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In re K. L.

Court of Appeals of California, Third Appellate District, Sacramento.
Nov 21, 2003
No. C043179 (Cal. Ct. App. Nov. 21, 2003)

Opinion

C043179.

11-21-2003

In re K. L. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. DARLICE C., Defendant and Appellant.


Darlice C. (appellant), the mother of K. L. and Kenneth L., appeals from an order of the juvenile court terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395; undesignated statutory references are to the Welfare and Institutions Code.) Appellant makes several contentions alleging prejudicial error in the proceedings. We find one of these meritorious.

Appellant contends, among other things, that she received ineffective assistance of counsel in that her trial counsel failed to raise the "sibling relationship" exception to termination of parental rights. (§ 366.26, subd. (c)(1)(E).) We agree that counsel failed to do so. We further find that on this record there could be no tactical reason for the omission, and that it is reasonably probable appellant would have obtained a more favorable outcome had counsel raised the exception. Therefore we shall reverse and remand the matter to the juvenile court for a new hearing on this issue.

FACTUAL AND PROCEDURAL BACKGROUND

On March 14, 2001, the Sacramento County Department of Health and Human Services (DHHS) filed original juvenile dependency petitions pursuant to section 300 on behalf of nine-year-old K. and 11-year-old Kenneth. Those petitions alleged appellant and the father of the minors had a history of domestic violence. The petitions also alleged appellant and the father of the minors had substance abuse problems that rendered them unable to provide adequate care and supervision of the minors.

Appellant is the mother of seven children. Prior to the commencement of dependency proceedings, all seven minors had lived together with appellant. As of April 2001, K. and Kenneth were in separate placements. Thereafter, K. and Kenneth were placed with one of their siblings, Steven. Three other siblings lived together in Fresno County. The minors saw each other at least once monthly. K. and Kenneth wanted to maintain a relationship with their siblings.

In September 2001, psychologist Susan A. Fossum submitted a report of her bonding evaluation, in which she assessed the bonds existing between appellant and the minors. K. told Fossum that she liked where she was living, but did not want to be adopted. Kenneth also liked his placement. Fossum noted that: "Steven is primarily bonded to Kenneth and K. He has an extremely ambivalent attachment to his mother, and appears to be in the process of grieving. He would like most to be placed in a home with all his siblings, wherever that may be."

Fossum concluded in part as follows: "The children are primarily and strongly bonded to one another, and only secondarily to their mother . . . . It would be best if they were all placed together. If some division needs to be made, then Kenneth, K. and Steven should be placed together . . . ."

K. and Kenneth had no significant health issues. However, both minors were receiving counseling. K. had suffered from nightmares and sleep problems. Kenneth had several behavioral problems and difficulty maintaining good hygiene. He wanted to be adopted. K. felt "torn between her biological and foster famil[ies]." Kenneth needed to address issues in therapy including "separation from his biological family" and "grief and loss surrounding his biological family."

In June 2001, K. and Kenneth were assessed as appropriate for long-term foster care. However, their foster parent had not ruled out seeking to adopt them. Thereafter, the juvenile court sustained the dependency petitions in part, adjudged K. and Kenneth dependent children, and ruled they were not adoptable.

In an April 2002 report, K. was described as "somewhat uncertain about wanting to be adopted." Kenneth continued to be in favor of adoption. On September 12, 2002, K. stated she wanted to be adopted. DHHS noted the foster mother wanted to adopt K. and Kenneth, but would require ongoing services to address K.s emotional problems. Thereafter, the juvenile court granted a request by DHHS to administer psychotropic medication to K.

K. and Kenneth expressed the desire to see their siblings more often. The two minors were having some difficulty getting along with each other. However, K. and Kenneth had established a strong relationship with their foster mother. DHHS now recommended adoption for K. and Kenneth.

At the December 2002 section 366.26 hearing, K. and Kenneth both testified they wanted to be adopted. However, both minors also made clear their desire to maintain contact with various family members after they were adopted. Social worker LaMar Sprague testified that K. had changed her mind about adoption after he had warned her that if she did not wish to be adopted, she would have to leave her current placement. In her testimony, K. cited family circumstances and the realization that she enjoyed her placement as factors contributing to her willingness to be adopted.

At the conclusion of the section 366.26 hearing, counsel for appellant noted the varying feelings of K. and Kenneth about adoption and argued that guardianship, rather than adoption, was the most appropriate disposition for them. Counsel also emphasized the importance of maintaining sibling contacts and expressed concern about whether they would be continued if adoption was the permanent plan. However, as we explain in greater detail in part III of the Discussion, counsel did not articulate any clear argument based on section 366.26, subdivision (c)(1)(E), the sibling relationship exception to adoption.

Appellant then made a lengthy statement, expressing her concern over the lack of regular contact among the minors and her opposition to ending her relationship with the minors.

The juvenile court found K. and Kenneth adoptable and ruled termination of parental rights would not be detrimental to them. The court then ordered appellants parental rights terminated.

DISCUSSION

I

Appellant contends the evidence is insufficient to support the finding by the juvenile court that K. and Kenneth were adoptable. Noting K. and Kenneth wanted to maintain contact with their family, appellant argues their consent to adoption was invalid because it was conditioned on continued contact with their family. Appellant also claims K.s consent was not obtained properly, and that her serious emotional difficulties meant she was adoptable only if her foster mother would agree to adopt her. Finally, according to appellant, under the circumstances presented guardianship was the best disposition for K. and Kenneth.

When the sufficiency of the evidence to support a finding is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, we must determine if there is any substantial evidence—that is, evidence that is reasonable, credible, and of solid value—to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we resolve all conflicts in favor of the prevailing party. Issues of fact and credibility are questions for the trier of fact, and we do not reweigh the evidence when assessing its sufficiency. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.)

The goal of dependency proceedings is protection of the child. (In re Kerry O. (1989) 210 Cal.App.3d 326, 333.) An important aspect of this goal "is to provide children with stable, permanent homes." (In re Heather P. (1989) 209 Cal.App.3d 886, 890.) A preference for permanent placement, as afforded by adoption, is a vital component of the statutory scheme. (In re Brian R. (1991) 2 Cal.App.4th 904, 923-924; cf. In re Mark V. (1986) 177 Cal.App.3d 754, 760-762.)

The issue of adoptability "focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the minor already be in a potential adoptive home, or that there even be a prospective adoptive parent. (Ibid.)

The record in this case reflects K. and Kenneth were in good health. In most respects they were adapting well in the care of their foster mother. Based upon this evidence, the juvenile court reasonably could find, as it did, that although the record suggests K. and Kenneth will continue to present some challenges to their caregiver, they were likely to be adopted. (Cf. In re Roderick U. (1993) 14 Cal.App.4th 1543, 1550.)

Contrary to appellants claim, the desire of K. and Kenneth to maintain contact with their family is not inconsistent with a finding of adoptability. It is hardly surprising that minors would express the wish to have the security of an adoptive placement and the desire to maintain contact with their family. From an examination of their testimony at the section 366.26 hearing, we are persuaded K. and Kenneth understood the nature and implications of adoption, and both wanted to be adopted. Moreover, the record reflects that the foster mother was committed to maintaining contact among all of the siblings. K. and Kenneth both testified that their foster mother had assured them they would be able to continue seeing appellant. Thus, there is substantial evidence suggesting the minors will continue to see their family, even though that contact cannot be legally assured after adoption.

Appellant suggests K. in effect was coerced by the social worker into agreeing to adoption. Alternatively, appellant argues, a statutory legal impediment to adoption should preclude an adoptability finding as to her. Appellant also claims the same legal impediment barred Kenneths adoption as well.

The record does not support appellants claims. First, in K.s testimony, she did not cite the social workers warning K. might have to move as a factor in her decision to favor adoption. Nowhere did K. suggest her consent to adoption was not obtained freely. Moreover, the statutory impediment to adoption cited by appellant, which requires consent to adoption where a minor is over 12 years of age, does not apply to K. The reason is that, at the time of the section 366.26 hearing, the record shows K. was only 11 years old. As for Kenneth, who was over 12, the record supports a finding that he consented to adoption.

Family Code section 8602 states: "The consent of a child, if over the age of 12 years, is necessary to the childs adoption."

It is true, as appellant argues, that K. had some serious emotional difficulties, including an adjustment disorder. But she had shown some improvement, and was developing the ability to accept consequences for her behavior. Most importantly, as the social workers report indicated, K. had demonstrated her capability to develop significant relationships with adult figures. This fact rebuts appellants assertion that K.s adoptability depended on her current foster mothers willingness to adopt her.

In sum, substantial evidence supports the juvenile courts determination that K. and Kenneth were likely to be adopted. (Cf. In re Scott M. (1993) 13 Cal.App.4th 839, 843-844.) There were no legal or other impediments to their adoption.

Appellant asserts the juvenile court could not condition an adoptability finding on the possibility of an "`open adoption." An examination of the record reveals the courts finding was not based on any such condition.

II

Appellant claims the statutory exception to adoption based on the objection of minors over 12 applied to the proceeding in this case. According to appellant, "[t]he children objected to termination of parental rights because they wanted ongoing contact with their parents which they could not have if parental rights were terminated."

Subdivision (c)(1)(B) of section 366.26 provides that the juvenile court may find termination of parental rights detrimental to minors if "[a] child 12 years of age or older objects to termination of parental rights."

As we observed when discussing Family Code section 8602 in part I, K.s age at the time of the section 366.26 hearing renders the subdivision (c)(1)(B) exception inapplicable to her. Moreover, we also determined that both K. and Kenneth expressly consented to their proposed adoption. We reject appellants argument that a wish to maintain contact with parents and other family members is tantamount to an objection to adoption.

As we find counsel for appellant raised the exception implicitly, we need not consider appellants ineffective assistance of counsel claim, which is based on the alleged failure to tender the issue.

III

Appellant contends the record establishes termination of parental rights would be detrimental to K. and Kenneth because it would substantially interfere with their sibling relationships. Alternatively, appellant argues she received ineffective assistance of trial counsel if we find counsel failed to argue the sibling relationship exception to adoptability applied in this case. We agree with appellants second contention.

We agree with appellant she has standing to assert the sibling relationship exception to adoptability. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 948-951.)
NICHOLSON, J.
I dissent.
In this case, the juvenile court made the explicit determination that termination of parental rights would not be detrimental to K. and Kenneth. Implicit in that determination is the conclusion that there was insufficient evidence of substantial interference with sibling relationships under Welfare and Institutions Code section 366.26, subdivision (c)(1)(E). Contrary to the majoritys conclusion, I am persuaded appellants trial counsel tendered the issue of whether the exception under subdivision (c)(1)(E) applied here.
As quoted by the majority, counsel for appellant stated in part that "`[t]he other thing [K.] needs is — the law requires that you consider . . . what level of contact shes had with her siblings . . . ." (Italics added.) In a passage from an earlier portion of counsels argument, but not quoted by the majority, counsel had noted that "[K.] wants to remain in contact with her family . . . ." Taken together and in proper context, those comments suggest unmistakably an argument on counsels part that the strength of sibling relationships might constitute an exception to the recommended permanent plan of adoption. What else can the phrase "the law requires" mean?
The record supports the determination by the juvenile court that termination of parental rights would not be detrimental to K. and Kenneth. It is true that the psychological evaluation performed in this case emphasized the strong bonds existing among all of the minors. It also is true that K. and Kenneth had indicated they wanted to see their siblings more often. But the record shows that K., Kenneth, and their sibling Steven were living together in an adoptive placement that served the best interests of K. and Kenneth. Moreover, the psychological evaluation suggested that a placement with Steven, Kenneth, and K. together would be a beneficial one for those minors.
Recently our Supreme Court has held that the juvenile court may reject adoption under the sibling relationship exception only if it determines adoption would be detrimental to the minor whose welfare is being considered. (In re Celine R. (2003) 31 Cal.4th 45, 49-50.) Here, it is indisputable that a significant sibling relationship among the minors existed. In fact, by ordering a referral to the Consortium for Children, the juvenile court expressly recognized the importance of maintaining strong sibling ties. But before adoption can be rejected, the statute requires something much more: the showing of a substantial interference with sibling relationships if adoption is chosen as the permanent plan. (§ 366.26, subd. (c)(1)(E).)
The record in this case contains no such showing. Moreover, considering the commitment of the foster parent to continued contact among the minors and the juvenile courts referral, there is little reason to expect adoption would create a future diminution in the amount of contact Kenneth and K. have had with their siblings. Finally, the record showed Kenneth and K. would benefit greatly from adoption.
In this case, considering the history of this case and the large size of the sibling group, it is difficult to discern how a guardianship would better maintain sibling relationships than adoption would maintain them. In fact, it is likely that the minors would remain separated into at least two groups, as it is probable no one individual would be found who was willing and able to act as guardian of all seven of the minors. Indeed, the minors already are separated by distance, with several members of the sibling group living in Fresno County. Accordingly, even assuming the majority is correct that appellants counsel failed to tender the issue, I would find the record before us demonstrates that had counsel made the argument, appellant would not have obtained a result more favorable to her interests.
On the record before us, I would affirm the order of the juvenile court terminating appellants parental rights. Notes:

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

Ordinarily, for reasons which should be obvious, incompetent counsel claims are best made by writ petition rather than in an appeal. (Cf. People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) I see no reason to depart from that principle on the record of this case.

Appellants claim is premised on a recently enacted statutory exception to adoption contained in section 366.26, subdivision (c)(1)(E). Under that provision, effective January 1, 2002, the juvenile court may find a compelling reason for determining that termination of parental rights would be detrimental to the minor where "[t]here 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." (Stats, 2001, ch. 747, § 3.)

Pursuant to subdivision (c)(1)(E), the juvenile court is given the discretion to determine that termination of parental rights would be detrimental under certain circumstances. To make such a determination, the court must find a "compelling reason." Moreover, the statute contains a number of criteria that the court may consider. But the court is not required by the statute to consider the applicability of the statutory exception. (Cf. In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)

In this case, the juvenile court made the explicit determination that termination of parental rights would not be detrimental to K. and Kenneth. However, the court did not explicitly determine that the sibling relationship exception to adoptability did not apply. On this record, it appears the court did not do so in part because appellants trial counsel did not coherently articulate and argue the exception in the first place.

Our dissenting colleague asserts that trial counsel raised the exception implicitly and the juvenile court implicitly rejected it. With respect, we cannot see anything in the remarks of trial counsel which raises the exception, implicitly or otherwise. Trial counsel argued as to sibling contact:

"Then the other thing K[.] needs is—the law requires that you consider is what level of contact shes had with her siblings there. Shes got a packet of three younger siblings who are in a foster home in Southern California. For those children its been almost a year since theres been face-to-face.

"Apparently, theres been some telephone recently started up in, like, weekly telephone calls that started in October of this year after a long hiatus, and there was an indication that the hiatus was therapeutically driven or mandated because there was a dire desire for each packet of siblings to settle into their foster homes.

"But still were looking at a pattern, notwithstanding everyones assurances that were going to do everything possible. On the other hand, the reality is weve got a brief track record of telephone contact and a not very satisfying track record of face-to-face visits.

"We also have another sibling here in the courtroom, N[.], in his mothers arms. N[.] is an infant. N[.] probably couldnt comprehend that hes got older brothers and sisters, but the older brothers and sisters definitely know about him, and I suspect they would like to have continuing contact with him.

"And for that to happen, all the concerns I raised in connection with whether or not the foster mother will allow adopted-child/bioparent contact remain."

Aside from observing generally that issues of insufficient sibling contact, like issues of insufficient parental contact, could be handled in mediation or further court proceedings if the juvenile court ordered guardianship as the permanent plan, this is all trial counsel had to say that related in any way to section 366.26, subdivision (c)(1)(E). Counsels rambling and unfocused remarks are a far cry from an articulated argument that the juvenile court could find a compelling reason to reject adoption based on interference with sibling relationships. And since counsel said nothing which would have focused the juvenile courts attention on section 366.26, subdivision (c)(1)(E), we cannot read the courts finding that adoption would not be detrimental to the minors as in any way implying a finding that that provision did not apply.

Citing this courts opinion in In re Darlice C. (2003) 105 Cal.App.4th 459 (Darlice C.), respondent urges that appellant must resort to a habeas proceeding to raise her claim of ineffective assistance of counsel. We disagree. Contrary to respondents view, the facts are distinguishable from those in Darlice C., where we held that the appellant would have to file a writ petition to raise an ineffective-assistance claim. Here, unlike in Darlice C., there can be no satisfactory tactical explanation for trial counsels failure to raise the point at issue. Given the abundant evidence of close bonding among the siblings and the fact that counsel was arguing for an order of guardianship, the sibling-relationship exception to adoption was one of the strongest arguments available on appellants behalf. We can see no possible tactical reason for failing to raise it as specifically and sharply as possible.

In light of the above, we also think it reasonably probable that had trial counsel made a clear, focused argument based on and explicitly invoking section 366.26, subdivision (c)(1)(E), the juvenile court would have made an order more favorable to appellants interests. Therefore, we must reverse and remand the matter to the juvenile court with directions to consider this issue.

DISPOSITION

The matter is reversed and remanded to the juvenile court with directions to reconsider the courts order of adoption in light of section 366.26, subdivision (c)(1)(E).

I concur: MORRISON, J.


Summaries of

In re K. L.

Court of Appeals of California, Third Appellate District, Sacramento.
Nov 21, 2003
No. C043179 (Cal. Ct. App. Nov. 21, 2003)
Case details for

In re K. L.

Case Details

Full title:In re K. L. et al., Persons Coming Under the Juvenile Court Law…

Court:Court of Appeals of California, Third Appellate District, Sacramento.

Date published: Nov 21, 2003

Citations

No. C043179 (Cal. Ct. App. Nov. 21, 2003)