Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INJ017679 Christopher J. Sheldon, Judge.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant Melissa R.
Joe S. Rank, County Counsel, and L. Alexandra Fong, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minors.
OPINION
HOLLENHORST, Acting P. J.
Melissa R. (Mother) is the mother of four young children, Vanessa (born 2001), Jorge (born 2002), Jonathan (born 2004), and Michael (born 2006). Only Vanessa and Jorge (collectively referred to as the children) are the subjects of this appeal and share the same father, Jorge G. (Father). At a hearing held pursuant to Welfare and Institutions Code section 366.26, the juvenile court terminated all parental rights as to the children and approved a permanent plan of adoption. On appeal, Mother contends (1) the court erred by failing to find that the sibling relationship exception applied, and (2) the children received ineffective assistance of counsel. We affirm.
Because Mother is the only party to this appeal, the facts reference only her.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. PROCEDURAL BACKGROUND AND FACTS
The children came to the attention of the Department of Public Social Services (the “Department”) on January 28, 2006, after Mother gave birth to Michael, who tested positive for amphetamines. Mother admitted using marijuana and methamphetamine during her pregnancy, and admitted living with men who have criminal histories. On January 31, 2006, the Department filed a petition under section 300, subdivisions (b) and (g). According to the allegations in the petition, Mother has a history of drug use, mental illness, and domestic violence, and she was homeless at the time of filing the petition. Father also has a history of drug abuse, domestic violence, and a criminal record, and was not a member of the household. On February 1, 2006, the court ordered the children detained in foster care.
In its February 27, 2006, jurisdiction report, the Department requested that the children be declared dependents pursuant to section 300, subdivisions (b) and (g) based on Mother’s chronic drug use, a history of domestic violence, and the current unknown whereabouts of Mother. Prior Department history included substantiated emotional abuse of the children. Vanessa stated that she wanted to go home with Mother but not until Mother stopped using drugs. Jorge could not speak with clarity. Mother had had no contact with the Department since February 2. She had enrolled in the MOMS (substance abuse) program but was terminated for non-compliance. The Department recommended the children remain in foster care while an assessment is completed on relatives who are willing to take the children. At the February 27, 2006, jurisdiction hearing, the court found the section 300, subdivision (b) and (g)(1) and (3) allegations to be true. The court adjudged the children to be dependents of the court and set the disposition hearing for March 13, 2006. On March 8, the children were placed in the home of the maternal grandmother (Mary).
At the disposition hearing on March 13, 2006, both Mother and the children were represented by counsel. The court read, considered, and signed the social worker’s report filed on March 13. The children were declared dependents of the court and the matter was placed in family maintenance status. Continued placement of the children outside the home of Mother was necessary. Mother was offered reunification services. The court found that the Department had complied with the case plan but Mother’s progress had been incomplete.
In the September 11, 2006, status review report, the Department recommended that reunification services be terminated as to Mother because of her failure to comply in a timely manner with her court-ordered case plan, and that a section 366.26 hearing be set to establish adoption as the permanent plan. According to the social worker’s report, Mother was discharged from the substance abuse program on February 14, 2006, with unsatisfactory progress. She did not make herself available to the Department to express her perceptions of her needs. She did not consistently visit with the children, nor did she inquire as to their status or well-being. In July 2006, Mother went to Mary’s home to visit the children. The social worker arrived to make her initial contact with Mother; however, “it was a limited visit, as [M]other spent her time ‘nodding off’ or ‘on the phone.’ Then, without notice, [M]other exited the home with a friend, and did not return until ‘40 minutes later.’” Mother had not participated in any programs and her living arrangements were unknown to the Department.
On September 11, 2006, Mother and the children were separately represented by counsel. The court read, considered, and signed the social worker’s report. The court set a contested section 366.21, subdivision (e), hearing for September 19, 2006.
On September 19, 2006, the court found by clear and convincing evidence that returning the children to Mother would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the children, and that continued placement outside the home was necessary. The court found that the Department had complied with the case plan; however, Mother’s progress to mitigate the causes necessitating placement were unsatisfactory. The court terminated reunification services and set a section 366.26 hearing.
In its section 366.26 report, the Department recommended that the parental rights be terminated and the children be freed for adoption. The children were living with Mary, their maternal grandmother and identified prospective adoptive parent. The social worker reported that the children had been visiting regularly with Jonathan, who was living with his father. However, the father of Jonathan chose “to sever ties and communication” with Mary, who had “made several reasonable unsuccessful attempts to re-establish sibling visitation.” The father was concerned that Mary was allowing Mother to have unsupervised visits with the half sibling and that Mother “may attempt to flee with [the] child.” Mother had not consistently visited the children during the past two periods of supervision. She had also failed to arrange supervised visitation and maintain sobriety in order to benefit from visits. Mother continued to use methamphetamine. The social worker noted that Mother had entered into a drug rehabilitation program on December 15, 2006. However, given Mother’s failure to successfully complete any substance abuse program and achieve sobriety, the social worker opined that it was in the children’s best interest to terminate parental rights and free them for adoption. The prospective adoptive parent was willing to allow continued contact with the children’s paternal grandparents and with Jonathan.
In an addendum report prepared for the section 366.26 hearing, the social worker noted that some concerns regarding the prospective adoptive parent, Mary, had arisen. The Department was concerned about Mary’s inattentiveness with the children and her allowing Mother to spend the night at her (Mary’s) home. The children were removed from Mary’s custody and placed in a foster home. The Department requested a continuance of the section 366.26 hearing.
On March 13, 2007, the court continued the section 366.26 hearing and ordered weekly supervised visitation with Mother.
Mary participated in counseling. She denied failing to protect the children. On April 26, 2007, she filed a Form JV180 Request to Change Court Order (JV180 Request) (formerly section 388 petition) seeking placement of the children with her. The Department opposed Mary’s petition. The social worker opined that Mary failed to benefit from the services offered to her to prevent the children’s removal from her home. The social worker noted the children had been placed in a “permanent, stable, structured and nurturing home environment,” had adjusted very well, and were bonding to their prospective adoptive family. The prospective adoptive parents were supportive of sibling visitation.
On May 24, 2007, the court denied Mary’s JV180 Request. The court issued a temporary restraining order against Mother. It further suspended Mother’s visitation with the children. On the same date, Mother filed a JV180 Request seeking placement of the children with her.
On June 6, 2007, the Department filed its continued section 366.26 and postpermanency status review report. The Department recommended that the parental rights of Mother be terminated and that adoption remain the permanent plan. The children remained with their prospective adoptive parents, who provided a permanent, stable, structured and nurturing home environment. There were no appropriate relatives to consider for adoption. The current adoptive family was steadfast in its desire to adopt the children, who had adjusted well and expressed how happy they were in their home. When Mother was allowed supervised visitation with the children, she had a difficult time interacting and the children had not responded. Mother arrived late or would not show up at all, wore inappropriate clothing, and continued to give the children false hopes. Mother harassed the prospective adoptive parents. Mother was unable to successfully complete any substance abuse treatment or counseling program and achieve sobriety. Her progress on her case plan had been unsatisfactory.
On July 11, 2007, the Department filed its addendum to its opposition to Mother JV180 Request. The social worker noted that Mother was living with Mary, had been employed as a “stripper” at a local strip bar, and was involved with another man with a criminal record. This man was wanted by the FBI and had returned to Mexico where Mother traveled to visit him. The social worker opined that Mother continued to be a flight risk as to all of the children.
Both Mother and Mary harassed the prospective adoptive parents of Michael by calling them as many as 30 times in one day, arriving at their residence yelling profanity, and obsessively inquiring about the location of Michael’s daycare and his father. Regarding the prospective adoptive parents of the children, Mary made anonymous claims to the Department of abuse and neglect of the children. The investigation found the claims to be false; however, the investigation was “disruptive of the children’s placement.” Nonetheless, the prospective adoptive parents were committed to sibling visitation as long as it was without maternal relative presence.
On July 18, 2007, the children were placed with their paternal uncle and his girlfriend who lives with him. The couple expressed their desire to adopt the children and permanently include the children in their family. A sibling visitation was held on July 31.
On September 17, 2007, the court denied Mother’s JV180 Request. Following a few continuances, the section 366.26 hearing was held on December 5, 2007. Mother and the children were represented by counsel. The Department reported that the children were residing with their prospective adoptive parent. The social worker opined that it was in the children’s best interests to terminate parental rights. The court found, by clear and convincing evidence, that it is likely the children will be adopted, that adoption was in their best interests, that termination of parental rights would not be detrimental to them, and that none of the exceptions contained in former section 366.26(c)(1)(A) through (F), applied. Thus, the court terminated Mother’s parental rights as to the children.
Mother appeals.
II. SIBLING RELATIONSHIP EXCEPTION TO ADOPTION
Mother argues that the court erred by not applying the sibling relationship exception under former section 366.26, subdivision (c)(1)(E) (now § 366.26(c)(1)(B)(v) ). The children and Michael visited regularly with their half sibling, Jonathan, who had been placed with his father. Thus, Mother argues that termination of her parental rights cut the thread unifying all of the children and will interfere with their relationship.
Effective January 1, 2008, the sibling relationship exception to termination of parental rights is codified at section 366.26, subdivision (c)(1)(B)(v). For purposes of clarity, we shall refer to it as former section 366.26, subdivision (c)(1)(E).
In response, the Department argues that substantial evidence supports the trial court’s finding that the sibling relationship exception did not apply. When the children were removed from Mother’s care, Vanessa was four years old, Jorge was three years old, Jonathan was 19 months old, and Michael had just been born. Simply because the children lived together for a portion of their lives does not mean, without more, that they had a close relationship. Nonetheless, Mother argues that “[t]o take [the children] away from their [half siblings] would rob them of the last ties to their maternal family that they would have left. They stood to lose their relationship with their mother and maternal grandmother.” However, the issue is the loss of a sibling relationship, not maternal.
Moreover, Mother overlooks the fact that while in the custody of the prospective adoptive parent, the children did visit with their half siblings. While the record is silent as to the prospective adoptive parents’ commitment to sibling visitation, the fact that the children did visit with their half sibling while in the custody of the prospective adoptive parents suggests that separating the children from their half siblings would not interfere with the sibling relationship. The children were doing well in their prospective adoptive home. Based on the record before the court, there is insufficient evidence that the children felt close to their half siblings to the extent they would rather give up a chance for a stable adoptive home than lose any relationship they had with their half siblings. We therefore conclude that substantial evidence supports the juvenile court’s refusal to apply the sibling relationship exception.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Mother contends that the children’s trial counsel rendered ineffective assistance by representing all of them despite the fact that they had different permanent plans. She argues that a conflict of interest existed.
The Department contends Mother lacks standing to raise the issue. (In re Daniel H. (2002) 99 Cal.App.4th 804, 810 (Daniel H.); In re Frank L. (2000) 81 Cal.App.4th 700, 703 (Frank L.).) In Frank L., the court held that a parent lacked standing to raise claims that his or her children received ineffective assistance of counsel in a dependency proceeding because of a conflict of interest. (Frank L., supra, at pp. 703-704.) Rather, the court held, a parent must show that the conflict of interest affected the parent’s interests, not just those of the children. (Ibid.) In Daniel H., this court found Frank L. to be persuasive. We held: “A parent must show that counsel’s alleged conflict of interest actually affected the parent’s interests.” (Daniel H., supra, at p. 811.)
Here, Mother has not argued that any interest of her own was affected by the alleged conflict of interest. We therefore hold she lacks standing to raise the issue. Moreover, Mother has not only waived her objection to her children’s joint representation (In re Katrina W. (1994) 31 Cal.App.4th 441, 448), but additionally, we find the issue lacks merit. Even if the children had been represented by separate counsel, the court would not have found the sibling relationship exception applied. It is thus not reasonably probable that had the children been represented by independent counsel, the outcome would have been any different. (Daniel H., supra, 99 Cal.App.4th at p. 813.)
IV. DISPOSITION
The judgment is affirmed.
We concur: RICHLI J., MILLER J.