Opinion
A100524
10-29-2003
In re DANTE H., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, M. B. et al., Defendants and Appellants.
M. B. and L. B. (the sisters) appeal the order terminating the parental rights of their mother, Marla A. (Mother), as to their half-brother, Dante H., and selecting adoption as his permanent plan. They contend the court erred in refusing to allow them to testify at the termination/permanency planning hearing (Welf. & Inst. Code, § 366.26) regarding their sibling relationship with Dante and in denying their request for post-termination visitation with him.
All further section references are to the Welfare and Institutions Code.
BACKGROUND
Dante was born in October 2001. He tested positive for cocaine at birth, and was released from the hospital to emergency foster care. The sisters, then 15 and 14 years old, had been made dependents of the juvenile court at some unidentified date before Dantes birth. Their permanent placement was with their maternal stepgrandmother, who was their legal guardian and had been their caretaker since 1993. The stepgrandmother was also the primary caretaker of D. A., another daughter of Mother, born in August 1999.
M. B. was born in January 1986, and L. B. was born in March 1987.
In November 2001, pursuant to a petition of the Alameda County Social Services Agency (Agency), Dante was made a dependent of the juvenile court and placed with Mother at a residential drug treatment center. The initial reunification case plan stated that Dantes visitation schedule with his siblings would be coordinated by the Agency and the treatment center. Dante was returned to emergency foster care in late November 2001 following Mothers arrest on a parole violation. A second reunification case plan stated that Dantes visitation schedule with his siblings would be in-person, beginning December 24, 2001.
The Agencys report for the May 14, 2002 six-month status review of Dantes dependency stated that he remained in emergency foster care, with Mother scheduled for weekly unsupervised visits at the Agencys office, although she had recently missed many of them. The report stated that the sisters "would like" to visit with Dante, but it did not indicate whether they had previously done so. It also stated that the sisters stepgrandmother was unable to accept Dante as another dependent. The report recommended terminating reunification services and setting the matter for an adoption assessment and the selection and implementation of an appropriate permanent plan for Dante. (§§ 366.21, subd. (i); 366.26.) The simultaneous updated case plan stated that Dantes visitation schedule with his siblings would be in-person and supervised, would begin May 14, 2002, and would be arranged by the child welfare worker "in conjunction with Project [Destiny] Worker and placement."
The record implies that Project Destiny is a public or nonprofit organization that provides a variety of assistance, e.g., family therapy, property maintenance, to low income households in which a relative is the legal guardian of dependant children. A Project Destiny worker made weekly visits to the house in which the sisters, D. A. and the stepgrandmother lived.
On May 29, 2002, the court ordered Dante moved from emergency foster placement to a regular foster home that would also be a "concurrent plan home" for him. In June 2002, the court ordered reunification services terminated as to Dante. It also declared D. A. a dependent of the juvenile court, removed her from Mothers custody, and denied reunification services to Mother, based on her failure to reunify with her other children. It set both cases for a section 366.26 permanency planning hearing on September 19, 2002.
Mothers petitions for review of the orders denying reunification services and setting a permanent placement hearing (Cal. Rules of Court, rule 39.1B) were brought in this court in both the Dante and D. A. cases. The petition concerning Dante was denied August 21, 2002 (A099295), and the petition concerning D. A. was denied September 3, 2002 (A099403). D. A.s father is unknown. Dantes alleged father has never contested any dependency proceedings.
The Agencys report for the joint permanency planning hearing concluded that D. A. and Dante were both adoptable. The report stated that D. A. had a relationship with the sisters, that she had lived essentially since birth with the same stepgrandmother with whom the sisters lived, and that the stepgrandmother was interested in adopting her. It stated that the stepgrandmother was unable to accept Dantes placement, and noted that Dante had not spent a significant amount of time with her or the sisters.
Throughout their dependencies Dante and D. A. had been represented by the public defenders office. Three days before the September 19, 2002 joint permanency planning hearing, Deputy Public Defender Roger Chan stated the public defender could no longer represent Dante because of a conflict of interest, the nature of which does not appear on the record.
At the September 19, 2002 permanency planning hearing Dante was represented by independent counsel Jerry Vinluan, and D. A. was represented by Deputy Public Defender Chan. The court first terminated parental rights as to D. A. and ordered adoption by the stepgrandmother as D. A.s permanent plan.
The court next addressed Dantes case. Attorney Vinulan noted that a placement had been found for him and submitted the matter. Deputy Chan then stated he represented the sisters as well as D. A., and one of them wanted to express to the court her opposition to his adoption. The Agency objected on grounds the sisters were not parties to Dantes case, had no standing in it, and were not entitled to make any statement, and that Chan was not the sisters counsel of record in Dantes case. The court agreed with the Agency and refused to let the sisters speak. It then terminated parental rights as to Dante and ordered adoption as his permanent plan. It approved Dantes placement with the prospective adoptive family the Agency had located. In response to Deputy Chans request for visitation between the sisters and Dante pending his adoption, the court gave the Agency discretion to arrange such visits, with the cooperation of Dantes prospective adoptive parents. It declined to issue an order requiring visitation.
Following is the exchange among Chan, Agency attorney Victoria Wu, and the Court:
"[CHAN]: Excuse me, Your Honor. I do represent the siblings in this case, including [D. A.], whose case we just handled. And I also represent [the sisters], who are in court today. [L. B.] really wanted to express to the Court —
"[WU]: I object, at this time, in having Mr. Chan making any representation in this proceeding. [The sisters] are not parties to this action of [Dante], and Mr. Chan is not counsel of record on this matter.
"[CHAN]: Siblings have an interest in Dantes case, and People have an interest in the child and letting the Court hear from them. And, as their counsel, I would like to finish my statement.
"[WU]: I would object to any statement being made by counsel on the record . . . . We had this discussion off the record—and its the Agencys position that [the sisters] do not have standing in Dantes proceeding. Theyre not entitled to make any statement whatsoever. If there is any information to be made on behalf of why termination of parental rights should not go forward today, that burden of proof is the mothers. [P] I would strenuously object to any statement being made on the record by people not party to this action and counsel not of record.
"[CHAN]: Your Honor, [Wu] objects to the fact that I would like to state [L. B.s] objection to adoption —
"THE COURT: Im going to stop you right here. I know from previous hearings thats an issue for them[;] however, theyre not parties. And were going to go forward with the [section 366.26 hearing]. I dont want to have a statement on the record by the minors sisters . . . . [P] Your clients dont have standing in this matter. . . . I dont think you can make a record for any purpose nor do you want one on parties that dont have standing in this matter.
"[CHAN]: Im not trying to assert standing in Dantes case. I believe the Courts entitled to consider information in people who have an interest in the child. Just like from this foster parent or any relative that came to court and sat in the audience, the Court can—in [its] discretion—hear that information. Im not trying to assert standing in the case. I acknowledge that the siblings do not have standing to object to or oppose an objection to parental rights.
"THE COURT: In absence of there being any opposition or presence of the mother—who would be the only party from whom I would take evidence on the issue of termination of parental rights or appropriateness of this [section 366].26 hearing. . . Im not going to proceed with any evidence, statements, or other offerings from relatives."
DISCUSSION
a. Adoption as Preferred Permanent Plan
When a child is made a dependent of the juvenile court and removed from his parents custody, the court initially attempts, for a statutorily specified time period, to reunify them. (In re Celine R . (2003) 31 Cal.4th 45, 52.) If reunification efforts fail, the court is required to terminate the efforts and schedule a hearing pursuant to section 366.26 for the selection and implementation of a permanent placement plan for the child. (Id. at p. 52.)
The permanency planning hearing is designed to protect the childs "compelling rights . . . to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child." (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) Of the four placement choices available to the court at this hearing, the first choice is termination of parental rights and placing the child for adoption. (Celine R., supra, 31 Cal.4th at p. 53.) "Whenever the court finds `that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. (§ 366.26, subd. (c)(1).) [P] Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the [statutorily] specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. The specified statutory circumstances—actually, exceptions to the general rule that the court must choose adoption where possible—`must be considered in view of the legislative preference for adoption when reunification efforts have failed. [Citation.]. . . .The statutory exceptions merely permit the court, in exceptional circumstances [citation] to choose an option other than the norm, which remains adoption." (Celine R., supra, at p. 53.)
b. Sibling Relationship Exception
Only the statutory exception to adoption based on sibling relationship had potential application to Dantes case. This recently added exception, which took effect January 1, 2002 (Stats. 2001, ch. 747, § 3), states: "There would be substantial interference with a childs 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 childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(E).)
Celine R. addressed the issue of whether the sibling relationship exception permits the court to consider if adoption would be detrimental not to the child who is being considered for adoption, but to his or her siblings. (Celine R., supra, 31 Cal.4th p. 54.) In Celine R. the oldest of three sisters who were the subjects of a single dependency proceeding was placed in long-term foster care after reunification efforts failed. Adoption was recommended for the two younger sisters. (Id. at p. 50.) The attorney who represented all three sisters was concerned about the unhappy effect that adoption of the younger sisters would have on the oldest sister. (Id. at p. 51.)
Celine R. held that the exceptions plain language permits the juvenile court to consider possible detriment from adoption only to the child being considered for adoption. "`The language focuses exclusively on the benefits and burdens to the adoptive child, not the other siblings. The court is specifically directed to consider the best interests of the adoptive child, not the siblings, and must ultimately determine whether adoption would be detrimental to the adoptive child, not the siblings. [Citation.] Nothing in the statute suggests the Legislature intended to permit a court to not choose an adoption that is in the adoptive childs best interest because of the possible effect the adoption may have on a sibling." (Celine R., supra, 31 Cal.4th at p. 54.)
c. Propriety of Juvenile Courts Rulings
1. The Sisters Request to Testify
The fundamental dispute between the sisters and the Agency concerns the sisters standing to participate in Dantes permanency planning hearing and to appeal the resulting orders. The sisters argue that the sibling relationship exception to adoption gave them standing to participate and provide evidence relevant to this exception, and, consequently, to appeal the juvenile courts refusal to hear them. The Agency contends they lacked standing because they were not named parties to Dantes dependency action and never took steps to intervene in the proceedings.
Celine R. declined to address whether a dependent sibling whose permanent plan is long-term foster care has standing to appeal the termination of parental rights as to her siblings who were subjects of the same dependency proceedings but for whom adoption is the permanent plan. (Celine R., supra, 31 Cal.4th at p. 52, fn. 2.)
We conclude we need not reach this issue because the sisters, even without being parties of record in Dantes action, waived their statutory right to participate in Dantes case.
Under section 388, subdivision (b), "Any person, including a child who is a dependent of the juvenile court, may petition the court to assert a relationship as a sibling related by blood . . . through a common . . . biological parent to a child who is . . . a dependent of the juvenile court, and may request visitation . . . [or] consideration when [the court is] determining or implementing a case plan or permanent plan for the dependent child or [may] make any other request for an order which may be shown to be in the best interest of the dependent child. The court may appoint a guardian ad litem to file the petition for the dependent child asserting the sibling relationship if the court determines that the appointment is necessary for the best interests of the dependent child."
As discussed more fully in part c. 3, post, the public defenders office represented Dante throughout his dependency proceedings until it was relieved of its representation three days before his permanency plan hearing. At that permanency plan hearing, the deputy public defender representing D. A. stated he also represented the sisters. However, according to the court minutes, the sisters did not appear at any proceedings in Dantes case prior to the permanency planning hearing. Nor does anything in the appellate record imply that the sisters, individually or through the public defenders office, ever availed or attempted to avail themselves of their right under section 388, subdivision (b), to petition the court to assert a sibling relationship so they could request visitation or the courts consideration of them when it implemented his permanent plan. By not doing so, they relinquished any right to consideration at his permanency plan hearing, and, by extension, to challenge the courts permanent plan determination for Dante. (Cf. Kimberly H. v. Superior Court (2000) 83 Cal.App.4th 67 [requiring a parent to file a petition under section 388 to raise changed circumstances after denial of reunification services does not violate substantive due process].)
2. Visitation
The sisters contend the court erred in denying their request for an order of "reasonable" visitation with Dante following the termination of parental rights and in giving the Agency the discretion to arrange visitation with the cooperation of the prospective adoptive parents. Again, assuming without deciding that they have standing to appeal this or any ruling, we find no error.
Once the juvenile court orders a dependent child free from parental custody and control, the court is required to order the child referred to the State Department of Social Services or a licensed adoption agency for adoptive placement by the agency, which "shall be responsible for the custody and supervision of the child and shall be entitled to the exclusive care and control of the child at all times until a petition for adoption is granted." (§ 366.26, subd. (j).) Family Code section 8704, subdivision (a), similarly provides that the department to which a child has been freed for adoption by termination of parental rights "is responsible for the care of the child, and is entitled to the exclusive custody and control of the child until an order of adoption is granted."
Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 733 concluded that the Legislature intended by these statutes to defer to the agencys expertise in the matter of the temporary care of a child referred for adoption, pending his adoptive placement. Although the juvenile court retains jurisdiction over the child until he is adopted, the courts role is limited to reviewing whether the agency abused its discretion in its decisions regarding his temporary care. (Id. at pp. 733-734.)
We agree with Department of Social Servicess interpretation of these statutes. Therefore, the court did not err in leaving to the Agencys judgment the question of visitation between the sisters and Dante pending his adoption.
3. Conflict of Interest
The sisters contend the permanency planning hearing was "fundamentally flawed" because of "their" attorneys conflict of interest. They argue that "their" trial counsel, i.e., the public defender, represented all siblings until three days before the hearing, when the court granted the request of the public defenders office to appoint a new attorney for Dante because of a conflict. They argue the court should also have relieved the public defender from representing them and appointed independent counsel for them.
The sisters contention is unavailing. First, nothing in the record indicates the public defenders office was ever appointed to represent the sisters in conjunction with Dantes dependency proceedings, nor is there any apparent reason why it would have been. By statute, counsel is appointed only for the child who is the subject of the dependency proceedings (§ 317, subd. (c)), and, indeed, the public defenders office represented Dante until its request to be relieved was granted three days before the joint permanency plan hearing concerning Dante and D. A..
When appearances were announced at the beginning of that hearing, independent attorney Vinluan was identified as attorney of record for Dante, and Deputy Public Defender Chan was identified as the attorney of record for D. A. No attorneys were announced as appearing for the sisters. Only after D. A.s case was concluded did Deputy Chan state he "represented" the sisters. In the context of the hearing, his use of the word "represent" is reasonably interpreted as having a broad, generic meaning. He (and, by extension, the public defenders office) was not advocating for the sisters because he was their designated representative in their capacity as parties of record to Dantes dependency proceedings. Rather, as one who had a role in the proceedings because he represented one of its parties and was therefore entitled to speak to the court, Chan was simply using that role to act as a spokesman on behalf of the sisters, who were not similarly entitled.
Second, Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, on which the sisters rely to support their conflict of interest contention, involved siblings who were all the subject of the same dependency proceeding and for whom different permanent plans were recommended. Here, Dante and D. A., not the sisters, were the subjects of the joint permanency plan proceedings. To the extent there was any conflict of interest between Dante and D. A. concerning their recommended permanent plans, they were represented at the hearing by different counsel who could pursue their respective best interests. As Celine R. emphasized, it was their best interests alone that were to be determined at the hearing, not those of any nonadoptive siblings. (Celine R., supra, 31 Cal.4th at p. 54.)
DISPOSITION
The orders are affirmed.
We concur: Simons, J., Gemello, J.