resolution of his custody status and for a stable environment. Christopher had multiple placements during the four years and four months of his dependency case. Mother had not explained why she appeared in juvenile court for the first time at the section 366.26 hearing, and why her whereabouts were unknown throughout the case, despite the fact that she had notice of its existence. Continuances in juvenile dependency proceedings are disfavored, particularly when they cause the case to exceed maximum time limits under the Welfare and Institutions Code. (In re David H. (2008) 165 Cal.App.4th 1626, 1635.) The juvenile court’s denial of a request for a continuance will not be overturned on appeal absent an abuse of discretion. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.) Because the case far exceeded the maximum time limits under the Code, Christopher needed prompt resolution of his custody status and a stable environment, and because Mother failed to explain why she waited until the last possible moment to request counsel and appear in juvenile court, we find no abuse of discretion in the denial of her request for a continuance.
b. Mother Has Not Shown That Counsel Represented Her Ineffectively and Has Not Shown Prejudice
Mother’s statutory right to competent counsel entitles her to raise a claim that the juvenile court proceedings violated this right. A parent seeking review of a claimed violation of section 317.5 must show (1) that counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law, and (2) that the claimed error was prejudicial. Violation of a statutory right to counsel is reviewed under the harmless error test, and the parent must demonstrate that absent the error it is reasonably probable that the juvenile court would have reached a result more favorable to her. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.)
It is not necessary to examine whether counsel’s performance was deficient before examining the issue of prejudice. (In re N.M. (2008) 161 Cal.App.4th 253, 270.)
Under the sibling relationship exception of section 366.26, subdivision (c)(1)(B), if the juvenile court determines that it is likely the child will be adopted, the court shall terminate parental rights unless “[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to[;]
“(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.”
This court reviews the record to determine whether substantial evidence supports the juvenile court’s findings. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017.)
Christopher and Nickey had lived together in the same home for the first 18 months of Christopher’s life, and after being detained were placed together in a foster home until April 16, 2005, when they were separately placed because of suspected sexual abuse and aggressive behaviors which Nickey displayed toward Christopher. Thus at the time of the section 366.26 hearing, Christopher and Nickey had not lived together in the same home for nearly two years and nine months.
Although Christopher looked forward to visits with Nickey and enjoyed those visits, there was evidence that Christopher’s behavior worsened and “regressed” after visits with Nickey. In January 2007, Christopher had exhibited hypersexual behavior with his therapist and disrobed in front of other children in his foster home. When visits with Nickey were suspended, Christopher’s behavior improved and there were no further incidents of hypersexual activity. In October of 2008, his visits with Nickey seemed to exacerbate Christopher’s angry outbursts, tantrums and inappropriate behavior. Nickey and Christopher visited once monthly in March through June of 2007, but for a May 16, 2007, scheduled visit, Nickey wanted to go to the mall instead of visiting Christopher. At this time it was reported that Nickey stayed away and liked to play with kids his own age. In July 2008, the maternal grandmother cancelled two previous sibling visits because Nickey wanted to go fishing instead of seeing Christopher. As of November 25, 2008, Nickey’s last visit was in June 2008. The brothers had only one monitored phone conversation, in which Nickey did not seem to be interested.
There was evidence that Christopher’s prospective adoptive parents provided him with everything he needed, and were strongly committed to obtaining all the services that he needed and was entitled to. The prospective adoptive parents, although they did not desire contact with other members of Nickey’s family, understood the importance of continuing visits between Christopher and Nickey and strongly wished for Christopher to maintain sibling contact with Nickey. They stated their strong commitment to facilitate post-adoption sibling visits.
Substantial evidence supported the juvenile court’s finding that the sibling relationship exception did not apply. Nickey’s 388 petition raised the same claim which Mother asserts on appeal was a valid defense that the trial court’s denial of a continuance and her counsel’s ineffective representation prevented her from raising: that the sibling-relationship exception of section 366.26, subdivision (c)(1)(B)(v) applied. The trial court found that the exception did not apply and denied Nickey’s section 388 petition. Mother has not shown that she would have provided evidence or legal authority supporting application of the sibling relationship exception which Nickey’s petition failed to provide. Thus there is no basis for a finding that in the absence of the allegedly ineffective assistance of counsel the juvenile court would have reached a result more favorable to her. The absence of a showing of prejudice means that no error occurred because of the alleged ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J. Acting P. J., ALDRICH, J.