Opinion
B334770
10-08-2024
In re BABY GIRL L., a Person Coming Under the Juvenile Court Law. v. JOSE L., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jane B. Winer, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Stephen Watson, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 21CCJP01560A Jean M. Nelson, Judge. Affirmed.
Jane B. Winer, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Stephen Watson, Senior Deputy County Counsel, for Plaintiff and Respondent.
EDMON, P.J.
This is Jose L.'s (father) third appeal. Father's first appeal challenged a dispositional order declaring his infant daughter, B.L., a juvenile court dependent pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (j) and removing B.L. from parental custody. (In re Baby Girl L. (Jan. 20, 2023, B317417) [nonpub. opn.].) Father's second appeal, which was consolidated with a writ proceeding, challenged orders made at 12-month and 18-month review hearings, and a subsequent order terminating father's reunification services. (In re Baby Girl L. (Aug. 10, 2023, B322357) [nonpub. opn.].)
All subsequent undesignated statutory references are to the Welfare and Institutions Code.
The present appeal is from orders (1) terminating parental rights to B.L., and (2) denying section 388 petitions filed by father and his older daughter, Zonia C. Father's sole contention on appeal is that the juvenile court erred by denying Zonia's request for appointed counsel. We find no error, and thus we affirm.
Our prior opinion referred to Zonia as "S.C.," and the juvenile court pleadings refer to her as both "Sonia" and "Zonia."
FACTUAL AND PROCEDURAL BACKGROUND
I. Background.
The Los Angeles County Department of Children and Family Services (DCFS) filed a dependency petition on behalf of B.L. immediately after her birth in April 2021. B.L.'s mother, S.L., has serious psychiatric problems and was unhoused when B.L. was born. Father appears to suffer from some cognitive impairment and has been diagnosed with borderline intellectual functioning. When these proceedings began, he was living in a one-bedroom apartment with his 14-year-old daughter Zonia.
DCFS filed a juvenile dependency petition in April 2021, and B.L. was detained and placed into foster care. The juvenile court sustained the petition in May 2021. In October 2021, the court found father was B.L.'s biological father, and in December 2021, it granted father reunification services. In March 2022, B.L. was placed with her maternal aunt.
Father participated in reunification services and visited B.L. consistently. However, he needed significant support from the social worker to do so: He frequently forgot to confirm visits and to attend classes, and he often needed help logging on to online programs. DCFS also had concerns about the safety and cleanliness of father's home, father's difficulty understanding B.L.'s changing developmental needs, and father's unwillingness to accept parenting assistance.
The juvenile court granted father additional reunification services at the six-month and 12-month hearings. At the continued 18-month review hearing in April 2023, the court terminated father's reunification services and set a section 366.26 hearing, concluding there was no substantial probability that B.L. could be returned to his care within the time permitted by statute.
II. Father's and Zonia's section 388 petitions; termination of parental rights.
In August 2023, the juvenile court permitted father to have two-hour unmonitored visits with B.L. if 16-year-old Zonia was present. DCFS reported in early January 2024 that those visits were going well. B.L. took time to warm up to father at the beginning of visits but would play with him after some encouragement. B.L. had a good bond with Zonia: B.L.'s caregiver reported that if Zonia was present, B.L. "only wants to engage with [Z]onia and not with [father]" and would not listen to father's instructions, but "if [Z]onia gives her instructions she will follow them."
Father and Zonia filed section 388 petitions in January 2024. Father's petition asked the court to place B.L. with him or, alternatively, to reinstate reunification services "with a gradual step-up parenting time plan, including, but not limited to unmonitored visits and overnight weekend visits." Father asserted the change was warranted because he had undergone a psychological evaluation, completed a parent education program, obtained a Section 8 housing voucher, and visited B.L. consistently.
Zonia's petition asked the court to recognize her relationship with B.L. and appoint an attorney to represent her. Zonia asserted such a change was warranted because since the court terminated father's reunification services, she had "continued to visit with [B.L.] on the weekends. These visits include both monitored and unmonitored time. Our bond and connection has continued to grow as sisters."
In support of the section 388 petitions, Zonia submitted a declaration stating that she and B.L. had "become as close as we can with the time we are allowed to be together," and B.L. "recognizes me now and gets excited when she sees me." Zonia continued: "All I want is for [B.L.] to be part of our everyday family life. The time I have spent with [B.L.] has allowed our sibling relationship to grow, so I can only imagine how much more it can grow if we get the opportunity to be a real family.... [¶] . . . As a child whose mother is not in her life, I value the family I do have-family is extremely important to me. It's hard for me not to be around my baby sister and watch her grow. The thought . . . of [B.L.] possibly not being a part of our lives scares me and breaks my heart. I cannot imagine [B.L.] not being a part of our lives. I know [B.L.'s] aunt and we have a cordial relationship, but I also know the implications of adoption and the endless possibilities of how our relationship with [B.L.] can be impacted."
Father also submitted a declaration, in which he said: "[B.L.] is visibly excited when she sees her older sister Zonia, especially when it has been a while since they've seen each other. I know [B.L.] likely sees Zonia as the fun one because she is younger and can play in ways I can't, but I know [B.L.] enjoys spending time with me too because I see it in her little face when it's just the two of us."
Finally, father and Zonia submitted the declaration of Cristina Zetino, a social worker employed by father's attorney, who observed four visits between B.L., father, and Zonia. Zetino said that "[d]uring the visits, the Father ensures the family has food and they eat together during their unmonitored time. Father has brought tacos, pizza, Lunchables, fruit, and water among other foods to the visits. He has also brought toys, books, a sun hat-among other things to continue to engage with [B.L.] and have quality time during the visits. I have observed the Father to play with [B.L.], sing to her and care for her by taking her to the restroom (changing her diaper), making sure she has food and water during visits, and cleaning her up if she gets dirty. I have observed [B.L.] to be affectionate towards her father and sibling, Zonia. The child will stroke their hair, ask to be carried, hold hands, and give hugs and kisses."
At hearings on January 18 and 19, 2024, the juvenile court found as to father's section 388 petition that father had not made a prima facie case of changed circumstances. The court noted that it had terminated father's reunification services because father appeared to have an impairment that prevented him from following through on court-ordered services and understanding B.L.'s developmental needs. Although father "has always tried, . . . has always been cooperative," he had not established "a change in circumstances as to these fundamental issues." The court explained: "The fundamental change that I need to see to grant a 388 is that he is capable of following through on his own. And since the beginning of this case in July of 2021, the evidence is lacking that he is able to do that and we don't know why. It is not a lack of effort or interest, but it is something that cannot be solved in the time frame [in which] the courts order me to solve it."
As to Zonia's section 388 petition, the court asked what statute or case law supported Zonia's request for counsel. Father's counsel responded: "Under [section] 317(c)(1), I think the law is a bit silent on whether there is a right to counsel for a dependent child only." The court disagreed, stating that Zonia was not entitled to counsel under section 317 because "although [Zonia] is a minor, she is not a dependent." The court further found that a section 388 petition was not an appropriate vehicle to establish the existence of a sibling bond, but it deemed Zonia's request as an objection to termination of parental rights based on the existence of a sibling bond.
Finally, the court found that B.L. was adoptable, and the parental and sibling bond exceptions to adoption did not apply. The court explained: "[B]oth Zonia and father have tried to develop a bond, and I see these bonds as currently developing but not reaching the level of a bond for the exceptions that they each request. That is through no fault of either of them. But this is a child that never lived with either and never developed a life and much deeper bond than she has today with either of them." The court continued: "[T]hese are developing relationships. There is always a benefit in having a deeper bond with a parent or sibling. But these are developing relationships. They are developing very slowly and she never lived with either, which if she had, there would have been a bond there already....The bond is friendly and warm. She recognizes each person as somebody close to her, and father is an adult in her life, but the bonds at issue are not so beneficial that they outweigh the permanency of adoption. She still shows a hesitation with father. She is excited to see Zonia, but I agree with the Department's assessment that it is often exciting for a young child to see somebody they know, especially an older child.... There is no evidence that [B.L.] is upset in [father's and Zonia's] absence without them; that she longs for them; that she goes through withdrawal; that she has nightmares or anything that would indicate she struggles from day to day without these relationships." The court therefore terminated parental rights to B.L.
Father timely appealed from the orders denying the section 388 petitions and terminating parental rights.
DISCUSSION
Father's sole contention on appeal is that the juvenile court abused its discretion by denying Zonia's request for counsel. Father urges (1) he has standing to challenge the order denying Zonia's request for counsel because he was injuriously affected by the order, and (2) the juvenile court erred by failing to exercise its discretion to appoint counsel.
We assume without deciding that father has standing to assert Zonia's right to counsel, but conclude that the contention fails on the merits. The only authority father cited in the juvenile court for the proposition that Zonia was entitled to appointed counsel was section 317, subdivision (c) (section 317(c)), which states in relevant part that "[i]f a child or nonminor dependent is not represented by counsel, the court shall appoint counsel for the child or nonminor dependent, unless the court finds that the child or nonminor dependent would not benefit from the appointment of counsel." (§ 317, subd. (c)(1), italics added.) Section 317(c) further provides that a "primary responsibility of counsel appointed to represent a child or nonminor dependent pursuant to this section shall be to advocate for the protection, safety, and physical and emotional well-being of the child or nonminor dependent." (§ 317, subd. (c)(2).)
Father's counsel urged below that section 317(c) permitted the juvenile court to appoint counsel for Zonia because the statute was "silent on whether there is a right to counsel for a dependent child only." But this section is mandatory ("shall"), not permissive ("may"), and we are aware of nothing that would suggest the Legislature intended to require the appointment of counsel in dependency cases for children who are not the subjects of such cases. Moreover, section 317(c)'s construction suggests that "child" and "nonminor dependent" are parallel terms ("a child or nonminor dependent"). Because "nonminor dependent" expressly refers to a person subject to the jurisdiction of the juvenile court, we presume "child" does as well. Finally, section 317(c) says that the primary responsibility of a child's counsel under this section is to advocate for the child's "protection, safety, and physical and emotional well-being." (Italics added.) Zonia was not seeking counsel to advocate for her own safety and wellbeing, but rather to request recognition of a sibling bond in a dependency case intended to ensure B.L.'s safety and well-being.
On appeal, father does not rely on section 317(c), but cites In re Joshua B. (1996) 48 Cal.App.4th 1676 for the proposition that discretion to appoint counsel should be liberally exercised in termination-of-parental-rights cases. In re Joshua B. addressed appointment of counsel on appeal for respondent parents, holding that although a respondent parent "is not entitled to appointed counsel as a matter of right," appellate courts "retain the authority to appoint counsel for an indigent parent who is a respondent 'in any other appeal in which the parent's custody and control of a child is at stake,' and should do so 'whenever the appearance of counsel may reasonably affect the ultimate decision.'" (Id. at p. 1679, citing In re Bryce C. (1995) 12 Cal.4th 226, 229, 234.) In short, In re Joshua B. considered a parent's right to appointed counsel on appeal; it does not suggest that a child who is a not a juvenile court dependent has the right to appointed counsel in the juvenile court.
DISPOSITION
The orders are affirmed.
We concur: EGERTON, J., ADAMS, J.