In re L.B.

Filed 4/17/07 In re L.B. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Nevada)

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L.B. (appellant), the mother of L.B. (the minor), appeals from orders of the juvenile court denying appellants petition for modification and terminating her parental rights.^[1] (Welf. & Inst. Code, 366.26, 388, 395; undesignated section references are to the Welfare and Institutions Code.) Appellant makes four contentions of alleged prejudicial error. For the reasons that follow, we affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

On February 9, 2004, Nevada County Human Services Agency (HSA) filed an original juvenile dependency petition pursuant to section 300 on behalf of the then three-year-old minor.^[2] That petition alleged appellant failed to protect the minor adequately by permitting the minor to reside with relatives in a dangerous and unsanitary home, where the minor suffered severe neglect. That petition also alleged appellant had failed to arrange for suitable care for the minor, and the minor was at a substantial risk of suffering serious emotional harm as a result of the conduct of appellant and the minors relatives.

According to the detention report, HSA learned that [appellant] had not provided direct care in approximately two years. [Appellant], who resides out-of-state, made informal arrangements with her mother and grandmother to provide care of the [minor]. [HSA] history indicates that [appellant] has lived with her mother and grandmother with the [minor] in the past, but is now remarried and living with her husband, M.M., and their one year old son, [D.M.], in McGill, Nevada.

The juvenile court sustained the petition as amended, adjudged the minor a dependent child, and ordered appellant to comply with the provisions of a reunification plan.

D.B. and K.B. were placed together in Grass Valley foster care, while L.B. was placed in a Colfax specialized treatment home. L.B. has significant developmental delays, and qualified for special education services. Appellant visited the minor regularly. Appellant was affectionate with the minor but occasionally acted inappropriately toward her.

A November 2004 bonding assessment concluded that only a limited attachment between the minor and appellant existed. That study also found it would not be detrimental to the minor to terminate her relationship with appellant. Thereafter, the minor was diagnosed as severely autistic.

In her testimony at a January 2006 review hearing, appellants therapist suggested that the minor was bonded with appellant. The therapist also believed the minor could be returned safely to appellants care. At the conclusion of the hearing, the juvenile court terminated appellants reunification services as to the minor, but continued services as to D.B. and K.B.

The social workers report prepared for the section 366.26 hearing noted the minor appeared to have developed a strong bond with her foster family, which wanted to adopt her. Appellants visitation schedule with the minor had been reduced to twice monthly. According to a State Department of Social Services adoption assessment, appellant acted appropriately with the minor during those visits.

On June 20, 2006, appellant filed a petition for modification, seeking an additional period of reunification services. According to appellant, such a modification would be in the minors best interests, as the stigma of severe autism is unwarranted and may unfairly affect [the minors] lifes development and deny her contact with her siblings. Appellant attached what she described as new evidence to her petition, evidence appellant alleged showed that, contrary to earlier reports, the minor did not have severe autism. Instead, that evidence, in the form of a psychological assessment, showed the minor was functioning in the mildly to moderately autistic range.

Appellant averred that, if the new evidence pertaining to the minors degree of autism had been known previously, then the juvenile court probably would have entered an order different from the order terminating appellants reunification services. In response to the petition, the court first scheduled the matter for an evidentiary hearing. The court found the minors best interests might be promoted by the requested modification, and also that appellant alleged new evidence or changed circumstances.

However, in a July 17, 2006, order, the juvenile court changed its mind as to the necessity for an evidentiary hearing on appellants petition for modification and denied the petition. The court found that, in the previous decision to terminate appellants reunification services, the degree of autism had not been considered. The court also characterized as she[e]r speculation the proposition that the allegedly new evidence would have compelled a different outcome, and believed it to be irrelevant to the observations of appellant and the minor as reported by various individuals.

At the August 11, 2006, section 366.26 hearing, appellant testified that the minor showed affection toward appellant, the minor interacted well with her siblings, and appellant believed it would be detrimental to the minor to separate the minor permanently from her siblings. Appellant also expressed her opposition to the proposed adoption of the minor. At the conclusion of the hearing, the juvenile court rejected appellants argument that two statutory exceptions to adoption applied and found it likely the minor would be adopted, and terminated appellants parental rights.

DISCUSSION

I

Petition for Modification

Appellant contends the juvenile court abused its discretion in denying her petition for modification without conducting an evidentiary hearing on the petition. According to appellant, she had made the prima facie showing required for entitlement to an evidentiary hearing. Citing new evidence that the minors autism was not as severe as believed previously, appellant argues that she showed it was in the best interests of the minor to be reunited with appellant and the minors siblings.

To establish the right to an evidentiary hearing, a parent must make a prima facie showing of changed circumstances and that modification may promote the best interests of the minor. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672, 673.) A prima facie showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. . . . (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)

The record reflects appellant was offered various services over a lengthy period of time. Despite those services, HSA concluded that appellant had failed to demonstrate sufficient progress in addressing the problems that led to the dependency proceedings, problems that included severe neglect and poor judgment in selection of appropriate caregivers for her children, which led to a disrupted relationship with the minor. On this record, the juvenile court reasonably concluded that appellant was not prepared to provide adequate care for a special needs minor and that the minors return to appellant likely would be detrimental to the minor.

Appellant cites In re Kimberly F. (1997) 56 Cal.App.4th 519, 526-532 (Kimberly F.), in which the appellate court warned against the juvenile court simply comparing the situation of the natural parent with that of a caretaker in determining a section 388 petition. It termed such an approach the simple best interest test. (Id. at p. 529.) Instead, the appellate court found that determining a childs best interests under section 388 required an evaluation of a number of factors, including the seriousness of the reason for the dependency action, the existing bond between parent and child and caretaker and child, and the nature of the changed circumstances. (Id. at pp. 529-532.) The court suggested that it was unlikely a parent who lost custody because of a drug problem could prevail on a section 388 petition, whereas in a dirty house case, which was present in Kimberly F., the chances of success were greater. (Id. at pp. 531, fn. 9, 532.)

In denying appellants section 388 petition, the juvenile court in this case did not discuss the factors analyzed in Kimberly F., supra, 56 Cal.App.4th 519. However, evidence of all of the critical factors contained in Kimberly F., including the basis of the dependency action, the relationship between appellant and the minor, and the nature of the alleged changed circumstances, was considered by the court. The court concluded that, contrary to appellants claim, the petition failed to demonstrate even the prima facie showing required for an evidentiary hearing. There is no error or abuse of discretion in that determination.

This case is similar to In re Elizabeth M. (1997) 52 Cal.App.4th 318. In that case, the juvenile court denied the mothers section 388 petition without an evidentiary hearing on several grounds, including the lack of a showing of changed circumstances or any demonstration that a change would be in the best interests of the minor. (Id. at p. 322.) The Court of Appeal affirmed, noting the absence of any showing by the mother that a change in placement would have promoted the minors best interests. (Id. at pp. 323, 325.)

The juvenile court was required by section 388 to focus on the minors best interests in deciding whether to grant an evidentiary hearing on the petition for modification. Those interests consist of the minors needs for stability and permanence. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Childhood cannot wait for a parent to establish readiness for parenting. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Here, the social worker suggested it was critical for this young minor to achieve stability. Moreover, she was adjusting well in the home of foster parents.

The November 2005 report by clinical psychologist Eugene Roeder acknowledged that appellant had made significant progress. However, that report also noted that it did not appear the minor ever had spent sufficient time with appellant to have developed an attachment with her. In the meantime, the minor was bonding with her foster parents. On this record, it is not surprising the court ruled impliedly that even if appellant proved all of her factual allegations at an evidentiary hearing, appellants showing would be insufficient to justify modifying the courts previous order. (Cf. In re Edward H., supra, 43 Cal.App.4th at pp. 591, 594.)

Appellant claims that, when it scheduled the matter for a hearing, the juvenile court agreed she had made a prima facie case, entitling her to an evidentiary hearing on the petition for modification. However, subsequently the court changed its mind. According to appellant, denying her an evidentiary hearing under those circumstances was a denial of her right to procedural due process.

Appellant did not raise any due process issue in the juvenile court, even though she had the opportunity to do so. Accordingly, she has forfeited the argument on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) In any event, from an examination of its comments at the hearing, it is clear that the juvenile court considered appellants evidence, in the form of her petition and the reports of psychologists. On this record, it is difficult to discern how appellant would have benefited if her counsel had engaged in the examination of any witnesses at an evidentiary hearing.

As the juvenile court found, the extent of the minors autism was not the primary issue. Rather, the issue was appellants ability to parent the minor, a minor who had significant special needs, needs that were known early on in the proceedings. Moreover, it is important to note that appellants modification petition did not seek return of the minor to appellants custody. Instead, it sought only additional unspecified services, without showing how those services would be in the minors best interests.

Under the circumstances of this case, the juvenile court did not act arbitrarily, capriciously, or beyond the bounds of reason in denying appellants request for an evidentiary hearing on her petition. The courts implicit conclusion that the minors need for stability compelled denial of the petition without an evidentiary hearing and served her best interests was reasonable and is supported by the record. (Cf. In re Edward H., supra, 43 Cal.App.4th at p. 594.) In sum, appellant failed to make a prima facie showing as required by section 388, that a modification might promote the best interests of the minor. (Compare In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416 with In re Heather P. (1989) 209 Cal.App.3d 886, 891.) There was no denial of due process, abuse of discretion or other error in the courts decision. (Cf. In re Daijah T., supra, 83 Cal.App.4th at pp. 673-675.)

II

Statutory Exception to Adoption: Relationship to Appellant

Appellant claims the failure by the juvenile court to apply the statutory exception to termination of parental rights based on her relationship to the minor requires reversal of the order terminating her parental rights. According to appellant, the record contains substantial evidence that she satisfied both elements of the exception. Moreover, she argues, the minor will be harmed by a lack of contact with appellant.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . .

The permanent plan preferred by the Legislature is adoption. [Citation.] [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, italics in original.)

One of the circumstances under which termination of parental rights would be detrimental to the minor is: The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(2)(A).) The benefit to the child must promote the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

The parent has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) The juvenile court is not required to find that termination of parental rights will not be detrimental due to specified circumstances. (Id. at p. 1373.) Even frequent and loving contact is not sufficient to establish the benefit exception absent significant, positive, emotional attachment

between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)

In this case, it is true that appellant visited the minor regularly. But the record also reflects the minors attachment to appellant was not a strong one. One report found only a limited relationship existing with very little attachment to appellant. It is true that the juvenile court ordered visits between appellant and the minor to continue even after termination of parental rights. However, that order does not constitute recognition by the juvenile court that the minor would benefit from continued contact with appellant, as appellant suggests. Instead, as HSA opines, it is likely the court merely was acknowledging the willingness of the minors foster parents to permit contact between the minor and appellant after adoption, as it noted in its order.

Section 366.26 requires both a showing of regular contact and a separate showing that the child actually would benefit from continuing the relationship. In re Autumn H., supra, 27 Cal.App.4th 567, interprets the statutory exception to involve a balancing test, and both In re Autumn H. and In re Beatrice M., supra, 29 Cal.App.4th 1411, posit a high level of parental involvement and attachment. Even assuming that those decisions overemphasized the importance of the parental role, the record here does not support appellants suggestion that simply because the minor had lived with appellant and the minors grandmother and because of their history of visits, the minor would benefit from continuing her relationship with appellant. (Cf. In re Amanda D. (1997) 55 Cal.App.4th 813, 821-822.)

Here, the issue was: In light of the minors adoptability, would a continued relationship with appellant benefit the minor to such a degree that it would outweigh the benefits the minor would gain in a permanent adoptive home? Substantial evidence in the record supports the juvenile courts answer that it would not. On the record before it, the juvenile court could conclude, as it did, that only adoption, which is the preferred disposition (In re Ronell A., supra, 44 Cal.App.4th at p. 1368), would promote the best interests of the minor.

After it became apparent that appellant would not reunify with the minor, the juvenile court had to find an exceptional situation existed to forego adoption. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) In this case, the court determined that the minor would not benefit from continuing her relationship with appellant to such a degree that termination of parental rights would be detrimental. Appellant had the burden to demonstrate the statutory exception applied. Appellant failed to make such a showing. Therefore, the court did not err in terminating parental rights based on its refusal to apply the section 366.26, subdivision (c)(1)(A) exception. (In re Amanda D., supra, 55 Cal.App.4th at pp. 821-822.)

III

Statutory Exception to Adoption: Relationship with Siblings

Appellant also claims the juvenile court committed reversible error in failing to apply the sibling relationship exception to adoption to the proceedings. According to appellant, the record contains evidence that the minor and her siblings had a significant bond with each other, as seen by their past joint residence and visits over the years. Noting evidence of enjoyment by the minor of the visits with her siblings, and her statement that she missed her siblings, appellant claims the minors sibling relationships were of great importance to the minor. Appellant also asserts the benefits obtained by the minor from maintenance of those relationships outweigh the benefits of adoption to the minor.

The claim by appellant is premised on the statutory exception to adoption contained in section 366.26, subdivision (c)(1)(E). Under that provision, the juvenile court may find a compelling reason for determining that termination of parental rights would be detrimental to the minor where [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.

Pursuant to subdivision (c)(1)(E) of section 366.26, the juvenile court is given the discretion to determine that termination of parental rights would be detrimental under certain circumstances. To make such a determination, the court must find a compelling reason. Moreover, the statute contains a number of criteria that the court may consider. But the court is not required by the statute even to consider the applicability of the statutory exception. (Cf. In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)

In this case, the juvenile court determined that termination of parental rights would not be detrimental to the minor based on the sibling relationships existing in this case. The court ruled that the relationships among the siblings were not so significant as to outweigh the benefits to the minor of adoption. Accordingly, its ruling suggested, there was no compelling reason to apply the subdivision (c)(1)(E) exception.

The record supports the determination by the juvenile court that termination of parental rights would not be detrimental to the minor based on substantial interference with sibling relationships. It is true, as appellant argues, that the record contains some evidence the minor enjoyed the visits with her siblings. However, as the juvenile court noted, the record reflects for most of her life the minor had lived apart from her siblings, and she had only a limited attachment to them. On that record, the court found no evidence to support a finding that termination of parental rights would result in a substantial interference with sibling relationships.

On the record before us, we cannot say that the juvenile courts determination was an abuse of its discretion. Under the circumstances presented, although there is no guarantee, it is likely the minor and her siblings will remain in separate placements, as they have been for some time, and continue to have opportunities to visit each other. There was no error in the courts ruling that termination of parental rights was not detrimental to the minor.

The California Supreme Court has held that the juvenile court may reject adoption under the sibling relationship exception only if it determines that adoption would be detrimental to the minor whose welfare is being considered. (In re Celine R. (2003) 31 Cal.4th 45, 49-50.) Here, it is indisputable that some sibling relationship among the minor and her siblings existed. But, before adoption can be rejected, the statute requires something more: the showing of a substantial interference with sibling relationships if adoption is chosen as the permanent plan. ( 366.26, subd. (c)(1)(E).)

The record in this case does not demonstrate substantial interference with significant sibling relationships due to adoption of the minor. Moreover, considering the history of visitation between the minor and her siblings, and the juvenile courts order granting appellant visits with the minor, there is little reason to expect that adoption necessarily will mean no prospect of contact between the minor and her siblings in the future. Finally, the record suggests the minor would benefit greatly from adoption.

In this case, in considering the statutory exception, the record reflects the juvenile court had before it all of the facts and circumstances pertaining to the minors sibling relationships. After evaluating them, the court did not find a compelling reason under subdivision (c)(1)(E) of section 366.26 to apply the exception. The reason is that, as the record suggests and the court found, there would be no substantial interference with sibling relationships. On this record, the court concluded that the minors need for permanency outweighed the benefits a continued relationship with her siblings would afford.

Here, as we have seen, the record suggests the benefits of adoption for the minor far outweigh the benefits of continuing sibling relationships. (In re L. Y. L. (2002) 101 Cal.App.4th 947, 951-953.) Considering all pertinent factors, the record supports the juvenile courts finding that adoption would not be detrimental to the minor. Accordingly, we reject appellants claim.

IV

Separate Counsel for Minors

Appellant claims the juvenile court committed reversible error at the section 366.26 hearing when it failed to appoint separate counsel for the minor and her siblings, even after their conflicting interests became apparent. According to appellant, it was likely that, if the minor was adopted and her siblings were returned to appellant, the minors would be separated permanently. Therefore, appellant argues, an actual conflict of interest existed pertaining to the sibling relationship exception. Appellant asserts that it is unknown what separate counsel for the minor and her siblings would have argued with respect to that exception. Appellant also contends that counsel for the minor erroneously failed to assert claims on behalf of the minors siblings.^[3]

The initial rejoinder to the claims made by appellant is that she never asked the juvenile court to appoint separate counsel for the minors. Accordingly, appellant has forfeited the issue on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) However, anticipating the possibility of a claim of ineffective assistance of trial counsel, we will consider the matter on the merits. Moreover, in reviewing appellants claims, we presume appellant has established how any alleged conflict of interest pertaining to counsel for the minors has affected her, sufficient to establish standing to make the claims. (In re Frank L. (2000) 81 Cal.App.4th 700, 703.)

The issue of counsel for multiple minors was addressed by the Supreme Court in In re Celine R. (2003) 31 Cal.4th 45. The court held the [juvenile] court may appoint a single attorney to represent all of the siblings 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. After the initial appointment, the court must relieve counsel from the joint representation when, but only when, an actual conflict of interest arises. (Id. at p. 50.) Further, error in not appointing separate counsel for a child or relieving conflicted counsel requires reversal only if it is reasonably probable the outcome would have been different but for the error. (Id. at pp. 59-60.)

We reject the claim on its merits. The reason is that, contrary to appellants assertions, the record shows no actual conflict of interest among the minors existed. Probably due to the young ages of the minors, the record contains little expression of interest by any minor in maintaining sibling relationships. (Cf. Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1428.) We could presume that, regardless of the permanent plans selected, as they got older, all of the children would desire to continue to see each other. That desire, however, is outweighed by the need for the minor, as shown by the record, to receive the benefits of an adoptive placement.

Under these circumstances, it is difficult to discern what separate counsel, had they been appointed, would have done differently than what minors counsel did here. The only issue was whether sibling contact could be maintained after adoption was accomplished. However, the minor was doing well in her prospective adoptive home, and the eventual disposition for her sisters was unknown. Accordingly, no actual conflict is shown. (See Cal. Rules of Court, rule 5.660(c).)

Even were we to find an actual conflict, any error in failing to appoint separate counsel for the minor and her siblings was harmless. Selecting any other permanent plan than adoption for the minor would not have been in the minors best interests. Accordingly, it is not reasonably probable the outcome of the proceedings would have differed had separate counsel for the minor and her siblings been appointed.

DISPOSITION

The orders denying appellants petition for modification and terminating her parental rights are affirmed.

MORRISON , Acting P.J.

We concur:

ROBIE , J.

BUTZ , J.

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^[1] On November 6, 2006, this court granted appellants motion to consolidate the two cases.

^[2] That petition also was filed on behalf of the minors two sisters, D.B. and K.B., who will be discussed later but are not part of this appeal.

^[3] Appellant also has a son, D.M., a half-sibling of the minor. D.M. was living in appellants home. Although much of appellants argument pertains only to the minors sisters, for purposes of considering this claim we presume that all siblings are involved.