Opinion
C042049.
7-9-2003
In re JEREMY T. et al., Persons Coming Under the Juvenile Court Law. CALAVERAS WORKS AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. SUSAN F., Defendant and Appellant.
Susan F. (appellant), the mother of the two minors, appeals from the orders of the juvenile court entered at the section 366.26 hearing. (Welf. & Inst. Code, § 395.) Appellant contends the juvenile court erred by terminating her visitation with the minors. She also claims the minors received ineffective assistance of counsel because their attorney had a conflict of interest. As to these contentions, we disagree and shall affirm the juvenile court orders. She also claims the court erred by failing to order sibling visitation. We agree the juvenile court was required to consider visitation between the minors. On this basis alone, we shall remand the matter.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
A dependency petition was filed in February 2001 regarding nearly eight-year-old Jeremy T. (Jeremy) and five-year-old Felecia T. (Felecia) alleging "unsafe living conditions" in appellants home, drug use by appellant and the minors father, and an extensive history of referrals concerning the family for neglect, abuse, and domestic violence. The minors had previously been dependents of the juvenile court in 1998 when appellant and the minors father, who were highly intoxicated, left the minors unattended in a hotel room with no food.
Felecias name is spelled "Felicia" at times throughout the record.
In June 2001, the petition was sustained.
At the dispositional hearing in September 2001, appellant was granted reunification services, which were to include long-term residential treatment. The juvenile court denied services to the minors father and ordered him to have no contact with appellant, noting the finding in appellants psychological evaluation that her prognosis for successful reunification was "poor to extremely poor" if she did not remain separated from the minors father. The court set a review hearing in November 2001 "to keep a close watch [on appellants] progress."
In a report for the review hearing, the social worker recommended that appellants reunification services be terminated. Since the dispositional hearing, appellant had failed to complete the assessment process to begin substance abuse treatment, had missed tests and tested positive for methamphetamine and alcohol, and had gone to court to "drop" the restraining order against the minors father. According to the report, the minors were placed together in foster care.
At the review hearing in December 2001, the juvenile court terminated appellants reunification services and ordered a permanent plan of long-term foster care for the minors. The court set a hearing to select and implement a permanent plan pursuant to section 366.26 and ordered supervised visitation with appellant once a month.
According to the report for the section 366.26 hearing, the minors had been placed in separate foster homes. Although the minors were reportedly in good physical health, they were both experiencing behavioral problems and were scheduled to begin therapy. Felecias behavioral problems had resulted in four placement changes, and she had been prescribed medication for Attention Deficit Hyperactivity Disorder and Oppositional Defiance Disorder. Although the minors seemed to enjoy their monthly visits with appellant, they "exhibited behaviors and emotional problems which . . . led to placement problems" following visits.
According to the social workers report, the state adoptions worker believed that a prospective adoptive family would be identified within 30 to 60 days and she recommended termination of visitation with the minors parents. Attached to the social workers report was a "child welfare services case plan update" (case plan update). The visitation section of the case plan update stated: "Social worker will supervise and arrange visitation between minors and parents one time. Then visitations will cease as recommended by this agency and State Adoptions."
The social worker recommended a permanent plan of adoption. No visitation order was contained in the social workers recommended findings and orders.
The adoption assessment, prepared in May 2002, reported that Jeremy had not had any behavioral problems since being placed in his current foster home. Jeremys relationship with Felecia was described as "chaotic," with Felecia "bothering and harassing" him until he became angry and pushed her. Jeremys relationship with Felecia caused him a great deal of stress, and he indicated he did not want to live with her "at this time." Jeremy was "ambivalent regarding his attitude toward placement and adoption."
Felecia had been in three new schools in one year. According to the adoption assessment, her behavioral problems "appeared to be related to grief and loss issues and separation from [Jeremy]." Felecia was reportedly "too young to articulate her preferences regarding placement and adoption."
The assessment found that "due to Felecias behavioral issues and her conflicted relationship with Jeremy, it is necessary to further assess the suitability of placing the children together or proceeding with selecting different prospective adoptive families for each of the children." The assessment recommended a permanent plan of adoption without terminating parental rights and a continuance of 90 days to locate an appropriate adoptive family.
A report from a multi-disciplinary conference in late June 2002 stated that a family had been identified that was willing to adopt the minors and that Felecia was "doing much better" since being prescribed medication.
At the section 366.26 hearing in July 2002, appellants attorney argued for placement of the minors with their grandmother and noted that the report recommended "one final visit." He stated that he "opposed strongly what the report says," asserting that appellant "definitely wants to play apart [sic] in [the minors] lives."
The juvenile court ordered a permanent plan of adoption without terminating parental rights and directed that efforts be made to locate an adoptive home. The court adopted the social workers recommended findings and orders. Visitation was not raised by any of the parties, nor did the juvenile court enter an order concerning visitation except to state that "all orders previously made remain in full force and effect except as modified herein."
DISCUSSION
I
Appellant claims the juvenile court erred by terminating visitation between her and the minors. Her claim fails for two reasons.
First, appellant failed to raise a proper objection in juvenile court to the recommendation to terminate visitation. During closing arguments, appellants attorney noted, among other things, that the social workers report recommended appellant "gets one final visit" and that the attorney "opposed strongly what the report says." However, he did not specifically object to the termination of visitation or set forth a legal or factual basis for opposing this recommendation. "In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal." (In re Christopher B. (1996) 43 Cal.App.4th 551, 558; seeIn re Precious J. (1996) 42 Cal.App.4th 1463, 1476; In re Daniel C. H. (1990) 220 Cal. App. 3d 814, 838, 269 Cal. Rptr. 624.) Appellants failure to object to the recommended visitation order bars her from raising the issue on appeal.
Second, the juvenile court did not order termination of visitation. Although there was reference to terminating visitation in the social workers report and in the case plan update attached to the report, the juvenile court did not incorporate this recommendation into its orders at the hearing. Instead, the court adopted the social workers recommended findings and orders, which did not contain any express orders regarding visitation. Consequently, visitation was governed by the courts order that "all orders previously made remain in full force and effect except as modified herein."
Finally, we observe that the juvenile courts permanent plan order was somewhat of a hybrid. On one hand, the court found clear and convincing evidence that the minors were likely to be adopted and ordered that "adoption shall continue to be the permanent plan for the minors." Ordinarily when the juvenile court makes these findings, it is appropriate to terminate parental rights and order the child placed for adoption. (& sect; 366.26, subd. (c)(1).) However, the juvenile court did not terminate parental rights here. Instead, it set another permanency planning hearing within 180 days. This aspect of the order is consistent with section 366.26, subdivision (c)(3), which permits the court to identify adoption as the permanent placement goal without terminating parental rights when a child has a probability of adoption but is difficult to place.
There is no express provision for visitation when adoption has been identified as the permanent plan goal but parental rights have not been terminated. However, since by invoking this provision, a juvenile court recognizes the possibility that adoption may not be feasible, we conclude the juvenile court retains discretion to allow visitation to continue under such circumstances.
The primary focus at this stage of the proceedings is on stability and permanence for the minors (In re Marilyn H. (1993) 5 Cal.4th 295, 309, 851 P.2d 826), and the juvenile courts determination of whether visitation will cause detriment to the minors may include consideration of whether visitation will interfere with the minors permanent plan goal.
II
Appellant asserts it was error for the court to fail to order sibling visitation. We agree that the juvenile court was required to consider sibling visitation.
We reject respondents argument that appellant lacks standing to raise this issue. While a parent ordinarily lacks standing to raise issues affecting only the childs interest in a relationship with a sibling or other relative (In re Cliffton B. (2000) 81 Cal.App.4th 415, 425), a parent does have standing to assert an exception to termination of parental rights when adoption will result in substantial interference with a sibling relationship and to raise this issue on appeal. (§ 366.26, subd. (c)(1)(E); In re L. Y. L. (2002) 101 Cal.App.4th 942, 950-951.) Therefore, prior to the termination of parental rights, a parent has standing to raise issues on appeal that relate to fostering the sibling relationship.
Respondent also claims that appellants argument concerning sibling visitation is "speculative and premature" because the juvenile court has not terminated appellants parental rights. However, the juvenile court has identified adoption as the permanent plan and has set another section 366.26 hearing. Consequently, appellant has a present interest in preventing the deterioration of the minors relationship with each other because this relationship could provide the basis for avoiding a termination of her parental rights at the section 366.26 hearing.
Appellant contends "the [juvenile] court has a mandatory duty to order sibling visitation throughout a dependency case where the children are not placed together . . . ."
Section 16002, subdivision (b), provides: "The responsible local agency shall make a diligent effort in all out-of-home placements of dependent children . . . 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 . . . as part of developing the permanent plan for the child. If the court determines by clear and convincing evidence that sibling interaction is detrimental to a child or children, the reasons for the determination shall be noted in the court order, and interaction shall be suspended." The duty to foster ongoing sibling contact described in section 16002, subdivision (b) extends to the juvenile court, which is obligated to consider sibling visitation throughout the dependency proceedings. (In re Cliffton B. , supra, 81 Cal.App.4th at p. 427.)
In the present matter, although the adoption assessment expressed reservations about whether the minors could be placed together in an adoptive home, notes from an interdisciplinary meeting shortly before the section 366.26 hearing indicate that a family had been identified who was willing to adopt both minors. The visitation schedule in the social workers case plan update stated that sibling visitation was "not applicable." Thus, it appears it was anticipated that the minors would be reunited shortly. In all probability, this was the reason that an order for visitation was not requested by any of the parties at the hearing in question. Further, it is entirely possible that visitation was occurring despite the absence of any formal order.
However, even if it was anticipated that, ultimately, the minors would be placed together, the juvenile court was required to assure ongoing and frequent contact between them in the interim absent a determination that such contact would be detrimental to one or both of the minors. (Cf. § 366.3, subd. (e)(8)(A)-(E).) The court did not expressly address sibling visitation and made no determination in this regard. We will remand the matter for this purpose.
III
Finally, appellant contends that the minors attorney provided ineffective assistance of counsel because she had a conflict of interest in representing both minors, which prevented her from pursuing Felecias interests in visitation and placement with Jeremy. Although we conclude appellant has standing to raise this argument, we reject her claim on its merits.
Respondent again argues appellant lacks standing because "there is no showing that the alleged conflict . . . actually affects appellants interest." Respondent relies on In re Daniel H. (2002) 99 Cal.App.4th 804, in which the mother argued that the minors attorney rendered ineffective assistance of counsel because the attorney did not argue for sibling visitation. In that case, the appellate court held that the mother did not have standing to raise ineffective assistance of the minors counsel on appeal since the mother lacked standing to raise the underlying issue of sibling visitation. (Id. at pp. 810-811.)
However, as discussed previously, appellants interests are directly affected by sibling visitation prior to the termination of her parental rights because the minors relationship potentially could form the basis for an exception to adoption. (See In re L. Y. L., supra, 101 Cal.App.4th at pp. 950-951.) Indeed, In re Daniel H., supra, 99 Cal.App.4th at pages 811-812, recognized that the then-newly added exception to adoption for substantial interference with a sibling relationship, which had not been in effect at the time of the section 366.26 hearing in that case, "probably renders the standing issue moot."
Turning to the merits, appellant argues the minors attorney had an actual conflict of interest because the minors had conflicting interests regarding visitation and placement with each other. Appellant relies on: (1) the fact that Felecia often asked why she could not live with Jeremy while "Jeremy indicated he did not wish to live with his sister"; and (2) the report in the adoption assessment that further assessment was necessary to determine whether the minors could be placed together for adoption.
It is true that an attorney cannot continue to represent "more than one client in a matter in which the interests of the clients actually conflict." (Rules Prof. Conduct, rule 3-310(C)(2), italics added.) And, more specifically, "in a dependency proceeding, one attorney may not continue to represent multiple minors among whom there is an actual conflict of interest, . . ." (Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1431.)
However, in this case, the record does not disclose an actual conflict regarding the minors interests, only potential conflicts. Contrary to appellants representation, Jeremy did not "indicate[] he did not wish to live with his sister," but merely stated he did not want to live with her "at this time." And, by late June 2002, a joint placement for the minors had been identified. Only if joint placement cannot be accomplished because it would be detrimental to one of the minors, even though it would be beneficial to the other, would an actual conflict of interest emerge.
Further, the minors attorney in a dependency proceeding is required "to advocate for the protection, safety, and physical and emotional well-being of the child." (§ 317, subd. (c).) Thus, counsel for the minor must independently determine and advocate for the minors best interests. Here, if the minors attorney determines that separate placements for the minors is in each of their best interest, there is nothing to prevent her from advocating this position while advising the juvenile court about Felecias wishes. (See In re Candida S. (1992) 7 Cal.App.4th 1240, 1253.)
We have already speculated that sibling visitation was not addressed by the parties because it was anticipated that the minors would be placed together. We have also suggested the possibility that the minors continued to have contact despite the absence of a court order to this effect. Either possibility would adequately explain the failure by their attorney to request a visitation order.
Further, since the issue of sibling visitation was not addressed at the hearing in juvenile court, no actual conflict of interest is disclosed by the record. We recognize the existence of a potential conflict in this regard, i.e., that visitation could be detrimental to one minor and not the other. However, the possibility also exists that visitation between the minors can be arranged so that it is beneficial to both children, thereby removing any possible conflict.
Appellant cites In re Cliffton B., supra, 81 Cal.App.4th 415 and Carroll v. Superior Court, supra, 101 Cal.App.4th 1423, as support for her argument that the minors were entitled to the appointment of separate counsel. Both cases are distinguishable.
In In re Cliffton B., supra, 81 Cal.App.4th at page 422, the attorney who represented the minor also represented the minors 12-year-old sibling, who had been ordered into a permanent plan of long-term foster care the day before the minors section 366.26 hearing. The minors attorney indicated that, "off the record," she had disclosed to the court a "possible conflict" in representing both children because the permanent plan recommended for the minor was adoption, which the minors 12-year-old sibling opposed because it might affect his ability to have a relationship with the minor. (In re Cliffton B., at p. 422.) During the siblings hearing the previous day, the attorney had disclosed the possible conflict to the court and the court "did not believe" she had a conflict; however, following the minors section 366.26 hearing, the juvenile court appointed separate counsel to represent each child. (In re Cliffton B., at p. 422, fn. 2.) Under such circumstances, the appellate court found, "there is no doubt that . . . there was an actual conflict of interest." (Id . at p. 428.) The case focused on whether the failure to appoint separate counsel for the minor was harmless error. (Ibid .)
Similarly, in Carroll v. Superior Court, supra, 101 Cal.App.4th 1423, an attorney appointed to represent seven minors filed a petition for writ of mandate after the juvenile court denied her motion to be relieved. The attorney had declared a conflict of interest prior to the section 366.26 hearing because the minors for whom a permanent plan other than adoption was being recommended wanted to maintain a relationship with the minors who were adoptable. (Carroll v. Superior Court, at pp. 1426-1427.) The appellate court agreed with the minors attorney that she was entitled to be relieved, concluding that she had an actual conflict of interest. (Id. at p. 1428.)
The present matter is distinguishable because the circumstances under which a conflict might become "actual" — a recommendation for separate adoptive placements for the minors or for termination of visitation — had not occurred. While the record before us raises a potential conflict of interest, the circumstances did not rise to the level of an actual conflict mandating relieving counsel and appointing separate counsel for each minor.
DISPOSITION
The matter is remanded to the juvenile court for consideration of sibling visitation. In all other respects, the orders of the juvenile court are affirmed.
We concur: BLEASE, Acting P.J., and MORRISON, J.