In Re Daniel H.
MCKINSTER, J.
The mother of Daniel H. appeals from a
STATEMENT OF FACTS
At the time these proceedings were instituted, the mother had several children, including “Sister A” (age 11), “Sister B” (age 9), “Sister C” (age 8), “Sister D” (age 6), and 6-month-old Daniel, the subject of this appeal.
On July 30, 2000, the Department of Public Social Services (DPSS) took custody of Sister A and Sister C when their mother failed to pick them up after they returned from a week-long summer camp. Sister A and Sister C were immediately placed in a shelter home.
The next day, DPSS found the mother and observed Sister B, Sister D, and Daniel. The family was homeless, but Daniel was healthy and well fed, and Sister B and Sister D were animated and did not appear to have been mistreated. DPSS also interviewed the maternal grandmother. The grandmother claimed that the mother abused drugs. The grandmother said that the mother and the minors had lived with her for a few months, and during that time, the mother would come home early in the morning and take one or two of the daughters with her, leaving at least one of them to take care of baby Daniel. She said that Sister B was the daughter that the mother depended on the most. DPSS concluded that the mother relied heavily on the girls, Sister B in particular, and that Sister B appeared overworked and overstressed, and was at risk of becoming ill if not removed from the situation. The minors did not seem to be a priority for the mother, who was unconcerned about the family‘s transient lifestyle.
At the detention hearing, the court found probable cause for the initial detention of Sister A and Sister C, and ordered that the minors be placed with their mother and that DPSS assist the mother in finding suitable housing. The mother subsequently established residence in a motel that was frequented by drug dealers.
Prior to the jurisdictional hearing, the mother missed three appointments with DPSS. On a surprise visit, however, DPSS was able to talk to the mother. The mother admitted to using marijuana recently, but agreed to take a drug test. The mother said that she gave her food stamps to the kids to buy “junk” at the convenience store. Sister A and Sister B indicated that the maids paid them $5 to help clean the rooms. The jurisdictional/dispositional report stated that Sister A and Sister B “clearly run the household, taking care of each other and their siblings and running errands for their mother,” and the “[m]inors have established a sense of family.”
On September 17, 2000, the mother and the minors left the motel they were staying at and disappeared. They were discovered on October 5, 2000, when the mother came into the DPSS office on business relating to her food stamps. The mother said they had moved to another motel and she had a deposit down on a home, but the minors were immediately taken into custody. Sister A, Sister B, and Sister C were placed in one shelter home, and Sister D and Daniel were placed in another. When Sister A and Sister B were told that Sister D and Daniel would be placed elsewhere, they were shocked and wondered who would take care of Daniel.
On October 10, 2000, a jurisdictional/dispositional hearing was held. The court concluded that the children all came within the court‘s jurisdiction and placed the children with DPSS.
On March 1, 2001, the mother was arrested on outstanding warrants, and sentenced
On June 19, 2001, the court terminated reunification services as to Daniel and scheduled a selection and implementation hearing under
A prospective adoptive family was identified for Daniel, and they indicated that they were not interested in having Daniel visit with his family, but they would work with DPSS to help the children say good-bye. The updated case service plan indicated that sibling visitation would occur as directed by the adoptive parents.
The
The mother was released from jail on September 9, 2001, and on October 29, 2001, the court terminated parental rights and placed Daniel for adoption. The subsequent
DISCUSSION
1. Standing
The mother complains that the trial court failed to order sibling visitation, the children‘s attorney failed to pursue sibling visitation, and the same attorney improperly represented all the minors despite their conflicting interests regarding sibling visitation. As is apparent, these arguments all have one thing in common: sibling visitation. We find that the mother lacks standing to raise that issue, in any of its various forms.
Case law consistently holds that a parent lacks standing to raise the issue of sibling visitation, reasoning that the minor‘s interest in maintaining a relationship with siblings is unrelated to the parents’ interest in reunification. (See, e.g., In re Cliffton B. (2000) 81 Cal.App.4th 415, 425 [96 Cal.Rptr.2d 778] (Cliffton B.); In re Frank L. (2000) 81 Cal.App.4th 700, 703 [97 Cal.Rptr.2d 88] (Frank L.).) This line of cases easily disposes of the mother‘s argument that the trial court erred in not ordering sibling visitation. That issue can only be raised by the minors. But what about the mother‘s ineffective assistance of counsel arguments? Do parents have standing to raise sibling visitation issues indirectly by using them as the basis for an ineffective assistance of counsel claim?
Although the answer seems selfevident to us, it has actually been a source of some controversy. In re Cliffton B., supra, 81 Cal.App.4th at pages 421-428, and footnote 6, [96 Cal.Rptr.2d 778] (Fourth Appellate District, Division Three), and In re Candida S. (1992) 7 Cal.App.4th 1240, 1252 [9 Cal.Rptr.2d 521] (Candida S.) (Sixth Appellate District), both held that parents had standing to argue that counsel improperly represented multiple children with conflicting interests on the issue of sibling visitation. Cliffton B. and Candida S. both relied on a line of cases generally holding that parents have standing to argue that their children are entitled to independent counsel, reasoning that independent representation of the child‘s interests affects the parent‘s interest in the parentchild relationship. (See, e.g., In re Patricia E. (1985) 174 Cal.App.3d 1, 6-7 [219 Cal.Rptr. 783] (Patricia E.).) On the other hand, Frank L., supra, 81 Cal.App.4th at pages 703-704 [97 Cal.Rptr.2d 88] (Fourth Appellate District, Division One), held that a parent lacked standing to make this sort of hybrid ineffective assistance of counsel/sibling visitation argument. Frank L. specifically rejected the cases that generally permit parents to raise their children‘s independent counsel claims, noting that parents still must show that counsel‘s conflict of interest affected the parent‘s interests, not just those of the minors. (Ibid.)
We find Frank L. to be persuasive. We see no rational basis for denying parents the right to raise sibling visitation directly but permitting them to raise it indirectly by way of an ineffective assistance of counsel claim. Standing depends on the nature of the party‘s interests, not the phrasing of the argument. Effective or not, counsel‘s advocacy, or lack thereof, regarding sibling visitation simply does not affect the parent‘s interests in reunification.
Candida S. and Cliffton B. fail to provide an adequate rationale for their contrary holdings. Candida S. merely cites to Patricia E. without analysis. (Candida S., supra, 7 Cal.App.4th at p. 1252 [9 Cal. Rptr.2d 521].) However, Patricia E. involved an attorney who simultaneously represented DPSS and the child. As a result, the parent was able to argue that independent counsel may have fought for reunification, which directly implicated the parent‘s interests and resulted in the finding of standing. (Patricia E., supra, 174 Cal.App.3d at pp. 6-7 [219 Cal.Rptr. 783].) In this case, it is merely alleged that independent counsel would have argueo for greater sibling visitation, not reunification. (See In re Devin M. (1997) 58 Cal.App.4th 1538, 1542 [68 Cal.Rptr.2d 666] [distinguishing Patricia E. on similar grounds].)
Additionally, Candida S. and Cliffton B. both cite this court‘s prior decision in In re Elizabeth M. (1991) 232 Cal.App.3d 553 [283 Cal.Rptr. 483] (Elizabeth M.), which involved a claim by a father that his children were entitled to independent counsel because their interests conflicted as to both reunification and sibling visitation. Relying on Patricia E., Elizabeth M. generally held that the father had standing to raise the independent counsel claim, but did not distinguish between the underlying issues of reunification and sibling visitation.
In conclusion, we agree with Frank L. and adopt its holding: A parent must show that counsel‘s alleged conflict of interest actually affected the parent‘s interests. In this case, the mother fails to make that showing. The mother notes that reunification with her daughters remains pending, therefore “her interests are significantly intertwined with theirs.” That link is far too tenuous to support standing. Just because the mother still has rights in relation to her daughters, that does not give her standing to appeal every ruling that involves her daughters without some showing that her personal interests were affected. (Frank L., supra, 81 Cal.App.4th at p. 703 [97 Cal.Rptr.2d 88].)
Notably, during the pendency of the instant proceeding,
The mother persuasively argues that this new sibling relationship exception probably renders the standing issue moot. Because sibling relationships are now a statutory exception to adoption, those relationships directly impact the parent‘s interest in reunification, an interest that can be kept alive merely by avoiding adoption.
However, the new sibling relationship exception was not in effect at the time of the
Assuming for the sake of argument that the mother had standing to raise the sibling visitation issue, her arguments would fail on their merits.
First, the mother argues that the trial court erred by failing to consider and order sibling visitation. However, the court had no authority to order sibling visitation.
Second, the mother argues that counsel was ineffective. This argument is based on
Initially, counsel did not perform incompetently by failing to pursue sibling visitation. As noted above, in light of the adoptive parents’ explicit rejection of visitation, post-adoption visitation was impossible.
Next, assuming for the sake of argument that counsel performed incompetently by representing multiple conflicting interests, there is no reasonable probability that independent counsel would have made a difference in the outcome.
Even if we were to apply the new sibling relationship exception to adoption, we would still find no prejudice. The sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a “compelling reason” for concluding that the termination of parental rights would be “detrimental” to the child due to “substantial interference” with a sibling relationship. Furthermore, the language focuses exclusively on the benefits and burdens to the adoptive child, not the other siblings. The court is specifically directed to consider the best interests of the adoptive child, not the siblings, and must ultimately determine whether adoption would be detrimental to the adoptive child, not the siblings.
In this case, there is ample evidence that Daniel‘s sisters took care of him during his first months of life and were concerned about him throughout the proceedings. However, Daniel was in foster care during most of his short life and easily bonded with those caretakers. Daniel even seemed disinterested in his sisters during their visits, preferring to play with
DISPOSITION
The judgment is affirmed.
I concur: WARD, J.
RAMIREZ, P.J.
I concur with the result achieved in the lead opinion. I write separately to elucidate the apparent conflict between the instant opinion, with which I agree, and In re Elizabeth M. (1991) 232 Cal.App.3d 553 [283 Cal.Rptr. 483] (Elizabeth M.), with which I also agreed. In the first instance, as pointed out by the majority, the facts in Elizabeth M. distinguish it from this case. For example, with respect to the issue of independent counsel, the children in that case themselves appealed, asserting their right thereto. Therefore, whether the father had standing to raise the issue on their behalf was irrelevant and our conclusion on the issue there is dicta. (Id. at p. 565 [283 Cal.Rptr. 483].) Further, I have, after additional reflection, determined not only that the conclusion is dicta, but to the extent that it can be said to espouse the notion that parents have standing on appeal to raise the issue of failure to provide independent counsel for their children in every instance, it is incorrect dicta. As the majority here correctly concludes, in order to have standing to raise an issue on appeal, a parent must demonstrate that the issue affects that parent‘s interests, and not merely the child‘s. (In re Frank L. (2000) 81 Cal.App.4th 700, 703 [97 Cal. Rptr.2d 88].) The analysis in Elizabeth M. is lacking in this regard, merely citing In re Patricia E. (1985) 174 Cal.App.3d 1 [219 Cal.Rptr. 783], without mentioning the limitations to parental standing inherent in that decision.
In addition, in Elizabeth M., we gave the appearance of considering the father‘s claim that his children‘s rights were violated by a failure to order sibling visitation. (Elizabeth M., supra, 232 Cal.App.3d at p. 569 [283 Cal.Rptr. 483].) Again, to the extent that the Elizabeth M. opinion can be said to support parental standing on this issue (as with the independent counsel claim, the children there asserted the sibling visitation issue on their own behalf (id. at p. 564 [283 Cal.Rptr. 483])), I now believe that it is incorrect.
As Justice Frankfurter said in his dissent in Henslee v. Union Planters Bank (1949) 335 U.S. 595, 600 [69 S.Ct. 290, 293, 93 L.Ed. 259], “wisdom too often never comes, and so one ought not to reject it merely because it comes late.” Since I now realize that the analysis in Elizabeth M. was lacking, “I shall not compound error by pushing that decision still farther.” (Henslee v. Union Planters Nat. Bank & T. Co., supra, 335 U.S. at p. 600 [69 S.Ct. 290] (dis. opn. of Frankfurter, J.).)