In re Brooke N.

Filed 5/4/06 In re Brooke N. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from judgments and order of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed in part; reversed in part and remanded with directions.

Richard N., the father of Brooke N., Richard N. (Ricky) and Abigail N., appeals the judgments terminating his parental rights pursuant to Welfare and Institutions Code section 366.26.^[1] Brooke and Abigail also appeal the termination of Richard's parental rights. All three contend the juvenile court erred by (1) not applying the sibling relationship exception to adoption (§ 366.26, subd. (c)(1)(E)), and (2) denying Richard's section 388 motion, which sought placement of the children with their paternal aunt and uncle in Arizona. Richard also contends trial counsel for the children rendered ineffective assistance of counsel.

PROCEDURAL AND FACTUAL BACKGROUND

Brooke, Ricky, and Abigail are the children of Richard and his wife, Ashley N.^[2] On February 27, 2003, Ashley was arrested for domestic violence and failure to participate in a drug treatment program for her methamphetamine addiction.^[3] Ashley told a social worker that Richard was an alcoholic and the family home was not safe for the children. Ashley suspected that Richard was sexually abusing three-year-old Brooke, who often had bloody stools and sometimes put a toy snake in her vagina in a sexual manner. At this time, Brooke was almost four years old, Ricky was three years old, and Abigail was almost two years old.

The maternal grandmother told the social worker that Brooke and Ricky, who suffers from cerebral palsy,^[4] had raw rectums and appeared to be in pain when they use the toilet. The grandmother also reported that Brooke exhibited sexual behavior by wetting her finger and putting it in her vagina. Brooke said she learned the behavior "from watching daddy on wwnet." When the grandmother asked Richard about this, he admitted engaging in sexual activities in front of the children, including orgies with Ashley and other adults. Richard also admitted watching pornographic movies and viewing pornographic internet web sites in front of the children.

Brooke told the social worker that she liked staying at her grandmother's house because Richard and Ashley hurt her by hitting her on her arms. She said she was scared of her parents.

On March 7, 2003, the San Diego County Health and Human Services Agency (Agency) filed dependency petitions on behalf of Brooke, Ricky, and Abigail, pursuant to section 300, subdivisions (a) and (b), alleging Richard physically abused them and, along with Ashley, exposed them to domestic violence. The petitions also alleged that Richard abused alcohol daily, and Ashley habitually used methamphetamine, alcohol, marijuana, and cocaine. Additionally, the petitions alleged the family home was filthy and unsanitary, listing, among other things, dirty clothes piled throughout the home and cat feces on the floor and in the children's beds.^[5]

Later that month, Richard, who was in the Navy, was deployed to the Persian Gulf.

On April 1, 2003, the juvenile court sustained the petitions and placed the children with the maternal grandparents. The court ordered Richard to comply with his case plan, which included a psychological evaluation, parenting education, domestic violence treatment, substance abuse testing, substance abuse counseling, a 12-step program, and Safe Paths, a group treatment program for families affected by incest.

Services were not available on Richard's ship; hence, he did not participate in any services during the eight months after the children were taken into protective custody. However, Richard maintained weekly contact with Agency by e-mail and stated he wanted to regain custody of his children.

The social worker reported that the children were doing well with the maternal grandparents. However, the social worker expressed concern about the type of abuse the children had endured when they lived with their parents. In May 2003, physical examinations showed Abigail, and Ricky had anal scarring; Brooke refused to allow the doctor to examine her. All three children displayed troubling sexual behaviors. Therefore, the social worker opined that returning the children to the parents posed an "extreme risk" because of many unanswered questions regarding possible sexual abuse.

At the six-month review hearing on October 1, 2003, the court ordered six more months of services because Richard's deployment had prevented him from participating in reunification services.

Richard's deployment ended in November 2003, and he enrolled in services. The children continued to do well in the grandparents' home, but had negative reactions after visits with Ashley. The social worker expressed concern that visitation between the children and their parents could be detrimental to the children. On December 12, at a special hearing, the court ordered future parental visitation to take place in a therapeutic setting.

On March 30, 2004, at the 12-month review hearing, the court found Richard had made some progress with his case plan and ordered Agency to provide him six more months of services.

On September 3, 2004, Agency filed supplemental petitions under section 387, alleging the children's placement with the maternal grandparents was not effective because the grandparents planned to move the children out of state without Agency's prior approval. On September 3, the court sustained the supplemental petitions. Agency placed Brooke and Abigail together in a licensed foster home and Ricky in a San Diego Regional Center placement where he was able to receive special care for his cerebral palsy.

At the 18-month review hearing on October 19, 2004, the court terminated Richard's reunification services and set a section 366.26 hearing after denying his motion under the Soldier's and Sailor's Civil Relief Act of 1940 (50 U.S.C. Appen. § 501 et seq.) to extend reunification services beyond the 18-month date.

Social worker Fatimah Abdullah assessed the children as adoptable. Agency identified six families willing to adopt all three children as a sibling group and 12 families willing to adopt Brooke and Abigail together. When the children were considered individually, there were 28 families available for Brooke, 32 for Abigail and 12 for Ricky. However, at the time of Abdullah's assessment report, no prospective adoptive parent had been identified for Ricky.

Abdullah reported that although Richard had made substantial progress on his case plan, there did not appear to be a significant parent/child bond that would make termination of his parental rights detrimental. Abdullah also expressed concerns about the risk posed by Richard to the children because he had been diagnosed with major depression and was vulnerable to depressive episodes when under stress. The social worker also questioned Richard's admitted sexual behavior in front of the children. "These children have experience and/or witness[ed] numerous forms of abuse in their short lifetime[;] they deserve the stability and parental consistency that adoption provides," wrote Abdullah. The children's court-appointed special advocate (CASA) agreed termination of parental rights and a permanent plan of adoption would be in the children's best interest.

On April 5, 2005, the date set for the section 366.26 hearing, Richard made an oral section 388 motion to place the children with their paternal aunt and uncle in Arizona, who in February had requested an evaluation of their home under the Interstate Compact on the Placement of Children (ICPC).^[6] Social worker Abdullah recommended the court deny Richard's section 388 motion because the paternal relatives did not have significant relationships with the children, had not shown they were capable of meeting the children's needs, and the aunt appeared "aligned" with Richard, which raised questions about her ability to protect the children from future abuse. Abdullah also questioned the aunt's and uncle's commitment to adoption because the aunt initially said she wanted to provide long-term foster care or guardianship until Richard could care for the children.

The aunt, who, along with her husband, moved from San Diego to Arizona in 2001, saw the children every week before the move. When Ricky was born prematurely and remained in intensive care, the aunt took care of Brooke for about two months. The aunt testified that after the move she saw the children four or five times during trips to San Diego. After the children were removed from the maternal grandparents and placed in separate foster homes, the social worker denied the aunt and uncle visits with the children.

The aunt and uncle said they did not come forward earlier in the case because they believed that reunification was proceeding. They said they wanted to adopt the children to maintain family ties and to keep the children, who were bonded with one another, together. The aunt and uncle had researched schools in their area and resources for caring for a child with cerebral palsy.

The uncle testified that if the court placed the children with him and his wife, he would not allow any party to visit the children without court clearance. If the uncle adopted the children, he would put their needs first and protect them at all costs. The aunt testified she would protect the children from anyone or anything that would cause them harm, including Richard. The aunt believed Richard's actions or lack of action resulted in harm to the children. Following Ricky's birth in 2000, the aunt contacted child protective services because she was concerned about the condition of Richard and Ashley's home and whether Ricky would be receiving the proper care.

Psychologist Raymond Murphy, who performed a bonding study of the children, testified the children had an "exceptional relationship"; they "eagerly" played together and enjoyed their interaction. Murphy opined the children had "a loving and caring relationship," it was "certainly clearly a sibling bonded relationship." Murphy said the children, if separated, "would certainly mourn the loss of their siblings."

Murphy said Brooke and Abigail had a much more developed attachment to Ricky than he had to them, but this was because of Ricky's developmental status. The girls expressed a great deal of affection toward Ricky, who reciprocated to a lesser extent because of his developmental limitations, Murphy said.

Social worker Abdullah testified it was important for Ricky to remain in his placement, which was a medically fragile foster home; the foster mother worked with developmentally disabled children and the foster father was a nurse. Ricky was receiving excellent care, which was critical for his development, and showing exceptional progress. Abdullah opined that any change in this placement would be a "setback" for Ricky. Ricky's foster parents were willing to adopt him and continue his contact with his sisters.

Abdullah also testified that Brooke and Abigail had adapted "wonderfully" to their foster home, and the foster parents wanted to adopt the two sisters. Brooke, who called her caregivers "mommy and daddy" felt secure enough in her placement to begin discussing in therapy the trauma she had experienced. Brooke told the social worker that she wanted to live with her foster mother forever; she did not want to return to Richard or live with his family. Brooke pleaded with Abdullah not to take her away from "my mommy." Abdullah opined the children would regress if placed with the aunt and uncle in Arizona.

Abdullah said she considered the strong sibling bond the children had, but this was outweighed by the fact that they had been separated for eight months and had made progress in their respective homes. The social worker also said the level of care that Ricky received in his foster home outweighed the benefit of having all of the children placed together.

On April 26, 2005, the court denied Richard's section 388 petition, acknowledging it was "a tough call." Among other things, the court said an important factor was "[t]he fact that we would be placing all three children with severe emotional and physical needs at once with [the aunt and uncle]. I do have to agree with the social worker, to remove these children from a stable home where the children have flourished and where it is clear that they are committed to the children, after eight months to place them in a home in a situation of unknown stability would not [be] in the best interest of the children."

The court also found the children were likely to be adopted if parental rights were terminated and the children's need for stability outweighed the bond they shared. The court ruled the sibling relationship exception to adoption (§ 366.26, subd. (c)(1)(E)) did not apply. The court terminated parental rights and ordered adoption as the children's permanent plan.

Richard immediately filed a notice of appeal. On May 17, 2005, trial counsel for the children filed a notice of appeal. On June 3, this court appointed an appellate counsel for Brooke and Abigail, and a separate appellate counsel for Ricky. On July 11, both of the children's appellate counsel, along with the children's trial counsel, filed notice that they were abandoning the children's appeal. On July 12, this court dismissed the children's appeal and ordered the remittitur to issue immediately.

On September 13, 2005, appellate counsel for Brooke and Abigail filed a motion for this court to take additional evidence, vacate the order dismissing their appeal, and reinstate their appeal.^[7] On September 30, this court, on its own motion, recalled the remittitur issued July 12 (Cal. Rules of Court, rule 26(c)(2))^[8] and ordered the reissue of the remittitur as to Ricky only. We vacated the July 12 order dismissing Brooke's and Abigail's appeal and reinstated their appeal, but did not rule on their motion to take additional evidence.

On November 30, 2005, Agency filed a motion to augment the record on appeal with additional evidence. (Rule 12(a).)

On December 23, 2005, appellate counsel for Ricky filed a motion to augment the record on appeal.

On March 9, 2006, Agency filed a second motion to augment the record on appeal.

We deferred ruling on the various motions for additional postjudgment evidence until a panel was assigned to the case.

DISCUSSION

1. Motions Seeking to Have this Court Consider Postjudgment Evidence

Brooke and Abigail, joined by Richard, have brought a motion to take additional evidence under Code of Civil Procedures section 909; the new evidence is that in September 2005, their foster parents changed their minds about adopting the girls and Agency placed them in another foster home. Richard's appellate counsel also submitted an affidavit questioning Agency's actions in removing the children from the foster home. Agency opposed Brooke's and Abigail's motion and Richard's motion.

Agency moved to augment the record under rule 12(a) with October 2005 reports by the social worker and CASA that Brooke and Abigail were placed in a new adoptive home with their infant half-sibling Bryan N.; the girls were doing well there and continued to have visits with Ricky. Brooke and Abigail opposed Agency's motion, as did Richard.

Ricky moved to augment the record (rule 12(a)) with a November 29, 2005 juvenile court minute order, letters of guardianship, and the social worker's addendum report for the November 29 hearing. Ricky's motion was partly opposed by Brooke and Abigail, who objected to the social worker's addendum report, but not the minute order or the letters of guardianship.

In March 2006, Agency again moved to augment the record on appeal with postjudgment evidence. The same parties who opposed Agency's first motion to augment opposed the second one as well.

In In re Zeth S. (2003) 31 Cal.4th 396, (Zeth S.), an appeal challenging the juvenile court's finding that the beneficial relationship exception to adoption did not apply, appellate counsel sought to augment the record on appeal with postjudgment evidence that the parent was currently interacting with the child and the relative caretaker had felt pressured by the social services agency to agree to adopt. (Id. at pp. 403-404.) Our Supreme Court held the Court of Appeal erred in receiving and considering the postjudgment evidence. (Id. at pp. 404, 413.) The court in Zeth S. set forth the general rule that:

" '[A]n appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.' [Citation.] This rule reflects an 'essential distinction between the trial and the appellate court . . . that is it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law . . . .' [Citation.] The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal. 'Although appellate courts are authorized to make findings of fact on appeal by Code of Civil Procedure section 909 and rule 23 of the California Rules of Court, the authority should be exercised sparingly. [Citation.] Absent exceptional circumstances, no such findings should be made. [Citation.]' [Citations.]" (Id. at p. 405, italics added.)

Zeth S. also made it clear that "[t]here is no blanket exception to the general rule for juvenile dependency appeals. Review of such appeals is governed by generally applicable rules of appellate procedure, with proper deference to be paid to the factual findings and uncontested rulings of the juvenile court, and all appropriate inferences to be drawn in favor of the judgment below." (Zeth S., supra, 31 Cal.4th at p. 405.) Only under exceptional circumstances, may an appellate court properly receive and consider postjudgment evidence that was not before the juvenile court. (Id. at p. 400.)

With respect to Brooke's and Abigail's motion, Richard's motion, and Agency's motions, this case does not present any exceptional circumstances warranting our departure from the general rules of appellate procedure to consider postjudgment evidence. Essentially, these parties are asking us to revisit what are essentially substantive evidence issues with new evidence and make new factual determinations - a task that is better suited for the trial court than for an appellate court. "The statutory scheme does not authorize a reviewing court to substitute its own judgment as to what is in the child's best interests for the trial court's determination in that regard, reached pursuant to the statutory scheme's comprehensive and controlling provisions." (Zeth S., supra, 31 Cal.4th at p. 410.) Further, the record already prepared is adequate to decide the issues presented - namely, whether the court erred by denying Richard's section 388 petition and by not applying the sibling relationship exception to adoption (§ 366.26, subd. (c)(1)(E)).

We deny their motions to take additional evidence and/or to augment the record.

With respect to Ricky's motion to augment the record to include the November 29, 2005 minute order, which changed Ricky's permanent plan from adoption to guardianship, and the letters of guardianship, we treat it as a motion to take judicial notice and grant it. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) We deny Ricky's motion to augment the record to include the social worker's addendum report.

II. Richard's Section 388 Motion

Brooke and Abigail, as well as Richard, contend that the court erred by denying his section 388 modification petition, which sought placement of the girls and Ricky with the paternal aunt and uncle in Arizona. The contention is without merit.

Legal Principles

Under section 388, a parent may petition the court to change, modify, or set aside a previous court order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petition shall set forth why the requested modification is in the best interests of the dependent child. (§ 388, subd. (b).)

The parent bears the burden of showing both a change of circumstances exists and that the proposed change is in the child's best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court may consider the entire factual and procedural history of the case in considering a section 388 petition. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)

After reunification services have been terminated, a parent's interest in the care, custody and companionship of the child is no longer paramount. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) At that point, the court's focus shifts to the needs of the child for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

Rulings on section 388 motions are reviewed for abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) An order on a section 388 motion will not be disturbed on appeal unless the court has exceeded the bounds of reason by making an " ' " . . . arbitrary, capricious, or patently absurd determination . . . ." ' " (Ibid.)

Analysis

The court was satisfied that Richard met his burden to show changed circumstances - namely, the availability of a paternal relative placement for the children where previously there had been none. Hence, the issue before us is the second prong of section 388 - whether the proposed placement of the children with the paternal aunt and uncle in Arizona was in the children's best interests.

When the section 388 motion was heard in April 2005, the children had been dependents of the court for two years. Prior to that, they had been physically abused and exposed to domestic violence and sexual activity while living in a filthy and unsanitary residence with parents who abused drugs or alcohol. There also was the possibility that the children had been sexually abused. The children displayed significant emotional problems, and Ricky had severe physical and developmental problems as well.

Since they were removed from the maternal grandparents' home in September 2004, Brooke and Abigail had been in a foster home in which the girls flourished. The foster parents, whom the girls called "mommy" and "daddy," wanted to adopt them, and the girls wanted to stay in the foster parents' care. Brooke's therapist recommended the girls remain in their prospective adoptive placement because they were bonded to the foster mother and they had stability and support for the first time in their lives.

Meanwhile, Ricky had been placed in a medically fragile foster home and was showing tremendous developmental progress; his foster mother worked with disabled children and the foster father was a nurse. The foster parents, whom Ricky called "mommy" and "daddy," were willing to adopt him. As social worker Abdullah observed, it was the first time in Ricky's life that he was receiving the care he needed and deserved. Abdullah opined that if Ricky's placement was changed, he would suffer a setback in his developmental progress.

Thus, on one hand, the court had before it ample evidence that it would be in the children's best interests to remain in their respective foster homes, which also were prospective adoptive homes. Further, maintaining the status quo did not appear to threaten the sibling relationship between Ricky and his sisters because the foster mothers, who provided respite care for each other, said they would continue to arrange for regular visits between the girls and Ricky.

On the other hand, Richard's proposal to have all three children placed with the paternal aunt and uncle also had positive factors to consider. Placing the children with the paternal aunt and uncle would reunite the girls and Ricky, who had lived together most of their lives and continued to have a strong sibling relationship. Moreover, the aunt and uncle appeared to be financially stable and lived in a three-bedroom, 1,900 square foot residence. The aunt and uncle had researched the schools the children would be attending, which appeared to be excellent. The aunt and uncle had also made inquiries about special education opportunities for Ricky.

However, there were many uncertainties presented by the potential placement of these children with the paternal aunt and uncle. Because the aunt had not raised any children of her own, it was reasonable for the trial court to question whether she and her husband would be able to take care of three children, including one whose cerebral palsy and other infirmities required extensive attention. Abdullah doubted whether the aunt and uncle could provide the level of care Ricky needed. Moreover, in recent years, the aunt and uncle had limited contact with the children. While the aunt and uncle lived in San Diego, they had frequent contact with the children, but after their move to Arizona in 2001, they saw the children only four times. Thus, a change in placement would uproot the children from the stability they had gained over the previous eight months in their respective foster homes where all their needs were met by prospective adoptive parents and place them in a relatively unknown environment.^[9]

The court balanced the two alternatives and found the children's best interests would be better served by maintaining their current placements. Richard had not met his burden to show that placement with the paternal aunt and uncle would be in the children's best interests. The court's conclusions were supported by substantial evidence; therefore, we cannot say the court abused its discretion in denying the section 388 motion.

As the Court of Appeal observed in In re Angel B. (2002) 97 Cal.App.4th 454: "When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. [Citation.] That need often will dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child." (Id. at p. 464.) Even when a relative is seeking placement, "the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected." (In re Stephanie M., supra, 7 Cal.4th at p. 321.)

In their resuscitated appeal, Brooke and Abigail ask this court to consider postjudgment evidence that their foster parents decided not to adopt them; the girls claim this undercuts the juvenile court's stability rationale for denying Richard's section 388 motion. We are not persuaded.

As an appellate court, we review the correctness of the trial court's ruling "as of the time of its rendition, upon a record of matters which were before the trial court for its consideration." (In re Heather B. (2002) 98 Cal.App.4th 11, 13.) As indicated in part I, ante, we cannot properly revisit what was essentially a substantive evidence issue with new evidence that was not before the juvenile court when it ruled.

III. Sibling Relationship Exception to Adoption

Richard, as well as Brooke and Abigail, contends the court erred by not applying the sibling relationship exception to adoption (§ 366.26, subd. (c)(1)(E)). The contention is without merit.

Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) "Adoption is the Legislature's first choice because it give the child the best chance at [a full emotional] commitment from a responsible caretaker." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) At the selection and implementation hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless one of the five statutory exceptions applies. (§ 366.26, subd. (c)(1)(A)-(E).) The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; § 366.26, subd. (c)(1).)

Our standard of review is the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We determine if there is substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court, resolving all conflicts in favor of the prevailing party, and draw all legitimate inferences to uphold the lower court's ruling. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)

Section 366.26, subdivision (c)(1)(E), the "sibling bond exception," provides an exception to termination of parental rights 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." (See, e.g., In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952; In re Daniel H. (2002) 99 Cal.App.4th 804, 811.)

The purpose of this exception is to preserve long-standing sibling relationships that serve as "anchors for dependent children whose lives are in turmoil." (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) The sibling relationship exception contains "strong language creating a heavy burden for the party opposing adoption." (In re Daniel H., supra, 99 Cal.App.4th at p. 813.) It focuses exclusively on the benefits and burdens to the child being considered for adoption, not the other siblings. (Ibid.; see also In re Celine R. (2003) 31 Cal.4th 45.)

The threshold showing for the sibling exception is the existence of a sibling relationship and that, with termination of parental rights, "[t]here would be substantial interference with [the] sibling relationship . . . ." (§ 366.26, subd. (c)(1)(E); see also In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017; In re L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.) "The existence of a relationship alone is not enough, but it must be 'sufficiently significant' to cause detriment on termination." (In re Jacob S., supra, at p. 1017; see also In re Celine R., supra, 31 Cal.4th at p. 55 ["the ultimate question is whether adoption would be detrimental to the adoptive child"].) If the parent meets the threshold requirements, the court must undertake a balancing analysis and decide whether the benefit to the child of continuing the sibling relationship outweighs "the benefit the child would receive by the permanency of adoption." (In re L.Y.L., supra, at pp. 952-953.)

It is undisputed a strong bond existed among the children. Moreover, psychologist Murphy, who conducted the bonding study, opined the children would mourn the loss of one another if separated.

However, at the time of the section 366.26 hearing, the uncontradicted evidence was that Brooke's and Abigail's prospective adoptive parents and Ricky's prospective adoptive parents were committed to continue the relationship between the girls and Ricky and planned to facilitate regular visitation. "The [foster parents] have done so thus far, and there [was] no evidence they intend to stop once they have adopted [the children]." (In re Jacob S., supra, 104 Cal.App.4th at p. 1019.) Thus, there was substantial evidence that the children's adoption by the two sets of foster parents would not substantially impair the sibling relationship.

More importantly, even if termination of parental rights resulted in a substantial interference with the sibling relationship, there was substantial evidence to support the court's conclusion that the benefits of adoption outweighed the benefits of continuing the sibling relationship. The social worker's testimony supports the court's finding. (In re Megan S. (2002) 104 Cal.App.4th 247, 252 [one witness's testimony suffices, noting appellate court's deferential review].) All of these children had serious emotional problems, which is not surprising considering their parents had exposed them to domestic violence and adult sexual activity, and had physically abused them. The stability and permanency of adoption would go a long way toward alleviating their emotional difficulties. Further, it was "especially important that [Ricky], with his disability, find a home that can provide adequate care. These concerns outweigh whatever sibling bond exists between the children." (In re Jacob S., supra, 104 Cal.App.4th at p. 1018.)

The juvenile court did not err by failing to apply section 366.26, subdivision (c)(1)(E).

IV. Ineffective Assistance of Counsel

Richard argues the children's trial counsel rendered ineffective assistance because she had a conflict of interest that prevented her from adequately representing the children's separate interests. The crux of his argument was that counsel adopted contradictory positions at trial - supporting Richard's section 388 petition because placement with the paternal aunt would bring all three children together under one roof, but opposing the applicability of section 366.26, subdivision (c)(1)(E) because the benefits of adoption outweighed the benefits of maintaining the sibling relationship.

Although Richard has standing to raise the sibling relationship exception to adoption (see In re L.Y.L., supra, 101 Cal.App.4th at p. 951), he does not have standing to assert that the children's counsel rendered ineffective assistance of counsel (see In re Frank L. (2000) 81 Cal.App.4th 700, 703). A party's standing to appeal is jurisdictional. To have standing, a party must "establish that [he] is a 'party aggrieved' " (Ibid.) "A parent cannot raise issues on appeal which do not affect his or her own rights. . . . The interest of siblings . . . in their relationship with [each other] is separate from that of the parent." (In re Devin M. (1997) 58 Cal.App.4th 1538, 1541.) Richard's interest in maintaining his relationship with the children is separate from the children's interest in continuing to have a relationship with their siblings. Further, whether counsel's advocacy was effective or not, Richard has not shown it affected his interest in reunification. When counsel advocated in opposition to Richard's position at the selection and implementation hearing, reunification was no longer at issue.

In In re Daniel H., supra, 99 Cal.App.4th at pages 810-811, the Court of Appeal held that a parent lacks standing to raise the issue of sibling visitation indirectly, by claiming the child's counsel rendered ineffective assistance of counsel or by claiming counsel had a conflict of interest in representing two or more siblings. Here, too, Richard was not aggrieved by either the representation provided to the children below or counsel's advocacy that supported Richard's section 388 petition and opposed the application of section 366.26, subdivision (c)(1)(E).

Moreover, Richard waived or forfeited this assignment of error by not objecting below to the multiple representation by the children's counsel. (See In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) Richard did not object to the appointment of one attorney to represent the three children; nor did he object to the joint representation at any time during the proceedings.

Assuming arguendo that we resolve the standing and forfeiture issues in Richard's favor, he still could not prevail on the merits. A party claiming ineffective assistance of counsel must establish both that the attorney's representation fell below prevailing professional norms and that, in the absence of the attorney's failings, a more favorable result was reasonably probable. (In re James S. (1991) 227 Cal.App.3d 930, 936.)

For the first prong, Richard would have to show that the children's counsel should have declared a conflict of interest. Richard has not shown either an actual conflict of interest or that an actual conflict was reasonably likely to arise when the children's attorney was appointed.

In In re Celine R., supra, 31 Cal.4th at page 50, the Supreme Court concluded that one attorney may be appointed to represent all siblings in a dependency case "unless, at the time of appointment, an actual conflict of interest exists among them or it appears from circumstances specific to the case that it is reasonably likely an actual conflict will arise." Following the initial appointment, the juvenile court "must relieve counsel from the joint representation when, but only when, an actual conflict of interest arises." (Ibid.)

The simple existence of "multi-sibling permanent plans do[es] not necessarily involve an actual conflict" of interest. (Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1429.) A "theoretical potential conflict of interest" is not enough. (Ibid.) Only if the best interests of one or more of the children conflicted with the best interests of one or more siblings would an actual conflict of interest arise.

Richard argues that Carroll v. Superior Court, supra, 101 Cal.App.4th 1423, supports a finding of actual conflict of interest in his case. That case is distinguishable. In Carroll v. Superior Court, an attorney representing seven dependent children declared a conflict of interest before the section 366.26 hearing because the children who had a permanent plan other than adoption wanted to maintain a relationship with the children who were adoptable. The Court of Appeal agreed that the attorney had an actual conflict of interest and was entitled to be relieved. (Id. at pp. 1426-1428.) Here, Agency's recommendation of adoption was consistent for the three children and there was no conflict.

Richard maintains that because it was clear from the bonding study that Brooke and Abigail would suffer detriment if separated from Ricky, counsel had a duty to inform the girls that their relationship with their brother could be severed if Ricky were adopted. Richard's appellate brief states: "[I]t is possible that counsel failed to communicate to Brooke and Abigail their right to file a section 388 petition in order to object to the adoption of their brother." Richard's arguments are based on speculation, and at most he identified only a potential conflict of interest. We discern no actual conflict of interest; no circumstance arose to the level of an actual conflict mandating relieving counsel and appointing separate counsel for the girls. (In re Candida S. (1992) 7 Cal.App.4th 1240, 1253.)

Moreover, even if there were an actual conflict, and a separate counsel for Ricky should have been appointed, any error in not doing so was harmless. There is nothing in the record to indicate that separate counsel would have presented an argument different than the one the children's attorney made - namely, that if possible all three children should be placed together, but if not, adoption was the best alternative for them. It is not reasonably probable that a different outcome would have resulted had separate counsel been appointed to represent the children.

V. Change in Ricky's Permanent Plan

On November 29, 2005, while this case was pending on appeal, the juvenile court, on the recommendation of Agency, changed Ricky's permanent plan from adoption to guardianship. The court found legal guardianship was in his best interest, appointed Ricky's foster parents as his guardians, and ordered letters of guardianship to be issued to them.

These postjudgment developments, coupled with the court's previous judgment terminating Richard's parental rights, appear to have rendered Ricky a legal orphan, a "disfavor[ed] . . . status." (In re Jerred H. (2004) 121 Cal.App.4th 793, 799; see also In re Jayson T. (2002) 97 Cal.App.4th 75, 85, disapproved on other grounds in Zeth S., supra, 31 Cal.4th at pp. 413-414 [legal orphanage is a consequence the law abhors].) This is so because parental rights are terminated to allow a child to become free for adoption. (Rule 1463(h).) "The only reason a juvenile court terminates parental rights is to free the child for adoption." (In re J.I. (2003) 108 Cal.App.4th 903, 915.) Termination of parental rights not followed by adoption makes the child a legal orphan. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1062.)^[10]

Further, we must consider these developments in light of the fact that Ricky will need total care for life. As this court observed in In re Carl R., supra, 128 Cal.App.4th at page 1062, a total needs child "is at high risk of becoming a legal orphan" if parental rights are terminated and the prospective adoption falls through.

The record before us contains an abundance of evidence that is in Ricky's best interests to remain in the care of these guardians. Under these circumstances and to avoid making Ricky a legal orphan, we find justice demands that we reverse the judgment terminating Richard's parental rights as to Ricky and direct the juvenile court to hold a new hearing on the question of his adoptability.

DISPOSITION

The judgment terminating Richard's parental rights as to Ricky is reversed and the matter is remanded to the juvenile court for an updated review hearing to determine Ricky's adoptability in light of the new developments.

The order denying Richard's section 388 motion is affirmed.

The judgments terminating Richard's parental rights as to Brooke and Abigail are affirmed.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

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

^[2] Ashley is not a party in these appeals. She will be discussed only when pertinent to the appeals.

^[3] The children were not present during the domestic violence incident; they were at the residence of the maternal grandparents.

^[4] Ricky also has chronic lung disease, a history of thyroid disease, mild mental retardation, and developmental delay. Ricky is 10 months younger than Brooke.

^[5] Ricky's petition also alleged that Richard and Ashley had failed to provide care and treatment for his disabilities. See footnote 4, ante.

^[6] Ashley had previously filed a written section 388 petition seeking the rescission of the true finding on Agency's section 387 supplemental petition and placement of the children with the maternal grandparents. The court denied Ashley's section 388 petition.

^[7] On September 16, Richard joined in Brooke's and Abigail's motion to take additional evidence and, also asked this court to consider an affidavit by his appellate counsel.

^[8] All rule references are to the California Rules of Court.

^[9] Abdullah also expressed concern whether the aunt would protect the children from abuse because she initially was incredulous that her brother had sexually abused the children. However, at trial the aunt testified that she believed Richard was responsible for the harm to the children and she would protect the children from anyone who would cause them harm, including Richard. It also was brought out that the aunt had contacted child protective services shortly after Ricky's birth because she was worried about the condition of Richard and Ashley's home and whether Ricky would be receiving proper care.

^[10] The juvenile court lacked jurisdiction to set aside, change or modify the judgment terminating Richard's parental rights as to Ricky. (§ 366.26, subd. (i)(1), In re Jerred H., supra, 121 Cal.App.4th at p. 796.)