In Re Cliffton B.
SILLS, P.J.
Carl and Deborah B. appeal from the order of the juvenile court terminating Carl‘s parental rights to their younger son, Cliffton. They claim Carl had made sufficient progress on his drug abuse treatment program by the time of the permanency hearing to justify reversing the previous order germinating reunification services. (
Carl also claims the juvenile court should have made orders maintaining the relationship between Cliffton and his older brother, Zachary, who was placed in longterm foster care. Carl points out both
We affirm the termination of parental rights, find ineffective assistance of counsel, and remand the case for a new hearing on the sibling visitation order.
Cliffton and Zachary were taken from their parents and placed in Orangewood Children‘s Home (OCH) in August of 1997, when Cliffton was twenty months old and Zachary was 10 years old. This family had been troubled for years; both parents have a history of drug and alcohol abuse, and Deborah, the mother, was diagnosed as bipolar in 1992. Prior to the series of events that culminated in the children‘s detention, Orange County Social Services Agency (SSA) had received 16 child abuse reports involving this family, dating back to 1985.
In June 1997, Cliffton‘s four-month-old sibling, Rachel, died when Deborah accidentally rolled over onto the baby in her sleep, smothering her. The home was described by investigators as dirty and unkempt, and next to the bed were found a marijuana cigarette and a glass pipe in an ashtray. Apparently, a friend had given Deborah some drugs for a birthday present a few days before. A month later, an intoxicated Deborah was hospitalized under
While the brothers were at OCH, they saw each other daily. Zachary told workers, “I need to see Cliffy every day,” and their mutual enjoyment of their time together was well documented. During visits with the parents, Cliffton would cry and pull away from his mother, but would sit on Zachary‘s lap or play quietly next to him. Zachary was described as “parentified,” in that he worried about the welfare of his parents and Cliffton.
SSA was not able to find a foster home for both brothers, so they were placed in separate homes, cutting down their visits to once a week. Zachary‘s social worker reported, “Zachary ... worries greatly about Cliffton and truly does need to see him each week. Cliffton is always happy to see his brother.”
Carl participated consistently in his reunification plan for twelve months. Although he attended parenting classes and drug abuse counseling, he tested positive for drug use several times until April 1998. After that he remained sober. At the twelve-month review hearing, the juvenile court adopted SSA‘s recommendation and released Cliffton to Carl for a 60-day trial visit, with the hope that Zachary would “follow soon after.”
The trial visit went well. Cliffton adjusted happily to Carl‘s home, attending day care with no problems while Carl worked. Carl continued to participate in counseling and twice-a-week drug testing, kept his home neat and properly stocked with food, and used appropriate parenting skills. Carl‘s counselor observed, “Dad does a good job with the kid....” In November 1998, the juvenile court ordered Cliffton placed with Carl under a plan of family maintenance; on February 4, 1999, Zachary began a 60-day trial visit in the home.
Unfortunately, Carl‘s recovery faltered. On February 16, SSA received test results from January 28 and February 1 indicating Carl had ingested methamphetamine on at least one occasion in late January.
On the day of the permanency hearing, Carl filed a petition under
When asked what circumstances had changed since April, Carl said, “Me. Myself.... I am much more able to deal with life on life‘s terms. I am learning how to face things from a proper perspective. I am not trying to run away from things. I am willing to face them head on.... [I]f I start to feel myself in a position where I feel weak and powerless then I have people to help support me ... and I feel like I am a different person.” Carl had been promised a promotion at his job within the next month, and he appreciated “the fact that they actually recognized me where I work as being more capable than just being a technician.... My life is really starting to be a lot better and ... there is much more that I find pleasing, exciting, motivating. It‘s a different world for me. Life is good. It‘s fun. It‘s enjoyable, you know, it‘s not just a pain.”
The court reluctantly denied Carl‘s petition because it found he had not met his burden of showing changed circumstances. “The problem is you had it all. We gave it all back to you. You had Cliffton home on a family maintenance plan. Zachary was returned to you on a 60-day trial visit. You have been going to the counseling. You have been doing that. You have regularly come to court for your appearances. We talk every time you come. You had this support system that you are relying on today. The support system has been in place for a long time now. [¶] The changed circumstances are really not so much change. It is just more of what you have been doing. [¶] At this point, based on several months of sobriety that you had and your long history of relapsing after periods of sobriety, I am not willing to put Cliffton through that again. I am not going to do that.”
The next day, the juvenile court conducted the permanency hearing. The social worker‘s report confirmed Carl‘s excellent progress. Carl‘s therapist reported, “Carl is doing fine. The father‘s ability to confront and deal with his problems has improved, since his relapse. He used to use denial.” Carl‘s group counselor labeled him “a jewel” and said his relapse was “not unusual.” Carl‘s current social worker, Elizabeth Mavity, testified her observation of a recent visit between Carl and Cliffton revealed “a very warm affectionate relationship between the father and the child. The father was willing to play with the child, to be with the child, to accommodate the child.” Cliffton‘s reaction to Carl was “equally warm and responsive.”
Mavity was concerned, however, about the long substance abuse history. “While the father has done his services in an exceptional manner he did have the relapse behavior at the end of January and
During closing arguments, Rebecca Captain, who was appointed to represent both Cliffton and Zachary, made the following statement: “First I would like to mention that off the record there was a discussion about a conflict or a possible conflict that minor‘s counsel might have had regarding representing Zachary who‘s Cliffton‘s 12year-old brother and representing Cliffton in regards to Zachary going into long-term foster care yesterday and the recommendations on Cliffton being to terminate his parental rights for adoption. [¶] Individually I don‘t have a problem with either one of the recommendation[s] but in representing both I was concerned about that and would just want to, knowing the court‘s position, just want to state on the record that I know that my client, Zachary, who is Cliffton‘s brother[,] is very opposed to his brother‘s parental rights being terminated today and any effect that would have on his continuing relationship with his brother or visitation or being able to live with him in the future. But with that said I‘ll move to closing.”2
The juvenile court found that although Carl had maintained regular visitation and contact with Cliffton, he had not demonstrated their relationship would be more beneficial to Cliffton than a permanent home with adoptive parents. “We‘re at a point now where this court needs to decide do we kind of let the status quo go on because is it more important that Cliffton see you on a regular basis or is it more important that he be able to start a life with a permanent family ... [¶] I have no doubt that both parents love Cliffton deeply but `frequent loving contact’ ... is not enough. [¶] Monitored visits once a week are not really enough.... [F]or six days and 22 hours out of every week, you weren‘t there as Cliffton‘s parents and you lost that role for almost—well, certainly a little more than a third of his life.... [¶] [F]or the past several months there hasn‘t really been a parent/child relationship and we weren‘t to the point in these proceedings where you had earned the opportunity to redevelop the parent/child relationship.” Because Cliffton was clearly adoptable, the court terminated parental rights.3
Carl claims the juvenile court should have granted his petition under
Carl‘s seven months of sobriety since his relapse in January, while commendable, was nothing new. He had a history of drug use dating back to his college days, and since then his periods of sobriety alternated with recurring drug use. Even after the initial detention of his children, it took Carl six months before he was able to stay sober for any length of time. Then, after eight months of sobriety, he still succumbed to the temptation of illegal drugs. As Carl‘s counselor confirmed, relapses are all too common for a recovering drug user. “It is the nature of addiction that one must be `clean’ for a much longer period than 120 days to show real reform.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9, 65 Cal. Rptr.2d 495.) In Carl‘s case, 200 days was not enough to reassure the juvenile court that the most recent relapse would be his last.
The refusal to apply the benefit exception is supported by substantial evidence
Although the statute does not specify the type of relationship necessary to derail termination of parental rights, case law has required more than “frequent and loving contact.” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418, 35 Cal.Rptr.2d 162.) “[T]he 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575, 32 Cal.Rptr.2d 535.)
Carl argues his situation is markedly different from Beatrice M. and Autumn H. because in each of those cases the child was removed from the parent‘s custody at or near birth and never had the opportunity to develop a parental relationship. In contrast, Cliffton was almost two years old when he was detained and was returned to Carl‘s care for six months when he was three and a half years old. Carl testified, “We bonded when he was living at home with me for the six months.... We are still very close. He still calls me daddy.
Admittedly, this is a very close case. Considering the artificial restraints created by monitored weekly visitation, Carl has maintained a significant relationship with Cliffton. But Autumn H. teaches that the juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family. Cliffton is young and has adjusted well to his foster family, who are willing to adopt him. As the social worker commented, “If he has good structure and affection and he‘s safe and stable from an early age ... he‘s going to have a better chance in life than he‘s had so far.” The juvenile court balanced this potential benefit against the risk that returning him to Carl would result in another disruption in his life, further eroding his ability to develop trust and to bond with others. Substantial evidence supports the court‘s conclusion, and we will not disturb it.
Sibling visitation
Carl, Cliffton and Zachary all claim the juvenile court should have made sibling visitation orders when terminating parental rights to Cliffton so the concededly close and valuable relationship between the two brothers would be maintained. They claim the juvenile court‘s adoption of SSA‘s recommendation for sibling visitation of one hour twice a month did not fulfill its statutory duty to consider a sibling plan.
Carl “has no standing to raise issues regarding [Cliffton and Zachary‘s] interest in each other, since his own rights have not been affected thereby.” (In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1806-1807, 54 Cal.Rptr.2d 560.) He is not aggrieved by the sibling visitation order, because his interest in these proceedings was to reunify with Cliffton. (In re Nachelle S. (1996) 41 Cal.App.4th 1557, 1562, 49 Cal.Rptr.2d 200.) We address the issue, however, because it is properly raised by Cliffton.4
The argument is based on
“(c) When there has been a judicial suspension of sibling interaction, the reasons for the suspension shall be reviewed at each periodic review hearing pursuant to
“(d) If the case plan for the child has provisions for sibling interaction, the child, or his or her parent or legal guardian shall have the right to comment on those provisions.”
In 1998, the Legislature added subdivision (e) to
The parties suggest the juvenile court should have considered sibling interaction (and Zachary‘s interests) when deciding whether to terminate parental rights to Cliffton. They are wrong. The focus of the .26 hearing was to select the best permanent plan for Cliffton; Zachary‘s wishes are not a consideration. In re Gerald J. (1991) 1 Cal.App.4th 1180, 1188, 2 Cal.Rptr.2d 569.) The statutes and case law have made it clear that parental rights to an adoptable child should be terminated unless one of the statutory exceptions apply. As discussed ante, none applies here. And there is no separate exception for the child‘s general best interests. “[C]onsideration of the child‘s best interests is inherent in the legislative procedure for selecting and implementing a permanent plan. The four specified exceptions to adoption provided in
After the permanent plan is selected, however, sibling contact remains an issue. SSA points out
Here, the juvenile court did consider sibling visitation. It adopted SSA‘s report, which recommended sibling visitation of two hours per month, “provided the prospective adoptive parents are willing to facilitate.” Although this amount of visitation does not satisfy appellate counsel, it certainly fulfilled any implied duty the juvenile court has to consider sibling visitation.
Ineffective assistance of counsel for Cliffton and Zachary
Carl and the children contend6 the children were provided ineffective assistance of counsel because their joint representation created a conflict of interest. There is no doubt that in this case there was an actual conflict of interest, as evidenced by Ms. Captain‘s comments and the juvenile court‘s subsequent actions. SSA concedes this point but asserts that failure to appoint independent counsel for children with diverse interests is subject to a harmless error analysis. (In re Candida S. (1992) 7 Cal.App.4th 1240, 1253, 9 Cal. Rptr.2d 521.) SSA argues that because independent counsel could not have affected the termination of parental rights to Cliffton, no error occurred.
But SSA misses the point. While the selection of Cliffton‘s permanent plan would probably have been the same, the post-termination contact between Cliffton and Zachary would most likely not have been the same. Both brothers have an interest in the frequency and duration of their visits during the period of time between termination of parental rights and the final adoption order. Furthermore, the maintenance and strengthening of the fraternal bond during these months may have a significant influence on the willingness of the prospective adoptive parents to continue sibling contact and on the visitation plan SSA is required to formulate in its final adoption report. Accordingly, we conclude the juvenile court erred in failing to appoint independent counsel for each brother.
Disposition
The order terminating parental rights to Cliffton is affirmed. The sibling visitation order is reversed and remanded to the juvenile court for a new hearing on post-termination sibling contact. At that hearing, each brother shall continue to be represented by independent counsel.
RYLAARSDAM, J., and BEDSWORTH, J., concur.
Notes
Zachary‘s social worker declares that Carl tested positive for drugs in January 2000. Also, during the Christmas 1999 holiday period, Carl allowed Zachary to have unauthorized contact with the mother and left Zachary with “an unauthorized caretaker” (the maternal grandmother).
The proffered evidence does not affect our analysis; accordingly, we decline to grant the motions. (See Tyrone v. Kelley (1973) 9 Cal.3d 1, 13, 106 Cal.Rptr. 761, 507 P.2d 65; Pack v. Vartanian (1965) 232 Cal.App.2d 466, 476-477, 42 Cal.Rptr. 729.)