In re Stephanie O

Filed 6/16/06 In re Stephanie O. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Marisol I. (mother) and Esteban O. (father) appeal from a judgment terminating their parental rights to their children Guillermo, Stephanie and Miguel O. (Welf. & Inst. Code, § 366.26.)^[1] Parents argue that the termination of rights was detrimental to the children because it will sever a beneficial parental relationship as well as the close bonds the children have with each other and with their older half-sister Brianda I. (§ 366.26, subd. (c)(1)(A) & (E).) They also contend the trial court erred when it denied their motion to relieve minors' counsel based on a conflict of interest that arose from her dual representation of the children in this case (for whom adoption was recommended) and Brianda (who opposed their adoption). We affirm.

FACTS

Guillermo was born prematurely. His sister Stephanie was born less than a year later and is developmentally disabled. When Stephanie was four months old, she was treated for a fractured arm. When she was 10 months old, mother called 911 and reported that she was having a seizure. She was taken to the hospital, where doctors discovered that she had a skull fracture caused by severe blunt force trauma. The injury could have been caused by slamming Stephanie's head against a hard surface or hitting her in the back of the head with a hard object, and it was serious enough that she would have died without medical treatment. Stephanie also had brain injuries consistent with being shaken, including bleeding on the brain and retinal hemorrhages, along with rib fractures suggesting she had been crushed on more than one occasion. The doctors concluded these injuries were not accidental and were caused by child abuse.

Mother and father were questioned at the hospital and claimed not to know what could have caused Stephanie's injuries. They told inconsistent stories about what happened on the day she was taken to the hospital. Mother later told police she had been showering with Stephanie when Stephanie arched back and hit her head against a towel rack. This explanation was inconsistent with the severity of Stephanie's injuries.

The Ventura County Human Services Agency (HSA) placed Guillermo and Stephanie in protective custody. Mother's 11-year-old daughter Brianda was also removed from the home, although she is not the subject of this proceeding. Mother gave birth to Miguel a few months later and he, too, was placed in protective custody.

The court sustained a dependency petition alleging that all three children were at a risk of serious physical harm because parents had physically abused Stephanie or knew or reasonably should have known she was being abused. (§ 300, subds. (a), (b), (e) & (j).) Due to the life threatening nature of Stephanie's injuries, the court bypassed reunification services and set the case for a permanency planning hearing under section 366.26 (the .26 hearing). (§ 361.5, subd. (b)(5) & (7).)

When the .26 hearing was held, the minors had been placed in three separate foster homes. Guillermo was living with a maternal aunt and uncle, Stephanie was living with a foster mother who was adept at caring for her special needs and wished to adopt, and Miguel was in the home of foster parents who wanted to adopt him. All of the children were thriving in their placements and attached to their caretakers. The current caretakers were all willing to facilitate contact between the children if they were allowed to adopt. Mother and father visited the children regularly in a supervised setting and the visits were generally enjoyable for all the family members. HSA believed the relationship between the children was important and its social workers were attempting to preserve the bonds despite the recommendation of adoption. Brianda testified that she loved her half-brothers and sister and did not want them to be adopted. She described how she had cared for Guillermo and Stephanie when they all lived with their parents.

The court determined that the children were adoptable, selected adoption as the permanent plan, and ordered parental rights terminated. It rejected parents' argument that adoption would be detrimental to the children because it would interfere with beneficial parental and sibling relationships.

DISCUSSION

The Parental Relationship Exception

Parents contend the juvenile court erred in terminating parental rights because the evidence is insufficient to support a finding that the children would not benefit from continuing the parent/child relationship. We disagree.

Parental rights regarding an adoptable child will not be terminated where the court finds "a compelling reason" that termination would be "detrimental to the child" because the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).) The parent has the burden of proving that this exception to adoption applies, which is met only in exceptional cases. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) In determining whether that burden has been met, "the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

Substantial evidence supports the trial court's determination that the parental relationship exception did not apply. (See In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) The children were removed when they were very young because of the severe abuse inflicted on Stephanie. Although they enjoyed supervised family visits, there is little in the record to suggest mother and father occupied a parental role substantial enough to overcome the strong statutory preference for adoption and stability. The psychologist who evaluated parents opined that there was virtually no relationship between the parents and Miguel because he had been removed at such a young age. Father and Stephanie were not bonded and while Stephanie was attached to mother, separation would likely be of minimal effect due to her young age and developmental disabilities. Guillermo had been terrified of mother during the initial visits, possibly due to the trauma of witnessing Stephanie's abuse, but now enjoyed parents' visits. Nonetheless, the danger they posed to his physical safety and his ability to adjust to a loving family outweighed any benefit he might obtain through a continued relationship with mother and father.

To overcome the presumption in favor of adoption, parents had to show not only that they had a continuing relationship with the children, but also that the relationship promoted their well being to such an extent that it outweighed the well being they would gain in a permanent home with prospective adoptive parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The trial court reasonably concluded that parents did not meet this burden and that adoption was the appropriate permanent plan.

Sibling Relationship Exception

Parents assert that terminating parental rights will be detrimental because of the children's sibling relationship with one another and with their older half-sister Brianda. They rely on section 366.26, subdivision (c)(1)(E), which provides for an exception to adoption when "[t]here 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." We disagree that this exception applied.

The sibling bond exception requires a balancing of interests. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951.) The parent must first show the existence of a significant sibling relationship, that termination of parental rights would substantially interfere with that relationship, and that it would be detrimental to the child if the relationship ended. (Id. at p. 952.) After the parent establishes that the sibling relationship is so strong that its severance would be detrimental to the adoptive child, the trial court then determines whether the benefit of continuing the sibling relationship outweighs the benefit of adoption. (Id. at pp. 952-953.)^[2]

The trial court in this case noted that the bond between the siblings was not significantly greater than that of any other children who had spent time playing together. Miguel had never even lived in the same home as Stephanie and Guillermo. Stephanie and Guillermo lived together when they were quite young, but had not been in the same household for over a year. The children's older half-sister, Brianda, was obviously distressed at the prospect of losing contact, but the converse was not likely to be true because the other children were too young to have developed a similarly strong attachment. (See In re Celine R. (2003) 31 Cal.4th 45, 61.) The issue was the effect of adoption on the three children who were the subject of the .26 hearing, not the effect it would have on the child who was not a part of the proceeding. (Id. at p. 54.)

It appears unlikely that the sibling bond will be severed. The prospective adoptive parents have all stated that they are committed to allowing visits between the children. While this is no guarantee that such visits will continue, the prospects are good and this further decreases the likelihood the children will suffer detriment as a result of their adoption.

The sibling bond exception permits the trial court, "in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (In re Celine R., supra, 31 Cal.4th at p. 53.) The juvenile court properly determined that this case did not present the exceptional circumstances necessary for this exception to apply.

Conflict of Interest--Minors' Counsel

A single attorney was appointed to represent Guillermo, Stephanie and Miguel and their older half-sister Brianda. Brianda did not want her half-brothers and sister to be adopted, but minors' counsel took the position that adoption was in their best interests. Parents objected to counsel's continued representation of all four children at the .26 hearing, arguing that counsel's advocacy of adoption and Brianda's opposition to that result created an actual conflict of interest. We disagree that reversal is required.

Section 317, subdivision (c) requires the appointment of minors' counsel in a dependency case unless the court finds the child would not benefit from such an appointment. The attorney selected may not represent another party whose interests conflict with that of the child; hence, when there is an actual conflict between the position to be taken on behalf of two children, the same attorney may not represent them. (Ibid.; In re Celine R., supra, 31 Cal.4th at pp. 55-58.) Additionally, minors' counsel cannot represent more than one child when it is reasonably likely an actual conflict will arise. (Cal. Rules Prof. Conduct, rule 3-310(C); Celine R. at p. 58.)

Minors' counsel in this case represented Brianda as well as the three children who are the subject of this appeal. While it would not necessarily be a conflict for counsel to urge the court to adopt different permanent plans for different minors, Brianda did not merely seek a different resolution for her own case. Rather, she actively opposed HSA's efforts to free her younger half-siblings for adoption.

Assuming that Brianda's opposition to her half-siblings' adoption created an actual conflict of interest, reversal of the order terminating parental rights is only required if it is reasonably probable the court would have reached a different result had the conflict not arisen. (In re Celine R., supra, 31 Cal.4th at p. 60.) We conclude that in this case, there is no reasonable likelihood the court would have reached a different result if separate counsel had been appointed for Brianda. Counsel for both parents argued vigorously that adoption would harm the sibling relationship. A third voice advocating this position would have been unlikely to change the court's mind when it was well aware of the substance of the argument, had heard Brianda's testimony, and had stated on the record that the facts strongly favored adoption.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Charles W. Campbell, Judge

Superior Court County of Ventura

______________________________

Aida Aslanian, under appointment by the Court of Appeal, for Marisol I., Defendant and Appellant.

Maureen L. Keaney, under appointment by the Court of Appeal, for Esteban O., Defendant and Appellant.

Noel A. Klebaum, County Counsel, Alison L. Harris Assistant County Counsel, for Ventura County Human Services Agency, Plaintiff and Respondent.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Apartment Manager Lawyers.

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

^[2] We reject mother's suggestion that this balancing analysis is unnecessary because the sibling benefit exception applies whenever the termination of parental rights would substantially interfere with a sibling relationship. Mother's proposed interpretation of section 366.26, subdivision (c)(1)(E) is contrary to the plain language of that statute, which calls upon the court to consider whether long term contact is in the child's best interest when compared to the benefits of adoption.