In re L.G.

Filed 10/9/07 In re L.G. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge.

Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Magnolia G. appeals from a March 2007 superior court order terminating her parental rights (Welf. & Inst. Code,  366.26) to three of her five children.^[1] On the figurative eve of the section 366.26 hearing, which the court had twice continued, appellant retained counsel to substitute in place of her court-appointed attorney. In this appeal, she criticizes the court for its handling of continuance motions brought by her new counsel. She also contends he was ineffective. According to appellant, retained counsel should have pursued an order returning the childrens custody to her. In addition, she claims, he should have argued termination was detrimental based on sibling relationship ( 366.26, subd. (c)(1)(E)). On review, we disagree and will affirm.

PROCEDURAL AND FACTUAL HISTORY

In December 2004, the Fresno County Superior Court adjudged appellants five children, who ranged in age from less than two to nine years old, juvenile dependents and formally removed them from her custody. The court previously determined the children came within its jurisdiction because they were at substantial risk of suffering serious physical harm due to appellants history of physically abusing her two oldest children ( 300, subd. (a)) as well as her methamphetamine and marijuana abuse ( 300, subd. (b)).

Reunification Efforts

Despite approximately 22 months of reunification services, appellant failed to reunify with any of her children. At best, she made moderate progress in ameliorating the problems contributing to her childrens removal. She completed court-ordered programs, except for her substance abuse aftercare, and appeared genuine in her desire to reunify. Yet, it was unclear whether she gained knowledge or insight from her participation. She appeared either unable or unwilling to apply the information taught. In addition, she regularly visited her children on a supervised basis. Nonetheless, service providers found her resistant to their input and feedback regarding how to provide a structured home environment and their assistance in developing parenting skills and strategies to meet the special needs of her children.

All of appellants children displayed significant emotional and behavioral problems and had experienced multiple placement changes. Each required individualized mental health services. Appellants two oldest children, ten year old I. and eight year old B., qualified for wrap-around services, independent of reunification efforts.^[2] Appellant expressly denied any responsibility for her childrens behaviors. She stated it was not her fault because the children had been fine in her care.

There was conflicting evidence regarding the state of the childrens relationship with appellant. On the one hand, there was evidence each child appeared comfortable in her presence and was bonded with her. There was also evidence, however, that the children were visibly anxious and upset before and after visits with her. They would also become physically ill with stomach aches and/or vomiting. Even appellant, through her court-appointed trial counsel, acknowledged the childrens resistance to visiting her. She blamed the situation on a lack of counseling for the children.

Consequently, respondent Fresno County Department of Children and Family Services (the department) recommended the court terminate reunification services for appellant and pursue permanency planning for the children. Because it was unlikely the two oldest children would be adopted, the department recommended the court select a permanent plan of long-term foster care for each of them. As to appellants three younger children, the department recommended the court set a section 366.26 hearing to select and implement a permanent plan for each of them.

June 2006 Setting Order

Following a contested hearing in June 2006, the court found that, despite appellants moderate progress toward alleviating the causes for the childrens out-of-home placement, return of the children to her care would create a substantial risk of detriment to their welfare. The court thereafter terminated reunification services for appellant, selected long-term foster care for her two oldest children, and set a permanency planning hearing ( 366.26) for the three younger children to occur in October 2006. Relevant to this appeal, appellant did not request a bonding study to assess her relationship with the three younger children.

A month later, the department served written notice on appellant and her court-appointed attorney of the October hearing date, as well as its recommendation that the court free the three children for adoption. Despite this notice, appellant did not seek a parent/child bonding study.

Appellants Modification Petitions

Appellant focused her efforts , instead, on seeking a relative placement for the three children. In late July 2006, she petitioned the court to authorize the department to place them with their maternal great aunt. The court initially granted appellants request, only to retract its order within a matter of days. Unbeknownst to the court were the concerns of the therapists for appellants daughters, six-year-old L. and three-year-old D. The therapists were of the opinion that a change in placement would be harmful to their respective clients. Notably, the two girls and their five-year-old brother J. were placed together and doing well with their foster family.

The childrens attorney brought this information to the courts attention and, at a September 14, 2006 hearing, requested a bonding study, citing section 366.26, subdivision (k), to assess the relationship between the three younger children and their foster family as well as an order appointing counsel for the foster parents.^[3] At the September hearing, the court ordered that the children should not be moved pending further court order and granted the requests of the childrens counsel.

Later during the same hearing, county counsel on behalf of the department requested a bonding study of appellant and the children. The childrens attorney objected on grounds that the request was untimely. He argued the department should have made its request when the court terminated services in June and pointed out it was currently 45 days or so until the scheduled permanency planning hearing. The court denied the departments request and continued for a contested hearing appellants petition regarding relative placement.

In early October as the permanency planning hearing approached, appellant submitted a second modification petition. In it, she alleged she had completed her substance abuse program and visits were going well, such that she was ready for increased visitation and a return to reunification services.

First Permanency Planning Hearing Date

On the October 2006 date set for the permanency planning hearing as well as for the hearing on appellants two modification petitions, none of the parties was ready to proceed. As a result, the court continued the hearing on the petitions brought by appellant to late November 2006 and the permanency planning hearing to late January 2007.

November 2006 Proceedings

On the eve of the November 2006 hearing date, the department filed its own modification petition to reduce appellants visitation with her three younger children to once-a-month with the proviso that she appear one hour in advance. According to the department, appellant recently no showed for three visits and the childrens therapists reported each child was suffering either because of appellants nonappearance or because of the visits in general. The department also filed with the court a report opposing appellants petitions as well as the bonding study conducted between the three children and their foster parents. The bonding study recommended that the court not change the childrens placement.

At the November hearing, the court granted appellants request for a contested hearing on her modification petitions as well as the departments petition and continued that hearing to early January 2007. Based on the therapists letters attached to the departments petition, the court made an interim order reducing supervised visits between the young children and appellant to once-a-month and requiring her to appear in advance of each visit.

Appellant, through her court-appointed attorney, then orally requested a bonding study to assess the relationship between herself and her younger children. Both the childrens attorney and county counsel opposed the request as untimely and unwarranted given the evidence before the court. The court expressly found these arguments persuasive and denied appellants request.

In December 2006, the deputy district attorney, who to this point represented all five of appellants children, declared a conflict. The court in turn appointed separate counsel to represent appellant older sons, I. and B.

January 2007 Ruling on Modification Petitions

Following a January 16, 2007, evidentiary hearing, the court denied each of appellants petitions for relative placement and for a return to reunification services. It granted the departments petition, reducing appellants visitation rights.

Second Permanency Planning Hearing Date

A week later, on January 23, 2007, the continued date for the permanency planning hearing, appellant requested a contested trial date. The court granted appellants request and once again continued the permanency planning hearing. It set the trial for February 20, 2007.

February 2007 Proceedings

On February 20th, appellants court-appointed trial counsel appeared in court, along with attorney William Fearnside. Appellant had retained Fearnside a week earlier to represent her. Fearnside asked to substitute in as appellants counsel. The attorney representing the younger children objected to appellant changing attorneys on the date set for trial. Fearnside represented to the court that he could proceed in three days time if he had to, although he would prefer more time to review everything with appellant. Fearnside claimed a continuance would not harm the children and appellant was entitled to an attorney of her choice who was well-prepared. In support of Fearnsides request, appellants court-appointed counsel mentioned no one had received updated discovery as to the most recent visitation. Fearnside added he would be requesting a bonding study as well.

The court voiced a willingness to continue the case for one week to March 2, 2007, and asked Fearnside about his availability. Fearnside replied Yes but added he would like additional time so appellant could try and obtain a bonding study. When the court pointed out Fearnside was either prepared or not to proceed on the 2nd, Fearnside responded he would not be prepared. The court in turn denied the request for substitution. This led Fearnside to interrupt the court and say:

Ill be prepared. Ill be prepared on the 2nd, then, Your Honor. But just for the record I would object to this date. Im substituting. I object to that date.

The court noted the objection and allowed the substitution, observing:

that substitution is allowed only because that will give -- given where we are on this case thats a reasonable amount of time for counsel to be prepared to proceed on March 2nd.

Undaunted, Fearnside continued to press for a bonding study. The court noted it had not heard anything new or different since the last time it considered such a request and denied Fearnsides motion.

March 2007 Proceedings

Prior to the March 2nd hearing date, Fearnside filed written motions for appointment of an expert to perform a bonding study with appellant and the children as well as for continuance. In support of his bonding study motion, he attached a declaration stating his belief services of a bonding expert were essential to his ability to competently represent appellant and pursue her claim of a beneficial relationship with her younger children such that termination would be detrimental. In support of his continuance request, he again referred to his bonding study request. He also claimed he needed additional time to prepare, investigate witnesses, subpoena witnesses, and prepare a new witness list as well as a contested trial brief. He added [t]here really is no prejudice to the children or the Department as they are placed in an alleged safe foster home.

At the start of the March 2nd hearing, the court referenced both of Fearnsides motions and asked if he had anything to add. Fearnside reiterated much of what he claimed in his motions. He added it would be unfair to deny his bonding study request, citing the existence of the bonding study between the children and their foster parents, which he characterized as the departments bonding study.

The court clarified that the purpose of the bonding study completed in the fall was to determine whether it would be detrimental to remove the three children from their foster family and place the children instead with relatives whom they hardly knew. It did not order that bonding study for the purpose of the permanency planning hearing. After hearing further argument from Fearnside, the court denied each of his motions.

Still undeterred, Fearnside continued to argue over the effect of the bonding study that had been done. He objected to the bonding study and claimed in the alternative that he needed to subpoena witnesses in conjunction with it. The court responded that the bonding study was not relevant to the issue of permanency planning.

Eventually, Fearnside called appellants mother as well as appellant in an effort to show there was a beneficial relationship between appellant and the children. Following argument, the court found the children were adoptable and there had not been a showing as required by statute that it would be detrimental to the children to terminate parental rights. The court in turn terminated parental rights.

DISCUSSION

I. Continuances Sought by Attorney Fearnside

Appellant contends the court abused its discretion in handling attorney Fearnsides requests for continuance on February 20 and March 2 and, in so doing, denied her due process. According to appellant, she required a continuance to obtain a bonding study which could support her claim of a beneficial parent/child relationship such that termination would be detrimental to the children ( 366.26, subd. (c)(1)(A)). It would also counter, in her estimation, department evidence that the children had a bond with the foster parents which should not be disturbed. She urges us to reverse the termination order and remand the case for a parent-child bonding study.

Although the court may continue any dependency hearing, continuances shall be granted only upon a showing of good cause and provided the continuance is not contrary to the interest of the minor. ( 352, subd. (a).) Based on our review of the evidence as summarized above, we conclude the court did not abuse its discretion in either instance.

With regard to Fearnsides February 20th continuance request, the court did grant him a 10-day continuance. The simple fact that the attorney wanted more time does not mean the court erred. Fearnside twice told the court he could be prepared. In addition, as the court pointed out, given where we are on this case thats a reasonable amount of time for counsel to be prepared to proceed. The issues left to be tried were very limited, that is, were the children adoptable and could appellant show that termination would be detrimental to the children. ( 366.26, subd. (c).) Further, the permanency planning hearing had to that point been delayed four months. The court properly could determine under those circumstances that a lengthier continuance would be contrary to the childrens interest in permanence and stability (In re Marilyn H. (1993) 5 Cal.4th 295, 309).

As for Fearnsides March 2nd motion for continuance, the court properly denied the motion because counsel failed to establish good cause. ( 352, subd. (a).) To the extent Fearnside claimed he needed more time to prepare, he never detailed either in his pleadings or his answers to the courts inquiries, what he had done so far to prepare for trial. Had he done so, the result might well have been different. In any event, his meager showing in this regard did not constitute good cause.

To the extent Fearnside sought a continuance in order to obtain a bonding study, he again failed to show good cause. First, the law does not require a court to secure a bonding study as a condition precedent to a termination order. Family preservation ceases to be of overriding concern once a dependent child cannot be safely returned to parental custody and the juvenile court terminates reunification services. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1340-1341.) In addition, the court twice before denied requests for a similar bonding study. It cited, in its September and November 2006 rulings, the belated nature of those requests. In its November ruling, it also reasoned the record did not warrant a bonding study between appellant and her younger children. Appellant did not challenge the courts prior rulings (Steven J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812) nor does she even attempt to dispute them on this appeal. Thus, the court was presumptively correct in denying those earlier requests. As a consequence, it was incumbent upon appellant to establish changed circumstances or new evidence to warrant an order for a bonding study, not to mention show a bonding study would serve the childrens best interests. ( 388.) Fearnside did none of this. Appellants recent hire of Fearnside does not, in our view, amount to the requisite changed circumstance or new evidence. Further, as the court in In re Richard C. (1998) 68 Cal.App.4th 1191, 1197observed, the Legislature did not contemplate such last-minute bonding study requests to simply put off permanent placement. Last, to the extent appellant claimed a study focused on her relationship with the children was necessary to counter the bonding study completed in the previous fall, her argument did not amount to a good cause showing for a continuance. Appellant mixes the proverbial apples with oranges. The earlier bonding study focused on the younger childrens relationship with their foster parents and addressed whether it would be detrimental to change their placement to the home of distant relatives. It said nothing about the childrens relationship with appellant. Moreover, the bonding study which appellant unsuccessfully sought was for the purpose of defeating adoption as the recommended permanent plan and maintaining parent/child contact.

Under all of these circumstances, we conclude the court did not abuse its discretion in its handling of attorney Fearnsides continuance motions.

II. Assistance of Counsel

Appellant also finds fault with attorney Fearnsides assistance. She contends he should have sought to reopen reunification services between her and her younger children ( 388) and, if that failed, to raise the sibling relationship exception to adoption as the recommended permanent plan ( 366.26, subd. (c)(1)(E)). She adds that these omissions are not surprising because Fearnside needed more time to prepare for trial. Nevertheless, she complains his lack of advocacy in these respects prejudiced her and affected the outcome of these proceedings. Having reviewed the record, we conclude appellants contentions are meritless. There is no evidence that her newly-retained counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)

The court only recently denied her petition to reopen reunification services when Fearnside became her attorney. Appellant cannot point to any subsequently-developed evidence or changed circumstances in the record which would have supported yet another modification petition ( 388). She argues her rehabilitation was evinced by the courts willingness to allow her to have unsupervised visits with the two older children. However, she overlooks the fact that the court made its visitation order -- which was not as broad as appellant now characterizes it -- on January 16, 2007, the day before it denied her petition to reopen reunification. Thus, we reject appellants claim that Fearnside should have filed a new petition for modification.

Similarly, we are not persuaded that Fearnside should have pursued a claim that termination would substantially interfere with the younger childrens relationship with their two older brothers ( 366.26, subd. (c)(1)(E)). There is simply no evidence in the record to warrant such a defense. Even appellant in her opening brief can only muster an argument that the sibling exception arguably applies. Except for claiming the children had monthly visits, she does not identify any of the kind of evidence required under section 366.26, subdivision (c)(1)(E).^[4] We also note, according to the departments permanency planning report to the court, that the actual sibling visits were sporadic. Finally, we observe that appellants two older sons had their attorney starting in late December 2006 and he did not pursue the issue of a sibling relationship exception.

We conclude under all of these circumstances, there is no merit to appellants ineffectiveness claim.

DISPOSITION

The order terminating parental rights is affirmed.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

* Before Harris, A.P.J., Levy, J., and Cornell, J.

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

^[2] The term wrap-around services refers to community-based intervention services for children, adjudicated as a dependent or a ward and subject to group-home placement, which emphasize the childs and familys strengths and deliver coordinated, highly individualized and unconditional services to address their unique and changing needs. ( 18250-18251.) Appellants eight-year-old son was in a group home. Her eldest son who exhibited sexually and physically acting out behaviors over time required a specialized placement as well.

^[3] Section 366.26, subdivision (k) provides:

Notwithstanding any other provision of law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the child's emotional well-being.

As used in this subdivision, preference means that the application shall be processed and, if satisfactory, the family study shall be completed before the processing of the application of any other person for the adoptive placement of the child.

^[4] Under section 366.26, subdivision (c)(1)(E), a juvenile court must consider the nature and extent of the relationship, including, but not limited to, factors such as 1) whether the child was raised with a sibling in the same home, 2) whether the child shared significant common experiences, or 3) whether the child has existing close and strong bonds with a sibling. If the relationship exhibits some or all of these factors, the juvenile court must then go on to balance any benefit, emotional or otherwise, the child would obtain from ongoing contact with the sibling against the benefit of legal permanence the child would obtain through adoption.