In re H.B.

Filed 9/29/06 In re H.B. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christopher J. Sheldon, Judge. Affirmed.

Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

Lori A. Fields, under appointment by the Court of Appeal, for Minor.

I. INTRODUCTION

Shane B. (father) appeals from an order of the juvenile court terminating his parental relationship to his daughter H.B. under Welfare and Institutions Code^[1] section 366.26. Father contends the juvenile court erred in (1) denying the request for a bonding study that would have determined the longterm effects that separation from her siblings would have on H.B.; (2) failing to apply the sibling relationship exception to the termination of parental rights despite acknowledging the existence of a close sibling relationship; and (3) failing to find a conflict of interest in representation of H.B. and her siblings, who had different permanent plans but were part of a bonded sibling set. Father further contends there was no evidence to support a finding that minor is likely to be adopted within a reasonable time. Counsel for minor joins the position of the Riverside County Department of Public Social Services urging affirmance of the order. We find no error, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

Father and Mandie B. (mother)^[2] are the parents of five children: R.B. (born in 1998), A.B. (born in 1999), S.B. (born in 2000), H.B. (born in 2002), and D.B. (born in 2003). Only H.B. is a subject of this appeal.

In 2001, R.B., A.B., and S.B. were removed from parents’ custody in a prior dependency proceeding and placed with their maternal grandmother (grandmother). When the parents failed to reunify with the children, the children were placed with grandmother under a plan of legal guardianship. That dependency case was closed in December 2001.

In February 2005, D.B. was living with mother at a motel, and the other four children, including H.B., were with grandmother. H.B. was still in the legal custody of her parent. D.B. was declared a dependent child and removed from parental custody. Reunification services were denied to parents under section 361.5, subdivision (b)(10).

In March 2005, the Riverside County Department of Public Social Services (DPSS) received a report that the four oldest children were going back and forth between mother and grandmother. The DPSS contacted grandmother, who said that the four children were living with her, and she was not aware of the whereabouts of mother or father. The DPSS told grandmother that the children were not permitted to be in parents’ care and advised grandmother to seek immediately legal guardianship of H.B. Over the next several weeks, grandmother gave various excuses for failing to seek guardianship of H.B.

In May 2005, police responded to a report of a physical altercation between mother and grandmother at grandmother’s home. As a result, a section 5150 hold was placed on mother.

That same month, a DPSS social worker met police officers at grandmother’s home. The home was old and in disrepair; the walls and ceiling were filthy and had cobwebs. Grandmother told the police that mother had been living with her for about two months before the altercation, which had resulted from grandmother’s telling mother she needed to get a job. Grandmother said she had not obtained guardianship of H.B. because she was afraid of mother, and mother had become angry every time the subject had been raised and had refused to sign the papers.

The DPSS took the children into protective custody and filed a dependency petition under section 300, subdivisions (b), (g), and (j), on behalf of H.B. The petition alleged she was in need of the protection of the juvenile court because of mother’s mental illness, father’s incarceration on a drug-related conviction, and the denial of reunification services in the pending dependency case involving D.B. At the detention hearing, the juvenile court found that the DPSS had made a prima facie showing and set the matter for a jurisdictional hearing.

The report prepared for the jurisdictional hearing recommended that H.B. be declared a dependent of the juvenile court and that parents be denied reunification services under section 361.5, subdivision (b)(10). The report reiterated that grandmother had been advised to seek legal guardianship of H.B. but had failed to do so. The report also stated that father was incarcerated, and Mother had been staying at the animal shelter where she worked. H.B. was placed in a foster home with her three older sisters.

An addendum report recommended that grandmother be offered reunification services. Each of the three older girls had expressed a desire to return to her. Grandmother had already begun counseling and parenting education classes, but had not yet completed necessary repairs to her home.

At the jurisdictional hearing, father remained in custody. The juvenile court sustained the petition and set the matter for a contested dispositional hearing. The report prepared for the dispositional hearing continued to recommend denial of reunification services to parents. The dispositional hearing with respect to H.B. was scheduled at the same time as the dispositional hearing for the three older sisters. All four girls remained in the same foster home. The report prepared for the oldest girls’ dispositional hearing stated that grandmother had allowed the children to “yo-yo back and forth between the parents and herself.”

At the hearing, the DPSS asked that reunification services be provided to grandmother as to R.B., A.B., and S.B. only, but not as to H.B. Grandmother objected and informed the court she wanted to adopt H.B. and that she did not want to separate the children. The court inquired of the DPSS whether it was not “usually interested in keeping the siblings together.” The social worker stated that grandmother was not H.B.’s legal guardian, and the DPSS was looking for a permanent plan for H.B. H.B.’s attorney told the court that H.B.’s permanent plan could include placement with grandmother, provided she obtained suitable housing and “[met] the qualifications.”

The report prepared for the review hearing stated that H.B. continued in the same foster placement with her sisters. Father was still incarcerated, but was scheduled to be released in February 2006. He was participating in substance abuse services and parenting classes and had expressed a desire to have all the children returned to him on his release. He had not had any visits with H.B.

Grandmother had biweekly visits with all four girls. The visits were positive, and the children cried at the end of each visit and stated they wanted to return home to grandmother. H.B. and her sisters also had visits with D.B., who had been placed with the paternal grandmother.

The DPSS reported that paternal family members wanted to adopt H.B. and D.B. and were in the process of having their home certified for placement. The DPSS indicated that if that placement did not work out, the DPSS would locate a nonrelative prospective adoptive family for H.B.

Grandmother was upset that H.B.’s case was separate from that of the older children, and she stated she was working hard to get all five children back with her. Her current house was too small, and she could not afford a larger one. She had made repeated requests of the DPSS to assist her with housing.

At the review hearing, the DPSS recommended another six months of services for grandmother with respect to R.B., A.B., and S.B., and that she be permitted day, overnight, and weekend visits once she obtained suitable housing. Grandmother’s attorney requested the court to order financial assistance for grandmother to obtain suitable housing. The attorney stated that grandmother was “heartbroken” over the prospect of H.B. being separated from her sisters.

The report prepared for the section 366.26 hearing stated that H.B. and D.B. had been moved to the prospective adoptive home of the C.s.^[3] Visits between H.B. and her sisters and grandmother had been suspended in order for her to “appropriately bond with the potential adoptive parents,” but would resume once H.B. stabilized in her placement. The report acknowledged that grandmother wanted to have H.B. placed with her, but that grandmother had not yet obtained appropriate housing.

A preliminary adoption assessment of the C.s indicated they were nonrelated extended family members who desired to adopt H.B. and D.B. They had begun the process of approval for adoption. They had been live-scanned prior to the placement of the children with them, but the results of their live-scans for the adoption department were not yet known.

The assessment reported that the C.s had the ability to meet the children’s basic needs. However, the C.s had had no experience with raising children or in dealing with abused or neglected children. The report stated that H.B. and D.B. had “experienced disruption and multiple placements,” which might contribute to “social and emotional problems as they grow up.” The C.s did not “have a lot of insight into these dynamics,” and it was recommended that they participate in adoption training. The preliminary adoption assessment also stated that the prospective adoptive parents were “committed to providing the children with a stable, loving home”; they were “very excited to have the children in their care,” and they were “attentive to the children’s needs.”

A service log attached to the report indicated that H.B. was crying and confused when she was placed with the C.s. A month later, she was “still adjusting” to the placement, although she appeared healthy and was “not in distress.”

Grandmother filed a section 388 petition seeking to set aside the order setting a section 366.26 hearing for H.B. Grandmother alleged that H.B. had recently been separated from her sisters and was not allowed visits with them. Grandmother stated that H.B. was bonded to her older sisters, and permanent separation from them would be devastating. Grandmother admitted she had erred in allowing parents to have unauthorized contact with the children. She explained that she had not been provided with guidelines when she was awarded legal guardianship, but she now understood that parents were not to have unauthorized contact with the children. She wanted to change the permanent plan for the older children to adoption, and she also wanted to adopt H.B. and D.B. Grandmother asserted that H.B. was not bonded to her current caretakers, but she was bonded to her sisters and to grandmother. H.B. had been “distraught” when a recent visit with her sisters and grandmother had ended, and she wanted to reunite with her sisters and grandmother. Grandmother attached various declarations attesting to H.B.’s distress at the end of the visit and her desire to be reunited with her sisters.

Grandmother filed a motion requesting the court to order a bonding study between H.B. and her siblings and grandmother, or in the alternative, a psychological evaluation to assess the effect on H.B. of permanent separation from her siblings. Grandmother also requested the court to find that the children’s attorney had a conflict of interest in representing all four children because the three older girls did not want to be separated from H.B., but the attorney was recommending adoption for H.B.

The children’s attorney opposed the request for a bonding study and psychological evaluation on the ground it would result in unnecessary delay. She also asserted the sibling bond would be maintained post adoption, and she indicated she had no conflict of interest because the children were “fortunate to be placed in homes where they will continue to know each other and have continued contact.” The juvenile court found there was no conflict of interest in the children’s attorney representing all five children.

At the hearing, grandmother’s attorney argued that a sibling study or psychological evaluation needed to be performed to assess the longterm effect on H.B. of separating her from her sisters. The children’s attorney argued that if H.B. were removed from the C.s to be reunited with her sisters, it would leave D.B. alone with the C.s, and he could not be removed without showing an abuse of discretion by the DPSS. If the court removed H.B. to be with her sisters, it would be saying she did not need to be with her brother.

Father’s counsel argued that a bonding study was appropriate for the four girls who had lived together most of their lives. D.B., however, had never lived with all of them and was not in the same household.

The social worker stated she had just received a positive home evaluation for grandmother, and the three oldest girls would be returned to her in the next few days.

The juvenile court denied the request for a bonding study. The court acknowledged it was very important that the children maintain close relationships, which meant “frequent and liberal contact between the siblings.” The court encouraged the DPSS to develop a plan under which the three oldest girls could maintain contact with H.B.

The court then proceeded to the section 366.26 phase of the hearing. Father’s attorney informed the court that father had been recently released from incarceration. He was participating in services, and he objected to termination of his parental rights.

The juvenile court found that H.B. was likely to be adopted and that adoption was in her best interest. The court terminated father’s and mother’s parental rights. The court did not make any express finding on the sibling benefit exception to termination of parental rights.

III. DISCUSSION

A. Denial of Request for Bonding Study

Father contends the trial court erred in denying the request for a bonding study or psychological evaluation to determine the longterm effect on H.B. of permanent separation from her older sisters.^[4]

1. Standard of Review

The juvenile court has wide discretion in ruling on a request for a bonding study, and the court’s ruling on the issue is reviewed for abuse of discretion. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1341 (Lorenzo C.).) Under that standard, we determine “whether, under all the evidence viewed in a light most favorable to the juvenile court’s action, the juvenile court could have reasonably refrained from ordering a bonding study.” (Ibid.)

2. Analysis

In Lorenzo C., the court considered the father’s contention that the juvenile court had erred in failing to order a bonding study before terminating his parental rights to his young son. The appellate court found no abuse of discretion in the juvenile court’s failure to do so. The appellate court explained, “There is no requirement in statutory or case law that a court must secure a bonding study as a condition precedent to a termination order.” (Lorenzo C., supra, 54 Cal.App.4th at p. 1339.)

As the court stated in Lorenzo C., “although the preservation of a minor’s family ties is one of the goals of the dependency laws, it is of critical importance only at the point in the proceeding when the court removes a dependent child from parental custody [citation].” (Lorenzo C., supra, 54 Cal.App.4th at pp. 1339-1340.) When the matter has progressed to the setting of a section 366.26 hearing, the focus shifts “to the child’s interest in permanency and stability.” (Lorenzo C., supra, at p. 1340.) Thus, we conclude that the fact a bonding study or psychological evaluation would further delay a permanent plan for the child weighs against ordering such a study.

Here, it was essentially undisputed that H.B. was bonded to her sisters, and the juvenile court acknowledged as much at the section 366.26 hearing. However, the juvenile court properly focused on H.B.’s need for permanency and stability. The report prepared for the jurisdiction hearing stated the importance of permanency for H.B.: “[S]he has been moved from home to home on a rather frequent basis during her short life, and her health and safety needs have been neglected. Therefore, establishing a permanent placement would be in the best interest of [H.B.], in that it would provide her with a safe and stable home for the first time in her life.”

We conclude the juvenile court did not abuse its discretion in refusing to order a bonding study or psychological evaluation.

B. Failure to Apply Sibling Benefit Exception

Father contends the juvenile court erred in failing to apply the sibling benefit exception to termination of parental rights. Father thus argues, in effect, that the juvenile court’s implied finding that the exception did not apply was unsupported by sufficient evidence.

1. Standard of Review

“The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals. If there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court’s order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

2. Analysis

Under section 366.26, the juvenile court must terminate parental rights if it finds the child adoptable unless an exception to termination of parental rights applies. Section 366.26, subdivision (c)(1)(E) provides an exception when the court finds there would be a substantial interference with a child’s sibling relationship. If so, the court must order a permanent plan other than adoption.

To apply this exception, the juvenile court must find both that a significant sibling relationship exists and that the benefits of maintaining that relationship outweigh the benefits to the child from the permanency of adoption. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017 (Jacob S.), superseded on other grounds by statute as stated in In re Ramone R. (2005) 132 Cal.App.4th 1339, 1350.) The statute sets forth factors for the court to consider in determining whether a significant sibling relationship exists, including whether the children were raised together in the same house, whether they shared common experiences, and whether they share strong bonds. (§ 366.26, subd. (c)(1)(E); Jacob S., supra, 104 Cal.App.4th at pp. 1017.) We will assume for purposes of argument that the evidence established the existence of a significant sibling relationship -- before H.B. was moved to the prospective adoptive parents’ home, she had always lived with her sisters, and the evidence showed they were well bonded.

The evidence fails to show, however, that maintaining that sibling relationship would outweigh the benefits to H.B. from the permanency of adoption. As noted above, the report prepared for the jurisdiction hearing stated the importance of permanency for H.B.: “[S]he has been moved from home to home on a rather frequent basis during her short life, and her health and safety needs have been neglected. Therefore, establishing a permanent placement would be in the best interest of [H.B.], in that it would provide her with a safe and stable home for the first time in her life.”

We further note that there is no evidence the relationship among the siblings will cease based on the termination of parental rights. (See Jacob S., supra, 104 Cal.App.4th at p. 1019.) Rather, the C.s expressed a willingness to allow post-termination visitation and to maintain H.B.’s relationship with her older sisters. Moreover, the court stated, “Well, I think it’s very important that these children remain [in] close relationships. I agree that once a month is not enough, should be frequent and liberal contact between the siblings, and the Department should develop a plan that will, once the three others ar[e] with [grandmother], that there is real interaction between the children.” Counsel for the children concurred, and the juvenile court stated it was willing to monitor the case and to conduct a six-month review if the parties wished.

Thus, we conclude substantial evidence supports the trial court’s implied finding that the sibling benefit exception was not established because the evidence supports a finding that H.B.’s need for permanency and stability outweighed the benefits of maintaining the sibling relationship.

C. Failure to Find a Conflict of Interest

Father contends the juvenile court erred in failing to find a conflict of interest when one attorney represented the four sisters and advocated for termination of parental rights as to H.B.

The DPSS contends father lacks standing to raise the issue. (In re Daniel H. (2002) 99 Cal.App.4th 804, 810 (Daniel H.); In re Frank L. (2000) 81 Cal.App.4th 700, 703 (Frank L.).) In Frank L., the court held that a parent lacked standing to raise claims that their children received ineffective assistance of counsel in a dependency proceeding because of a conflict of interest. (Id. at pp. 703-704.) Rather, the court held, parents must show that the conflict of interest affected the parents’ interests, not just those of the minors. (Ibid.) In Daniel H., this court found Frank L. to be persuasive. We held: “A parent must show that counsel’s alleged conflict of interest actually affected the parent’s interests.” (Daniel H., supra, 99 Cal.App.4th at p. 811.)

Here, father has not argued that any interest of his own was affected by the alleged conflict of interest. We therefore hold he lacks standing to raise the issue.

D. Finding of Adoptability

Father claims the juvenile court’s finding that H.B. was adoptable is not supported by sufficient evidence. He contends the finding was made solely on the caretakers’ stated desire to adopt her, but they had not yet been cleared for adoption. He argues, moreover, that the preliminary adoptive assessment does not establish that the C.s had the capability of meeting H.B.’s needs because they had no experience with or insight into parenting, particularly of neglected children, and H.B. and her brother had experience disruption and multiple placements that might contribute to future problems.

A juvenile court must terminate parental rights under section 366.26 if it determines by clear and convincing evidence that the minor will be adopted within a reasonable time (and no exception to termination of parental rights exists). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204.) The trial court’s findings are reviewed under the substantial evidence standard. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.)

The finding of adoptability may be made based on the characteristics of the child, such as age, emotional state, and physical condition. (See In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) In the alternative, a finding of adoptability may be made because a particular family wishes to adopt the child. However, a prospective adoptive family’s desire to adopt is not, by itself, sufficient to support a finding of adoptability. (In re Jerome D., supra, 84 Cal.App.4th at p. 1205.

Here, the adoption assessment states that H.B. was a “young, healthy child[].” She was only four years old at the time of the section 366.26 hearing. The earlier DPSS reports noted she had been reported to have been born full term, without complications, and she had no serious medical history. Her most recent physical examination had shown her to be in good health.. She was developmentally on target, spoke well, liked interaction with adults and with her peers, was of normal height and weight for her age, appeared to be mentally and emotionally stable, behaved well, and ate and slept well. She was doing well in preschool and interacted well with the other children. There had been no reports of mental or emotional concerns. She was a “very friendly child,” and she “tend[ed] to stay out of physical altercations with her sisters.”

We conclude the record overwhelmingly established her adoptability.

IV. DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

RICHLI

J.

KING

J.

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

^[2] Mother is not a party to this appeal.

^[3] The C.s are referred to as paternal cousins, but they are cousins by marriage who have no blood relationship to the children.

^[4] At the section 366.26 hearing, father requested a bonding study. Although the request was belated, we will assume the issue was preserved for appeal.