In re I.N.
Filed 5/21/13 In re I.N. CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(El
Dorado)
----
In re I.
N. et al., Persons Coming Under the Juvenile Court Law.
C072216
EL DORADO COUNTY
DEPARTMENT OF HUMAN SERVICES,
Plaintiff and Respondent,
v.
A. C.,
Defendant and Appellant;
I. N. et al.,
Appellants.
(Super. Ct. Nos.
SDP20090044, SDP20090045)
the juvenile court’s orders terminating parental rights. ( ADDIN BA xc <@st> xl 34 s
DFQYXH000001 xpl 1 l "Welf. & Inst. Code, §§
395, 366.26" Welf. & Inst. Code, §§ 395,
366.26.)
They contend the juvenile court
erred in failing to apply the beneficial parent/child relationship exception to
adoption. In addition, the minors
contend the juvenile court deprived them of
process by failing to inquire into a potential
conflict of interest involving their trial counsel. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant A.C. (mother) and B.N.
(father) are the parents of twins, the minors I.N. and E.N. (born spring 2005).
September 2009 the
Department of Human Services (DHS) filed nondetained dependency petitions
(§ 300) alleging mother’s boyfriend, J.B., had broken her jaw, and mother
had admitted recently smoking marijuana in spite of a prior referral for
substance abuse services.
The police officer responding to the
domestic
violence call noted mother “ ‘had watery, bloodshot
eyes, and a strong odor of an alcoholic beverage about her breath and person.’
†The officer confiscated 4.8 grams of
marijuana, which mother claimed was her boyfriend’s. Mother obtained a temporary restraining order
against the boyfriend and was instructed by a social worker on the importance
of keeping him from her home. She
subsequently allowed the boyfriend back into her home.
Mother denied smoking marijuana in
front of her children but admitted that she would most likely test positive for
marijuana. At the time she claimed she
used marijuana only sporadically and was not addicted.
According to the September 2009
jurisdiction/disposition report, mother had a strong relationship with the
minors and clearly loved them. The
minors remained with mother because she had not placed them in imminent
danger. However, mother delayed setting
up her drug testing services, stalled her first test, and smoked marijuana the
next day.
At the September 30, 2009, jurisdiction/disposition hearing, the
juvenile court sustained the petitions; placed the minors with the parents, who
shared custody; and ordered services for mother.
DHS filed
petitions ( ADDIN BA xc <@osdv> xl 5 s
DFQYXH000015 xpl 1 l "§ 387" § 387) in October 2009, alleging mother
drove the minors to daycare while under the influence of alcohol. According to the detention report, mother
tested positive for marijuana on October 2, 7, and 12, 2009; two of those test
results indicated recent or habitual use.
The social worker confronted mother, who admitted having a more severe
problem with marijuana than she initially thought but claimed to have abstained
from alcohol since the domestic violence incident in August 2009. Less than 48 hours after the conversation,
mother tested positive for alcohol and marijuana. Mother submitted the test at 10:00 a.m. and
had a blood-alcohol level of 0.24 percent.
At 10:40 she signed the children in at daycare. The minors were removed from mother and placed
with father. Mother subsequently
admitted consuming six vodka cocktails between 8:30 p.m. and 2:00 a.m. on the
night before the test.
The December 2009
jurisdiction/disposition report noted that mother had recently told a social
worker, “ ‘I screwed up big time, and I obviously needed help.’ †Mother’s substance abuse provider indicated
she was “ ‘totally engaged now.’ â€
The minors were safe in father’s
home, but father twice tested positive for marijuana and often argued with his
girlfriend in front of the minors.
Mother consistently visited the minors; according to the social worker,
she was “great†with her children.
The minors’ court appointed special
advocate (CASA) filed a report in December 2009. She noted the minors were happy to see mother
on visits, and mother appeared to miss and love her children very much.
In December 2009 the juvenile court
sustained the supplemental petition,
removed custody from mother, continued services for mother, and ordered
services for father. Mother’s visitation
was increased to twice a week for a total of six hours.
In April 2010 DHS filed petitions
alleging father failed to protect the minors by allowing an ex-girlfriend with
a history of heroin use to spend several nights at his home, and by engaging in
numerous verbal altercations with mother in front of the minors.
April 2010 detention report noted the minors were placed with the maternal
grandmother, who had been approved for placement. The minors were returned to mother at the
detention hearing held later that month.
According to the May 2010
jurisdiction/disposition report, father was uncooperative and would not keep a
verbal safety plan. Mother had completed
90 days of inpatient treatment and complied with dependency drug court. After the minors were returned to her care,
mother demonstrated good parenting and was benefitting from services.
At the May 2010 jurisdiction
hearing, the juvenile court sustained the supplemental petitions and placed the
minors with mother. The juvenile court
ordered family maintenance services for mother and reunification services for
father at the June 2010 disposition hearing.
In July 2010 father was discharged
from drug treatment for taking another patient’s OxyContin. He then got together with mother and
encouraged her to use methamphetamine and alcohol. Mother relapsed but immediately reported the
incident and requested a return to inpatient treatment; the decision was made
to treat her on an outpatient basis. She
showed signs of continued progress after her relapse, and the minors were doing
well in her home.
In November 2010 DHS filed
supplemental petitions ( ADDIN BA xc <@$osdv> xl 5 s
DFQYXH000015 xpl 1 § 387) alleging mother had allowed
ex-boyfriend J.B. back into her home and lied about it to DHS personnel. Mother and J.B. arranged for J.B. to use a
false name with social workers when they found him in mother’s home. The minors were detained and placed with the
maternal grandmother at the November 2010 detention hearing. DHS filed a request in December 2010 to
remove the minors from the maternal grandmother after she took the minors to
visit father in Reno contrary to the juvenile court’s orders.
The December 2010
jurisdiction/disposition report recommended terminating services for both
parents and setting a ADDIN
BA xc <@osdv> xl 14 s DFQYXH000017 l "section 366.26" section 366.26 hearing.
In a November 2010 interview with the social worker and mother’s
therapist, mother disclosed to the social worker a fact she professed to have
earlier reported to her therapist: that
she was seeing J.B. and father concurrently while she participated in
services. However, the therapist stated
that mother did not say she was seeing J.B. and claimed only that she had a new
boyfriend. Mother told the social worker
the dependency case was without merit and hurt the children. She also stated: “ ‘the next time I get hit I won’t call the
police.’ †(Italics omitted.)
The juvenile court sustained the
supplemental petitions at the December 2010 jurisdiction hearing. At the disposition hearing held later that
month, the juvenile court ordered reunification services for mother, denied
reunification services for father, and continued placement with the maternal
grandmother.
In February 2011 DHS filed
supplemental petitions ( ADDIN BA xc <@$osdv> xl 5 s
DFQYXH000015 xpl 1 § 387) after the minors were removed
from the maternal grandmother’s home following the revocation of her daycare
license. The grandmother had allowed
mother continuous access to the minors in violation of the juvenile court’s
orders, and the department could not complete a relative assessment because she
would not cooperate with DHS personnel.
The February 2011 detention report stated the minors were currently
visiting the paternal grandmother in Reno, Nevada. The report noted that the maternal
grandmother was making the social worker “an object of fear for the children.â€
The juvenile court placed the minors
with mother and continued family maintenance for her in February 2011.
DHS filed subsequent petitions ( ADDIN BA xc <@$osdv> xl 5 s
DFQYXH000016 xpl 1 § 342) in May 2011, alleging mother
drank alcohol and allowed father to spend the night at her home. The May 2011 detention report noted that the
minors were placed in foster care.
Mother admitted there had been domestic violence with father but that it
was of a different type than the domestic violence with J.B. that initiated the
dependency.
DHS filed the petitions after the
director of mother’s counseling center reported that mother told her therapist
she drank a bottle of alcohol, went to a bar, and “ ‘shut down the bar’ †after
being sexually harassed at work. The
therapist, who was also the minors’ therapist, did not feel comfortable having
the minors live with mother. The
therapist thought mother had a pattern in which she complied with services and
then had an incident for which she did not take responsibility. She concluded that mother had not made the
internal changes consistent with the services offered.
A report noted mother was
confrontational with the police when the minors were detained. The minors were in another room crying when
mother confronted the police. When a
services aide went to talk to the minors, mother told them not to talk to him
as he was one of the social worker’s “ ‘spies’ †and played for the social
worker’s “ ‘team.’ â€
The minors were returned to mother
following a contested detention hearing in May 2011. The juvenile court found the therapist‘s
statements were inadmissible as they violated mother’s therapist-client
privilege.
A May 2011 CASA report stated that
the minors were doing well in mother’s care but were suspicious of authority
figures. It seemed as if the minors
thought someone could show up at any time and move them to a new
placement. According to the advocate,
another detention from mother’s care would “be devastating and increasingly
traumatic on them.â€
The ADDIN
BA xc <@$osdv> xl 11 s DFQYXH000016 section 342 petitions were considered at a
June 2011 contested jurisdiction hearing.
The juvenile court did not sustain the allegations and dismissed the
petitions.
In July 2011 DHS filed ex parte
applications for inpatient drug treatment and a psychological evaluation of
mother after she admitted that a substance abuse test would be positive for
marijuana and alcohol. Mother also
admitted several months of falsified drug tests. The juvenile court granted DHS’s request and
continued family maintenance services
at a review hearing in August 2011.
DHS filed supplemental petitions in
September 2011, alleging mother relapsed by drinking alcohol with a golfing
companion. She had received over 24
months of services, and her psychological evaluation stated she might only
marginally benefit from services. The
psychological evaluation attached to the December 2011 detention report
diagnosed mother with cannabis abuse, alcohol abuse, and personality disorder
not otherwise specified with narcissistic, antisocial, and paranoid personality
traits. The psychologist concluded
mother had not benefitted from counseling and possibly could benefit only from
long-term psychotherapy.
The juvenile court detained the
minors in an October 2011 detention hearing.
The CASA reported the minors, now
living in Sparks, Nevada, with their paternal grandmother, were in their third
school placement in just over a year.
They were not unhappy about leaving their prior residence or going to a
new school. Mother told the minors that
her drinking was the cause of all their problems and that they might have to
live with their grandmother forever.
The October 2011
jurisdiction/disposition report noted that the minors were visiting their
paternal grandmother and would be placed in foster care if Nevada declined the
Interstate Compact on Placement of Children (ICPC) request for placement with
the paternal grandmother. DHS again
recommended terminating mother’s services and setting a ADDIN
BA xc <@$osdv> xl 14 s DFQYXH000017 section 366.26 hearing.
The juvenile court sustained the
petitions and continued removal from mother at the October 2011 jurisdiction
hearing. Reunification services were
terminated and a ADDIN BA xc <@$osdv> xl 14 s
DFQYXH000017 section 366.26 hearing was set at the
November 2011 disposition hearing.
ICPC placement was granted with the
paternal grandmother in March 2012. The
minors were thriving in the paternal grandmother’s care, and she was “100%
committed to adopting them.†According
to the paternal grandmother, the minors would like to be with mother, but if
adopted, they would prefer to be adopted by her. She related that I.N. “ ‘thinks that
adoption means they would stay with whoever adopted them forever,’ †while E.N.
“ ‘thinks adoption means taking somebody’s kid.’ â€
The March 2012 CASA report
recommended guardianship rather than adoption.
According to the advocate, bonding between mother and the minors was the
issue: termination of parental rights
“could have a potential negative emotional impact on the children.†The advocate felt that the minors did not
understand the ramifications of adoption, and that it might prevent them from
seeing mother when they wanted to.
In March 2012 a therapist evaluated
the minors to determine whether adoption would psychologically harm them. After meeting with the minors for an hour,
the evaluator found they did not have a particularly strong bond with either
parent or the grandparents, and their strongest bond was with each other. The therapist also noted it was “extremely
difficult to give a recommendation like this after spending only one hour with
the children and never meeting either parent.â€
Later that month, the juvenile court designated a psychologist to
conduct a bonding study.
The bonding study was filed in
August 2012. According to the minors,
mother told them that she cries for them every night and wants them to live
with her. Both minors said mother did
not like the paternal grandmother. The
psychologist found it “concerning that the mother has shared her sadness at
being separated from the children with them directly.†Telling the minors that she cried over them
every night was “not appropriate.†The
minors were attached to mother, but one of the reasons they wanted to live with
her was “because they want their mother to feel better.†The psychologist noted the minors expressed
no desire to change their living conditions when asked by their therapist in
March 2012; it was possible mother did not begin lobbying the minors until
after becoming aware of their stated lack of preference.
The psychologist concluded the
minors should remain together, and they were bonded to both parents and both
grandparents. It would not be in the
minors’ best interests to lose their relationship with any of the parents or
grandparents.
An August 2012 addendum report by
DHS noted the minors continued to thrive with the paternal grandmother. Mother was arrested that month for driving
under the influence of alcohol.
A September 2012 report stated the
minors were bonded with the paternal grandmother and severing parental rights
was in the minors’ best interests. DHS
recommended a permanent plan of adoption.
At the September 2012 ADDIN
BA xc <@$osdv> xl 14 s DFQYXH000017 section 366.26 hearing, the parties
stipulated the minors were adoptable; the only issue was whether the beneficial
parent/child relationship exception applied.
Mother testified that when she
picked up the children they would run full speed at her, hold her hands, and
not let go. I.N. got upset at the end of
visits; he did not want to leave mother or his house and hated going back to
the paternal grandmother’s house. E.N.
was ecstatic to see her and cried very hard at the end of visits. The minors did not want to be adopted, and
E.N. raised the subject every time the children and mother were together.
Mother and the minors prayed about
each other. I.N. was comfortable
expressing anger with her; the minors listened to her advice on how to deal
with anger. According to mother, it was
apparent the minors had an “amazing bond†with her and loved her “more than
anything.â€
The maternal grandmother testified
that the minors loved the mother—running to her, hugging her, and very happy to
see her on visits.
The CASA had worked on the case 10
to 12 hours per month since 2009. The
minors had a very good relationship with mother and were always happy with
her. They always wanted to know how many
hours of the visit with mother were left, and where they would go with her for
the next weekend’s visit. The advocate
recommended guardianship because she was afraid that the minors would not have
a relationship with mother if they were adopted. In light of the close bond with mother, it
would be a “disaster†not to have that relationship.
Minors’ counsel argued for guardianship,
asserting the minors would be “absolutely devastated†if parental rights were
terminated.
The juvenile court found the
beneficial parent/child relationship exception to adoption did not apply and
terminated parental rights.
DISCUSSION
I
Mother and the minors contend the
juvenile court erred in failing to apply the beneficial parent/child exception
to adoption. We disagree.
At a hearing under ADDIN
BA xc <@$osdv> xl 14 s DFQYXH000017 section 366.26, if the juvenile court finds
by clear and convincing evidence that a minor is likely to be adopted, the
court must terminate parental rights and order the minor placed for adoption
unless “[t]he court finds a compelling reason for determining that termination
would be detrimental†due to one of the statutorily enumerated exceptions. ( ADDIN BA xc <@osdv> xl 25 s
DFQYXH000018 xpl 1 l "§ 366.26, subd.
(c)(1)(B)" § 366.26, subd. (c)(1)(B).)
The parent has the burden of
establishing an exception to termination of parental rights. ( ADDIN BA xc <@cs> xl 47 s
DFQYXH000002 xhfl Rep xpl 1 l "
Cal.App.4th 799" In re
Zachary G. (1999) 77 Cal.App.4th 799, 809.) “Because a ADDIN
BA xc <@$osdv> xl 14 s DFQYXH000017 section 366.26 hearing occurs only after the
court has repeatedly found the parent unable to meet the child’s needs, it is
only in an extraordinary case that preservation of the parent’s rights will
prevail over the Legislature’s preference for adoptive placement.†( ADDIN BA xc <@cs> xl 49 s
DFQYXH000003 xhfl Rep xpl 1 l "
Jasmine D. (2000)
78 Cal.App.4th 1339, 1350 (Jasmine D.).)
When the juvenile court rejects an
exception to adoption, we review the court’s finding deferentially. ( ADDIN BA xc <@cs> xl 54 s
DFQYXH000004 xhfl Rep xpl 1 l "In re Bailey
J.
In re Bailey J. (2010)
189 Cal.App.4th 1308, 1314-1315 [whether standard of review deemed
substantial evidence or abuse of discretion, broad deference to lower court
required]; ADDIN BA xc <@$cs> xl 49 s
DFQYXH000003 xhfl Rep xpl 1 Jasmine D.,
supra, 78 Cal.App.4th at
p. 1351 [abuse of discretion]; ADDIN
BA xc <@cs> xl 46 s DFQYXH000005 xhfl Rep xpl 1 l "In re Autumn H.
27 Cal.App.4th 567" In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (
ADDIN
BA xc <@osdv> xl 40 s DFQYXH000019 l "Section 366.26, subdivision (c)(1)(B)(i)" Section 366.26, subdivision (c)(1)(B)(i) provides
an exception to adoption when “[t]he parents have maintained regular visitation
and contact with the child and the child would benefit from continuing the
relationship.†However, a parent may not
claim this exception “simply by demonstrating some benefit to the child from a
continued relationship with the parent, or some detriment from termination of
parental rights.†( ADDIN BA xc <@$cs> xl 50 s
DFQYXH000003 xhfl Rep xpl 1 Jasmine D.,
p. 1349.) The benefit to the child
must promote “the well-being of the child to such a degree as to outweigh the
well-being the child would gain in a permanent home with new, adoptive
parents. In other words, the court
balances the strength and quality of the natural parent/child relationship in a
tenuous placement against the security and the sense of belonging a new family
would confer. If severing the natural
parent/child relationship would deprive the child of a substantial, positive
emotional attachment such that the child would be greatly harmed, the
preference for adoption is overcome and the natural parent’s rights are not
terminated.†( ADDIN BA xc <@$cs> xl 48 s
DFQYXH000005 xhfl Rep xpl 1 Autumn H.,
p. 575.)
Mother’s consistent visitation was
not at issue in the juvenile court; the only issue was whether maintaining the
child/parent bonds outweighed the minors’ interest in gaining a permanent home
through adoption. In support of their
contention, mother and the minors identify evidence of the strength of the
minors’ bond with mother—the bonding study found mother and the minors were
bonded and losing that relationship was not in the minors’ best interests; the
CASA recommended guardianship in light of what she saw as a very close bond
between mother and the minors; and the social worker acknowledged the bond
between mother and the minors.
The problem with appellants’
argument is that a bond between parent and child by itself is not sufficient to
carry the parent’s burden of establishing the exception to adoption. While every minor has an interest in having a
permanent placement by the time of the ADDIN
BA xc <@$osdv> xl 14 s DFQYXH000017 section 366.26 hearing, the minors’ interest
in permanency was particularly strong in this case.
The juvenile court was extremely
lenient with mother, continuing services after her repeated relapses and in
spite of her history of deceiving DHS personnel. This led to a prolonged dependency lasting
three years, as well as numerous changes in the minors’ residences. The minors were in mother’s custody from the
onset of the dependency, September 3, 2009, until they were removed from her
custody and placed with father in October 2009.
In April 2010 the minors were removed from father’s care and placed first
with the maternal grandmother and then with mother. The minors were then removed from mother and
placed with the maternal grandmother in November 2010. They were returned to mother yet again in
February 2011. In July and August 2011
the minors spent a month with the paternal grandmother after mother admitted
falsifying her substance abuse specimens.
They lived with mother in a residence treatment facility from August
2011 until their removal and placement with the paternal grandmother in
September 2011.
Shuffling the minors between
households took a toll on them. The May
2011 CASA report noted the minors “are never sure of who may show up at any
given time to take them away and move them to new placement.†Even though the advocate thought that further
detention from mother’s care would “be devastating and increasingly traumatic
on them,†the minors were moved three more times after the report. In light of the numerous changes in the
minors’ residences, it is no surprise that I.N. said during the bonding study
that he does not know which house is really his home.
While the minors clearly loved
mother and enjoyed visits with her, the record does not show that separation
from her harmed them.
record does not show that the minors acted out when separated from mother or
when visits were diminished. The minors
thrived after their last removal from mother and placement with the paternal
grandmother. Before mother started
lobbying the minors, they expressed no preference as to where they lived.
Mother’s relationship with the
minors was not always beneficial to them.
She has attempted to manipulate them to further her own interests in the
dependency—telling the minors not to talk to a DHS employee who was one of the
social worker’s “ ‘spies’ †and was a member of the other “ ‘team,’ †and
telling the minors she cried at night and wanted them to live with her after
the minors expressed no preference as to where they would live. Mother’s attempts to use her children in the
dependency action support a conclusion that she would continue to do so under a
guardianship where the guardian, the paternal grandmother, is a person she
dislikes.
The cases cited by appellants do not
support reversal. The minors rely
primarily on ADDIN BA xc <@cs> xl 40 s DFQYXH000006
xhfl Rep l "
97 Cal.App.4th 454" In re Angel B. (2002)
97 Cal.App.4th 454, which finds four factors to consider when determining
whether a parent/child relationship benefits the minor: “(1) the age of the child, (2) the portion of
the child's life spent in the parent’s custody, (3) the positive or negative
effect of interaction between the parent and the child, and (4) the child’s
particular needs. [Citation.]†( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id.
at p. 467, fn. omitted.) The
minors’ relative youth—they were a little over four years old when the
dependency started and a little over seven at the ADDIN
BA xc <@$osdv> xl 14 s DFQYXH000017 section 366.26 hearing—lessens the
importance of the bond. While the minors
spent roughly three-quarters of their young lives with mother, the 25 percent
away from her was still a substantial portion of their lives. As previously noted, mother’s interactions
with the minors were both positive and negative. And as to the fourth factor, the minors’
special needs for stability weigh heavily against continuing the parent/child
relationship. ADDIN
BA xc <@$cs> xl 8 s DFQYXH000006 Angel
B. does not help appellants.
The cases primarily relied on by mother,
ADDIN BA xc <@cs> xl 41 s
DFQYXH000007 xhfl Rep l "
103 Cal.App.4th 681" In re Amber M. (2002)
103 Cal.App.4th 681 and ADDIN BA xc <@cs> xl 37 s
DFQYXH000008 xhfl Rep l "
S.B. (2008) 164 Cal.App.4th 289, are no more helpful to appellants’
case. Unlike the relevant parents in ADDIN
BA xc <@$cs> xl 8 s DFQYXH000007 Amber
M. and ADDIN BA xc <@$cs> xl 4 s
DFQYXH000008 S.B.,
mother did not do “virtually all that was asked of her to regain custody†( ADDIN BA xc <@$cs> xl 42 s
DFQYXH000007 xhfl Rep xpl 1 Amber M., at
p. 690) and far from “ ‘complied with every aspect of [her] case plan’ †( ADDIN BA xc <@$cs> xl 38 s
DFQYXH000008 xhfl Rep xpl 1 S.B., at
p. 293). In addition, neither case
involved such a prolonged dependency causing great instability in the minors’
lives. (See ADDIN
BA xc <@$cs> xl 46 s DFQYXH000007 xhfl Rep xpl 1 Amber
M., at pp. 685-686 [two-year dependency, one placement for two of the three
minors, two placements for the other]; ADDIN
BA xc <@$cs> xl 43 s DFQYXH000008 xhfl Rep xpl 1 S.B., at
pp. 293-296 [23-month dependency, one placement].)
In light of the minors’ particular
need for permanence, the negative aspects of the bond, and the relative lack of
harm caused to the minors by separation from mother, appellants did not meet
their burden of demonstrating this was an extraordinary case requiring
application of the beneficial parent/child bond exception to adoption.
II
The minors contend the juvenile
court deprived them of their due process rights by failing to consider whether
their trial counsel had a conflict of interest.
Although DHS has failed to respond to the minors’ contentions, that
failure “ ‘does not require an automatic reversal. . . . [T]he better rule is to examine the record
and reverse only if prejudicial error is found.’ [Citation.]â€
(
ADDIN BA xc <@cs> xl 54 s DFQYXH000009 xhfl Rep xpl 1 l "Estate
of Cibulk
67 Cal.App.4th 690" Estate of Cibulk
(1998) 67 Cal.App.4th 690, 691, fn. 1.)
In
a June 2011 addendum report, the social worker stated the minors’ counsel said
“he was intending to undertake representation of the mother in this case in a
lawsuit against the children’s and mother’s therapist.†A July 2011 ex parte application from DHS
stated that mother, while arguing with a social worker about drug testing,
“called her attorney and the attorney for the children who also is representing
her in a claim against the county.â€
Admitting the record does not
establish that minors’ trial counsel in fact represented mother in an action
against the county, the minors argue that the juvenile court erred in failing
to inquire into this potential
conflict of interest.
A minor has a statutory right to the
appointment of counsel. ( ADDIN BA xc <@osdv> xl 16 s
DFQYXH000020 xpl 1 l "§ 317, subd. (c)"
§ 317, subd. (c); ADDIN
BA xc <@cs> xl 48 s DFQYXH000010 xhfl Rep xpl 1 l "In re Candida
S.
In re
Candida S. (1992) 7 Cal.App.4th 1240, 1252.) Appointed counsel may “not represent another
party or county agency whose interests conflict with the child’s
interests.†( ADDIN BA xc <@$osdv> xl 16 s
DFQYXH000020 xpl 1 § 317, subd. (c).) While some authority requires only the
showing of a potential conflict ( ADDIN BA xc <@cs> xl 53 s
DFQYXH000011 xhfl Rep xpl 1 l "
M. (1991) 232 Cal.App.3d 553, 565-568 (Elizabeth M.)), the better-reasoned decisions apply the
statutory language and require an actual conflict of interest ( ADDIN BA xc <@cs> xl 54 s
DFQYXH000012 xhfl Rep xpl 1 l "
234 Cal.App.3d 1351" In re Richard H.
(1991) 234 Cal.App.3d 1351, 1367-1368 (Richard
H.); ADDIN BA xc <@$cs> xl 55 s
DFQYXH000010 xhfl Rep xpl 1 Candida S.,
1252-1253). Since the record supports no
more than the possibility of a conflict, the juvenile court was not required to
appoint substitute counsel or inquire into whether an actual conflict existed.
Even if we were willing to find
error based on a potential conflict, it would not justify reversal in this case. The standard of review for the failure to
appoint separate counsel is whether the record reflects that a miscarriage of
justice occurred. ( ADDIN BA xc <@$cs> xl 50 s
DFQYXH000012 xhfl Rep xpl 1 Richard H.,
BA xc <@$cs> xl 51 s DFQYXH000011 xhfl Rep xpl 1 Elizabeth
M., supra, 232 Cal.App.3d at
p. 568.) Minors’ trial counsel
advocated the same position at the ADDIN
BA xc <@$osdv> xl 14 s DFQYXH000017 section 366.26 hearing as mother’s—the juvenile
court should place the minors in guardianship rather than terminate parental
rights. Where, as here, the minors and
mother had the same position, the mere possibility
that minors’ counsel represented the mother in another action does not constitute
a miscarriage of justice warranting reversal.
DISPOSITION
The orders of the juvenile court
terminating parental rights are affirmed.
RAYE , P. J.
We concur:
BLEASE , J.
BUTZ , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the ADDIN BA xc <@ost> xl 29 s
DFQYXH000013 l "Welfare
and Institutions Code" Welfare and Institutions Code.
name="_ftn2" title="">[2] Father is not a party to this appeal.
