In re C.V.

Filed 7/21/06 In re C.V. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Nancy C. Staggs, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.

David A. Prentice, County Counsel, and David L. Herman, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Modesta V. appeals from orders terminating her parental rights (Welf. & Inst. Code, § 366.26) to five of her children.^[1] A sixth child, a 17-year-old daughter, was placed in long-term foster care. Appellant contends the court erred by not finding termination would be detrimental to the children based on their sibling relationship as well as their relationship with her. She further argues the children's attorney was ineffective for not declaring a conflict of interest once there was a recommendation of long-term foster care for the 17-year-old. On review, we disagree and will affirm.

PROCEDURAL AND FACTUAL HISTORY

Background

Respondent Madera County Department of Public Welfare (the department) initiated the underlying dependency proceedings as to appellant's six minor-aged children in October 2003 due to appellant's alcohol abuse. The children then ranged in age from a 15-month-old daughter to a 15-year-old daughter.^[2] The family home was filthy. The youngest child suffered from failure to thrive, Fetal Alcohol Syndrome, and developmental delay. Meanwhile, appellant's two oldest children, the 15-year-old daughter and a 12-year-old daughter, missed school in order to care for and supervise the younger ones.^[3]

In December 2003, the Madera County Superior Court assumed dependency jurisdiction over the six children (§ 300, subd. (b)), adjudged them dependents and removed them from parental custody. Despite 18 months of reunification services, appellant failed to make significant progress and therefore was unable to reunify with any of her children. Consequently, the court terminated reunification efforts in June 2005 and set a section 366.26 hearing to select and implement permanent plans for each of the children.

Evidence Relevant to Sibling and Parent/Child Relationships

Although appellant also had five adult-aged children, some of whom offered to provide homes for their younger siblings, relative placement was not an option in this case. Those adult-aged children lived out-of-state and placement in their care would hamper visitation. Further, because appellant had so many children requiring out-of-home placement, it was not possible to place all six children in the same foster home.

Instead, the department placed the youngest child and the oldest child in one foster home. Appellant's 12-year-old and 9-year-old daughters were placed in another foster home while her 7-year-old son and 6-year-old daughter were placed in a third foster home. In addition to the youngest child, who suffered from failure to thrive and developmental delay, three of the other children had special needs as well. The 12-year-old was academically years behind in school. The nine-year-old was deaf and needed special help in school. Notably, although the child communicated in sign language, appellant never learned how to sign. In addition, appellant's seven-year-old son had an imperforated anus and suffered from encopresis which was exacerbated by stress. Appellant apparently kept him in diapers.

From the outset, the six siblings appeared attached to each other and dependent upon one another for their needs. However, with the possible exception of appellant's six-year-old daughter, the children did well in foster placement. Initially, the six-year-old seemed to have a difficult time and cried for appellant.

Appellant visited the children on a supervised, once-a-week basis, until services were terminated. The court thereafter reduced visitation to once-a-month. Social workers described the visits as positive and nurturing experiences for both the children and appellant. Indeed, throughout the proceedings, appellant prepared home-cooked meals to share with her children during their visits.

As of the six-month review stage, all but the youngest child reportedly had a strong attachment to appellant and one another. The older five children also looked forward to visits and were eager to return home. Appellant continued to maintain regular visitation with her children, although on two occasions she arrived under the influence and visitation had to be cancelled.

By the time of the 12-month review stage, appellant was living in an out-of-county, residential substance abuse treatment facility. Nevertheless, except for a brief detoxification period required by the treatment facility which resulted in two cancelled visits, appellant regularly visited her children. The social worker continued to report that all but the youngest child had a strong attachment to appellant and one another. The older five children looked forward to visits and wished to reunify soon as a family.

In its status review report prepared at the 18-month stage, the department disclosed that the five older children continued to have a strong attachment to appellant and to one another. Even the youngest child had developed a positive attachment to appellant as well as to the child's caregiver. However, when asked whether they wanted to return home to appellant, three of the middle children declined, preferring to stay in their current foster homes. Another child did not know. Meanwhile, appellant's oldest child had a second son and looked forward to living with her sons and her mother once she was emancipated. Appellant's youngest child was still too young to verbalize her desires.

In the meantime, the children's father emerged and had contact with the department, claiming he had returned from Mexico, after he learned the children were in protective custody. He requested visitation. Some of the children, however, disclosed to their foster parents that their father was never deported to Mexico but was in hiding at their mother's home. The children also reported they were fearful of their father, remembering how he would beat up their mother while she was intoxicated. The parents had resumed living together after appellant completed her residential substance abuse treatment. The department cancelled visits for the father unless and until he began counseling for domestic violence and a 12-step program. Appellant denied that her husband ever hit her. According to her, the children had only seen their father drink and get drunk.

At the 18-month review hearing, appellant's second eldest dependent child, who was then 14 years old, testified that both her older sister and appellant called her and were very angry with her for reporting that her father was living at home and how her parents had fought in the past when they drank. She also testified about earlier visits to appellant's home during which her older sister's boyfriend was present. He followed her around and frightened her in the process. Although appellant was in the home, she did nothing to stop the man's behavior.^[4] The department apparently stopped the in-home visits after this.

By the time of the section 366.26 hearing, the four middle children clearly and enthusiastically stated their desire to permanently remain with their foster parents, who had been identified as prospective adoptive families, and their desire to be adopted. Their foster families were related and lived in the same neighborhood. These four children therefore could continue to enjoy frequent contact with each other. Also, these two families and the foster parent with whom the oldest child and youngest child had been placed were willing to enter into formal post-adoption contact agreements to even include the birth parents. The oldest child meanwhile did not want to be adopted. The youngest child was still too young and suffered from too much delay to voice her feelings.

As to appellant's relationship with all of her minor children, it was the department's assessment that a parent/child relationship continued to exist. However, even before the children's removal, appellant's alcoholism hindered the relationship rendering it weak and often ineffective with the older children having to look after the younger ones.

The children were pleased appellant successfully completed her in-patient alcohol treatment program. However, none of the children wished to return to her care. At most, the oldest one still planned to live with appellant once she (the teenager) was emancipated.

The middle four children also did not feel appellant could meet their needs. Instead, they viewed their prospective adoptive parents as their primary care providers. The 14-year-old did not think ongoing contact with her birth family, including future contact with her birth parents, was a necessity. She wanted to be adopted regardless of whether she could have post-adoption contact with her birth family. The 11-year-old thought post-adoption contact with her birth family would be â€