Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD226481
BUTZ, J.I.M., mother of J.C., the minor, appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Appellant contends the juvenile court’s failure to appoint counsel for her before she appeared in court violated her statutory right to counsel and her constitutional right to due process. Appellant further contends the juvenile court failed to ensure the sibling relationship would be maintained and should have appointed conflict counsel for the minor. We conclude appellant has forfeited each of these claims and shall affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL BACKGROUND
In October 2007, appellant called police seeking to have the month-old minor put in protective custody because she could not care for him. When officers arrived, they found appellant was under the influence of alcohol and arrested her. The minor’s two-year-old half sibling was in the maternal grandmother’s care.
The Sacramento County Department of Health and Human Services (the Department) filed a petition to detain the minor on the ground that appellant was unable to provide care for the minors due to mental illness and substance abuse. Appellant was released from custody within two days and was offered, but declined, voluntary services. Appellant maintained telephone contact with the social worker and said she was in the San Francisco area staying with friends and family. The social worker informed appellant by telephone of the date and time of the initial hearing. Appellant did not appear for the hearing and the court ordered the minor detained.
The half sibling was later detained from the maternal grandmother’s care and placed in the same home as the minor.
According to the report for the jurisdiction hearing, the social worker had telephone contact with appellant in October 2007 and gave her notice of the jurisdiction hearing. Appellant was entitled to visit the minor once a week and was offered bus tickets for transportation but, by early November, had not attended any visits although she called regularly to ask how he was doing. The social worker developed a service plan to address appellant’s issues.
An addendum to the jurisdiction/disposition report stated the social worker was contacted by a drug treatment program in Contra Costa County to inform her that appellant entered the program in early November 2007. Appellant left the program less than a week after she entered it. The jurisdiction hearing was continued. At the continued hearing, the social worker informed the court that appellant said she was going to be present but had not appeared. The court observed that no notification of rights was sent to appellant and ordered it be sent to the address in San Francisco she had recently provided. The record contains no indication such notice was sent and the documents that were sent had an incorrect postal code.
According to a second addendum in January 2008, appellant had not engaged in services or regular visits although she had been provided weekly transportation. When appellant did visit the minor, her behavior was inappropriate, and she became hysterical. Appellant was ambivalent about where she wanted to reside and engage in services.
A third addendum in February 2008 chronicled appellant’s recent visitation, noting she continued to need redirection to discuss appropriate topics and often ended visits with hysterical crying, which appeared to terrify the minor’s half sibling. During February appellant’s erratic behavior escalated and ultimately appellant voluntarily entered a psychiatric hospital.
Appellant did not attend the jurisdiction/disposition hearing although she was aware of the proceedings and maintained contact with the social worker using her cellular telephone. She was no longer in the hospital but her whereabouts were unknown and she was not at the address she had previously provided. The court stated it would not provide counsel for appellant until she came forward and indicated an intention to participate in the proceedings beyond visiting the minor. The court then sustained the petition, adopted a reunification plan for appellant, suspended visitation due to appellant’s inappropriate behavior, and set a six-month review hearing.
The report for the six-month review hearing recommended termination of appellant’s services. The half sibling’s father wanted custody of the half sibling, but not the minor, and the Department was looking for a prospective adoptive placement for the minor. Although referred to services in both Sacramento and San Francisco, appellant had failed to participate in services in either locale. The social worker tried several times to contact appellant at the shelter where she stayed and had faxed information about her plan requirements to her there. The report recommended termination of services as to appellant and six months of services for the half sibling’s father.
Appellant appeared in court for the first time at the six-month review hearing and designated a mailing address. The court appointed counsel and continued the hearing. Appellant did not appear at the continued date. The court adopted the recommendation, terminating services for appellant and setting a section 366.26 hearing as to the minor. The court ordered that the advisement and forms for writ review be mailed to appellant at the address she had provided.
The report for the section 366.26 hearing recommended adoption as the permanent plan. The minor was not currently in an adoptive placement but several families were being assessed for ability to meet the minor’s needs and willingness to maintain sibling contact. The social worker believed it would be beneficial to maintain the sibling relationship.
Appellant was present at the section 366.26 hearing; however, the hearing was continued. Appellant was again present when the section 366.26 hearing commenced at the end of October 2008. Appellant addressed the court, explaining what had happened to her during the case including hospitalizations and that she was now stable on medication, engaging in service programs, and wanted the minor returned to her. The court found the minor was likely to be adopted and terminated parental rights. The court did not make any specific visitation orders for the minor and the half sibling and none was requested.
DISCUSSION
I
Appellant seeks to create an exception to the decision in In re Ebony W. (1996) 47 Cal.App.4th 1643, in which this court held that counsel need not be appointed for an indigent parent in a dependency case until the parent appears in court and makes his or her desire for counsel known. (Id. at pp. 1647-1648.) Appellant argues that, in cases such as this, where the primary basis for the dependency petition is the parent’s mental health issues, which render the parent incapable of adequately caring for the minor(s), and where such mental health issues can prevent the parent from understanding the proceedings, the juvenile court should appoint a guardian ad litem and counsel for that parent in order to comply with both the statutory requirement for appointment of counsel and the constitutional due process requirement of fundamental fairness in the proceedings.
Whatever the attractions of this proposal, appellant is in no position to raise it, having forfeited the claim by failing to raise it in the juvenile court, either when she appeared and was appointed counsel at the six-month review hearing, or on review of the orders from that hearing by extraordinary writ. (§ 366.26, subd. (l); In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; John F. v. Superior Court (1996) 43 Cal.App.4th 400, 404-405; In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1200.)
Appellant attempts to avoid forfeiture by claiming that the record does not show she was informed of her right to counsel and that pursuant to section 317, waiver of counsel must be “knowing and intelligent.” (§ 317, subd. (b).) The flaw in this contention is that it was not appellant’s lack of knowledge of her rights which caused the forfeiture, but rather her lack of action to preserve her rights once they were known and she was represented by counsel.
When counsel was appointed to represent appellant at the six-month review hearing, counsel had the opportunity to review the case, assess the actions taken to that point and consider the impact of both appellant’s mental health issues and her absences on the results of the prior hearings. Counsel also had the opportunity to fully inform appellant of her rights, assess appellant’s ability to assist counsel in asserting her position on issues in the case and take appropriate action to further appellant’s interests and protect her rights. On this record we must presume counsel acted appropriately to protect appellant’s due process and statutory rights. (See People v. Pope (1979) 23 Cal.3d 412, 426.)
II
Appellant, relying primarily on section 16002, subdivision (b), contends the juvenile court failed to ensure the maintenance of the sibling relationship, which is necessary for the minor’s well-being, by failing to order visits between the minor and his half sibling after parental rights were terminated.
There are also threshold difficulties with this argument. The first is that she lacks standing to assert questions of posttermination sibling visitation as to the minor since she is not raising the sibling exception to termination of parental rights. (In re Daniel H. (2002) 99 Cal.App.4th 804, 809-810; cf. In re Valerie A. (2007) 152 Cal.App.4th 987, 999-1000 [parent has standing to raise sibling visitation issues when it affects the sibling exception to termination of parental rights].) The second is that the issue was not raised in the juvenile court and cannot be raised for the first time on appeal. (In re Daniel K. (1998) 61 Cal.App.4th 661, 667; John F. v. Superior Court, supra, 43 Cal.App.4th at pp. 404-405.)
Appellant recognizes the issue was not raised in the juvenile court but argues the issue is important and should be considered. We recognize forfeiture can be excused if an important legal issue is presented. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) However, we fail to discern the important legal issue that would justify abandoning the forfeiture rule in this case. The standing issue is well settled and the scope of the juvenile court’s duty to consider continuing sibling visitation after termination of parental rights and prior to adoption is also not novel. (In re Valerie A., supra, 152 Cal.App.4th at p. 1004 [juvenile court has discretion to make ongoing sibling visitation orders during the period between termination of parental rights and adoption].) Further, section 16002, subdivision (b) places a duty on the Department, not the court, and its construction under the facts of this case has little to add to either of the above mentioned issues.
Section 16002, subdivision (b) states, in pertinent part: “The responsible local agency shall make a diligent effort in all out-of-home placements of dependent children, including those with relatives, to develop and maintain sibling relationships.... When placement of siblings together in the same home is not possible, diligent effort shall be made, and a case plan prepared, to provide for ongoing and frequent interaction among siblings until family reunification is achieved, or, if parental rights are terminated, as part of developing the permanent plan for the child.”
III
Appellant argues that conflict counsel should have been appointed for the minors because an actual conflict existed when the court decided to go forward with the minor’s adoption before it was able to place him in an adoptive home and thus it was not certain the adoptive parents would agree to ongoing sibling contact.
Appellant asserts she has standing to raise this issue. We disagree and instead follow the reasoning in In re Daniel H., supra, 99 Cal.App.4th at pages 809 to 811, which distinguishes the cases relied upon by appellant in support of her claim that she has standing. In any case, appellant has forfeited the issue by failing to raise it in a timely fashion at the section 366.26 hearing. (In re Anthony P. (1995) 39 Cal.App.4th 635, 642; In re Heidi T. (1978) 87 Cal.App.3d 864, 876.)
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: SCOTLAND, P. J., SIMS, J.