Dependency Case Law

In re Celine R. (Sept. 30, 2002) 102 Cal.App.4th 717 [125 Cal.Rptr.2d 630]. Court of Appeal, Fifth District.

The juvenile court terminated parental rights and freed the children for adoption after denying counsel's request that the matter be continued to consider the applicability of Welfare and Institutions Code section 366.26(c)(1)(E) and that she be relieved from representing two of the three children due to a conflict of interest.

The juvenile court had adjudged three girls juvenile dependents and removed them from parental custody. Counsel represented the interests of all three children in that proceeding. The eldest child, a half sister to the two younger girls, was ordered into long-term foster care after being assessed as unadoptable. As to the two younger girls, the court determined that termination of parental rights would not be detrimental and ordered adoption as their permanent placement goal. The court continued the Welfare and Institutions Code section 366.26 hearing so that an adoptive home could be identified.

Soon thereafter, the paternal uncle and his girlfriend decided to adopt both girls. Although the youngest child did not understand the concept of adoption, her sister wished to be adopted. However, counsel soon learned that the eldest child was upset by the prospect of being separated from her siblings. Therefore, at the scheduled 366.26 hearing, counsel asked the court to order a bonding study to determine whether the children were so bonded that termination of parental rights to the two youngest would jeopardize the children's well-being under section 366.26(c)(1)(E), especially that of the eldest. Counsel acknowledged that, even if the court did not terminate parental rights as to the two youngest, all three children would still not live together.

The juvenile court interpreted section 366.26(c)(1)(E) as focusing on the impact of terminating parental rights on the two children being adopted, rather than on the impact on the eldest child. The court therefore refused to continue the matter and terminated parental rights to the two youngest girls. The children's counsel appealed, contending that the juvenile court did not have all of the necessary information to make a fully informed decision and, therefore, should have continued the section 366.26 hearing. Counsel also argued that the termination order should be reversed because the juvenile court denied her request to be relieved of her duty to represent the two youngest girls.

The Court of Appeal held that neither the juvenile court nor the Department of Human Services (department) had a duty to address the applicability of section 366.26(c)(1)(E), and thus the continuance was properly denied. Section 366.26(c)(1), provides that the court must terminate parental rights and place the child for adoption if it determines that it is likely that the child will be adopted. However, one of the circumstances deemed to be a compelling reason for determining that termination would be detrimental to a child is evidence that there would be substantial inference with a child's sibling relationship as compared to the benefit of legal permanence through adoption. (Section 366.26 (c)(1)(E).) The appellate court first noted that such language provided a statutory presumption that termination is in a dependent child's best interest and therefore not detrimental if there is clear and convincing proof of adoptability, as was found by the juvenile court in this case. (Section 366.26(b); see also In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344.) The court then concluded that such language did not impose a duty on the court to make a finding of an absence of detriment as a prerequisite terminating parental rights.

The appellate court also determined that the children had the burden of demonstrating that termination of parental rights would substantially interfere with the sibling relationship. Although the court recognized that the children's counsel did so by requesting the bonding study, it emphasized that counsel relied exclusively on the eldest child's concerns and how these concerns affected her. Section 366.26(c)(1) and its exceptions pertain to a child for whom the court is conducting a hearing to select and implement a permanent plan. Since the purpose of the hearing in the instant case was to select and implement a permanent plan for only the two youngest children, counsel would have had to show a compelling reason to support a finding that the adoption would be detrimental to them. The appellate court found that there was enough evidence to support the juvenile court's denial of counsel's request for a continuance since she admitted that she had no reason to believe the adoption would be detrimental to the two youngest girls, and she did not know if the kind of sibling bond the eldest felt was reciprocated by her half sisters. The court further noted that counsel had not requested a continuance in order to communicate with the two youngest children.

Regarding the conflict of interest alleged by counsel, the appellate court found that any possible error was harmless, and thus the court did not address whether there was a sufficient showing to have required the juvenile court to relieve counsel from representing all three girls. The court explained that since the girls' counsel argued in favor of continued sibling relationships, a conflict would only arise if the two youngest favored termination. However, since the juvenile court had entered an order terminating parental rights, the two youngest were not prejudiced. If, on the other hand, the two youngest girls shared their half sister's position, then no conflict even existed. Therefore, the appellate court held that both the continuance and the request to be discharged as counsel for the two youngest children was properly denied by the juvenile court. The juvenile court's order terminating parental rights was also affirmed.