Opinion
E053422 Super.Ct.No. J214422 Super.Ct.No. J214423
12-08-2011
In re F.S. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.B. et al., Defendants and Appellants.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant J.B. Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant L.G. Jean-Rene Basle, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent. William D. Caldwell, under appointment by the Court of Appeal, for minor F.S. Linda Rehm, under appointment by the Court of Appeal, for minor S.G.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Barbara A. Buchholz, Judge. Affirmed.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant J.B.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant L.G.
Jean-Rene Basle, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
William D. Caldwell, under appointment by the Court of Appeal, for minor F.S. Linda Rehm, under appointment by the Court of Appeal, for minor S.G.
Appellant J.B. (mother) is the mother of F.S. and S.G. (the children). Appellant L.G. (father) is the father of S.G. only. Mother and father (the parents) appeal the juvenile court's order terminating their parental rights. On appeal, mother claims that: 1) the beneficial relationship exception applied (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i) ), and the juvenile court should have ordered a permanent plan of legal guardianship or long-term foster care; 2) the court erred in finding the children generally adoptable; and 3) the children's counsel had a conflict of interest in representing both children. Father filed a separate brief on appeal, joining in mother's arguments with regard to S.G. We affirm.
We note that the record refers to mother as J.B., and in the alternative, J.S.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
This court appointed separate appellate counsel for F.S. and S.G. at mother's request. Counsel for both children filed briefs requesting that this court affirm the juvenile court's order terminating parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
On April 26, 2007, the San Bernardino County Children and Family Services (CFS) filed section 300 petitions on behalf of the children, alleging that they came within the provisions of subdivisions (b) (failure to protect) and (c) (serious emotional damage). At the time, F.S. was two years old, and S.G. was eight years old. The children lived with mother and B.S., the father of F.S. F.S.'s petition specifically alleged that mother and B.S. had substance abuse histories that precluded them from safely and adequately parenting the children, that B.S. had been emotionally abusive to the children, and that mother had allowed the children to be exposed to different men who had been emotionally abusive to them. S.G.'s petition contained the same allegations, except that her petition alleged that her father, L.G., had a history of substance abuse. A subsequently filed amended petition added the allegation that L.G. had a history of violent behavior toward others that precluded him from safely and adequately parenting S.G.
The petitions also included C.C., one of mother's other children, who is not a subject of this appeal. Later petitions and reports included J.C., another of mother's children by a different father. Since this appeal concerns the children only, we will limit the discussion in this opinion to matters concerning them.
B.S. is not a party to this appeal.
The family came to the attention of CFS when mother was arrested for child endangerment. The police responded to a call and found the home emitting a strong odor of marijuana. They found marijuana and paraphernalia in the home and outdoor shed. In the detention report, the social worker reported that mother admitted she and B.S. smoked marijuana in the home. Mother also stated that father had a history of methamphetamine usage. She further reported that B.S. was verbally abusive to the family, despite having been involved in family counseling. At the hearing on April 27, 2007, the court detained the children.
Jurisdiction/disposition Report and Hearing
The social worker filed a jurisdiction/disposition report on May 18, 2007, recommending that the court find the allegations in the petitions true and order that reunification services be provided to the parents. Mother and father each signed a waiver of rights form and submitted the petitions on the basis of the social worker's report. The court found that the children came within section 300, subdivisions (b) and (c), and declared them dependents. The court ordered reunification services for the parents, and ordered supervised visitation, once a week, with the possibility of being liberalized if appropriate.
Six-month Status Review and Hearing
The social worker filed a six-month status review report on December 24, 2007, recommending that the parents continue to receive reunification services. Mother had completed an outpatient drug treatment program and a parenting course, but she needed to continue addressing the issue of protecting her children from sexual and physical abuse. She consistently visited the children once a week, for two hours. The social worker reported that the visits went well, and the children enjoyed them. Father had yet to show progress in his plan. He did, however, visit the children.
The social worker also reported that the children were placed in the same foster home on April 24, 2007, and were doing well. They reportedly enjoyed their placement, and they identified the foster parents as "mommy" and "daddy."
At the hearing on January 3, 2008, the court ordered reunification services to be continued.
Twelve-month Status Review and Hearing
The social worker filed a 12-month status review report on June 30, 2008, and recommended that the parents receive six more months of services. Mother was close to completing her case plan, and father had been working on his plan. The parents were consistently visiting the children, with no reported problems. In May 2008, mother started having unsupervised visits for four hours. The children were enjoying living with their foster parents, were having all their needs met, and were happy in the home.
In an addendum report filed on July 24, 2008, the social worker recommended that the children return to mother's care under a family maintenance plan. The social worker assessed mother's home and found that it was appropriate for the children to be returned to her care. Father did not live with mother. The court ordered the children to be returned to mother's care and ordered her to participate in the family maintenance case plan. The court made the order that any person mother brought into the home that would have contact with the children had to be live scanned. The court continued reunification services for father.
Eighteen-month Status Review and Section 387 Supplemental Petition
On October 22, 2008, the social worker filed an 18-month status review report recommending that the children continue living in mother's home under a family maintenance plan, and that father's reunification services be terminated. The children had done well with mother under the family maintenance plan. However, mother admitted to a recent relapse of alcohol use. She also allowed father to have unauthorized overnight visits with the children. Father was resistant to completing his reunification plan. On October 24, 2008, the court continued the children in mother's home, and set the matter for contest with regard to father.
On November 25, 2008, CFS filed section 387 supplemental petitions for a more restrictive placement for the children. The petitions included the allegations that mother had permitted contact between the children and men who had not been approved to be in the home, she had permitted contact between the children and B.S., who had sexually molested C.C., she placed the children at risk of harm by her lifestyle of partying and abusing alcohol, and she placed the children at risk by allowing C.C. to babysit them, with full knowledge that C.C. had recent substance abuse issues. The petition included one last allegation, s.6., which stated that, despite receiving nearly 18 months of reunification services and three months of family maintenance services, mother had failed to alleviate the cause of removal of the children; she failed to adequately benefit from the services; and the children were not adequately safe and protected in her care under the family maintenance plan. The court ordered that the children be removed from mother's custody and detained in foster care. The children were placed back in their previous foster home.
In a jurisdiction/disposition report filed on December 12, 2008, the social worker recommended that the court find true the allegations in the section 387 petitions, terminate reunification services for the parents, and set a section 366.26 hearing. The social worker reported that, on November 10, 2008, she received a phone call from C.C., who was on a trial visit with mother. C.C. said that she took care of the children, while mother went out with her boyfriend, that mother was drunk twice during her trial visit, and that mother's boyfriend was arrested for being under the influence. Mother denied everything. The social worker stated that it was clear that mother ignored the court's directives regarding unauthorized persons having contact with the children. The social worker was also concerned that mother was not considering the children's safety when she left them with her other child, C.C. The social worker opined that it was necessary to remove custody from mother, since there was no assurance that she would comply with future court orders made for the protection of the children.
At a contested jurisdiction/disposition hearing on February 26, 2009, the parties agreed to dismiss all of the allegations in the section 387 petitions, except the last one, s.6. The parties agreed to add to that allegation the statement that "[m]other relapsed on or about February 1st, 2009." The court found allegation s.6., as amended, true and dismissed the other allegations. Mother objected to the termination of services and asked that the court continue the current visitation order. The court found that the parents had failed to participate in their case plans, the extent of progress made was minimal, and there was not a substantial probability the children could be returned to the parents within the statutory time frames. The court terminated services and ordered supervised visitation, twice a month. The court set a section 366.26 hearing, noting that CFS's recommendation was limited to legal guardianship.
Section 366.26 and Legal Guardianship
The social worker filed a section 366.26 report on June 24, 2009, recommending that the court appoint Mr. and Mrs. F. as legal guardians. Mr. and Mrs. F. had been the children's foster parents for approximately 14 months. The children felt safe with them and loved by them. The children wished to stay with them.
The social worker also reported that mother had visits with the children. The visits "went well," and there were "no reported problems."
On July 23, 2009, the court appointed Mr. and Mrs. F. as the children's legal guardians and terminated the dependencies. The court ordered visitation for mother twice a month, to be supervised by the legal guardians.
On March 5, 2010, the social worker filed section 387 supplemental petitions alleging that Mr. and Mrs. F. were no longer willing to perform their duties as legal guardians. In the detention report, the social worker stated that Mr. and Mrs. F. requested the children to be removed from their care because Mrs. F. believed that mother had "sabotaged" the placement. Mother would tell the children that it hurt her when they called Mrs. F. "mom." Mother also told them that her new boyfriend would cry because he could not see the children. Mother's weekly contact caused problems with the children's attachment to Mr. and Mrs. F. The children expressed emotional guilt if they got close to Mr. and Mrs. F., and they acted out before and after the visits. Mrs. F. said that it had become difficult to raise the children, since mother was not supporting the placement. The court ordered the children to be removed from the guardians, and placed them in confidential foster care. The court ordered visitation between mother and the children to be twice a month, supervised only by CFS.
On April 16, 2010, the court sustained the section 387 petitions and terminated the guardianship. The court then placed the children in the foster home of Mr. and Mrs. B. The court ordered a planned permanent living arrangement as the permanent plan.
Later that month, the law firm that was representing the children and J.C. asked to be relieved, and the court appointed new counsel to represent the children.
Section 388
On May 10, 2010, mother filed a section 388 petition requesting the court to reinstate reunification services and increase her visitation with the children. She alleged that she had been consistently visiting them, had remained committed to their best interest, had completed a substance abuse program and a child/abuse parenting program, and had successfully completed probation. The social worker filed a response to the section 388 petition, recommending that the court deny it. The social worker noted that S.G. was now refusing to visit with mother. S.G. said she felt safe in the current foster home and wanted to be adopted. The foster parents reported that the children were thriving in their home, but they regressed and became angry when they had visits with mother. CFS recommended that mother's visits be reduced from two times a month to one time a month.
At the hearing on August 17, 2010, mother's counsel informed the court that mother, counsel for CFS, and the social worker had reached an agreement to continue the supervised visits between F.S. and mother two times a month, but to reduce S.G.'s visits to one time a month. The other part of the agreement was that mother would no longer be allowed to have phone contact with the children. Mother would withdraw the section 388 petition without prejudice if the court approved the agreement. The children's counsel stated that the arrangement was made without his input. He asserted that S.G. did not want to visit with mother. He added that, if there was an agreement that there be no visits or contact with S.G., he would not object to mother visiting with F.S. Counsel for CFS reminded the court that the current visitation order was for both children to have visits twice a month. He then explained that the parties were asking for visits once a month for S.G., even though S.G. was refusing to visit with mom. Mother's counsel stated that mother was not asking the court to force the child to visit, but she agreed to accept the offer in the hope that S.G. would change her mind some day. The children's counsel did not think it was fair to have a visitation order "hanging over [S.G.'s] head." Counsel for CFS noted that S.G. had not been visiting with mother for at least four or five months. The court decided to proceed with the section 388 petition.
S.G. testified at the hearing and said that she never wanted to visit with her mom. S.G. said she was in counseling, but she would not even be willing to visit with mother if her counselor was present. S.G. said that, when she visited mother, she would feel very depressed either before or after the visits. S.G. also testified that she felt loved and happy in her current foster home.
The social worker testified at the hearing, and said she had observed previous visits between mother and the children, and the visits "were appropriate." She did not recommend visits for S.G. now because visits were detrimental, in that S.G. would get upset, confused and depressed. The social worker testified that she supervised the most recent visits between S.G. and mother, and the "communication was superficial, and [S.G.] kind of withdrew a couple of times from Mom. And she appeared sad, depressed." The social worker recommended supervised visits for F.S., since F.S. wanted to continue visiting mother. However, she recommended that the visits be reduced to one visit a month, since F.S. tended to become obsessed with the visits and angry afterward. The social worker further testified that both children were thriving in their current placement. S.G. told her she liked her current placement and wanted to be adopted by the foster parents.
The foster mother testified at the hearing, as well. She confirmed that, prior to visits with mother, S.G. would get depressed, angry, and a "little oppositional." She would isolate herself in her room before or after a visit. However, since she stopped visiting mother, those behaviors stopped. The foster mother added that S.G. was much happier, her grades had improved, and she became "a whole different kid, a lot lighter, a lot freer." The foster mother also agreed with the social worker's recommendation that F.S.'s visits be reduced to one time a month.
The court denied the reinstatement of services and reduced visits between mother and F.S. and S.G. to one time a month. The court specified that neither child would be forced to visit with mother.
Post-Permanent Plan Review and Adoption
The social worker filed a status review report on October 6, 2010, recommending that the court set a section 366.26 hearing to establish a permanent plan of adoption for the children. The foster parents reported that they loved both children and wanted to adopt them. On October 4, 2010, the social worker explained to the children what adoption by the foster parents meant, and F.S. said, "I want to stay here and live here forever. I want them to be my Mommy and Daddy." S.G. said, "That would be great." The court set a section 366.26 hearing for March 10, 2011.
On March 1, 2011, the social worker filed a section 366.26 report, which contained an adoption assessment of the prospective adoptive parents, Mr. and Mrs. B. The children had resided in their home since March 4, 2010. Mr. and Mrs. B. stated that they wanted to adopt the children because they loved them. Mr. and Mrs. B. knew that each child had unique needs, and they felt they could meet all of their needs. They were aware of their issues and remained committed to raising the children to adulthood. Mr. and Mrs. B. said, "We know we have a rough road ahead, but they're a part of the family." The children enjoyed where they lived and appeared to be comfortable. The social worker opined that the children were appropriate for adoption and recommended that they be freed for adoption with Mr. and Mrs. B.
On April 13, 2011, the court conducted a section 366.26 hearing. Mother was not present. S.G., who was 12 years old at the time, testified. She said she liked living with Mr. and Mrs. B., and she wanted to be adopted by them. She said she did not want to return to mother. F.S., who was six years old, also testified that she liked living with Mr. and Mrs. B., and she wanted to be adopted by them. When asked if she ever wanted to live with mother again, F.S. said, "Sometimes I think I would, but I think it's better to stay here more because this is a safer home." F.S. also said she enjoyed visiting with mother and wanted to continue visits. The matter was continued to April 25, 2011, for mother's testimony.
Mother failed to appear on April 25, 2011. The court found there was evidence that the children were adoptable, and that they were likely to be adopted. The court terminated parental rights.
ANALYSIS
I. The Beneficial Parental Relationship Exception Did Not Apply
Mother contends that the court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i). Respondent simply argues that mother has forfeited the issue. Without addressing the forfeiture claim, we conclude that the beneficial parental relationship exception did not apply here.
Father joins in mother's argument. Respondent contends that father's entire appeal should be dismissed, based on the forfeiture doctrine. However, since father is simply joining in mother's arguments, which we will address on the merits, we need not address the forfeiture claim.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53 (Celine R.).) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1)(B). One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). (See In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when the parents "have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The phrase "benefit from continuing the relationship" refers to a parent/child relationship that "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H).) It is the parent's burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
In support of her position, mother merely asserts that she maintained regular visitation, that F.S. enjoyed their time together, which included coloring pictures, painting nails, and taking photographs, that F.S. "seemed 'obsessed'" with visiting her, that F.S. acted out after visits because she wanted to go home with her, and that F.S. had "difficulties with bouts of irritability and fights" in the foster parents' home. As to S.G., mother simply asserts that S.G. "had a bond with her mother but appeared to believe that she had to choose between having a permanent, stable placement with the foster parents or any future contact with her mother." Mother additionally argues that, because of her strong bond with the children, the court should have chosen a permanent plan of guardianship or long-term foster care. She points out that, at the initial section 366.26 hearing in June 2009, the court found that legal guardianship was in the children's best interest, in light of the strong parent-child bond between her and the children. Mother further asserts that, despite efforts by the social worker and the foster parent to sever this bond by recommending reduced visitation, the children wanted to maintain contact with her.
Mother has not proffered any evidence to support a finding that the children had a "substantial, positive emotional attachment [with her] such that [they] would be greatly harmed" if the relationship was severed. (Autumn H., supra, 27 Cal.App.4th at p. 575.) While the record does show that she had consistent visits with them, the evidence merely showed that the visits went well, the children enjoyed them, and there were no reported problems. Mother's interactions with the children do not even begin to demonstrate that her relationships with them promoted their well-being "to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Ibid.)
Furthermore, the evidence actually belies mother's claim that there was "overwhelming" evidence that she and the children "shared a significant relationship." The social worker who supervised the most recent visits between S.G. and mother, testified that the "communication was superficial, and [S.G.] kind of withdrew a couple of times from Mom. And [S.G.] appeared sad, depressed." S.G. herself said that when she visited mother, she would feel very depressed either before or after the visits. She then refused to visit mother anymore. According to the foster mother, after S.G. stopped visiting mother, she became much happier and her grades improved. As to F.S., although she enjoyed visiting with mother, she wanted to be adopted by her foster parents. While we acknowledge mother's point that the court initially ordered legal guardianship as the permanent plan, it is not clear from the record why the social worker's recommendation was limited to guardianship, at that time. Moreover, the court ultimately changed its order to adoption as the permanent plan.
We conclude that the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i), did not apply here. In light of this conclusion, we reject mother's claim that, because of "the extraordinary evidence of a parent-child bond," the court should have ordered a permanent plan of legal guardianship or long-term foster care.
II. The Court Properly Found That the Children Were Adoptable
Mother contends that the court's finding of adoptability was not supported by substantial evidence. We disagree.
"The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.] In making this determination, the juvenile court must focus on the child, and whether the child's age, physical condition, and emotional state may make it difficult to find an adoptive family." (In re Erik P. (2002) 104 Cal.App.4th 395, 400 (Erik P.).)"Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650 (Sarah M.).) "It should be remembered, at this point, that adoptability under section 366.26 is relatively easy for social service agencies to establish. (The exact language from the statute is whether 'it is likely the child will be adopted.') . . . [I]t is only common sense that when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established. In such a case, the literal language of the statute is satisfied, because 'it is likely' that that particular child will be adopted." (In re Jayson T. (2002) 97 Cal.App.4th 75, 84-85, overruled in part on other grounds, as stated in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
"In reviewing the juvenile court's order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]" (Erik P., supra, 104 Cal.App.4th at p. 400.)
There was substantial evidence to support the court's finding of adoptability. F.S. was a pretty, Caucasian, six-year-old girl, with blond hair and blue eyes, who was developmentally on target, had no medical problems, enjoyed playing with other children, had "excellent verbal skills for her age," and was a "bright and articulate girl." S.G. was also a pretty, Caucasian girl, who was developmentally on target, was a "bright girl," and got along well with her peers.
Mother points out that once the children were placed with their former legal guardians, they began to exhibit serious behavior issues, and they had to be in therapy to deal with anxiety and depression. Mother also cited S.G.'s past sexually inappropriate behavior, as well as behavior problems she had in her previous placement. Notably, these problems occurred in the previous placement, approximately one year prior to the finding of adoptability. Furthermore, there had been no incidents of sexually inappropriate behavior at the current placement.
Mother also cites some problems S.G. had in her current foster home. However, these problems were reported to the social worker by the prospective adoptive parents, indicating that they were fully aware of S.G.'s issues. At the same time, the prospective adoptive parents reported that S.G. had "'made a lot of progress'" and they had "'seen such growth in [S.G.]'" since being placed in their home. They wanted to adopt S.G., despite her problems.
Mother also asserts that the children had trust and attachment issues, and there was no evidence that their emotional issues would "decrease, or even plateau, in the future." She concludes that "[t]here was insufficient evidence of adoptability given their history of significant mental and emotional issues." However, by the time of the section 366.26 hearing, the children had lived with the prospective adoptive parents for nearly one year. The prospective parents were fully aware of the children's issues, felt they could meet all of their needs, and remained committed to them and dedicated to raising them to adulthood. Mother's claim that there was no evidence that the children's emotional issues would decrease in the future is thus immaterial. Father additionally asserts that, "[p]articularly in light of the way [S.G.'s] first placement fell apart after 14 months, [her] deteriorating emotional condition undermined the court's finding" of adoptability. However, the guardianship failed because of mother's interference, not because of S.G.'s emotional condition. Moreover, as stated above, the evidence showed that the children were improving in the prospective adoptive home.
Finally, we note the prospective adoptive parents' significant statement: "We know we have a rough road ahead, but [the children are] a part of the family." The prospective adoptive parents are not likely to be dissuaded. (Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) We thus conclude that the court properly found clear and convincing evidence that the children were adoptable.
III. There Was No Actual Conflict in Counsel Representing Both Children
Mother claims that the dual representation of S.G. and F.S. "prevented trial counsel from representing [their] independent and conflicting interests." She argues that the children's counsel had a professional duty to withdraw from representation, but failed to do so, and that the court then had a duty to disqualify and remove counsel. Father additionally claims that the children's counsel could not effectively advocate for the children's individual interests, and therefore failed to provide the children with effective assistance of counsel. None of these claims have merit since there was no apparent conflict of interest.
At the outset of her argument, mother asserts that she has standing to raise the issue on behalf of the children. Respondent does not dispute the issue. Without further discussion, we simply note that "a parent has standing to assert his or her child's right to independent counsel because independent representation of the children's interests impacts upon the parent's interest in the parent-child relationship. [Citations.]" (In re Candida S. (1992) 7 Cal.App.4th 1240, 1252.)
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"When first appointing counsel in a dependency matter, the court may generally appoint a single attorney to represent all the siblings. It would have to appoint separate attorneys if, but only if, there is an actual conflict among the siblings or if circumstances specific to the case—not just the potential for conflict that inheres in all multisibling dependency cases—present a reasonable likelihood an actual conflict will arise. If these specific circumstances exist, the court should appoint separate counsel at the outset rather than await an actual conflict and the possible disruption a later reappointment may cause. After the initial appointment, the court will have to relieve counsel from multiple representation if, but only if, an actual conflict arises." (Celine R., supra, 31 Cal.4th at p. 58.)
Mother does not take issue with the initial appointment. Rather, she claims a conflict arose later when S.G. refused to visit mother and said she wanted to be adopted, while F.S. "wanted to continue visiting her mother, enjoyed her contact with her mother and sometimes thought about returning to her care." Mother contends that the children's counsel "oppose[d] visitation for [F.S.] because [S.G.] had ceased to visit and was headed toward a plan of adoption with the foster parents." She argues that the children "had different and competing interests that presented minor's counsel with an actual conflict of interest in this case resulting in his advocating against his client's interests."
Mother has not provided any authority that supports her proposition that the children's different desires regarding visitation created a conflict of interest. "A conflict arises where minor's counsel seeks a course of action for one child with adverse consequences to the other." (In re Barbara R. (2006) 137 Cal.App.4th 941, 953.) Here, no such conflict existed. At the hearing on the section 388 petition, counsel for the children stated that S.G. did not want to visit with mother. He added that, if there was an agreement that there be no visits or contact with S.G., then he would not object to mother visiting with F.S., since F.S. wanted to continue the visits. However, he did advocate for a reduction in F.S.'s visits, since she exhibited negative behavior changes before and after visits. The children's counsel's arguments were in line with the social worker's recommendations. The social worker testified that visits were detrimental to S.G., in that S.G. would get upset, confused and depressed; thus she recommended no visits for S.G. On the other hand, the social worker recommended supervised visits for F.S., but just once a month. There was no conflict in counsel informing the court that one child wanted visitation, while the other did not. Mother has failed to demonstrate how S.G.'s and F.S.'s interests were conflicting. Since there was no apparent conflict of interest in representing both children, the children's counsel was not required to withdraw, and the court was not required to appoint separate counsel.
In addition, contrary to mother's claim that the children's counsel "oppose[d] visitation" for F.S. because S.G. had stopped visiting, the children's counsel explicitly advocated for F.S. to have visits once a month. As mentioned above, the children's counsel did so in accordance with the social worker's recommendation. The social worker recommended the reduction in visits because of the negative effects visits would have on S.G. Moreover, the recommended reduction in visits was not related to S.G.'s refusal to visit.
Mother also asserts that "[h]ad the children had separate counsel, each girl's unique interests would have been represented . . . and the appropriate plan for each child advocated for." However, the record reflects that the children's counsel properly represented and advocated for the children's separate interests in visiting mother, and eventually for their common desire to be adopted by the foster parents.
We note that some of mother's assertions are inconsistent. She claims that the children's counsel opposed visitation for F.S. At the same time, she argues that the children's counsel advocated to reduce F.S.'s visits with her from two times a month to one time a month. Mother then makes the claim that, had minor's counsel not agreed to reduce F.S.'s visits, "the outcome of this case would have been different." Mother has failed to explain how the outcome of the case would have been different if counsel had not advocated for a reduction in visits for F.S. The children were thriving in their placement, they both wanted to be adopted by their foster parents, and the foster parents were committed to adopting them. In view of the court's ultimate determination to terminate parental rights and free them for adoption, it is difficult to see how the outcome of the case would have been affected by counsel's arguments concerning visitation.
In sum, there was no conflict of interest. In light of this conclusion, we reject father's argument that the children's counsel provided ineffective assistance of counsel. (See People v. Holt (1997) 15 Cal.4th 619, 703.) The record demonstrates that the children's counsel effectively performed his duties under section 317, subdivision (c), to "advocate for the protection, safety, and physical and emotional well-being of the child[ren]."
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur: KING
J.
MILLER
J.