In re B.H.

Filed 4/18/07 In re B.H. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

In these child dependency proceedings, the mother, Michelle H., appeals from an order terminating her parental rights as to two of her children and limiting her right to make decisions as to a third child. We affirm.

Background

The mother and her two oldest children, A., then 16 months old, and B., then two and one-half months old, came to the attention of the Department of Social Services (the Department) in February 1996, after B. was taken to the hospital with symptoms of shaken infant syndrome. The childrens father, the mothers husband, admitted to having physically abused the child. The father was convicted of child abuse, was incarcerated as a result of the conviction, has had no further contact with the children and is not a party to this appeal. Following the filing of a Welfare and Institutions Code section 300 petition,[1] the juvenile court exercised jurisdiction over the children and placed them in the home of their maternal grandparents, ordering reunification services for the mother. The mother was successful in her reunification plan, and was reunified with A. in October 1996. In April 1997, dependency was terminated, and the mother also was reunified with B. At that time, A. appeared to be in good health. B., too, was in good health except for the brain damage he had suffered as a result of his fathers assault, resulting in legal blindness and possible other neurological deficits, and was on medication for seizures.

In May 1999, A., a girl, was sexually molested. She was sexually molested again, in July 2003, by the boyfriend of the woman with whom the mother and children were living. In the meantime, the mother had not taken advantage of services that had been offered to her, including those designed to address B.s disabilities. In November 2002, it was learned that the mother was in jail and the children were living with their grandmother. After the mother was released, she discontinued all services. She was abusing controlled substances, and in September 2004, a social worker observed raw sewage in the yard of the mothers residence, and scattered piles of unsafe or unsanitary trash and debris throughout the interior and exterior common areas of the home. A new dependency petition was filed in September 2004. The court exercised jurisdiction over the children, a reunification plan was developed for the mother, and the children were placed in licensed foster care.

On January 20, 2005, the mother gave birth to T., her third child. On March 24, 2005, the mother and her husband, T.s father, were arrested on charges of possession of a controlled substance, being under the influence of a controlled substance and possession of a firearm by a convicted felon. On March 29, 2005, the juvenile court detained the child, finding true allegations the mother continued to use methamphetamine and had failed to make substantive progress in substance abuse treatment. The court sustained the petitions allegations and exercised jurisdiction over the child, who ultimately was placed in the foster home where A. and B. already were residing.

A six-month review of A.s and B.s situation was conducted in May 2005. The social worker reported the mother was not in compliance with her case plan. She had not obtained counseling, education services or parenting education services. She had failed to test for controlled substances on a number of occasions, and appeared to be avoiding contact in order to avoid testing. She had not gone through a 12-step program, had attended only a few group sessions, had tested positive for methamphetamine and had been arrested for possession of drugs. The court, accordingly, continued the children in the care, custody and control of the Department, ordered the mother to comply with all aspects of the case plan, continued the matter to October 24, 2005, and warned the mother if she failed to reunify with the children by that time, her parental rights might be terminated and the children placed for adoption.

The Department filed a status review report on October 14, 2005, constituting the 12-month review for A. and B. and the 6-month review for T. The Department reported that both the mother and her husband had failed their case plans. The mother was serving a term of four years four months in state prison as a result of the March 2005 arrest. The children were doing well at the foster home, but A. had serious and escalating behavior problems believed to have resulted from the sexual abuse. She had attempted to initiate sexual conduct with an older boy, lied about other childrens behavior to get them into trouble and was attempting to control adults and peers through passive/aggressive conduct. B. was in good health but was legally blind, had significant delays in his functioning and was in need of constant supervision. T. appeared to be mentally and emotionally healthy. On October 24, 2005, the court found that return of the children to the parents would create a substantial risk of detriment to the children and there was no substantial probability the children would be returned to the physical custody of the parents within 18 months of the original detention. The court therefore ordered the termination of reunification services to the mother and to T.s father, and set the matter over to February 27, 2006, for a section 366.26 hearing to terminate parental rights.

On February 22, 2006, the Department reported that A.s sexualized behavior in the foster parents home had increased so that she would be moved to a group home offering specialized counseling for behaviors indicating a history of molestation. The foster parents wished to adopt both B. and T. They originally had wished to adopt A., and asked to be considered potential adoptive parents when her behavior issues were resolved, but felt they could not provide the supervision or therapeutic context she needed.[2] The Department conducted an adoption assessment for both B. and T., finding each was likely to be adopted if parental rights were terminated. The Department, accordingly, recommended the court adopt a permanent plan terminating the mothers parental rights as to them but not as to A. A hearing on the matter was held on April 24, 2006. The mother was present. The childrens attorney was present, but the children themselves were not. After reviewing the Departments report and attachments, and taking evidence, the court adopted the Departments recommendations, terminating the mothers parental rights as to B. and T., but not as to A. The court also limited the mothers power to make decisions for A., referring her to the local educational agency for appointment of a surrogate parent.

The mother appeals. She does not state any appellate issues relating directly to T., but claims error in the proceedings relating to B. and A.

Discussion

I.

Childrens Preferences

The mother contends her due process rights were violated because the court terminated parental rights without first obtaining the opinion and preferences of the children. There is no question that the childs interests are at stake at a hearing to terminate parental rights. Section 366.26, subdivision (c)(1) provides that when the court determines it is likely the child will be adopted, the court shall terminate parental rights unless it finds a compelling reason for determining termination would be detrimental to the child. Section 366.26, subdivision (h)(1) provides that at all proceedings under the section, the court shall consider the wishes of the child and shall act in the best interests of the child. Section 366.26, subdivision (h)(3) provides a method for taking the childs testimony. The statute therefore recognizes that a childs wishes, while not dispositive, are relevant to the question of whether his or her best interests require the continuation of parental rights. Indeed, it has been held that the statute imposes a mandatory duty on the courts to consider the childs wishes to the extent ascertainable prior to entering an order terminating parental rights under section 366.26, subdivision (c).) (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591.) Section 366.22, subdivision (b) provides, in connection with the permanency review hearing, that whenever the court orders a hearing pursuant to section 366.26, the department of social services is required to prepare an assessment that shall include, (5) . . . a statement from the child concerning placement and the adoption or legal guardianship, unless the childs age or physical, emotional, or other condition precludes his or her meaningful response. Other provisions of the Welfare and Institutions Code reinforce the idea that the childs wishes are relevant, providing additional vehicles for ascertaining those interests. (See 317, 328, 366.21, subd. (i)(5).)

Here, the court did not take the childrens testimony prior to terminating the mothers parental rights as to B. However, the Departments adoption assessment included a section on the childrens attitude toward placement and adoption. An adoption specialist had interviewed A., explaining to her what then were the permanent plans for her of adoption and legal guardianship. A. listened attentively and appeared to understand the concepts. She then stated that she believed her birth mother was not going to change. She stated that it was clear that there were a number of things in her mothers lifestyle that her mother loved, but she doesnt love her children. [A.] stated that she wanted a family, that she preferred the plan of adoption to guardianship, and that I think this is the family for me.  The specialist reported as to B., [he] has not been interviewed regarding placement and adoption as his significant developmental delays preclude his having the ability to comprehend or comment on the issues in a meaningful manner. He appears to be comfortable in the presence of his foster parents, and he appears to have progressed behaviorally while in their care.

Nothing more was required. As the court in In reLeo M. recognized, there is no requirement that the childrens feelings regarding termination be presented through their testimony during the termination hearing, or in any other particular way. (In re Leo M., supra, 19 Cal.App.4th at pp. 1591-1594 & fn. 6.) There is no requirement that the court consider a childs wishes when they are not ascertainable. (In re Amber M. (2002) 103 Cal.App.4th 681, 687; In re Juan H. (1992) 11 Cal.App.4th 169, 173.) The code does not require the court to decide, independently, whether the Departments analysis of the childrens wishes is correct, or if the evidence supports the social workers belief that a childs physical, emotional or other condition precludes a meaningful response. In sum, the statutory scheme was followed here. There was no failure of due process. (See Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256, recognizing that the statutory scheme comports with due process.)

II.

Absence of Children at Hearing

The mother complains the court failed to inquire why B. was not present at the permanency planning hearing. The complaint is based on sections 349 and 366.26, subdivision (h)(2), which provide that a child is entitled to notice of any juvenile court hearing, has a right to counsel and if the child is 10 years of age or older and is not present at the hearing, the court shall determine whether the minor was properly notified of his or her right to attend the hearing. The court here found that A., who was 11 years old at the time, was given notice of the hearing, and was represented by counsel. It is true, as mother contends, no similar finding was made regarding B. B., however, although 10 years old, was developmentally delayed, and it had been determined that his developmental delays rendered him incapable of comprehending or comment on the issues in a meaningful manner. The proceedings therefore complied with the substance, if not the form, of the law. In any event, for the same reason, the record shows that B.s presence would have not have altered the outcome of the proceedings. Any error, therefore, is harmless, even were we to deem it constitutional error, requiring harm beyond a reasonable doubt. (See In re Angela C. (2002) 99 Cal.App.4th 389, 394-396.[3])

III.

Evidence that Termination of Rights Would be Detrimental

As mentioned above, at the section 366.26 hearing, the court is required to terminate parental rights unless it finds a compelling reason for determining termination would be detrimental to the child under specified circumstances. One of the specified circumstances is that [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 mother contends her parental rights should not have been terminated because of the bond between B. and A.

First, as parental rights were not terminated as to A., it is of only indirect relevance that interfering with the sibling relationship might be detrimental to her. (See In re Celine R. (2003) 31 Cal.4th 45, 54 [sibling relationship exception permits the trial court to consider possible detriment to the child being considered for adoption, but not a sibling of that child].) Second, the test is not whether there is some evidence that the sibling relationship would be affected, but whether there is compelling evidence the effect on the relationship would be detrimental to the childs best interests. Even then, the evidence must be weighed against the interest in permanence through adoption in determining whether the childs best interests require a continuation of parental rights. It is the parents burden to show that the termination of parental rights would be detrimental to the child. (In re Fernando M. (2006) 138 Cal.App.4th 529, 535; In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) We affirm the trial courts determination of this issue if it is supported by substantial evidence. (Ibid.)

The evidence here is that a willing family that had successfully cared for B. for nearly two years wished to adopt him. He is a child with numerous special needs and the foster parents, who are experienced in caring for children with special needs, had shown themselves capable of providing for him. While the B. and A. had a close relationship, it included problematic elements such as A.s attempts to direct B.s behavior rather than allowing responsible adults to do so and a history of sexualized conduct.[4] Because of A.s history and conduct, it is unlikely the children could be kept together even if the mothers parental rights were not terminated. The social worker managing the case, pointing out that B. has moderate to almost severe delays from being shaken as a baby, testified that while B. loved his sister, she isnt in the picture for him when shes not with him. For example, when the social worker asked B. about A. the previous week, he goes, oh, how is she, and I said shes doing fine, and he went off on something else. In addition, the foster parents had expressed a desire to maintain sibling contact between B. and A. in the form of periodic visits. The evidence fully supports the courts conclusion that the interference with the sibling relationship that would result from terminating parental rights did not provide compelling evidence that B.s bests interests required the continuation of parental rights, especially when weighed against the advantages to him of having a permanent plan.

IV.

Attorneys Conflict of Interest

The mother complains that one attorney was appointed to represent all three children, arguing the differing interests of the children created a conflict of interest, requiring appointment of counsel for each child. It has been held that appointed counsel may not represent more than one child where there is an actual conflict of interest between them. (Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1431 (Carroll); In re Candida S. (1992) 7 Cal.App.4th 1240, 1252 (Candida).) It also has been concluded that an attorney may not be appointed to represent multiple minors if it is reasonably likely an actual conflict of interest between or among them might arise. (Carroll, supra, at p. 1431.) That T. never had much contact with the mother does not create a conflict of interest between him and his siblings. Similarly, that the foster parents wished to adopt B., but not A., did not, in and of itself, create a conflict of interest. The only conflict might be between the interest of T. and B. in adoption and A.s interest in preserving a sibling bond with them. Even assuming such a conflict existed, appointing the same attorney for both children created no difficulties for B., whose interests were furthered by the order terminating parental rights. It also could create little resulting hardship for A., whose behavior necessitated absenting her from her brothers in all events. Adoption of Jacob C. (1994) 25 Cal.App.4th 617, cited by the mother, requires no other result. First, the case is distinguishable in that itinvolved private adoption rather than the termination of parental rights under the Welfare and Institutions Code, and there was evidence that the child would suffer injury as a result of the termination of parental rights. Second, and perhaps more to the point, the court held only that there are times when an attorney should be appointed to represent a childs interests. (Id. at pp. 626-627.) All the children here were represented by counsel.

Finally, assuming an actual conflict of interest, the failure to appoint separate counsel is subject to harmless error analysis on review. (Candida, supra, 7 Cal.App.4th at p. 1252.) There is no likelihood that appointing separate counsel for the children would have prevented the termination of the mothers parental rights as to T. and B. Any error, and we have found none, would have been harmless.

V.

Evidence B. Was Likely to be Adopted

The mother, pointing out that the foster family had changed its mind about adopting A., argues that it might also change its mind about adopting B. and that the evidence therefore does not support the courts finding that B. was adoptable. The question here is not whether there is evidence supporting a finding that B. is not adoptable, but whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that B. is likely to be adopted. (In re Asia L. (2003) 107 Cal.App.4th 498, 510-511.) That the foster parents expressed the desire to adopt him provides that evidence (ibid.), distinguishing this case from others, such as In re Michael G. (1983) 147 Cal.App.3d 56, where no family had expressed an interest in adopting the child who fast was approaching an age where it would be difficult to place him for adoption. (Id. at p. 61.) In addition, while it always is possible a foster parent may change his or her mind about adoption, there is nothing in the record to suggest that a change of heart might occur here. The foster parents were well-acquainted with B. and his physical and emotional limitations, had parented him successfully and successfully had adopted several other children. Unlike the situation with A., whose sexualized behavior was escalating so that she placed the other children in the home at risk and needed treatment the foster parents could not provide, the evidence is that B.s behavior was improving under the care of the foster parents. In sum, the evidence fully supports the trial courts conclusion that B. is adoptable.

VI.

Ineffective Assistance of Counsel

The mother contends that if this court finds she waived any of the arguments made in this appeal, the waiver resulted from the ineffective assistance of counsel, necessitating reversal of the order terminating parental rights on those grounds. Our decision here is not based on a finding of waiver. In addition, a parent seeking reversal for the ineffective assistance of counsel must show both that counsels representation fell below prevailing norms, and that in the absence of the claimed failings a more favorable result was reasonably probable. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667‑1668.) For all the reasons stated above, we not only find that counsels representation met prevailing norms, but also that no different result would have been obtained had counsel taken all the actions the mother contends should have been taken.

Disposition

The orders are affirmed.

_________________________

STEIN, Acting P. J.

We concur:

_________________________

SWAGER, J.

_________________________

MARGULIES, J.

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

[2] The prospective foster parents had adopted five other boys who were then teenagers, a fact that rendered A.s conduct even more problematic.

[3] In the cited case, the mother herself was not notified of the hearing, so that her own due process rights were affected. There is no reason to suppose that the failure to notify the child deprived the mother of due process.

[4] The social worker reported that prior to removal from the mothers home, A. had engaged in sexual behavior with him.