In re Zachary D.

Filed 4/11/07 In re Zachary D. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, Acting County Counsel, and Ramona E. Verduzco, Deputy County Counsel, for Plaintiff and Respondent.

Ellen Bacon, under appointment by the Court of Appeal, for Minor.

Mother appeals from a juvenile court order terminating her parental rights to her daughter, K.D.(born in 2001) and sons, B.D. (born in 2002) and Z.D. (born in 2004). Mother contends there was insufficient evidence to support a finding the children were adoptable, resulting in the court terminating her parental rights under Welfare and Institutions Code section 366.26.^[1] She also challenges the trial courts failure to apply the beneficial parental relationship exception ( 366.26, subd. (c)(1)(A)) and claims her children were denied independent counsel and thus received ineffective assistance of counsel.

We reject mothers contentions and affirm the judgment.

1. Factual and Procedural Background

Mothers family includes mother and father, who are unmarried, and their five children, daughter, K.D., and sons, C.D. (born in 1999), B.D., Z.D., and Ca.D.(born in 2006).^[2] The family first came to the attention of the Department of Childrens Services (DCS) in January 2004 as a consequence of a referral for general neglect. The family was placed on voluntary maintenance in February 2004. Mother was offered services but did not make use of them. The family was on the plan when mother gave birth to Z.D. in June 2004.

The instant proceedings arose from a DCS referral by Loma Linda Hospital in June 2004 after Z.D. was born drug exposed and went into respiratory distress. Z.D. remained hospitalized until released on July 29, 2004, and was then detained in foster care. A DCS social worker visited mothers home on June 23, 2004, and discovered it was filthy and unsafe. Mother admitted using methamphetamines and failing to obtain prenatal care. The social worker told mother she needed to clean her home and make various repairs.

When the social worker returned on July 15, 2004, not all of the necessary repairs had been completed, the children were dirty, and the home was a mess and filthy. In one of the childrens bedrooms there was a sharp knife on the dresser. That same day the children were removed from the home.

On July 19, 2004, the DCS filed juvenile dependency petitions under section 300, subdivisions (b) and (j) on behalf of the four older children. Ca.D. was born after adjudication of the instant matter and therefore was not included as a party to the instant proceedings. The DCS alleged in its petitions that mother and father failed to supervise and protect their children by providing a filthy, unsafe home ( 300, subd. (b)), and Z.D. was born under the influence of amphetamines ( 300, subd. (j)). At the detention hearing in July, the court ordered the four children detained in the custody of the DCS.

In August 2004, the DCS filed a jurisdiction/disposition report stating that the children were in foster care and mother and father were in denial as to the seriousness of the situation in which their children were living. At the jurisdiction/disposition pretrial conference in August 2004, the court sustained the DCSs amended juvenile dependency petitions, finding that mother may have contributed to Z.D.s respiratory distress, mother suffered from substance abuse, and the parents housekeeping posed a risk to the children. The court also declared the children dependents and ordered them placed in foster care. Mother and father were awarded weekly visitation and reunification services.

In February 2005, the DCS filed a six-month status review report stating that Z.D. was in a placement separate from his siblings due to his special medical needs. During the other childrens placement together in another foster home, the children were acting out sexually and had behavioral problems. Due to C.D.s behavioral problems, in November 2005, he was removed from the foster home. B.D. and K.D.s behavior then improved significantly. The social worker reported that mother was hostile and defensive. She avoided drug testing and had not completed any classes. Some of her drug tests were positive. Mother and father consistently visited the children.

In an addendum report filed in March 2005, the DCS reported that mother had completed a parenting class but had been discharged from her perinatal drug program due to missing appointments.

At the six-month status review hearing in April 2005, the court granted parents six more months of reunification services. Mother enrolled in a perinatal program in July 2004, but did not complete any of the classes. While in the program, she tested positive for methamphetamines on July 23, 2004, and October 8, 2004. Mother also failed or refused to test on several occasions when asked by the perinatal program and by the DCS.

The DCS recommended in its September 2005 12-month status review report that the court terminate reunification services, set a section 366.26 hearing (.26 hearing), place C.D. in long-term foster care because he was not adoptable due to his behavioral problems, and place the other children for adoption. Mother and father had both tested positive for amphetamines since the last hearing. Mother had been terminated from two outpatient substance abuse programs and refused to enter an inpatient program. She acknowledged she and father continued to use drugs. Mother continued regularly to visit the children.

Z.D. remained in a special needs home. He had breathing problems and was diagnosed with strider, a vascular compression condition that inhibits a childs ability to breathe normally. His doctor indicated that his condition was expected to improve and he might grow out of it. K.D. and B.D. remained together in the same foster home.

In the December 2005 addendum report, the DCS reported that mother was pregnant. The DCS recommended K.D, B.D., and Z.D. be placed for adoption. Mother and father had not completed their service plan and mother refused to drug test in October 2005.

At the December 2005 12-month review hearing, the court terminated reunification services and set a .26 hearing. At the hearing, mother testified that it had been four months since she had last used drugs. Mother filed a notice of intent to file a writ petition challenging the December order. (Former Cal. Rules of Court, rule 38.1(a), now rule 8.452.) This court dismissed the petition, after receiving notice from mothers attorney advising the court that a writ petition would not be filed due to the absence of any legal or factual issues upon which to file for writ relief.

Following the December 2005 12-month review hearing, visitation was reduced to hourly visits every other week. Mother visited the children eight times between December 7, 2006, and March 15, 2006.

According to the April 2006 .26 hearing report, Z.D. was under the care of three specialists, a neurologist, pulmologist, and ear, nose and throat specialist due to his special needs but was nevertheless a happy child and was doing well in his current placement. B.D. was diagnosed with abnormal middle ear functioning, requiring tubes in his ears. He lacked coordination and suffered hearing loss and speech delays. Also, B.D. and K.D. had committed sexual acts with each other, requiring the foster parent to separate and monitor closely the two children. There had been three incidents, including one in December 2005. K.D. was also having problems listening to her teacher and focusing in class. Her foster mother reported that at home she was compliant, smart, and bright. The DCS concluded that K.D. and B.D. were very adoptable as a set and one family had already been found.

The DCS stated in its addendum to its adoption assessment report that the DCS had not located an adoptive home for all three children as a set because of the childrens health and behavioral issues. The DCS believed the children were adoptable but requested additional time to locate a home. Z.D.s caretaker, with whom he had been placed since birth, wished to adopt Z.D. The DCS thus recommended he be freed for adoption. A separate dependency case was filed for Ca.D. As of July 2006, Ca.D. was a juvenile dependent in an open family reunification plan.

In April 2006, mother filed a section 388 petition requesting reinstatement of reunification services. The court denied the petition without an evidentiary hearing, concluding there was not a sufficient change of circumstances.

At the April 2006 pretrial settlement conference, the court continued the .26 hearing 90 days to allow the DCS additional time to locate an adoptive home for the three children as a set. After a home was found, on June 8, 2006, the DCS requested, and the court authorized, B.D., K.D., and Z.D.s placement be changed to a concurrent planning home located in Wisconsin.

In the DCSs second addendum adoption assessment report, prepared in July 2006, the DCS reported that B.D., K.D., and Z.D. were adoptable and a potential adoptive family in Wisconsin had been located. The family had visited the children four times in July 2006, and wished to adopt the three children. The children responded favorably to the prospective adoptive parents. The prospective adoptive family was also willing to adopt Ca.D. if an adoptive home was not found for the child. Ca.D., who was born in February 2006, had been removed from mother and fathers custody and placed in a foster home with Z.D. The DCS recommended terminating parental rights to allow K.D., B.D., and Z.D. to be freed for adoption. The State of Wisconsin would not approve an Interstate Compact Placement for Children (ICPC) until parental rights were terminated.

At the July 2006 .26 hearing, mother filed another section 388 petition again seeking reinstatement of reunification services on the ground mother had been drug free for a year and had recently enrolled in an outpatient drug treatment program and school medical assistance program for employment. During the .26 hearing, the court set the matter for a contested .26 hearing and authorized the DCS to place the children with the prospective adoptive family in Wisconsin for an extended visit.

The childrens attorney told the court she believed that granting mothers section 388 petition was not in the best interests of the children, particularly since it had been over two years since the children had been removed from mother and mothers circumstances had not changed sufficiently. The court denied the section 388 petition, without holding a hearing, on the ground mother failed to establish a prima facie case.

At the contested .26 hearing on September 7, 2006, mother testified that she had attended almost all of the scheduled visits with her children. Since December 2005, she had consistently visited them for an hour every other week. Mother claimed she had a strong bond with her children and they still called her mom. She also claimed K.D. had a strong bond with C.D. Mother testified that her children cried and clung to her when she ended her visits. The childrens attorney asserted that the children were adoptable and in a suitable concurrent home.

After considering the various .26 hearing reports, adoption assessment reports, testimony, and argument, the court concluded that K.D., B.D., and Z.D. were adoptable and none of the exceptions to adoption applied. The court terminated parental rights and freed the three children for adoption.

2. Sufficiency of Evidence of Adoptability

Mother contends the juvenile courts adoptability finding must be reversed because there is insufficient evidence that K.D., B.D., and Z.D. were likely to be adopted within a reasonable time. We disagree.

The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204, citing 366.26, subd. (c)(1).) Clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citations.] [Citations.] (In re Jerome D., supra, at pp. 1205-1206.) We uphold the juvenile courts finding if the record contains substantial evidence supporting a finding of adoptability. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

In determining adoptability at a section 366.26 hearing, the focus is on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings. [Citations.] (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.] (Id. at pp. 1649-1650.)

Mother argues there was insufficient evidence of adoptability because Z.D. had profound medical problems and had not been assessed by the regional center to rule out palsy. Also, K.D. and B.D. had major behavioral issues and had not been psychologically evaluated. Mother also claims that B.D. had falls, which were not evaluated. In addition, mother argues that, at the time of the contested .26 hearing, the children had not lived with their prospective adoptive parents and Z.D. had never lived with K.D. and B.D. The fact that the prospective adoptive parents wish to adopt the children, mother argues, is not enough to establish adoptability in this case.

Mothers arguments are misplaced because there is clear and convincing evidence the three children were adoptable. Despite the childrens physical and emotional problems at the time of the .26 hearing, there was a prospective adoptive family which had visited the children several times and wished to adopt the children. There were also two other prospective adoptive families interested in adopting the three children, and Z.D.s foster mother, with whom he had lived since his birth, wished to adopt Z.D. despite his physical problems. This established it was likely other prospective adoptive families would also have been willing to adopt the three children.

In addition, the children were young and two adoption assessment reports concluded the children were adoptable. The childrens medical, physical, and emotional problems were fully disclosed and evaluated. B.D. was evaluated for the Inland Regional Center for the Developmentally Disabled and was found ineligible. Although Z.D. had not yet been evaluated for Inland Regional Center due to his young age, he was under the care of three medical specialists and was doing well in his placement. While the children presented challenges, there was substantial evidence establishing that their problems were manageable and that K.D., B.D., and Z.D. were very desirable, adoptable children.

3. Beneficial Parental Relationship Exception

Mother contends the trial court abused its discretion in not applying the beneficial parental relationship exception to terminating her parental rights. Mother argues that, under the exception codified in section 366.26, subdivision (c)(1)(A), her parental rights should not have been terminated because severing her relationship with K.D., B.D., and Z.D. would be detrimental to them.

The juvenile court law favors adoption as the permanent plan for a dependent child when the parents are unable to complete reunification in a timely manner. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) Several exceptions to the preference for adoption are provided in section 366.26, including the beneficial parental relationship exception. (In re Autumn H., supra, at p. 574; 366.36, subd. (c)(1).) The standard of review for the trial courts rulings on the applicability of the exception is a matter of some dispute in the courts. One court has held that such a ruling is akin to a custody finding, and subject to review for abuse of discretion. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Other courts, including the Fourth Appellate District, have treated the matter as a factual determination, subject to the substantial evidence test. (See, e.g., In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017-1019; In re L.Y.L. (2002) 101 Cal.App.4th 942, 953; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207; In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) We shall apply the substantial evidence standard.

In reviewing application of the beneficial parental relationship exception, the court in In re Autumn H., supra, 27 Cal.App.4th 567, held that the benefit from continuing the [beneficial] relationship exception to the preference for terminating parental rights and selecting adoption as the permanent plan requires more than incidental benefit. The beneficial parental relationship must be such that the relationship promotes 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. In other words, 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 parents rights are not terminated. (Id. at p. 575.)

This determination is based upon such variables as the childs age, the portion of the childs life spent in the custody of the natural parent, the effect of interaction between the parent and the child, and the childs particular needs. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)

Mother argues that the beneficial parental relationship exception applies because she consistently visited her children and she maintained a loving and beneficial parental relationship with her children, from which they would benefit. Mother regularly visited her children throughout the dependency proceedings. Mother played with her children and brought them gifts. According to mother, they also called her mom; Z.D. ran to her when she arrived for a visit; the children cried and clung to her when visits ended; and K.D. asked at every visit if the children would be going home with mother soon.

Nevertheless, there is substantial evidence supporting the trial courts finding that the beneficial parental relationship exception does not apply. Although mother regularly visited her children, this alone is not enough to establish the exception. Mother must show more than frequent and loving contact or pleasant visits. [Citation.] Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] [Citation.] The parent must show he or she occupies a parental role in the childs life, resulting in a significant, positive, emotional attachment from child to parent. [Citations.] (In re L.Y.L., supra, 101 Cal.App.4th at pp. 953-954, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.) In other words, for the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt. [Citation.] (In re Angel B. (2002) 97 Cal.App.4th 454, 468; see also In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.)

Upon the court finding that a child is likely to be adopted, the burden shifts to the parent to show that the exception applies, and we must affirm a trial courts rejection of the exception if the ruling is supported by substantial evidence. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.)

Here, there was no evidence mother assumed or maintained a parental role in the childrens lives or that the children would be greatly harmed by terminating mothers parental rights. When the children lived with mother, she was a chronic drug user. By the time of the .26 hearing, the children had not lived with mother for over two years and did not show signs of a strong bond with her. The children were young when removed from mothers custody. K.D. was three years old and B.D. was 21 months when detained by the DCS. Z.D. was removed from mother at birth and has never lived with her. Mothers visits with the children were brief one-hour, supervised visits.

The social worker reported mother did not play well with the family as a whole and tended to be attentive to Z.D. but not the other children. The social worker also reported that K.D. and B.D. did not appear to be bonded to their parents. K.D. and B.D.s foster mother stated that K.D. and B.D. did not speak about their siblings or parents before or after visits. Although B.D. cried when the visits ended, this usually occurred when the visits were interrupted while he was deeply engaged in playing with his toys or eating candy mother had brought him.

The benefit of placing the children in a permanent, stable home through adoption far outweighed preserving their relationship with mother. We conclude there was insufficient evidence that the children would benefit more from continuing their relationship with mother than from adoption.

Mother argues that the children said they did not want to go to the midwest to their prospective adoptive familys home and wanted to return to mothers home. However, there is no admissible evidence of this. Mother cites to her attorneys statement made during argument on her section 388 petition, that an unidentified person said she heard the children say this. The social worker, on the other hand, reported that the children appeared to enjoy their visits with their prospective adoptive parents and were comfortable with them.

There is no evidence that the children would be harmed -- much less greatly harmed (see In re L.Y.L., supra, 101 Cal.App.4th at p. 953) -- by severing their relationship with mother. The juvenile court thus appropriately found that the beneficial parental relationship exception to termination of mothers parental rights did not apply.

4. Denial of Independent Counsel

Mother complains that the same counsel represented all five children and this resulted in ineffective representation because C.D.s interests conflicted with K.D., B.D., and Z.D.s interests. She claims counsel for the children likely did not fully advocate C.D.s interest in maintaining C.D.s bond with K.D., B.D., and Z.D., because it conflicted with the adoption of C.D.s siblings. C.D. had an interest in opposing his siblings adoption because adoption would entail termination of his sibling relationship. Mother argues that, had C.D. had separate counsel, his attorney would have opposed K.D., B.D., and Z.D.s adoption. Because there was a conflict, mother argues, the childrens attorney was required to withdraw since counsel could not obtain informed consent from the children to continue representation despite the conflict.

Mother also criticizes the trial court for not inquiring as to whether a conflict of interest existed in the representation of the five children by the same counsel. Mother asserts that the court was required to disqualify and remove the childrens counsel and appoint independent counsel for each of the children.

The DCS argues that mother waived her objection to joint representation of her children and her ineffective representation claim by not raising the objections in the trial court. We agree. Mother is precluded from urging on appeal a point not raised in the trial court. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846, quoting In re Riva M. (1991) 235 Cal.App.3d 403, 411-412; see also In re Katrina W. (1994) 31 Cal.App.4th 441, 448 [contention that county counsel had conflict of interest in also representing minors was waived by failure to object in juvenile court].) Arguably, we could excuse such a waiver by the minors themselves, because their trial counsel could hardly be expected to assert his or her own ineffectiveness. Mother was under no such handicap. Because mother failed to object to joint representation of her children in the trial court, she waived the objection and cannot assert it for the first time in this court.

Even assuming the issue was not waived, it lacks merit because there was no prejudice. Had separate counsel represented C.D. and objected to his siblings adoption based on the sibling relationship exception ( 366.26, subd. (c)(1)(E)), it is highly probable the juvenile court would have rejected the exception. The childrens attorney and the DCS raised the fact that C.D. had been bonded to his siblings, particularly K.D. Counsel for the children informed the court he had interviewed C.D. concerning adoption of K.D., B.D., and Z.D., and C.D. said he was not opposed to it. In addition, C.D. had not lived with the other children for over two years; he had serious behavioral problems, including sexually acting out and violence; when he had been in foster care with the others, there had been episodes of violent fighting; and it was inevitable the children would have separate permanent plans, since C.D. was not adoptable due to his behavioral problems.

Any benefits from maintaining the sibling relationship between C.D. and his siblings were far outweighed by the benefits of K.D., B.D., and Z.D. being placed in a permanent adoptive home. While C.D. would have benefited from maintaining the sibling bond, the sibling relation exception statute refers to that relationships impact on the child being considered for adoption, not the impact on the sibling or anyone else. ( 366.26, subd. (c)(1)(E).) [T]he language focuses exclusively on the benefits and burdens to the adoptive child, not the other siblings. The court is specifically directed to consider the best interests of the adoptive child, not the siblings, and must ultimately determine whether adoption would be detrimental to the adoptive child, not the siblings. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) Nothing in the statute suggests the Legislature intended to permit a court to not choose an adoption that is in the adoptive childs best interest because of the possible effect the adoption may have on a sibling. (In re Celine R. (2003) 31 Cal.4th 45, 54.) Here, it was unquestionably in the best interests of K.D., B.D., and Z.D. to be placed in a permanent, stable adoptive home, even if it meant severing their bond with C.D.

Mother not only waived her objection to her childrens joint representation but, in addition, her objection lacks merit because, even if C.D. had been represented by separate counsel, the court would not have found the sibling relationship exception applied. It is thus not reasonably probable that had C.D. been represented by independent counsel, the outcome would have been any different. (In re Daniel H., supra, 99 Cal.App.4th at p. 813.)

5. Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Hollenhorst

Acting P.J.

We concur:

s/King

J.

s/Miller

J.

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^[1] Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.

^[2] Father, C.D., and Ca.D. are not parties to the instant appeal.