Tuesday, July 8, 2003
S.C. Limits Scope of Adoption Law Aimed at Keeping Siblings Together
By a MetNews Staff Writer
A state law allowing a judge to deny a petition to terminate parental rights and free a child for adoption in order to keep sibling relationships intact only applies if termination would be detrimental to the child before the court, the state Supreme Court ruled yesterday.
In a unanimous decision, the justices agreed with a Kern Superior Court judge and the Fifth District Court of Appeal that the judge could not consider the effect of termination on an older sibling who was not a direct subject of the dependency proceeding.
The ruling upholds an order that allowed the adoption of a brother and sister, now four and five years old, respectively, by their paternal uncle and his girlfriend.
The two, identified as Celine R. and Angel R., were taken from their parents’ home and became the subject of dependency proceedings after the police discovered a methamphetamine lab at the residence. Also removed from the home was the children’s 10-year-old half-sister, Crystal M., who was placed with a maternal aunt.
Family reunification efforts failed, and the uncle and his girlfriend, with whom Celine and Angel were living, offered to adopt them. The parents did not object.
At the permanency planning hearing, however, the court-appointed attorney for all three children objected that Crystal “would be very hurt and very saddened if her siblings were adopted by other people.” The attorney also suggested that she had a conflict in representing all three children.
Kern Superior Court Judge Michael Bush, however, noted that there had been no sibling visits in a couple of months. He concluded that the sibling relationship was too tenuous to support an exception to termination of parental rights under Welfare and Institutions Code Sec. 366.26(c)(1)(E), which took effect in January 2002.
Under California’s dependency law, if reunification efforts fail and the child is adoptable, the court must terminate parental rights and free the child for adoption unless an exception applies.
Sec. 366.26(c)(1)(E) added to the list of existing exceptions a provision allowing a judge to keep parental rights intact in order to avoid “substantial interference with a child’s sibling relationship.”
But Justice Ming Chin agreed with the lower courts, and with counsel for Kern County and its amici, that detriment to other siblings, whose welfare is not the responsibility of the court hearing the immediate proceeding, is an insufficient basis to deny dependent children the benefits of adoption.
“Although it concerns the sibling relationship in general, the statute continually refers to that relationship’s impact on the child being considered for adoption, not the impact on the sibling or anyone else,” the justice wrote. “...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.”
Chin also noted that while the statute does not allow the court to deny or delay adoption in order to prevent harm to the other sibling, the judge can order that steps be taken so that the relationship among the children continues after adoption, for example by ordering that visitation be facilitated.
Chin also addressed the conflict-of-interest issue. Noting that each parent and the county are usually represented by separate counsel, the justice said the “unwieldy” alternative of separate counsel for each sibling should be the exception, not the rule.
Separate counsel should be appointed for each child only if “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.” Otherwise, Chin said, a single attorney may represent all siblings, subject to being relieved if an actual conflict arises.
In the case before the court, Chin said, if it was error not to allow the attorney to conflict out, the error was harmless. It was “very unlikely” that new counsel could have persuaded the judge to delay the adoption based on potential detriment to Celine and Angel, he said.
While the decision was unanimous, Justice Carlos Moreno, joined by Justice Joyce L. Kennard, wrote separately to assert that a conflict of interest did in fact exist, and that the trial judge should have appointed separate counsel for Crystal. But Moreno agreed with the majority that the error was harmless.
The case is In re Celine R., 03 S.O.S. 3530.
Copyright 2003, Metropolitan News Company