Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK60533 Jan G. Levine, Judge. Affirmed.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
CHAVEZ J.
Claudia L. (mother) appeals from an order of the juvenile court terminating her parental rights over two of her daughters, nine-year-old Rosemary P. and seven-year-old Destiny P. Mother contends that the court erred in terminating her parental rights under Welfare and Institutions Code section 366.26 because the beneficial sibling relationship exception, found in section 366.26, subdivision (c)(1)(B)(v), should apply. Mother further contends that her daughters were provided ineffective assistance of counsel due to a conflict of interest on the part of their shared lawyer. We affirm the order of the juvenile court.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
The section was previously set forth in section 366.26, subdivision (c)(1)(E), as set forth in the parties’ briefs.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
1. Voluntary Family Maintenance and Family Preservation Services
Rosemary (born in November 1998) and Destiny (born in February 2000), and their three younger siblings, Jasmine C., Freddie C., and Katelyn C., were removed from mother on September 9, 2005. The family had been referred to the Los Angeles Department of Children and Family Services (DCFS) on September 22, 2004, when Destiny came to school with a burn on her arm. When asked about the burn, Destiny reported that mother “did it,” but did not offer any further information. The police officer who investigated the matter determined that there was no evidence to suggest that mother intentionally burned Destiny. Mother claimed that she left the iron on the floor and Destiny tripped and fell on it, which indicated neglect on mother’s part.
Only Rosemary and Destiny are subjects of this appeal. Jasmine C., Freddie C., and Katelyn C. have a different father from Rosemary and Destiny, and are mentioned only as relevant to the factual history of the case.
The family had the following prior referrals: (1) on May 22, 2000, for general neglect of Destiny and Rosemary by mother; (2) on March 10, 2001, for general neglect due to mother’s failure to refill Destiny’s seizure medication; (3) on July 11, 2001, for neglect when mother bathed Destiny, left the bathroom, and found Destiny drowning in the bathtub; (4) on September 24, 2002, for general neglect when the family was living in a home without electricity, gas, or running water, but subsequently moved out of that home; (5) on August 7, 2003, allegations of general neglect and physical abuse of Rosemary and Destiny were found inconclusive; and (6) on July 9, 2004, for general neglect when Destiny was found wandering three blocks from her home without supervision.
On September 28, 2004, DCFS received another referral alleging that Destiny had walked alone to school, following a woman. When the woman arrived at school, she noticed that Destiny was alone. According to the reporting party, this had occurred approximately three times within the past three months. The police detained Destiny and placed her in protective custody.
On September 29, 2004, DCFS held a Child Safety Conference with mother, who agreed to a voluntary family maintenance contract (VFM). DCFS discovered that Rosemary and Destiny had special needs. Destiny had been diagnosed with a seizure disorder and was taking medication, and both children had speech problems.
On February 15, 2005, mother gave birth to twins, Katelyn and Freddie C. Katelyn was placed with her paternal grandmother and Freddie remained with mother. Jasmine was placed in a foster home. Destiny and Rosemary were having behavioral issues due to their developmental delays and needed to be placed in different homes. DCFS placed Destiny in a medical unit at Westside Group Home (Westside Center) due to her diagnosis. Rosemary was assessed and diagnosed with autism and placed in a foster home.
In March 2005 the VFM contract ended. Mother was not able to reunify with her family because she did not have a place to live. DCFS agreed to extend the VFM time for mother and agreed to provide her with assistance in obtaining housing through its family preservation program.
On July 29, 2005, mother began having overnight visits with Destiny, Rosemary, and Jasmine. However, Jasmine’s foster father expressed concern over Jasmine’s safety. During one of the visits at a McDonald’s restaurant, mother arrived with a male friend who entered the restaurant and then fled with police chasing him. Mother’s male friend appeared to be a gang member, as he had gang-affiliated tattoos.
Mother reported that she had a difficult time with Destiny because Destiny did not listen and was aggressive. Mother stated that she wanted Rosemary and Jasmine but she was not yet ready for Destiny.
On August 26, 2005, during a visit, the social worker noted that mother had a human bite mark on her arm. Mother reported that she had gotten into a fight but the children were not present during the fight. Mother denied any gang involvement.
On September 5, 2005, Rosemary’s foster mother reported that mother was late picking up and dropping off Rosemary for a visit. Additionally, Rosemary returned to foster mother’s home with a bite mark on her arm. Westside Center reported that Destiny returned from a visit with mother with a small scratch on her face and left shoulder. Destiny stated, “Caya pega,” which meant that mother hit her.
Destiny used the word “Caya” for Claudia. Because of Destiny’s severe speech delays, Westside Center could not obtain more information from Destiny regarding this statement.
2. Detention
On September 9, 2005, a safety team decided it was not safe for Destiny, Rosemary and Jasmine to return home with their mother. The father of Rosemary and Destiny, Antonio P. (father) said he was disabled and had seizures and therefore could not care for Destiny. Mother agreed to find appropriate housing and agreed to have Katelyn and Freddie’s paternal grandmother care for them. However, paternal grandmother informed DCFS several days later that, while Katelyn remained in her care, mother’s whereabouts with Freddie were unknown.
On September 14, 2005, DCFS filed a section 300 petition on behalf of all five children. DCFS decided to file the petition because the VFM contract had expired and mother had failed to complete counseling as required by the VFM contract. In addition, mother was unable to care for her special needs children; did not have appropriate housing; and was overwhelmed by her five young children. The section 300 petition alleged that mother had a history of substance abuse including alcohol and marijuana; failed to provide adequate supervision for Destiny, resulting in Destiny being burned by an iron; had limited ability to provide appropriate care for Destiny’s seizure disorder; and failed to comply with the VFM contract.
At the September 14, 2005 detention hearing, the juvenile court appointed attorney Maire Henderson to represent all five children. The juvenile court found a prima facie case for detaining Rosemary under section 300, subdivisions (b), (g), and (j), and Destiny under section 300, subdivisions (b) and (g) as substantial danger existed to the physical or emotional health of the children and there were no reasonable means to protect the children without removal. The juvenile court declared the five children a sibling set and ordered them placed together or with relatives. The juvenile court set the matter for a pretrial resolution conference.
3. Jurisdiction and Disposition
On October 5, 2005, DCFS reported that Jasmine had been placed in Rosemary’s foster home. Katelyn and Freddie were with their paternal grandmother. Rosemary reported that she liked visiting with her siblings. Jasmine, Freddie, and Katelyn were too young to make a meaningful statement. Destiny was diagnosed with mental retardation and autistic disorder and was unable to provide a meaningful statement to the social worker.
At the October 5, 2005 jurisdiction and disposition hearing, mother stipulated that there was a factual basis for the plea, and the juvenile court sustained the allegations that mother failed to provide appropriate supervision for Destiny resulting in Destiny falling on an iron and sustaining a burn injury to her arm. The juvenile court declared the children dependents under section 300, subdivisions (b) and (j). The juvenile court ordered reunification services for mother, including drug rehabilitation with random drug testing, parent education, and an individual counseling program to address the medical needs of the children. The juvenile court ordered mother to have monitored visits with the children twice a week.
4. Reunification Period
On November 15, 2005, DCFS reported that Jasmine had been placed with Katelyn and Freddie at their paternal grandparents’ home. Rosemary remained in foster care and Destiny at Westside Center. Mother was in partial compliance with her case plan and had consistently visited with the children on Fridays. The social worker was able to schedule the children’s caretakers to meet at a McDonald’s restaurant on Saturday and Sunday mornings for sibling visitation. Father reported he would attempt to have unmonitored visitation with Rosemary and Destiny.
On April 5, 2005, DCFS reported that Rosemary and Destiny were doing well in their respective placements and were both clients at the Regional Center. Regional Center diagnosed Rosemary as mildly mentally retarded and as having an expressive language disorder. Rosemary displayed some behavioral problems, such as tantrums, throwing herself on the floor, running to her room, and stealing at school. Rosemary stated to the social worker that she wanted to see Destiny at McDonald’s.
Mother had not been compliant with the court ordered reunification plan. DCFS provided referrals for substance abuse and individual counseling, but mother did not enroll in the programs. Mother did attend weekly visits with the children.
On May 4, 2006, DCFS reported that on April 10, 2006, Destiny had been placed at Hope House. Hope House had 25 other children with similar disorders. At the contested May 4, 2006 review hearing, attorney Ezra Siegel appeared on behalf of all of the children. Mother testified at the hearing that she had been regularly visiting the children since October 2005. The juvenile court found that mother was in partial compliance with the court ordered reunification plan. The court also found that the children could not be returned to the custody of the parents and there was not a substantial probability that the children would be returned to the parents within six months. Thus, the juvenile court terminated reunification services for mother and father. The juvenile court set the matter for a section 366.26 permanency planning hearing.
5. Permanency Planning
On September 5, 2006, DCFS reported that it had placed Destiny in the same home as Rosemary from June 12, 2006 through June 30, 2006. However, on June 30, 2006, Destiny was readmitted to Hope House after Rosemary’s foster mother stated that she could no longer care for Destiny due to her behavioral problems and special needs. The children’s respective caretakers reported that the siblings were having weekly visits with mother at a local McDonald’s, but mother had missed several visits because she moved to San Diego.
The social worker reported that it was difficult to locate prospective adoptive parents for Rosemary and Destiny because of their special needs. Therefore, the social worker referred Destiny and Rosemary to the Placement and Recruitment Unit in an attempt to locate prospective parents. Rosemary’s foster mother was unsure as to whether she wanted to take legal guardianship of Rosemary.
At the September 5, 2006 hearing, the juvenile court relieved Maire Henderson as the children’s attorney and appointed Ezra Siegel to represent all the children. The juvenile court continued the section 366.26 hearing for completion of the home study for Jasmine, Katelyn, and Freddie’s paternal grandparents, who planned to adopt them. Mother’s counsel requested that the section 366.26 hearing be set for a contested hearing, and the juvenile court granted the request.
On November 7, 2006, the social worker reported that all the children were considered adoptable. The Placement and Recruitment Unit had found a match for Rosemary. Additionally, Rosemary’s teacher had expressed an interest in adopting Rosemary. Rosemary expressed sadness that her foster family could not adopt her and had difficulty accepting that an unknown family would adopt her. No match had been found for Destiny, who continued to reside at Hope House.
The children had weekly sibling visits at a local park. Destiny was only brought to the park once per month due to her medical needs. Mother had missed several visits since her move to San Diego.
At the November 7, 2006 section 366.26 hearing, the juvenile court terminated mother’s parental rights as to Jasmine, Katelyn, and Freddie. The juvenile court took the section 366.26 hearing off calendar as to Rosemary and Destiny until adoptive homes could be located, and set the matter for a review of permanent plan hearing.
On February 6, 2007, DCFS reported that an adoptive home had been found for Rosemary. The adoptive family had an approved home study and the first visit between Rosemary and the adoptive family took place on February 1, 2007. Rosemary responded positively to the family and expressed a desire to be with that family. The adoptive family was willing to participate in a post-adoption contract agreeing to maintain sibling contact. An adoptive home had not yet been found for Destiny, but DCFS remained focused on local recruitment to accommodate ongoing post-adoption contact between Destiny and her siblings. The adoptive family of Jasmine, Katelyn and Freddie was willing to maintain sibling contact but was reluctant to sign a post-adoption contract.
At a continued hearing on May 8, 2007, the court set a hearing to select the permanent plan of adoption for Rosemary on September 18, 2007. Rosemary had been placed with the prospective adoptive parents on February 23, 2007. Rosemary was thriving under their care. She was in good health, smiled, and demonstrated positive behavior. Rosemary indicated she wished to be adopted by her adoptive parents and “be theirs forever.” Rosemary’s adoptive parents maintained contact with mother, planned a picnic for Rosemary to see Destiny play in a little league game, and planned for Rosemary to visit Destiny at Hope House. The adoptive family indicated that because of Rosemary’s special needs they were reluctant to offer themselves as an adoptive resource for Destiny without first establishing stability for Rosemary. The social worker’s report also included a March 23, 2007 therapist evaluation of Rosemary. It reported that Rosemary and Destiny “had a tendency to set each other off, and they both acted out behaviorally” when placed together. At the May 8, 2007 hearing, the juvenile court found that the permanent plan of adoption by her adoptive parents was the appropriate plan for Rosemary and the living arrangement at Hope House was appropriate for Destiny. The court set a section 366.26 hearing for Rosemary and a review of permanent plan hearing for Destiny.
On June 25, 2007, DCFS filed an ex parte application for Destiny requesting that the juvenile court convert Destiny’s next hearing into a section 366.26 hearing. An adoptive family with an approved home study had been found for Destiny. A visitation schedule had been established between Destiny and her prospective adoptive family. The juvenile court granted the request.
On July 27, 2007, DCFS filed an ex parte application requesting that the juvenile court request an “Interstate Compact on Placement of Children” (ICPC) to be initiated in the state of Nevada on behalf of Destiny. The ICPC could not be concluded until the juvenile court terminated the parents’ parental rights.
ICPC is the mechanism by which a child can be placed in another state. (See Fam. Code, §§ 7901 et seq.)
The social worker reported that Destiny had been matched with a couple in Nevada. The couple had an approved home study and made twice-monthly visits to spend time with Destiny. The couple called Destiny daily from Nevada. According to the social worker, Destiny developed a great affection for the couple and continually asked when she would go to live with them. Additionally, the couple met Destiny’s siblings and their respective caretakers and were supportive of ongoing sibling contact between Destiny and her siblings.
Hope House recommended that Destiny be placed with the adoptive applicants prior to the start of the school year in mid-August to facilitate her transition into the adoptive home with minimal disruption to her medical, mental health, and special-education treatment and programs.
On July 27, 2007, the juvenile court ordered an ICPC for Destiny’s prospective adoptive parents, in Pahrump, Nevada so that Destiny could be placed with them beginning in August, prior to the start of the school year, pending the ICPC approval.
On September 18, 2007, the social worker reported that Rosemary had been with her prospective adoptive parents since February 23, 2007. Rosemary was doing very well in the placement. She continued to develop a close child-parent relationship with the prospective adoptive parents. Her prospective adoptive parents reported that Rosemary loved school and her behavior was “amazing.” Rosemary made tremendous progress in her ability to focus, contribute to class, and reportedly loved her teachers.
Destiny had been meeting regularly with her prospective adoptive parents since May 26, 2007. They had begun developing a parent-child relationship. Destiny’s prospective adoptive parents reported that Destiny referred to them as “mom” and “dad.” Destiny told the social worker that her prospective adoptive parents were her “mommy and daddy.” She explained that she would “go to live with her mommy and daddy.” According to the social worker, Destiny understood that another family was adopting Rosemary, but that they would remain sisters.
Rosemary’s adoptive family met with Destiny’s adoptive family for a visit with the two sisters. The families maintained telephone contact and were committed to maintaining contact between the sisters after adoption through telephone calls and visits. The families maintained telephone contact between the sisters every Saturday. The girls enjoyed talking on the telephone, and the families agreed to allow the sisters to see each other two to four times a year.
DCFS reported that it was not appropriate to place Rosemary and Destiny together for adoption because of their medical, behavioral, and developmental needs. Each of them required the full attention and parenting resources of their respective prospective parents. In addition, based on the experience of having the two sisters placed together previously, it was determined that their needs might best be met through separate placements.
6. Termination of Parental Rights
Mother and father did not appear at the section 366.26 hearing on September 18, 2007. Ezra Siegel represented both Destiny and Rosemary. Mother’s counsel requested that the matter be set for a contested hearing. Mother’s counsel argued that mother was trying to find a home for Destiny with relatives in the area so that Destiny would not be placed out of state. Further, mother’s counsel argued that DCFS’s section 366.26 report was faulty because it needed to address whether the children understood what adoption was and the effect it would have on their sibling bond. Mother’s counsel objected to adoption of the children.
The juvenile court found by clear and convincing evidence that Rosemary and Destiny were adoptable and that it would be detrimental to return them to the parents. Therefore, the juvenile court terminated the parental rights of mother and father over Rosemary and Destiny. The juvenile court scheduled the matter for a review of permanent plan hearing on November 2, 2007.
On September 18, 2007, mother filed a notice of appeal.
DISCUSSION
I. The Beneficial Sibling Relationship Exception to Adoption
Mother’s first argument is that the juvenile court erred in failing to apply the exception to the preference for adoption found in section 366.26, subdivision (c)(1)(B)(v). Under the procedure set forth in section 366.26, subdivision (c)(1), if the juvenile court determines by clear and convincing evidence that a child is likely to be adopted, the court shall terminate parental rights and order the child placed for adoption. However, certain exceptions apply. Under section 366.26, subdivision (c)(1)(B), the court should not terminate parental rights if the court finds a compelling reason that the termination would be detrimental to the child due to certain specifically enumerated circumstances. Those circumstances include the following:
“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.” (§ 366.26, subd. (c)(1)(B)(v).)
Mother argues that the trial court erred when it failed to apply this exception despite the strong bond between Rosemary and Destiny at the time the court terminated mother’s parental rights as to both of the girls. Mother argues that, although the families intended to maintain contact between the girls, there was no guaranty that they would. In addition, mother argues that maintaining the girls’ bond with each other outweighed any benefit they would have gained through adoption.
DCFS makes two arguments in response to mother’s contention that the juvenile court should have applied the beneficial sibling relationship exception. First, it argues that because mother did not raise this issue with the juvenile court, she has forfeited her right to argue it here. Furthermore, even if mother had not forfeited her right to argue that the beneficial sibling relationship applies, substantial evidence supports the juvenile court’s determination that the benefits to the girls from adoption outweighed any benefit from preserving the sibling relationship. As set forth below, we agree with DCFS on both points.
A. Mother Forfeited Her Right to Argue That the Beneficial Sibling Relationship Exception Applies
DCFS contends that mother failed to raise this issue with the juvenile court. Mother failed to provide a citation to the record where this issue was raised before the trial court, and also has failed to provide a reply brief responding to the issue of forfeiture.
A party forfeits the right to challenge a ruling on appeal by failing to object in the trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) This rule applies in dependency proceedings. (Ibid.) The purpose of the rule is to encourage parties to bring errors to the attention of the trial court so that they may be corrected. (Id. at p. 1293.) Because mother failed to raise the beneficial sibling relationship exception with the trial court, she has forfeited her review of the issue here.
B. Substantial Evidence Supports the Juvenile Court’s Decision That the Beneficial Sibling Relationship Exception Did Not Apply
Although we have found that mother forfeited her right to argue that the beneficial sibling relationship applies here, we note that substantial evidence supports the juvenile court’s implied finding that the exception does not apply. As set forth above, the exception only applies when a court determines that there is a compelling reason for concluding that termination of parental rights would be detrimental to a child due to substantial interference with a sibling relationship. (In re Celine R. (2003) 31 Cal.4th 45, 61 (Celine R.).) The Supreme Court has pointed out that the subdivision (c)(1) exception applies only under exceptional circumstances, and must be considered in light of the legislative preference for adoption. (Id. at p. 53.)
A two-step analysis must be performed in analyzing claims that the beneficial sibling relationship applies. First, the court determines whether terminating parental rights would substantially interfere with a sibling relationship. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951-952.) Second, if the court determines that terminating parental rights would substantially interfere with a sibling relationship, it then weighs the child’s best interest in continuing that sibling relationship against the benefit that would be received through adoption. (Ibid.) The burden is on the parent to prove that the sibling relationship exception applies. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017.)
Mother presented no evidence at the section 366.26 that the beneficial sibling relationship applied. The record shows that Rosemary and Destiny have not lived together since September 2004, when the VFM contract with mother was instituted. Thus, they have not lived together for over three years, and have maintained a relationship through periodic visits. The record further shows that the respective adoptive placements of Rosemary and Destiny will not create substantial interference in their sibling relationship. The prospective adoptive families of both Rosemary and Destiny have committed to continuing visits and contact between the sisters.
Destiny was placed in Rosemary’s foster placement for a three-week period from June 12, 2006 through June 30, 2006. However, Destiny had to be removed from that placement because Rosemary’s foster mother was unable to care for both Rosemary and Destiny because of their behavioral problems and special needs.
Even if there were substantial interference with a sibling relationship, such interference must be weighed against the benefit the child would receive by the permanence of adoption. (In re L. Y. L., supra, 101 Cal.App.4th at p. 951.) As the L. Y. L. court noted, using the beneficial sibling relationship exception “might leave the child in a tenuous guardianship or foster home placement.” (Ibid.) Here, the evidence showed that the benefits Rosemary and Destiny would gain from their respective permanent homes would far outweigh maintaining the sibling relationship. Rosemary thrived under her prospective adoptive parents’ care and indicated that she wanted to be “theirs forever.” Destiny referred to her prospective adoptive parents as “mom” and “dad” and continually asked when she could go live with them. The permanence and stability that Rosemary and Destiny would gain from not having to risk moving to a different home in the future far outweighed the enjoyable visits they shared.
Mother relies on In re Naomi P. (2005) 132 Cal.App.4th 808, in which the Court of Appeal affirmed a juvenile court’s ruling that the beneficial sibling relationship exception applied. In affirming the juvenile court’s order, the Court of Appeal stated: “It is not our role to interfere with the trial court’s assessment of the [siblings’] demeanor and credibility.” The juvenile court’s observation of the siblings’ testimony “constituted powerful demonstrative evidence that it would be in Naomi’s best interest to ensure continuation of the [sibling] relationship[s].” (Id. at p. 824.) Here, we find that the evidence before the juvenile court amply supported the court’s determination that the sibling exception did not apply. Such evidence included both girls’ apparent desire to have the stability and love that their prospective adoptive families were able to provide them. Mother presented no evidence at the section 366.26 hearing describing a sibling bond such as the one present in Naomi P. There was simply no evidence that the beneficial sibling relationship exception applied to outweigh the benefits of adoption.
II. Ineffective Assistance of Counsel
Children’s Law Center attorney Maire Henderson was initially appointed to represent Rosemary and Destiny, as well as their three younger siblings. At the initial section 366.26 hearing on September 5, 2006, Maire Henderson was relieved as minor’s counsel and Ezra Siegel was appointed to represent all five minors. Mother contends that when Destiny was placed for adoption out-of-state, there was an actual conflict of interest and Mr. Siegel should have been removed from representation of any of the minors.
A. Standing
DCFS argues that mother has no standing to raise this issue. Mother raises two cases in support of her position. The first, In re Patricia E. (1985) 174 Cal.App.3d 1 (Patricia E.), involved a father’s objection to the juvenile court’s appointment of the same attorney to represent both the county welfare department and the minor. In concluding that the father had standing to raise the issue of his daughter’s right to independent counsel, the court answered in the affirmative because, in that case, “independent representation of the daughter’s interests impacts upon the father’s interest in the parent-child relationship.” (Id. at p. 6.) The court noted that the welfare department “took the position that Patricia should be retained in a foster home” and that “[t]hat position may not have been taken by a counsel freed of the necessity to represent the department.” (Id. at p. 7.) Here, mother points to no similar conflict which specifically affected the mother-daughter relationship.
Mother also cites In re Elizabeth M. (1991) 232 Cal.App.3d 553. That case involved a father’s view that the juvenile court should have ordered independent counsel for each of his children because the children’s interests in the outcome of the proceeding differed. The issue was also raised by three of his children on appeal. (Id. at pp. 564-565.) Citing Patricia E., supra, 174 Cal.App.3d at page 6, the court concluded that the father had standing to assert his child’s right to independent counsel because such independent representation affected father’s interest in the parent-child relationship. In addition, a potential conflict of interest appeared in the record, because several of the children expressed an interest in returning to father, while others, taken from father at a younger age, had bonded with their respective foster families. (In re Elizabeth M., supra, at pp. 565-566.)
DCFS argues that these cases are distinguishable because here, mother’s interest in her relationship with her children is not affected by the alleged conflict between the sisters. Citing In re Devin M. (1997) 58 Cal.App.4th 1538, 1541, DCFS states “[a] parent cannot raise issues on appeal which do not affect his or her own rights. [Citation]. That is, a parent’s interest is in reunification. The interest of siblings . . . in their relationship with [each other] is separate from that of the parent.” In addition, DCFS argues that “[a] parent must show that [the children’s] counsel’s alleged conflict of interest actually affected the parent’s interests.” (In re Daniel H. (2002) 99 Cal.App.4th 804, 811.)
In In re Frank L. (2000) 81 Cal.App.4th 700, 703 (Frank L.), a mother objected to Frank’s placement with his paternal aunt in North Carolina on the ground that separating Frank from his siblings was not in his best interest. (Id. at p. 701.) The Court of Appeal found that the mother did not have standing because her argument was based on Frank’s relationship with his siblings, an issue not related to mother’s interest. (Id. at p. 703.) The court found Patricia E. to be distinguishable because in Frank L. the parent-child relationship was no longer at stake because the proceedings had reached the permanent plan stage. (Frank L., supra, at pp. 702, 704.) The appellate court noted, “the tie between parent and child is severed by the referral to the [section 366.26] hearing.” (Id. at p. 704, citing In re Taya C. (1991) 2 Cal.App.4th 1, 7.)
DCFS argues that this case is similarly distinguishable from Patricia E. because mother does not claim that Rosemary and Destiny had conflicting interests before the section 366.26 hearing was set. Instead, she asserts that the children’s interests diverged because of their permanent plans.
Mother argues that the conflict first arose when the recommendation for the three half-siblings was adoption while Destiny and Rosemary were still in foster care placements. At that point, in November 2006, the section 366.26 hearing as to Rosemary and Destiny was taken off calendar until adoptive homes could be located for them and the matter was set for a review of permanent plan hearing. However, mother’s reunification services had been terminated several months before and Rosemary and Destiny were both in the permanency planning stage of the proceedings.
Under Frank L., supra, 81 Cal.App.4th at page 704, we find that mother does not have standing to raise the ineffective assistance of counsel argument because the alleged conflict of interest has no impact on mother. Further, because the proceedings had reached the permanent planning stage, mother’s interests in the parent-child relationship were no longer at stake.
Because we have determined that mother does not have standing to raise this issue, we decline to address DCFS’s argument that mother forfeited the issue.
B. The Juvenile Court Did Not Err in Failing to Appoint Separate Counsel for the Children
Although we have determined that mother does not have standing to raise the issue of a conflict of interest on the part of the children’s attorney, we note that even if she did have standing, no error occurred.
The Supreme Court has noted that it is not always necessary, and, in fact, is often inappropriate to appoint separate counsel for each child in a dependency case. (Celine R., supra, 31 Cal.4th at pp. 55-56.) There must be an actual conflict among the siblings before the court is required to relieve counsel. The simple existence of “multi-sibling permanent plans do[es] not necessarily involve an actual conflict” of interest. (Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1429.) Here, there is simply no evidence that the children’s interests diverged to the point where a conflict was created. Mother’s recitation of the specific diverging plans for the five children does not create an inference that any conflicting interest existed among the children.
The Supreme Court specified that, “When first appointing counsel in a dependency matter, the court may generally appoint a single attorney to represent all the siblings. It would have to appoint separate attorneys if, but only if, there is an actual conflict among the siblings or if circumstances specific to that case – not just the potential for conflict that inheres in all multisibling dependency cases – present a reasonable likelihood an actual conflict will arise.” (Celine R., supra, 31 Cal.4th at pp. 58.)
In Carroll v. Superior Court, supra, 101 Cal.App.4th at page 1423, an attorney representing seven dependent children declared a conflict of interest before the section 366.26 permanency planning hearing because the children who had a permanent plan other than adoption wanted to maintain a relationship with the adoptable children. (Id. at pp. 1426-1427.) The court agreed that the attorney had an actual conflict of interest and was entitled to be relieved. (Ibid.) Here, in contrast, there is no evidence that any of the children objected to their own adoption or the adoption of their siblings on the basis of their desire to maintain a sibling relationship. In contrast, Rosemary and Destiny each wanted to be adopted by their prospective adoptive families and looked forward to maintaining their sibling relationship through telephone calls and visits.
Finally, the failure to appoint separate counsel for individual siblings is subject to a harmless error analysis. Reversal on appeal is required only if the appellate court finds it reasonably probable that the result would have been more favorable to the appealing parties absent the error. (Celine R., supra, 31 Cal.4th at pp. 59-60.) Mother makes no suggestion that an outcome more favorable to her would have resulted if the children had been appointed individual counsel. In addition, there is no reasonable probability that the juvenile court would have chosen alternate permanent plans for any of the children in the event that they each had separate counsel. (Id. at pp. 61-62.)
DISPOSITION
The order is affirmed.
We concur: BOREN P. J., ASHMANN-GERST J.