In re Derrick E.

Filed 5/28/08 In re Derrick E. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from an order of the Superior Court of Los Angeles County. Jan Levine, Judge. Affirmed.

Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Liana Serobian, Deputy County Counsel, for Plaintiff and Respondent.

Orren & Orren and Tyna Thall Orren for the Minor.

____________________

Appellant Eldon E. (father) appeals from a juvenile order terminating his parental rights to Derrick E. (Derrick). Father contends that the juvenile courts failure to appoint separate counsel for Derrick and his half-brother, J.L.,[1]constitutes reversible error.

We find no error; accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Welfare and Institutions Code Section 300[2]Petition and Detention Hearing

J.L. (born Dec. 1992) and Derrick (born Nov. 2006) came to the attention of the Department of Children and Family Services (DCFS) after their mother, M. L. (mother), tested positive for cocaine at Derricks birth and admittedly used drugs during her pregnancy with Derrick. On November 28, 2006, mother and father entered into a voluntary family maintenance (VFM) contract with DCFS, pursuant to which mother agreed to participate in an outpatient drug treatment program and submit to random drug testing.

When mother failed to comply with the terms of the VFM, DCFS filed a petition pursuant to section 300, subdivision (b), on behalf of Derrick and J.L. According to the detention report, mother had a history with DCFS dating back to 2000. Specifically, in 2004, mother gave birth to another child, B.L., at which time both tested positive for cocaine. Mother failed to reunify with B.L., and her parental rights were terminated as to her.

Meanwhile, the detention report noted that father had a lengthy criminal history, spanning from 1986 to 2007, including numerous arrests and convictions for violent crimes and possession of narcotic controlled substances and substance paraphernalia.[3] On January 8, 2007, he was incarcerated for violating the terms of his parole by possessing controlled substances.

The petition noted that DCFS may seek a no family reunification order pursuant to section 361.5.

At the detention hearing on February 13, 2007, the juvenile court appointed one attorney to represent Derrick and J.L. Then, the juvenile court found that prima facie evidence supported the petition and detained the children from mother and father. The matter was continued for a pretrial resolution conference.

Jurisdiction and Disposition Report; Pretrial Conference/Jurisdiction Hearing

DCFSs jurisdiction and disposition report dated March 12, 2007, indicated that both mother and father admitted to using cocaine. Father had been sentenced to two years in prison.

DCFS reported that J.L. and Derrick had been placed together in the home of Tina W. (Tina), a family friend. Tina advised the social worker that she had known J.L. for years and had known Derrick since his birth; they were both welcome additions to her family. She stated that if mother and father failed to reunify with the children, she would be happy to adopt them. J.L. informed the social worker that although he wanted to return to his mother, he enjoyed living with Tina.

Regarding the childrens health, the social worker reported that Derrick had been diagnosed with bronchitis, requiring the administration of a breathing treatment twice a day. J.L. had been diagnosed with cerebral palsy, for which he had undergone two surgeries. Although he walked with a limp, he was able to get around on his own. J.L.s school principal described him as a happy and enthusiastic kid; however, prior to J.L.s detention, he had exhibited defiant behavior at his school and earned poor grades.

Based upon this information, DCFS recommended that the children be declared dependents of the juvenile court, that no family reunification services be provided to the parents, and that the juvenile court set a section 366.26 permanency planning hearing.

At the hearing on March 12, 2007, the same attorney represented both children, without objection. The juvenile court entered into evidence the DCFS reports dated February 13, 2007, and March 12, 2007, and sustained the amended section 300 petition. Mother and father requested a contested disposition hearing, which was set for March 19, 2007.

Disposition Hearing

The juvenile court held a contested disposition hearing on March 19, 2007. Again both children were represented by the same, one attorney, without objection. The childrens attorney advised the juvenile court that J.L. did not want to be adopted, a representation that J.L. confirmed.

The juvenile court declared the children to be dependents, ordered them removed from their parents, and placed them under DCFSs care. The juvenile court denied mother and father family reunification services[4]and set a section 366.26 permanency planning hearing.

Section 366.26 Report and Hearing

In its July 18, 2007, report, DCFS advised the juvenile court that Derrick had been evaluated by the Regional Center in March 2007 and had been accepted into its program. Through the Regional Center, Derrick was receiving weekly in-home therapeutic services for his motor skills development and had made great improvements. J.L. began individual counseling and, since that time, his behavior and school grades had improved. Mother continued to use drugs and visited the children only sporadically. Father had not seen Derrick since his incarceration in January 2007.

Tina expressed a strong desire to adopt both J.L. and Derrick and provide them with a permanent home, where they could grow and thrive. Since their placement in her home in February 2007, she had taken care of all of their needs and attended all medical appointments and therapeutic service appointments. Derrick appeared very bonded to Tina as he always smiled and laughed when he saw her. J.L. also enjoyed living with Tina and got along well with her four biological children. Tinas adoption home study was expected to be completed by July 31, 2007.

The social worker reported that J.L. had told her that he did not want to be adopted; Tina explained that J.L. felt pressured by mother to say this so that the juvenile court would pursue legal guardianship. Thus, on June 29, 2007, the social worker spoke with J.L. over the telephone about the differences between adoption and legal guardianship. She informed him that he was old enough to advise DCFS of his wishes. The social worker also mailed him some reading material, comparing and contrasting the two permanent plans, and intended to follow up with him. On July 12, 2007, J.L. told the social worker that he did not want to be adopted, but that he liked living with Tina, was doing better in school, and wanted Tina to become his legal guardian. Because J.L. indicated that he did not want to be adopted, Tina wished to become his legal guardian.

The July 18, 2007, section 366.26 hearing was continued to September 17, 2007, for a contested hearing. Also at that time, the childrens prior attorney was relieved and a new attorney was appointed to represent them, again without objection by any party.

Continued Section 366.26 Hearing

For the hearing on September 17, 2007, DCFS reported that mother continued to use drugs and sporadically visited the children. Father remained incarcerated. Tina continued to provide the children with a stable and loving home, where they were thriving; she was committed to adopting them. Her home study had been completed and approved on August 13, 2007. DCFS recommended that the juvenile court terminate mother and fathers parental rights to Derrick and free him for adoption; it also recommended that the juvenile court appoint Tina as J.L.s legal guardian.

Mother and father appeared at the contested hearing. J.L. testified that he agreed to Tina being appointed his legal guardian. Mother and her attorney also agreed to the legal guardianship as J.L.s permanent plan. The juvenile court appointed Tina as J.L.s legal guardian and letters of guardianship were signed and certified that day.

The juvenile court then admitted DCFSs reports dated July 18, 2007, and September 17, 2007, into evidence and heard mothers testimony as to Derricks proposed permanent plan of adoption.

Following the presentation of evidence, during his closing argument, father objected to the termination of his parental rights pursuant to former section 366.26, subdivision (c)(1)(E),[5]and argued that there may be a conflict for one attorney to represent both children. The juvenile court was not convinced. It found that former section 366.26, subdivision (c)(1)(E), did not apply because J.L. and Derrick were going to remain together in the same home, and there was no evidence that their relationship was going to be severed. Even if there were such evidence, the juvenile court found no evidence that the severance of that relationship would be detrimental to Derrick. Ultimately, the juvenile court found Derrick adoptable and terminated parental rights.

Fathers timely appeal from the order terminating his parental rights ensued.

DISCUSSION

I. This Court Has Jurisdiction to Consider Fathers Appeal

Before we reach the merits of fathers argument on appeal, we must first address DCFSs contention that we lack jurisdiction to consider the juvenile courts order appointing one attorney for both J.L. and Derrick. According to DCFS, fathers notice of appeal provides that he is only challenging the juvenile courts September 17, 2007, order terminating his parental rights; he did not indicate his intent to object to the juvenile courts July 18, 2007, order appointing one attorney for both J.L. and Derrick. And, in any event, it is too late for him to do so. Thus, this court lacks jurisdiction to consider the juvenile courts July 18, 2007, order. We disagree.

In In re Celine R. (2003) 31 Cal.4th 45, 50, the Supreme Court concluded that one attorney may be appointed to represent all siblings in a dependency case unless, at the time of appointment, an actual conflict of interest exists among them or it appears from circumstances specific to the case that it is reasonably likely an actual conflict will arise. Following the initial appointment, the juvenile court must relieve counsel from the joint representation when, but only when, an actual conflict of interest arises. (Ibid.; see also Rules Prof. Conduct, rule 3-310(C)(2).)

Here, the purported actual conflict did not arise until September 17, 2007, at which time the childrens attorney advocated different permanent plans for the children: legal guardianship for J.L. and adoption for Derrick. Not until that time did the question of whether the sibling exception (former 366.26, subd. (c)(1)(E)) applied become an issue. Thus, liberally construing fathers notice of appeal (Cal. Rules of Court, rule 8.100(a)(2)), we conclude that father may challenge the juvenile courts order appointing one attorney for both children in connection with his appeal from the order terminating his parental rights to Derrick.

II. Father Did Not Waive His Right to Object to the Appointment of One Attorney

DCFS also argues that father waived his right to object to the juvenile courts order appointing only one attorney because he failed to object on July 18, 2007, at the time the juvenile court made that order.

For the same reasons, we are not persuaded by this argument. Because the purported actual conflict did not arise until the time of the section 366.26 hearing, fathers failure to object earlier does not amount to a waiver. (In re Celine R., supra, 31 Cal.4th at p. 50.)

DCFS claims that father did waive this objection because on July 18, 2007, DCFS indicated its intent to recommend different permanent plans for the children. Just because DCFS was recommending two different permanent plans does not mean that the childrens attorney would agree to that recommendation. Rather, not until the section 366.26 hearing did it become clear that the childrens attorney assented to DCFSs recommendation of two permanent plans. Under these circumstances, particularly given the stakes at issue in a dependency case, we refuse to find that father waived his opportunity to challenge the juvenile courts order appointing one attorney for both J.L. and Derrick.

III. The Juvenile Court Did Not Err in Appointing One Attorney

Father argues that the childrens counsel, who was appointed to represent both of them, had an actual conflict of interest at the September 17, 2007, hearing because he advocated two permanent plans: legal guardianship for J.L. and adoption for Derrick. Father contends the juvenile court erred by not appointing separate counsel to represent the children.

As set forth above, the California Supreme Court has held that a single attorney may represent multiple siblings in a dependency matter, as long as there is no actual conflict of interest between the siblings. (In re Celine R., supra, 31 Cal.4th at p. 58.) A conflict arises when the attorney seeks a course of action for one sibling that has adverse consequences to the other sibling. (In re Barbara R. (2006) 137 Cal.App.4th 941, 953; see also In re Zamer G. (2007) 153 Cal.App.4th 1253, 1267 [an actual conflict arises when an attorneys duties of loyalty, confidentiality, and zealous advocacy require the attorney to take or to refrain from taking some action to serve the best interests of one minor client, but the attorney is unable to do so without violating a duty owed by the attorney to another client; or when the attorney is unable independently to evaluate the best interests of each minor client because of the minors conflicting interests].)

Here, father argues that an actual conflict existed because minors counsel advocated adoption for Derrick, yet simultaneously advocated legal guardianship for J.L., who did not wish to be adopted. According to father, [t]he concurrent representation of both J.L. and Derrick by one attorney who agreed to different permanent plans jeopardized the sibling relationship. We cannot agree.

As the juvenile court expressly noted, although the permanent plans were different, the children were going to remain placed together, in Tinas home, and there was no evidence either that the sibling relationship was at risk of being severed or that Derrick would suffer as a result of his adoption.

Father claims that J.L. was not informed of the ramifications the legal guardianship would have on his relationship with his brother. Father puts the proverbial cart before the horse. As previously noted, there is no evidence that the juvenile courts order would have any negative effect on J.L.s relationship with Derrick. After all, they were going to remain placed together, in the same home where they had been placed since February 2007.

And, the evidence in the appellate record indicates that J.L.s decision that Tina become his legal guardian was well-informed. On June 29, 2007, the DCFS social worker spoke with him on the telephone about the differences between adoption and legal guardianship and advised J.L. that he was old enough to inform DCFS of his wishes. The social worker additionally mailed some reading material to him, comparing and contrasting the two permanent plans, and intended to follow up with him. Following his receipt of this information, J.L. told the social worker that he did not want to be adopted, but that he liked living with Tina, was doing better in school, and wanted Tina to become his legal guardian.

Father speculates that if J.L.s medical condition (cerebral palsy) worsens, Tina may become unwilling or unable to care for him, leaving the children with the real possibility that the sibling relationship between J.L. and Derrick could be severed. This argument is pure conjecture. As father concedes, there is no evidence regarding J.L.s future prognosis. The possibility that the relationship could be compromised does not amount to a conflict of interest. (In re Celine R., supra, 31 Cal.4th at p. 58.)

Even if father were correct (Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1430 [The clearest actual conflict of interest among siblings in the dependency system, especially with the adoption of [former] section 366.26, subdivision (c)(1)(E) [the sibling relationship exception], arises when advocacy for one minors best interests is for termination of parental rights and advocacy for anothers best interests is against termination of parental rights]) and there were an actual conflict in this case, any error was harmless. (In re Celine R., supra, 31 Cal.4th at p. 59 [failure to appoint separate counsel for separate siblings is subject to harmless error analysis].)

The Supreme Court has instructed that an appellate court should set aside a judgment due to error in not appointing separate counsel for a child or relieving conflicted counsel only if it finds a reasonable probability the outcome would have been different but for the error. (In re Celine R., supra, 31 Cal.4th at p. 60.) There is no reasonable probability of a different outcome in this case. There is no reason to suppose that Derricks separately appointed counsel would have taken a position any different from that taken by the attorney appointed to represent him and J.L. Rather, the benefit to Derrick of adoption vastly outweighed any apparent risk that his relationship with J.L. would be severed. Derrick was found to be adoptable, and he was going to live with Tina, the only parent and stable figure he had known and the person to whom he turned for comfort and affection. Moreover, as previously mentioned, Derrick and J.L. were going to remain placed together; Tina became J.L.s legal guardian and she consistently expressed her intent to care for both boys. Furthermore, there was no evidence that the termination of parental rights would have a detrimental effect on Derrick, other than fathers speculation that the brothers may one day be separated on the off chance that Tina is no longer willing or able to care for J.L. (In re Celine R., supra, 31 Cal.4th at pp. 4950.) Thus, even if Derrick and J.L. had been represented by separate counsel, there is nothing more that counsel could have done, and no likelihood that counsel could have changed the outcome in this case.

DISPOSITION

The juvenile courts order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

ASHMANN-GERST

We concur:

_______________________________, P. J.

BOREN

_______________________________, J.

DOI TODD

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[1] Father is not J.L.s father.

[2] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[3] Although the original petition did not set forth allegations as to father, DCFS later amended its petition to allege that father had a 21-year history of substance abuse and was a current abuser of illicit drugs, which rendered him incapable of providing regular care for Derrick.

[4] Father was denied family reunification services pursuant to section 361.5, subdivision (e)(1), because his term of incarceration was longer than the legally prescribed limit for family reunification and reasonable services to reunify with him would be detrimental to Derrick.

[5] The sibling relationship exception to termination of parental rights is now found in section 366.26, subdivision (c)(1)(B)(v). Like the parties, we refer to the former statute.