In re A.C.

Filed 8/3/07 In re A.C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Riverside County. William A. Anderson, Jr., Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

Sharon S. Rollo, under appointment by the Court of Appeal, for Minors C.S. and D.S.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Minors A.C and J.C.

Stephanie S., defendant and appellant (hereafter mother), appeals from the trial courts order under Welfare and Institutions Code section 366.26^[1]terminating her parental rights to the younger two of her five children and from the order denying her motion under section 388, seeking modification of the trial courts earlier order terminating mothers reunification services. Mother contends first that the trial court abused its discretion in denying her motion under section 388 to reinstate reunification services. Next, mother contends that the beneficial relationship and sibling relationship exceptions to termination of parental rights apply in this case. Mother also contends that counsel for the children had an actual conflict of interest that requires reversal of the order terminating her parental rights. Finally, mother contends that she was denied the effective assistance of counsel because the preliminary adoption assessment required under section 366.21, subdivision (i) was inadequate and her attorney did not object. We conclude that if any error occurred, it was harmless. Therefore we will affirm both orders.

FACTUAL AND PROCEDURAL BACKGROUND

Riverside County Department of Public Social Services (DPSS) filed section 300 petitions with respect to mothers five children on July 29, 2004, after removing the children from her custody during an investigation of allegations that mothers current husband had sexually molested two of mothers daughters, then 10-year-old J. and nine-year-old T. DPSS removed the children because mother had promised but failed to get a restraining order against her husband after she and the children moved in with her mother. DPSS also suspected that mother, who had a long history with Child Protective Services (CPS), was using drugs.^[2] When interviewed, the oldest child, then 13-year-old A., reported that mother had hit her with her hand, a belt, and a shoe. A. also reported that a lot of strangers came to the family home and that she had seen drugs (a white powder) and a pipe in the house. The drug information led the social worker to suspect that the parents were selling drugs.

DPSS placed the children in two separate foster homes, the two youngest children, 20-month-old C., and seven-month-old D., who are the subject of this appeal, and the oldest child A., in one home, and J. and T. in another. Mother continued to live with her mother. By November 29, 2004, the date of the contested jurisdiction hearing, A. had been moved to a new foster home so that she could attend Perris Military Academy, and C. and D. were placed in a new foster home after the foster family with whom they had been living requested they be removed.

The trial court made jurisdiction findings on the various allegations including the allegation under section 300, subdivision (b) that mother had failed to protect the children, among other things, from mothers substance abuse, from domestic violence between her and her then husband, and from the husbands sexually abusive acts. The trial court ordered reunification services for mother and advised her that she had six months within which to reunify with C. and D.

On December 22, 2004, DPSS placed all five children in the home of their maternal grandmother. Mother regularly visited the children, and according to the social workers report for the six month review hearing conducted on May 18, 2005, her interaction with the children was appropriate, although A., the oldest child, chose not to have contact with mother. The social worker also reported that mother had not completed any aspect of her reunification plan. Although mother had enrolled in Parents United, a progress report from that organization dated February 25, 2005, stated that she had attended only 10 of the 17 scheduled meetings and had missed all but one session in February. As a result of poor attendance, mother was in danger of being terminated from that program. Mother also had enrolled in MFI, a substance abuse outpatient program, but was terminated from the program after a month because she failed to regularly attend classes. Mother also failed to drug test in December 2004 or January 2005 because she could not be reached by telephone and therefore could not be told when to appear for testing. Mother tested twice in February 2005 and both tests were negative. Mother told the social worker that she had completed parenting classes through Catholic Charity but mother had not provided the social worker with a certificate of completion. In an addendum report prepared in May, the social worker stated that mother was making progress on her case plan in that she was attending a domestic violence class, was participating in the Parents United program, and has had regular drug tests all of which were negative. However, mother had not enrolled in a substance abuse program, and had quit the previous program in order to work full-time.

At the six-month review hearing, the trial court followed the social workers recommendation and ordered six additional months of reunification services for mother. The trial court also authorized overnight and weekend visits between mother and the children, all of whom continued to live with their maternal grandmother, if mothers drug tests were clean and she participated in the case plan.

By the time of the contested 12-month review hearing on October 26, 2005, mother had not made any progress on her case plan. The social worker reported that mother had reenrolled in a substance abuse program on August 8, 2005, but on September 22, 2005, mother tested positive for methamphetamine and cocaine. Mother had attended only half of the classes available to her through Parents United, and according to a report from that program, mother tends to blame the system for not having her children, as well as other circumstances in her life. The report from Parents United also stated that mother has difficulty taking responsibility for her life and her choices. Mother had not completed the domestic violence program specified in her case plan because she failed to attend regularly and was dropped from the program. Mother reenrolled in the program in May 2005 but did not attend in June and attended only sporadically in July. The program counselor recommended that mother continue in the program and estimated that if mother were to attend regularly she could complete the program by December.

At the conclusion of the 12-month review hearing, the trial court terminated mothers reunification services and set a section 366.26 selection and implementation hearing for February 23, 2006. The recommended permanent plan for the two youngest children, C. and D., was adoption by their maternal grandmother, their current caretaker. The recommended plan for the three oldest children was legal guardianship with their maternal grandmother.

The selection and implementation hearing took place on May 10, 2006. In the intervening six months, A. had been removed from the maternal grandmothers home at the grandmothers request because A. was defiant and had physically assaulted the grandmother. DPSS placed A. in a foster home but had to move her twice because of her defiant behavior. By the time of the selection and implementation hearing, A. was in a group home where she was placed upon her release from juvenile hall after she was taken into custody for assaulting a foster child at her previous foster home. J. and T. continued to do well in their placement with the maternal grandmother. In December 2005, DPSS placed C. and D. with their maternal uncle and aunt, but because they lived in the same house with the maternal grandmother, the change in placement did not require moving the children. Because reunification services had been terminated, mother had supervised monthly visits with the children initially at the grandmothers home and ultimately at the CPS office and at A.s group home. A. had weekly visits with her siblings at the grandmothers house. By the time of the selection and implementation hearing, mother was unemployed and living in a church in Riverside.

On May 10, 2006, the date of the selection and implementation hearing, mother filed a motion under section 388 in which she alleged that circumstances had changed since the 12-month review hearing because mother had completed a residential treatment program at Set Free Womens Ranch and also had completed the educational component of the Parents United program. Based on the alleged changes, mother asked the court to vacate the selection and implementation hearing and reinstate reunification services for mother with respect to all five children. The trial court denied the motion.^[3]

Mother, A., and J. testified at the selection and implementation hearing. In their testimony, A. and J. both expressed their respective understandings regarding the effect adoption of C. and D. would have on the sibling relationship. As A. put it, the court would not recognize the relationship but A. would still consider C. and D. to be her brother and sister. Both A. and J. stated they agreed with the proposed adoption plan. Mother testified, in pertinent part, that she had a bond with C. and D. and mother believed it would hurt them very much if they were adopted. Mother believed that C. and D. needed her as much as she needed them.

At the conclusion of the hearing, the trial court terminated mothers parental rights to C. and D., after making the required findings, including a finding that both C. and D. were likely to be adopted, and ordered adoption as the permanent plan. The trial court ordered legal guardianship with the maternal grandmother as the permanent plan for T. and J. and a planned permanent living arrangement as the permanent plan for A.

DISCUSSION

We first address mothers challenge to the trial courts order denying her section 388 motion.

1.

DENIAL OF SECTION 388 MOTION

Section 388 states, in pertinent part, as follows: (a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . [] . . . [] (c) If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . . A parent bringing such a petition must show (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. (In re Anthony W. (2002) 87 Cal.App.4th 246, 250.) To be entitled to a hearing on the petition, the petition must make a prima facie showing of both these elements. (In re Anthony W., supra, at p. 250.)

Whether to conduct a hearing on a section 388 petition alleging changed circumstances is within the juvenile courts discretion. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) When the juvenile court summarily denies a section 388 petition, this court reviews that decision under an abuse of discretion standard. (In re Aaron R. (2005) 130 Cal.App.4th 697, 705.) A section 388 petition should be liberally construed in favor of granting a hearing to consider the parents request. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) However, a hearing may be denied when the petitioner fails to reveal any change of circumstances that might require a change of order. (In re Aljamie D., supra, at p. 431.) The juvenile court may rely on its own knowledge of the facts of the case to summarily deny a section 388 petition. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.)

The trial court did not expressly determine whether mother made the showing necessary to be entitled to a hearing on her section 388 motion. Instead, the trial court entertained argument by counsel, but declined mothers request to make a statement under oath, before denying mothers motion. We are not persuaded that mother made the requisite prima facie showing of changed circumstances. But even if we were to conclude otherwise and construe the trial courts ruling as one on the merits, we would affirm because mother failed to show changed circumstances. Mother showed only that she finally had undertaken the requirements of her reunification plan. She did not demonstrate that as a result of her effort the circumstances that gave rise to the dependency had changed and as a result mother was able to protect the children from acts of molestation and exposure to domestic violence. At best, mothers showing established that circumstances were changing, but that showing is insufficient. (In re Casey D. (1999) 70 Cal.App.4th 38, 49.) Therefore we conclude that the trial court did not err in denying mothers section 388 petition.

2.

PARENTAL RIGHTS TERMINATION

Mother contends that the beneficial relationship and sibling relationship exceptions to termination of parental rights apply in this case and therefore the trial court erred in terminating her parental rights to C. and D. We disagree.

A. Beneficial Relationship Exception

Section 366.26, subdivision (c)(1)(A) provides that if the juvenile court finds that a dependent child is adoptable, the court shall terminate parental rights, unless the court finds a compelling reason for determining that termination would be detrimental to the child, because (A) The parent[] ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

The so-called beneficial relationship exception requires much more than an incidental benefit to the child. Rather, it contemplates that the parent and the child will have developed such a significant, positive, and emotional attachment from the child to the parent that severance of the relationship would be detrimental to the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The parent must occupy a parental role with regard to the child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) The burden is on a parent to establish at the selection and implementation hearing that the exception applies. (Cal. Rules of Court, rule 5.725(e)(3); In re Daisy D. (2006) 144 Cal.App.4th 287, 291.) On appeal, we affirm the juvenile courts finding that the exception does not apply if that finding is supported by substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

Mother did not meet her burden in this case. In her testimony mother stated that C. and D. called her mamma, told her they loved her, that during her visits she would take them places like out to eat, during the summer they would swim, and the children would cry when mother left. Mothers showing is inadequate. The title mamma is not enough to establish the exception. Mother must show that she occupied the position of mother in the childrens world. That showing requires evidence that mother fulfilled the needs of the children by performing the functions ordinarily performed by a parent, such as providing food, shelter, clothing, affection, and guidance. (See In re Casey D., supra, 70 Cal.App.4th at p. 50; see also In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother did not present evidence to show that she performed any of those functions for C. and D. either before or after they were removed from mothers care. The only testimony on this point is mothers cursory acknowledgement that she would attend to the childrens day-to-day needs [a]s much as I could, as my mom would let me as much as she could. That showing simply is inadequate to overcome the statutory preference for adoption. Accordingly, we conclude that the evidence supports the trial courts finding that the beneficial relationship exception to termination of parental rights does not apply in this case.

B. Sibling Relationship Exception

Section 366.26, subdivision (C)(1)(E) states that despite the preference in subdivision (b) of section 366.26 for adoption as the permanent plan, the court shall not 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).)

As with the previously discussed exception, mother had the burden to show that termination of her parental rights would substantially interfere with an existing sibling relationship. (In re Megan S. (2002) 104 Cal.App.4th 247, 252.) Even if mother makes the required showing, the trial court may still terminate parental rights if it determines [the child] would benefit more from adoption than [the child] would gain by maintaining a relationship with [the sibling.] (Ibid., citing In re L.Y.L. (2002) 101 Cal.App.4th 942, 952-953.)

Mother did not make the initial showing with respect to C. and D. Mother did not present any evidence on this issue in the trial court. Instead, she assumes that the trial court found the exception inapplicable because at the time of the section 366.26 hearing, it was anticipated that C. and D. would be placed with their maternal uncle and aunt and there would be no interference with the sibling relationship because all the children would continue to live together in the home of the maternal grandmother. Under mothers analysis, the exception would apply unless evidence is presented to show that it does not. That approach not only makes the exception the rule, i.e., not an exception, it also runs counter to the express mandate of the statute. The exception only applies when evidence is presented to show a significant sibling relationship exists and that adoption would substantially interfere with that relationship. (In re Megan S., supra, 104 Cal.App.4th at p. 252, citing In re Tamika T. (2002) 97 Cal.App.4th 1114, 1119-1120.)

The trial court focused on the effect that adoption of C. and D. would have on the other children, as evidenced by the questions posed to A. and J. at the selection and implementation hearing. Although the testimony of siblings is relevant to establish the existence of a significant relationship, particularly when the children being adopted are too young to express their own views, the effect adoption would have on the other children is irrelevant. When considering the sibling relationship exception, the concern is the best interests of the child being considered for adoption, not the interests of that childs siblings. [T]he court may reject adoption under this sibling relationship provision only if it finds adoption would be detrimental to the child whose welfare is being considered. It may not prevent a child from being adopted solely because of the effect the adoption may have on a sibling. [Citation.] (In re Naomi P. (2005) 132 Cal.App.4th 808, 822, quoting In re Celine R. (2003) 31 Cal.4th 45, 49-50.)

Viewed according to the above noted standards, the evidence presented in the trial court shows that except for four months at the inception of this dependency, the children had lived together all their lives. Before the dependency was initiated the children all lived with mother and after the initial four months of the dependency the children all lived with grandmother until A. was moved to a group home. The fact that all the siblings lived together is not sufficient to establish the existence of a significant sibling relationship among all the children because C. and D. are significantly younger than their three siblings. Although previously noted, it bears repeating here that D. was seven months old and C. was 20 months old when this dependency was initiated. The next child, in birth order from youngest to oldest, is T., who was nine years old, followed by J. who was 10 years old, and A. who was 13 years old when the dependency petition was filed. Given the age differences it is not likely that C. and D. shared common experiences with the older children or that strong bonds existed between the younger children and their older siblings. More important, however, is the fact that mother did not present any evidence to show that a significant sibling relationship existed between C. and D. and their three older siblings such that termination of mothers parental rights would significantly interfere with that relationship.

Accordingly, we must conclude that substantial evidence supports the trial courts finding that the sibling relationship exception does not apply in this case.

3.

CONFLICT OF INTEREST

Mother contends that the childrens attorney had an actual conflict of interest that arose when DPSS recommended freeing the two youngest children for adoption, and that conflict of interest requires reversal of the order terminating her parental rights to C. and D. Assuming without actually deciding that a conflict of interest existed and that mother has standing to raise it,^[4]we do not share mothers view that the conflict required reversal of the order.

In a section 300 dependency proceeding, A court should set aside a judgment due to error in not appointing separate counsel for a child or relieving conflicted counsel only if it finds a reasonable probability the outcome would have been different but for the error. (In re Celine R., supra, 31 Cal.4th at p. 60.) Mother asserts that failure to appoint separate counsel for C. and D. is not harmless because mother objected to adoption as the permanent plan for C. and D. In other words, mother apparently is of the view that separate counsel for C. and D. would have raised the sibling relationship exception and thereby objected to adoption as the permanent plan. The only support mother offers for this view is her assertion that the sibling relationship exception to parental rights termination (and thus to adoption) applies in this case. But we addressed and rejected that assertion. Therefore, mother offers nothing in support of her claim that if separate counsel had been appointed for C. and D. it is reasonably probable a result more favorable to them would have occurred. In our view, adoption is the most favorable result for C. and D. Accordingly, we conclude that if C. and D. should have been represented by separate counsel, any error was harmless. In other words, it is not reasonably probable the trial court would have found that the sibling relationship exception applied in this case if separate counsel had been appointed to represent either each child individually or to represent the two sibling sets, i.e., the two youngest children and the three oldest children. Accordingly, we must reject mothers conflict of interest claim.

4.

INEFFECTIVE ASSISTANCE OF COUNSEL

Mother contends she was denied effective assistance of counsel because her trial attorney did not object to the adequacy of the preliminary adoption assessment. According to mother, the assessment was inadequate because it did not include criminal background checks on the prospective adoptive parents. Without that information, mother contends that the trial court could not know whether the maternal uncle and aunt would actually adopt C. and D., and therefore the trial court could not fully assess whether the sibling relationship exception applies in this case. In mothers view, adoption by the maternal uncle and aunt was the reason the trial court found that the sibling relationship would not be affected by the adoption and therefore the exception did not apply. We do not share mothers view.

In order to establish a claim of ineffective assistance of counsel, mother must demonstrate (1) counsels performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation prejudiced [mother], i.e., there is a reasonable probability that, but for counsels failings, [mother] would have obtained a more favorable result. [Citations.] A reasonable probability is one that is enough to undermine confidence in the outcome. [Citations.] (Peoplev. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Stricklandv. Washington (1984) 466 U.S. 668.) In evaluating counsels actions at trial, A court must indulge a strong presumption that counsels acts were within the wide range of reasonable professional assistance. [Citation.] Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. [Citation.] (Peoplev. Dennis, supra, at p. 541.)

Mother has not demonstrated that trial counsels performance was deficient. As set out above, in our discussion of the sibling relationship exception the trial court did not expressly state a reason for finding the exception inapplicable. Therefore, mother is wrong when she asserts that the trial court relied on the fact that C. and D. would be adopted by family members to find that the sibling relationship exception did not apply. Moreover, evidence presented in the trial court other than the fact that the children would be adopted by family members supports the trial courts finding that the sibling relationship did not apply. In other words, and contrary to mothers assertion, adoption by family members was not critical to any finding by the trial court.

Section 366.21, subdivision (i) requires the trial court to order the county adoption agency to prepare an assessment for the selection and implementation hearing that addresses seven specific topics, including, A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the childs needs and the understanding of the legal and financial rights and responsibilities of adoption and guardianship. . . . ( 366.21, subd. (i)(4).) Although criminal background checks on the prospective adoptive parents had not been completed at the time of the selection and implementation hearing in this case, the assessment otherwise complied with the requirements of section 366.21, subdivision (i).

More importantly, the absence of information on the criminal backgrounds of the prospective adoptive parents did not preclude the trial court from making the finding required under section 366.26, subdivision (c)(1) that C. and D. are likely to be adopted if mothers parental rights were terminated. That section states that if the court determines based on the assessment provided under section 366.21, subdivision (i) that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. ( 366.26, subd. (c)(1).) Consequently, even if we were to agree with mothers claim that the preliminary adoption assessment was inadequate, and that trial counsel should have objected to that aspect of the section 366.21, subdivision (i) assessment, we nevertheless would not reverse the order terminating mothers parental rights because the trial court made the required finding that the children were likely to be adopted.^[5]In other words, mother cannot demonstrate prejudice as the result of trial counsels purported deficient performance because she has not demonstrated that but for counsels failure to object it is reasonably likely the court would not have terminated mothers parental rights and therefore would have reached a result more favorable to her in this case. (Peoplev. Dennis, supra, 17 Cal.4th at pp. 540-541.)

Accordingly, for each of the reasons stated we must reject mothers ineffective assistance of counsel claim.

DISPOSITION

The order denying mothers section 388 petition is affirmed and the order terminating mothers parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Richli

J.

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

^[2]Mother drug tested on July 27, 2004, the day DPSS removed the children from her custody, and the results of that test were positive for amphetamine and methamphetamine. Mother drug tested again on September 14, 2004, and the results of that test were also positive for methamphetamine.

^[3]Mother actually filed separate motions as to each child (although the record on appeal contains two copies of the motion filed on T. but does not include a copy of the motion filed on C.) and the trial court denied those motions.

^[4]We recognize that standing is jurisdictional and nevertheless do not resolve the issue.

^[5]The assessment includes the social workers statement that the children are considered adoptable and can be matched to a prospective adoptive home in the event that their current caretakers do not qualify to provide them with a permanent home.