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In re G.O.

California Court of Appeals, First District, Third Division
Sep 26, 2008
No. A119555 (Cal. Ct. App. Sep. 26, 2008)

Opinion


In re G.O. et al., Persons Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. G.O., Sr. et al., Defendants and Appellants. A119555 California Court of Appeal, First District, Third Division September 26, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Alameda County Super. Ct. Nos. HJ06005339, HJ06005340, HJ06005341

McGuiness, P.J.

G.O., Sr., (Father) and L.S. (Mother), parents of G.O., age seven, X.O., age four, and J.O., age two, appeal from the juvenile court’s orders denying their petitions under Welfare and Institutions Code section 388 (section 388 petition), terminating their parental rights and selecting adoption as the permanent plan for J.O. Father contends: (1) the juvenile court abused its discretion in denying his section 388 petition; (2) his due process rights were violated because he was not served with a copy of a caregiver information form submitted by J.O.’s caregivers; (3) there was insufficient evidence supporting the finding that J.O. was adoptable; (4) the juvenile court erred in terminating parental rights to J.O. because statutory exceptions to adoption applied; and (5) minors’ counsel provided ineffective assistance of counsel to J.O. Mother joins in Father’s arguments and also contends the trial court erred in denying her request to have separate minors’ counsel appointed for the children. We reject all of the contentions and affirm the juvenile court’s orders.

All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

Factual and Procedural Background

On October 25, 2006, Alameda County Social Services Agency (the agency) filed original petitions alleging that G.O., then five years old, X.O., then two years old, and J.O., then four months old, were at risk of serious physical harm or illness due to Mother’s mental health and substance abuse issues and Father’s history of criminal behavior and incarcerations. In June 2006, at the time of J.O.’s birth, Mother and J.O. both tested positive for methamphetamines. The parents had no stable housing and no source of income.

An initial hearing report stated that G.O. and X.O. were living with their maternal great-grandmother. J.O. was living with a paternal great-aunt. Mother had failed to comply with an informal family maintenance plan and tested positive for methamphetamines in August 2006. She and Father minimized her substance abuse issues, and she denied she had a problem even though agency reports from when Mother herself was a dependent minor showed she had a long history of drug use. She also had a history of arrests, incarceration, and instability. There was a concern of domestic violence between Mother and Father, although both parties denied it. At the time of the report, Mother was living with her mother (the children’s maternal grandmother) and her mother’s boyfriend. In September 2006, the maternal grandmother, who was also drug testing, arrived at the testing center “badly beaten” by her boyfriend, “covered in cuts and bruises,” and “barely” able to walk. Father was out of jail on bail for a firearms charge and was waiting for a hearing to see if he would be incarcerated again. The report recommended that the children be removed from their parents’ care and continue to reside with the relatives with whom they were staying. The juvenile court adopted the department’s recommendations.

The children were separated between the two homes because the maternal great-grandparents were unable to care for all three children.

A jurisdiction and disposition report recommended that the parents receive reunification services. The children were doing well in their relatives’ homes. The parties submitted on the report and the allegations contained in the petition, and the juvenile court ordered reunification services for both parents. The court granted the maternal great-grandmother’s request for de facto parent status over G.O. and X.O.

A six month status review report dated April 13, 2007, recommended that the juvenile court terminate reunification services and set a permanency hearing under section 366.26 (section 366.26 hearing), with a permanent plan of legal guardianship for G.O. and X.O. and adoption for J.O. Mother had provided several drug tests that were positive for methamphetamines and had not contacted the agency since late January 2007. She attended only three outpatient treatment sessions and did not follow up with entering a residential program. It appeared both parents were homeless. Mother was last known to be living with the children’s paternal grandmother but, according to the paternal great-aunt, Mother and Father were “kicked out of that home because they weren’t working, not contributing, same old thing.” Father did not meet with the social worker during the entire reporting period. He had been referred to an outpatient treatment program, drug testing, and parenting classes but had not participated in any of the programs. G.O. reported he had witnessed domestic violence between his parents in the past, and his grandparents stated that “these experiences have been extensive.” G.O. and X.O. were referred to therapy and counseling. The parents did not “appear to be taking responsibility for their actions” and “appear[ed] to be content in allowing their family members to address their children’s needs.” They visited the children frequently, and G.O. and X.O. were happy to see them. J.O. was “just okay” with the visits and separated from the visits easily. J.O. also visited his brothers regularly and “tolerate[d] the visits okay.” He was described as a playful child and no concerns were reported. An adoptions assessment indicated that all three children were adoptable. The parties submitted on the status review report and the juvenile court adopted the agency’s recommendations and scheduled a section 366.26 hearing.

The agency prepared section 366.26 hearing reports recommending permanent plans of legal guardianship for G.O. and X.O. and termination of parental rights and adoption for J.O. According to the report prepared on behalf of J.O., the parents had entered a treatment program in April or May 2007. They had not seen J.O. for three or four months and had not called his caregivers (the paternal great-aunt and uncle) to ask about his well-being for two months. J.O. was sociable and affectionate, developmentally on target in all areas and in good health, with the exception of minor issues including a sinus infection for which he had received treatment. J.O.’s paternal grandmother was “willing and able to adopt him.” J.O.’s caregivers believed J.O. “would be better off being adopted by the paternal grandmother,” but were also willing to adopt if the paternal grandmother was not approved for adoption.

Dependency status for G.O. and X.O. was to continue only until October 6, 2007, when they would be eligible for Kinship Guardianship Assistance Program (Kin GAP) funding.

On August 16, 2007, Mother filed a section 388 petition asking the court to modify its orders terminating reunification services and scheduling a section 366.26 hearing. She listed several reasons in support of her motion, including her “[h]istory of clean drug tests,” full time employment, anticipated stable housing, attendance at classes including Narcotics Anonymous, and the strong bond with her children. Father filed a section 388 petition on August 22, 2007, stating he tested negative for drug use, was employed full time, and was regularly visiting G.O. and X.O. and seeing J.O. when the caregiver allowed visits.

In a memorandum dated September 11, 2007, the agency recommended denying the section 388 petitions, stating: “The parents have made a start toward sobriety, but are not in a position to resume care of the minor at this time. The relevant issue for the minor at this time is permanency.” According to the report, placement with the paternal grandmother was not approved because she applied for food stamps for J.O. despite the fact that he had not been placed with her, and a welfare fraud investigation was in progress. The paternal great-aunt and uncle were considering adopting J.O. Another relative also expressed interest in having J.O. placed with her. The report indicated that J.O. was adoptable, even if there was no relative willing or able to adopt him. It stated: “[J.O.] is 14 months old and in good health, with no significant medical, developmental or behavioral problems. The parents’ change in circumstances is not sufficient to risk return of the minor at this time, and the parents have had little visitation with him in the last six months.”

On October 2, 2007, J.O.’s caregivers completed a caregiver information form in which they stated they had cared for J.O. since October 2006 “with the full understanding and intention[] that it was a temporary situation.” They believed they “were merely caring for him during his parents [sic] troubled times” and wished for J.O. to “be reunited with his parents so that he would not miss the opportunity to be raised by his biological parents and bond with his [two] brothers.” They stated, however, that they “would immediately intervene and directly assist and help J.O.” in order to prevent him from being placed in a foster home.

On October 15, 2007, a hearing was held on the parents’ section 388 petitions. Mother testified, “I would say [the last time I used methamphetamines was] the beginning of this year.” She stated she entered a residential program called Victory Outreach in April 2007 but left after a few months because she was not being taken to her mandatory classes and drug testing centers, and because the program “was too much into God.” She explained that she was unable to complain about this problem to the agency because the director of Victory Outreach did not allow her to use the telephone. After leaving the program, Mother submitted to drug tests and had not tested positive for drugs. She began attending an education and counseling group and Narcotics Anonymous classes. She obtained full time employment June 2007, moving old furniture out of and new furniture into a hotel that was being remodeled. She paid for drug testing and classes on her own, and was looking for an apartment. She testified she wanted to have the children placed with her but there was not enough space for them in her mother’s house, where she was living at the time.

Mother testified she “really [did not] know [J.O.] that much” because she had been unable to get in touch with his caregivers. She testified she called J.O.’s caregivers “at least four or five times a week,” or “three or four times a week” but never heard back from them. Mother testified she did not complain to the agency about her inability to get in touch with J.O. because she did not know which social worker to call. Mother had not seen J.O. for about three or four months and had seen him a total of four times since March 2007. She spoke to J.O. about once or twice a month, when he was in the care of his paternal grandmother. She saw G.O. and X.O. almost every day after work, had dinner with them, and went to G.O.’s soccer practice and games.

Laura Loomis, the child welfare worker assigned to J.O.’s case, testified that adoption was the appropriate permanent plan for J.O. because he was in need of permanency, he was adoptable, and the parents had had very little contact with him. She stated that Mother had contacted her once to inform her that she and Father were going to file section 388 petitions. Mother did not ask for information regarding how J.O. was doing. Loomis did not recall Mother mentioning anything to her about difficulties getting to mandatory classes and drug testing locations, or reaching J.O.’s caregiver. Patricia Smith, who had previously been assigned to J.O.’s case as the child welfare worker, testified that she had never spoken with Mother or received any messages from her.

Father testified that he entered Victory Outreach with Mother but left after about two and a half months because he felt the program was not helping him get his children back, and because the program required him to turn in any money he made. Father testified that he had obtained three negative drug tests. He was employed full time working at the same job as Mother and was earning $10 per hour, and he and Mother had about $2,000 in a bank account. He was not attending any classes because he was “putting most of [his] time to working.” Father testified he also lived at Mother’s mother’s house. He and Mother were having difficulty finding a place to live because “a lot of places don’t accept us and . . . this is still new to us . . . .” After searching for a place for a while, he and Mother decided to “calm[] down and just tr[y] to relax and let it come in on its own” because they did not want to put too much pressure on themselves and “mess up,” and because they were being asked to pay more than they could afford.

Father testified he had a very good relationship with G.O. and X.O., saw them almost every day at the maternal great-grandmother’s house, and sometimes took them to the movies. He had not seen J.O. “that much” and wanted to see him more but stated he had no way of commuting to Modesto, where J.O. lived. He testified he had telephone contact with J.O. about once a week because his mother (the children’s paternal grandmother) called whenever she took care of J.O. He stated he called J.O.’s caregiver “all the time” or “frequently,” or a “couple of times a month,” but was often unable to get in touch with her. He did not call the child welfare worker to tell her he was having trouble getting in touch with J.O.’s caregiver. When asked what he wanted the court to do with regard to his children, Father responded: “Keep them where they’re at, I guess . . . I feel we still need a little bit of time . . . to get back on our feet. I’m not asking and I wouldn’t ask for the kids to come back today because . . . this is the first time we’re going through this, so we’re young and we’re still learning . . . . This is teaching us . . . for the future and we’re still learning how to get back on our feet.” He testified that for the time being, J.O. should stay with his paternal great-aunt and G.O. and X.O. should stay with the maternal great-grandmother.

The maternal great-grandmother testified that Father visited G.O. and X.O. every night after work. She believed there was a “very good” bond between Father and the two boys and that Father had made progress in the last year. She testified that she and G.O. and X.O. had seen J.O. only three times in the last six months and that the last time she saw J.O. was in June 2007. She testified that, although they had “played phone tag,” she had not spoken to J.O.’s caregiver in “quite some time” and had been unable to arrange visits for the three brothers to be together because she was very busy taking care of two of the boys, as well as a granddaughter who also lived with her. She testified that although it would be in the children’s best interests to live with their parents “[a]t some point in the future,” she did not believe the parents were ready to care for the children because they were “just learning” and did not have a place for the children to live. She testified she would continue to be G.O. and X.O.’s legal guardian if the parents were unable to continue in their recovery.

The parties stipulated that if G.O. and X.O.’s child welfare worker were to testify, she would state “that the parents ha[d] recently made excellent progress, but [were] not ready to reunify” with G.O. and X.O. The juvenile court denied both parents’ section 388 petitions without prejudice and proceeded with the section 366.26 hearing.

At the section 366.26 hearing, the court incorporated the testimony and exhibits from the section 388 hearing into the record for the section 366.26 hearing. The maternal great-grandmother further testified that she was unable to have J.O. placed with her because she cannot care for one more child. During closing arguments, Mother’s counsel moved to have separate counsel appointed for each of the minors. The juvenile court denied the motion, stating there was no conflict and that minors’ counsel’s arguments were made in the best interests of all three children. The court selected a permanent plan of legal guardianship for G.O. and X.O. and appointed the maternal great-grandmother as their legal guardian. The court terminated Mother and Father’s parental rights as to J.O. and selected adoption as the permanent plan.

Discussion

1. The juvenile court did not err in denying the section 388 petitions.

The parents contend the juvenile court abused its discretion in denying their section 388 petitions. We disagree.

In addressing the merits of this contention, we reject the agency’s argument that the parents waived the issue by testifying they were not ready to have the children returned to their care, and by failing to argue for additional services. The parents sufficiently raised the issues by filing section 388 petitions in which they requested return of their children, and by way of Father’s testimony that they “still need[ed] a little bit of time” and Mother’s counsel’s statement that she wanted “six more months of services.”

Section 388, subdivision (a), provides that a parent may petition the court for a hearing to “change, modify, or set aside any order of court previously made . . . .” To prevail, the parent must demonstrate that there are changed circumstances or new evidence that give rise to the request for the modified order and that the proposed order is in the minor’s best interests. (See § 388; see also In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) Section 388 has been held to be a type of “escape mechanism” to allow juvenile courts to consider new information where “a change of placement to the parent’s home is in the best interest of the child.” (In re Michael D. (1996) 51 Cal.App.4th 1074, 1086.) On appeal, we review the trial court’s order granting or denying a section 388 petition for abuse of discretion. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 447.) We will not disturb the order unless the juvenile court “ ‘ “has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].” ’ [Citations.]” (See In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

Here, the parents made some efforts toward reunification beginning in late April 2007, after the juvenile court terminated services and scheduled a section 366.26 hearing. They found full time employment and visited G.O. and X.O. regularly. Mother began attending classes to address her substance abuse issues, and both parents tested negative for drug use on several occasions. Although they left before completing the program, they participated in a treatment program for a few months.

However, the parents’ progress, while commendable, showed that circumstances were merely changing, not that they had changed. (See In re Casey D. (1999) 70 Cal.App.4th 38, 48-49 [parent must show the circumstances have changed, not that they are changing].) In light of Mother’s long history of substance abuse issues, the fact that she had begun attending classes and had obtained several negative drug tests was insufficient to show she was going to be able to maintain her sobriety. Father, who did not deny he had a substance abuse problem, did not complete his residential treatment program, was not attending any classes, and had obtained only three negative drug tests.

Further, although the parents stated in their section 388 petitions filed August 2007 that they “anticipated” “stable housing” (Mother) and were “very close to being able to rent an apartment,” (Father), they were still living with the maternal grandmother in October 2007 and had not found an apartment. It appeared they were no longer actively searching for housing, as Father testified that after trying to rent an apartment for some time, he and Mother decided to “calm[] down and just tr[y] to relax and let it come in on its own.” Mother acknowledged there was not enough room in her mother’s house for the children, and Father believed he and Mother were “still learning” things and were not ready to have the children returned to their care. The maternal great-grandmother testified that Father had made progress, but she also believed the parents were “just learning” and were not ready to have the children placed with them. The agency presented the opinion of a child welfare worker that the parents were not ready for reunification. Under these circumstances, the court could properly find that the parents had only just begun addressing their problems, and that the sobriety or stability they demonstrated was insufficient to constitute changed circumstances.

Moreover, as we have noted, success on a section 388 petition requires more than changed circumstances. “The parent must show that the undoing of the prior order would be in the best interests of the child.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) Applying that principle here, we conclude the parents failed to show how their proposed modifications of (1) having the children returned to their care or (2) extending reunification services would be in their children’s best interests. First, as detailed above, there was ample evidence to show the parents were not ready to have the children immediately placed with them and that it would therefore not have been in the children’s best interests to be returned to their parents’ care.

Second, extending reunification services would not have been in the children’s best interests because it would have delayed the proceedings and deprived them of the permanency to which they are entitled. The parents argue that because the children were with relatives who were committed to caring for them until the parents were ready for reunification, additional services would not have deprived the children of their stable homes and should therefore have been ordered. “The statutory scheme,” however, “limits the time in which children must wait for parents to demonstrate themselves capable of responsible parenthood.” (In re John F. (1994) 27 Cal.App.4th 1365, 1376.) Further, once reunification services have been terminated, “the parents’ interest in the care, custody and companionship of the child are no longer paramount,” and “ ‘the focus shifts to the needs of the child for permanency and stability’ [citation] . . . .” (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

Here, although the parents shared a good bond with G.O. and X.O., they acknowledged they did not know J.O. very well and did not see him very often. In addition, the children had reached the point in the dependency proceedings where a permanent plan was to be selected, and they deserved to have that permanency in their lives. Despite the parents’ contention that reunification was likely to occur in another six months, the court and the agency believed the parents were still in the early stages of their recovery, and the maternal great-grandmother testified that the parents were “just learning.” “ ‘A child has a compelling right to a stable, permanent placement that allows a caretaker to make a full emotional commitment to the child,’ ” (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 10), and “[c]hildhood does not wait for the parent to become adequate” (In re Marilyn H. (1993) 5 Cal.4th at 295, 310). The juvenile court did not abuse its discretion in denying the parents’ request for modification of the court’s previous orders.

We also reject the parents’ contention that additional services should have been ordered under section 361.5, subdivision (a), which authorizes extension of services if there is a substantial probability the child will be returned to the parents’ care within the extended period of time, or if the court finds reasonable services were not provided. The section applies only if the applicable showing is made at the twelve-month review hearing. (§ 361.5, subd. (a)) Here, there was no twelve-month review hearing because services were terminated and a section 366.26 hearing was set at the six-month review hearing. Because the court was conducting a section 388 hearing, not a twelve-month review hearing, it could not have ordered additional services under section 361.5, subdivision (a).

2. The parents had a right to be served with the caregiver information form, but the error was harmless under any standard.

The parents contend their statutory and due process rights were violated when the court clerk failed to serve them with a caregiver information form that J.O.’s caregivers had completed. We agree there was error but conclude the error was harmless under any standard.

“Prior to [any] hearing involving a child in the physical custody of . . . a relative caregiver, . . . the . . . relative caregiver . . . may file with the court a report containing his or her recommendation for disposition.” (§ 366.21, subd. (d).) California Rules of Court, rule 5.534(n), effective October 1, 2007, provides that the child’s caregiver has the right to be heard in each proceeding and to submit information about the child to the court before the hearing, including a letter or a judicial council form known as the Caregiver Information Form. (Rule 5.534(n)(1), (2).) Whenever a caregiver information form or letter is filed, “the court clerk must provide the social worker, all unrepresented parties and all attorneys with a copy of the completed form or letter immediately upon receipt” and must complete, file, and distribute a proof of service. (Rule 5.534(n)(6); see rule 5.534(k)(3).)

All references to the rules are to the California Rules of Court.

Here, as noted, J.O.’s caregivers submitted a caregiver information form. The agency argues that under Evidence Code section 664, which provides that “[i]t is presumed that official duty has been regularly performed,” we should presume the clerk conducted its duty to file and serve the caregiver information form. However, there is no proof of service in the record showing the documents were served. Further, during extensive discussions at the section 366.26 hearing regarding whether J.O.’s caregivers were willing to adopt or become legal guardians, no one mentioned the caregiver information form, which would have been highly relevant to the issue. In addition, the court stated its understanding on two occasions that the caregivers were willing to adopt, and asked whether the caregivers were also willing to consider becoming J.O.’s legal guardians. Given these exchanges and inquiries from the court, we cannot reasonably conclude that the clerk served all parties with the caregiver information form. Because the parents were entitled to receive a copy of the form, the clerk’s failure to serve it was error.

We conclude, however, that the error was harmless under any standard. The parents assert they were prejudiced because “[t]he outcome would have been different,” i.e., the court would have ordered legal guardianship for J.O., “if the court had information that the [caregivers] . . . preferred guardianship . . . .” The argument fails because, as set forth below in section 4a, the relative/caregiver exception to adoption would not have applied even if J.O.’s caregivers were willing to become his legal guardians. Further, although the record shows the juvenile court expressed some concern about selecting adoption as J.O.’s permanent plan while selecting legal guardianship as the plan for his brothers, the concern was not related to the caregivers’ willingness to adopt or become legal guardians, but on the reluctance to sever the sibling relationship. As set forth below in section 4b, the sibling relationship exception to adoption also did not apply and would not have been a proper factor on which the court could rely in rejecting adoption over legal guardianship, regardless of whether the caregivers were willing to adopt J.O. or become his legal guardians. The record demonstrates beyond a reasonable doubt that the outcome would have been the same, absent the error.

Because we conclude the error was harmless under any standard, we need not decide whether the error was one of constitutional magnitude. In addition, we reject the parents’ argument that the error was reversible per se. A per se reversible error standard applies only when the error is in the nature of a structural error such as a complete deprivation of notice and opportunity to be heard, or multiple due process errors that give rise to the presumption of prejudice. (See e.g., In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1116 [parent not notified of section 366.26 hearing]; In re DeJohn B. (2000) 84 Cal.App.4th 100, 109-110 [parent not notified of six-month review hearing at which services were terminated and section 366.26 hearing was scheduled]; In re Brendan P. (1986) 184 Cal.App.3d 910, 915-916 [untimely notice to father of order placing child in foster care, combined with multiple irregularities at the hearing].) There was no such error here.

Expressly finding that the sibling exception did not control, the court expressed doubt about whether its decision was “necessarily . . . the wisest course of action to take” because it believed “there is a benefit to these children that could result from both caregivers being the legal guardians . . . and maintaining the possibility that a sibling relationship can continue in the future . . . .”

3. Substantial evidence supports the juvenile court’s adoptability finding.

The parents contend there was insufficient evidence to support the juvenile court’s finding that J.O. was adoptable. We disagree.

“If the court determines, . . . by a clear and convincing standard, 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).) To determine whether a minor is likely to be adopted, the court focuses on whether the minor’s age, physical condition, and emotional state will create difficulty in locating a family willing to adopt the minor. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) We review an adoptability finding by determining whether there was substantial evidence for the court to reasonably make the finding by clear and convincing evidence. (In re Christiano S. (1997) 58 Cal.App.4th 1424, 1431.) In evaluating whether there is substantial evidence to support a finding, we review the record in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the finding. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) It is not our task to reweigh or express our independent judgment of the evidence. (In re Stephanie M., supra, 7 Cal.4th at p. 318; In re Angelia P. (1981) 28 Cal.3d 908, 924.)

Substantial evidence supports the juvenile court’s finding that J.O. was adoptable. He was independently assessed as adoptable by two social workers. His child welfare worker testified she believed J.O. was adoptable. The parents contend that a social worker’s opinion that J.O. is adoptable was insufficient to support the adoptability finding. However, the record shows that in addition to the social worker’s opinion, there was ample evidence that nothing about J.O.’s “age, physical condition, and emotional state” would create difficulty in locating a family willing to adopt him. (See In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) J.O. was not yet 15 months old at the time of the section 366.26 hearing. Although he had been born with methamphetamines in his system, he was in good health throughout the dependency proceedings and was developmentally on target. He was described as active, sociable, and affectionate.

The parents also contend that the fact that J.O.’s caregivers did not want to adopt him shows he was not adoptable. It is not necessary, however, for a child to be in a potential adoptive home or for proposed adoptive parents to be “waiting in the wings,” in order to be adoptable. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) In fact, section 366.26, subdivision (c)(1), provides that the “fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.” Because J.O.’s status as an adoptable child was premised on his personal characteristics and not on the existence of a prospective adoptive family, his caregivers’ unwillingness to adopt him was not relevant. Substantial evidence supports the juvenile court’s adoptability finding.

4. The juvenile court properly found that none of the statutory exceptions to adoption existed.

a. The relative/caregiver exception did not apply.

The parents contend the juvenile court erred in not applying the statutory exception to adoption in which a relative caregiver, although unwilling to adopt, is willing to provide a permanent home for the child. The contention is without merit.

Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) Thus, the juvenile court must terminate parental rights at the section 366.26 hearing if the child is likely to be adopted within a reasonable time, unless a statutory exception to adoption applies. (§ 366.26, subd. (c)(1).) The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; § 366.26, subd. (c)(1).) We determine if there is substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court, resolving all conflicts in favor of the prevailing party, and drawing all legitimate inferences to uphold the lower court’s ruling. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)

At the time of the section 366.26 hearing in this case, the relative/caregiver exception provided that an exception exists where “[t]he child is living with a relative or foster parent who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative or foster parent would be detrimental to the emotional well-being of the child.” (See former § 366.26, subd. (c)(1)(D), italics added.) As emphasized, there must be a showing that the caregivers are unable or unwilling to adopt due to “exceptional circumstances” that “do not include an unwillingness to accept legal or financial responsibility for the child,” and that the caregivers are willing to provide the child with a “stable and permanent environment.” Here, although there was evidence that J.O.’s caregivers did not wish to adopt him, there was no evidence that their wish was based on any “exceptional circumstances,” or that they were willing to provide a “permanent” home for him. In fact, they specifically stated that they believed they were “merely caring for [J.O.] during his parents [sic] troubled times,” and that they had cared for him in light of an understanding that it was a “temporary situation.” (Emphasis in original.)

Moreover, a relative caregiver’s preference for legal guardianship over adoption has been held insufficient to overcome the statutory preference for adoption when a child is generally adoptable. (See In re Xavier G. (2007) 157 Cal.App.4th 208, 214 [caretaker’s preference for guardianship is irrelevant at a section 366.26 hearing where the court’s task is to select a plan that serves the child’s best interests].) For the relative/caregiver exception to apply, there must be something more. (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1298 [while declining to delineate the factors that would constitute exceptional circumstances, the reviewing court was “convinced that mere family preference is insufficient”].) Thus, even if J.O.’s caregivers’ statements can be interpreted as a preference for legal guardianship, they would not have changed the outcome regarding applicability of the relative/caregiver exception.

In re Fernando M. (2006) 138 Cal.App.4th 529, on which the parents rely, is distinguishable. There, the court found that exceptional circumstances existed, and that finding was based on considerations that are absent in this case. For one, Fernando was living with siblings who were not dependents of the juvenile court. Thus, if Fernando were adopted by another family, he “no longer would share daily interactions with his siblings.” (Id. at p. 537.) Secondly, the relative caregiver’s husband was opposed to adoption, which meant that a spousal waiver would be required, which “would invade the private realm of [the caretaker’s] marriage.” (Ibid.) Such circumstances did not exist here.

The parents also argue that the amended version of the relative/caregiver exception, which deleted the “exceptional circumstances” requirement and became effective January 1, 2008 (after parental rights were terminated in this case), should be applied retroactively. We need not decide this issue because, even assuming the amended version applies retroactively, we conclude it does not support the parents’ position that adoption should not have been selected as J.O.’s permanent plan. Although the amended version deleted the “exceptional circumstances” requirement, it still requires that the relative/caregiver be “willing and capable of providing the child with a stable and permanent environment.” (§ 366.26, subd. (c)(1)(A).) As noted, J.O.’s caregivers were not willing to provide a permanent home for J.O.

The relative/caregiver exception provides in full: “The child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child.” (§ 366.26, subd. (c)(1)(A).)

Finally, we reject the parents’ argument that the trial court should have applied the amended version of the relative/caregiver exception by continuing the hearing until the amendment became effective January 1, 2008. In light of our conclusion that the amended version would not have assisted the parents in arguing against adoption, we note that any continuance of the hearing would not have changed the outcome of the case.

b. The sibling relationship exception did not apply.

The parents contend that the sibling relationship exception to adoption applied. We disagree.

The applicable sibling relationship exception provides there is a compelling reason to forego termination of parental rights and adoption if “[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, as compared to the benefit of legal permanence through adoption . . . .” (Former § 366.26, subd. (c)(1)(E), renumbered as subd. (c)(1)(B)(v), eff. Jan. 1, 2008.) The “sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a ‘compelling reason’ for concluding that the termination of parental rights would be ‘detrimental’ to the child due to ‘substantial interference’ with a sibling relationship.” (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.)

Here, there was virtually no evidence that any of the express statutory factors existed. J.O. had been separated from G.O. and X.O. since he was not yet four months old, and they lived in different homes throughout the dependency proceedings. There was no evidence they shared significant common experiences or had existing close ties or strong bonds. During the first six month review period, J.O. usually visited with his brothers twice a month and “tolerate[d] the visits okay,” but there was evidence that the visits decreased, as the maternal great-grandmother testified that the siblings saw each other only three times during the six month period from April to October 2007. In contrast to In re Naomi P. (2005) 132 Cal.App.4th 808, on which the parents rely, there was no substantial evidence in this case that maintaining the sibling relationship outweighed the benefit to J.O. of obtaining permanence through adoption. (See id. at pp. 812-814, 824 [sibling relationship exception applied because three-year old Naomi had weekly visits with her three older siblings throughout the dependency proceedings, including overnight visits, and there was evidence of a significant relationship among them].)

5. Minors’ counsel did not provide ineffective assistance of counsel to J.O.

The parents contend that minors’ counsel provided ineffective assistance of counsel to J.O. We disagree.

A minor’s counsel “shall . . . advocate for the protection, safety, and physical and emotional well-being of the child.” (§ 317, subd. (c).) Counsel “shall be charged in general with the representation of the child’s interests[,] . . . 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, including the interviewing of witnesses, and he or she shall examine and cross-examine witnesses in both the adjudicatory and dispositional hearings. He or she may also introduce and examine his or her own witnesses, make recommendations to the court concerning the child’s welfare, and participate further in the proceedings to the degree necessary to adequately represent the child.” (§ 317, subd. (e).) All parties represented by counsel at dependency proceedings “shall be entitled to competent counsel.” (§ 317.5.)

Parties seeking review of an ineffective assistance of counsel claim must demonstrate “that counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law,” and secondly, that the claimed error was prejudicial. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) The challenge is ordinarily brought by writ of habeas corpus, but will be cognizable on appeal if “ ‘there simply could be no satisfactory explanation’ for trial counsel’s action or inaction [citation] . . . .” (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1253-1254, disapproved of on another ground in In re Zeth S., supra, 31 Cal.4th at pp. 408-410.)

Here, the parents contend that minors’ counsel should have conducted further investigation to ascertain whether J.O.’s caregivers were willing to adopt him and should have refrained from arguing against application of the relative/caregiver exception to adoption when there was no evidence to support his position that the caregivers were willing to adopt J.O. They also contend that counsel should have refrained from arguing two different permanent plans for the children when, in the parents’ opinion, the only difference in their circumstances was that they were placed with different relative caregivers.

First, there is no evidence in the record that counsel did not investigate whether the caregivers were willing to adopt J.O. In fact, counsel referred to having had “significant conversations” with J.O.’s caregivers and indicated he had heard from them the day of the hearing. Further, the fact that counsel may have believed, and articulated to the court, that the caregivers were willing to adopt J.O., does not show the investigation was inadequate, as the record shows the caregivers wavered at times about their willingness to adopt. Without evidence that counsel was misrepresenting the caregivers’ intentions, either intentionally or negligently, there is no basis to conclude that he was incompetent. Second, counsel was justified in arguing against the relative/caregiver exception because, in light of J.O.’s adoptability, adoption was the preferred plan. Counsel’s advisement to the court that it could “only choose a plan for a child other than adoption if one of the six statutory exceptions exists,” was consistent with the law. Third, counsel provided effective representation to all three children by arguing for permanent plans that were in each of the children’s best interests. Although the parents contend that the only difference in the children’s circumstances was that they had been placed with different relatives,, the children’s situations were, in fact, very different. G.O. and X.O. were living with a de facto parent who qualified for the relative/caregiver exception, were older than J.O., and shared a good bond with their parents. It was therefore proper for counsel to argue a different plan for J.O., who, in the court’s words, was in a “different universe” from G.O. and X.O. Because J.O. was adoptable and no exceptions applied, counsel did not provide ineffective assistance to J.O. by advocating adoption for him.

6. The juvenile court properly denied the motion to disqualify minors’ counsel and appoint separate counsel for the children.

Mother contends the juvenile court erred in denying her motion to disqualify minors’ counsel and to have separate counsel appointed to represent the children. We reject the contention.

One attorney may be appointed to represent multiple siblings in a dependency case “unless, at the time of appointment, an actual conflict of interest exists among them or it appears from circumstances specific to the case that it is reasonably likely an actual conflict will arise.” (In re Celine R. (2003) 31 Cal.4th 45, 50 (Celine R.).) Following the initial appointment, the juvenile court “must relieve counsel from the joint representation when, but only when, an actual conflict of interest arises.” (Ibid.) A “theoretical potential conflict of interest” is not enough to require the appointment of separate counsel. (Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1429.) Only if the best interest of one or more of the minor conflicts with that of one or more of the siblings does an actual conflict of interest exist. (Id. at p. 1430.) “[M]ulti-sibling permanent plans do not necessarily involve an actual conflict.” (Id. at p. 1429.)

Here, the parents did not object when minors’ counsel was appointed to represent all three children. Mother argues that a conflict arose when counsel advocated adoption for J.O., which meant that G.O. and X.O. would lose their sibling relationship with J.O. However, even assuming, without deciding, that the juvenile court erred in denying Mother’s request for separate counsel, we conclude, as the Supreme Court did under similar circumstances in Celine R., supra, 31 Cal.4th at pp. 60-61, that any error was harmless. In Celine R., minors’ counsel represented all three dependent children and expressed concern that arguing for the adoption of two of the children would negatively impact the third child’s sibling relationship to the adoptive children. (31 Cal.4th at pp. 55, 58.) Applying the Watson standard of harmless error (People v. Watson (1956) 46 Cal.2d 818, 836), Celine R., supra, stated: “Even if [the two adoptive children] had had separate counsel, that counsel would either have argued in favor of the adoption, which obviously would not have affected the outcome, or against it, as counsel here did in effect. We find it very unlikely that separate counsel would have convinced the court to make a different ruling when joint counsel failed. This is especially true given our conclusion that the sibling relationship exception permits the court to consider only possible detriment to [the adoptive children].” (31 Cal.4th at p. 61.) Celine R. concluded that in light of the preference for adoption and the “compelling” showing required to show the sibling relationship exception applies, any error in not appointing separate counsel was harmless. (Id. at pp. 60-61.)

Similarly, here, the record does not disclose a basis for the court to suspect that G.O. and X.O. felt such a strong bond with J.O. that J.O. should not have been adopted. As set forth in detail above, the siblings lived together only for a few months and had not shared any significant common experiences. They had seen each other only three times during the six month period before the section 366.26 hearing, and there was no evidence that G.O. and X.O. shared a close or strong bond with J.O. Moreover, it was undisputed that even if J.O. were not adopted, there was no possibility of the three brothers being placed together, as the maternal great-grandmother testified she would not be able to care for J.O. Under the circumstances, we find no reasonable probability the juvenile court would have chosen a different permanent plan for J.O. even if it had appointed separate counsel for the children.

Disposition

The juvenile court’s orders are affirmed.

Minors’ counsel, on behalf of J.O., filed a motion to take post-judgment evidence, contending that the new evidence rendered some of the issues raised on appeal by the parents “technically moot.” Father filed a response objecting to the consideration of the evidence. In light of our conclusion that all of the arguments lack merit, we deem it unnecessary to consider post-judgment evidence to determine whether the issues are also moot.

We concur: Pollak, J., Jenkins, J.


Summaries of

In re G.O.

California Court of Appeals, First District, Third Division
Sep 26, 2008
No. A119555 (Cal. Ct. App. Sep. 26, 2008)
Case details for

In re G.O.

Case Details

Full title:ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. G.O.…

Court:California Court of Appeals, First District, Third Division

Date published: Sep 26, 2008

Citations

No. A119555 (Cal. Ct. App. Sep. 26, 2008)