Opinion
B163646.
7-30-2003
In re RUBEN P., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. FREDDY P., Defendant and Appellant.
Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
Freddy P. appeals from the order terminating his parental rights over his sons Ruben and David P. We reverse with directions.
BACKGROUND .
Additional facts will be incorporated into the discussion below where pertinent.
Ruben, David and Frederick P. are dependents of the juvenile court. Appellant is their father. Following mediation, the juvenile court sustained that portion of a Welfare and Institutions Code section 300 petition alleging that appellant had a history of domestic violence against the childrens mother, Sandra S. The parents subsequent efforts at reunification failed and the court terminated family reunification services at the 12-month review hearing (§ 366.21, subd. (f)).
Frederick often is referred to as Fredrick in the appellate record. He is not a subject of this appeal.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
Sandra S. and the childrens four half-siblings are not parties to this appeal.
In its section 366.26 report, the Department of Children and Family Services (DCFS) reported that all three children were in separate placements and were doing well. DCFS recommended legal guardianship for Frederick and asked that the court retain jurisdiction to consider adoption in one year. DCFS further recommended that Ruben and David be freed for adoption by their respective care providers.
On August 5, 2002, the juvenile court relieved Ruben, David and Fredericks former attorney and appointed Attorney Rachel Ewing to represent them. Despite the permanent placements recommended by DCFS in its section 366.26 report, appellants counsel did not ask that separate counsel be appointed to represent each of appellants sons and did not object to the joint representation of appellants sons at any future hearing. Inasmuch as appellant had not been given proper notice of the section 366.26 hearing, the court continued it to September 30, 2002.
On September 30, 2002, appellant appeared in court and requested a contested hearing to establish only the parental relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(A) ). The court continued the matter to November 4, 2002 for a contested hearing. On that date, the court held the section 366.26 hearing as to Ruben and David only. The matter was continued as to Frederick to give his prospective legal guardian an opportunity to appear.
Section 366.26, subdivision (c)(1)(A), provides an exception to the termination of parental rights where "the parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
Appellant was not present at the November 4, 2002 hearing, and his counsel declined to put on any evidence. Following its determination that Ruben and David were adoptable, and in the absence of an exception to termination having been asserted or demonstrated, the juvenile court terminated appellants parental rights to Ruben and David. On November 18, 2002, the court appointed a legal guardian for Frederick. This appeal, which is taken solely from the November 4, 2002 order terminating appellants parental rights as to Ruben and David, followed.
CONTENTIONS
Appellant contends the juvenile court erred when it terminated his parental rights, in that DCFS had failed to fulfill the notice requirements of the Indian Child Welfare Act. We agree.
Appellant also contends the childrens counsel provided ineffective assistance of counsel by continuing to represent the children after an actual conflict of interest arose. Appellant lacks standing to raise this issue.
DISCUSSION
Indian Child Welfare Act
Appellants contention that DCFS failed to fulfill the notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1902 et seq.) properly may be raised for the first time on appeal. (In re Marinna J. (2001) 90 Cal.App.4th 731, 734-735.) DCFS concedes that it did not comply with these notice requirements (25 U.S.C. § 1912(a); Cal. Rules of Court, rule 1439(f)) in this case. This concession is well taken.
"In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.
"If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No . . . termination or parental rights proceeding[] shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary . . . ."
At the detention hearing held on January 22, 2001, appellant was not present. When the juvenile court inquired if anyone in the family was of American Indian heritage, Sandra S. responded, "Yes," explaining that appellant is "Saukee."
As DCFS notes, "the record does not reflect that DCFS made any further inquiry of the fathers claim to American Indian heritage or notified the Bureau of Indian Affairs of the pending dependency proceedings. The social worker did not document any contact with the tribe or the father regarding the claim." The order terminating appellants parental rights over Ruben and David accordingly must be reversed and the matter remanded with directions to provide the required notice and to reinstate the order terminating parental rights in the event no tribe claims Ruben and David are Indian children. (In re Marinna J., supra, 90 Cal.App.4th at pp. 739-740.)
Ineffective Assistance of Counsel
For the first time on appeal, appellant asserts that his sons attorney, Rachel Ewing, had a conflict of interest and that as a result thereof did not competently represent his childrens interests. Defendant argues that "when the social worker distributed the section 366.26 report, the attorney for the children was aware that DCFS intended to recommend a plan of legal guardianship for Frederick and adoption for David and Ruben. [Citation.] At that point, an actual conflict of interest existed between the children, because at least one of the children could be opposed to the plans of adoptions for David and Ruben, which would end their relationships to each other, Frederick, and their half-siblings. A plan of adoption would sever the legal rights of all the children to each other and could also end visitation and ongoing contact between them, Frederick and their half-siblings. It is apparent from the facts of this case that at least one of the children could assert the exception to termination of parental rights in section 366.26, subdivision (c)(1)(E). Therefore, this Court must consider the issue raised in this appeal, infra, regarding ineffective assistance of minors [sic] counsel for failure to assert a conflict of interest precluding representation of the minors and for failing to assert the exception to termination of parental rights in section 366.26, subdivision (c)(1)(E) on behalf of the children."
Appellant did not object to the August 5, 2002 order appointing Attorney Ewing to represent his sons and their siblings jointly.
Appellant claims that he has standing to assert that his sons were deprived of the effective assistance of counsel. More specifically, he states that "the evolution of case law, combined with the statutory amendment to section 366.26 expanding the exception to termination of parental rights to include the effect on the sibling relationship when considered as a whole, expands the parental rights to assert ineffective assistance of the childrens counsel." For the reasons that follow, we conclude that under the particular facts of this case, appellant lacks standing to argue that his sons were deprived of the effective assistance of counsel.
At a section 366.26 hearing, the relevant inquiries are whether the dependent child is adoptable and whether a statutory exception precludes adoption. (In re Erik P. (2002) 104 Cal.App.4th 395, 401and fn. 2, as modified at 105 Cal.App.4th 270d; review den. March 5, 2003.) If the child is adoptable, the juvenile court must select adoption as the permanent plan unless termination of parental rights would be detrimental to the child under one of the five exceptions to termination of parental rights (§ 366.26, subd. (c)(1)(A)-(E)). (In re Celine R. (Cal. Sup. Ct., July 7, 2003, No. S111138) 2003 WL 21518400, *1, *4.) The sibling relationship exception set forth in section 366.26, subdivision (c)(1)(E), which became effective on January 1, 2002, is the only vehicle a parent can use to raise the sibling relationship as a reason to preclude the termination of parental rights. (In re Celine R., supra, 2003 WL 21518400 at p. *1; In re Erik P., supra, at p. 401, fn. 2 [modification].)
Section 366.26, subdivision (c)(1)(E), requires proof that "there 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 interests, including the childs long-term emotional interest, as compared to the benefits of legal permanence through adoption." (Ibid.)
The burden of establishing an exception to the termination of parental rights rests on the party asserting the exception. (In re Megan S. (2003) 104 Cal.App.4th 247, 251, 252, opn. mod. 104 Cal. App. 4th 1274A, review den. March 5, 2003.) "[A] parent has standing to assert the section 366.26, subdivision (c)(1)(E) exception to the termination of parental rights to the same extent the parent has standing to assert the subdivision (c)(1)(A)-(D) exceptions to termination of parental rights. A determination of each of those exceptions directly affects the parents interest in the relationship with the minor; the parent is an aggrieved party in that determination." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951, review den. Nov. 13, 2002; accord, In re Jacob S. (2002) 104 Cal.App.4th 1011, 1016.) A parent waives any exception he or she fails to raise at the section 366.26 hearing, however. (In re Erik P. supra, 104 Cal.App.4th at p. 403.)
"Generally, parents can appeal judgments or orders in juvenile dependency matters. [Citation.] However, a parent must also establish [he] is a party aggrieved to obtain a review of a ruling on the merits. [Citation.] Therefore, a parent cannot raise issues on appeal from a dependency matter that do not affect [his] own rights. [Citation.] Standing to appeal is jurisdictional." (In re Frank L. (2000) 81 Cal.App.4th 700, 703.) "To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the courts decision. [Citation.] The injury must be immediate and substantial, and not nominal or remote. [Citation.]" (In re L.Y.L., supra, 101 Cal.App.4th at p. 948.)
In order to have standing, appellant "must show how the alleged conflict of interest affects [him]." (In re Frank L., supra, 81 Cal.App.4th at p. 703.) Appellants assertion that "his interest in preserving the parental connection [is] intertwined with the childrens interest in maintaining the legal relationship to each other" does not convince us that he has standing.
Inasmuch as appellant did not assert or seek to establish the sibling relationship exception to the termination of parental rights below, he effectively waived his right to assert the sibling relationship exception and its direct affect on his relationship with his sons on appeal. (In re Erik P. supra, 104 Cal.App.4th at p. 403.) Obviously recognizing that he cannot raise this issue for himself on appeal, appellant attempts to do indirectly what he cannot do directly by arguing that his children were deprived of the effective assistance of counsel as a result of Attorney Ewings failure to declare a conflict or raise the sibling relationship exception on their behalf.
That Ruben and/or David independently could have raised the sibling relationship exception to termination is not enough to entitle appellant to raise that issue indirectly via an ineffective assistance of counsel argument. Having waived the sibling relationship exception personally, appellant cannot show that his personal rights were affected by his sons failure to assert the exception. He accordingly lacks the necessary standing to assert that his sons were deprived of the effective assistance of counsel. In re Patricia E. (1985) 174 Cal. App. 3d 1, 219 Cal. Rptr. 783, disapproved in part in In re Celine R., supra, 2003 WL 21518400 at page *9 and In re Elizabeth M. (1991) 232 Cal. App. 3d 553, 283 Cal. Rptr. 483, on which appellant relies, are factually inapposite and do not compel a contrary conclusion.
DISPOSITION
The order terminating Freddy P.s parental rights over Ruben and David P. is reversed, and the matter is remanded to the juvenile court with directions to order DCFS to provide the requisite tribes, as well as the Bureau of Indian Affairs, with proper notice of the proceedings under the Indian Child Welfare Act. If no response is received indicating that Ruben and David P. are Indian children within the meaning of the Indian Child Welfare Act, the order terminating Freddy P.s rights as to Ruben and David P. shall be reinstated and be deemed affirmed. If a response is received indicating that Ruben and David P. are Indian children, the juvenile court shall conduct a new section 366.26 hearing in conformity with the provisions of the Indian Child Welfare Act, and shall make such orders as are necessary and appropriate.
We concur: VOGEL (MIRIAM A.), J., MALLANO, J.