In re Celine R.

• Decision Date: 07 July 2003
• Docket Number: No. S111138.,S111138.
• Citation: 71 P.3d 787,1 Cal.Rptr.3d 432,31 Cal.4th 45
• Court: California Supreme Court
• Parties: In re CELINE R. et al., Persons Coming Under the Juvenile Court Law. Kern County Department Of Human Services, Plaintiff and Respondent, v. Mary M. et al., Defendants and Respondents, Crystal M. et al., Appellants.

1 Cal.Rptr.3d 432

31 Cal.4th 45

71 P.3d 787

In re CELINE R. et al., Persons Coming Under the Juvenile Court Law.

Kern County Department Of Human Services, Plaintiff and Respondent, v. Mary M. et al., Defendants and Respondents, Crystal M. et al., Appellants.

No. S111138.

Supreme Court of California.

July 7, 2003.

John L. Dodd, Tustin, under appointment by the Supreme Court, for Appellants.

B.C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.

John J. Sansone, County Counsel (San Diego), Susan Strom, Chief Deputy County Counsel, Gary C. Seiser, Deputy County Counsel; and Ruth Sorensen for California State Association of Counties as Amicus Curiae on behalf of Plaintiff and Respondent.

No appearance for Defendants and Respondents.

William Wesley Patton for Whittier Law School Legal Policy Clinic as Amicus Curiae.

CHIN, J.

In this case, three young children have been declared dependents of the juvenile court, and efforts to reunify them with their parents have failed. The time has come to establish and implement a permanent plan for them. At this stage of the proceedings, if an appropriate adoptive family is or likely will be available, the Legislature has made adoption the preferred choice. (Welf. & Inst.Code, § 366.26, subds. (b), (c).)¹ If it is likely the child will be adopted, the court must choose that option—and as a result terminate the natural parents' parental rights— unless it "finds a compelling reason for determining that termination would be detrimental to the child due to one or more" of specified circumstances. (§ 366.26, subd. (c)(1).)

Effective January 1, 2002, the Legislature added "substantial interference with a child's sibling relationship" to the circumstances that may permit the court to choose something other than adoption. (§ 366.26, subd. (c)(1)(E), added by Stats. 2001, ch. 747, § 3.) We must decide whether this new provision requires the court to consider the interests of all the siblings or only detriment to the specific child in question. We must also decide under what circumstances the court must appoint separate counsel for each child.

We conclude that the court may reject adoption under this sibling relationship provision only if it finds adoption would be detrimental to the child whose welfare is being considered. It may not prevent a child from being adopted solely because of the effect the adoption may have on a sibling. We also conclude that the court may appoint a single attorney to represent all of the siblings unless, at the time of appointment, an actual conflict of interest exists among them or it appears from circumstances specific to the case that it is reasonably likely an actual conflict will arise. After the initial appointment, the court must relieve counsel from the joint representation when, but only when, an actual conflict of interest arises. Finally, we conclude that any error here in not relieving counsel from representing all three children was harmless because it is not reasonably probable the result would have been different had the court done so. Accordingly, we affirm the judgment of the Court of Appeal.

I. FACTS AND PROCEDURAL HISTORY

This appeal involves three children: siblings Celine R., now five years old, and Angel R., now four years old, and their half sister, Crystal M., now 10 years old. The three have the same mother, but Crystal has a different father. In August 2000, the juvenile court adjudged them dependents of the court and removed them from parental custody after law enforcement agents discovered a methamphetamine laboratory in the family home. By the beginning of September 2000, Crystal was placed with a maternal aunt while Celine and Angel were placed with a paternal uncle and his long-term girlfriend.

In April 2001, after efforts to reunify the family had failed, the court ordered Crystal into long-term foster care, and she continued to live with her maternal aunt. The court set a hearing under section 366.26 to select and implement a permanent plan for Celine and Angel. The hearing was originally scheduled for August 2001, but the Kern County Department of Human Services (Department) requested a continuance to search for a prospective adoptive home. The court continued the hearing until late February 2002.

In its supplemental report prepared shortly before the hearing, the Department advised the court that the paternal uncle and his girlfriend had agreed to adopt Celine and Angel. Angel did not understand the concept of adoption, but Celine said she wanted to be adopted. She understood adoption to mean her uncle and his girlfriend would be her legal parents and she would live with them until she was 18. The report concluded that adoption with them was the best permanent plan for Celine and Angel, and it recommended termination of parental rights.

On February 25, 2002, the court held the hearing to choose a permanent plan for Celine and Angel. Counsel for the parents indicated that the parents did not oppose termination of parental rights and the proposed adoption by the father's brother and the girlfriend. Counsel for the three children, however, expressed concerns, especially in light of the recent statutory change regarding the sibling relationship. She stated that she had unsuccessfully tried to contact the paternal uncle and girlfriend regarding Celine and Angel. She had learned from Crystal's aunt that visitation was no longer occurring between Crystal and the other two. She spoke with Crystal, "and Crystal would be very hurt and very saddened if her siblings were adopted by other people and she became separated from her sibling group totally." She asked the court to continue the matter again and order a bonding study, because she was concerned there might be "long-term emotional interests that could really be in jeopardy, especially with Crystal who is older than these kids.... And her caregiver has concerns about how she would feel if her brother and sister were adopted." The attorney for the father noted that the children had been separated since September 2000, about a year and a half earlier. The court noted, and counsel for the children agreed, that even if the court did not terminate parental rights and permit the adoption, the children would still not be able to live together. But counsel was concerned that the children should visit with each other.

At this point, counsel for the children stated that "maybe the court should allow me to conflict out on Celine and Angel, then I could represent Crystal. [¶] ... [T]his presents a real problem when we are dividing up children and I attempt to represent all three Because I know probably going to adoption, being secure, having permanency is really what's necessary for all of the kids, and we have a very permanent plan for two of the kids.... They are all young. I don't know if there is that kind of bonding that would scar these little kids never seeing their sister again." The court asked the social worker whether there had been sibling visits. The social worker stated that he was informed the last visit had been in December 2001, but there had been visits before that time. The court noted that the practical consequences of its decision were that it "could order sibling visits if they are in long-term foster or long-term guardianship. Whereas, if these two are adopted, ... [t]he court is out of it." The court interpreted the new code section as focusing on the two children being considered for adoption rather than the older sibling. It noted that those two had not "lived with the older sibling since they were infants and they would not remember her; they would not have any emotional attachment [any] more than they would with any other child or one of their little cousins or something." Accordingly, the court denied another continuance.

The court then terminated parental rights and referred Celine and Angel to the county adoption agency for adoptive placement. It set the matter for another hearing the following August and ordered visits among the three siblings in the meantime. Counsel for the children, but not the parents, filed a notice of appeal.

The Court of Appeal affirmed the orders terminating parental rights. It held that section 366.26, subdivision (c)(1), and its exceptions pertained to Celine and Angel, not Crystal. It also found the juvenile court did not abuse its discretion in denying a continuance. Finally, it held that any error in not relieving counsel from representing all three children was harmless.

We granted the children's petition for review to decide (1) whether the new sibling relationship exception obligates the court to consider the interests of all the siblings or only those being considered for adoption, and (2) under what circumstances the court must appoint separate counsel for separate siblings.²

II. DISCUSSION

The Sibling Relationship Exception

California has a comprehensive statutory scheme establishing procedures for the juvenile court to follow when and after a child is removed from the home for the child's welfare. (§ 300 et seq.; see generally Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 247-250, 19 Cal. Rptr.2d 698, 851 P.2d 1307.) "The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time." (In re Marilyn H. (1993) 5 Cal.4th 295, 307, 19 Cal. Rptr.2d 544, 851 P.2d 826.) When the child is removed from the home, the court first attempts, for a specified period of time, to reunify the family. (Cynthia D. v. Superior Court, supra, at pp. 248-249, 19 Cal.Rptr.2d 698,851 P.2d 1307.) In this case, those efforts have failed. When that occurs, "the court must terminate reunification efforts and set the matter for a hearing pursuant to section 366.26 for the selection and implementation of a...