In re A.R. CA4/3 ( 2014 )

Filed 6/26/14 In re A.R. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re A.R. et al., Persons Coming Under the
Juvenile Court Law.
FELICITY C.,
Plaintiff and Appellant, G049265
v. (Super. Ct. Nos. DP022319,
DP022320)
ORANGE COUNTY SOCIAL SERVICES
AGENCY, OPINION
Defendant and Respondent.
Appeal from an order of the Superior Court of Orange County, Kimberly
Menninger, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal, for Plaintiff and
Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen, Julie J. Agin,
and Jeannie Su, Deputy County Counsel, for Defendant and Respondent.
No appearance for the Minors.
* * *
This is an appeal from a non-dependent sibling, Felicity, in the dependency
matter involving her two sisters, A. and Autumn. (See In re A.R. (June 26, 2014,
G049270) [nonpub. opn.].) On the eve of the Welfare and Institutions Code section
366.261 hearing, Felicity filed a section 388 petition on her own behalf, the parents’
rights should not be terminated because Felicity did not want to lose contact with her
sisters, and wanted to maintain visits with them.
I
FACTS
The facts are stated in full in In re A.R., supra, G049270, and we shall not
restate them here. Suffice to say that Felicity had a previous dependency case, but was
reunited with the mother in 2007. Felicity apparently lived with the mother’s ex-husband
during the pendency of this case.
In March 2012, then almost two-year-old A. and one-month-old Autumn
(the girls) were detained and the parents2 arrested. From June 2012 through May 2013,
the mother received services, mostly focusing on drug treatment. She consistently visited
the girls, and Felicity would often, but not always, visit with her. The mother had many
successes in treatment, but she also had drug detection patches that tested positive in
November 2012 and April 2013. She would initially deny any relapse and then admit
them later. She was terminated from dependency drug court after her second relapse. In
May 2013, the court terminated services and scheduled a section 366.26 hearing. The
girls were placed in a prospective adoptive home.
1Subsequent statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2 The father of the girls is a party to the appeal in G049270, but only joined in the
mother’s arguments. That appeal was therefore focused on the mother’s efforts to
reunify.
2
In October 2013, the mother filed a section 388 petition. “In late October,
the mother filed a section 388 petition, asking the court to either return the children to her
or provide further services. She stated in her declaration that she had successfully
completed one residential recovery program and was making progress in another. She
expected to complete it by March 2014. She was also working on her GED. She felt that
it was in the best interests of the children to reunify with her because she had developed a
significant parent-child relationship and bond with them. She attached documentation
from her recovery programs and a letter from the former foster mother supporting
reunification.” (In re A.R., supra, G049270.) The court concluded the mother had failed
to make a prima facie showing of changed circumstances.
Shortly thereafter, Felicity filed her section 388 petition. She asked the
court for visitation with her sisters. If the court terminated the mother’s parental rights,
she would lose contact with them. She described her relationship with her sisters as
“close” and stated “we grew up together and share a common history.” At the hearing,
none of the counsel present requested appointment of a guardian ad litem or attorney for
Felicity. The mother’s counsel argued in favor of the motion. (In re A.R., supra,
G049270.)
The court noted that Felicity had done a “good job of trying to file a
document before the court,” but she had not shown a change of circumstances that would
justify granting a full hearing. Felicity had argued that she wanted to maintain a
relationship with her sisters, but she had not demonstrated changed circumstances or that
granting the motion would be in the girls’ best interests.” (In re A.R., supra, G049270.)
At the section 366.26 hearing, the parental and sibling benefit exceptions
were key topics of testimony and argument. The mother testified about Felicity’s bond
with the girls. Felicity testified that she saw the girls about twice a week since detention.
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(The social worker later testified it was about once a month.) Felicity described a typical
visit, and said A. referred to her as “sissy” and also knew her name. Felicity believed her
sisters would benefit from a relationship with her.
At the conclusion of the hearing, the court determined that neither benefit
exception applied. With respect to Felicity, the court said: “Felicity is an amazing young
lady. She’s kind, caring, articulate. She clearly loves her little sisters. [¶] The court
hopes that there is a possibility that she will be able to maintain some relationship with
her siblings . . . . But unfortunately for Felicity, the bond she feels and has towards them
is not something that can be shown with respect to Autumn and A[.] feeling the same
way towards her, and that is what the court needs to look to.” Reviewing the relevant
legal factors, the court concluded the sibling relationship was “certainly not one that
would require the court to determine that it was in the best interest of Autumn and A[.] to
forego permanency in exchange for maintaining their relationship with Felicity.” The
court terminated parental rights.
Felicity appeals from the denial of the section 388 petition. She does not
appeal the judgment terminating parental rights or the court’s findings regarding the
benefit exception. She argues, essentially, that the petition should have been granted and
the case never should have proceeded to the section 366.26 hearing.
II
DISCUSSION
Felicity offers two arguments on appeal. She claims the juvenile court
abused its discretion by not appointing counsel for her. She also asserts the trial court
erred by summarily denying her section 388 petition.
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Appointment of Counsel
Felicity argues the court abused its discretion by failing to appoint counsel
or a guardian ad litem for her sua sponte.3 She asserts that under Family Code section
7861, the court has discretion whether to appoint counsel. But that section refers to the
discretionary appointment of counsel in an action seeking freedom from parental custody
and control. It has no applicability here. Indeed, Felicity points to no case law at all in
which the court appointed counsel for a nondependent sibling in a dependency matter.
While we can agree with Felicity that such an appointment might have merit in a very
small class of cases where a nondependent sibling has interests separate from and adverse
to the parents, this is not one of those cases. We therefore disagree with Felicity that
“every reasonable person” would agree she was entitled to appointed counsel here.
Here, the only factual issue raised in Felicity’s petition was her desire to
maintain a relationship with her sisters, and why it was in the girls’ interests to do so.
The parents had every motivation to raise the same issue in the context of the sibling
benefit exception during the section 366.26 hearing, and indeed, that issue was fully
litigated. There was testimony on the topic from the mother, Felicity herself, and the
social worker. Thus, appointing separate counsel to make essentially the same argument
on the eve of the section 366.26 hearing was unnecessary, and not an abuse of discretion.
Felicity also claims she “was much like a de facto parent . . . who may have
important information to provide the court.” She had the opportunity to present
information to the court — twice, in her petition and again at the section 366.26 hearing.
The analogy simply lacks merit.
In addition to a lack of authority demonstrating that not appointing counsel
was an abuse of discretion, Felicity has also failed to show prejudice. As we have noted,
3 We appointed counsel to represent her on appeal.
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her interests were entirely aligned with those of the parents. She argues she could not
make a statement at the hearing on the petition, yet offers no suggestion of what counsel
might have said or how it might have persuaded the court. Both the mother and the
father’s attorneys argued in favor of her petition. While she claims she was somehow
“taint[ed]” by the “mother’s history of bad behavior,” it is pure speculation that the trial
court did not decide the petition on its merits.
She also complains SSA’s reports were inadequate regarding the nature of
the sibling relationship, but fails to point out specifics or discuss why the parents were
insufficiently motivated to raise these issues. The sibling exception was fully litigated
during the section 366.26 hearing. Again, without any specifics, she claims that counsel
could have amended the petition to strengthen it somehow, or to provide a more detailed
description of the change of circumstances. Felicity has simply failed to meet her burden
on appeal to affirmatively show any error. (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
We also disagree that she has come anywhere close to establishing
“structural error” which requires reversal without prejudice. Her interests were aligned
with the parents, and therefore her interests were represented before the court. She was
not a party to these proceedings, and appointment of counsel for her was entirely a
discretionary matter. She has not demonstrated an abuse of that discretion.
Felicity’s Section 388 Petition
Section 388 allows any person having an interest in a dependent child to
move to modify a prior order based upon a change of circumstance or new evidence.
Before proceeding to a full hearing on the petition, the moving party must make a two-
part prima facie showing: a genuine change of circumstances or new evidence, and that
revoking the prior order would be in the dependent children’s best interests. If the
petition, liberally construed, does not meet these requirements, a full hearing is not
required. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) We review the juvenile
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court’s denial of a section 388 petition for abuse of discretion, upholding its decision
unless the court exceeded all bounds of reason. (In re Brittany K. (2005) 127
Cal.App.4th 1497, 1505.)
Felicity did not come anywhere close to establishing any change of
circumstances. Essentially, she argued that she loved her sisters and wanted to continue
to visit them. But this was nothing new — it was simply an early attempt at arguing the
sibling benefit exception, which was subsequently litigated during the section 366.26
hearing. Without demonstrating a change of circumstance or new evidence, the court
was therefore not required to order a full hearing on the merits of the petition.
III
DISPOSITION
The court’s order denying the section 388 petition is affirmed.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
ARONSON, J.
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