In re Michael B.

Filed 10/11/07 In re Michael B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Merced County. Frank Dougherty, Judge.

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

James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Plaintiff and Respondent.

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Joseph B. appeals from an order terminating his parental rights (Welf. & Inst. Code,  366.26)^[1]to his son, Michael. Appellant contends Michaels attorney had a conflict of interest such that the child received ineffective legal assistance. Appellant also argues the court was unable to ascertain Michaels current wishes such that there was insufficient evidence to support the courts finding that Michael was adoptable. On review, we disagree with appellant and will affirm.

PROCEDURAL AND FACTUAL HISTORY

In September 2006, the Merced County Superior Court adjudged nine-year-old Michael B. and his two younger half sisters dependent children and removed them from parental custody. The court previously determined the children came within its jurisdiction after physicians in April 2006 diagnosed the youngest child, an eight-month old, with failure to thrive. ( 300, subds. (a) [nonaccidentally-inflicted serious physical harm], (b) [neglect] & (e) [severe physical abuse to a child under five].) She weighed only seven pounds, was severely malnourished, and had no muscle mass. At the time, the children were in the custody of their mother and the father of the two sisters. Michael was parentified, having assumed many parental roles associated with the daily care of his sisters. Michaels father, appellant, was incarcerated in an Arizona prison. He had had little contact with Michael for several years and had not maintained a parent/child relationship with him.

Prior to the September dispositional hearing, respondent Merced County Human Services Agency (the agency) placed the children with Mr. and Mrs. A., a paternal aunt and uncle of Michaels sisters. The A.s and the children apparently knew one another for sometime. Although the A.s were not biologically related to Michael, his placement with them qualified as a non-relative extended family member placement ( 362.7) based on their established relationship.

Appellant had asked the agency to instead place Michael with appellants family in Arizona. However, the agency sought to keep the children in the same placement; appellants family had no apparent prior contact with Michaels sisters. Apparently, sometime after the relative placement issue arose, Michaels Arizona relatives began making trips to California to visit him and his sisters.

The court denied reunification services to each parent at the September dispositional hearing. In appellants case, the court ruled services would be detrimental to Michael because appellant would remain incarcerated for at least another two years, a period greater than the time permitted for services. Having denied the parents services, the court set a section 366.26 hearing to select and implement a permanent plan for the children. Although the court also gave the parents notice of their appellate remedy ( 366.26, subd. (l).), none of them, including appellant, sought review.

The court eventually held the section 366.26 hearing in March 2007. In advance of the March hearing, the agency filed a 366.26 PERMANENCY PLANNING REPORT, in which it recommended the court find the children adoptable and order the termination of parental rights. The agency identified the A.s as the childrens prospective adoptive parents. The couple loved the children and was committed to parenting them. For their part, the children were thriving in the A.s care.

Relevant to this appeal, the report included a description of a social workers February 2007 visit with Michael.

After some discussion with Michael regarding his current school status, his likes and dislikes, I asked him if he understood that the plan for him and his sisters was adoption. He stated, Yes. I asked him if he understood what this means? Michael stated, Yeah. [They will] be my parents, I asked Michael how he felt about this. Michael stated, Good, while nodding his head in affirmation.

Later in the report, the social worker added:

Michael has adjusted very well to placement. There is concern that Michael would feel guilt and responsibility for [his infant sisters] condition at detention. During this interview, Michael swelled with pride when pointing out the things [his infant sister] has learned to do. He picked her up and was kissing and swinging her. She responded to this activity by squealing with delight. Michael stated that he would like to visit his parents sometime but he wants to be adopted by his aunt and uncle. Michael appears very happy, relaxed and content.

At the start of the March 2007 hearing, appellants trial counsel expressed concern about Michaels ability to maintain contact with his Arizona relatives. The attorney alleged the A.s were not communicating very well with the Arizona relatives. He asked the court to continue the case so that the childrens attorney could speak to Michael about his feelings.

Mrs. A. and three of Michaels Arizona relatives, who were present in court, controverted the allegations made by appellants trial counsel. Under questioning by the childrens counsel and the court, they clarified there was no problem in communication between the A.s and the Arizona relatives. Mrs. A.was very open especially to the paternal grandparents who had picked up Michael for visits.

Based on the foregoing, the childrens attorney advised:

I [do not] know that I agree with the proposal that I interview Michael, unless the Court orders me to, obviously. I support the recommendation of termination of parental rights . . . .

The judge responded: Im not going to order you to interview him anyway.

The childrens counsel added his feeling that [it is] unfair to put this burden on a nine-year-old boy.

The court then interrupted the hearing as they awaited appellants appearance by telephone from his prison. After appellant joined in the hearing, his attorney argued appellants opposition to the adoption recommendation for Michael. It was unfair in appellants view that his rights should be terminated because he was incarcerated. Once appellant was released in 2009, he wished to have a relationship with Michael. That could be achieved best by the Arizona relatives continued contact with Michael, if not an order placing him with those relatives.

Appellants trial attorney also claimed that after a recent visit with his Arizona relatives Michael appeared not to want to go back to the placement. The attorney offered no evidence to support his claim. Instead, he reiterated his request that the childrens counsel speak with Michael further and, you know, make sure that this move to terminate parental rights is going to be in Michaels best interests.

The court asked Mrs. A. to describe Michaels behavior when told he would visit with his grandparents. She responded that once Michael understood it was his paternal grandparents with whom he would visit, he complained he did not want to go. She was able to coax him to visit by explaining his grandmother was coming from Arizona to see him. The court observed that a child with Michaels problems would have trouble going to or returning from a visitation.

Thereafter, the court found the children adoptable and terminated parental rights.

DISCUSSION

I. No Conflict of Interest

Appellant contends Michael had an interest in living with or maintaining contact with his paternal relatives such that his trial counsel who also represented Michaels sisters had an actual conflict of interest. In appellants estimation, the childrens counsel should have asked to withdraw as Michaels advocate whereupon independent counsel could have pursued a relative placement for Michael or other orders tailored to Michaels needs. Assuming for sake of argument that appellant has standing to assert his contention, it nonetheless fails on several levels.

Procedurally speaking, appellants complaint is untimely. According to appellant, once Michaels paternal relatives came forward in the summer of 2006 to request placement, there was an actual conflict of interest triggering counsels duty to seek withdrawal. If that were in fact the law, it was incumbent upon appellant to raise the issue, if not in the trial court, then at least by way of writ petition to this court following the setting order. ( 366.26, subd. (l).) He has forfeited the argument by not raising it in a timely fashion with this court. (In re Anthony B. (1999) 72 Cal.App.4th 1017, 1022; see also Steven J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812.)

Moving on to the merits, we observe appellant fails to cite any persuasive authority for his underlying claim that Michael had an interest in living with or maintaining contact with his paternal relatives. Although appellant cites to In re Cliffton B. (2000) 81 Cal.App.4th 415 (Cliffton B.), that decision addresses the importance of maintaining sibling contact, assuming siblings cannot be placed together, after parental rights are terminated. (Id. at pp. 425-428.) Furthermore, the court in Cliffton B. premises its analysis on a statutory provision, section 16002, which emphasizes maintaining, if possible, sibling togetherness throughout dependency. (Ibid.; Cliffton B., supra, 81 Cal.App.4th at pp. 425-426.) To substitute relative for sibling contact, as appellant does, in citing Cliffton B., misses the point of that decision. If nothing else, there is no analogous statutory provision creating a dependent childs interest in maintaining contact with other relatives. At best, there is section 361.3 which creates only a preference for relative placement provided it is in a dependent childs best interest.

Indeed, Cliffton B.s discussion regarding section 16002 undermines appellants conflict of interest argument. It supports a conclusion that Michael and his sisters shared an interest, not only in stability and permanence (In re Marilyn H. (1993) 5 Cal.4th 295, 309), but in maintaining their sibling relationship through adoptive placement with the A.s.

Appellants argument also suffers from the lack of any evidence of an actual conflict of interest between Michael and his sisters. At most, there was the argument of appellants trial counsel, which even the paternal relatives disputed. Finally, we fail to perceive how appellant could possibly have been prejudiced under these circumstances. The scope of a section 366.26 hearing is very narrow: namely, is the dependent child adoptable? ( 366.26, subd. (c)(1).) If so, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Future contact or even placement with extended relatives is not an exception to adoption. ( 366.26, subd. (c)(1)(A)-(F).)

Under all of these circumstances, we conclude the court did not err in failing to declare a conflict and appoint separate counsel for Michael.

II. Michaels Wishes

Appellant also argues there was insufficient evidence of Michaels wishes at the section 366.26 hearing to support the termination order. He approaches this issue from different angles, arguing (1) Michaels trial counsel failed to interview him in violation of his statutory duty; (2) there was insufficient evidence that Michael understood the implications of adoption; (3) there should have been more current evidence of Michaels wishes; and (4) the court did not adequately consider Michaels wishes. On review of the record, we once again disagree with appellant.

The law requires the court at a section 366.26 to consider the wishes of the child to the extent ascertainable and to act in the childs best interests. ( 366.26, subd. (h)(1); In re Juan H. (1992) 11 Cal.App.4th 169, 173.) The record in no way suggests that the court did otherwise. In addition, there is sufficient evidence of Michaels wishes, as contained in the agencys report to the court. Michael was looking forward to the A.s becoming his parents.

Appellants claim that the childrens counsel failed to interview Michael is speculative. Appellant apparently assumes that because the childrens attorney was reluctant to talk with Michael about the unsupported allegations of poor communications made by appellants trial counsel, the childrens attorney must never have interviewed Michael. We disagree with appellants inference-drawing in this regard.

To the extent appellant argues there was insufficient evidence that Michael understood the implications of adoption, the record, as summarized above, supports a conclusion otherwise. In any event, the law does not require that a dependent child be aware that the proceeding is a termination action for purposes of assessing the child's preferences. (In re Leo M. (1993) 19 Cal.App.4th 1583, 1592.)

Finally, appellants claim that there should have been more current information regarding Michaels wishes is based on nothing more than the unsupported argument of appellants trial counsel, i.e., that Michael did not want to return to the A.s after a recent visit. Given the attorneys earlier misstatements of fact and his failure to offer any proof to support his claim, we fail to see how the court can be faulted for its handling of the matter.

DISPOSITION

The order terminating parental rights is affirmed.

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* Before Levy, Acting P.J., Cornell, J., Dawson, J.

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