In re R.C

Filed 10/6/06 In re R.C CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Butte)

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These in propria persona appeals, filed by M.C. (mother), R.C. (father), and B.F. (maternal grandmother), in connection with R.C., Jr., and R.C. (minors), seek reversal of juvenile court orders denying mother’s petition for modification and terminating the parental rights of mother and father. (Welf. & Inst. Code, §§ 366.26, 388, 395.)^[1] Mother, father, and the maternal grandmother make various contentions of alleged prejudicial error. For the reasons that follow, we shall affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

On September 13, 2002, Butte County Children’s Services (department) filed an original juvenile dependency petition pursuant to section 300 on behalf of then-eight-month-old R.C., Jr. The petition alleged in part that the condition of the minor’s home fell below minimum health and safety standards; R.C., Jr., had witnessed episodes of domestic violence between mother and father; and both mother and father were unable to provide care for R.C., Jr. The juvenile court sustained that petition as amended and adjudged R.C., Jr., a dependent child of the court.

On December 11, 2003, the department filed a supplemental juvenile dependency petition pursuant to section 387 on behalf of R.C., Jr., and an original petition on behalf of days-old R.C., alleging in part that mother had used methamphetamine, and mother and father had neglected the minors. The juvenile court sustained those petitions as amended. Thereafter, the court adjudged the minors dependent children.

The minors have two teenage half-siblings. The half-siblings live with the maternal grandmother under a guardianship. In a May 2004 letter, the department advised the maternal grandmother it was recommending denial of her request to assume custody of the minors under a guardianship. According to that letter, the minors did not share a significant bond with their half-siblings. The department also determined the maternal grandmother lacked a relationship with the minors, and it was concerned about her ability to protect the minors from mother and father.

At a November 2004 hearing, the juvenile court ordered the minors placed with their paternal grandmother. Thereafter, mother filed a petition for modification, seeking a change of placement of the minors to the maternal grandmother. The juvenile court denied that petition.

At the April 27, 2005, section 366.26 hearing, the maternal grandmother testified that R.C., Jr., once had been in the same home with his half-siblings for three months, but R.C. never had been in the same home. Previously, the minors’ half-siblings had testified that they were bonded with R.C., Jr. Both acknowledged having spent little time with R.C., the younger minor.

At the conclusion of the hearing, mother’s counsel suggested the relationships existing among the minors and their half-siblings were sufficiently strong that they should be maintained. Counsel for father, who was not present, objected to the proposed termination of parental rights but also stated that father supported placement of the minors with the paternal grandmother.

The juvenile court found it likely the minors would be adopted and ordered the parental rights of mother and father terminated.

In considering the applicability of a statutory exception to adoption, the juvenile court stated in part as follows: “Next, we move to exception of [sic] adoptability, and I think that everyone agrees that the only exception to adoptability in this case would be the 366.26(c)(1)(e), having to do with the significant sibling relationship outweighing the need for these little guys to be in a permanent plan.

. . .

The Court must weigh what kind of relationship [R.C.] and [R.C., Jr.,] have with the older siblings. And I have to commend counsel for being very clear in delivery in trying to phrase the questions and draft the questions to frame it in terms of how would this affect [R.C., Jr.,] and [R.C.] But the plain fact of the matter is when it comes down to it, this has to do with the desires of the grandmother, the maternal grandmother, and [the older half-siblings] to have a relationship with the little ones. And try as we might to try [and] draft questions and draft argument around these little guys, there just isn’t a strong sibling connection and bond between the two little boys and the much, much older brother and sister. Even if these children had lived together for three years because of the age difference and because of the lack of shared common experience, there just isn’t that compelling kind of sibling relationship that would outweigh the permanence that these children need in an adoptive plan. [R.C.] has never lived with his siblings, so I cannot in any way find that there’s any kind of compelling relationship between [R.C.] and [the older half-siblings] because there has only been about, from what I can tell here, seven or eight visits between [R.C.] and the older siblings. And those visits have been for one, two, three hours, maybe up to 24 hours. Seven or eight visits does not create a substantial relationship under these facts and circumstances as to create such a strong bond that it outweighs the need for legal permanence.

[R.C., Jr.,] is in a different situation but only slightly. [R.C., Jr.,] lived with his older siblings for sixteen days to begin with then for a period of two-and-a-half months, [sic] from July ‘02 to August of ‘02, for one-and-a-half months from July ‘03 to August of ‘03 and has had approximately seven or eight visits since then. If we added that all up, we’re looking at less than three or four months that these children have lived together and only seven or eight visits since then.

These children have never spent Christmas together, never spent Easter together. It doesn’t look like they’ve even spent birthdays together, as one was born in January and one was born in December. These are not the kind of shared experiences that children have that we think about when children reminisce about childhood and talk about what family traditions were for Thanksgiving and Christmas and birthdays and pancakes on Saturday morning. These children really have no shared common experiences and, certainly, none that [R.C., Jr.,] or [R.C.] ever will be able to remember other than seven or eight visits in the last couple of months. This disparity is only going to get greater as these children get older. [The older half-siblings] are going to be out of the home soon. In two years and four years these two children will be college-age kids.

I have seen nothing that indicates that [the paternal grandmother] has any desire to terminate the relationship with the siblings. I think this relationship is strained. I think that in time I’m going to hope it gets better because, certainly, this is an important relationship, and I would like to see the relationship continue between [R.C., Jr.,] and [R.C.] and the older siblings. What an incredible, significant relationship [R.C., Jr.,] and [R.C.] have with each other and the one [the older half-siblings] have with each other. These are wonderful, charming children. I was so impressed with them and their ability to come sit in the courtroom with all these attorneys asking them questions. They’re very well composed and, obviously, very good students. They are delightful children. I’m amazed they turned out as good as they have, considering the turmoil the two of them have been raised in.

The Court is going to find that under the totality of the circumstances this is not such a strong bond or sibling relationship that it outweighs the need for permanence and stability in an adoption. . . .”

DISCUSSION

I

The maternal grandmother contends the “peculiar facts of this case demonstrate a compelling reason for finding that termination of parental rights would be detrimental to [the minors] and exceptional circumstances warrant selecting legal guardianship as the permanent plan.” In the maternal grandmother’s reply brief, she asserts her rights are directly affected by the order terminating parental rights. Accordingly, the maternal grandmother seeks reversal of the juvenile court’s orders terminating the parental rights of mother and father and a new order of placement with the paternal grandmother under a guardianship.

The difficulty with the claims by the maternal grandmother is that she is challenging juvenile court orders pertaining only to mother and father. This she cannot do.

A party cannot raise issues on appeal in a dependency matter that do not affect her own rights. (In re Frank L. (2000) 81 Cal.App.4th 700, 703.) Here, the maternal grandmother’s interest is limited to issues pertaining to her right to seek placement of the minors with her. Her interest does not interweave with those of mother and father.

Unlike in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035, on which she relies, where a grandmother was seeking review of the denial of her request for placement under section 361.3, here the maternal grandmother does not contest the court’s order denying her placement. In sum, the maternal grandmother was not injured by any alleged error as to mother and father. (In re Jenelle C. (1987) 197 Cal.App.3d 813, 818.) Accordingly, the maternal grandmother lacks standing. (In re Caitlin B. (2000) 78 Cal.App.4th 1190, 1193-1194; In re Devin M. (1997) 58 Cal.App.4th 1538, 1541-1542.)

II

Father contends he received inadequate assistance of counsel throughout the proceedings, requiring reversal of the orders terminating parental rights. Father also claims he was deprived of his right to effective assistance of counsel for counsel’s failure to seek writ relief on father’s behalf.

Father failed to challenge any of the juvenile court’s rulings prior to the section 366.26 hearing, all of which are now final, and thus has forfeited any claims of error relating to those rulings, including ineffective assistance of counsel. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2; In re Daniel K. (1998) 61 Cal.App.4th 661, 667; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1160; John F. v. Superior Court (1996) 43 Cal.App.4th 400, 404-405.)

As to the question of counsel’s failure to file a writ petition on father’s behalf in order to review the orders setting the section 366.26 hearing, we review that claim under well-known standards governing ineffective assistance of counsel.

We note that “‘[i]n general, the proper way to raise a claim of ineffective assistance of counsel is by writ of habeas corpus, not appeal.’” (In re Darlice C. (2003) 105 Cal.App.4th 459, 463.) However, a parent claiming ineffective assistance of counsel in an appeal has the burden of showing that counsel failed to act in a manner to be expected of reasonably competent counsel, i.e., that “counsel’s representation fell below an objective standard of reasonableness.” (Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711.)

“Reviewing courts will reverse . . . on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581; People v. Majors (1998) 18 Cal.4th 385, 403.) When the record is silent on the reasons that counsel acted as he did, the case must be affirmed “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” (People v. Pope (1979) 23 Cal.3d 412, 426.)

An attorney has no professional duty to file a notice of intent on behalf of a client absent the client’s authorization. (Janice J. v. Superior Court (1997) 55 Cal.App.4th 690, 692.) It is the parent’s burden to pursue his or her appellate rights, not counsel’s burden. (In re Cathina W. (1998) 68 Cal.App.4th 716, 723.)

The record is silent on whether father authorized counsel to file a notice of intent and a writ petition on his behalf, although it reflects the juvenile court advised him of his right to seek such review. However, even assuming there was such authorization, the record also is silent on counsel’s reasons for failing to pursue review of the review hearing orders. While we presume counsel was never asked to explain this action, a solid tactical reason is apparent from the record.

After receiving 17 months of reunification services, father’s participation in an in-home parenting program was negligible and he missed several appointments for it. Moreover, father had difficulties understanding how to communicate effectively and in putting anger management concepts to work. Finally, father continued to struggle over how to use communication tools he had learned in counseling.

Under these facts, father’s trial counsel evidently assessed that there was no arguable issue to raise in a challenge to the orders at the review hearing. Counsel cannot be faulted for reaching this conclusion, as counsel is not obliged to undertake futile or frivolous actions on behalf of a client. (Cf. People v. Constancio (1974) 42 Cal.App.3d 533, 546.) We conclude that, contrary to his claim, father suffered no prejudice.

Because there is a satisfactory explanation for counsel’s tactical choice, there is no basis for reversal of the orders terminating parental rights on the grounds of ineffective assistance of counsel.

Father complains that, at the section 366.26 hearing, his counsel wrongly stated that father supported placement of the minors with his mother, the paternal grandmother. As father notes, he had filed a letter with the juvenile court in which he stated the minors should be placed with the maternal grandparents.

To prevail on a claim of incompetent counsel, father must show prejudice. (Cf. People v. Catlin (2001) 26 Cal.4th 81, 162-163.) Here, father has shown no prejudice. He has not shown how any outcome favorable to him would have resulted if counsel had told the juvenile court of his true placement wishes.

Given that adoption was the permanent plan compelled by the evidence, the only possible defense father’s counsel could have raised was to show an exception to termination of parental rights, i.e., that father had maintained contact with the minors and they would benefit by continued contact with him, as father suggests in his brief. (§ 366.26, subd. (c)(1)(A).) On the record of this case, which reflects missed visits by father and his failure to protect the minors, it is difficult to conceive what evidence counsel could have presented to show the minors, who desperately needed a stable home, would have benefited from continued contact with father.

A July 2004 report noted that as mother was incarcerated in state prison and father had not contacted the department, the minors had not been visiting with them. Therefore, it is incongruous to suppose that the two very young children, who had had little recent contact with father, would have any relationship with him that would outweigh the benefits of a permanent stable home. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

On this record, no basis exists for reversal of the orders terminating parental rights on the grounds of inadequate representation.

To the extent that father argues appellate counsel was also inadequate in failing to raise his claims, the argument fails. Appellate counsel evidently assessed the case and, finding no arguable issues, properly offered to withdraw and permit appellant to assert any arguments he chose. (See In re Sade C. (1996) 13 Cal.4th 952, 994.) We granted that request on December 20, 2005.

III

Mother claims that termination of parental rights was detrimental to the minors because it substantially interferes with sibling relationships of the minors. Mother suggests the record establishes the minors and their half-siblings had a significant bond with each other, which she describes as “extensive ties.” Accordingly, mother argues, the juvenile court’s orders terminating parental rights should be reversed.

The claim by mother is premised on a statutory exception to adoption contained in section 366.26, subdivision (c)(1)(E) (hereafter § 366.26(c)(1)(E)). Under that provision, the juvenile court may find a compelling reason for determining that termination of parental rights would be detrimental to the minor where “[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.”

Pursuant to section § 366.26(c)(1)(E), the juvenile court is given the discretion to determine that termination of parental rights would be detrimental under certain circumstances. To make such a determination, the court must find a “compelling reason.” (§ 366.26, subd. (c)(1).) Moreover, the statute contains a number of criteria that the court may consider. But the court is not required by the statute even to consider the applicability of the statutory exception. (Cf. In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)

In this case, the juvenile court determined that termination of parental rights would not be detrimental to the minors based on the sibling relationships existing in this case. Citing the age differences among the minors and an absence of shared common experiences, the court ruled that the relationships among the siblings were not so significant as to outweigh the benefits of adoption. Accordingly, it found, there was no compelling reason to apply the § 366.26(c)(1)(E) exception.

On the record before us, we cannot say that the juvenile court’s determination was an abuse of its discretion. Under the circumstances presented, although there is no guarantee, the record reflects it is likely the minors and their half-siblings will remain in separate placements, as they have been for some time, but continue to have opportunities to visit each other. There was no error in the court’s ruling that termination of parental rights was not detrimental to the minors.

The California Supreme Court has held that the juvenile court may reject adoption under the sibling relationship exception only if it determines that adoption would be detrimental to the minors whose welfare is being considered. (In re Celine R. (2003) 31 Cal.4th 45, 49-50.) Here, it is indisputable that some sibling relationship among the minors and their half-siblings existed. But before adoption can be rejected, the statute requires something more: the showing of a substantial interference with sibling relationships if adoption is chosen as the permanent plan. (§ 366.26(c)(1)(E).)

The record in this case does not demonstrate substantial interference with significant sibling relationships due to adoption of the minors. The minors were not raised in the same home with their half-siblings, and have had little contact with them. Moreover, considering the history of visitation between the minors and their two half-siblings, there is little reason to expect that adoption necessarily will mean no prospect of contact between the minors and their half-siblings in the future. Finally, the record suggests the minors would benefit greatly from adoption, which is the permanent plan preferred by the Legislature. (In re Autumn, H., supra, 27 Cal.App.4th at p. 573.)

In this case, the record reflects the juvenile court considered the § 366.26(c)(1)(E) exception, and the record also shows the juvenile court had before it all of the facts and circumstances pertaining to the minors’ sibling relationships. After a thorough evaluation, the court did not find a “compelling reason” under section 366.26(c)(1)(E) to apply the exception. The reason is that, as the record suggests and the court found, there would be no substantial interference with the sibling relationships. On this record, the court concluded that the minors’ needs for permanency outweighed the benefits a continued relationship with their half-siblings would afford.

In making her claim, mother relies primarily on In re Naomi P. (2005) 132 Cal.App.4th 808. But that decision involved an appeal by the child protective services agency from a juvenile court order of guardianship based on that court’s finding the sibling relationship exception applied. (Id. at p. 811.) The issue before the appellate court was whether substantial evidence existed to support the juvenile court’s conclusion that the exception applied, and the court found there was such evidence. (Id. at pp. 823-824.) In addition, evidence was adduced suggesting the minor’s siblings had been “‘a constant thread’” in the life of the minor. (Id. at p. 824.)

Here, no evidence was adduced of such a significant relationship existing among the minors and their half-siblings that a substantial interference with sibling relationships would result if the exception were not applied. Accordingly, In re Naomi P. is distinguishable.

Mother’s reliance on In re Fernando M. (2006) 138 Cal.App.4th 529 also is misplaced. That case did not involve the sibling relationship exception. Instead, it considered the exceptional circumstances exception to adoption contained in subdivision (c)(1(D) of section 366.26. (In re Fernando M., at p. 535.) Moreover, unlike in this case, in In re Fernando M., the minor had lived with his siblings for most of his life. (Id. at p. 537.)

Here, as we have seen, the record suggests the benefits of adoption for the minors far outweigh the benefits of continuing the sibling relationships. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951-953.) Considering all pertinent factors, the record supports the juvenile court’s finding that adoption would not be detrimental to the minors. Accordingly, we reject mother’s claim that the court erred in refusing to apply the section 366.26(c)(1)(E) exception to adoption.

DISPOSITION

The orders terminating the parental rights of mother and father are affirmed.

RAYE , J.

We concur:

BLEASE , Acting P.J.

HULL , J.

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