In re Seth E.

Filed 8/10/07 In re Seth E. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Andrea S. (Mother) appeals the October 18, 2006 termination order in the Santa Cruz County juvenile court of her parental rights to Seth E., who was then seven years old. Mother claims two exceptions to his adoption apply and the attorney for Seth and his half-sister, then 13-year-old Cassandra T., had a conflict of interest making it reversible error for the same attorney to represent both.

FACTS

The Scotts Valley police found then five-year-old Seth wandering in the street, barefoot and crying, on August 29, 2005, leading petitioner Santa Cruz County Human Resources Agency (Agency) to detain him on the grounds that his parents, Andrea S. and Michael E. (presumed Father), willfully or negligently failed to protect and provide (Welf. & Inst. Code, 300, subd. (b)),[1] and that Father, being incarcerated, failed to provide for his care and support. ( 300, subd. (g).)

Seth had lived with Mother and Cassandra since his birth in 1999 until he was three-and-a-half when Father received sole legal and physical custody when the 2003 dependency case was closed. In October 2004, new family court orders split the legal and physical custody of Seth between both parents. When Agency learned of the new order, it told Father that shared custody was an inappropriate plan for Seth since Mother had failed to reunify with Cassandra and had not successfully completed her reunification case with Seth. Father did not return to the family court, however, and when he was incarcerated in Vacaville State Prison in about July 2005, Father left Seth with Mother. Seth was found on the street on August 29, 2005.

The night before, Mother left Seth sleeping on the couch at the home of the Perez family (a family known to the Scotts Valley police for domestic disturbances). Seth was in the care of Mr. Perezs younger brother, Sonny, age 12. Mother had not asked permission from any of the adults in the house. When Mother was contacted by the social worker on August 29, she stated that she and Seth had been living in the Perez garage for about three weeks. She added, I dont like leaving my son, but I needed a break. She explained she was under a lot of stress and intended to be gone only a few hours, but felt she had to go talk to someone about housing for her and Seth. She did not return to the residence until the next day when she was informed that Seth had been taken into protective custody. Seth was placed in foster care with Cassandra.

The August 31 dependency petition alleged Mother had custody of Seth and (1) failed to make an adequate plan for his care in her absence; (2) failed to reunify with Cassandra despite services that were rendered for Seth and Cassandra, and had a substantiated history of abuse that increased the risk to Seth; (3) had a significant substance abuse history and drug dependency, including an arrest for possession of methamphetamine that she had hidden in her childrens stuffed animals which significantly increased risk of further abuse and neglect of Seth; and (4) had a mental health status that impaired her ability to safely and adequately care for Seth. The petition also alleged that Father, in addition to being incarcerated, failed to safely and adequately parent Seth or to protect him from potential abuse or neglect, and he had a history of substance abuse.

Agency had compiled a record of allegations of general neglect and caretaker absence or incapacity involving both parents dating back to shortly after Seths birth. Many of the referrals were evaluated out or determined to be inconclusive. In 2004, the main problem was general neglect of Seth by Father, the custodial parent, who allowed Mother to care for Seth although there was a juvenile court order stating she was to have only supervised visitation. Father seemed to have limited comprehension that the order meant her contact with Seth had to be supervised.

In toto, the record contained allegations from 2005 to 1993 in Santa Cruz County and two in 2001 in Nevada County, involving the general neglect, physical abuse, medical and dental abuse, sexual abuse by an unknown perpetrator, and emotional abuse of Cassandra by Mother or Cassandras father. Some of the allegations were determined to be unfounded, others were inconclusive, and still others were substantiated and services given to Mother and one or both fathers.

After a contested jurisdictional hearing on the current petition, the juvenile court declared Seth, then six, a dependent on December 19, 2005. Because Fathers incarceration would continue past the legal limit of reunification services, he had a history of extensive, abusive, and chronic use of drugs or alcohol, and resisted or refused to comply with prior court-ordered treatment for this problem, and because Mother had failed to reunify with Cassandra and Seth and had an enduring history of failing to treat the problems that led to the removal of the children from her care, no services were ordered for either parent and a hearing was set for selection of a permanent plan. ( 366.26.) Mother was allowed supervised visitation.

On February 10, 2006, Mothers Marsden[2] motion, in which she requested replacement of her attorney and questioned Agencys decision to move Seth to an out-of-county placement, was denied. Seths and Cassandras foster care provider had wanted Seth moved because of Mothers behavior. Agency moved Seth to an extended family placement out-of-county rather than to a local foster home where the provider would be a stranger. The trial court found there was no legal ground to remove Mothers attorney nor did it interfere with Seths placement.

Before the permanency planning hearing, the court ordered a reciprocal connectedness study, a psychological evaluation of Mother, and a referral to the Consortium for Children.

The reciprocal connectedness study requested by Mothers lawyer found that Seth and Mother clearly loved each other, but that Seth did not feel safe with her given his past and recent experiences with her. She had abandoned him in the past, made excuses for past mistakes, attempt[ed] to co-opt him to leave with her when he was in foster care, left him with a very young neighbor, and had inappropriate conversations with him out of the social workers hearing.

Mother showed affection and demonstrated her attachment to Seth, but also displayed a significant tendency to become preoccupied, tangential, lecturing, defensive/questioning of the foster family, and intellectualized when with Seth that resulted in disconnecting from reciprocal bonding. Mother also did not demonstrate a commitment to care or provide for Seth.

Seth was very attached to his foster mother and father but was simultaneously able to hold [Mother and] his biological father in his memory and heart at the same time in a safe and healthy way. The psychologist found the foster parents response to Seths needs and desires to be exceptionally positive, reciprocal, and healthy and realistic with limits. Overall, Seth shows a relaxed, healthy, childlike and maturing attachment to the foster parents. Similarly, the foster parents were nurturing and loving toward Seth with a balanced firm approach and the ability to set limits in a brief but effective manner when needed and with an unquestionably healthy and reciprocal attachment and commitment to Seth.

The doctor stated that Seth was at a critical developmental period at age six and has made a significant connection to his new caregivers . . . . All impressions are that Seth has landed and is emotionally and psychologically moving forward to remain with the [foster parents] as his new, permanent parents. He has made a transition to a secure attachment with excellent reciprocal bonding by both [the foster father and mother] and Seth. Although Mother seems to try hard to understand Seth [in] many respects, she is not very well matched to his temperament overall, e.g., his mellow mood, cleverness. Seth continues to make accommodations for Mother in the process and work to relate to her to try to get his needs met, whereby they are better and more easily matched by the fosterparents [sic].

Permanent placement/adoption will provide the best chance for Seth to assure and proceed with his emotional and other developmental gains in this year, i.e., eating more regularly, less argumentativeness, anger and moodiness. . . . Seth needs an opportunity to move on with his life now and, given his own resiliency may be overtaxed if kept wondering who he can settle down with, with one foot in and one out, will psychologically harm him and contribute to an existential loss of hope to move forward.

Mothers psychological evaluation focused on her diagnosis and whether any mental incapacity would render her incapable of utilizing reunification services. Mother had documented methamphetamine and marijuana use and a history of drug abuse. She also had a criminal history for which she received very brief jail sentences and probation. She was on probation at the time of the evaluation.

Mother described her current and prior interactions with child protective services (CPS) personnel, whom she felt hounded and lied to her. She did not trust psychiatrists because she felt betrayed by one. At the time, she was seeing a doctor for medication to treat bipolar disorder.

The psychologist concluded that Mothers findings on the Millon Clinical Multiaxial Inventory III and the MMPI 1-2 tests were extremely different from her presentation and history. . . . [She] used a great deal of denial to present herself as compliant as well as meek. Her denial or at minimum major wishful thinking about herself is unlikely to prove helpful in parenting. Throughout both her interview and reports, she explained away both life and parenting problems by blaming others.

Her difficulty in trusting those in authority will make it hard for her to accept assistance from reunification services. While [Mother] loves her children and wants them returned I do not think that her attitude toward any authority is likely to be workable for her on a long term basis.

In terms of diagnosis both tests were so skewed [Mother had difficulty in understanding the questions and she failed to answer a large number of questions] that nothing definitive or true can be said. There were [sic] some evidence of elements of paranoid personality features which may just be a result of feeling suspicious of the behavior of authorities in her past. Based upon [Mothers] report with previous mental health specialists a prior diagnosis of Bi-Polar [sic] Disorder is likely. It is suggested that [Mother] continue with psychopharmalcological treatment and perhaps cognitive and interpersonal psychotherapy.

The Parents Center provided a drug and alcohol assessment and concluded that Mother has a low probability of having a substance dependence disorder. She acknowledged that she has used alcohol once or twice and has used drugs several times in the past year, and had test scores similar to people whose environment is most likely dominated by substance abuse, who see themselves as having some of the characteristics and behaviors (including resentment, and anger).

However, the evaluator concluded that Mother was open to feedback about something wrong, or missing in their life but . . . [was] less receptive to the idea that a change is in their best interest. The evaluator recommended a structured, educational, outpatient program, individual counseling, medication evaluation, and random drug testing.

Mother participated in an adult outpatient drug and alcohol treatment program at Triad Community Services from April 15, 2003, to May 27, 2003. She was resistant to attending 12-step meetings and to complying with drug testing with the patch as required by CPS. Mother tested positive on April 15, 2003, for amphetamine and methamphetamine. Results of a May 5 test were not available when the report was written. Triad determined that Mother needed more services than Triad can provide for her at this time. A psychological evaluation with possible medication update to help her stabilize mental health issues, as well as addiction issues appear to be a critical need at this time.

The section 366.26 report dated September 15, 2006, recommended that the parental rights of both parents be terminated and a permanent plan of adoption be established. The report recited observations and evaluations of Seth, his visits with his mother, and his prospective adoptive parents who were his current foster parents. The report stated that Cassandras foster parents felt that she did better with them when Seth was not in the home, and that they were entering a post-adoption agreement with Seths prospective adoptive parents for a minimum of three to four visits a year for Cassandra and him. The prospective adoptive parents also agreed to provide the natural parents with photographs of Seth through Agency although for the sake of resolving the limbo that Seths life had been, they refused a post-adoption agreement with the parents.

The report concluded that Mothers history of 29 referrals concerning child abuse toward Seth and Cassandra and her inability to reunify with either one of them during their first dependency were evidence that Mother was unable to provide a safe environment and meet the basic needs of the children. The report acknowledged that Mother loves Seth very much and can be very tender with him. It is also easy to see Seths affection for her. But somehow [Mother] cannot sustain a respect for a healthy lifestyle that does not include constant angst and strife. Her judgement [sic] regarding appropriate and safe ways to visit with Seth and relate to his caretakers [sic] and social workers [sic] is concerning. All of these issues prevent [Mother] from forming a healthy parenting bond with Seth. Her own mental health issues tend to engulf her and prevent insight so that she can learn and change.

A contested section 366.26 hearing was held on October 18, 2006. The court adopted the recommendations contained in the report and terminated the rights of both parents. This appeal ensued.

ISSUES ON APPEAL

Mother asserts that the court improperly terminated parental rights because two exceptions to adoption applied, namely the contact and benefit exception in that Mother maintained regular visitation and contact with Seth ( 366.26, subd. (c)(1)(A)), and the sibling relationship exception because adoption would substantially interfere with the relationship between Seth and Cassandra which outweighed the benefit of adoption for Seth. (Id., subd. (c)(1)(E).) Mother also asserts that the court committed reversible error in allowing one attorney to represent Seth and Cassandra despite the actual conflict of interest between them.

STANDARD OF REVIEW

The juvenile courts placement determination for a dependent child typically is reviewed under the abuse of discretion standard. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) But many courts have employed the substantial evidence review standard when the issue on appeal is the termination of parental rights, since the requisite case-by-case assessment of relevant circumstances generally requires a fact-based analysis. (See, e.g., In re Erik P. (2002) 104 Cal.App.4th 395, 400; In re Brittany C. (1999) 76 Cal.App.4th 847, 854; In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) As a practical matter, the differences between the two standards of review are not significant. In its emphasis on deference, the abuse of discretion standard is similar to the substantial evidence rule. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1065.) Furthermore, evaluating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. (Id. at p. 1067.)

Applying that deferential review standard, we view the evidence in the light most favorable to the order. (Autumn H., supra, 27 Cal.App.4th at p. 576.) We thus examine the record to decide whether a reasonable trier of fact could find that termination of parental rights is appropriate based on clear and convincing evidence. (In re Jasmon O. (1994) 8 Cal.4th 398, 423; accord, In re Erik P., supra, 104 Cal.App.4th at p. 400.) The appellant has the burden of showing that the challenged finding or order lacks evidentiary support. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 (L.Y.L.).)

THE CONTACT AND BENEFIT EXCEPTION TO ADOPTION

The juvenile court has the duty to all children who are dependents of the court to provide stable, permanent homes for these children. ( 366.26, subd. (b).) Once the court determines by clear and convincing evidence that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption (id., subd. (c), italics added), unless the court finds a compelling reason for determining that termination would be detrimental to the child due to the fact that [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Id., subd. (c)(1)(A).) This exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (Autumn H., supra, 27 Cal.App.4th at p. 575.) The court must consider many variables including the age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of the interaction between parent and child, and the childs particular needs. (Id. at pp. 575-576.)

Mother finds the history of her visits proof that she met the first prong of this exception to adoption: regular visitation and contact with the child. ( 366.26, subd. (c)(1)(A).)

Between September 2005 and August 2006, Mother was late for six visits and cancelled three. Mother arranged some visits to suit herself. For example, she personally arranged to attend Cassandras visit with Seth without going through the social worker. When the social worker reprimanded her, Mother thereafter refused to speak to her without Mothers attorney present. Eventually visitation was established with Childrens Mental Health supervising visits between Mother and Seth. In October 2005, Mother showed up uninvited at church and visited with Seth. Mother also told Seth during telephone conversations that she was getting him back. This seemed to upset Seth and cause tantrums.

In February 2006, Mother gave Seth a cell phone and a small Swiss knife. He got in trouble at school for having a knife and he told the principal that his mother had given him the knife and cell phone as a going away present and that he was not to tell anyone. In March, Mother gave Seth a box of poppers which exploded when he threw them on the ground and a tee shirt celebrating the Oakland group of the Hells Angels. The social worker showed Mother that the box said for children 8 and older, and pointed out that Seth could have gotten in trouble on his flight home. Then Seth got a bloody nose, and Mother put him on her lap and told him she was going to get him back. The social worker asked Mother not to discuss the case with Seth because it was already hard for him. Mother blew up and started yelling that this is the way she is and we cant control her. After the visit Seth asked the social worker if his mother was going to get him back. The social worker told him that it would be up to the judge and that he could write a letter to the judge.

In April 2006, during a visit to the park when Seth was accompanied by his foster father, Seth had uncontrollable diarrhea, which worried Mother who knew that Seth got diarrhea when he was nervous. After a visit on May 22, 2006, Seth called the social worker two days later and said his mother had told him I want to come and snatch you. He said, seriously[,] she said Im going to come and get you at your school. You look for me. Dont tell a single word to anybody. Seth said this scared him. He and the social worker put together a safety plan for him and he felt better. The next day, one of the caretakers called to say Mother had called on the caretakers private line which they had been careful not to give Mother. Mother told the caretaker to have the foster father call her and that she was in the LA area. The caretaker was afraid Mother might try to find Seth. County counsel attempted to secure a restraining order which was denied, although the judge did limit phone calls to come only from Seth when he wanted to call his mother.

On June 30, at a meeting with Seth and one of the psychologists, Mother arrived very late. Seth went up to her and put his hands on each side of her face and said, Mommy you scared me and I dont want you to come and snatch me. She told him he misunderstood and she meant that she was not going to come and take him. During this visit and the next, he apologized for not understanding and told the social worker he would tell the judge he had misunderstood.

Before the visit, the psychologist had asked Mother to provide lunch for Seth. She said she did not have funds and could not cash a check. Seth found change in her purse and she bought him lunch. However, she also showed him how she had her nails and hair done, and told him she would be getting a Mazda Miata the next day. The psychologist found this of considerable concern and demonstrative of insufficient and chaotic attention to Seths most basic needs, while putting her needs first.

On the last supervised visit, Mother was late and her calls were put through to the visit room. In the first call, she said she was going to be late; in the second, that she had been stopped for a ticket; and in the third, that her car had been impounded because she had no drivers license or insurance. She was crying. Seth got more and more distressed and wondered if she was going to jail.

The trial court stated, [i]n reviewing, I did consider Mothers visitation schedule and that while she and Seth enjoyed visits together, . . . she was late for her visits on . . . six different occasions from October of 05 through August of 06; that she canceled three visits; and that during the visits, on seven different occasions there was some kind of incident that was not helpful to Seths welfare. [] . . . [T]here are several different instances that I highlighted that [Mother] tried to arrange visits on her own without the Agency knowing, and I think this . . . didnt do Seth any good. [] He probably enjoyed seeing his mother, but it upset him a great deal. It also was difficult on his placement at the time to deal with those kinds of events. The court concluded that caring for Seths physical, emotional, educational, and psychological needs was of greater weight in the balancing than the benefit of the relationship with his mother or his sister.[3]

Substantial evidence supports the trial courts conclusion. The parent must do more than demonstrate frequent and loving contact[,] [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a parental role in the childs life. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.)

Mother demonstrated loving contact and an emotional bond with Seth but she also required care from him, as when she frightened him by telling him she was going to snatch him from school and by shifting the blame to him by telling him he had made a mistake when he confronted her with it. He apologized for misunderstanding for the next two visits.

Mother disregarded Seths basic needs, which she showed by declaring an inability to bring Seth lunch, letting him scavenge for change in her purse which she then used to buy him lunch, while boasting she had her hair done, her nails polished, and that she was getting a Mazda Miata the next day.

Mother was unable to resolve the substance abuse and other problems which prevented Seth from living with her between 2003 and the section 366.26 hearing. Between her loss of Seth in 2003 and the section 366.26 hearing, her most recent period of caring for Seth lasted for about two months in the summer of 2005, during which time Mother and Seth lived in a garage and she left him with a young caregiver and no adult supervision. She clearly showed she would not have been able to carry out the requirements for reunification even if they had been offered at the dispositional hearing for Seth in December 2005. Reunification services for Cassandra were terminated in 2004, and services for Seth had not been offered to Mother because she failed to reunify with Cassandra.

In opposition to the loving but chaotic and angst-ridden life Mother could provide Seth, the foster and prospective adoptive parents offered loving nurturing, educational encouragement, health care, and appropriate adult mother and father bonding and guidance. Seths performance at school improved; his physical needs, especially dental, were taken care of; and he was developing into a very sweet, sometimes anxious and articulate boy, who was comfortable in social situations and was finding this limbo of uncertainty [being torn between his birth mother and wanting to make [his mother] happy and wondering what may happen in court] very difficult.

The court did not err in deciding that the relationship with Mother did not promote[] the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Severing the natural parent/child relationship would not deprive Seth of a substantial, positive emotional attachment such that the child would be greatly harmed. (Ibid.)

SIBLING RELATIONSHIP

Mother next claims the benefit of Seths maintaining his sibling bond with Cassandra outweighed the benefit of adoption.

The court cannot terminate parental rights if [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. ( 366.26, subd. (c)(1)(E).)

The parent bears the burden of showing that a sibling relationship exists and that its severance would be detrimental to the child. (L.Y.L., supra, 101 Cal.App.4th at p. 952.) The detriment must be shown for Seth, not for his siblings. (In re Celine R. (2003) 31 Cal.4th 45, 54 (Celine R.).)

The issue for the trial court was to balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer. (L.Y.L., supra, 101 Cal.App.4th at p. 951.) The substantial evidence test applies. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1019.)

Seth lived with Cassandra from his birth in 1999 to 2003; he was placed with Cassandra for five months in 2005; and then lived apart from her in his prospective adoptive parents home to the time of the section 366.26 hearing. Seths day-to-day life with Cassandra totaled three-and-a-half years as an infant and toddler and five months as a five-year-old.

Georgina Dews, the childrens attorney, described the children as very close . . . very bonded, and stated she hoped they would remain together. Seth had been sad to leave his former foster home because he did not want to leave his sister behind, but his new foster parents flew him monthly to Santa Cruz to visit Mother and Cassandra. In the five or six months before the permanency planning hearing, Seth visited Cassandra four or five times. Cassandras guardians[4] and Seths foster/prospective adoptive parents were working on a post-adoption visitation agreement for Seth and Cassandra.

Seth said in a statement to be given to the judge: I love my mom and my sister. I dont know what family I want to be with. They are all nice, my mother, [my foster father], [my foster mother], and Terry are nice. I love these people. When Seth visited Mother, he brought up Cassandras name.

Cassandras statement, taken down word for word by Ms. Dews as she said it, was: I cannot say what is right for my brother, but for myself, I dont want it, meaning I dont want the adoption, because I am afraid I will lose my brother. So for myself I dont want to, but this is not to tell the Court what to do. Ms. Dews testified that Cassandra was very aware of Seths interests.

Substantial evidence supports the trial courts finding that the sibling relation exception did not apply. Seth and Cassandra lived apart except for five months after Seth left the toddler stage. They did not have each others constant companionship and day-to-day experiences that they shared only with each other. Maintaining Seths parental ties would not give him the sense of security and belonging that adoption and a new home would confer (L.Y.L., supra, 101 Cal.App.4th at p. 951), nor would it return Seth to day-to-day contact with Cassandra. Despite Seths and Cassandras love for each other, no possibility was presented to the trial court that either Cassandras guardians or Seths foster parents were interested in adopting both children. Cassandras guardians had tried caring for Seth and ended the situation for both childrens good. Finally, if parental ties were maintained, there was no guarantee that new foster parents or a guardian for Seth would be able to maintain even as much visitation between the two siblings as had taken place.

The evidence before the court supported the likelihood that, with the parental bond severed, Seth would have permanence in a new loving home and continue to have visits with 14-year-old Cassandra. A post-adoption visitation agreement between Seths and Cassandras families was being arranged and the history of visits between Seth and Cassandra while in the care of their current families supported the courts and the childrens attorneys optimism that the visits would continue. The court did not abuse its discretion in terminating Mothers parental rights.

CONFLICT OF INTEREST

Lastly, Mother complains that Ms. Dews, the childrens counsel, advocated for Seths adoption at the section 366.26 hearing, even while Cassandra was in a guardianship and opposed to her brothers adoption. Mother acknowledges that Ms. Dews presented Cassandras wishes to the court, showing that Cassandra was conflicted, however, Mother states that Ms. Dews clearly had tried to convince Cassandra that adoption was the best plan for Seth, despite Cassandras wish to maintain her close bond to her brother. Mother similarly asserts that in representing Seth, Ms. Dews . . . appears to have tried to convince him that adoption was the best plan for him, despite his connection to his sister and mother. This was a clear conflict of interest.[5] Mother also claims that if Cassandra had her own separate counsel, the attorney could have filed a section 388 petition to intervene in Seths section 366.26 hearing and have her own wishes represented.

Agency maintains that the issue was forfeited since Mother did not raise the issue at trial. (In re S.B. (2004) 32 Cal.4th 1287.) However, in S.B., the California Supreme Court stated that application of the forfeiture rule is not automatic (id. at p. 1293), that the appellate courts discretion to consider forfeited claims should be exercised rarely and only in cases presenting an important legal issue, that the courts discretion extends to dependency cases, and that because dependency proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance. (Ibid.) In this case, the issue whether an attorney can ethically represent two dependent half-siblings in the permanency planning hearing of one of them is an issue of such primary importance to the parent facing the loss of parental rights that we exercise our authority to hear the issue despite Mothers failure to raise it below.

When first appointing counsel in a dependency matter, the court may generally appoint a single attorney to represent all the siblings. It would have to appoint separate attorneys if, but only if, there is an actual conflict among the siblings or if circumstances specific to the case--not just the potential for conflict that inheres in all multisibling dependency cases--present a reasonable likelihood an actual conflict will arise. . . . After the initial appointment, the court will have to relieve counsel from multiple representation if, but only if, an actual conflict arises. (Celine R., supra, 31 Cal.4th at p. 58.)

A conflict arises when the circumstances of a particular case present a substantial risk that the lawyers representation of the client would be materially and adversely affected by the lawyers own interests or by the lawyers duties to another current client, a former client, or a third person. (Rest.3d of the Law Governing Lawyers, 121; see Flatt v. Superior Court (1994) 9 Cal.4th 275, 282-283, and fn. 2.) The fact that the siblings may have different permanent plans does not necessarily demonstrate an actual conflict of interest or a reasonable likelihood that an actual conflict of interest will arise (rule 5.660(c)(1)(C)(v)) or require withdrawal by the attorney from appointment or continued representation. (Rule 5.660(c)(2)(B)(v).) Furthermore, an attorney need not withdraw from continued representation of more than one sibling due to the fact that another sibling expresses desires or objectives that conflict with those of the other sibling, provided the issues involved are not material to the case. (Rule 5.660(c)(2)(B)(vi).)

In the instant case, there was no actual conflict. Ms. Dews successfully represented both Cassandra and Seth in motions to quash Mothers subpoenas to compel their testimony at the section 366.26 hearing. During the course of the hearing on the motions, counsel presented testimony on the trauma and psychological detriment testifying would visit on each minor. Mother does not raise the issue that counsel did not properly represent the minors on this point.

Mother argues that Ms. Dews failed to advocate for the minors divergent interests by advocating Seths adoption even while Cassandra was in a guardianship and opposed to her brothers adoption. First, rule 5.660(c)(1)(C)(v) declares that differences in the minors permanent plans do not necessarily demonstrate an actual conflict of interest. Cassandras guardianship was appropriate for her age and history with Mother and Seths adoption was appropriate for his. As we shall explain, the different plans did not cause a conflict of interest to arise in his case.

Ms. Dews presented evidence of Cassandras feelings through the statement in Cassandras own words and through testimony by Cassandras social worker, Terry Noto. Noto testified that for all of 2006 and a portion of 2005, Cassandra exhibited a lot of psychosomatic symptoms, physical manifestations of emotional pain, and turmoil and trauma associated with her relationship with her mother, . . . her brother, and the conflict position that she finds herself in. Cassandras physical manifestations were chronic back muscle pain, pre-ulcer-stomach stage, anxiety attacks that correlate[] with visitation[s] with mom, contact with mom, contact with brother, signs of depression, and not eating or sleeping well. The social worker stated [i]t looks like its getting worse. And I think that asking Cassie to be here and to be a part of it would make it even worse for Cassie. I think that she will feel responsible for the outcome, regardless. And I think that that would be extremely detrimental to Cassie.

This testimony corroborated Ms. Dews representation to the court that Cassandra had conflicting feelings about Seths and her future, but that she understood and respected Seths interests and future as well as her own and wanted his future to be good, and that she understood the courts duty to decide the issues.

The picture of Cassandra Ms. Dews presented to the court was accurate. As far as was known, or could be known, at the hearing, the time the decision on Seths future had to be made, counsel was justified in acting on the belief that adoption would neither lose Seth for Cassandra nor make Seth unhappy. He was flourishing with his prospective adoptive parents and they had demonstrated their love for him and respect for his birth family. Ms. Dewss belief in the intent of the minors respective caretakers to foster their sibling bond appeared well-founded. It was based on a history of continued visits and cooperation in the past and a willingness to enter a post-adoption agreement. These facts supported counsels and the trial courts optimism that the relationship would be continued.

Mother suggests that a separate attorney could have filed a section 388 petition for Cassandra to intervene in Seths section 366.26 hearing so as to have her interests represented. In a section 388 petition, [a]ny person, including a child who is a dependent of the juvenile court, may petition the court to assert a relationship as a sibling related by blood, . . . and may request visitation with the dependent child, placement with or near the dependent child, or consideration when determining or implementing a case plan or permanent plan for the dependent child or make any other request for an order which may be shown to be in the best interest of the dependent child. . . . [] (c) If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, or . . . the court shall order that a hearing be held. ( 388, subds. (b), (c).)

[T]he statute is not perfectly clear as to what the nonadoptive sibling must establish to be entitled to [an order allowing the sibling to participate in the section 366.26 hearing]. (In re Hector A. (2005) 125 Cal.App.4th 783, 793.) One practice guide stated that for a sibling to have standing to assert the sibling exception in the permanency planning hearing, the sibling must first prove under section 388, subdivisions (b) and (c) that litigating the exception is in the best interest of the dependent child before the court. (In re Hector A., supra, 125 Cal.App.4th at p. 793.) To determine the significance of the sibling relationship, the court considers the [nonexclusive] factors set forth in section 366.26, subdivision (c)(1)(E). (L.Y.L., supra, 101 Cal.App.4th at p. 952.)

Mother does not suggest what information an attorney representing only Cassandra might have presented which Ms. Dews did not present to the court. The record, containing numerous reports and references to both minors and the testimony and argument at the hearing, does not suggest any. The issue was presented fairly and completely to the court. Cassandras interests were not compromised by the dual representation.

Mother also complains that Ms. Dews advocated adoption for Seth without addressing whether she explained to him the possibility that he might never see Cassandra again or see her only rarely. The content of Ms. Dews communications with Seth does not appear in the record, nor does Mother make any showing that there was a conflict between Ms. Dewss duty of confidentiality to her client and her duty to fairly represent him in court. What is evident from the record and the social workers report of contacts with Seth is that Seth knew the nature of the choice before the court. His concern was about hurting Mothers feelings and keeping his present family. He loved his sister, asked after her, and was still visiting her. The post-adoption agreement was expected to be executed soon. As required by section 366.26, subdivision (c)(1)(E), the trial court considered these factors.

Ms. Dews had the primary responsibility to advocate for the protection, safety, and physical and emotional well-being of the child for whom she was appointed. ( 317, subd. (c).) She introduced and examined witnesses on their well-being, and made recommendations to the court concerning Seths welfare. Since Cassandra and Seth were over age four, she interviewed them to determine their wishes and to assess their well being. (Id., subd. (e).) As shown by the record, she advocated both minors interests in court as was appropriate. Substantial evidence supported the courts finding that Seths interest in adoption was of greater weight than the benefit of the relationship with his sister. We cannot fault Ms. Dewss representation of her clients.

DISPOSITION

The judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] Further statutory references are to the Welfare and Institutions Code unless otherwise stated.

[2] People v. Marsden (1970) 2 Cal.3d 118.

[3] The court also stated, I would like those relationships to be able to continue, especially with the sister; however, I do believe that the interest in Seths having a permanent home, a place to ground to, a place where parents will care for him reliably without him having to be the parent I think is in his best interest at this time.

[4] Cassandras foster parents had been her guardians for almost three years at the time of Seths permanency planning hearing.

[5] Mother points to no evidence in the record of coercion or undue persuasion being used on either minor nor does she suggest evidence in the record from which coercion or undue persuasion may be inferred. In the absence of a citation to supporting facts or to authority validating the point as a reason for overturning a termination of parental rights, we deem this portion of the issue abandoned. (Cal. Rules of Court, rule 8.204, hereafter rule.)