In re G.C.

Filed 7/27/06 In re G.C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Joe O. Littlejohn, Judge. Affirmed.

Gina C. appeals the juvenile court's orders awarding sole legal and physical custody of her daughter, G.C., to the father, Eric M., granting Gina supervised visitation with G.C. as arranged by both parents, and terminating juvenile court jurisdiction under Welfare and Institutions Code section 362.4.^[1] Gina argues the court abused its discretion when it ordered visitation as arranged by the parents instead of entering a more specific visitation order. Gina also contends the court erred when it did not order sibling visitation for G.C. Gina argues minors' counsel was subject to an actual conflict of interest and, had G.C. been represented by independent counsel, counsel would have advocated and secured an order for sibling visitation. We affirm the orders of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2003 the San Diego County Health and Human Services Agency (Agency) took Gina's four children into protective custody after she repeatedly left them alone for hours and sometimes for days. G.C., then age two, was the youngest child. She had three older brothers: Donovan L., Christian L. and Brandon E. Gina had a history of methamphetamine abuse and poor mental health. Conditions in the home were unsanitary and filthy. The early factual and procedural history of the case is set forth in our unpublished opinion (In re Donovan L. (May 24, 2005, D045608)), and we do not repeat those details here.

The facts pertinent to this appeal are: At the disposition hearing, the court placed G.C., Christian and Brandon together in foster care and ordered reunification services for Gina and Eric.^[2] The court granted Donovan's father and Gina joint legal custody of Donovan, awarded sole physical custody to the father, required Gina's visitation to be supervised, and terminated dependency jurisdiction in Donovan's case. In the ongoing cases, the court ordered Agency to facilitate sibling visitation.

G.C. did well in foster care. She attended Head Start and did not display developmental or behavioral problems. G.C. visited Eric almost every week and returned happy and well-behaved. Eric was cooperative with Agency and involved with his case plan. In contrast, Gina was incarcerated three times during the first review period. She was homeless and her behavior appeared erratic. In February 2005 she tested positive for drug use.

In July 2005 at the six-month review hearing, the court placed G.C. with Eric. The court ordered Agency to facilitate G.C's supervised visitation with Gina, who remained incarcerated on probation violations.

The 12-month review hearing was held in January 2006. The children had new counsel. Agency recommended the court set a permanency plan hearing under section 366.26 for Christian and Brandon (together boys). The boys remained in foster care and told the social worker they wanted to live with their mother. G.C. was doing well in Eric's care. She had not visited Gina because of the distance between Eric's home and the jail, and because Eric did not believe it was in G.C.'s best interests to visit Gina while she was incarcerated. Agency recommended the court place G.C. in Eric's sole legal and physical custody, issue custody and visitation orders under section 362.4 and terminate juvenile court jurisdiction over G.C.

Gina opposed Agency's recommendations and specifically objected to the proposed custody and visitation orders concerning G.C. She loved her children and wanted the opportunity to reunify with them. Gina recently entered a residential substance abuse treatment facility. She believed she "finally turned the corner" and, with continued reunification services, would be able to resume custody of the children.

The court found that Gina did not make substantive progress with her case plan and there was not a substantial probability the children would be returned to her physical custody by the 18-month review date in February 2006. The court set a section 366.26 permanency plan hearing for the boys. The court awarded Eric sole legal and physical custody of G.C., ordered supervised visitation for Gina with G.C. "as arranged by the parents" and terminated juvenile court jurisdiction over G.C.

DISCUSSION

I

Gina argues the court erred when it ordered her supervised visitation with G.C. to be "as arranged by the parents." She contends section 362.1, subdivision (a)(1)(A), which requires the juvenile court to order that parent-child visitation occur "as frequent as possible, consistent with the well-being of the child" during the reunification period, should apply to final custody and visitation orders under section 362.4. Considering Gina's allegation of Eric's untruthfulness and past interference with her visitation, she maintains the court abused its discretion in issuing "an unenforceable order."

Agency contends Gina forfeited the right to appeal the issue of joint parental discretion to arrange visitation because she did not specifically object in the trial court to the portion of the order concerning arrangements for supervised visitation. On review, the record shows that Gina objected to "the custody orders as drafted." The issue is not forfeited on appeal.

When the juvenile court terminates its jurisdiction over a child, the court may issue an order determining the custody of, and visitation with, the child. (§ 362.4.) A custody and visitation order under section 362.4 is commonly referred to as an "exit order." (See In re John W. (1996) 41 Cal.App.4th 961, 970.) We review a juvenile court's exit orders for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) We will not disturb the court's custody orders " ' ". . . unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations.]" ' " (Id. at p. 318, quoting In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)

When fashioning "exit orders" under section 362.4, the court is guided by the child's best interests (In re John W., supra, 41 Cal.App.4th at p. 973; In re Jennifer R. (1993) 14 Cal.App.4th 704, 712) and considers "the totality of the child's circumstances when making decisions regarding the child." (In re Chantal S. (1996) 13 Cal.4th 196, 201.) Gina concedes section 361.2, subdivision (a)(1)(A), by its express terms, sets the standard for parental visitation during dependency proceedings to facilitate family reunification and does not apply to "exit orders." We decline to apply section 361.2, subdivision (a)(1)(A) to exit visitation orders enforceable in family court. (See § 362.4; In re Chantal S., supra, 13 Cal.4th at p. 203.) The court acted within its discretion when it imposed limits on Gina's visitation with G.C.

Gina worries the lack of a specific visitation order will result in little or no visitation with G.C. She argues that Eric impeded her visitation with G.C. while she was incarcerated and would not cooperate with her in good faith to arrange future visitation. This concern is speculative. Eric did not violate the juvenile court's visitation orders during the reunification period.^[3] His belief that G.C.'s best interests were not well-served by a long trip to visit Gina in jail displayed concern for G.C.'s well-being, and does not appear to have been a pretext to deny Gina visitation. If Gina has difficulty securing visitation, she may seek modification and/or enforcement of the juvenile court's visitation order though family court proceedings. (In re Chantal S., supra, 13 Cal.4th at pp. 203, 213; In re Michael B. (1992) 8 Cal.App.4th 1698, 1705.) Considering Gina's unstable circumstances, the distance between the parents' residences, and the parties' work and school schedules, we conclude the court did not abuse its discretion when it left the arrangements for visitation to Gina and Eric.

II

Gina contends the court erred when it did not authorize sibling visitation in its exit orders in G.C.'s case. She argues G.C.'s interests in living with Eric conflicted with the boys' interests in maintaining relationships with G.C. and subjected minors' counsel to an actual conflict of interest, rendering her legal assistance to the children ineffective. Gina suggests that had G.C. been independently and competently represented by counsel, the court would have ordered sibling visitation in its exit orders.

Agency asserts Gina lacks standing to raise issues concerning sibling visitation because she was not legally aggrieved by the children's legal representation and the lack of an express order for sibling visitation. Alternatively, Agency argues Gina forfeited the right to raise issues concerning sibling visitation on appeal by not raising them during the juvenile court proceedings.

Generally, a parent who is an aggrieved party may appeal a judgment in a juvenile dependency matter. (In re Frank L. (2000) 81 Cal.App.4th 700, 703.) To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the court's decision. (In re Carissa G. (1999) 76 Cal.App.4th 731, 734.) A parent cannot raise issues on appeal that do not affect his or her own rights. (In re Frank L., supra, at p. 703.) We liberally construe the issue of standing and resolve doubts in favor of standing to appeal. (Ajida Technologies, Inc. v. Roos Instruments, Inc. (2001) 87 Cal.App.4th 534, 540.)

Although Gina's parental rights to G.C. are not at risk, the absence of an ongoing relationship between G.C. and her dependent siblings adversely impacts Gina's rights with respect to the selection and implementation of the boys' permanency plans under section 366.26, which includes possible termination of parental rights. (In re Asia L. (2003) 107 Cal.App.4th 498, 514 [" 'Because sibling relationships are now a statutory exception to adoption, those relationships directly impact the parent's interest in reunification, an interest that can be kept alive merely by avoiding adoption.' "].) The prospect of termination of parental rights after referral to a section 366.26 hearing is neither imaginary nor speculative. Therefore, we conclude Gina has made "some showing" that her personal rights were affected by the absence of an order regarding sibling visitation resulting from the alleged conflict of interest of minors' counsel. (In re Frank L., supra, 81 Cal.App.4th at p. 703; In re Cliffton B. (2000) 81 Cal.App.4th 415, 427-428, fn. 6; see In re Charles T. (2002) 102 Cal.App.4th 869, 873 [the lack of an independent individual protecting and asserting the minor's interests has an impact on the parent-child relationship at stake in dependency proceedings].)

Although we conclude Gina has standing to raise the sibling visitation issues, we nevertheless conclude Gina forfeited the right to assert error on appeal by not raising the issues of sibling visitation and conflict of interest of minors' counsel in the trial court. Application of the forfeiture rule is not automatic. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Although Gina raises valid concerns about the conflict of interest created by minors' counsel's joint representation of the siblings after Agency recommended disparate permanency plans^[4] and the lack of attention to the siblings' relationships,^[5] we decline to exercise our discretion to review the sibling visitation issues raised in this appeal for the following reasons.

In dependency cases, the child's permanency and stability are of "paramount importance." (In re S.B., supra, 32 Cal.4th at p. 1293.) Here, G.C. has been in Eric's care since July 2005 and was placed in his sole legal and physical custody in January 2006. The record shows G.C. is stable and doing well. G.C.'s interests in permanency are not served by a reversal of the juvenile court's orders resolving her custody status and terminating dependency jurisdiction.

In the six months preceding termination of jurisdiction, Gina raised no concerns about G.C.'s ability to maintain her sibling relationships. G.C. has not joined Gina's brief and does not complain of injury. As long as the juvenile court authorizes sibling visitation for her dependent siblings,^[6] Eric, as G.C.'s sole legal and physical custodian, can facilitate her contact with the boys, taking into account Gina's wishes and G.C.'s best interests. He may also make arrangements with Gina and Donovan's father for G.C.'s visitation with Donovan. (See, e.g., Herbst v. Swan (2002) 102 Cal.App.4th 813, 816-820, citing Troxel v. Granville (2000) 530 U.S. 57, 68-69 [a fit parent has a liberty interest in making decisions concerning his or her child's nonparental visitation].) Although the statutory framework of the dependency system may not preclude the juvenile court from considering sibling visitation when fashioning an exit order (cf. In re Chantal S., supra, 13 Cal.4th at p. 201), the Legislature has not mandated the court make such a consideration after the court has determined there is no detriment to the child's return to parental custody and no need to continue juvenile court jurisdiction. (§§ 361.2, subd. (b)(1), 362.4; see generally Troxel v. Granville, supra, 530 U.S. at pp. 68-69; Herbst v. Swan, supra, 102 Cal.App.4th at pp. 816-820.) Under the circumstances presented here, we cannot conclude that the lack of an order for sibling visitation at the close of the dependency case adversely impacted G.C.'s interests in sibling visitation.

DISPOSITION

The orders of the juvenile court are affirmed.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Real Estate Lawyers.

^[1] All statutory references are to the Welfare and Institutions Code.

^[2] Brandon's alleged father contested paternity and declined involvement with dependency proceedings. The identity of Christian's father was not known.

^[3] The court ordered the social worker, not Eric, to facilitate G.C.'s visitation with Gina.

^[4] "[A]n attorney may not represent multiple clients if an actual conflict of interest between clients exists and may not accept representation of multiple clients if there is a reasonable likelihood an actual conflict of interest between them may arise." (In re Celine R. (2003) 31 Cal.4th 45, 57; Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1431.)

^[5] The record does not show whether Agency facilitated visitation between Donovan and his siblings after the disposition hearing, and between G.C. and her siblings after the six-month review hearing. (See § 16002, subd. (f).) Moreover, the court reports prepared for the disposition hearing and six-month and 12-month review hearings do not contain an assessment of the nature of the sibling relationship, the appropriateness of developing or maintaining the sibling relationship, and the impact of the sibling relationships in the child's placement and planning for legal permanence as required by sections 358.1, 361.2, subdivision (i), 366, subdivision (a)(1)(D), 366.1, 366.21, subdivision (c), 366.22, subdivision (b)(2) and 16002. (See In re Luke M. (2003) 107 Cal.App.4th 1412, 1420-1422.)

^[6] G.C. can petition the juvenile court for visitation with her dependent siblings under section 16002, subdivision (d) and section 388, subdivision (b).