Opinion
C042591. C042751.
7-15-2003
In re P. X., A Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. P. V. et al Defendants and Appellants. In re J. X. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. T. X., Defendant and Appellant.
In these consolidated appeals, P. V. and T. X., the mother and father, respectively, of P., J., and C., appeal from orders of the juvenile court terminating their parental rights as to P., and the father appeals from an order terminating his parental rights as to J. and C. (Welf. & Inst. Code, §§ 366.26, 395; further undesignated statutory references are to the Welfare and Institutions Code.) The mother and father make multiple claims of alleged prejudicial error in the proceedings. Finding no such error, we affirm the judgment.
FACTS AND PROCEEDINGS
Preliminarily, we note that on February 11, 2003, this court granted a request by the father to consider the record in case No. C041455 (an unpublished opinion of this court filed on April 14, 2003) to be a part of the record in these appeals. Case No. C041455 was an appeal by these same parents from juvenile court orders terminating reunification services and continuing as dependent children five other siblings of P., J., and C. This court filed its opinion in case No. C041455, modifying an order and remanding with directions to the juvenile court to consider a sibling visitation order. Some of the factual discussion and analysis contained in these appeals is derived from our opinion in case No. C041455, of which we take judicial notice. (Evid. Code, §§ 451, subd. (a), 459.)
On October 20, 2000, the Department of Health and Human Services (DHHS) filed original juvenile dependency petitions pursuant to section 300 on behalf of six-year-old P. and one-month-old J. C. was the subject of a similar petition, filed on April 18, 2002, when he was five days old. The petitions on behalf of P. and J. alleged that their mother had physically abused P. and four of her siblings and that P. was severely malnourished. According to those petitions, despite receiving various services for their developmental delays, the parents were unable to provide proper care for P. and J. As to C., the petition alleged that based on the abuse and neglect of his siblings, there was a substantial risk he would be abused or neglected.
At the time of the dependency proceedings, the parents were "married and living together. Both were born in Laos. They are of Hmong ethnicity and culture, and [do not speak] English. During an interview with the social worker, neither [parent] appeared to understand why any of the minors had been placed into protective custody. Both denied any physical abuse of any of the minors.
"The record reflects a history of referrals to DHHS for abuse and neglect of the minors by the parents. [They] received family maintenance services from DHHS in 1998 and 1999. They also participated in programs sponsored by various governmental and community organizations.
"On December 12, 2000, the juvenile court sustained the petitions as amended and adjudged [P.] and [J.] dependent children. The court also ordered the parents to participate in reunification services." (Case No. C041455.) P. was placed in the childrens receiving home with three of her siblings. J. was in a confidential placement with three other siblings.
"From June to August 2001, the parents visited the minors on a weekly basis. The visits were chaotic, with both [parents] neglecting the minors." (Case No. C041455.) At one point, DHHS suspended visitation between the father and the minors. "The minors appeared to be happy to see each other during their visits." (Case No. C041455.) However, P. tended to play by himself.
On June 4, 2002, the juvenile court sustained the petition as amended and adjudged C. a dependent child.
In a September 2002 report, DHHS recommended adoption as the appropriate permanent plan for P., J., and C. According to that report, P. was "strongly bonded" to his prospective adoptive parents. He had "mixed developmental delays." The social worker also noted that P. was a special education student who received speech therapy. However, P. had "begun to develop his language skills."
J. and C. were placed together in a prospective adoptive home. Both were doing well there. All of the minors were visiting each other twice monthly. During their visits, supervised by DHHS, J. would "cry inconsolably for 10-15 minutes," and C. was "indifferent" to his siblings. The prospective adoptive parents for J., C., and P. planned to maintain contact among the minors even after adoption.
An October 2002 psychological consultation report noted that P. was developmentally disabled. He could not read or identify letters consistently, nor could he distinguish colors verbally. Moreover, P. continued to struggle with speech difficulties. The psychologist who prepared the report opined that it was likely P. would "require oversight and support at least throughout his childhood and adolescence . . . ." However, P. was in regular school classes for the majority of his day and was interacting with other children "fairly well."
At the October 2, 2002, section 366.26 hearing for J. and C., counsel for the parents objected to the proposed termination of parental rights. However, counsel for the minors did not object to the recommendation by DHHS that J. and C. be adopted. The juvenile court then found it likely J. and C. would be adopted, and terminated the parental rights of the parents.
On October 30, 2002, the juvenile court ordered, over the objections of the parents, that their parental rights be terminated as to P. Counsel for the minors again did not oppose termination of parental rights. However, minors counsel emphasized that one of the siblings in case No. C041455 desired to maintain continued contact with her brothers and sisters. We note that as to that sibling, the juvenile court did not terminate parental rights and that sibling is not involved in these appeals.
DISCUSSION
I
The Likelihood of P.s Adoption
The parents contend that because there is no substantial evidence to support the courts finding that it is likely P. would be adopted, the juvenile courts order terminating their parental rights must be reversed. Emphasizing P.s numerous developmental delays, the parents also note that P.s prospective adoptive family had not yet been approved.
When the sufficiency of the evidence to support a finding is challenged on appeal, even where the standard of proof in the juvenile court is clear and convincing evidence, we must determine if there is any substantial evidence — that is, evidence which is reasonable, credible, and of solid value — to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924, 171 Cal. Rptr. 637, 623 P.2d 198; In re Jason L. (1990) 222 Cal. App. 3d 1206, 1214, 272 Cal. Rptr. 316.) In making this determination, we resolve all conflicts in favor of the prevailing party. Issues of fact and credibility are questions for the trier of fact, and we do not reweigh the evidence when assessing its sufficiency. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, 867 P.2d 706; In re Jason L., supra, at p. 1214.)
The goal of dependency proceedings is protection of the child. (In re Kerry O. (1989) 210 Cal. App. 3d 326, 333, 258 Cal. Rptr. 448.) An important aspect of this goal "is to provide children with stable, permanent homes." (In re Heather P. (1989) 209 Cal. App. 3d 886, 890, 257 Cal. Rptr. 545.) A preference for permanent placement, as afforded by adoption, is a vital component of the statutory scheme. (In re Brian R. (1991) 2 Cal.App.4th 904, 923-924; cf. In re Mark V. (1986) 177 Cal. App. 3d 754, 760-762, 225 Cal. Rptr. 460.)
The issue of adoptability "focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the minor already be in a potential adoptive home, or that there even be a prospective adoptive parent. (Ibid.)
The record in this case reflects that with his history of developmental delays, P. had received extensive services. The record also shows, however, that P. was developing his language skills and was able to participate in a regular classroom setting for a substantial portion of his school day. Moreover, while in foster care, P. has demonstrated he has the capacity to bond with adult figures.
Based on this evidence, the juvenile court reasonably could find that although P. has some special needs that undoubtedly will test the skills of an adoptive parent, he is likely to be adopted. (Cf. In re Roderick U. (1993) 14 Cal.App.4th 1543, 1550.)
The cases on which the parents rely do not compel a different conclusion. For example, In re Amelia S. (1991) 229 Cal. App. 3d 1060, 280 Cal. Rptr. 503, involved 10 brothers and sisters described as "hard to place." (Id. at pp. 1060-1063.) In this case, however, the evidence suggested P. had the capacity to bond with adult figures. In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, also cited by the parents, discussed the status of prospective adoptive families. However, it did not hold that an approved family was required for a finding of adoptability.
In In re Jayson T. (2002) 97 Cal.App.4th 75, there was evidence the adoptability finding was problematical, even though a prospective adoptive home had been located; the placement later failed. (Id. at pp. 77, 82-83, 90.) Here, P. had been in a prospective adoptive placement since June 2001 and was doing well in that home. In any event, the lack of an adoptive home does not preclude a finding that P. was likely to be adopted. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) The possibility that P. may have some future developmental difficulties also did not foreclose a finding of adoptability. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224.)
Evidence of a prospective adoptive parent willing to adopt P. — evidence supported by the observations of professionals in this case — supports a finding of likely adoptability. The emphasis by the parents on the fact that the adoption home study had not yet been completed and their suggestion that perhaps the family would not be approved amounts to nothing more than sheer speculation. The record indicated that DHHS expected approval of the home study within three months. Moreover, DHHS noted that P.s prospective adoptive family had satisfied the primary legal requirements for adoption.
The parents assert that DHHS failed to state it was likely that P. would be adopted. The record indicates otherwise. An October 25, 2002, supplemental social workers report recommended the juvenile court find P. "adoptable," which refers to the likelihood of being adopted. ( § 366.26, subd. (c)(1).)
In his reply brief, the father emphasizes P.s physical and behavioral problems, suggesting that he could not be considered a child of good health. The psychological consultation report does not support that conclusion. The psychologist who prepared that report acknowledged P.s underweight condition, which he had had since he was a toddler. However, the psychologist also noted that P. did not have "any chronic or otherwise serious health problems . . . ."
In sum, substantial evidence supports the juvenile courts determination that P. was likely to be adopted. (Cf. In re Scott M. (1993) 13 Cal.App.4th 839, 843-844.)
II
Separate Counsel for the Minors
The parents claim that the juvenile court committed reversible error in failing to appoint separate counsel for P., J., and C. Noting evidence of strong bonds existing among some of the minors, and that all of the minors except P. seemed happy to visit each other, the parents argue that advocating adoption for P., J., and C. meant severance of their relationship with their siblings. According to the parents, the actual conflict of interest found here was prejudicial: Separate counsel for P., J., and C. may have advocated permanent plans of guardianship or long-term foster care for those minors, instead of adoption. For purposes of resolving the claim, we assume the parents have established that the alleged conflict of interest has affected them. (In re Frank L. (2000) 81 Cal.App.4th 700, 703.)
Subdivision (c) of section 317 states, in relevant part: "Where a child is not represented by counsel, the court shall appoint counsel for the child unless the court finds that the child would not benefit from the appointment of counsel. . . . Counsel for the child may be a district attorney, public defender, or other member of the bar, provided that the counsel does not represent another party or county agency whose interests conflict with the childs."
In Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, (Carroll), the Court of Appeal discussed the circumstances under which a conflict of interest may be found to exist in a situation where one counsel represents numerous minors. Finding conflicting interests among some of the seven siblings, the court concluded that the public defender appointed to represent the seven minors had to be relieved as counsel for all of the minors. (Id. at p. 1430.) The record showed that two of the minors for whom adoption was the recommended permanent plan expressed an interest in preserving sibling relationships. (Id. at p. 1427.) The court held that "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 minors best interests is for termination of parental rights and advocacy for anothers best interests is against termination of parental rights." (Id. at p. 1430.)
Section 366.26, subdivision (c)(1) provides that when reunification services have been terminated and the court finds the child is likely to be adopted, the court must select adoption as the permanent plan, unless it finds that termination of parental rights would be detrimental under one of the exceptions listed in subsections (A) through (E). (In re Jamie R. (2001) 90 Cal.App.4th 766, 773.) The new exception provided by subdivision (c)(1)(E) is whether "there would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption."
The parents claim that in this case, as in Carroll, supra, 101 Cal.App.4th 1423, an actual conflict of interest arose during the course of counsels representation of all of the minors. We disagree. First, contrary to the assertions of the parents, the fact the minors seemed happy to see each other at visits does not constitute an expression of interest in continuing those visits. Although undoubtedly, as emphasized by the parents, the minors shared some bond with each other and the juvenile court had concluded that visitation would be beneficial for the minors, those circumstances do not mean that advocacy of adoptive placements for P., J., and C. presented a conflict of interest for the minors counsel.
Counsel for the minors is charged with protecting the well-being of the child. ( § 317, subd. (c).) Here, the record contains substantial evidence that the best interests of P., J., and C. required that they receive the permanency afforded by adoption. Moreover, visits were problematical at best for them. The foster parents for all three minors reported that after visits, P., J., and C. each manifested various behavioral problems. Moreover, during visits with their siblings, C. was "indifferent" to contact with his siblings, J. cried "inconsolably," and often P. played by himself.
We agree with the parents that pursuant to Carroll, a potential conflict of interest existed where one counsel represented all of the minors simultaneously. But compared to the record in Carroll, supra, 101 Cal.App.4th at page 1427, the record here does not contain expressions of interest by any of the minors in continuing sibling visits. And as we have noted, sibling visits often did not appear to be beneficial for the minors.
As we concluded in case No. 041455, although there was a potential for a conflict of interest, the record discloses no actual conflict arose. Accordingly, there was no need to relieve counsel and appoint separate counsel for each minor. (In re Candida S. (1992) 7 Cal.App.4th 1240, 1252-1253.)
The claims of the parents regarding relationships among two of the other siblings do not change our conclusion. The possibility that separating two of the other siblings would have been detrimental to another, as the parents assert, does not suggest that P., J., or C. received representation by one counsel troubled by an actual conflict of interest among the three. Finally, by statute the final adoption orders for P., J., and C. may include provisions for postadoptive sibling contact. (§ 366.29.) This fact serves to lessen the potential harm identified by the parents resulting from severance of the various sibling relationships in this case.
We conclude that the juvenile court did not err in failing to appoint separate counsel for P., J., and C.
III
Independent Guardians Ad Litem
The parents assert that the order terminating parental rights must be reversed because the juvenile court failed to appoint P., J., and C. an independent guardian ad litem.
On October 23, 2000, the juvenile court appointed the Director of DHHS as the guardian ad litem to represent the interests of P. and J. The record does not contain an order appointing a guardian ad litem for C. Siblings P., J., and C. also were represented by counsel.
In In re Charles T. (2002) 102 Cal.App.4th 869, 872, 877— 879, this court held that because counsel had been appointed for the minor in that case, the juvenile court did not err in failing to appoint a separate guardian ad litem.
For the reasons contained in In re Charles T., we reject the claim of the parents.
IV
Judges Signature
The father argues that the order terminating his parental rights must be reversed because the dispositional order of removal on which it is based was void for its lack of a signature by a judge.
This court has resolved the claim made by the father. In In re I. S. (2002) 103 Cal.App.4th 1193, 1199, which the father concedes is controlling here, we held that a detention order signed by a judge that results in removal of the minor from the home is sufficient to meet the statutory requirement.
In this case, the record reflects that at the detention hearing the minors were removed from the parents home. The removal orders were approved by a judge of the juvenile court. There was no error.
V
Exception Based on Sibling Relationships
The mother contends the juvenile court committed reversible error for its failure to apply the statutory exception to adoption based on the maintenance of existing sibling relationships in the juvenile court. According to the mother, the record showed that P. enjoyed visits with his siblings. Moreover, the mother asserts that P.s ongoing contact with his siblings, and one in particular, was in P.s best interests.
Noting she did not tender the issue of the applicability of a statutory exception to adoption based on sibling relationships in the juvenile court, the mother claims that the failure of her counsel to raise the matter at the section 366.26 hearing constitutes ineffective assistance of counsel. She argues that no reason existed not to raise the issue of whether sibling relationships were sufficiently substantial to preclude P.s adoption. The mother also avers that because she opposed adoption and wanted P. returned to her, she suffered prejudice as a result of her counsels incompetence. We agree with the mother that she has a sufficient legal interest to tender her claim. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 948-951.)
The claims of the mother are premised on a recently enacted statutory exception to adoption contained in section 366.26, subdivision (c)(1)(E). Under that provision, effective January 1, 2002, the juvenile court may find a compelling reason for determining that termination of parental rights would be detrimental to the minor where "there would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption." (Stats. 2001, ch. 747, § 3.)
Pursuant to subdivision (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 to consider the applicability of the statutory exception. (Cf. In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)
In order to show ineffective assistance of counsel, the mother "must demonstrate that counsel failed to perform with reasonable competence, and that it is reasonably probable a determination more favorable to the [appellant] would have resulted in the absence of counsels failings." (People v. Belmontes (1988) 45 Cal.3d 744, 767, 248 Cal. Rptr. 126, 755 P.2d 310; People v. Fosselman (1983) 33 Cal.3d 572, 583-584, 189 Cal. Rptr. 855, 659 P.2d 1144; People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal. Rptr. 732, 590 P.2d 859.) When a claim of ineffectiveness is made on appeal, we examine the record to determine if there is any explanation for the challenged aspects of representation. If the record sheds no light on why counsel failed to act in the manner challenged, the case is affirmed "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . . " (People v. Fosselman, supra, at p. 426.)
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, 116 Cal. Rptr. 910.) Here, the record showed that P. "isolated himself to play . . . ." Moreover, during one visit he "played independently throughout most of the visit . . . ." During another visit, P. "played independently the first 20 minutes of the visit, then began to interact with his siblings." Moreover, after visits P. "eagerly returned to his fos/adopt mother." He also had behavioral problems and disturbed sleep.
On this record, it is highly unlikely that counsel for the mother would have secured a more favorable outcome for her if counsel had tendered the issue of the sibling relationship exception to the proposed adoption of P. Even pleasant visits by themselves do not suggest that no interference with sibling relationships is desirable. A finding that section 366.26, subdivision (c)(1)(E) applies must be based on a "substantial interference" with sibling relationships. Here, the record suggests the benefits of adoption for P. far outweigh the benefits of continuing sibling relationships. (In re L. Y. L., supra, 101 Cal.App.4th at pp. 951-953.) Accordingly, we reject the mothers claims that counsel was deficient for failing to raise the claim and that she was prejudiced by counsels omission. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.)
DISPOSITION
The orders terminating the parental rights of the mother and father are affirmed.
We concur: BLEASE, Acting P.J., and NICHOLSON, J.