Supreme Court of California Justia
Docket No. S111138
In re Celine R.


Filed 7/7/03

IN THE SUPREME COURT OF CALIFORNIA

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

KERN COUNTY DEPARTMENT OF
S111138
HUMAN SERVICES,
Ct.App. 5 No. F040063
Plaintiff and Respondent,
v.
Kern
County
Super. Ct. Nos. JD091445,
MARY M. et al.,
JD091446
Defendants and Respondents; )
)
CRYSTAL M. et al.,
)
Appellants.

In this case, three young children have been declared dependants 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

1
All further statutory references are to the Welfare and Institutions Code
unless otherwise indicated.
1



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
2

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
3

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
4

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
A. 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

2
The Department also argues that Crystal lacks standing to appeal the
termination of parental rights as to her siblings. The Court of Appeal declined to
decide the question, and it is not within the scope of our grant of review.
Accordingly, we do not decide it either. (Cal. Rules of Court, rule 29.)
5



for the child’s welfare. (§ 300 et seq.; see generally Cynthia D. v. Superior Court
(1993) 5 Cal.4th 242, 247-250.) “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.) 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.) 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 permanent plan. (§ 366.21, subd.
(g).)” (Id. at p. 249.) This appeal concerns the section 366.26 hearing, also called
a permanency planning hearing (In re Marilyn H., supra, at p. 298, fn. 2), that was
held in February 2002.
“Once reunification services are ordered terminated, the focus shifts to the
needs of the child for permanency and stability.” (In re Marilyn H., supra, 5
Cal.4th at p. 309.) “A section 366.26 hearing . . . is a hearing specifically
designed to select and implement a permanent plan for the child.” (Id. at p. 304.)
It is designed to protect children’s “compelling rights . . . to have a placement that
is stable, permanent, and that allows the caretaker to make a full emotional
commitment to the child.” (Id. at p. 306.) “The Legislature has declared that
California has an interest in providing stable, permanent homes for children who
have been removed from parental custody and for whom reunification efforts with
their parents have been unsuccessful.” (Id. at p. 307.)
The court has four choices at the permanency planning hearing. In order of
preference the choices are: (1) terminate parental rights and order that the child be
placed for adoption (the choice the court made here); (2) identify adoption as the
permanent placement goal and require efforts to locate an appropriate adoptive
6

family; (3) appoint a legal guardian; or (4) order long-term foster care. (§ 366.26,
subd. (b).) Whenever the court finds “that it is likely the child will be adopted, the
court shall terminate parental rights and order the child placed for adoption.”
(§ 366.26, subd. (c)(1).) The circumstance that the court has terminated
reunification services provides “a sufficient basis for termination of parental rights
unless the court finds a compelling reason for determining that termination would
be detrimental to the child due to one or more” of specified circumstances. (Ibid.)
The Legislature has thus determined that, where possible, adoption is the first
choice. “Adoption is the Legislature’s first choice because it gives the child the
best chance at [a full] emotional commitment from a responsible caretaker.” (In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) “Guardianship, while a more
stable placement than foster care, is not irrevocable and thus falls short of the
secure and permanent future the Legislature had in mind for the dependent child.”
(In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1344.)
We thus see that if the child is adoptable—and no one disputes that Celine
and Angel are—adoption is the norm. Indeed, the court must order adoption and
its necessary consequence, termination of parental rights, unless one of the
specified circumstances provides a compelling reason for finding that termination
of parental rights would be detrimental to the child. The specified statutory
circumstances—actually, exceptions to the general rule that the court must choose
adoption where possible—“must be considered in view of the legislative
preference for adoption when reunification efforts have failed.” (In re Jasmine D.,
supra, 78 Cal.App.4th at p. 1348.) At this stage of the dependency proceedings,
“it becomes inimical to the interests of the minor to heavily burden efforts to place
the child in a permanent alternative home.” (Cynthia D. v. Superior Court, supra,
5 Cal.4th at p. 256.) The statutory exceptions merely permit the court, in
7

exceptional circumstances (In re Jasmine D., supra, at pp. 1348-1349), to choose
an option other than the norm, which remains adoption.
Until recently, section 366.26, subdivision (c)(1), contained four exceptions
to the normal requirement of adoption. Effective January 1, 2002, the Legislature
added a fifth exception, the one at issue here: “There would be substantial
interference with a child’s sibling relationship, taking into consideration the nature
and extent of the relationship, including, but not limited to, whether the child was
raised with a sibling in the same home, whether the child shared significant
common experiences or has existing close and strong bonds with a sibling, and
whether ongoing contact is in the child’s best interest, including the child’s long-
term emotional interest, as compared to the benefit of legal permanence through
adoption.” (§ 366.26, subd. (c)(1)(E); Stats. 2001, ch. 747, § 3.) This new
exception now permits the court to consider the sibling relationship in deciding
whether a compelling reason exists to choose something other than adoption.
At the hearing in this case, counsel for the children expressed concern that
Crystal might be hurt and saddened if Celine and Angel were adopted. The issue
before us is whether the sibling relationship exception permits the court to
consider whether adoption would be detrimental, not to the children being
considered for adoption, but to a sibling. The trial court and Court of Appeal in
this case held that the new exception permits the court to consider possible
detriment to the child being considered for adoption, but not detriment to a sibling.
As the Court of Appeal explained, “Crystal was not the subject of the termination
hearing . . . . The court had previously selected for her a permanent plan of long-
term foster care. Section 366.26, subdivision (c)(1) and its exceptions pertain to
the child for whom the court is conducting the hearing to select and implement a
permanent plan. The purpose of the February 2002 hearing was to select and
implement a permanent plan for Celine and Angel. In order for the court to refrain
8

from selecting adoption as the permanent plan for Celine and Angel, given their
adoptability, it would have to ‘find a compelling reason for determining that
termination would be detrimental to the child,’ in this case them. (§ 366.26, subd.
(c)(1).)”
We agree with the courts below that the sibling relationship exception
permits the trial court to consider possible detriment to the child being considered
for adoption, but not a sibling of that child. The plain language of the new
exception compels this conclusion. 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.
(§ 366.26, subd. (c)(1)(E).) “[T]he 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 re Daniel H. (2002) 99 Cal.App.4th 804, 813.)
Nothing in the statute suggests the Legislature intended to permit a court to not
choose an adoption that is in the adoptive child’s best interest because of the
possible effect the adoption may have on a sibling.
Counsel for the children argues that the “court must examine the
relationship among all the siblings in considering” the sibling relationship
exception and “may not restrict its inquiry to the children at issue in the hearing
before the court.” In a way, this is correct. The sibling’s relationship with the
child is not irrelevant. Certainly, evidence of the sibling’s relationship with the
child and, if the sibling is articulate, perhaps of the sibling’s views of that
relationship, might be relevant as indirect evidence of the effect the adoption may
have on the adoptive child. A nonadoptive sibling’s emotional resistance towards
the proposed adoption may also implicate the interests of the adoptive child. In an
9

appropriate case, the court should carefully consider all evidence regarding the
sibling relationship as it relates to possible detriment to the adoptive child. But the
ultimate question is whether adoption would be detrimental to the adoptive child,
not someone else. This conclusion does not mean that the court must totally
disregard the interests of the sibling or the significance of the sibling relationship
when it orders adoption. When appropriate, the court can encourage the adoptive
parents to agree to visits among the siblings although, as the court recognized in
this case, it cannot require them to do so. (§ 366.29; Fam. Code, § 8714.7; see In
re Daniel H., supra, 99 Cal.App.4th at p. 812.)
B. Appointment of Separate Counsel for Separate Siblings
The children argue that the trial court should have appointed a separate
attorney for Crystal and another for Celine and Angel when their trial counsel
expressed concern at the February 25, 2002, hearing about representing all three.
“Where a child is not represented by counsel, the court shall appoint counsel for
the child unless the court finds that the child would not benefit from the
appointment of counsel. The court shall state on the record its reasons for that
finding.” (§ 317, subd. (c).) Here, the court did appoint counsel for the children,
although just one for all three. The law has been somewhat uncertain regarding
whether and under what circumstances separate siblings must have separate
counsel.
The children do not argue that each child must always have his or her own
attorney. We agree that the court should not automatically appoint separate
counsel for separate children. In a dependency case, each parent generally has
separate counsel. Another attorney represents the social services agency. Counsel
for the children is the fourth attorney in the case. Thus, four attorneys appeared at
the February 25, 2002, hearing of this case. If each child had separate counsel,
10

matters could become unwieldy, especially when there are several children; so
many attorneys could interfere with the need to resolve dependency questions
expeditiously as well as fairly. For example, Carroll v. Superior Court (2002) 101
Cal.App.4th 1423 (Carroll), discussed further below, involved seven children.
Separate counsel for each would have resulted in a total of 10 attorneys, which
would have made the matter resemble complex litigation. In addition to the
obvious inefficiencies of having so many attorneys—who might create scheduling
difficulties and push the case in contradictory directions—and the serious draining
of scarce public resources, separate counsel could also unnecessarily make
siblings feel they are adversaries, which could harm their ability to provide mutual
emotional support. Having a single attorney would also permit the children to
consult with their attorney together rather than separately, which can be quite
beneficial in the often intimidating environment of judicial proceedings.
Children’s interests are not always adversarial, and they should not always be
treated as such.
On the other hand, sometimes the interests of siblings are so conflicting that
they should have separate counsel. We must determine the exact standard for trial
courts to apply when first appointing counsel and thereafter.
Some courts have held that the court must appoint separate counsel for
siblings only when an actual, not merely potential, conflict arises among them. (In
re Candida S. (1992) 7 Cal.App.4th 1240, 1252; In re Richard H. (1991) 234
Cal.App.3d 1351, 1367.) Another said that there must be separate counsel
whenever a “potential conflict of interest” exists. (In re Elizabeth M. (1991) 232
Cal.App.3d 553, 565.) The relevant statute seems to require separate counsel only
when an actual conflict exists. “Counsel for the child may be a district attorney,
public defender, or other member of the bar, provided that the counsel does not
represent another party or county agency whose interests conflict with the child’s.”
11

(§ 317, subd. (c), italics added.) As pointed out in In re Richard H., supra, at page
1367, the original bill that became the revised section 317 said, “provided that the
counsel does not represent another party or county agency whose interest may
conflict with the minor’s.” (Sen. Bill No. 243 (1987-1988 Reg. Sess.) § 22, p. 23,
as introduced Jan. 26, 1987, italics added.) A later amendment deleted the word
“may,” and the language became “provided that the counsel does not represent
another party or county agency whose interests conflict with the minor’s.” (Sen.
Bill No. 243, supra, § 21, p. 23, as amended in Assembly July 9, 1987.) Thus,
“may conflict,” which would seem to include a potential conflict, became
“conflict,” which seems to require an actual conflict.
The California Rules of Professional Conduct (rules) appear to differ
slightly from section 317. Rule 3-310(C) provides that, without each client’s
written consent, an attorney shall not: “(1) Accept representation of more than one
client in a matter in which the interests of the clients potentially conflict; or [¶] (2)
Accept or continue representation of more than one client in a matter in which the
interests of the clients actually conflict . . . .” Thus, this provision states that at the
outset, an attorney may not accept representation if there is a potential conflict; it
does not require an actual conflict. In Carroll, supra, 101 Cal.App.4th 1423, the
court sought to reconcile the apparent tension between section 317 and rule 3-
310(C).
The Carroll court first held that an attorney must withdraw from an existing
representation only when an actual conflict arises among multiple clients.
(Carroll, supra, 101 Cal.App.4th at p. 1428.) Noting the language of rule 3-310, it
then considered when an attorney must refuse to accept representation of multiple
clients at the outset due to a potential conflict among them. It noted that there may
always be at least a “theoretical potential conflict among” siblings. (Carroll,
supra, at p. 1429.) “This theoretical potential conflict exists from the
12

commencement of a multi-sibling dependency proceeding because of the
possibility reunification will be unsuccessful and the siblings’ interests may differ
at the permanent plan stage; therefore, in multiple sibling cases, it can be argued
that separate counsel must be appointed for each at the commencement of the
proceedings. On the other hand, dependency proceedings often result in
reunification and even if they do not, multi-sibling permanent plans do not
necessarily involve an actual conflict. Although a theoretical potential conflict of
interest exists in each multiple sibling dependency proceeding, it appears this
potential conflict is theoretical, not realistic. Therefore, appointment of separate
counsel for each sibling at the commencement of the dependency proceeding
would in most cases result in an unnecessary duplication of effort and resources.”
(Ibid.)
“A degree of tension exists between Rule 3-310, which prohibits an
attorney from accepting new representation of multiple clients when a potential
conflict of interest exists among the clients, and section 317, subdivision (c),
which prohibits representation of a minor in a dependency proceeding and another
person or agency whose interests conflict with the minor’s. Rule 3-310 refers to
potential conflict and section 317, subdivision (c) seems to contemplate an actual
conflict. We believe, however, that in the dependency context the two concepts
can be reconciled by a rule that an attorney may not represent multiple clients if an
actual conflict of interest between clients exists and may not accept representation
of multiple clients if there is a reasonable likelihood an actual conflict of interest
between them may arise. By interpreting the Rule 3-310 concept of potential
conflict to mean, at least in the dependency context, a reasonable likelihood an
actual conflict will arise, it is possible to reconcile the importance of independent
representation with the practicality of not overwhelming the dependency system
when unnecessary.” (Carroll, supra, 101 Cal.App.4th at pp. 1429-1430.)
13

Counsel for the children urges us “to adopt the formulation in Carroll as
both consistent with existing law and workable in the dependency context.” We
agree that the Carroll court appropriately reconciled section 317 and rule 3-310, as
well as the sometimes contradictory needs to assure that everyone is properly
represented but not to overburden the dependency system or unnecessarily suggest
that siblings are adversaries. When first appointing counsel in a dependency
matter, the court may generally appoint a single attorney to represent all the
siblings. It would have to appoint separate attorneys if, but only if, there is an
actual conflict among the siblings or if circumstances specific to the case—not just
the potential for conflict that inheres in all multisibling dependency cases—present
a reasonable likelihood an actual conflict will arise. If these specific
circumstances exist, the court should appoint separate counsel at the outset rather
than await an actual conflict and the possible disruption a later reappointment may
cause. After the initial appointment, the court will have to relieve counsel from
multiple representation if, but only if, an actual conflict arises.
Nothing in the record indicates there was a reasonable likelihood an actual
conflict would arise among the siblings when the court first appointed counsel in
this matter. The children do not argue otherwise. The children, however, argue
that the court was required to appoint separate counsel at the February 25, 2002,
hearing when counsel cited the new sibling relationship exception of section
366.26, subdivision (c)(1)(E), and expressed concern that the adoption of Celine
and Angel would have a negative impact on Crystal. In a similar situation, the
Carroll court concluded that groups of siblings that would not be kept together
may require separate counsel. (Carroll, supra, 101 Cal.App.4th at pp. 1430-
1431.) Now that we have clarified the meaning of the sibling relationship
exception, it is not clear whether this precise situation will rearise or how our
14

interpretation of that exception would affect this question. But we need not decide
whether the court erred in not relieving counsel, for any error was harmless.
Citing In re Patricia E. (1985) 174 Cal.App.3d 1, 9, and criminal cases, the
children argue that harmless error analysis is inappropriate in cases of improper
joint representation. We disagree. It is true that error in having one attorney
represent multiple defendants in a criminal case, once established, is generally not
susceptible of harmless error analysis (see People v. Mroczko (1983) 35 Cal.3d
86), but the analogy to criminal cases is inapt. In In re Richard E. (1978) 21
Cal.3d 349, we held that error in not appointing counsel for the child as well as for
the parents and the social agency was subject to harmless error analysis. “Failure
to appoint counsel in the context of a freedom from parental custody and control
proceeding is dissimilar to denial of the fundamental right to counsel where one is
charged with crime or juvenile misconduct. [Citation.] None of the personal
deprivations flowing from denial of counsel in juvenile court proceedings are
present here. [Citations.] Accordingly, failure to appoint counsel for a minor in a
freedom from parental custody and control proceeding does not require reversal of
the judgment in the absence of miscarriage of justice.” (Id. at p. 355.)
Other than In re Patricia E., supra, 174 Cal.App.3d 1, which followed
People v. Mroczko, supra, 35 Cal.3d 86, Court of Appeal decisions have generally
applied this harmless error rule to error in not appointing separate counsel for
separate siblings. In In re Elizabeth M., supra, 232 Cal.App.3d at pages 566-567,
the court noted that a defendant’s right to counsel in criminal cases is a
fundamental constitutional right, but the child’s right to counsel in a dependency
case is solely statutory. Accordingly, it concluded “that the Richard E. standard
[In re Richard E., supra, 21 Cal.3d 349] applies to evaluating error in failing to
appoint independent counsel for children with varying interests. We thus
determine whether the record reflects a miscarriage of justice in the failure to
15

appoint separate counsel.” (In re Elizabeth M., supra, at p. 568; accord, In re
Candida S., supra, 7 Cal.App.4th at p. 1252.)
We conclude that the failure to appoint separate counsel for separate
siblings is subject to the same harmless error standard as error in not appointing
counsel for the children at all. We add another reason criminal cases are inapt. In
a criminal case, reversal of a criminal judgment is virtually always in the
defendant’s best interest. The situation in a dependency case is often different.
Reversal of an order of adoption, for example, might be contrary to the child’s
best interest because it would delay and might even prevent the adoption. After
reunification efforts have failed, it is not only important to seek an appropriate
permanent solution—usually adoption when possible—it is also important to
implement that solution reasonably promptly to minimize the time during which
the child is in legal limbo. A child has a compelling right to a stable, permanent
placement that allows a caretaker to make a full emotional commitment to the
child. (In re Marilyn H., supra, 5 Cal.4th at p. 306.) Courts should strive to give
the child this stable, permanent placement, and this full emotional commitment, as
promptly as reasonably possible consistent with protecting the parties’ rights and
making a reasoned decision. The delay an appellate reversal causes might be
contrary to, rather than in, the child’s best interests. Thus, a reviewing court
should not mechanically set aside an adoption order because of error in not giving
that child separate counsel; the error must be prejudicial under the proper standard
before reversal is appropriate.
Other than the general reference to a miscarriage of justice, the cases have
not stated the exact harmless error test. (See, e.g., In re Daniel H., supra, 99
Cal.App.4th at p. 813 [finding both no “reasonable probability” and no
“reasonable possibility” of prejudice].) The California Constitution prohibits a
court from setting aside a judgment unless the error has resulted in a “miscarriage
16

of justice.” (Cal. Const., art. VI, § 13.) We have interpreted that language as
permitting reversal only if the reviewing court finds it reasonably probable the
result would have been more favorable to the appealing party but for the error.
(People v. Watson (1956) 46 Cal.2d 818, 836.) We believe it appropriate to apply
the same test in dependency matters. A court should set aside a judgment due to
error in not appointing separate counsel for a child or relieving conflicted counsel
only if it finds a reasonable probability the outcome would have been different but
for the error. We disapprove of anything in In re Patricia E., supra, 174
Cal.App.3d 1, that is inconsistent with this conclusion.
Attorneys who believe the trial court is erroneously compelling them to
represent more than one child may, like the attorney in Carroll, supra, 101
Cal.App.4th 1423, seek writ relief in the Court of Appeal rather than await any
appellate remedy. But attorneys should do so only if they believe it is in their
clients’ best interest. Sometimes the additional delay that seeking writ relief might
cause could harm the children. An attorney for a child is “charged in general with
the representation of the child’s interests” (§ 317, subd. (e)) rather than always
seeking a result that counsel thinks is legally correct regardless of whether that
result is in the child’s best interest.
As did the Court of Appeal, we find harmless any error in not relieving
counsel. The parents did not oppose the proposed adoption by the father’s brother.
If the court had relieved counsel for the children because an actual conflict had
arisen, it would not necessarily have had to appoint new counsel for Celine and
Angel. The court need not appoint counsel—or in this situation replacement
counsel—if it finds the appointment would not benefit the child and states on the
record its reasons for this finding. (§ 317, subd. (c).) At this late stage of the
proceedings, after everything that had already been done, the court might have
found that appointing new counsel, and continuing the permanency planning
17

hearing yet again, would, by delaying the adoption, have been detrimental rather
than beneficial to Celine and Angel. (See In re Jesse C. (1999) 71 Cal.App.4th
1481 [court may relieve counsel from further representation when such
representation would no longer benefit the child].)3 If it had made this finding,
and stated its reasons on the record, the court could have relieved counsel and
simply ordered the adoption and termination of parental rights without appointing
new counsel for Celine and Angel. Doing so would not have affected the
outcome.
Even if Celine and Angel had had separate counsel, that counsel would
either have argued in favor of the adoption, which obviously would not have
affected the outcome, or against it, as counsel here did in effect. We find it very
unlikely that separate counsel would have convinced the court to make a different
ruling when joint counsel failed. This is especially true given our conclusion that
the sibling relationship exception permits the court to consider only possible
detriment to Celine and Angel. Reflecting the Legislature’s preference for
adoption when possible, 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.” (In re Daniel
H., supra, 99 Cal.App.4th at p. 813, quoting § 366.26, subd. (c)(1).) Indeed, even

3
When In re Jesse C., supra, 71 Cal.App.4th 1481, was decided, section
317, subdivision (c), required the appointment of counsel when “it appears to the
court that the minor would benefit from the appointment of counsel.” (See In re
Jesse C.
, supra, at p. 1486.) Today, the court must appoint counsel unless it finds
the child would not benefit from such appointment and states its reasons for the
finding. Thus, it is now presumed the child will benefit from having counsel.
Courts should be very cautious in finding that counsel would not benefit the child.
18



if adoption would interfere with a strong sibling relationship, the court must
nevertheless weigh the benefit to the child of continuing the sibling relationship
against the benefit the child would receive by gaining a permanent home through
adoption. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952-953.)
The record discloses virtually no basis for the court to suspect the younger
children felt such a bond with their older half sibling that they should not be
adopted. Celine and Angel had lived with Crystal only a very short time when
they were very young. When the children were placed in separate homes in
September 2000, Celine was three years old and Angel less than two years old.
They had been living separately from Crystal for a year and a half as of the
February 2002 hearing. Given their age when separated from Crystal and the
length of time they had already lived separately from her, the conclusion was
virtually compelled that they had not been “raised with [Crystal] in the same
home” and had not “shared significant common experiences or [had] existing
close and strong bonds with [her]” (§ 366.26, subd. (c)(1)(E)), or at least that such
bonds should not prevent them from gaining a permanent home through adoption.
Even counsel for the children did not suggest adoption would be detrimental to
Celine and Angel. Her concerns regarded Crystal. Moreover, it was undisputed at
the hearing that even if Celine and Angel were not adopted, there were no
prospects of their living with Crystal. Under the circumstances, the trial court
reasonably discounted the importance of the sibling relationship to Celine and
Angel, even if it was important to the older child, and, as does the Legislature
generally, it valued more their “ability to belong to a family.” (See In re L.Y.L.,
supra, 101 Cal.App.4th at p. 953.) We find no reasonable probability the court
would have chosen a different permanent plan for Celine and Angel even if it had
relieved counsel from representing all three children.
19

III. CONCLUSION
The judgment of the Court of Appeal is affirmed.
CHIN,
J.
WE CONCUR:

GEORGE, C.J.
BAXTER, J.
WERDEGAR, J.
BROWN, J.

20





CONCURRING OPINION BY MORENO, J.

I agree with the reasoning and results of the majority opinion. The majority
holds that appointment of separate counsel for siblings is required only when there
is “a reasonable likelihood an actual conflict will arise” in the multiple
representation. (Maj. opn., ante, at p. 14.) The majority concludes that no such
reasonable likelihood existed at the time counsel was appointed in the present
case. The majority further holds that after initial appointment, counsel should only
be relieved of multiple representation if an actual conflict arises. The majority
declines to decide whether such actual conflict arose in this case, concluding that
even if the trial court erred, its error was harmless.
In my view, the trial court did err in failing at the February 25, 2002
hearing to relieve the children’s counsel from her representation of all the siblings.
As counsel recognized, there appeared to be a conflict between representing the
interests of the older sibling, who had an emotional stake in preserving the sibling
relationship and for whom there was no adoption plan, and the younger children,
who were infants when they last had contact with the older sibling and for whom
adoption was contemplated. (See Carroll v. Superior Court (2002) 101
Cal.App.4th 1423, 1430-1431.) I agree that the error was harmless for the reasons
articulated in the majority opinion.
Had this conflict been foreseen at the time of counsel’s appointment, then
there would have been grounds for initially appointing separate counsel. One of
1



the reasons why it was not foreseen is that the sibling exception to the adoption
statute, enacted in 2001 (Stats. 2001, ch. 747, § 3) and codified at Welfare and
Institutions Code section 366.26, subdivision (c)(1)(E), had not yet been
legislated. A case in which counsel is appointed under circumstances similar to
the present case, but after section 366.26, subdivision (c)(1)(E)’s enactment, may
present “a reasonable likelihood an actual conflict will arise” and require
appointment of separate counsel.
MORENO, J.
I CONCUR:
KENNARD, J.
2

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Celine R.
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 102 Cal.App.4th 717
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S111138
Date Filed: July 7, 2003
__________________________________________________________________________________

Court:

Superior
County: Kern
Judge: Michael G. Bush

__________________________________________________________________________________

Attorneys for Appellant:

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

__________________________________________________________________________________

Attorneys for Respondent:

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.


1



Counsel who argued in Supreme Court (not intended for publication with opinion):

John L. Dodd
17621 Irvine Boulevard, Suite 200
Tustin, CA 92780
(714) 731-5572

Susan M. Gill
Deputy County Counsel
1115 Truxtun Avenue, Fourth Floor
Bakersfield, CA 93301
(661) 868-3874

William Wesley Patton
Whittier Law School Legal Policy Clinic
3333 Harbor Boulevard
Costa Mesa, CA 92323
(714) 444-4141 ext. 229

2


Opinion Information
Date:Docket Number:
Mon, 07/07/2003S111138

Parties
1M., C. (Appellant)
Represented by John L. Dodd
Attorney At Law
17621 Irvine Blvd., Suite 200
Tustin, CA

2M., C. (Appellant)
Represented by Central California Appellate Program
2407 "J" Street, Suite 301
2407 "J" Street, Suite 301
Sacramento, CA

3Kern County Department Of Human Services (Plaintiff and Respondent)
Represented by Susan M. Gill
Office of Kern County Counsel
1115 Truxtun Avenue, Fourth Floor
Bakersfield, CA

4R., C. (Overview party)
Represented by John L. Dodd
Attorney At Law
17621 Irvine Blvd., Suite 200
Tustin, CA

5R., A. (Appellant)
Represented by John L. Dodd
Attorney At Law
17621 Irvine Blvd., Suite 200
Tustin, CA

6R., C. (Appellant)
Represented by John L. Dodd
Attorney At Law
17621 Irvine Boulevard, #200
Tustin, CA

7California State Association Of Counties (Amicus curiae)
Represented by Gary C. Seiser
County Counsel/Juv Dep Div
4955 Mercury St
San Diego, CA

8Whittier Law School Legal Policy Clinic (Amicus curiae)
Represented by William Wesley Patton
Whittier Law School
3333 Harbor Blvd
Costa Mesa, CA


Disposition
Jul 7 2003Opinion: Affirmed

Dockets
Nov 4 2002Petition for review filed
  by counsel for appellants/minors Crystal M., Celine R. & Angel R.
Nov 4 2002Record requested
 
Nov 6 2002Received Court of Appeal record
  one doghouse
Dec 18 2002Petition for Review Granted (civil case)
  Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Jan 22 2003Counsel appointment order filed
  John L. Dodd to represent aplts. Opening brief on the merits is due w/in 30 days.
Feb 3 2003Order filed
  The order filed 1-22-03 appointing John L. Dodd as counsel is hereby amended to read "Upon request of aplts' Crystal M., Celine R. and Angel R. for appointment of counsel, John L. Dodd is hereby appointed to represent aplts. on their appeal now pending in this court. Aplts' brief on the merits shall be served & filed on or before 30 days from the date of this order." (30 days from Jan. 22, 2003)
Feb 20 2003Request for extension of time filed
  for aplts to file the opening brief on the merits, to 3-23-03.
Feb 26 2003Extension of time granted
  to 3-7-03 (only) for aplts to file the opening brief on the merits. Absent an exceptional showing of good cause, the court will not grant another extension of time. [CRC 39.1A(i)]
Mar 10 2003Opening brief on the merits filed
  by counsel for aplts (timely per CRC 40k)
Mar 20 2003Request for extension of time filed
  by resp to file the answer brief on the merits, to 4/16.
Mar 26 2003Extension of time granted
  to 4-16-03 for resp to file the answer brief on the merits. No further extensions of time will be granted.
Apr 16 2003Answer brief on the merits filed
  by resp
Apr 16 2003Request for judicial notice filed (in non-AA proceeding)
  by resp
Apr 21 2003Received application to file amicus curiae brief; with brief
  by California State Association of Counties with application to file oversize brief. Also one volume of exhibits with request for judicial notice..
Apr 28 2003Permission to file amicus curiae brief granted
  by California State Association of Counties in support of resp. Answers may be filed w/in 20 days.
Apr 28 2003Amicus Curiae Brief filed by:
  Calif. State Association of Counties in support of resp. With one volume of exhibits.
Apr 30 2003Case ordered on calendar
  5-27-03, 1:30pm, S.F.
May 1 2003Received application to file amicus curiae brief; with brief
  by Whittier Law School Legal Policy Clinic.
May 5 2003Reply brief filed (case fully briefed)
  by aplts
May 5 2003Permission to file amicus curiae brief granted
  by Whittier Law School Legal Policy Clinic. Answers may be filed with in 20 days.
May 5 2003Amicus Curiae Brief filed by:
  Whittier Law School Legal Policy Clinic.
May 8 2003Filed:
  Aplts' request to allocate oral argument time to A/C Wm. Patton for Whittier Law School
May 14 2003Order filed
  The request of counsel for aplts to allow two counsel to argue on behalf of aplts is granted.
May 14 2003Order filed
  The request of aplts to allocate to amicus curiae Whittier Law School Legal Policy Clinic 10 min. of aplts' 30-minute time is granted.
May 19 2003Request for judicial notice granted
  Resp's request for judicial notice, filed on 4-16-03, and amicus curiae California State Association of Counties' request for judicial notice, filed on April 23, 2003, are granted.
May 19 2003Response to amicus curiae brief filed
  by resp to A/C brief of Calif. State Assn. of Counties.
May 20 2003Request for judicial notice filed (in non-AA proceeding)
  Supplemental request of aplts.
May 20 2003Response to amicus curiae brief filed
  by aplts to A/C brief of Calif. State Assn. of Counties (timely per CRC 40k)
May 21 2003Response to amicus curiae brief filed
  by resp to the A/C brief of Whittier Law School
May 22 2003Request for judicial notice granted
  The "Supplemental Request for Judicial Notice," filed May 20, 2003, is granted.
May 27 2003Cause argued and submitted
 
Jun 3 2003Letter brief filed
  by counsel for respondent (Kern Co. Dept. of Human Svcs.)
Jul 7 2003Opinion filed: Judgment affirmed in full
  Majority opinion by Chin, J. -------------joined by George, C.J., Baxter, Werdegar, Brown, JJ. Concurring opinion by Moreno, J.---joined by Kennard, J.
Aug 12 2003Remittitur issued (civil case)
 
Aug 20 2003Compensation awarded counsel
  Atty Dodd

Briefs
Mar 10 2003Opening brief on the merits filed
 
Apr 16 2003Answer brief on the merits filed
 
Apr 28 2003Amicus Curiae Brief filed by:
 
May 5 2003Reply brief filed (case fully briefed)
 
May 5 2003Amicus Curiae Brief filed by:
 
May 19 2003Response to amicus curiae brief filed
 
May 20 2003Response to amicus curiae brief filed
 
May 21 2003Response to amicus curiae brief filed
 
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