In re Evan B.

Filed 2/25/08 In re Evan B. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

L. J. appeals orders of the juvenile court denying her modification petition, and terminating parental rights to her sons Evan and Nigel. (Welf. & Inst. Code, 388, 366.26, subd. (c)(1).)[1] We affirm.

FACTS AND PROCEDURAL HISTORY

On January 19 and 20, 2005, the Ventura County Human Services Agency (HSA) filed a petition of behalf of eighteen-month old Evan B. and newborn Nigel B. HSA alleged that hospital toxicology screening of Nigel disclosed the presence of amphetamine and THC. HSA also alleged that the children's father, Archie B., knew of L.'s substance abuse, but did not protect the children.[2] On January 20, 2005, the juvenile court ordered that Nigel be detained.

On February 22, 2005, the juvenile court sustained the allegations of amended dependency petitions. ( 300, subds. (b), (j).) It continued the children as dependent children, and ordered HSA to provide family reunification services to L. The family reunification services plan required her to obtain treatment for her longtime substance abuse and attend parent education classes, among other things.

HSA initially placed the children with their father. After his positive tests for methamphetamine use, however, the juvenile court detained the children and HSA placed them with V.

HSA provided L. with twelve months of family reunification services. She made little progress toward completing her family reunification services plan, however. On March 29, 2006, the juvenile court terminated family reunification services to her and later to Archie. It then set the matter for a permanent plan hearing to be held on October 23, 2006. ( 366.26.)

Approximately five months following the termination of family reunification services, L. gave birth to Mandy B. Hospital toxicology testing of the newborn revealed the presence of amphetamine. L. admitted to a social worker that she used methamphetamine and marijuana during her pregnancy. HSA filed a dependency petition regarding the infant, and placed her in the foster home with her siblings.

Modification Petition

Approximately one month following Mandy's birth, L. entered a residential drug treatment program, "Miracle House." She completed the three-month residential program and graduated to the "Miracle House Sober Living Program." L. attended Alcoholics Anonymous/Narcotics Anonymous meetings frequently, visited her children as permitted, obtained full time employment, and tested regularly for drug use with negative results. On January 16, 2007, she filed a modification petition pursuant to section 388, requesting that the juvenile court reinstate her family reunification services.

On February 7, 2007, the juvenile court denied L.'s request for a hearing regarding the modification petition. Although the court found a prima facie case of changed circumstances, it concluded that granting the petition would not be in the children's best interests.

Indian Child Welfare Act (ICWA)

L. informed HSA that she may have Indian heritage and would inquire of her relatives for additional information. HSA sent notice to the Bureau of Indian Affairs (Form SOC 820, "Notice of Involuntary Child Custody Proceedings for An Indian Child") with information regarding Evan and Nigel and the parents' names, addresses, and dates of birth. The Bureau of Indian Affairs responded that without additional information, the family was not eligible for services. HSA did not file the response with the court nor did the court make a finding that the ICWA does not apply to Evan and Nigel.

Permanent Plan Hearing

The juvenile court continued the permanent plan hearing on five occasions for good cause. On February 16, 2007, it held the permanent plan hearing pursuant to section 366.26. L. and Archie requested another continuance, which the court denied. HSA filed a permanent plan report recommending termination of L.'s parental rights and the adoption of the children by V. By then, the children had lived with V. for twenty-four months. L., Archie, and the HSA social worker testified at the hearing. The court concluded that Evan and Nigel were likely to be adopted, and it terminated the parents' parental rights. The court also decided that no statutory exception to adoption applies.

L. appeals and contends that the juvenile court erred by: 1) denying the modification petition without a hearing; 2) denying her motion for a continuance; 3) not applying the parental benefit and sibling relationship exceptions to adoption; 4) not evaluating the need to appoint separate counsel for the siblings; and 5) not ensuring compliance with the notice requirements of ICWA.

DISCUSSION

I.

L. argues that the juvenile court abused its discretion by not holding an evidentiary hearing concerning the modification petition because she stated a prima facie case of changed circumstances. ( 388, subd. (c) ["If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . ."]; In re Jasmon O. (1994) 8 Cal.4th 398, 415 [court must hold section 388 hearing if petition presents any evidence that hearing would promote bests interests of child].) She relies upon In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414, concluding that due process of law requires that if a modification petition presents "any evidence" that a hearing would promote the best interests of the child, the court must hold a hearing. (In re Jeremy W., supra, at p. 1414) L. asserts that she presented prima facie evidence of substantial and permanent changed circumstances regarding her parent skills, relationship with the children, and drug-free life.

The juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstances or new evidence, and that the modification would promote the best interests of the child. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446.) In determining the best interests of the child, the juvenile court shall consider the reason for the dependency, the reason the problem was not overcome, the strength of the parent-child and child-caretaker bonds, the length of time the child has been a dependent, the nature of the change of circumstance, the ease by which the change could be achieved, and the reason it was not made sooner. (Id., at pp. 446-447.) We test the juvenile court's decision for an abuse of discretion. (Id., at p. 447.)

The juvenile court did not abuse its discretion because L. did not make a prima facie showing that modification of prior court orders would be in her children's best interests. Construing L.'s petition liberally, her evidence of changing circumstances and nascent recovery from drug addiction could not override the children's need for permanency in an adoptive home. Moreover, Nigel has never lived with L., and Evan has lived more than half of his life with V. "[I]t is difficult to imagine how [L.] could have [established how modification would be in the children's best interests] given the fact that [she] never actually parented [Nigel] before [his] removal and [he] was immediately placed with an adoptive family." (In re Angel B. (2002) 97 Cal.App.4th 454, 465.) Although L.'s visits with the children were happy and positive, they amount to a small fraction of time that they have lived with V. (Id., at p. 465.) The juvenile court reasonably decided that their current placement in an adoptive home is in their best interests.

"'"[C]hildhood does not wait for the parent to become adequate."'" (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) A petition that alleges merely changing circumstances and means delaying the selection of a permanent home for a child to see if a parent, who has failed to reunify with the child, might be able to reunify at some future point, does not promote the child's best interests. (Ibid.)

II.

L. asserts that the juvenile court abused its discretion by denying her motion for a continuance of the permanent plan hearing. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 811 [standard of review of order denying continuance].) She contends that she established "good cause" for a continuance to obtain more information on the sibling relationship between newborn Mandy and her brothers, to explore any conflict in the representation of all siblings by the same attorney, and to permit counsel to refile the modification petition with a transcript of Mandy's jurisdiction hearing. ( 352, subd. (a).)

Section 352, subdivision (a), permits the juvenile court to grant a continuance upon a showing of good cause. "[T]he court may continue any hearing . . . provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [] Continuances shall be granted only upon a showing of good cause . . . ."

The juvenile court did not abuse its discretion because L. did not establish that a continuance was not contrary to her sons' best interests. Section 352, subdivision (a), requires the court to consider the child's need for prompt resolution of his custody, his need for a stable environment, and any damage arising from prolonged temporary placement. Her stated reasons for a continuance involve matters that had been pending and could have been resolved in advance of the permanent plan hearing a hearing that had been continued on five occasions over a four-month period. By the time of the February 2007 permanent plan hearing, Evan and Nigel had been in foster care for nearly 24 months. Thus, it was reasonable for the juvenile court to conclude that it was in the children's best interests to resolve their custody status and secure them a permanent home.

III.

L. contends that the juvenile court erred by not applying the "beneficial parental relationship" and the "sibling relationship" exceptions to adoption. ( 366.26, subds. (c)(1)(A), (c)(1)(E).)[3] (In re Valerie A. (2007) 152 Cal.App.4th 987, 1003 [discussing importance of preserving sibling relationships].) She argues that she maintained consistent, positive visitation with the children, they were bonded to her, and she occupied a parental relationship toward them. L. also asserts that the court did not consider fully the likelihood that she will reunify with Mandy, and that Evan and Nigel will enjoy future emotional benefits from maintaining a sibling relationship with their sister. L. adds that Evan and Nigel also have a relationship with half-siblings.

Section 366.26, subdivision (c)(1), requires the juvenile court to terminate parental rights if it finds by clear and convincing evidence that a child is likely to be adopted, unless "the court finds a compelling reason for determining that termination would be detrimental to the child" due to an enumerated statutory exception. The "beneficial parental relationship" exception of section 366.26, subdivision (c)(1)(A), requires a showing of "regular visitation and contact" and "benefit" to the child from "continuing the relationship." (In re Angel B., supra, 97 Cal.App.4th 454, 466.) "To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) Only in the "extraordinary case" can a parent establish the exception because the permanent plan hearing occurs after the court has repeatedly found the parent unable to meet the child's needs. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

The exception requires proof of "a parental relationship," not merely a relationship that is "beneficial to some degree but does not meet the child's need for a parent." (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1350.) The existence of a beneficial relationship is determined by the age of the child, the portion of the child's life spent in parental custody, the quality of interaction between parent and child, and the child's particular needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689 [beneficial relationship exists where children in mother's care the majority of their lives].)

In its ruling terminating parental rights, the juvenile court expressly found that no statutory exceptions to termination of parental rights and adoption as the preferred plan apply. Under any standard of review, the court's finding is proper because L. did not meet her burden of establishing the "extraordinary case" of the beneficial parental relationship exception. (In re Jasmine D.,supra, 78 Cal.App.4th 1339, 1350.) Although she and her sons may have had loving and positive visits, L. did not occupy a parental role in their lives. Evan was 18 months old and Nigel a newborn when the juvenile court detained them and removed them from her care. At the time of the permanent plan hearing, they had lived with V. for nearly 24 months. Thus since birth, Nigel resided with a foster parent who satisfied his daily needs for protection, guidance, food, shelter and medical care. Evan also has lived the majority of his life in foster care with V. L.'s visits may have been beneficial to some degree, but did not meet her sons' needs for a parent. She has not established that terminating her parental rights "would deprive [her sons] of a substantial, positive emotional attachment such that [they] would be greatly harmed." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

Section 366.26, subdivision (c)(1)(E), provides that substantial interference with a sibling relationship is a compelling reason for determining that termination of parental rights is detrimental to a dependent child. It states: "There 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." The sibling relationship exception concerns the best interests of the child being considered for adoption, not the interests of his siblings. (In re Naomi P. (2005) 132 Cal.App.4th 808, 822.) It also applies only "in exceptional circumstances" to permit the court to choose an option other than the norm of adoption. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

At the time of the permanent plan hearing, Evan and Nigel had lived with Mandy for only six months. Although the evidence establishes that the young children were developing a sibling bond, there is no evidence that Evan and Nigel would suffer emotional harm if the relationship were impaired. Moreover, Mandy was residing with V. during L.'s reunification services period and the children continue to develop and enjoy a sibling relationship. In the event that L. does not reunify with Mandy, V. intends to adopt her as well. L. has not established that the sibling relationship of her children is the "exceptional" case to adoption. (In re Celine R., supra, 31 Cal.4th 45, 53.)

IV.

L. argues that the juvenile court erred by not evaluating whether the attorney, Ms. S., had a conflict of interest in representing all three children. ( 317, subd. (c) [counsel for minor may "not represent another party . . . whose interests conflict with the child's interests].) She points out that Evan and Nigel's cases were pending termination of parental rights and adoption, and Mandy's case involved institution of family reunification services and possible reunification. L. contends that an actual conflict between the two boys and Mandy exists or there is a reasonable likelihood that an actual conflict will arise. (Cal. Rules of Court, rule 5.660, subd. (c)(1)(B); Carroll v. Superior Court (2002) 101 Cal.App.4th 1423.) She claims that attorney S. was required to weigh the benefits of adoption versus the benefits of maintaining the sibling relationship. L. asserts that it is reasonably probable that she would have obtained a better result had the court appointed a separate attorney for Evan and Nigel. (In re CelineR., supra, 31 Cal.4th 45, 50, 59-60 [test of harmless error].)

The juvenile court did not abuse its discretion. Counsel for siblings in dependency cases must withdraw from representation of one or more members of the group only if an actual conflict arises. (In re Celine R., supra, 31 Cal.4th 45, 58.) Here attorney S. stated to the court that she did not have a conflict of interest arising from "the children [being] on different tracks." The court impliedly found that there was no actual conflict of interest, and L. does not point to evidence suggesting otherwise.

Moreover, it is not reasonably probable that L. would have obtained a more favorable result had the court appointed different counsel for Evan and Nigel. The parties produced evidence concerning the developing sibling relationship with Mandy and argued applicability of the sibling relationship exception to termination of parental rights. Given Evan and Nigel's tender age, the limited amount of time they had lived with Mandy (six months), and the statutory preference for adoption, it is not reasonably probable new counsel would have argued against the termination of parental rights.

V.

L. contends that the juvenile court erred by not ensuring that HSA complied with the notice requirements of ICWA. Specifically, she asserts that HSA did not gather sufficient relevant family information from the parents and family members, did not provide a copy of the Bureau of Indian Affairs' response to the court, and did not state all relevant information on the notice form.

Following the filing of L.'s opening brief, HSA corrected its notice to the Bureau of Indian Affairs in a revised form. It sent the revised form containing all the information L. and family members could provide to the Bureau of Indian Affairs, along with the amended dependency petitions, by certified mail with return receipts requested. HSA then filed copies of the form and receipts as well as the response by the Bureau of Indian Affairs with the juvenile court. At a noticed hearing at which the parents were represented by counsel, the juvenile court ruled that HSA provided proper notice as required by ICWA, and that it did not apply to the children

The orders are affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Tari L. Cody, Judge

Superior Court County of Ventura

______________________________

Catherine C. Czar, under appointment by the Court of Appeal, Defendant and Appellant.

Noel A. Klebaum, County Counsel, Oliver G. Hess, Assistant County Counsel for Plaintiff and Respondent.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

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

[2] Archie is not a party to this appeal.

[3] Now found in section 366.26, subdivisions (c)(1)(B) (i) and (v).