In re Gavin W.

Filed 7/14/09 In re Gavin W. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

INTRODUCTION

Appellant Deanna W. appeals from the termination of her parental rights to two of her minor children, Gavin W., born in 2005, and N.W.[1], born in 2007. (Welf. & Inst. Code,  366.26.)[2] She contends the juvenile court erred (1) by failing to apply the beneficial relationship exception to termination of parental rights ( 366.26, subd. (c)(1)(B)(i)); (2) by failing to evaluate her competency and the need to appoint a guardian ad litem; and (3) by failing to revisit proceedings conducted while appellants original attorney had a conflict of interest. We reject each of these arguments and affirm the judgment.

II.

FACTS AND PROCEDURAL HISTORY

The minors were taken into protective custody on August 18, 2007, after law enforcement officers responded to a report that they had been abandoned. Appellant had left them in the care of an acquaintance with no provisions for their care or any way to contact her. When appellant eventually returned to pick up the minors, she was arrested for child endangerment. (Pen. Code,  273a, subd. (b).)

Upon investigation, it was discovered that appellant had an extensive history of substance abuse and domestic violence, as well as a significant criminal history. The report prepared by the Sonoma County Human Services Department (the Department) indicated that [t]he file contains multiple reports expressing concern with [appellant]s ability to care for the children, referencing her drug problems, mental health issues, and pattern of leaving the children in the care of acquaintances. Additionally, it was noted that appellant had a total of seven children, one of whom died in infancy and four older children who were no longer in appellants care.

At a hearing held on October 15, 2007, the juvenile court sustained allegations under section 300, subdivision (b) [failure to protect] and subdivision (c) [risk of serious emotional damage due to parents history of domestic violence]. The Departments report prepared for the hearing indicated that while appellant initially seemed cooperative and willing to address the issues that led to the minors removal, she was now very resistant and threatening. The report reflected the social workers belief that appellants behavior was, in large part, the result of her continued substance abuse.

The court ordered reunification services for appellant. Specifically, she was ordered to participate in drug rehabilitation, submit to random drug testing, and to participate in domestic violence counseling and parenting education. She was also ordered to have a psychiatric evaluation performed, and was granted weekly monitored visits with the minors.

A contested six-month review hearing was held on June 2, 2008. Evidence was received that appellant had made little or no progress toward alleviating or mitigating the causes necessitating the minors out-of-home placement. Despite being offered services to address issues of substance abuse, domestic violence, anger management, parenting, and mental health, she had failed to avail herself of any of these services on a consistent basis. Furthermore, she had been unable to maintain a consistent visitation schedule with the minors. The social workers report prepared for the hearing indicated that appellant always had excuses for not following through, and she tended to blame others for creating the problems which hindered her progress.

Based upon the foregoing, the juvenile court determined that: (1) the Department had provided reasonable services; (2) appellant had not complied with her case plan; (3) the minors could not be returned to appellants custody because of a substantial risk of detriment to their physical/emotional well-being; and (4) there was no substantial probability that the minors could be returned to appellant within an extended reunification period. The court then terminated reunification services and scheduled a section 366.26 hearing to address the minors long-term placement.

The section 366.26 hearing was held on December 1, 2008. The joint assessment report, prepared by the California Department of Social Services/Adoptions Branch for the section 366.26 hearing, recommended termination of parental rights and suggested that the juvenile court order a plan of adoption for the minors. As of the writing of the report, appellant had two active bench warrants outstanding for her arrest, both for possession of controlled substances.

The court considered evidence that the minors had resided in a prospective adoptive home since August 20, 2007, shortly after they were removed from appellants custody. Their caretakers wished to become the boys adoptive parents, and the minors were happy and secure with this family. The court terminated appellants parental rights, finding by clear and convincing evidence that it is likely that the minors would be adopted and that termination of parental rights would not be detrimental to their well-being. This appeal followed.

III.

DISCUSSION

A. Beneficial Relationship Exception

Appellant argues the trial court erred by refusing to apply section 366.26, subdivision (c)(1)(B)(i) (formerly subdivision (c)(1)(A)),[3] typically known as the beneficial relationship exception to adoption. She contends the court should have applied the beneficial relationship exception because she exercised substantial and successful visitation with both minors and they would benefit from continuing their relationship with her.

Once the juvenile court determines that there is no probability of reunification, adoption is the preferred permanent placement. ( 366.26; In re Edward R. (1993) 12 Cal.App.4th 116, 122.) If the court finds it likely that the child will be adopted if parental rights are terminated, the burden shifts to the parent or parents opposing adoption to demonstrate that termination would be detrimental to the child under one of four statutory exceptions. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.)

One of these is the beneficial relationship exception, which requires an affirmative showing that termination would be detrimental to the child because the parent has maintained regular visitation and contact, and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(B)(i).) Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the childs needs, it is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).)

We review the juvenile courts determination under section 366.26, subdivision (c)(1)(B)(i) for substantial evidence.[4] (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.); In re Casey D. (1999) 70 Cal.App.4th 38, 52-53 (Casey D.).) Appellant contends she presented sufficient evidence to support a finding that the beneficial relationship exception should be applied here. The first prong of the beneficial relationship exception is regular visitation and contact in a parental role. Appellant has failed to establish the first prong of the test because the record reflects that she did not maintain regular, consistent visitation with the minors. The minors remained out of appellants custody for over a year, and there was only one five-week period when the Department noted that appellants visits were consistent. By the time of the section 366.26 hearing, her overall visitation record was characterized as somewhat spotty with many missed visits. The difficulties appellant had with visitation was described as follows: [She] was for a time homeless and suffering set backs of her own making, being incarcerated, sickness, being jobless and without transportation.

Even if it could be said that appellant had maintained regular visitation, a more fundamental problem lies in the quality of the parent/child relationship. [I]nteraction between parent and child will usually confer some incidental benefit to the child. [Citation.] To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the childs life resulting in a significant, positive emotional attachment of the child to the parent. . . . [] When applying the beneficial parent-child relationship exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. [Citation.] (In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)

Consequently, the beneficial relationship exception does not apply if a parent does not occupy a parental role in his childs life. (Jasmine D., supra, 78 Cal.App.4th at p. 1350; Casey D., supra, 70 Cal.App.4th at p. 51 [a parent who has essentially never had custody of the children or has never advanced beyond supervised visitation will have a difficult time establishing the exception].) [T]o establish the exception . . . , the parents must do more than demonstrate frequent and loving contact [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.] (In re Andrea R. (1994) 75 Cal.App.4th 1093, 1108.) A relationship sufficient to support the beneficial relationship exception typically aris[es] from day-to-day interaction, companionship and shared experiences. (Casey D., supra, 70 Cal.App.4th at p. 51.)

There is some evidence in the record that the minors enjoyed the visits with appellant. For instance, one of the Departments reports states: Both children appear to look forward to seeing their parents and react tearfully at times to missed visits. However, there is no evidence in the record that appellant had a substantial parental relationship with the minors such 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 . . . . (Autumn H., supra, 27 Cal.App.4th at p. 575.)

The minors were removed from appellants care when they were babies (N.W. was 6 months old and Gavin was 20 months old), and the only parenting they have ever really known has been the attentive, consistent care they have received from their prospective adoptive parents. The Department has repeatedly noted that the prospective adoptive family is attentive to the minors special needs and committed to adopting them and providing them with a safe, nurturing environment. The minors are thriving under the prospective adoptive parents consistent care, calling them mama and dada, and looking to them for comfort and security.

By contrast, by the time of the section 366.26 hearing, appellant had not yet reached a position where she could assume her parental responsibilities or provide the minors with any degree of stability. Consequently, appellant was unable to establish that the benefits of her relationship with the minors would outweigh the benefits they would gain in a permanent home, or that severing her relationship with the minors would be detrimental to them. For the foregoing reasons, the record before us amply supports the juvenile courts decision that the beneficial relationship exception did not apply.

B. Failure to Investigate Appellants Mental Competency

Appellant claims the juvenile court erred in failing to inquire, on its own initiative, whether she had the capacity to understand the nature and consequences of the proceedings and to assist her counsel. Appellant argues that there was more than enough evidence before the trial court to . . . at least explore in a formal manner the appointment of a guardian ad litem.

Our Supreme Court has recognized that, [i]n a dependency case, a parent who is mentally incompetent must appear by a guardian ad litem appointed by the court. [Citations.] (In re James F. (2008) 42 Cal.4th 901, 910; see also In re D.D. (2006) 144 Cal.App.4th 646, 653; In re Sara D. (2001) 87 Cal.App.4th 661, 667 (Sara D.).) Accordingly, the juvenile court has the authority to appoint a guardian ad litem on its own motion, if the court obtains sufficient information that the parent does not understand the proceedings or cannot assist his/her attorney in protecting his/her interests. (Sara D., supra, 87 Cal.App.4th at p. 672.) The juvenile court must find by a preponderance of evidence that the parent is incompetent before appointing a guardian ad litem. (Id. at p. 667.)

The appointment of a guardian ad litem dramatically change[s] the parents role in [a dependency] proceeding . . . . (Sara D., supra, 87 Cal.App.4th at p. 668.) The effect of the appointment is to remove control over the litigation from the parent, whose vital rights are at issue, and transfer it to the guardian. (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186-1187 (Jessica G.).) Thereafter, the guardian ad litem, rather than the parent, has the authority to make certain tactical and even fundamental decisions affecting the litigation . . . . (In re Christina B. (1993) 19 Cal.App.4th 1441, 1454.) Consequently, the appointment must be approached with care and appreciation of its very significant legal effect. (Jessica G., supra, 93 Cal.App.4th at p. 1187.)

In reviewing the juvenile courts actions, the appropriate inquiry is whether the circumstances as a whole should have alerted the juvenile court that the parent was incapable of understanding the nature or consequences of the proceeding and unable to assist counsel in representing the parents interests. (See Sara D., supra, 87 Cal.App.4th at p. 667; In re R.S. (1985) 167 Cal.App.3d 946, 979-980.) To be sure, the record before us demonstrates that appellant was not always in control of her impulses and that she had difficulty managing her anger as demonstrated by her often-times erratic, threatening, and belligerent behavior. However, there is no evidence that she was incapable of comprehending the legal significance or consequences of the proceedings.

To the contrary, if anything, the record reflects that appellant was acutely aware of the significance of the proceedings and the adverse legal consequences of a termination of her parental rights. Numerous reports and transcripts reflect that appellant recognized that the minors were under juvenile court authority and placed in the care of a prospective adoptive family, that she was being given one last opportunity to prove that she could provide for their needs, that she believed she had complied with the court-ordered services to the best of her ability given her health and transportation problems, and that she was entitled to have more time to work on her reunification plan.

Additionally, appellant was represented by different counsel throughout these proceedings and at no time did any of her counsel express concern that she was unable to understand pertinent information, rationally evaluate litigation choices based upon that information, or communicate with and assist counsel. (Compare Sara D., supra, 87 Cal.App.4th at p. 672 [when parents counsel filed a motion requesting appointment of guardian ad litem for parent, the courts failure to hold at least an informal hearing on the motion violated the parents constitutional right to due process.].) On this record, the court had no evidence before it sufficient to raise the question whether appellant was mentally competent or whether she required the additional assistance of a guardian ad litem. Given these circumstances, the juvenile court did not abuse its discretion by not exercising its authority to conduct an investigation of appellants mental competency and appoint a guardian ad litem for appellant.

C. Conflict of Interest

Appellant argues that her counsels acknowledged conflict of interest tainted counsels representation throughout these proceedings and justifies her case being returned to the Superior Court with an order that mother be provided with an additional six months of reunification services.

By way of background, counsel was appointed for appellant at her first court appearance on August 22, 2007. More than a year later, on September 25, 2008, after representing appellant during many critical stages of this proceeding, appellants counsel informed the juvenile court that she had a firm-wide conflict because of her representation in another case. Appellants counsel noted that she tried to avoid the conflict, but was unable to do so and was thus forced to withdraw from this case. The court permitted counsel to withdraw, and new counsel was appointed for appellant. In appointing new counsel, the court made sure that appellants new attorney had ample time to become familiar with the case, setting the next scheduled hearing for nearly a month later.

The fundamental premise of appellants conflict of interest theory on appeal is that her attorneys representation throughout these proceedings was adversely affected by the conflict of interest. We agree the record shows that some type of conflict of interest existed.[5] However, there is nothing in the record to support appellants assumption that an actual conflict of interest necessarily existed from the time counsel was appointed on August 22, 2007, until the time a conflict of interest was declared on September 25, 2008.

More importantly, the record does not reflect that this potential conflict of interest adversely affected the attorneys representation of appellant. (See generally People v. Doolin (2009) 45 Cal.4th. 390, 420-421.) Appellant argues that her attorneys failure to make a more rigorous reasonable services argument and her attorneys failure to file a Notice of Intent to File Writ Petition at the close of the six month review hearing establishes the prejudice necessary to make a meritorious conflict of interest claim. We cannot assume that appellants counsel was inhibited from taking these action because of a conflict of interest when there were very reasonable tactical and practical reasons not to proceed in this manner.

As the record reflects, during the reunification phase of this case, appellant failed to address her long-standing substance abuse issues and she did virtually nothing to comply with her case plan. Consequently, counsel could have properly concluded that there was no point in arguing that better reunification services should have been offered. Similarly, counsel could have legitimately concluded that there were no arguable issues to be raised in a writ petition. In short, it was appellants lack of compliance with the court-ordered programs, rather than counsels failings, which eventually lead to the termination of her parental rights. Because there is no evidence of an adverse effect on counsels performance, appellants conflict of interest claim fails.

IV.

DISPOSITION

The judgment terminating appellants parental rights is affirmed.

_________________________

RUVOLO, P. J.

We concur:

_________________________

SEPULVEDA, J.

_________________________

RIVERA, J.

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[1] Because this minor has an uncommon first name, we will reference the minor using initials only for protective nondisclosure of the minors identity.

[2] All statutory references are to the Welfare and Institutions Code. The challenged dependency proceedings in the juvenile court also involved Anderson W., the minors alleged father. Because Anderson W. is not a party to this appeal, we omit any discussion of the specific allegations against him or the courts actions taken with respect to his parental rights.

[3] Section 366.26, subdivision (c)(1)(A) was renumbered 366.26, subdivision (c)(1)(B)(i) effective January 1, 2008. (Stats. 2007, ch. 583,  28.5.) The language of the exception and applicable case law have not changed.

[4] Some courts apply an abuse of discretion standard of review. (See Jasmine D., supra, 78 Cal.App.4th at p. 1351; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) As the court observed in Jasmine D., the practical differences between these two standards of review are minor, and on this record, we would affirm under either standard. (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

[5] Appellant admits that on the present record the actual nature of the conflict of interest between mother and her attorney simply cannot be determined.