In re Abidail J.
Filed 2/28/07 In re Abidail J. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re ABIGAIL J. et al., Persons Coming Under the Juvenile Court Law. | B191428 (Los Angeles County Super. Ct. No. CK53953) |
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner and Respondent, v. MARIA J., Objector and Appellant, |
APPEAL from orders of the Superior Court of Los Angeles County. Jacqueline Lewis, Juvenile Court Referee. Affirmed.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Objector Appellant.
Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Liana Serobian, Associate County Counsel, for Petitioner Respondent.
______________________________
Mother Maria J. appeals from the dependency court order terminating her parental rights in her daughter Abigail J., contending that a conflict of interest existed between Abigail and her two other sisters over sibling visitation, requiring appointment of separate counsel for their divergent interests. We affirm.
FACTS AND PROCEDURAL HISTORY[1]
In November 2003, the Los Angeles County Department of Children and Family Services (DCFS) detained Maria J.s four children by four different fathers Vanessa N., Rachael B., Robert A., and Abigail J. after learning that the mothers live-in boyfriend had sexually molested the three youngest children.[2] The dependency court eventually found true the allegations of a DCFS petition that the children had been sexually abused by the boyfriend and were at risk of harm from both mother and her boyfriend. (Welf. & Inst. Code, 300.)[3] The four children were initially placed with Rachaels paternal aunt and uncle (aunt). Robert was later placed with his father, and the court eventually terminated its jurisdiction over him. When the aunt reported that Abigail was acting out sexually and otherwise misbehaving, Abigail was removed from the aunts home in June 2004 and placed with foster mother Emma.
At the 12-month review hearing in January 2005, the court found that mother did not consistently or regularly visit the girls, had dropped out of court-ordered counseling, and had not made significant progress in addressing the problems that led to DCFS intervention. The court also found that returning the girls to mother posed a substantial risk of harm to them, and that there was no substantial probability they would be returned to mother in the next six months. As a result, the court terminated reunification services and set the matter for a permanency planning hearing. ( 366.26.)
On October 18, 2005, the court awarded the aunt guardianship of Vanessa and Rachael, and retained jurisdiction over those girls for another six months. On May 17, 2006, the court terminated mothers parental rights to Abigail and freed Abigail for adoption by Emma. Mother does not dispute that at the times those orders were made DCFS had found the placements beneficial and appropriate for the girls and that all three girls were happy in their placements and were in favor of the courts orders. Nor does mother dispute that she failed to comply with the courts orders and posed a substantial risk of harm to her daughters. Instead, mother contends that the girls were improperly represented by the same lawyer when a conflict of interest arose over their ability to continue visiting each other in light of Abigails proposed adoption.[4]
At a May 24, 2005 hearing, the girls were represented by lawyer Nicholas Nagatani. He told the court that he talked to Vanessa and Rachael about what the plan was for Abigail, and theres no conflict at this time; however, they were very concerned about being able to maintain contact with her [sic] sister, and that was not addressed in todays report. I ask that be addressed. In response, the court ordered DCFS to address the issue of post-adoption contact among the girls. On July 26, 2005, Estaire Press substituted in as counsel for all three girls, and remained their lawyer throughout the rest of the case.
At the March 21, 2006 hearing, the court said DCFS was recommending terminating mothers rights to Abigail and that Abigail be adopted. When the court asked if counsel wanted to be heard, Press said: The discussion that was held with the girls was before my time on this case, but both Rachael and Vanessa have expressed sadness at the idea that Abigail is being adopted, and there may be a termination of parental rights. They are both very happy for her, and they want that to happen. In response, mothers lawyer contended that even though DCFS reports showed the three sisters were visiting each other, the last visit was three months earlier. According to mother, there is outright animus between those two caretakers [aunt and Emma] although the subject was not addressed in the DCFS report. Mothers counsel argued that mothers information was important because once her parental rights were terminated and Abigails adoption went through, . . . this animus leads me to believe there will be substantial interference in the sibling relationship. [] Pursuant to [section] 366.26 (c)(1)(E), I think that is a real issue in this case. Its not brought up by the department, but I think there is little to no contact. Its one thing for the kids to say, good for Abigail. Thats nice. Its another thing when what theyre really being threatened with in my opinion is a severance of their visiting relationship and their relationship in its entirety. [] So I think as an issue, that needs to be put in front of the court. I think Ms. Press is in a difficult position because she represents all three children, but its one thing for the kids to say, Well, Abigail should be adopted. Its another thing to say, We may never see her again. The court replied that it was aware of the background in the case, and wanted to know if anyone wished to set the matter for a contested hearing in order to put on additional evidence. Mothers lawyer said he did, and the hearing was continued to May 17, 2006.
At the May 17 hearing, counsel for DCFS presented the court with a report from Abigails social worker stating that Abigail and her sisters visited on April 8 and April 29. Abigail was included in a birthday party for Rachaels cousin. Both families plan to meet again after Abigail finish [sic] school since now Abigail has her Saturdays busy with cheerleader practice. Both foster mothers . . . have informed this CSW that they have not argued/fight [sic]/or have a disagreement. Both foster mothers . . . have informed this CSW that they get along. They enter, sit down and visit each other[sic] homes when dropping off and/or pickup [sic] the girls. Both foster families . . . have informed this CSW that they are committed to have the children, Vanessa, Rachael and Abigail, continue their relationship. Mothers lawyer said she had no evidence to introduce, acknowledged the new report showing that Emma and the aunt got along well, and admitted she could not prove otherwise. Even so, she believed that Emma and the aunt had a poor relationship that would interfere with the sisters relationship, and objected to terminating mothers parental rights under the sibling relationship exception. The court characterized the motion as the last-ditch effort of a parent who had failed to take the necessary steps to prevent termination of parental rights and thereby keep siblings together. The court said it and the parties had worked extensively, trying to keep these siblings seeing each other. That is in place, and the caretakers indicate theyre committed to keep siblings together. Accordingly, the court found that facts to justify the sibling exception did not exist and denied mothers motion.
DISCUSSION
If there is clear and convincing evidence that a dependent child is likely to be adopted, and a previous determination that reunification services should be terminated, there is a presumption favoring adoption as the permanent plan. ( 366.26; In re Zacharia D. (1993) 6 Cal.4th 435, 447.) Guardianship or long term foster care may be selected only if exceptional circumstances exist, as defined in section 366.26, subdivision (c)(1)(A)-(E). (In re Autumn H. (1994) 27 Cal.App.4th 567, 574.) The sibling relationship exception applies if [t]here would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption. ( 366.26, subd. (c)(1)(E).)
A lawyer representing more than one child in a section 300 dependency case may find herself with a conflict of interest if the best interests of one child favor that childs adoption, and the interests of another child in maintaining a sibling relationship favors invocation of the sibling relationship exception to block the proposed adoption. If so, separate counsel for the children is required. (Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1428-1430.) Mother contends that such a conflict arose at least by the time lawyer Nagatani reported to the court Vanessa and Rachaels concern over losing contact with Abigail. According to mother, Nagatanis failure, or that of Press after she substituted in as counsel, to bring in separate counsel for Vanessa and Rachael was ineffective assistance of counsel, as it deprived the two girls of bringing a sibling relationship exception motion on their behalf.
The obligation to appoint new, separate counsel in situations such as this arises only when an actual conflict of interest exists. (In re Celine R. (2003) 31 Cal.4th 45, 58 (Celine R.).) Mothers only evidence that a conflict of interest existed comes from two sources: Nagatanis May 2005 statement that he had talked to Vanessa and Rachael, who were concerned about maintaining contact with Abigail; and Presss March 2006 statement that Rachael and Vanessa expressed sadness about Abigails adoption. However, Abigail made it clear that she wanted Emma to adopt her. Nagatani said that after talking to Vanessa and Rachael there was no conflict, and Press said the two girls were very happy for Abigail and wanted the adoption to go through.
The only potential source of conflict in the record comes from the assertion by mothers lawyer that mother believed Emma and the aunt disliked each other and would not allow visitation between the three girls. This assertion is not evidence, however. All the evidence in the record shows a consistent pattern of visitation which Emma and the aunt intended to encourage even after Emma adopted Abigail. A July 2004 DCFS report made shortly after Abigail was removed from the aunts home and placed with Emma said that Abigail would be visiting her sisters at the aunts home on Fridays through Sundays. DCFS reports from August and December 2004 state that Abigail was having overnight weekend visits at the aunts home every other weekend. A May 2005 DCFS report noted that the twice monthly visits were still occurring, and said Emma agreed to have Abigail continue to see her sisters on a regular basis because Emma knew how much that meant to Abigail. The March 2006 report states that even though Abigail was set to be adopted, she will continue visiting Vanessa and Rachael as she has been doing. A separate report that month said that Emma takes Abigail for day-long visits to the aunts house, and that Abigail talks to her sisters on the phone. The last visit was at Christmas, but that was explained by the May 2006 social workers report that Abigail visited her sisters on April 8 and 29, was busy with cheerleading practice on Saturdays and would visit her sisters again when the school year ended. Emma and the aunt got along well with each other and were committed to continuing the visits.
At no time throughout the proceedings did the three girls interests diverge. All three favored Abigails adoption but wanted to continue visiting each other. The aunt and Emma maintained regular visitation and were committed to doing so after the adoption. Perhaps most illustrative of the good relationship between Emma and the aunt was noted in a July 2005 DCFS report. After a disturbing visit with mother, Abigail returned to Emmas home crying and inconsolably upset. Emma phoned the aunt for advice about how best to calm the girl. Such a phone call was unlikely if the two women had been feuding. Based on the entire record, we conclude no conflict of interest existed, and the trial court had no duty to appoint separate counsel.
Even if we were to assume for arguments sake only that these facts gave rise to a conflict of interest, we cannot reverse unless there is a reasonable probability that a motion based on the sibling relationship exception would have been successful. (Celine R., supra, 31 Cal.4th at pp. 60-61.) In determining whether the exception applies, the dependency court considers the detriment to the child to be adopted, not to that childs siblings. (Id. at p. 55 [siblings of potential adoptive child were placed in long-term foster care].) We could begin and end our analysis by relying on mothers unsuccessful motion based on the sibling relationship exception. Mothers appellate briefs do not address the basis or effect of the dependency courts ruling, and offer neither argument nor analysis to explain how the result might have differed if independent counsel for Rachael and Vanessa had brought the same motion at the same time. We therefore deem the issue waived. We alternatively hold on the merits that there is no reasonable probability of a different result. The record shows that Abigail was closely bonded to Emma and her family, had thrived in their care, and very much wanted the adoption to proceed. The only potential detriment to Abigail might come from a failure to maintain contact with her sisters, but as the evidence discussed above shows, Emma and the aunt had consistently cooperated in facilitating regular visits and intended to do so after the adoption.[5]
DISPOSITION
For the reasons set forth above, the order terminating mothers parental rights in Abigail is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
RUBIN, ACTING P. J.
WE CONCUR:
BOLAND, J.
FLIER, J.
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[1] As with most such cases, the procedural and factual history is both long and detailed. We have therefore narrowly tailored that history to fit the issues raised on appeal.
[2] At the time, Vanessa was 12, Rachael was 10, Robert was 8, and Abigail was 6. We will refer to Maria J. as mother, and to the children by their first names.
[3] All further undesignated section references are to the Welfare and Institutions Code.
[4] Mother contends that termination of her parental rights to Abigail should have been blocked because Abigails adoption would have substantially interfered with the close relationship that existed between Abigail and her two sisters. ( 366.26, subd. (c)(1)(E).) We will refer to this provision as the sibling relationship exception.
[5] On the record, if mother had appealed the denial of her motion under the sibling relationship exception, we would have affirmed.