Opinion
E066305
02-16-2017
In re J.T. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. T.T., Defendant and Appellant.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, Danielle E. Wuchenich and Adam Ebright, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J249900 & J249901) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, Danielle E. Wuchenich and Adam Ebright, Deputy County Counsel, for Plaintiff and Respondent.
Appellant T.T. (mother) appeals from an order denying her Welfare and Institutions Code section 388 petition and an order terminating parental rights to her children, J.T. and N.H. (the children). On appeal, mother contends that both orders should be reversed since her counsel had a conflict of interest representing her and the fathers of her children at the combined section 388/366.26 hearing. She further argues that the matter should be remanded for a new hearing on the section 388 petition. We affirm.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On June 13, 2013, the San Bernardino County Department of Children and Family Services (CFS) filed separate section 300 petitions on behalf of the children. J.T. was two years old at the time, and N.H. was four. J.T.'s petition alleged that she came within the provisions of section 300, subdivisions (b) (failure to protect), (d) (sexual abuse), (g) (no provision for support), and (j) abuse of sibling. N.H.'s petition alleged that she came within the provisions of section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (d) (sexual abuse), (e) (severe physical abuse), and (g) (no provision for support). Both petitions included the allegations that mother had mental health issues and histories of substance abuse and domestic violence. J.T.'s petition further alleged that her father, T.L., knew or reasonably should have known about these issues and failed to protect J.T., that mother and T.L. failed to protect her from being sexually abused by mother's boyfriend, and that T.L.'s whereabouts were unknown. N.H.'s petition further alleged that her father, J.H., knew or reasonably should have known about mother's issues and failed to protect her, that N.H. was sexually abused by mother's boyfriend, that N.H. sustained serious physical injuries while in mother's care, and that J.H.'s whereabouts were unknown.
The social worker filed a detention report stating he received a referral alleging that mother physically abused N.H. and severely neglected J.T. Mother took the children to the movies and began cussing at N.H. They were "thrown out" of the theater and, upon returning home, mother beat N.H. up. N.H. had a cut beneath her eye that was swollen and bruised. When the social worker interviewed mother, she denied hitting N.H. and said N.H. fell down while playing at her sister's house. Mother identified N.H.'s father as J.H. (father No. 1), and J.T.'s father as T.L. (father No. 2), but could not provide any information about them.
Neither father is a party to this appeal. --------
The court held a detention hearing on June 14, 2013, and detained the children in foster care. Neither father was present at the hearing, and their whereabouts were unknown.
Jurisdiction/disposition
The social worker filed a jurisdiction/disposition report on June 26, 2013, and recommended that the court find some of the allegations in the petitions true and others not true. The social worker recommended reunification services for mother, but not for the two alleged fathers.
The social worker interviewed mother again about the alleged physical abuse to N.H. She said she had been drinking heavily on the night of the incident and did not remember how N.H. got a black eye. Mother reported that she had been drinking alcohol excessively since 2012. She also said she was diagnosed with schizophrenia and bipolar disorder when she was 14 years old and was prescribed medication; however, she had not taken any medication since she was 15. She was hospitalized several times between the ages of 14 and 19 and was last hospitalized in April 2009.
Mother reported that she was never in a relationship with father No. 1 and that N.H. was the product of a one-night stand. She added that father No. 1 was not listed on the birth certificate and had not supported N.H. financially. She further reported that father No. 2 was never involved in J.T.'s life. He saw her when she was two weeks old, but had denied paternity ever since she was conceived. He was not listed on the birth certificate.
The social worker filed an addendum report on July 22, 2013. The social worker reported that mother had supervised visits with the children since the detention hearing. She observed that mother became easily frustrated with the children during the visits. Mother admitted that she had to stop herself once when she was about to hit one of the children. The social worker also observed that mother became angry with an officer who interviewed her regarding sexual abuse allegations. Based on these observations, the social worker opined that mother may need anger management classes.
The social worker further reported that she received a call from father No. 2. He denied paternity and said he did not know mother. Mother reported that she had also spoken with him, and he told her to "leave [him] out of this."
The court held a contested jurisdiction/disposition hearing on July 22, 2013. Both fathers appeared for the first time and were appointed counsel. The court ordered paternity testing and continued the matter.
The social worker filed first amended section 300 petitions on behalf of the children on September 25, 2013. N.H.'s amended petition added the allegation that father No. 1 had a history of substance abuse. J.T.'s amended petition added the same allegation regarding father No. 2.
At a pretrial settlement conference on October 31, 2013, the court found that J.T. came within section 300, subdivisions (b) and (j), and N.H. came within section 300, subdivision (b). The court found the fathers to be presumed fathers, removed the children from parental custody, declared them dependents of the court, and ordered reunification services for mother and both fathers. The court placed the children in the home of father No. 1's mother, H.R. (PGM). It ordered four hours of supervised visitation for mother at the PGM's home.
Section 387 Petition
The social worker filed a supplemental section 387 petition on April 8, 2014, alleging that the PGM was allowing mother to have unsupervised contact with the children. The social worker interviewed mother and the PGM, and they both confirmed that mother was having unsupervised visits. On April 9, 2014, the court removed the children from the PGM and placed them in foster care.
Six-month Status Review
The social worker filed a six-month status review report on April 22, 2014, recommending that the court continue services for another six months. Mother's case plan required her to participate in counseling, anger management, a psychotropic medication evaluation, parenting education, substance abuse testing, and a substance abuse outpatient program, and undergo a psychiatric/psychological evaluation.
The court held a six-month status review hearing on May 1, 2014. Neither father was present, but they were represented by counsel. The court continued services to mother and the two fathers for another six months.
12-month Status Review
The social worker filed a 12-month status review report on August 5, 2014, and recommended that mother's services be continued, but services to the fathers be terminated. The social worker reported that mother had been participating in her case plan. She had participated in five sessions of individual therapy, but was then terminated due to two missed appointments. She was now in individual therapy with a different provider. Mother completed an anger management program, a parenting education program, an outpatient substance abuse program, and a psychological evaluation. She had also participated in substance abuse testing, and tested negative several times. The social worker further reported that father No. 1 had given no effort to engaging in his case plan, and father No. 2 had made an insufficient effort.
The court held a contested 12-month status review hearing on September 8, 2014. None of the parents appeared, but they were represented by counsel. The court found there was a substantial probability that the children would be returned to mother within six months and ordered her reunification services to be continued. The court terminated reunification services to both fathers.
18-month Status Review
The social worker filed an 18-month status review report on December 2, 2014, recommending that the children be returned to mother's custody under a plan of family maintenance. The children were in a confidential foster home. Mother was living with her current boyfriend in a one-bedroom apartment, and she was pregnant.
The court held a contested 18-month review hearing on December 11, 2014. Mother appeared in court with her counsel, but the fathers were not present. The court continued the children as dependents and ordered them to be returned to mother's custody under a plan of family maintenance.
Family Maintenance Status Review
The social worker filed a status review report on June 9, 2015, and recommended six more months of family maintenance services. The court held a hearing on June 11, 2015. Mother was present with counsel, but neither father was present. The court ordered mother to continue participating in family maintenance services.
Section 387 Petition
The social worker filed a supplemental section 387 petition on November 20, 2015, alleging that mother had a history of mental health issues, substance abuse, and domestic violence. The social worker reported that on November 16, 2015, the police took mother into custody. She had gotten into a dispute with some women on Facebook, and the women showed up at her residence. Mother grabbed a butcher knife, and the women ran. Mother then got in her car and attempted to run them over. She crashed her car and fled the scene. Mother turned herself in to the police.
The court held a detention hearing on November 23, 2015. Mother was present with counsel, but neither father was present. The court found the previous disposition had not been effective and detained the children in foster care.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on December 10, 2015, stating that mother had exhausted the statutory time limit to reunify with the children. Therefore, the social worker recommended that services be terminated and a section 366.26 hearing be set to establish a permanent plan of adoption. The social worker reported that mother failed to protect the children and exposed them to ongoing domestic violence and assaultive behavior. She was recently convicted of assault with a deadly weapon and sentenced to 180 days in jail and three years of probation.
The court held a contested jurisdiction/disposition hearing on January 5, 2016. Mother was present with counsel. The fathers were not present, but were represented by counsel. Mother requested the court to order services under a permanent plan to continue to try and unify with the children. Father No. 2's counsel said father No. 2 supported mother's request. The court stated that it had been over 18 months, and mother was still struggling with mental health issues, which created a substantial danger to the health and safety of the children. Therefore, the court found that the allegations in the section 387 petition were true, that mother failed to participate regularly and make substantive progress in the case plan, and that there was no substantial probability of the children being returned within the statutory timeframe. The court terminated mother's services and set a section 366.26 hearing.
Section 366.26 and Section 388 Petitions
Mother filed a section 388 petition on April 19, 2016, and requested the court to order reunification services. As to changed circumstances, she alleged that she successfully completed 12 weeks of parenting education, 12 weeks of domestic violence classes, and 12 weeks of anger management, "which was required by the court." Mother alleged that it would be in the children's best interest "[b]ecause [they would] be with their biological mother who ha[d] completed required workshops and [was] doing better." She attached certificates of completion for the three programs. The court summarily denied the petition on April 22, 2016, finding that it did not state new evidence or a change of circumstances, and the proposed order did not promote the best interest of the children.
The social worker filed a section 366.26 report on April 29, 2016, and recommended that the court terminate parental rights and set adoption as the permanent plan. The social worker reported that the children were placed together in the home of father No. 2's parents (the paternal grandparents) on December 16, 2015. The paternal grandparents wanted to provide both girls with a stable, loving, and permanent home. Attached to the section 366.26 report were handwritten letters that were not signed or dated. One of them said, in part: "One day, when I was living with mom, she told me that it's really gonna hurt what she was doing to me. She slammed my face into the door and it start[ed] hurting and it started bleeding . . . ." Another letter stated: "I am tired of getting hurt by mom. . . . One day when I went to go live with mom, she threw me against the wall and my arm was hurting . . . ."
Mother filed a second section 388 petition on April 29, 2016, and requested the court to order the immediate return of the children to her home, or in the alternative, order reunification services and liberalize her visits. As to changed circumstances, mother alleged that she, "without the assistance of CFS," completed 12 sessions of parenting education, 12 sessions of individual counseling, 12 sessions of domestic violence classes, and 12 sessions of anger management. She further alleged that her therapy report indicated her mood was stable, and she had benefitted from her services. In addition, she alleged she was under the care of a psychiatrist and was taking her prescribed medication, and she was consistent in her visits with the children. As for best interest, mother alleged that she had maintained a close and positive bond with the children, and they had been in her care for the majority of their lives. She attached support letters from a workforce development specialist, a probation officer, and her mother, as well as certificates of completion for her classes and a report verifying that she had participated in 12 sessions of individual therapy.
The court held a section 366.26 hearing on May 4, 2016, and mother and both fathers set the matter contested. The court acknowledged the filing of the second section 388 petition, and stated that if it did set a hearing on the section 388 petition, it would be on the same day as the contested section 366.26 hearing. The court set the hearing for June 6, 2016.
The social worker filed an interim review report on June 2, 2016, and recommended that the court deny the section 388 petition. The social worker reported that both children had disclosed in therapy sessions and to the current caregiver that mother had threatened them, and they were afraid of her. They said they continued to suffer physical abuse when they were returned to her home, and they experienced "threatening behaviors as well as emotional abuse" during visits with mother. The social worker pointed out that, although mother reported she was now under the care of a psychiatrist and taking medication, she provided no documentation of either. The social worker further noted that mother previously completed her case plan, and the children were returned home in December 2014; however, mother did not benefit from the services, as the children were removed from her again in November 2015 when she was arrested for assault with a deadly weapon. In addition, the social worker stated that mother alleged that she sought services on her own; however, she was actually referred to those services as part of a dependency case involving her other child, L.H. Moreover, those services were terminated. The social worker recommended that visitation be terminated, as mother continued to emotionally abuse the children. The social worker also continued to recommend that the children be freed for adoption.
The court held a combined section 388/366.26 hearing on June 6, 2016. Mother's counsel represented mother, who was present, and also specially appeared on behalf of both fathers, who were not present. The court first addressed the section 388 petition. Mother's counsel simply asked the court to grant it. County counsel asked the court to deny it, as it failed to show changed circumstances or best interest of the children. The social worker noted that mother had completed the services listed in her petition before the children were initially returned. Moreover, despite all those services, mother was arrested in November 2015, for assault with a deadly weapon. The court noted the handwritten notes from the children, and asked the children's counsel for comment. Counsel for the children stated that those letters were provided to his firm, and that, after speaking to the children, he knew their wish was to be adopted. Mother objected to the letters, saying she did not believe they were written in the children's handwriting, and she believed the children were "being coached." The court stated that it was going to attach the letters to the section 366.26 report, and give them "the appropriate weight." The court then stated that it had reviewed the section 388 petition, the attachments to it, and CFS's response. The court acknowledged that mother had engaged in services; however, it concluded that there was no change in circumstance, considering that nothing she submitted with the section 388 petition addressed the "very, very serious underlying allegations." The court specifically noted that mother was diagnosed with bipolar disorder and schizophrenia in her teenage years, that she was institutionalized, and that she stopped taking medication for a period of time. Although mother alleged she was under a psychiatrist's care and was taking medication, the court stated that it "[did not] have any of that information and that's a very important element of this." The court further noted the allegation that N.H. had significant injuries to her right eye, and that there was no information that addressed that issue. The court found that mother's circumstances were changing, but had not changed, and that the proposed change in order was not in the children's best interest. The court further noted that the children were in a stable placement with the paternal grandparents. Thus, it denied the section 388 petition.
The court then turned to the section 366.26 portion of the hearing. Mother testified on her own behalf. She said the children were originally detained from her care in June 2013, but they were returned in December 2014. However, they were detained from her care again in November 2015, and she was granted visitation. She said she had supervised visits every week for two hours. The children were happy to see her at the start of the visits and sad when they ended. Mother testified that that during visits, she and the children watched videos on the phone, took pictures, and ate snacks. She further said that she fulfilled a parenting role during the visits, and that she and the children were bonded. County counsel asked the court to follow its recommendation and order adoption as the permanent plan, and the children's counsel agreed, stating that the children were happy where they were. On behalf of both fathers, mother's counsel objected for the record, without affirmative evidence.
After hearing testimony and arguments and considering the reports submitted, the court found it likely that the children would be adopted. It further found that the beneficial parental relationship exception did not apply, noting that there was no evidence the children would even be harmed if mother's relationship with them was severed. The court terminated all parental rights and ordered adoption as the permanent plan.
ANALYSIS
Mother Has Failed to Show That Reversal is Required
Mother claims that her counsel was operating under a conflict of interest during the combined section 388/366.26 hearing; thus, the matter must be remanded for a new section 388 hearing and the order terminating parental rights must be reversed. Mother is essentially arguing that her counsel ineffectively represented her since she was also representing both fathers at the hearing. (See People v. Clark (1993) 5 Cal.4th 950, 994 ["'Included in the right to the effective assistance of counsel is "a correlative right to representation that is free from conflicts of interest."'"], overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) We conclude no reversal is required.
At the outset, we note respondent's arguments that mother's appeal is procedurally defective and should be dismissed. Respondent first asserts that the proper way to raise a claim of ineffective assistance of counsel is by a writ of habeas corpus, and mother failed to file such writ. Respondent further points out that she failed to include in her notice of appeal that she was appealing the orders denying her section 388 petition and terminating her parental rights. Finally, respondent argues that mother failed to object when her counsel agreed to appear on behalf of the fathers at the hearing; thus, she has waived the issue. Notwithstanding these alleged defects in the proceedings, we will reach the merits of mother's claim.
To establish ineffective assistance of counsel in dependency proceedings, a parent must demonstrate that: "'(1) his appointed counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates; and that (2) this failure made a determinative difference in the outcome, rendering the proceedings fundamentally unfair in that it is reasonably probable that but for such failure, a determination more favorable for [the parent's] interests would have resulted.' [Citations.] In short, appellant has the burden of proving both that his attorney's representation was deficient and that this deficiency resulted in prejudice." (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.)
A. Mother Has Failed to Show Conflicting Interests
Mother claims that her counsel's representation was deficient because counsel simultaneously represented the conflicting interests of mother and the fathers at the section 388/366.26 hearing on June 6, 2016. Mother cites civil cases in support of her position. (i.e., Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, 443-444 [an attorney specially appearing for a litigant instead of the litigant's attorney of record, at a summary judgment hearing, owed a duty of care to that litigant].) However, we see no actual conflict of interest here. Mother's counsel was not simultaneously representing the fathers; rather, counsel simply "stood in" for the fathers' counsel at the hearing. The fathers were represented by appointed counsel at prior hearings. As mother concedes in her reply brief, her counsel simply appeared for both fathers at the June 6, 2016 hearing "as a courtesy to the appointed attorneys for the fathers who were apparently unable to attend the hearing." It is common in dependency proceedings for one attorney to specially appear for another attorney. (See In re J.N. (2006) 138 Cal.App.4th 450, 456 [the father's attorney appeared for the mother's attorney].) Mother concedes this point, as well.
Furthermore, there was no conflict of interest since neither father had any interest in reunifying with his respective child. Father No. 1 was never in a relationship with mother, and their child, N.H., was the product of a one night stand. He never supported N.H. financially, he rarely appeared at any of the dependency hearings, and he made no effort to participate in his case plan. Father No. 2 denied paternity and claimed he did not even know mother. Mother reported that he told her to "leave [him] out of this." He also rarely appeared at hearings and made an insufficient effort to participate in his case plan. The court found that both fathers failed to participate regularly or make substantive progress in their case plans and terminated their reunification services nearly two years prior to the June 6, 2016 combined hearing. We also note that, at the jurisdiction/disposition hearing held just five months prior, mother was requesting services to try and reunify with the children. Counsel for father No. 2 informed that the court that father No. 2 "would support Mother's request to receive reunification services under the permanent plan." Thus, the record indicates there was no conflict of interest in mother's counsel specially appearing on behalf of the fathers' counsel at the June 6, 2016 hearing, since the fathers were not trying to reunify with the children.
Mother claims that, although father No. 2 made no effort to gain custody of his child himself, he clearly had an interest in maintaining his child's placement with his own family. At the time of the June 6, 2016 hearing, the children were living with his parents, and they wanted to adopt them. Mother asserts that father No. 2 could regularly see J.T. without "assuming the responsibilities of an actual parent," which made "placement with his own mother. . . a perfect solution." Thus, she contends that because her request for custody "threatened an ideal situation for Father Two, trial counsel was plainly operating under an actual conflict of interest." She further asserts that her counsel "labored under an actual conflict of interest" since mother had antagonistic relationships with both paternal families. Mother's contentions are baseless. Although, at one point, father told the social worker he wanted to form a relationship with his daughter, he also said he "ha[d] other children to worry about." Father No. 2 only had sporadic contact with J.T., and told the social worker "he [did] not need to visit her all the time." Moreover, father No. 2's interest in the dependency case was to reunify with J.T., not to have his parental rights terminated and his child set free for adoption. However, he failed to participate in his case plan. As a result, his services were terminated nearly two years before the section 388/366.26 hearing, when mother claims her counsel was representing conflicting interests.
B. Mother Was Not Prejudiced by Her Counsel's Representation of the Fathers at the Hearing
Assuming arguendo there was a conflict of interest, we find any error in counsel's representation of the fathers at the section 388/366.26 hearing harmless. We note mother's claim that prejudice should simply be presumed "because the reasons underlying such a rule in criminal cases apply to [her] situation." She argues that "[a] single attorney representing multiple parents is analogous to a single attorney representing codefendants." However, there are significant differences between dependency proceedings and criminal proceedings. (In re James F. (2008) 42 Cal.4th 901, 915; see In re Sade C. (1996) 13 Cal.4th 952, 991-992.) Moreover, in the criminal context, "prejudice is presumed when counsel suffers from an actual conflict of interest. [Citation.] This presumption arises, however, 'only if the defendant demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance."'" (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 309.) As discussed ante, mother's counsel was not actively representing the fathers, but merely stood in for their appointed counsel at a single hearing, as a courtesy.
In any event, mother has failed to establish that counsel's representation of the three parents affected the outcome of the section 388/366.26 hearing. At the outset of the hearing, the trial court addressed mother's second section 388 petition that was filed on April 29, 2016. A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317 (Stephanie M.).) "After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Id. at p. 317.)
The juvenile court denied mother's section 388 petition because she failed to show changed circumstances or that a changed order would be in the children's best interest. As to changed circumstances, mother alleged that she completed parenting education, individual counseling, domestic violence classes, and anger management. She further alleged that she was under the care of a psychiatrist and was taking her prescribed medication, and she was consistent in her visits with the children. As for best interest, mother alleged that she had maintained a close and positive bond with the children, and they had been in her care for the majority of their lives. The court acknowledged that mother had engaged in services; however, it concluded there was no change in circumstance. Indeed, mother had completed virtually all the services cited before the children were returned to her on family maintenance. The court specifically noted that mother was diagnosed with bipolar disorder and schizophrenia in her teenage years, that she was institutionalized, and that she stopped taking medication for a period of time. Although mother alleged she was under a psychiatrist's care and was taking medication, the court noted that there was no evidence to support those claims. The court was properly concerned about mother's mental health issues, since they created a substantial danger to the health and safety of the children.
Additionally, the court found that the proposed change in order was not in the children's best interest. "[A] primary consideration in determining the child's best interests is the goal of assuring stability and continuity. [Citation.]" (Stephanie M., supra, 7 Cal.4th at p. 317.) Mother merely alleged that the children were bonded with her and that she had cared for them the majority of their lives. However, she failed to demonstrate how returning the children to her care would be in their best interest. The evidence showed that they were last removed from her care after she had gotten into a dispute with some women, threatened them with a butcher knife, and attempted to run over them in her car. The record also showed that mother was threatening the children and abusing them emotionally during visits, and that they were afraid of her. Moreover, as the court noted, the children were in a stable home with the paternal grandparents, who wanted to adopt them. There was a mutual attachment between the paternal grandparents and the children, and the children recognized them as their parents and wanted to be adopted by them. The juvenile court evaluated the evidence, determined that mother had not carried her burden of proof, and properly denied the section 388 petition. Even if the fathers had separate counsel, we find it very unlikely that they would have convinced the court to make a different ruling.
Mother contends that "[w]ith conflict-free counsel [she] could have prevailed on her section 388 request for custody, thereby leading the juvenile court to vacate the section [366.26] portion of the hearing." She claims that what harmed her case "was primarily the statements from [the current caregiver], which tended to show that she was inappropriate during visits, and that there were negative aspects to her relationship with the children." Mother also cites the unsigned and undated letters from the children that showed they did not feel safe in her care. Mother argues that this evidence "went completely unchallenged" and that "conflict-free counsel" could have cross-examined the caregiver about her statements and the children about the letters. She also asserts that "conflict-free counsel" could have examined mother further about her relationship with the children, during the section 388 portion of the hearing, and could have presented evidence to support her claim that the positive test results for opiates was due to her prescribed dental medication. However, there is no indication in the record that the court's decision to deny the section 388 petition hinged on any of these factors. (See ante.) Thus, mother's claims are meritless.
Mother further claims that the "duty of loyalty" owed to father No. 2 "prevented counsel from vigorously defending [her] during the section 366.26 portion of the hearing." However, "at the time of the section 366.26 hearing, reunification efforts have terminated and the only remaining question is to determine a permanent plan of care for the child[ren] outside parental custody." (In re Sarah C. (1992) 8 Cal.App.4th 964, 980.) "If a child is likely to be adopted, adoption is the plan preferred by the Legislature." (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Because the focus was no longer on reunification, there was no reason to "vigorously defend" mother. The court properly found it likely that the children would be adopted, terminated parental rights, and ordered adoption as the permanent plan.
In sum, we conclude that mother has failed to show that the orders denying the section 388 petition and terminating parental rights should be reversed because of ineffective assistance of counsel arising from a conflict of interest.
DISPOSITION
The court's orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J. We concur: McKINSTER
J. CODRINGTON
J.