In re K.T.

Filed 10/25/06 In re K.T. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION THREE

In this consolidated appeal, defendants Star M. and Mauricio T.[1] appeal from an order terminating their parental rights to their three children, ages 4, 3, and 1, and Star’s parental rights to a fourth child, age 9, by a different father. Star contends the juvenile court erred (1) in failing to consider the children’s wishes with regard to the termination of parental rights; (2) in concluding that the parental exception to termination did not apply; and (3) in failing to appoint a separate attorney to represent the nine-year-old child because her interests conflicted with the interests of the younger children. She also contends that she did not receive the social worker’s assessment report in a timely manner and that she was given incorrect notice of the location of the termination hearing. Mauricio asserts that there is no substantial evidence to support the court’s finding that the children were likely to be adopted. We shall affirm.

Factual and Procedural History

On January 28, 2005, the Contra Costa County Children and Family Services Department (the department) filed a petition under Welfare and Institutions Code section 300, subdivision (b),[2] alleging that Star was unable to provide regular care for her children due to her drug use. The petition alleged that Star had tested positive for methamphetamine on January 21 and 26 and that she admitted using methamphetamine on January 26. The petition was later amended to allege that domestic violence between Star and Mauricio placed the children at substantial risk of harm. The children were detained and placed together in a foster home. At the jurisdictional hearing on March 9, Star pled no contest to the allegation that she had used drugs on January 26, and the court found true the domestic violence allegation.[3] At the contested dispositional hearing on April 29, the court found that returning the children to the parents’ care would create a substantial risk to their well-being. The court adopted the department’s recommended case plan and ordered visitation twice a month.

At the time of the six-month review hearing the parents were unemployed and homeless. The department’s report indicated that it had been difficult to contact Star throughout the reunification period. In addition, “The parents have not addressed the issue of substance abuse through treatment, nor did they participate in the random drug [testing] that was ordered by the court.” The parents also failed to attend two scheduled visits. The department recommended that reunification services be terminated and that a section 366.26 hearing be set. The department advised the court that it would be recommending adoption as the permanent plan for the children.

At the review hearing on September 13, the court found that “both parents were given referrals [for individual counseling, substance abuse treatment, parent education classes, and domestic violence education and support groups] some time ago, months ago, and did little, if anything,” that both parents failed to effectively test for drug use as required by their case plans, that Star visited the children only twice in six months although Mauricio visited more, and that Star, who was homeless, failed to keep in contact with the department. The court concluded that the parents “were still involved in experiencing the same problems that brought them here, and they didn’t want to engage.” Star did not appear at the hearing. The court terminated reunification services and set a section 366.26 hearing.

The department’s section 366.26 assessment report recommended that the court terminate parental rights so that the children could be adopted. The report explained that the children’s foster mother, with whom they had been living since being removed from their parents’ care, was ready to adopt all four children. The prospective adoptive mother is a licensed foster parent and day care provider who has been approved as an adoptive parent after an adoptive home study.

The section 366.26 hearing was held on January 13, 2006. Star did not appear and her attorney did not request a continuance. The court adopted the department’s recommendations, found that the children were adoptable and that they were likely to be adopted. The court also noted that the parents had failed to avail themselves of the services provided and that Star had visited the children only five times in eleven months. The court concluded that “the bonds that may exist between parents and children do not outweigh the promise of adoption that is available to them here, particularly where they are all placed together.” At the conclusion of the hearing, the court terminated parental rights. Both parents filed timely notices of appeal, which were consolidated for all purposes.

Discussion

1. The trial court properly considered the children’s preferences prior to terminating parental rights.

Star claims that the juvenile court failed to consider the wishes of the children prior to terminating her parental rights. In proceedings under section 366.26, the court is required to “consider the wishes of the child and shall act in the best interests of the child.” (§ 366.26, subd. (h)(1).) This requirement imposes “a mandatory duty on the courts to ‘consider the child’s wishes to the extent ascertainable’ prior to entering an order terminating parental rights.” (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591.) In In re Leo M., the court rejected a parent’s claim that an express statement of the child’s wishes must be taken at the hearing. The court explained, “The process [for ascertaining the wishes of the child] must be sufficiently flexible to provide some accommodation to the varying circumstances that will inevitably present themselves.” (Id. at p. 1592.) “[S]ome children are simply too young or too immature to understand the concept of termination of parental rights, let alone express their feelings about such a prospect, while others may be permanently and severely traumatized if asked to grapple with the possibility of severing all ties to their biological parents. . . . Therefore, we believe the decision in a termination action whether to require a direct statement from the minor regarding his/her thoughts is one that is best left to the sound discretion of the trial judge. In the event the trial court determines that it is not appropriate to obtain such a statement, it may still be possible to explore the minor’s feelings regarding his/her biological parents, foster parents, and prospective adoptive parents, if any, as well as his/her current living arrangements. Where practicable and consistent with the best interests of the minor, an attempt should be made to obtain this information so that the court will have before it some evidence of the minor’s feelings from which it can then infer his/her wishes regarding the issue confronting the court.” (Ibid.) The department’s assessment pursuant to section 366.22, should contain “a statement from the child concerning placement and the adoption or legal guardianship, unless the child’s age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition.” (§ 366.22, subd. (b)(5).)

Star acknowledges that the three youngest children were unable to give a direct statement regarding their wishes. She argues, however, that the oldest child, who was eight at the time of the hearing, should have been asked about her feelings regarding the termination of Star’s parental rights, and that more indirect evidence of all the children’s wishes was required before parental rights could be terminated.

The three youngest children undoubtedly were unable to comprehend fully the proceedings and could not be expected to choose between long-term guardianship or adoption. There is, however, substantial evidence in the record from which the trial court could ascertain the children’s feelings about their mother and foster mother. The evidence reveals that the children have bonded with their foster mother and are relatively detached from Star. The social worker’s report indicates that despite some initial difficulty adjusting to the foster care placement, the four-year-old (then age 3) had made progress. The three-year-old (then age 2) “is wary of strangers and often remains close to her foster mother when strangers are around.” The infant “has formed a strong attachment to his foster mother.” The social worker reported that at Star’s last visit in July 2005, the children “appeared emotionally detached and confused.”

Greater efforts at ascertaining the wishes of the oldest child (then age 8) were both required and taken. The social worker testified that she had explained to this child the nature of the court proceedings. “[S]he is aware of what is going on, of the court proceedings, and she has stated that if she can’t live with her mom she wants to be with the caretaker that she’s with now.” Star’s attorney argued that this child had “articulated a preference to be with her mother.” Although the child was not asked to state a preference between guardianship or adoption, the court was made aware of her subdued preference and took that into consideration in determining her best interests. We find no abuse of discretion in this regard.

2. The children’s potentially different “wishes” regarding their relationship with their mother did not create a conflict of interest for their appointed attorney.

In general, the juvenile court is required under section 317, subdivision (c), to “appoint counsel for [a] child unless the court finds that the child would not benefit from the appointment of counsel.” The court, however, “should not automatically appoint separate counsel for separate children.” (In re Celine R. (2003) 31 Cal.4th 45, 55.) “If each child had separate counsel, matters could become unwieldy, especially when there are several children; so many attorneys could interfere with the need to resolve dependency questions expeditiously as well as fairly. . . . In addition to the obvious inefficiencies of having so many attorneys--who might create scheduling difficulties and push the case in contradictory directions--and the serious draining of scarce public resources, separate counsel could also unnecessarily make siblings feel they are adversaries, which could harm their ability to provide mutual emotional support. Having a single attorney would also permit the children to consult with their attorney together rather than separately, which can be quite beneficial in the often intimidating environment of judicial proceedings. Children’s interests are not always adversarial, and they should not always be treated as such.” (Id. at pp. 55-56.) The court recognized, however, that “sometimes the interests of siblings are so conflicting that they should have separate counsel.” (Id. at p. 56.) Separate counsel is required “only when an actual conflict exists.” (Ibid.)

Star asserts that representation of all four children by a single attorney created an actual conflict of interest. She argues that “minors’ counsel vigorously argued to terminate Star’s rights, apparently in conflict with his duties to [the oldest child] and duties to respect her ‘interests’ “ and that “[s]ince the minors’ counsel advocated a position apparently contrary to his client [the nine-year-old], her voice and preferences regarding guardianship or adoption were not heard by the court.” As discussed above, however, the child’s preference to be with her mother was presented to the trial court. More importantly, Star seems to be confusing the children’s potentially conflicting preferences with a conflict regarding what is in the children’s best interests. There was no contention that any of the children should be returned to Star; the choices for a permanent plan that were considered were long-term guardianship or adoption. The children’s attorney acknowledged that Star’s failure to connect with services on a regular basis and follow through with her case plan was particularly unfortunate for the oldest child. She argued, however, that maintaining a “very illusory, attenuated bond” with Star did not outweigh the benefit of having a permanent stable home in which all of the children could stay together. The oldest child’s preference notwithstanding, there was no conflict of interest with respect to what constituted the best interests of the children.

Star’s reliance on Carroll v. Superior Court (2002) 101 Cal.App.4th 1423 is misplaced. In that case, appointed counsel represented seven children. The older three children were determined not to be adoptable, while the younger children were found likely to be adopted. The department’s recommendation was that the children be separated, the older three placed in guardianship and the younger four placed for adoption. The court found an actual conflict of interest. (Id. at p. 1428.) The court explained, “The clearest actual conflict of interest among siblings in the dependency system, especially with the adoption of section 366.26, subdivision (c)(1)(E), arises when advocacy for one minor’s best interests is for termination of parental rights and advocacy for another’s best interests is against termination of parental rights.” (Carroll v. Superior Court, supra, at p. 1430.) Here, however, the children’s attorney reasonably determined that the proposed adoption, which would keep the children together, was in the best interests of all the children. There is nothing in the record that casts doubt on the attorney’s conclusion.

3. Star received sufficient notice of the termination hearing.

Star was served with notice of the section 366.26 hearing both by publication and by personal service. Both notices incorrectly stated, however, that the hearing would be held in Department 18 rather than Department 21. Star contends that the failure to advise her of the correct location of the hearing denied her due process and constituted structural error requiring reversal.

“Notice is both a constitutional and statutory imperative. In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend. [Citation.] Furthermore, notice of a selection and implementation hearing is mandated by statute. [The department] is required to give notice of a selection and implementation hearing to the child’s parents (among others) by section 294, subdivision (a)(1).” (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114.) “Service of the notice shall be completed at least 45 days before the hearing date. Service is deemed complete at the time the notice is personally delivered to the person named in the notice or 10 days after the notice has been placed in the mail, or at the expiration of the time prescribed by the order for publication.” (§ 294, subd. (c)(1).) Among other things, the notice must contain “[t]he date, time, and place of the hearing.” (§ 294, subd. (e)(1).)

Here, Star was effectively given notice of the hearing both by publication and by personal service. She was advised that the hearing would take place on January 4, 2006, at 8:30 a.m. at the Contra Costa County Superior Court courthouse located in Martinez. The incorrect department number did not result in the deprivation of Star’s right to due process. At no time has Star suggested that she attempted to attend the hearing but was unable to locate the proper department. It is entirely reasonable to assume that had she appeared at the courthouse she would have been directed to the proper courtroom.[4] Thus, the failure to include the correct department number did not prejudice Star in any way. (In re Angela C. (2002) 99 Cal.App.4th 389, 395 [lack of notice of continuance is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18].)[5]

4. Any error with regard to the service of the section 366.26 assessment report has been waived.

California Rules of Court, rule 1463(c) requires that the adoption assessment prepared for the section 366.26 hearing be filed and copies provided to the parties 10 days prior to the hearing. Star contends that “apparently” she was not served with the report and that “[t]he department’s failure to provide the [section 366.26 assessment] report to [her] at least ten days prior to the hearing renders the decision terminating her parental rights invalid and a violation of constitutionally required due process.” The record, however, does not contain a file stamped copy of the report or a proof of service, so that we cannot determine when the report was filed or whether Star was served with the report. More importantly, Star did not appear at the hearing and her attorney did not object to the lack of service. Having failed to raise the issue in the trial court, she has forfeited the opportunity to challenge the timeliness of the service on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.)[6]

5. Substantial evidence supports the juvenile court’s finding that the children are likely to be adopted.

Under section 366.26, subdivision (c)(1), “If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21 or subdivision (b) of Section 366.22, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.” Mauricio contends the trial court erred in finding that the children are likely to be adopted because the record contained insufficient evidence that “the minor’s characteristics, such as their age, physical condition, and emotional state were so appealing that . . . a number of different people would likely be interested in adopting them.” He also argues that it was not enough that “there was an approved caregiver who indicated that she was willing to adopt the minors, since this caregiver had early expressed hesitation about adopting [the four- and three-year-old children], whose behavioral problems posed enough problems to justify a need for individualized therapy.” We review the factual basis of a termination order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find a factual basis for termination by clear and convincing evidence. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)

“ ‘The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent “waiting in the wings.” [Citations.]’ [Citation.] ‘Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.’ “ (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

The social worker’s assessment describes all four children as being “on target developmentally” for their ages and none of the children has any significant health problems. Although individual therapy has been recommended for three of the children, and the four-year-old has been described as “very challenging,” there is no evidence of emotional problems likely to preclude adoption. To the contrary, the fact that the foster parent who has cared for the children for over a year is anxiously waiting to adopt the children is substantial evidence that the children are adoptable. The fact that the prospective adoptive mother initially had some reservations about adopting all four children because of “some difficulties” with two of the children does not diminish the weight of that evidence. The report explained that the prospective adoptive mother “took some time to think about what she wanted to do and she came to the conclusion that she wanted to adopt all four children.” At this time, she “is committed to all four children and she is extremely anxious to adopt them.” Accordingly, substantial evidence supports the court’s finding that the children are likely to be adopted.[7]

6. The parental relationship exception to the termination of parental rights does not apply.

Under section 366.26, subdivision (c)(1)(A), “if the juvenile court determines, by a clear and convincing standard, that it is likely a minor will be adopted, then it shall terminate parental rights and order the child placed for adoption unless the court finds a compelling reason for determining that termination would be detrimental to the child. One such reason is that the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. When contesting termination of parental rights under the statutory exception that the parent has maintained regular visitation with the child and the child will benefit from continuing the relationship, the parent has the burden of showing either that (1) continuation of the parent-child relationship will promote the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents [citation] or (2) termination of the parental relationship would be detrimental to the child. [Citation.] Put another way, DCFS is not required to produce evidence demonstrating that a minor would not benefit from continued parental contact. [Citation.] To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need for a parent.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)

Here, Star failed to establish that she maintained regular visitation with the children. Under the juvenile court’s order, Star was entitled to two hour-long visits a month. However, she visited only five times over the course of the dependency proceedings and her last visit was in July 2005. While Star blames the department for failing to facilitate more visits, it is clear that she bears substantial responsibility for the lack of visits.[8] Star was in and out of homeless shelters, missed appointments with the social worker, and was often difficult to locate. The limited visits between Star and the children do not support invocation of the parental relationship exception. (See In re Aaliyah R. (2006) 136 Cal.App.4th 437, 450 [“ ‘inconsistent pattern of visitation’ failed to satisfy the first prong of the exception”].)

Similarly, Star has not established that termination of the parental relationship would be detrimental to the children. In evaluating the potential detriment to the children under this exception, “[t]he court’s balancing of competing considerations must be performed on a case-by-case basis, taking into account variables such as the child’s age, the portion of the child’s life spent in the parent’s custody, the positive or negative effect of interaction between the parent and child and the child’s individualized needs.” (In re Aaliyah R., supra, 136 Cal.App.4th at p. 450.) There is no evidence that the termination of parental rights over the three younger children would be detrimental. The younger children had a very limited relationship with their parents and there is no showing that they will suffer appreciable harm as a result of the loss of that relationship. The analysis is more complicated for the oldest child because she spent the first seven years of her life with her mother. Nonetheless, even considering the greater length of that relationship, the record does not compel the conclusion that this child had such a substantial, positive emotional attachment to Star that she will be greatly harmed by the termination of Star’s parental rights.

The cases relied upon by Star, In re Jerome D. (2000) 84 Cal.App.4th 1200 and In re Amber M. (2002) 103 Cal.App.4th 681, are both factually distinguishable. In In re Jerome D., the mother had maintained regular visitation and contact and her relationship with the child was described as parental. (84 Cal.App.4th at p. 1206.) The court explained that at the time of hearing “Jerome was nearly nine years old. He had lived with Mother for the first six and one-half years of his life and expressed his wish to live with her again. For at least two months, he had been having unsupervised overnight visits in her home. He called her “mom” or “mommy.” There was apparently no woman in his life other than Mother with whom he had a beneficial relationship.” (Id. at p. 1207.) Similarly, in In re Amber M., the appellate court found that the mother maintained regular visitation and contact and met her burden of showing a beneficial relationship. (103 Cal.App.4th at p. 689.) In that case, “Mother visited as often as she was allowed and acted in a loving, parental role with the children when permitted visitation. She was devoted to them and did virtually all that was asked of her to regain custody.” (Id. at p. 690.) In contrast, Star failed to maintain regular visitation with the children and her relationship with the children was not at all similar to those described above.

Disposition

The order terminating parental rights is affirmed.

_________________________

Pollak, J.

We concur:

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McGuiness, P. J.

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Parrilli, J.

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[1] This defendant’s notice of appeal was filed under the name Maurico T., rather than Mauricio T., as it appears in the original dependency petition and the remainder of the juvenile court record. Although the correct spelling of defendant’s name is unclear, defendant will be hereafter referred to as Mauricio.

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

[3] The court’s finding on the domestic violence allegation was stayed as against Star and the court stated that the allegation would be dismissed if Star completed the case plan. The allegation regarding Star’s positive drug tests and an additional allegation of drug use against Mauricio were both dismissed.

[4] Star requests this court to take judicial notice of the California Court Directory which she claims shows that as of January 2006, Department 18 was located in Walnut Creek. This information, however, is irrelevant. Star does not suggest that she went to the wrong courthouse as a result of having consulted the directory. The notice she received correctly indicated that the hearing would be held in the Martinez courthouse.

[5] Contrary to Star’s argument, the failure to include the proper department number in the notice is not structural error. In re Jasmine G., supra, 127 Cal.App.4th at pages 1115-1116, relied on by Star, is distinguishable. In that case the court held that “the failure to attempt to give a parent statutorily required notice of a selection and implementation hearing is a structural defect that requires automatic reversal. It denies a parent the opportunity to confer with her attorney, prepare her case, or defend against the loss of parental rights. Without this, we cannot say the loss of parental rights--or the hearing--is fundamentally fair.” The error asserted in this case did not implicate the fundamental fairness of the proceedings. Star was notified of the hearing, and had the opportunity to consult counsel and defend against the termination of her parental rights. There is no showing that the erroneous department designation interfered with any of these rights. (See In re Angela C., supra, 99 Cal.App.4th at p. 396 [fundamental fairness of judicial proceedings not implicated by the lack of notice of a continuance].)

[6] Star contends in her reply brief that if we determine this issue has been waived, we should consider whether her attorney provided ineffective assistance by failing to object in the trial court. Assuming, however, that there “could be no satisfactory explanation” for counsel’s failure to raise the issue below (In re Eileen A. (2000) 84 Cal.App.4th 1249, 1255, disapproved on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 413-414), there is no reasonable probability that the outcome would have been different but for counsel’s failing (In re Athena P. (2002) 103 Cal.App.4th 617, 628). As discussed above, Star was given notice that her parental rights might be terminated at the hearing but failed to appear. There is no indication that any delay in making timely service of the assessment report affected anyone’s ability to respond to the assessment, and there is no reason to believe that if an objection had been made and the matter continued, the evidence or the outcome would have been any different.

[7] In light of this conclusion, we need not consider Mauricio’s additional argument that he was denied effective assistance of counsel at the section 366.26 hearing because his attorney failed to object to the lack of evidence regarding the children’s adoptability. Contrary to Mauricio’s argument, it is not reasonably probable that his parental rights would not have been terminated had an objection been made. The failure to object, if deficient, was not prejudicial.

[8] Star did not file a writ petition challenging the order which terminated reunification services and set the section 366.26 hearing. Accordingly, she is precluded from challenging the sufficiency of the reunification services in this appeal. (§ 366.26, subd. (l)(2).)