In re J.V.



Filed 4/13/11 In re J.V. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re J.V. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.L., Defendant and Appellant.	E052228 (Super.Ct.Nos. J225930, J225932 & J225931) OPINION

APPEAL from the Superior Court of San Bernardino County. Marsha Slough, Judge. Affirmed.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
This is an appeal by S.L. (mother) from a juvenile court’s order under Welfare and Institutions Code^[1] section 366.26 terminating her parental rights to Jay.V., Jai.V., and G.W., who are three of five children removed from her custody due to physical abuse.^[2] Mother contends that termination of parental rights is detrimental to the children under the sibling relationship exception to parental rights termination set out in section 366.26, subdivision (c)(1)(B)(v), and therefore the trial court erred when it terminated her parental rights. Mother also contends that she was deprived of effective assistance of trial counsel because her trial counsel did not raise the sibling exception at the hearing where parental rights were terminated. We affirm.
BACKGROUND^[3]
Mother has five children: B.S., age 15 at the time of detention, J.P., age 13 at detention; G.W., age 12 at detention, Jay. V., age 8 at detention, and Jai. V., age 6 at detention. In January 2009, mother struck B.S. on the arms and head with a broom for allegedly lying about telephone usage. On February 13, 2009, mother hit B.S. with a crutch on the elbow, head and thigh, splitting the skin on his elbow, causing it to swell. Two days later, after B.S. broke a slat on a bunk bed, mother struck B.S. with a vacuum cleaner on the arm. B.S. was afraid to report the abuse for fear of further abuse.
On February 25, 2009, B.S.’s half-sister, J.P, contacted the San Bernardino County Children and Family Services (CFS) to report the abuse of B.S. Mother was arrested for aggravated assault (Pen. Code, § 245, subd. (a)(1)), and willful cruelty to a child (Pen. Code, § 273a, subd. (a)) in connection with the abuse of B.S. Upon investigating the allegations, CFS learned that mother had a long history of physically assaulting and abusing all of her children for several years, she had been arrested more than once on criminal assault charges, and she had lost custody of the children in the State of Nevada, where the children had been placed in a guardianship, for similar physical abuse.
A dependency petition was filed on March 2, 2009, alleging physical abuse (§ 300, subd. (a)), failure to protect (§ 300, subd. (b)), emotional abuse (§ 300, subd. (c)), leaving children without provision for support (§ 300, subd. (g)), and abuse of a sibling. (§ 300, subd. (j).) On June 11, 2009, the court made true findings on the physical abuse, failure to protect, no provision for support, and sibling abuse allegations, but dismissed the emotional abuse allegations. The children were declared dependents and removed from the custody of mother. G.W. was placed in the home of a paternal aunt, and Jay.V. and Jai.V. were placed with their maternal grandmother. J.P. and B.S. were placed in foster care. The court granted mother weekly visitation with the children, and the siblings were ordered to have visits, at least once per month. The court ordered mother to participate in treatment plan.
In December 2009, prior to the six-month status review hearing, CFS reported that B.S. was placed along with his half-sibling brothers in the home of their maternal grandmother, while G.W. remained placed with his paternal aunt, and J.P. remained in foster care, pending approval to place her with a maternal aunt in Texas, following an out-of-state home evaluation under the Interstate Compact for the Placement of Children (ICPC).
The status review report observed that the children were afraid of mother and did not want to see her, mother had called the maternal grandmother, leaving threatening messages, and mother had sent a text message intended for B.S. but received by the maternal grandmother, in which she stated she intended to kick in his teeth. Only Jay.V. was interested in visiting his mother. The report also noted that the siblings visited each other whenever possible. The maternal grandmother arranged holiday visits (Thanksgiving and Christmas) where all five children stayed with her. As to mother’s progress in her reunification plan, the report noted that mother refused to take responsibility for her actions, blamed her children, and appeared more concerned with complying with the conditions of probation in her criminal case than in her reunification plan.
An addendum to the status review report indicated that mother was incarcerated for violating the terms of probation in her criminal case by failing to cooperate with CFS, as well as for threatening and harassing the children. She had not even completed the intake appointment with Lighthouse Counseling Services, which would have provided anger management, parenting classes, individual counseling and a 52-week child abuse counseling program. At the six-month review hearing, the dependency, as well as the reunification plan and visitation orders, was continued, and the court authorized J.P.’s relative placement in Texas upon ICPC approval.
For the next six months, mother remained incarcerated for the violation of probation, with a scheduled release date in August 2011. B.S. had been moved to a foster home following an incident at school with a “faux BB gun,” Jay.V. and Jai.V. remained placed with their maternal grandmother, G.W. remained with his paternal aunt, and J.P. was placed with a relative in Texas. During this period, the three older children did not visit with mother, but Jay.V. and Jai.V. had visited her in custody. Sibling visits were consistent due to the efforts of the maternal grandmother, with the cooperation of the other caretakers. However, mother made no efforts to work on her case plan during this reporting period.
On July 9, 2010, at the 12-month review hearing, the court terminated reunification services and set a hearing to select and implement a permanent plan of adoption for Jay.V., Jai.V., and G.W.^[4] The court ordered sibling visits to occur at a minimum of once a week, and weekly telephonic visits with J.P.
On November 8, 2010, the court conducted the 366.26 hearing. Mother waived her right to a contested trial and made a statement complaining about CFS and the social worker, and blaming CFS for the revocation of her probation and her subsequent prison sentence. After considering mother’s statements and the reports that had been admitted into evidence, the court terminated mother’s parental rights as to Jay.V., Jai.V., and G.W. On November 9, 2010, mother appealed.
DISCUSSION
Mother argues that the order terminating her parental rights to G.W., Jay.V., and Jai.V. should be reversed because adoption of those children by two separate relatives would interfere with their sibling relationships with each other and with their half-siblings, B.S., who is placed in a foster home, and J.P, who was placed with another relative in Texas. Acknowledging that this issue was not preserved by a timely objection in the trial court, mother argues alternatively that she was deprived of effective assistance of counsel. We disagree.
a. Any Claim that Adoption Would Interfere With the Sibling Relationship Has Been Forfeited.
Section 366.26, subdivision (c)(1), provides that if the court determines, based on the [adoption] assessment and any other relevant evidence, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption, unless termination of parental rights would be detrimental, according to any of several statutory exceptions. If a child is adoptable, adoption is the norm. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
However, termination of parental rights may be rejected if the court finds a compelling adoption would be detrimental to the children where “[t]here 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, 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.” (§ 366.26, subd. (c)(1)(B)(v).)
As with the other statutory exceptions to a finding of adoptability, the juvenile court examines the sibling bond exception in the context of the child’s best interests. (In re Megan S. (2002) 104 Cal.App.4th 247, 253.) The burden falls to the parent to show that the termination of parental rights would be detrimental under one of the statutory exceptions. (In re C.B. (2010) 190 Cal.App.4th 102, 122; In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108; see also In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
In the present case, the trial court might have found that the children had been raised in the same home until they were removed, if the issue had been raised. However, being raised in the same home is but one consideration. As to the other statutory criteria, no evidence was presented at trial that the children shared significant common experiences or had existing close and strong bonds with each other. Not all sibling relationships are strong or healthy. (Schwartz, Siblings Torn Apart No More (2001) 32 McGeorge L.Rev. 704, 708.) A determination of the significance of the sibling relationship exception raises factual questions that are unsuitable for resolution on appeal. (In re Daisy D. (2006) 144 Cal.App.4th 287, 292.) Mother forfeited this issue by failing to raise the exception at the section 366.26 hearing. (Ibid.)
Perhaps anticipating this determination, mother has raised an alternative claim that she was deprived of effective assistance of counsel, to which we now turn.
b. Mother Was Not Deprived of Effective Assistance of Counsel.
A parent in a juvenile dependency proceeding is entitled to effective assistance of trial counsel. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659.) To establish denial of that right, the parent must show (1) counsel’s failure to act as a reasonably competent dependency attorney would, and (2) the error was prejudicial. (Id. at pp. 1667-1668; In re Merrick V. (2004) 122 Cal.App.4th 235, 254-255, citing Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
Additionally, the parent must show that counsel’s omissions were not the result of reasonable tactical decisions. (In re Merrick V., supra, 122 Cal.App.4th at p. 255.) The parent must also affirmatively show that the omissions of counsel involved a crucial issue. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98-99.)
Mother cannot show that counsel’s omission, if it was an omission, was unreasonable. The record, read as a whole, shows that the siblings had a relationship, but not such a significant relationship as to raise an inference that any of the children would be detrimentally affected by termination of parental rights. B.S. and J.P. had been placed separately from their younger half-siblings for more than a year, with no evidence that either of them asked to be placed in the same home or requested additional visits, or that they cried when they had to leave visits.
Counsel is not required to make futile motions or indulge in idle acts to appear competent. (In re Merrick V., supra, 122 Cal.App.4th at p. 255.) Based on the reports of the sibling visits and the social worker’s contacts with all the children, we may assume that the decision to not raise the affirmative defense was based on a practical tactical decision (e.g., that presenting such a defense would be futile based on that information), or was governed by the client’s guidance (mother’s waiver of the right to a contested trial). Mother has not argued that her waiver of the right to a contested trial, where the sibling exception could be litigated, was not knowing or intelligent, so we assume she understood and consented to trial counsel’s actions.
Mother contends that the record establishes that the children’s separation from each other was detrimental, pointing to the fact the children had difficulty adjusting to their various placements. However, mother has not demonstrated a nexus between these adjustment difficulties (which manifested during the first six months of their placements and are common even in situations in which siblings are placed together) and their separation from siblings. Further, mother has not acknowledged that during the next review period, those behavior problems had greatly improved, negating any inference that sibling separation caused detriment to the children. Given the lack of evidence of any detriment attributable to the separate placements of the siblings, counsel’s decision to not argue the sibling exception at the section 366.26 hearing was reasonable.
Mother has not demonstrated a violation of her right to effective representation at trial. Because the record does not affirmatively establish the absence of a tactical reason for the omission, we must affirm. (See In re Daisy D., supra, 144 Cal.App.4th at p. 293.)

DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Ramirez
P.J.

We concur:


s/Miller
J.


s/Codrington
J.

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