Opinion
A131562
10-27-2011
In re K.L., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Petitioner and Respondent, v. L.B., Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County Super. Ct. No. JD08-3334)
L.B. (Mother) challenges an order made at the conclusion of a hearing under Welfare and Institutions Code section 366.26, in which the juvenile court terminated her parental rights and ordered a permanent plan of adoption for the minor K.L. (born February 2003). Mother failed to appear at the hearing, as did her appointed counsel. She claims the court erred in allowing the appointed attorney of K.L.-2 (Father), to appear not only for Father, but also to appear specially on her behalf due to the absence of her own attorney, asserting automatic reversal is required. She also contends that attorney's performance on her behalf constituted ineffective assistance of counsel. Lastly, Mother challenges the court's implicit finding that the "beneficial relationship" exception of section 366.26, subdivision (c)(1)(B)(i), was not applicable in her case so as to preclude the termination of her parental rights.
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
As discussed below, we affirm the order. The error, if any, relating to Mother's representation at the section 366.26 hearing, does not require automatic reversal, and is harmless. We similarly conclude there was no prejudicial error arising from ineffective assistance of counsel. Finally, we conclude substantial evidence supports the court's implicit finding concerning the lack of a "beneficial relationship" exception.
BACKGROUND
On November 21, 2008, the San Francisco Human Services Agency (Agency) detained K.L. and her two younger half siblings, A.G. (born September 2006), and W.B. (born May 2008). The Agency filed a petition under section 300 on November 25. On the following day, the juvenile court appointed James Donnelly to represent Mother. After a contested hearing on December 11, 2008, the juvenile court ordered K.L. formally detained. Later that month, the court appointed Dominick Franco to represent Father.
As later amended, the petition alleged Mother "may have a substance abuse problem which requires assessment," and she "[was] unable to provide adequate care [for] and supervision [of the minors] due to her being fatigued and overwhelmed with trying to care for three children at [a homeless] shelter." (§ 300, subd. (b).)
At the conclusion of its jurisdictional/dispositional hearing, the juvenile court sustained the foregoing allegations as to Mother, and as to Father found he was "incarcerated and unable to care for the child." (§ 300, subd. (g).) The court ordered reunification services for Mother only, as Father waived services.
Mother's case plan required her to submit to a psychological evaluation, engage in individual therapy and group counseling, complete a parenting education course, and obtain and maintain suitable housing.
In a report completed in early July 2009 for the six-month status review hearing, the assigned social worker recommended an additional six months of services for Mother, noting she had "sporadically engaged in services," although her progress towards reunification appeared to be "diminishing." The social worker was "hopeful that the mother will complete the psychological evaluation, which may assist all with a treatment plan for the mother." At the conclusion of the six-month hearing on July 22, the juvenile court continued K.L. and her half siblings in out-of-home custody and directed that Mother continue to receive services.
In an addendum report completed in early September 2009, the social worker stated Mother had completed her psychological evaluation. The evaluation recommended that Mother address her depression and emotional issues in therapy, that she continue treatment for substance abuse at Iris Center, and that she receive parenting skills training and learn "adequate coping strategies." The social worker also reported that Mother had "worked extremely close with the [Agency] and other service providers" on the issue of housing. As a result, she had been "awarded with a brand new, three bedroom, two bathroom apartment" provided by Mercy Housing. Noting "[t]he children's return to the mother [was] essential" for her to obtain and maintain the apartment, the social worker proposed placing them in Mother's care under a family maintenance plan. The social worker stated she had discussed with Mother the "risk" the Agency was taking in recommending this plan, because Mother's compliance with services had so far been "minimal." Mother, for her part, expressed a "commitment to fully engage in services, once her housing is secure."
The juvenile court ordered that the minors be returned to Mother, commencing September 15, 2009, and adopted the proposed family maintenance plan. This plan called for Mother to remain under the care of a qualified mental health professional and comply with any recommendations for therapy or medication, to successfully complete a parenting education program, and to complete an outpatient drug treatment program. The plan also required that Mother ensure K.L. regularly attend her own therapy,
On January 11, 2010, the Agency filed a supplemental petition under section 387. A detention report filed the next day stated Mother had failed to engage in services since September 2009, when the minors were placed in her care, and had failed since that time to ensure that K.L. attended her therapy. The social worker further reported that K.L. was missing school and had fallen behind in her studies, that Mother had left A.G. in the care of the maternal grandmother, who lived in San Joaquin County, despite the social worker's determination that the siblings should remain together, and that Mother had allowed W.G.—the alleged father of A.G. and W.B.—to visit in the home, although Mother was aware he was not to have contact with the children due to past allegations of physical and emotional abuse.
The social worker described a visit with K.L. on January 7, at K.L.'s school. At first, K.L. became tearful and ran to hug the social worker, immediately telling her she wanted to return to a foster mother she had been placed with earlier. K.L. reported being afraid of W.G., her half siblings' father, who was often at the home and sometimes hit her siblings. She also said she missed her little sister A.G., who had been living with her maternal grandmother.
The juvenile court, on January 13, 2010, entered a formal detention order based on the supplemental petition.
In the report prepared for the 12-month permanency hearing, signed March 17, 2010, the social worker recommended that the juvenile court terminate Mother's reunification services and set the matter for a hearing under section 366.26. The report noted Mother had failed to utilize or benefit from the services offered her. At the conclusion of the 12-month hearing, on May 21, 2010, the juvenile court followed the Agency's recommendations, terminating Mother's services and setting the matter for a hearing under section 366.26.
On August 17, 2010, this court denied on the merits Mother's petition for extraordinary writ challenging the juvenile court's order terminating her services. (L.B. v. Superior Court (Aug. 17, 2010, A128683 [nonpub. opn.]); see § 366.26, subd. (l).)
Meanwhile, counsel for the minors filed a petition under section 388 to modify the current orders for visitation. It alleged Mother had not visited the children consistently in April and May 2010, had stopped visiting after May 19, and the children had not been transported to the visitation center as of June 21, since Mother had even stopped calling either to confirm or cancel visits. On August 25, 2010, the juvenile court granted the petition and terminated Mother's visitation.
In the report prepared for the section 366.26 hearing, completed at the end of August 2010, the social worker recommended termination of parental rights and the selection of adoption as the permanent plan for K.L., who continued to be placed with her half siblings, A.G. and W.B. The social worker reported that, while Mother and K.L. had previously had a "strong bond," this bond had recently become "strained" because Mother had stopped visiting and no longer made an effort to "continue [ ] working on [her] relationship with [K.L.]." Meanwhile, K.L. expressed "comfort and happiness" in her placement. She reportedly regained her self-esteem, was doing extremely well with her younger half siblings, and was "happily report[ing] to all that she will be with her caretakers until she is eighteen and then she will be going to college."
The section 366.26, originally set for September 8, 2010, was continued several times: to October 6, December 15, and January 26, 2011. Both Mother and Mr. Donnelly—her appointed counsel—were served with notice of the continued hearings on October 6, 2010, and January 26, 2011. The minute order for January 26 indicates, however, that Mother failed to appear on that date, and the juvenile court found her failure "willful." At that time, the court continued the section 366.26 hearing once again, to February 2, 2011. Again, both Mother and Donnelly were given notice of the new hearing date. On February 2, Mother again failed to appear although Donnelly was present on her behalf. The court continued the matter to February 23.
It appears Mother did not appear at any of the hearings in this proceeding held after May 21, 2010.
At the outset of the section 366.26 hearing on February 23, 2011, counsel for the Agency stated for the record that Mother was not present. Further, her counsel Donnelly was also not present, and Franco, Father's counsel, was "appearing for him." Franco appeared for Father as well, who also was not present.
The juvenile court's formal findings and orders, filed on February 25, 2011, state that Franco "specially appear[ed] for J. Donnelly for [Mother]."
The Agency briefly examined the social worker, Andrea Lego. After Lego authenticated the report summarized above, Lego testified K.L. had last seen Mother on May 19, 2010, and had not seen Father in over two years. On cross-examination by the minors' counsel, Lego affirmed the family with whom K.L. was placed was willing to adopt her.
Franco then cross-examined Lego "relative to [Mother]." In response to his questions, Lego testified K.L. had recently had her eighth birthday, and agreed K.L. had lived with Mother before her detention in November 2008. Lego also agreed Mother had visited K.L. on a regular basis prior to May 19, 2010, and stated the visits she herself had observed had been "adequate." She further agreed Mother and K.L. appeared to have a "loving relationship."
When Franco questioned the social worker about her contacts with Mother, Lego said the Agency had several different addresses for her. She admitted that one of the notices of the section 366.26 hearing sent to Mother at one address had been returned as undeliverable. But Lego also testified that she had attempted to contact Mother by telephone prior to the hearing, calling her three times each week since December 2010. Each time she left a message for Mother to call back or come into the office to meet, but Lego never received any response.
During closing argument, Franco argued only that Mother "had a relationship with the child for most of the child's life, and that relationship now [would] be severed if the court approve[d] the recommendation" to terminate parental rights.
The juvenile court, however, followed the Agency's recommendation. The court found, by clear and convincing evidence, it was likely K.L. would be adopted, terminated the parental rights of Mother and Father, and selected adoption as K.L.'s permanent plan.
This appeal followed. (See § 395.)
DISCUSSION
A. Mother's Representation at the Section 366.26 Hearing
1. Introduction
In a dependency proceeding involving a minor who has been placed in out-of-home care, or as to whom out-of-home care is recommended, the juvenile court is required by statute to appoint counsel for an indigent parent in the absence of a knowing and intelligent waiver. (§ 317, subd. (b).) Any appointed counsel must continue to represent the parent at the detention hearing and all subsequent hearings—including termination proceedings—unless relieved by the court on substitution of counsel or for cause. (§ 317, subd. (d).) This right to appointed counsel encompasses a statutory right to competent counsel. (§§ 317, subd. (a), 317.5.)
When the dependency proceeding may result in the termination of parental rights, an indigent parent may also have a constitutional due process right to appointed, competent counsel. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659.) Whether due process requires the appointment of counsel in any given case depends on the weighing of private and governmental interests and the risk of an erroneous decision. (Ibid.) This weighing process is one to be made in the first instance by the juvenile court, subject to appellate review. (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 31-32.)
As summarized above, the juvenile court appointed James Donnelly to represent Mother on November 26, 2008, one day after the Agency filed its initial petition under section 300. This appointment appears to have been made in accordance with Mother's statutory right to counsel under sections 317 and 317.5.
Although the termination of parental rights was at issue at the section 366.26 hearing, it does not appear the court explicitly made, or was ever called upon to make, an initial determination whether Mother, under those circumstances, had a constitutional due process right to appointed counsel in addition to her statutory right. We assume for the sake of argument she did.
Afterwards, Donnelly represented Mother for a period of twenty-six months, and nothing indicates his representation was anything less than competent during this time. However, on the date of the continued section 366.26 hearing—February 23, 2011—Donnelly failed to appear and so did mother, who had notice of the hearing. The record does not explain why: counsel for the Agency stated simply that Dominick Franco—Father's appointed counsel—was appearing specially for Donnelly on behalf of Mother, while continuing to represent Father. (See fn. 3, ante.)
2. Special Appearance of Father's Counsel for Mother
Mother claims it was error for Father's appointed counsel, Dominick Franco, to appear specially for Mother's counsel, James Donnelly, on Mother's behalf. She urges Franco failed to follow the proper procedures under Code of Civil Procedure sections 284 and 285 to effect the change in representation. She further contends that he violated the Professional Rules of Conduct by failing first to obtain her informed consent prior to his special appearance on her behalf. Because of an actual conflict in Father's and Mother's interests in the proceeding, such consent was necessary before Franco could undertake to represent both of them simultaneously. (Rules Prof. Conduct, rule 3-310(C)(2).)
According to Mother, the actual conflict arising from Franco's dual representation of Father and her prevented Franco from acting zealously, effectively, or competently on her behalf. Franco was unable to focus solely on her interests—particularly her interest in establishing the "beneficial relationship" exception that would have allowed the juvenile court to find a compelling reason not to terminate her parental rights. (See § 366.26, subd. (c)(1)(B)(i).)
Mother additionally claims Franco was unable to make appropriate objections to the Agency's evidence.
In effect, Mother contends the juvenile court violated her statutory and constitutional due process rights to competent, appointed counsel, when it permitted Franco to appear specially for Donnelly on Mother's behalf at the section 366.26 hearing.
There is no indication Donnelly had sought to be relieved as counsel of record. (See § 317, subd. (d).) The juvenile court's order expressly stated Franco was "specially appearing for J. Donnelly for [Mother]." In this situation, the requirements for substitution of counsel under Code of Civil Procedure sections 284 and 285 did not apply. (See Wells Fargo & Co. v. City etc. of S.F. (1944) 25 Cal.2d 37, 43.)
These sections provide counsel may be "changed," or substituted, on the filed written consent of both attorney and client or on court order on the application of either after notice to the other. (Code Civ. Proc., § 284.) Written notice of the "change" must be given to the adverse party. (Code Civ. Proc., § 285.)
Nor are we persuaded Father's and Mother's interests were in actual conflict. Mother's argument on this point relies on conflicts of interest present during earlier stages of the proceeding, regarding issues such as Mother's reunification efforts and visitation, and K.L.'s placement. By the time of the section 366.26 hearing, however, Father had waived reunification services and had not seen K.L. in over two years. Mother's reunification efforts had failed, her visitation with K.L. had already been terminated, and K.L. had been placed with a caregiver willing to adopt her. The principal issues to be determined were limited, viz., whether K.L. was adoptable and, if so, whether there was any compelling reason not to terminate parental rights and forego selection of the preferred plan of adoption. (See § 366.26, subd. (c)(1).)
When jointly represented clients share a common goal in the course of their simultaneous representation, their interests are not currently in actual conflict. (See, e.g., Moxley v. Robertson (1959) 169 Cal.App.2d 72, 75 [representation of both seller and buyer of equipment proper when they shared goal wresting possession from defendant]; Klemm v. Superior Court (1977) 75 Cal.App.3d 893, 899-900 [representation of both divorcing spouses proper in opposing agency effort to impose child support obligation on husband].)
Here, Franco's dual representation was limited to the section 366.26 hearing, at which the issue of adoptability was essentially undisputed. Franco did not raise this issue on behalf of either parent and Mother does not now claim she would have disputed adoptability had she been represented by her appointed counsel at this hearing. The only issue was whether an exception under section 366.26, subdivision (c)(1)(B)(i), existed so as to preclude termination of parental rights notwithstanding adoptability. The only exception possibly applicable was Mother's claim of a "beneficial relationship" between herself and K.L. (§ 366.26, subd. (c)(1)(B)(i).) As we have noted, Franco examined the social worker on this issue and his closing argument focused entirely on this issue. The agency's detailed report was received as evidence. As such, it does not appear Mother and Father had any actual conflict over the issue to be determined at the section 366.26 hearing. Rather, they shared a common goal during the dual representation—to avoid the termination of their parental rights by establishing a "beneficial relationship" between Mother and K.L.
In the context of appointing counsel in a dependency proceeding, our Supreme Court has held multiple siblings should have separate counsel either when there is an actual conflict of interest among them, or there is a "reasonable likelihood an actual conflict will arise." (In re Celine R. (2003) 31 Cal.4th 45, 57-58.) To the extent this principle may apply to the dual representation in this case, the record does not, in our view, disclose a reasonable likelihood that an actual conflict between Father and Mother would arise during the section 366.26 hearing, and no actual conflict between them did, in fact, arise.
Accordingly, we perceive no error in allowing Franco to represent Mother, as well as Father, in the limited context of the section 366.26 hearing. There was no actual conflict of interest nor a reasonable likelihood an actual conflict would arise.
Further, the juvenile court had already continued the section 366.26 hearing on one occasion in January 2011, following Mother's "willful" failure to appear. By then Mother had not appeared since the 12-month permanency hearing eight months earlier. The social worker testified she made many unsuccessful attempts to contact Mother and secure her appearance. At the very least, it appears questionable whether reasonable efforts on Franco's part would have secured Mother's consent to his special appearance, in order to address any potential—as distinguished from an actual—conflict of interest. (See Rules Prof. Conduct, rule 3-310(C)(1).)
Under these circumstances, we do not agree Franco was unable to act zealously or effectively on Mother's behalf, or that he " 'failed to act in a manner . . . of reasonably competent attorneys acting as diligent advocates.' " (In re Kristin H., supra, 46 Cal.App.4th at p. 1662.) Franco's actions during the section 366.26 hearing, in cross-examining the social worker and in closing argument, focused almost exclusively on establishing the existence of a "beneficial relationship" between Mother and K.L., and nothing in the record suggests there was additional evidence or argument favorable to Mother that Franco unreasonably failed to offer the court on Mother's behalf.
In sum, we conclude the juvenile court did not err in allowing Franco to proceed with his special appearance for Donnelly on Mother's behalf during the section 366.26 hearing. Nevertheless, we assume the error for the sake of argument, and address the issue of prejudice. B. Effect of Error in Representation by Counsel
We deem this assumption appropriate in the absence of an adequate record explaining the circumstances surrounding Donnelly's failure to appear, Franco's association with Donnelly permitting the former to appear specially for the latter, and the reasons for Franco's decision to proceed without requesting a further continuance.
1. Introduction
The California Constitution prohibits a court from setting aside a judgment unless the error has resulted in a "miscarriage of justice." (Cal. Const., art. VI, § 13.) This prohibition has been construed to allow a reviewing court to reverse only if it finds it reasonably probable the result would have been more favorable to the appealing party but for the error. (See People v. Watson (1956) 46 Cal.2d 818, 836.) The Supreme Court has held the harmless-error analysis to apply generally to dependency matters, including errors involving the statutory right to counsel. (In re Celine R., supra, 31 Cal.4th at p. 60 [applying Watson analysis to error under section 317 in failing to appoint separate counsel for minor or to relieve conflicted counsel].)
Mother, however, asserts the error in this instance violated her constitutional due process right to counsel. Thus, she urges us to apply federal standards developed for constitutional error.
2. Automatic Reversal
Mother adverts to Arizona v. Fulminante (1991) 499 U.S. 279 for the proposition that a procedural constitutional error is to be categorized as "structural" or "trial" error. "Trial" error—error occurring during the trial that is subject to quantitative assessment in the context of the evidence presented—is subject to the harmless-error analysis of Chapman v. California (1967) 386 U.S. 18—whereas "structural" error—error affecting the framework within which the trial proceeds and defying analysis by " 'harmless-error' standards"—is subject to automatic reversal. (Arizona v. Fulminante, supra, 499 U.S. at pp. 306-310.)
Mother claims the error in this instance was "structural" and therefore requires reversal. In particular, she likens the error to that in United States v. Gonzalez-Lopez (2006) 548 U.S. 140, in which the trial court erroneously disqualified a criminal defendant's counsel of choice. The U.S. Supreme Court held that error to be a violation of the Sixth Amendment right to counsel, and moreover a "structural" error requiring reversal per se. (U.S. v. Gonzalez-Lopez, supra, 548 U.S. at pp. 146-151.)
The Supreme Court recently addressed application of the automatic reversal standard in the context of constitutional error in appointing a guardian ad litem for a parent in a dependency proceeding. (In re James F. (2008) 42 Cal.4th 901, 913-914 (James F.).) The court held such error not to be subject to automatic reversal as "structural" error, but subject rather to harmless-error analysis as "trial" error. (Id. at pp. 914, 918-919.)
In reaching this decision, the court in James F. observed that the U.S. Supreme Court has categorized "very few" constitutional errors as "structural" error rather than "trial" error. In addition, no U.S. Supreme Court decision has applied the "structural" error standard for automatic reversal outside the context of criminal proceedings, and no such decision ever applied that standard to a constitutional error involving a violation of due process. (James F., supra, 42 Cal.4th at p. 917.) A due process violation was the constitutional error at issue in James F. (ibid), as well as the type of constitutional error Mother claims here.
The court in James F. further noted dependency proceedings were not strictly analogous to criminal cases, particularly in that the "ultimate consideration" in dependency proceedings is the welfare of the child, and parents in dependency proceedings are not afforded a number of significant rights and protections extended to criminal defendants, such as the right to jury trial and the burden of proof beyond a reasonable doubt. (James F., supra, 42 Cal.4th at p. 915.) Such differences "provide[d] reason to question whether the structural error doctrine that has been established for certain errors in criminal proceedings should be imported wholesale, or unthinkingly, into the quite different context of dependency cases." (Id. at pp. 915-916, citing In re Celine R., supra, 31 Cal.4th at pp. 58-59, and In re Sade C. (1996) 13 Cal.4th 952, 991, italics added.)
One dependency law expert has noted most courts of appeal considering the issue have—like the Supreme Court in James F.—rejected application of the "structural" error standard of automatic reversal in dependency cases. Those that have applied the standard in dependency cases have done so with "little to no analysis as to whether structural error should apply in dependency cases." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2011) § 2.194[3], pp. 2-561-2-563 (Seiser & Kumli).) The commentator concludes the language in James F., summarized above, expresses the "better view." That is, the "structural" error standard of automatic reversal should not apply in dependency cases involving constitutional error, because it "fails to consider the weight of the facts or the interest of the child who is both a party to and the subject of the proceedings." (Seiser & Kumli, supra, § 2.194[3], pp. 2-561-2-563.)
We note at least two such decisions have since been disapproved or superseded. (See In re C. G. (2005) 129 Cal.App.4th 27, 34, disapproved by James F., supra, 42 Cal.4th at p. 919 fn. 2; Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 554, superseded in part by § 366.05.)
In our view, the error in this proceeding did not affect the "framework" of the entire dependency proceeding. Nor does it defy harmless-error analysis. Rather, as discussed below, it is quite susceptible to a quantitative assessment in the context of the overall evidence. As such, we deem it clearly to be "trial" error rather than "structural" error as articulated by the U.S. Supreme Court. (See, e.g., Arizona v. Fulminante, supra, 499 U.S. at pp. 306-310.)
Moreover, we find the language of James F. persuasive, and decline to extend application of the "structural" error standard to this dependency proceeding on the basis of the constitutional due process error claimed by Mother. To do so would do little to foster the integrity of the dependency scheme, and it would favor Mother, who had ceased coming to any of the scheduled court hearings, at a great expense to K.L., who by the time of the section 366.26 hearing had already been in the dependency system for over two of her eight years.
3. Harmless-Error Analysis
Mother urges, in the alternative, that if the error was not "structural" error, it was nevertheless "trial" error in violation of her constitutional due process rights, and as such subject to the harmless-error analysis of Chapman v. California, supra, 386 U.S. 18. That is, she claims reversal is required unless it was harmless beyond a reasonable doubt in that there is no reasonable possibility it contributed to the verdict. (Id. at p. 24.) In her view, the error is not harmless under this standard, because she was represented by Father's counsel, who had an inherent conflict of interest, and thereby lost the opportunity to establish a "favorable factual record" establishing the "beneficial relationship" exception that would have precluded termination of her parental rights.
We see no merit in this claim. As discussed above, there was no actual conflict of interest between Mother and Father during the section 366.26 hearing when they were both represented by Franco. We reject the notion such conflict was "inherent" under the particular circumstances. Finally, as we have noted, the record gives no indication whatever of the possibility of a more "favorable factual record" that was "lost" to Mother due to Franco's representation. We conclude there is no reasonable possibility the error contributed to the juvenile court order subject to this appeal. (See Chapman v. California, supra, 368 U.S. at p. 24.) C. Ineffective Assistance of Counsel
Mother contends Franco's representation on her behalf during the section 366.26 hearing constituted ineffective assistance of counsel. In particular, she asserts Franco failed to request a continuance to secure either Mother's or Donnelly's appearance; he failed to object to the absence of a home study for the caregivers with whom K.L. was placed, or to request a continuance until its completion; he failed to object to lack of up-to-date information regarding K.L.'s relationship with her caregivers; he failed to object to personal information regarding the caregivers and their other children; failed to object to the "incomplete and insufficient information" about Mother's relationship with K.L.; and he failed to request a bonding study to establish the "beneficial relationship" between Mother and K.L.
To show ineffective assistance of counsel, Mother must show Franco " 'failed to act in a manner . . . of reasonably competent attorneys acting as diligent advocates.' " (In re Kristin H., supra, 46 Cal.App.4th at p. 1662.) Our scrutiny of his performance must be highly deferential, and there is a strong presumption he acted effectively. (Strickland v. Washington (1984) 466 U.S. 668, 689, 690.) We have previously rejected the argument that Franco was incompetent in his representation of Mother at the section 366.26 hearing—at least with respect to his efforts to establish for Mother the existence of a "beneficial relationship" between her and K.L. There is simply no suggestion his failure to do more was an unreasonable tactical decision or an unreasonable failure to investigate.
In any event, Mother must additionally show prejudice—that is, a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington, supra, 466 U.S. at p. 694.) Of the purported unprofessional errors summarized above, none, in our view, raise any reasonable probability that the result would have been different had these errors not occurred. Mother had not made an appearance in many months, had not visited K.L. since May 2010, and had not been in contact with the social worker. Nothing in the record suggests her presence at the hearing would have made an appreciable difference, or that the Agency's information about her prior to May 2010 was incomplete or insufficient. There is no indication Donnelly could have offered additional evidence favorable to Mother's claim of a "beneficial relationship" if the matter were continued until his appearance. Information about the caregivers, their home, and their relationship with K.L. was not relevant to Mother's effort to establish a "beneficial relationship" exception. Nor was such information crucial to the issue of K.L.'s adoptability. (See, e.g., In re Brandon T. (2008) 164 Cal.App.4th 1400, 1410.) The record, in any event, contained much of this information through the agency reports.
As for a bonding study, it does not appear Donnelly made any prior request for one, for example, when the juvenile court first scheduled the section 366.26 hearing. By the time of the section 366.26 hearing, the court had already continued the hearing over a period of several months. To suppose the court would have granted Franco's request for a bonding study, continuing the matter yet again for the lengthy period necessary for its completion, and to suppose, in addition, the results would have a significant impact on the existence of a "beneficial relationship" between Mother and K.L., is to confound the concept of "reasonable probability."
Even if we assume the omissions recited by Mother were unprofessional errors, we conclude these errors were not prejudicial. D. The "Beneficial Relationship" Exception
When, as here, the juvenile court finds it is likely the child will be adopted, it must generally order termination of parental rights and a plan of adoption. Among the factors deemed sufficient to terminate parental rights under this general rule is a determination, as in this case, that the court "has continued to remove the child from the custody of the parent . . . and has terminated reunification services." (§ 366.26, subd. (c)(1).) Termination of parental rights is nevertheless not authorized if the court "finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) [t]he 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).)
Mother suggests the juvenile court erred in failing to find this "beneficial relationship" exception to apply in her case, arguing there was sufficient evidence for the court to have made such a finding. This evidence, Mother urges, showed K.L. had developed a "strong bond" with Mother, having lived with her from the time of her birth until she was detained at the age of five years and nine months. It also showed Mother had maintained this strong bond through regular visitation and contact for the period after detention between November 2008 and May 2010. Mother asserts this long standing "substantial, positive emotional" relationship was beneficial to K.L., and the court erred in failing to consider the great harm to K.L. that might result from severing that relationship.
Here, the juvenile court declined to apply the "beneficial relationship" exception that Mother argued was applicable. In reviewing such a determination, most appellate courts have applied the substantial evidence standard of review. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575-577; see also In re Amber M. (2002) 103 Cal.App.4th 681, 689; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207.)
Division Three of this court, on the other hand, has held the abuse of discretion standard to be more appropriate, although it noted "[t]he practical differences between the two standards of review are not significant." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Nor would there be an abuse of discretion under the record set forth in detail above.
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In other words, we do not consider whether the evidence might have supported a finding in Mother's favor, but whether substantial evidence supports the implied finding the court did make—in effect, that K.L. would not benefit from continuing the parent-child relationship with Mother. In doing so, we consider the evidence in the light most favorable to the implied finding, drawing all reasonable inferences and resolving all conflicts in its favor. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
As summarized above, the Agency report admitted at the hearing stated Mother and K.L. had previously had a "strong bond," but it had become "strained" after Mother stopped visiting and making efforts to maintain the bond. K.L., now eight years old, was happy and comfortable with her current caregivers—with whom her half siblings were also placed—to an extent she was "happily report[ing] to all that she [would] be with her caretakers until she is eighteen and then she will be going to college." The social worker testified Mother had last visited K.L. in May 2010, and that the caregivers were willing to adopt K.L.
This evidence, viewed in the light most favorable to the juvenile court's ruling, indicates the "strong bond" between Mother and K.L. had been notably undermined—at least on K.L.'s part—by Mother's failure to maintain regular contact and visitation after May 19, 2010. Whereas K.L. was happily anticipating a permanent continuation of her current placement with her half siblings, there was no evidence to indicate she would be "greatly harmed" by the severance of her relationship with Mother so as to overcome the dependency scheme's preference for adoption. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) We conclude the juvenile court's rejection of the "beneficial relationship" exception is supported by substantial evidence.
DISPOSITION
The order is affirmed.
Marchiano, P.J.
We concur:
Margulies, J.
Banke, J.