In re Lorenzo G.

Filed 10/30/06 In re Lorenzo G. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Parish G. appeals juvenile court orders denying his Welfare and Institutions Code section 388[1] petition for reunification services, and terminating his parental rights freeing his son Lorenzo G. for adoption under section 366.26.[2] Father challenges the orders on various grounds, none of which warrants reversal. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Parish G. is the presumed father of Lorenzo, and the child’s older siblings, Olivia, and Parish, Jr. Lorenzo also has two older half-siblings, Denise F. and Jessica F.[3]

In May 2004, Lorenzo, then five years old, and his four siblings[4] were detained by the Lake County Department of Social Services (hereinafter the agency) because of their parents’ continued use of drugs and excessive use of corporal punishment to discipline the children, and domestic violence between the parents. Lorenzo and his brother Parish, Jr., were placed with Lorenzo’s current foster family on May 27, 2004. The other siblings were also placed outside the home. At a contested jurisdictional hearing in June 2004, Lorenzo and his siblings were declared dependent children.

Before the dispositional hearing, the agency filed a report detailing the history of the family known to the agency since 1997. The agency social worker reported that before Lorenzo’s birth, mother participated in court order substance abuse treatment from June 1997 to December 1998. She was able to refrain from using drugs during that time period and successfully regained custody of the children. Father was incarcerated during mother’s reunification but he returned home when he was released. Within three years of that reunification, the children were again removed in October 2001; Lorenzo was then not yet three years old. As a result of that removal, mother and father participated in court ordered services for substance abuse from October 2001 to September 2002. The parents successfully abstained from using drugs long enough to regain custody of the children. Within 18 months of that success, mother and father slipped back into a life style of substance abuse and neglect, resulting in this third dependency proceeding. The parents’ current regression included the additional risks of domestic violence and physical abuse of the children. The agency social worker recommended that the parents not be offered reunification services under section 361.5, subdivision (b)(13), because of their inability to resolve their problems for which they had been previously offered services by the agency, and their continued use of drugs and abusive and neglectful behavior that escalated to include domestic violence and physical abuse.

A dispositional hearing was held on August 9, 2004. Father was then in custody on a charge of misdemeanor spousal abuse. The court heard testimony from the agency social workers and father, who had been brought to the courtroom under custody. Father asked for reunification services. The agency and the children’s counsel opposed reunification services for both parents. Lorenzo wanted to go back home, but his counsel felt sending the child home would be a “disaster.” The court found that although father appeared quite sincere, his children could not wait for him to address his substance abuse problem. The court ruled the agency did not have to provide reunification services to either parent. (§ 361.5, subd. (b).) The agency social worker recommended supervised visits with the parents, but that forced visits would be detrimental to the children. The court ordered the recommended supervised visitation, but specifically found it would be detrimental to force the children to visit with their parents. Although section 366.26 hearings to establish permanent plans for the children were initially set for December 13, 2004, the matter was continued for several months for various reasons.

In the interim, the agency filed reports regarding the children’s status. In the October 2004 notice for the section 366.26 hearing, the agency social worker recommended termination of parental rights and a permanent plan of adoption for Lorenzo and Parish, Jr., long-term foster care for Olivia, and legal guardianships for Denise and Jessica. By that time, Lorenzo had been living with his foster parents for over six months, and Parish, Jr., had been moved to his maternal grandmother’s home because of his disruptive behavior in the foster home with Lorenzo.[5] Lorenzo’s foster parents were interested in adopting him, and they had an approved adoption home study on file. Additionally, Lorenzo stated he wanted to be adopted and become part of his foster family.

The adoption assessment social worker, Toni Jones, filed a report dated December 6, 2004, regarding Lorenzo’s permanent placement. Jones reported on Lorenzo’s medical, developmental, scholastic, mental and emotional status since the child’s placement. The child appeared to be developmentally on target for his age, and physically healthy, except that he then needed some dental surgery. He was attending kindergarten, where he was either meeting expected standards or showing growth in reading, writing, math, listening, citizenship, and work habits. The child was also participating in weekly art therapy, where he was working on past issues of abuse and neglect, and current issues of grief, loss and abandonment. The child continued to suffer post-traumatic stress disorder symptoms. But since the child’s brother had been removed from the foster home, the child had become his own person and was finding his own interests. The five year old child was beginning to understand the meaning of adoption. When asked to define adoption, the child replied, “ ‘I get to stay here, I don’t go back.’ “ When asked if he would like to stay with his current foster family, the child replied, “ ‘Yes.’ “ The child referred to his foster parents as “ ‘bama’ “ or “ ‘mom’ “ and “ ‘pop’ “ or “ ‘papa.’ “ When the child was asked to draw a picture of his family, he drew his entire foster family and members of their extended family rather than his birth family. The picture did not include his biological brother, even though he was also residing in the foster home with Lorenzo at the time. According to the foster mother, although Lorenzo was just beginning to grieve the loss of his birth mother, he separated easily from her during visits and never asked to see his parents. Lorenzo also separated easily from his siblings following visits and he did not ask when he would see them again. The child’s maternal grandmother thought the children should be placed with her, asserting that the children were close and should remain together as a family. Because both Lorenzo’s foster parents and the child’s maternal grandmother expressed interest in adopting the child, Jones recommended that the court identify adoption as Lorenzo’s permanent plan and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family within a period not to exceed 180 days.

On January 7, 2005, the agency filed a supplemental report addressing certain visitation issues. The agency social worker requested suspending all visits between Lorenzo and his siblings and parents for three months because the child was on an adoptive track and the worker wanted to assess a permanent placement goal for the child separate from his biological family. At that time, Lorenzo was doing very well in his placement without the sibling rivalry behavior of his brother, the child continued to form a close attachment to his entire foster family, and had sought out his foster mother to meet his need for love and support. Additionally, since November 2004, the child had not requested any contact with his brother or other family members.

At a January 24, 2005, hearing, the children’s counsel asked the court to suspend the parents’ right to visit Lorenzo, as recommended by the agency social worker. The court denied the request for a total suspension of visitation with Lorenzo at that time, but directed that visitation should be supervised so that there was not too much pressure or incorrect communications with the child. Additionally, the court granted a request for a supervised family visit to celebrate the child’s birthday. However, the court was not asked to modify and it did not otherwise change its earlier finding that it would be detrimental to force any of the children to visit with the parents.

On February 17, 2005, father entered an in-house residential drug treatment program, where he stayed until May 17, 2005. During that period, father was not present at court hearings on March 7, March 21, and April 4, 2005, but he was represented by counsel. At the March 21, 2005, hearing, the court indicated it would not force Lorenzo to attend a birthday gathering for his siblings. At an April 25, 2005, hearing, father was present with his counsel. The court received a letter from the chief operating officer of the drug treatment program father was then attending, and a letter from father’s psychotherapist, regarding father’s above average progress in addressing his drug addiction problem.

On July 7, 2005, the agency social worker filed an updated report regarding Lorenzo’s status, recommending that the court terminate parental rights to free the child for adoption. The social worker explained his new recommendation: “Lorenzo resides in a foster family where he is happy and enjoys a stable lifestyle. He has stated to the undersigned, that he has no interest in visiting his siblings. According to the foster mother’s familial connection to Native American history, Lorenzo will enjoy Native American folklore and the impact of Indian history on all Americans in his current placement. If Lorenzo were to be separated from his present self-adopted family, he would incur great emotional distress.”

A contested section 366.26 hearing on Lorenzo’s permanent placement began on July 13, 2005. The court heard testimony from Caroline Knowles, a licensed psychologist, who was hired by Lorenzo’s foster parents to evaluate the child, who had then been living with his foster family for over a year. According to Knowles, although Lorenzo was very dependent on his foster mother, the child did not immediately look for care and comfort from any adult; he was “kind of floating unattached.” The child was in the process of attaching to his foster mother, but it would take a long time for him to become confident enough in a stable care giving relationship to be able to form a deep reciprocal bond. The child said he liked where he was living and he wanted to stay there. In response to a projective test question, the child answered that if he were to get bad news, it would be that he was going to have to move. Knowles inferred the child was talking about moving from his foster home, and not being taken from his parents’ home. Knowles opined it would be detrimental to move the child because he “would see it as a collapse of his world.” The child consistently referred to his foster parents as “dad and mom.” When the child was asked about brothers and sisters, he only mentioned the foster family’s two adopted daughters and adopted son. According to Knowles, stability extending through the child’s maturity was of paramount importance, and the child needed stability and relief from any anxiety that he might have to move from his foster parents’ home. The child’s history indicated disorganization and interruption of relationships, in general “a negative childhood.” Knowles believed adoption would relieve the child’s anxiety that he would some day come home from school and be told that he had to move. Additionally, adoption would allow the child to formulate a future and continue to develop a relationship with the people with whom he now saw as his family. Knowles attempted to elicit from the child if he wanted to see his biological siblings by asking him if there were people he wanted to see, and the child replied, very quickly and very firmly, “I see everyone.” Knowles interpreted the child’s response as meaning that the child did not want to see anyone other than the people that were currently in his life. The child refused to talk about his family prior to his placement in foster care. Based on certain psychological tests, Knowles concluded the child was “inappropriately independent” for a six year old, and he had “difficulty with attachment and bonding.” However, the child was quite dependent on his foster mother; he was constantly looking to her for assurance but he did not let himself attach to her at deeper levels. Knowles did not believe the child had any interest in seeing his relatives, he was not interested in seeing his biological brother, and he mentioned no one other than his foster parents and the siblings in the foster household.

At the continued section 366.26 hearing on July 19, 2005, the court heard testimony from Ken Rehard, the agency social worker, regarding Lorenzo’s placement in his current foster home. The child was very settled in his foster home, calling his foster parents “mom and dad,” and viewing the foster family’s adopted son as his brother. In the three months preceding the hearing, Rehard had at least three discussions with Lorenzo regarding his biological family. Based on those discussions, Rehard did not believe the child wanted to see his biological family. Although the child did not understand adoption, Rehard discussed with him that the overall plan was that he might stay in his current foster home for a very long time, that his foster mother might become his parent, but that he also could possibly have contact with the rest of his family. This plan was okay with the child.

Rehard had supervised the child’s visits with his biological family since June 2004. During one of the visits, the child had interacted more with his siblings when his father was there. But, during other visits, the child had not interacted much with his siblings, he just stayed around his mother or his father. Rehard also noted that when present at a visit, father was very active, while mother usually was not active.

At the end of the July 19 hearing, the court discussed the issue of visitation. The agency’s counsel and social worker informed the court that since January 25, 2005, Lorenzo had not visited with his family because the child did not wish to see his family, but if he had indicated he wanted to see a family member, Rehard would have made the necessary arrangements. Father’s counsel responded that father would like family members to have visits with the child. The agency’s counsel objected to any change in the visitation order that precluded forced visitation. Father’s counsel asked the court to allow a supervised visit with the child’s sisters, and if that visit went well, to allow a supervised visit with the child’s sisters and father. The court agreed, noting: “Here the family clearly is making extra efforts to stick together despite all their problems, and the Court does not find any detriment at this time to providing supervised visitation for the sisters and for the father.” The court continued the matter to September 26, 2006, for a decision on the section 366.26 issues regarding the children.

On August 25, 2006, the agency social worker Ken Rehard filed an updated report indicating that on August 19, Lorenzo visited with his sisters, but father was not available. Rehard noted the visit appeared to go well, but he would assess how well Lorenzo accepted the visit within the next two weeks.

On September 6, 2005, the court decided the section 366.26 issues relating to Lorenzo’s siblings. Without objection by father, the court adopted the agency’s recommendation of long-term foster care as the permanent plans for Jessica, Denise, Olivia and Parish, Jr.[6] Father indicated he intended to file a section 388 petition seeking services to reunify with his three children, Olivia, Parish Jr., and Lorenzo. The court noted that if father filed such a petition, the court would hold a hearing and decide the request for reunification services immediately before the court issued its decision on the section 366.26 permanent plan for Lorenzo. Father’s counsel informed the court that Lorenzo and his siblings had had a successful visit, but the agency had not yet arranged a visit between Lorenzo and his father. The court directed the agency to arrange at least one, if not two, supervised visits with Lorenzo and the child’s siblings and father before September 26, 2005.

On September 8, 2005, father filed a section 388 petition seeking services to reunify with his three children, but he did not seek to change the placements of the children. In his petition, father averred that since the removal of the children, he had completed an anger management, domestic violence, and parenting class. Additionally, he had addressed his drug addiction by completing a residential drug treatment program, and attending individual and group therapy sessions. He was then employed as a paid staff member at the drug treatment program, where he supervised six to 10 drug treatment residents. Father was living in a one bedroom apartment and was able to meet all his financial obligations.

The agency social worker Ken Rehard filed a report on September 13, 2006, responding to father’s section 388 petition for reunification services. Rehard asserted that despite father’s current accomplishments, he needed to clearly prove he had changed his life on a permanent basis and broken the cyclical behavioral track between criminal, dysfunctional behavior and productive, appropriate behavior. Rehard opined that father had to continue the positive changes in his life for at least another year before any of his children could possibly be returned to his custody.

On September 26, 2005, the court heard testimony regarding father’s section 388 request for reunification services. Father testified about his extensive history of drug use. Starting in 1985, in his twenties, father began using methamphetamine, at first only on weekends, but within a couple of years also during the week. This continued for about 10 years until he was jailed for possessing drugs and sentenced to 10 months 20 days in jail. By 1996, he was again using drugs. He stopped using drugs for 16 months when his children were previously detained, but after regaining custody of his children, he again started to use drugs. During the five years that Lorenzo lived with his parents, father was using drugs “pretty regularly.” During those periods when father was either drinking or using drugs, he admittedly was sometimes emotionally unavailable to the child. However, at the same time, father still showed the children love, they had a lot of fun, and he provided for their needs. Because he was not incarcerated after Lorenzo’s birth, father asserted he was able to form a bond with the child that he did not have with his other children. Lorenzo called him “Dad.” Since Lorenzo’s detention in May 2004, father had been incarcerated for misdemeanor spousal abuse for four months.

Father described his current attempt at rehabilitation. Before entering a residential drug treatment program on February 17, 2005, father was severely addicted to drugs. He had not earlier sought treatment because he was “in [his] disease and . . . had no knowledge of how to find a solution for that disease. . . .” The drug treatment program included 90 days of residential treatment, which he completed in May 2005. He had a sponsor and attended a meeting every day for his own recovery. At the time of the hearing, father was on the fourth step of a 12-step program. When he finished the program, he intended to become a sponsor and help other addicts. Father was a paid employee of the drug treatment program. Additionally, he was attending college and taking courses to become a drug counselor. Father had previously been in a drug rehabilitation program that had not worked for him. Although he believed his current drug treatment program would work for him, he recognized he could relapse at any given time if he was not “working” his program.

Father’s employment supervisor confirmed that in July 2005, father worked as a volunteer, and then within a month, at the beginning of August 2005, he was hired as a full-time paid employee, counseling and working with other recovering drug addicts. According to the supervisor, father was making “fantastic” progress, doing a good job at work and attending a one-hour 12-step meeting every day. The manager had not been involved in father’s initial residential treatment program, and there was always the possibility father could relapse.

Father testified regarding his visits and contacts with his three children. Regarding Lorenzo, father asserted he had been available to visit the child, but the agency had stopped the visits. Father claimed he called the agency to try to see Lorenzo. Since the last court hearing, father had one supervised visit, for one hour, which went “extremely well.” The agency social worker, and the child’s foster mother and foster sister and brothers, were also present at the visit. The child gave father a hug, and they played together. It was father’s first visit since the child’s birthday in January 2005.

Rehard testified he had previously worked with the family concerning the parents’ drug abuse and neglect. In October 2001, when the children were detained by the agency, one of the significant factors plaguing the family was the drug abuse of both parents. Father demonstrated some type of recovery. During the children’s current detention, Rehard had seen father a few times during the summer of 2004 before father’s incarceration. Father contacted Rehard a few times since Lorenzo was detained. Rehard did not feel it was good for the child to visit with the father, and the child had not requested visits. Since January 2005, the worker was trying to keep Lorenzo in a family setting that supported all his needs and made him happy. On several occasions, Rehard asked Lorenzo if he wanted contact with his parents and siblings, and the child said no. Rehard had supervised father’s most recent visit with Lorenzo. The child greatly enjoyed the visit. But, when the child was asked if he wanted further contact with his father and his siblings, the child said, no, he was happy where he was.

At the conclusion of the September 26, 2005, hearing, the court granted father’s request for reunification services with Olivia, who was then living with her two older half-sisters and maternal grandmother, and Parish, Jr., who was then living in a group home. The court indicated it would issue its decision regarding Lorenzo’s status at the next hearing scheduled for October 3, 2005.

On October 3, 2005, the court heard testimony from Toni Jones, who had prepared the December 2004 adoption assessment report regarding Lorenzo. Despite the passage of time, Jones believed it was likely Lorenzo would be adopted because the child’s foster parents had always wanted to adopt him, they still wanted to adopt him and they had an approved adoption study on file. At the conclusion of Jones’ testimony, the court rendered its decision on father’s section 388 petition and the section 366.26 issues relating to Lorenzo’s placement. The court denied father’s request for services to reunify with Lorenzo despite father’s “tremendous strides,” and the court’s previous order granting father’s request for services regarding Olivia and Parish, Jr. The court found Lorenzo was likely to be adopted and terminated parental rights. The court scheduled a six-month post permanency review for March 20, 2006. In the interim, the court directed the agency to arrange at least one visit for father in each of the next three months, and later visits were to be arranged at the child’s request.

DISCUSSION

I. Denial of Father’s Section 388 Petition Seeking Reunification Services

Section 388 permits a parent to petition for a modification of any previously made order on the grounds of a change in circumstances. (§ 388, subd. (a).) However, the parent must also demonstrate the proposed change in the order would promote the best interests of the child. (§ 388, subd. (c); Cal. Rules of Court, rule 1432(c); In re Stephanie M. (1994) 7 Cal.4th 295, 317-318 (Stephanie M.).) “After the termination [or denial] of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point, ‘the focus shifts to the needs of the child for permanency and stability’ (In re Marilyn H. [1993] 5 Cal.4th 295, 309) . . . . A court hearing a motion for change . . . at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.” (Stephanie M., supra, 7 Cal.4th at p. 317.) Whether the juvenile court should modify a previously made order rests within its discretion, and the ruling “should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.] . . . ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ [Citation.]” (Id. at pp. 318-319.)

The Legislature has “recognized that, in order to prevent children from spending their lives in the uncertainty of foster care, there must be a limitation on the length of time a child has to wait for a parent to become adequate. [Citations.] To avoid unnecessary delays in the process the Legislature has directed the juvenile court to ‘give substantial weight to a [child’s] need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a [child] of prolonged temporary placements.’ (§ 352, subd. (a).)” (In re Marilyn H., supra, 5 Cal.4th at p. 308.) “ ‘ “There is little that can be as detrimental to a child’s sound development as uncertainty over whether [the child] is to remain in [his or her] current ‘home,’ . . . especially when such uncertainty is prolonged.” ‘ [Citation.]” (In re Jesusa V. (2004) 32 Cal.4th 588, 611, fn. 7.) In cases like this, where substance abuse is a central issue, the juvenile court has the duty “to evaluate the likelihood that [a parent] would be able to maintain a stable, sober and noncriminal lifestyle for the remainder of [the child’s] childhood.” (In re Brian R. (1991) 2 Cal.App.4th 904, 918.)

The evidence showed Lorenzo had spent the first five years of his life with a father who was suffering from a serious drug addiction. The child had been previously removed from his father’s care, and father delayed nine months before seeking treatment during the current dependency proceeding. By the time of the section 388 hearing, father had only been drug free for seven months, and he was on the fourth step of his 12-step program. Father did not offer any time frame within which he would be able to reunify with Lorenzo. The child had already spent sixteen months in his current placement with foster parents who were committed to adopting him. On this record, the court could reasonably determine father had not progressed to the point that reunification services would enable him to parent Lorenzo within the foreseeable future. The court was not required to delay the termination of parental rights and adoption of the child merely to allow father to see the child more often. There is no indication the court did not fully and fairly consider father’s testimony regarding his bond with the child. Nevertheless, given the child’s obvious need for a resolution of his permanent placement, the court could reasonably determine it was not in the child’s best interest to allow reunification services to see if father could do what was required to regain custody of the child.

Additionally, we reject father’s argument that the court should have granted his request for reunification services because the agency refused to comply with court-ordered visitation. At the dispositional hearing on August 9, 2004, the court determined father was not entitled to reunification services under section 361.5, subdivision (b). Section 361.5, subdivision (f) provides, in pertinent part, that when a court does not order reunification services to a parent, “the court may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child.” Here, although the court directed supervised visitation, it also appropriately determined that it would be detrimental to force any of the children, including Lorenzo, to visit father. Although the court later denied a request to suspend family visits with Lorenzo for a three-month period in early 2005, the court was not asked to modify its earlier order precluding forced visits. And, at the March 21, 2005, hearing, the court confirmed the child would not be forced to visit with family members. Although father later raised the issue of visitation at a hearing held in July 19, 2005, he did not complain or otherwise argue at that time the agency had previously denied him visits in violation of the court’s orders. At a September 6, 2005, hearing, when father told the court that the agency had not yet arranged a supervised visit that was ordered on July 19, 2005, the court directed the agency to provide either one or two supervised visits by September 26, and the agency arranged one supervised visit. Under the circumstances, father’s contention that the agency denied him court-ordered visitation fails.

II. Termination of Father’s Parental Rights

A. Adoptability Finding

Under section 366.26, subdivision (c)(1), a juvenile court “shall terminate parental rights and order [a dependent] child placed for adoption,” if the court finds, by clear and convincing evidence, that “it is likely the child will be adopted.” We may not reverse a juvenile court’s finding of adoptability if substantial evidence supports that finding. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) In evaluating the court’s ruling, we must consider the evidence in the light most favorable to the court’s order and indulge every inference in favor of the prevailing party. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

Father asserts that no substantial evidence supports the finding of adoptability. To the extent father relies on any misstatement or omissions from the written adoption assessment prepared in December 2004, he has waived any right to challenge the adoption assessment report by failing to object below. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412.) In any event, the written report reflects that the adoption assessment social worker adequately performed an investigation regarding the child’s adoptability, including an evaluation of the child’s medical, developmental, scholastic, mental, and emotional status, and a preliminary assessment of the eligibility and commitment of the child’s current foster parents to adopt the child, the child’s position on his placement and adoption, and an analysis of the likelihood that the child would be adopted if parental rights were terminated. Father fails to identify how a misstatement regarding the child’s Native American ancestry, or omitted information about the child’s relationships with father and other family members affected--or should have affected--the court’s determination that the child is likely to be adopted. The adoption assessment social worker was called as a witness at the October 3, 2005, hearing, at which time father could have examined the witness regarding the misstatement and the purported omissions in the report. (In re Heidi T. (1978) 87 Cal.App.3d 864, 875.)

Father additionally argues there was no consideration given to his bond with the child, noting he had raised the child since birth and the child was happy to see him at visits. However, “[t]he issue of adoptability . . . focuses on . . . whether the [child’s] age, physical condition, and emotional state make it difficult to find a person willing to adopt the [child]. [Citations.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) “All that is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time. [Citation.]” (In re Zeth S. (2003) 31 Cal.4th 396, 406.) Father fails to show how his pre-dependency relationship with the child or his supervised visits with the child rendered it unlikely that the child would be adopted if parental rights were terminated. Given the evidence that the child’s current foster parents were willing to adopt him, that it was in the child’s best interest to remain in that placement as his permanent adoptive home, and that there was no evidence of any legal impediment to the adoption, we uphold the court’s determination that the child was adoptable.

B. Parental and Sibling Relationship Exceptions to Termination of Parental Rights

As relevant here, a juvenile court need not terminate parental rights if it “finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: (A) The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. . . . (E) There would be substantial interference with a child’s 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 child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (§ 366.26, subd. (c)(1)(A) & (E).) Once a juvenile court finds that a child is adoptable, the burden shifts to the parents to demonstrate it would be detrimental to the child to terminate parental rights under either of the exceptions to the rule of termination noted above. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

Father contends the court erred in terminating his parental rights because the agency prevented him from visiting Lorenzo and, therefore, he could not meet his burden of proving the parent relationship exception under section 366.26, subdivision (c)(1)(A). Father additionally argues there was insufficient evidence to support a finding that the sibling relationship exception under section 366.26, subdivision (c)(1)(E) did not apply. However, because father never argued these issues before the juvenile court, his contentions are not preserved for our review. (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295; In re Erik P. (2002) 104 Cal.App.4th 395, 403.) In any event, father’s contentions are without merit.

Father argues he was precluded from establishing his parental relationship with Lorenzo under section 366.26, subdivision (c)(1)(A), because the agency social worker interfered with his ability to visit his child by violating court orders directing visitation. However, as we have previously concluded, there is no support in the record for father’s assertion that the agency failed to comply with the court’s orders regarding visitation.

Additionally, we are not persuaded by father’s argument that, because they had a significant, positive, and emotional attachment that had developed in the five years they had lived together as a family, the benefit to Lorenzo in continuing his relationship with father far outweighed the benefit of being adopted. The juvenile court could have reasonably found that Lorenzo’s relationship with his father during the years the child lived with him was not a positive one, given father’s serious drug addiction and the other circumstances that led to the current dependency proceeding. Although the child called father, “Dad,” he also referred to his foster parents as “mom” and “dad.” Further, the agency social worker’s report submitted for the July 13, 2005, hearing, and the testimony of Caroline Knowles, demonstrate that the resolution of the child’s permanent placement should not be further delayed. Thus, despite any risk to Lorenzo’s emotional well being if he lost contact with his father, the juvenile court could reasonably conclude it was in the child’s best interest to terminate parental rights so that he would have the opportunity to obtain a permanent adoptive home.

Father’s arguments regarding the applicability of the sibling relationship exception are similarly unpersuasive. Father presented no evidence of a strong bond between Lorenzo and his older siblings. Although the children had lived together in the past, what they had in common was their traumatic experience in their parents’ home. “Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.) Father does not address the evidence that Lorenzo easily separated from his siblings at the conclusion of their visits, the child did not ask to see his siblings, and on one occasion, he refused to attend a birthday party that was being held for his siblings. Additionally, father presented no evidence that would have required the court to determine that continuing the siblings’ relationships outweighed the benefit Lorenzo would obtain from adoption. Because father did not meet his burden under section 366.26, subdivision (c)(1)(E), we conclude the juvenile court did not abuse its discretion in terminating parental rights despite any relationship Lorenzo may have had with his siblings.

III. Procedural Challenges to the Juvenile Court’s Orders

A. Appointment of Children’s Counsel

In In re Celine R. (2003) 31 Cal.4th 45, the Supreme Court set forth the exact standard courts are to apply when first appointing counsel and thereafter in dependency proceedings involving several siblings. “[T]he [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.) Finally, any challenge to the court’s failure or refusal to appoint separate counsel for a child or relieve conflicted counsel is subject to harmless error analysis. (Id. at p. 60.) Unless the appellate court determines there is “a reasonable probability the outcome would have been different but for the error,” the juvenile court’s order must be upheld. (Ibid.)

Father argues that at the time of counsel’s initial appointment to represent Lorenzo and his siblings, there was a reasonable likelihood that an actual conflict would arise requiring the appointment of separate counsel for the children. He additionally argues that once the agency recommended different permanent plans for the children, an actual conflict developed between the position of Lorenzo and his siblings, requiring the appointment of separate counsel. However, in the absence of any evidence to the contrary, we presume the children’s attorney, at the time of his initial appointment and thereafter, considered whether he was obliged to withdraw from representing all the children because of an actual conflict of interest. (Cal. Rules of Professional Conduct, Rule 3-310.) Unlike the situations in Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1427, and In re Hector A. (2005) 125 Cal.App.4th 783, 790, father has not shown that counsel’s representation resulted in actual adversarial consequences for the children. (In re Celine R., supra, 31 Cal.4th at p. 57 [“ ‘multi-sibling permanent plans do not necessarily involve an actual conflict’ “].) As noted, “[m]any siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship.” (In re L.Y.L., supra, 101 Cal.App.4th at p. 952.) Finally, even assuming the children’s attorney should have declared a conflict of interest, father has failed to show a reasonable probability he would have obtained a result more favorable to himself regarding Lorenzo’s status had the children had separate representation. (In re Celine R., supra, 31 Cal.4th at pp. 59-60.)

B. Notice of Section 366.26 Hearing

Section 294 provides, in pertinent part: “The social worker or probation officer shall give notice of a selection and implementation hearing held pursuant to Section 366.26 in the following manner: (a) Notice of the hearing shall be given to the following persons: . . . (3) The child, if the child is 10 years of age or older. (4) Any known sibling of the child who is the subject of the hearing if that sibling either is the subject of a dependency proceeding or has been adjudged to be a dependent of the juvenile court. If the sibling is 10 years of age or older, the sibling, the sibling’s caregiver, and the sibling’s attorney. If the sibling is under 10 years of age, the sibling’s caregiver and the sibling’s attorney. However, notice is not required to be given to any sibling whose matter is calendared in the same court on the same day.”

Relying on section 294, father asks us to reverse the juvenile court’s rulings because the record does not show Lorenzo’s sisters were given separate notice of the initial date set for Lorenzo’s section 366.26 hearing or the continued hearing dates.[7] However, the issue is not preserved for our review because father did not challenge the purported lack of notice to Lorenzo’s sisters before the juvenile court. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Had father raised the issue, the court could have continued the matter to insure proper notice was given to the necessary parties. (§ 294, subd. (l) [“The court shall state the reasons on the record explaining why good cause exists for granting any continuance of a hearing held pursuant to Section 366.26 to fulfill the requirements of this section”].)

Even assuming there were notice errors, we are not persuaded such errors were prejudicial. Father argues that as a consequence of the purported lack of notice to Lorenzo’s sisters, he was prejudiced because we do not know whether the sisters would have attended the hearing had they been given adequate notice and we do not know what they would have testified to had they attended. However, the argument is based on the incorrect premise that Lorenzo’s sisters were not present at the section 366.26 hearing relating to Lorenzo’s permanent placement. The record shows the court heard testimony on the section 366.26 issues regarding Lorenzo’s placement on July 13, 2005, July 19, 2005, and October 3, 2005. All of Lorenzo’s sisters, Jessica, Denise, and Olivia, were present in the courtroom on July 19, 2005, and could have been called as witnesses to testify on father’s behalf regarding Lorenzo’s placement. Thus, in the absence of any prejudice, reversal is not warranted because of any failure of the agency to notify Lorenzo’s sisters of the section 366.26 hearing dates relating to Lorenzo’s placement.

C. The Judge’s Competency to Hear Testimony on July 13, 2005

On July 12, 2006, the juvenile court judge had minor surgery on his right shoulder while under anesthesia. The surgery started at 1:45 p.m. and as the judge left at 3:50 or 4:00 p.m., he was handed a piece of paper indicating that for the next 24 hours, he was not to drive or operate machinery, and he was not to make important decisions or sign legal documents. The judge assumed the warnings related to the anesthesia he had been given during the surgery.

On the next day, July 13, 2005, the judge drove to work. Before the afternoon hearing in this matter, the judge heard other matters and signed court documents. The hearing in this matter started at about 1:15 p.m. and concluded shortly after 4:00 p.m. Before hearing any testimony, the judge informed the parties of the circumstances of his surgery and the warnings he had received after the surgery. At the time of the hearing, the judge had taken “a couple of” ibuprofen tablets but no prescribed pain medication, he was feeling okay, and he did not feel his condition presented any problem. Father’s counsel stated he did not know how the matter could proceed in light of the judge’s indication he was not to make any important decisions. The judge denied father’s request for a continuance, explaining: “[I]t’s 2:22 at this point. It’s almost 24 hours. [I] drove here today. I’ve handled 15, 20 cases already and signed many documents in chambers and elsewhere. It’s the Court’s intention to proceed on that point. The standard typed cautionary instructions given after the particular operation are conservative, and the Court has had none of the . . . prescribed medicines since the operation and is not in any great pain -- not even barely mild pain. We have a doctor here or expert witness that we’ve brought, and we should at least proceed with that.” The court heard the testimony of Caroline Knowles, and then continued the matter.

Father now argues he was denied due process because the judge refused to continue the July 13, 2005, hearing in the face of medical evidence that the judge should not make important decisions for 24 hours after minor surgery. We disagree. The Due Process Clause entitles a person to an impartial and mentally competent tribunal. (Jordan v. Commonwealth of Massachusetts (1912) 225 U.S. 167, 176.) Additionally, father may assert on appeal that the denial of his request for a continuance violated his due process right to a competent tribunal. (See People v. Panah (2005) 35 Cal.4th 395, 445, fn. 16.) But, “[t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” (Ungar v. Sarafite (1964) 376 U.S. 575, 590.) A review of the reporter’s transcript of the July 13, 2005, hearing indicates the judge was able to properly perceive the evidence and conduct the proceeding. (Cf. Code Civ. Proc., § 170.1, subd. (a)(7) [A judge shall be disqualified if unable to properly perceive the evidence or conduct the proceeding because of a temporary physical impairment].) We see no evidence in the record, and father does not point to anything, showing that the judge was not mentally alert at any time during the hearing. That the July 13, 2005, hearing took place just shy of the end of the 24-hour period during which the judge was advised not to make important decisions, without more, is insufficient to support a claim of a due process violation.

DISPOSITION

The October 3, 2005, orders are affirmed.

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McGuiness, P.J.

We concur:

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Parrilli, J.

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Pollak, J.

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[1] Subsequent unspecified statutory references are to the Welfare and Institutions Code.

[2] The court also terminated the parental rights of Lorenzo’s mother, but she has not filed a notice of appeal.

[3] Because Lorenzo’s siblings are not parties to this appeal, information regarding their status will be presented only as necessary to resolve the issues raised by father.

[4] At the time of the children’s detention, Olivia was nine years old, Parish, Jr., was seven years old, Jessica was 13 years old, and Denise was about to turn 14 years old.

[5] Denise was then living in a separate foster home, Jessica was living with the children’s maternal grandmother, and Olivia was living in a residential treatment facility.

[6] Denise, Jessica, and Olivia were then living with their maternal grandmother, and Parish, Jr., was living in a group home after his removal from his grandmother’s home.

[7] Because Parish, Jr., was under 10 years of age during the dependency proceeding, he was not entitled to separate notice of either his own section 366.26 hearing, or the section 366.26 hearing scheduled for Lorenzo. (§ 294, subd. (a)(3), (4).)