Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kings County No. 07JD0032 Harry N. Papadakis, Judge.
S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
Peter D. Moock, County Counsel, and Bryan Walters, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, A.P.J., Cornell, J., and Gomes, J.
N.A. (mother) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to her daughter, M. Mother contends the court erred by not finding termination would be detrimental to the child based on mother’s relationship with her. Mother also argues her daughter’s attorney was ineffective; according to mother, the attorney had a conflict of interest in representing M. and her older brother. On review, we disagree with mother’s contentions and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In May 2007, the Kings County Superior Court exercised its dependency jurisdiction over infant M. and her six-year-old, half brother (brother). Mother had a history of abusing methamphetamine for at least two years and used every three to five days. She tested positive for methamphetamine at M.’s birth in April 2007.
Although the court also adjudged the children juvenile dependents, it did not remove either child from parental custody. Mother was then making moderate progress in addressing her problems. Consequently, the court permitted mother to retain physical custody of both children with family maintenance services and on condition she live drug free.
As time passed, mother increasingly struggled on family maintenance and showed little progress. The court nevertheless continued to leave the children in mother’s custody until days after M.’s first birthday in April 2008. As the court later found, its previous disposition had not been effective in protecting the children. Mother consistently failed to participate in her court-ordered family maintenance services. She also tested positive in April 2008 for methamphetamines.
As a consequence, M. and her brother were detained in foster care in April 2008. Respondent Kings County Human Services Agency (agency) made an effort to place the children in the same home. However, they were separated within a week’s time because M.’s brother sexually acted out with one-year-old M. among other children. According to M.’s foster parents at the time, M. became very upset each time her brother approached her. In May 2008, M. was placed in a new foster home where she has since remained.
Following the children’s April 2008 detention, the agency also scheduled weekly visits between the children and mother. Mother was habitually late to these visits. She nevertheless interacted appropriately and played with the children. The visitation supervisor had no concerns during the visits.
In June 2008, the court found true a supplemental petition (§ 387), alleging mother’s failure to participate and positive drug test. The court also formally removed the children from parental custody with an order for reunification services. It further found there was a relationship between the children and it was appropriate to develop and maintain the relationship. The court ordered the children have regular visits with each other.
During the reunification period, mother missed some visits. This was the case when: she was incarcerated on apparently two different occasions; she arrived more than 15 minutes late; or she was reportedly ill. However, the agency also reported mother regularly contacted and visited with the children. The visits went well. In addition, mother was affectionate with the children. Otherwise, mother did not make any significant progress towards reunification.
As a result in December 2008, the court terminated reunification services and set a section 366.26 hearing to select and implement permanent plans for the children. Mother did not seek writ review.
In the spring of 2009, the agency recommended separate permanent plans for each child, adoption for M. and long term foster care for her brother. Each child was in a stable placement for approximately a year, as well as physically healthy and developmentally on target. In addition, two-year-old M. was mentally and emotionally stable. By contrast, her eight-year-old brother was diagnosed with ADHD and conduct disorder. He was on prescribed medication that targeted focus, concentration, and restlessness. The medication appeared to be effective. He was also participating in counseling. The children shared once-a-month supervised visits with mother.
According to a “366.26 WIC Report” prepared by a state adoptions specialist, it was likely M. would be adopted. Because the child’s adoptability is undisputed, we need not summarize the department’s supporting evidence on this issue. The report further recommended the court order termination of parental rights.
The adoption specialist, Janette Patton, also described the contacts between M. and her family. Although Patton did not observe any visits, she was able to obtain information from the agency’s case narratives and court reports.
According to Patton’s information, mother had a great deal of difficulty with transportation to scheduled visits. She was late to many visits and did not appear for some. However, there were no concerns about the appropriateness of mother and M.’s interactions. The majority of the supervised visits appeared to have been positive overall. According to the case narratives, although M. appeared to have a positive relationship with mother, M. did not appear to have a strong parent/child relationship.
Most visits included M.’s brother. No problems were noted in their interactions.
Mother requested a contested hearing, which the court conducted in July 2009. Mother’s attorney called Patton as an adverse witness and cross examined her. Patton reiterated her reliance on the agency’s narratives and court reports. In addition, M. was not verbal and Patton was never able to speak with mother.
Asked if there would be a bond between M. and mother based on the first year of the child’s life, Patton replied “[t]here probably would be.” However, because M. had been out of mother’s care for more than half of M.’s life, it was unlikely to be a strong parent/child attachment. Although it was possible there was still a bond, there was no evidence that it was a strong one. There was no evidence that M. cried or had eating or sleep disturbances after visits.
Based on Patton’s review of the file and observation of M., there was no reason to believe termination of parental rights would cause any detriment to M.’s emotional or physical well being. Terminating her relationship with mother and separation from her brother would not cause M. any serious physical or emotional harm.
Mother testified she visited with M. every week for two hours except when she was in custody. According to the record, she had been incarcerated most recently in the spring. On cross-examination, mother testified for the last four or five months visits occurred only monthly and for one hour.
When mother visited with M., the child referred to her as “Mommy.” M. would sit in mother’s lap. Mother held her “pretty much all the time” during visits. M. would come to mother for help. When mother would leave a visit, M. seemed upset. She pushed people away and told them to let go of her. Almost every week, M. also saw her brother. She knows he is her brother.
Mother also testified M. lived with her “[f]or about 13, 14” months during which mother was M.’s sole caregiver and provided for all her needs.
In closing, mother’s counsel argued the existing relationship between mother and M. warranted a finding that termination was not in M.’s best interest. Attorneys for the agency and the children urged the court to reject mother’s argument and terminate parental rights. The court found M. likely to be adopted and terminated parental rights.
DISCUSSION
I. No Beneficial Relationship Exception
Mother contends there was substantial evidence of a beneficial relationship between M. and her. She further argues Patton’s opinion that termination would not cause any detriment to M.’s emotional or physical well being was not supported by substantial evidence because Patton never observed M. with mother. Therefore, in mother’s view, their parent/child relationship outweighed the benefits of adoption.
Section 366.26, subdivision (c)(1)(B) acknowledges termination may be detrimental to a dependent child under specifically-designated and compelling circumstances. (In re Celine R. (. (2003) 31 Cal.4th 45, 53 (Celine R.).) One of those circumstances is when a parent has maintained regular visitation and contact and the child would benefit from continuing the relationship to such a degree that the child would be greatly harmed by termination. (§ 366.26, subd. (c)(1)(B)(i); In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (beneficial relationship exception).)
A finding that termination would not be detrimental, however, is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347.) The statutory presumption is that termination and permanency through adoption is in the child’s best interests and therefore not detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997)54 Cal.App.4th 1330, 1343-1344.) A party opposed to termination bears the burden of showing that termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
Consequently, when a court rejects a detriment claim and terminates parental rights, the appellate issue is not whether substantial evidence exists in support of the court’s decision. The issue for the reviewing court is instead whether the court abused its discretion in rejecting the detriment claim. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) For this to occur, the proof offered would have to be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570–571; In re I.W. et al. (2009) 180 Cal.App.4th 1517, 1528.) Having reviewed the record, we conclude the court did not abuse its discretion.
Assuming the parent maintained regular visitation and contact, courts examine the beneficial relationship exception on a case-by-case basis, taking into account the many variables which affect a parent/child bond. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) “The age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.” (Ibid.)
In this case, we will assume for the sake of her argument that mother maintained regular visitation and contact with M. M., who was two years, three months old at the time of section 366.26 hearing, spent the first year of her life in mother’s custody.
Mother testified at trial that she took care of all M.’s needs during that year. Yet the court found in 2008 that its decision to leave M. and her brother with mother had not been effective in protecting the children. Mother, who had an ongoing drug problem, consistently failed to participate in services and resumed her drug abuse. Mother’s interaction with M. thereafter during visits was appropriate and not a cause for concern.
However, it was mother’s burden to demonstrate more than pleasant visits or frequent and loving contact. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.) For the beneficial relationship exception to apply, the law requires that:
“the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H.[, supra, ] 27 Cal.App.4th [at p.] 575.) A juvenile court must therefore: ‘balance[] the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.’ (Id. at p. 575.)” (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)
There was no evidence of a substantial, positive attachment, let alone that M. would be greatly harmed if she could no longer see his mother. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.) At best, there was Patton’s report of a positive relationship as well as her testimony that there probably would be a bond between M. and mother based on the first year of M.’s life spent with mother. However, it was also Patton’s testimony that there was no evidence the possible bond between mother and M. was a strong one. The adoption specialist added because M. had been out of mother’s care for more than half of M.’s life, it was unlikely to be a strong parent/child attachment. In this regard, Patton noted there was no evidence that M. cried or had eating or sleep disturbances after visits. In conclusion, there was no reason to believe termination would cause M. any detriment.
Mother would have us rely on some but not all of Patton’s testimony because the adoption specialist did not actually observe M. with mother. However, it is not for this court to reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.)
Mother also cites the sibling relationship as another factor supporting a finding that she and M. shared a beneficial parent/child relationship. However, mother neither cites nor are we aware of any authority for her proposition.
On this record, the court properly could find there was insufficient proof of a substantial, positive emotional attachment between mother and M., let alone a showing that the child would be greatly harmed. Thus, the preference for adoption was not overcome. We therefore conclude the court did not abuse its discretion by rejecting mother’s claim of detriment.
II. No Showing that the Children’s Attorney was Ineffective
Mother contends the attorney who represented both of her children had a conflict of interest at the section 366.26 hearing. In mother’s estimation, a conflict arose because the children were members of a bonded sibling group with different recommended permanent plans. By arguing for termination of parental rights as to M., the attorney sought a course of action for one client with adverse consequences to the other. (In re Barbara R. (2006) 137 Cal.App.4th 941, 953.) Mother urges in turn that the attorney was ineffective for neither reporting the alleged conflict nor asking that the court appoint new and separate counsel. She concludes the error was prejudicial because it was more than reasonably probable separate counsel would have achieved a different result. She speculates separate counsel for her son would have advocated that the sibling relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(v)) applied.
We disagree. We assume for the sake of her argument that mother has standing to raise this issue on appeal. We further assume arguendo she has not forfeited it by failing to raise this argument first in the trial court. Nevertheless, the argument fails both under the applicable law and the facts of this case.
At the outset of dependency proceedings, a court may generally appoint a single attorney to represent all the siblings. (Celine R., supra, 31 Cal.4th at 58.) A court must later relieve counsel from multiple representation of siblings “if, but only if, an actual conflict arises.” (Ibid.)
For an actual conflict to arise at the permanency planning stage, there must be a showing that siblings had different interests that would require their attorney to counsel and advocate both against adoption as a permanent plan (to preserve the siblings’ relationships) and for adoption as a permanent plan (to serve the best interests of some of the siblings. (Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1427.) In this case, there is no showing of an actual conflict. Mother assumes that it was in his son’s best interest to maintain a relationship with M. She cannot point to any evidence, however, to support her assumption. The fact that the children were half siblings, lived in the same home for one year, and later shared regular visits does not necessarily establish it was in the brother’s best interest to maintain a relationship with M. In addition, mother points to the fact that the agency recommended different permanent plans for the children. Standing alone, however, the fact that siblings have different permanent plans does not necessarily demonstrate an actual conflict of interest. (Cal. Rules of Court, rule 5.660(c)(2)(B)(v); In re Zamer G. (2007) 153 Cal.App.4th 1253, 1268.)
Attorneys who represent multiple siblings do have “an ongoing duty to evaluate the interests of each sibling to assess whether there is an actual conflict of interest.” (Cal. Rules of Court, Rule 5.660(c)(2)(A).) Also, a court must relieve an attorney from representing multiple siblings if it determines that an actual conflict of interest exists. (Cal. Rules of Court, rule 5.660(c)(2)(E); Celine R., supra, 31 Cal.4th at p. 58.)
However, there is no showing on this record that either the sibling’s attorney violated his duty or the court should have found an actual conflict existed. In the absence of any factual showing, nothing in this record rises to the level of an actual conflict of interest requiring appointment of independent counsel. (In re Candida S. (1992) 7 Cal.App.4th 1240, 1253.) Thus, there is no merit to mother’s claim that the children’s attorney was ineffective.
DISPOSITION
The order terminating parental rights is affirmed.