In re Joshua O.

In re Joshua O.

Filed 8/20/08 In re Joshua O. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re JOSHUA O., a Person Coming Under the Juvenile Court Law.	B202837
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. EDWARD F., Defendant and Appellant.	(Los Angeles County Super. Ct. No. CK52903)

APPEAL from an order of the Juvenile Division of the Los Angeles Superior Court, Valerie Skeba, Referee. Affirmed.

Joseph D. Mackenzie, under appointment by the Court of Appeal, for Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Respondent.

A father appeals from the order terminating his parental rights with respect to his son, under Welfare and Institutions Code section 366.26.^[1] He insists he received ineffective assistance of counsel at the section 366.26 hearing, and was denied his due process right to notice of and the opportunity to attend the hearing. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Joshua O. (born in September 2004), is the subject of this appeal. He is the youngest of Sheila O.s (mother) four children.^[2] Prior to his birth, Joshuas three minor half-siblings (none of whom is involved in this appeal), were declared dependents of the juvenile court in March 2004, and placed in foster care, based on mothers substance abuse, and the filthy, unsanitary and unhealthful condition of the familys home.

Mother concealed her pregnancy with Joshua from respondent Department of Children and Family Services (DCFS), for fear DCFS would detain her newborn. In January 2005, mothers fear was realized after a Sheriffs department detective informed DCFS he found the infant in a hotel room, being babysat by a known drug abuser who was extremely intoxicated, in a room filled with marijuana smoke. DCFS filed a petition ( 300, subds. (b), (j)), and Joshua was detained and placed in a foster home, where he remains.

The petition alleged Joshuas health and safety were endangered and he was at risk of physical and emotional harm because: (1) of mothers history of and current substance abuse; (2) mother and two of her children were caught shoplifting during one of mothers visits with the children, and Joshua and another half-sibling were also present at the time (during which mother was under the influence of drugs); (3) mother left Joshua in the care of a known drug user; and (4) Joshuas half-siblings were already dependents of the juvenile court. The detention report filed concurrently with the petition indicated Joshuas biological father was appellant Edward F. (Edward), whom mother informed the court was then-incarcerated in the Los Angeles County jail. Attorney Morgan Spector was appointed to represent Edward. Edward was not present, and the court reserved paternity findings pending the next hearing, for which DCFS was ordered to prepare a county jail removal order.

On February 1, 2005, DCFS reported it had located Edward at Mens Central Jail. He had lived with mother until he was arrested and incarcerated in October 2004 for a parole violation. He was transported to court and represented by Spector at the arraignment hearing on February 1, 2005. The court found Edward to be Joshuas presumed father, and awarded him monitored visitation.

A pre-trial resolution conference was conducted on February 9, 2005. Edward and mother submitted to the courts jurisdiction. The petition was sustained, as amended, and Joshua was declared a dependent of the juvenile court. ( 300, subds. (b)(4), (b)(5), (j)(1).) The court found Edward to be a non-offending parent, and ordered DCFS to provide him unspecified reunification services while incarcerated. Edward was also advised the court intended to make orders, and that his failure to comply with the case plan could result in Joshua being placed in a long-term foster placement, legal guardianship, or termination of Edwards parental rights and adoption. Edward was advised to keep the court apprised of his current address, and informed him that his failure to do so could result in the court making case-related orders in his absence.

A progress hearing was conducted March 29, 2005. DCFS reported Edward had contacted the childrens social worker (CSW) from jail. He informed her he had been convicted of felony possession of an illegal substance, incarcerated for two years and then re-arrested in October 2004 for violating the terms of his parole. Edward told the CSW he had completed a drug counseling program while incarcerated, but had not participated in any domestic violence counseling or parenting courses. DCFS reported Joshua was adjusting well to life with his foster parents, who had a strong interest in adopting him if family reunification proved unsuccessful.

In April 2005, DCFS received documents from Edward indicating he had completed 51 hours of stress management in March 2005, 10 weeks of anger management in June 2004 and a drug education course in September 2004. Edward informed DCFS he would be released from jail on May 5, 2005, planned to live with his grandmother after his release and was anxious to care for his son.

At a hearing on May 25, 2005, the court was informed Edward had been released from jail and had enrolled in a residential drug-treatment program at the Tarzana Treatment Center (treatment center). The court was provided Edwards new address at the treatment center, and was informed Edward qualified for a program that would allow him to have Joshua placed in his care at the treatment center. The court ordered DCFS to provide drug testing referrals to Edward who was ordered to undergo random drug testing, and given weekly monitored visits with Joshua at the treatment center. DCFS was given discretion to liberalize the visitation schedule, and to place Joshua in Edwards care at the treatment center.

The next progress hearing was conducted August 4, 2005. In its report for that hearing, DCFS reported Edward had left the treatment center program on June 12 against his counselors advice. Edward was cursing and very agitated when he left. On June 13 Edward was arrested for felony possession of a controlled substance. Edward met with the CSW in mid-July. Edward told the CSW I want my son, hes mine. The CSW asked Edward for an address so she could provide him drug testing referrals. He said he was moving, would get back to her with an address, and promised to submit to a criminal background check and to participate in drug testing. Edward had not contacted the CSW by the time of her report, and had not arranged visits with Joshua.

DCFS informed the court Edward had two visits with Joshua at the treatment center in June 2005. The visits had not gone well. During one visit, Edward grabbed Joshua from his foster parents arms at the outset of the visit, saying the boy needs to like his father. Joshua became frightened, and began to scream and arch his back. Agitated with the childs behavior, Edward held his arms and legs down, and paced back and forth with Joshua for 30 minutes until the infant cried himself to sleep. During both visits Edward repeatedly called Joshua a sissy or mamas boy when he cried. Edward refused to accept any advice as to how to console Joshua, and told the social worker Joshua was his son and he needs to love me, not those foster people. The foster parents reported that, by the end of both visits Joshua was exhausted and wanted only to be consoled by them. DCFS recommended the court continue Edwards reunification services, and order him to enroll in parenting education, anger management and substance abuse programs, and submit to random testing.

Edward and Attorney Spector attended the August 4 hearing. The court informed Edward that, because Joshua was less than three-years-old, reunification services could be terminated, and Joshuas case could soon be moved toward permanent planning if he failed to comply with the case plan. The court told Edward he needed to have [his] act together, and that it would behoove him to immediately enroll in a drug treatment program and parenting education, and comply with the other court orders. Edward said he had re-enrolled in the sober living program at the treatment center, but did not have an exact address. The six-month review hearing ( 366.21, subd. (e)) was scheduled for August 10, and Edward was told the court would determine then whether to continue his reunification services.

In its report for the August 10 review hearing, DCFS reported that a police report had been filed regarding threats Edward made to a maternal cousin regarding the foster mother, including such things as he planned to kill her, mess her up and bash her head in and take his son at the next hearing, and would work her over so bad she[d] wish she was dead. DCFS also reported a CSW had given Edward referrals for parenting classes on August 5. Edward had not requested a visit with his son for several weeks. The treatment center told DCFS Edward had been in and out of its program several times, but was not currently enrolled. A member of the treatment center staff told DCFS Edward had a problem with women and his anger.

DCFS sent notice of the August 10, 2005, hearing and a copy of DCFS report to Edwards attorney, and to Edward at his last known address at the treatment center. DCFS recommended the court continue reunification services, and order Edward to enroll in parenting, anger management and substance abuse programs. DCFS also requested the court issue a restraining order to keep Edward away from Joshuas foster parents.

Edward and his attorney attended the August 10 hearing. The court found Edward was not in compliance with the case plan. Nevertheless, reunification services were continued, as was Edwards right to monitored visitation, so long as he behaved appropriately. The court noted DCFS had graciously permitted Edward an additional six-months worth of reunification services, even though he had not begun compliance with the case plan. Edward was warned this would be his last six-month opportunity in which to comply with the courts orders in regards to random testing, [and] parenting education, and that if he did not reunify with his son by the end of that period, the court would terminate reunification services and move the case toward permanence. A temporary restraining order was issued and served on Edward.

In a report for an August 25, 2005 hearing on the restraining order, DCFS reported it had not been contacted by Edward. His last known address was at the treatment center. The treatment center informed DCFS Edward re-enrolled in its outpatient program in mid-August. Since that time, he had been minimally compliant, having attended eight group and three individual counseling sessions, and submitting to three urine screenings. It was estimated Edward could complete the program by 11 months. DCFS recommended the court continue Edwards reunification services, including monitored visitation, and programs for parenting, anger management and substance abuse, and random testing.

DCFS also submitted a letter from a maternal cousin (who was unable to appear at the hearing) regarding Edwards threats to kill Joshuas foster mother. The cousin was sure Edward would kill the foster mother, if given the opportunity. The hearing was continued to September 2, 2005, at which Edward agreed to have a permanent restraining order issued against him.

A 12-month review hearing ( 366.21, subd. (f)), was conducted February 8, 2006. DCFS reported Edward had not visited Joshua, had not yet live-scanned and that his whereabouts were unknown until January 26, 2006, when his parole officer told DCFS Edward had been arrested for possession of a controlled substance, and was at Mens Central Jail. DCFS contacted the jail, but was told Edward was not in custody there. Attorney Spector informed the court Edward was arrested for violating his parole for failing to continue his drug rehabilitation program at the treatment center, where he continued to reside. DCFS also reported Joshua was thriving in the care of his foster parents. The prognosis for returning Joshua to the care of Edward - who had not complied with the courts orders or case plan - was poor. The hearing was continued due to DCFS failure to effect proper service of its report. The court reminded both of Joshuas parents that the case had been pending a year, and that their compliance [with the case plan] at this late stage may not be enough.^[3]

The review hearing reconvened May 9, 2006. An attorney for one of Joshuas siblings made a special appearance on Spectors behalf, and told the court Edward had been incarcerated again. DCFS was ordered to prepare a removal order so Edward could be transported to the next hearing.

In its June 20, 2006 report, DCFS recommended the court terminate Edwards reunification services, and set the case for a selection and implementation hearing ( 366.26), and termination of parental rights. Notice of the June 20 hearing and a copy of the report were mailed to Edward at Mens Central Jail, and at a North Hollywood address. Edward was present in lock up for the June 20, 2006, hearing but, after consulting with him, his attorney waived his appearance.^[4] Spector informed the court Edward lacked a legal basis to oppose DCFS recommendation to terminate reunification services. Mother requested the court set a contested section 366.21, subdivision (f) review hearing, which was set for September 12, 2006. Edward did not join the request for a contested hearing.

Reports submitted before and at the September 12 hearing indicated that Joshua, now 21 months old, was developmentally on track and had adjusted well during the 18 months he had lived with his foster parents. He was thriving in the care of the only parents he had ever known. The foster parents told DCFS they could not imagine life without Joshua, and wanted to adopt him.

Edward was not present at the September 12, 2006 hearing. For reasons not specified in the record, the court relieved Spector and appointed attorney Cassandra Williams to represent Edward. The court noted that, since the next hearing was an additional review hearing, no additional notice to Edward would be required, although DCFS could provide him courtesy notice. Counsel for the foster (now de facto) parents informed the court Edward was in state prison in Lancaster, and the court ordered DCFS to prepare a statewide removal order to ensure his appearance at the next hearing.

Edward was not transported to court for the next hearing. His attorney requested a continuance, which was granted. DCFS was ordered to provide Edwards attorney with any contact information it had regarding Edward. The court noted the steps taken by Joshuas parents to mitigate or alleviate the causes that had led to dependency court intervention in their sons life had been non-existent to minimum. The parents were advised the court might terminate parental rights at the next hearing. The court signed a statewide removal order for Edward, and continued the hearing to December 1, 2006.

Edward was not present for the December 1, 2006 hearing, and the court found DCFS had been unable to locate him because he had recently been transferred from one prison facility to another. The court noted DCFS need not provide further notice, and the matter was continued to February 2, 2007.

Edward was present with his attorney at the February 2, 2007 hearing. The court found proper notice had previously been given. Counsel for Edward informed the court she had explained his rights to her client, who wanted Joshua returned to his care. However, Edward remained incarcerated and was not expected to be released until late November 2007. She also informed the court Edward had participated in Narcotics Anonymous classes in prison, between December 2006 and January 23, 2007, and had attended anger management and parenting classes.^[5]Edwards current address was provided to the court. The court noted this was an extraordinary case, in that Joshuas parents had received reunification services long past the legally permissible 18 month period after which the services should have been terminated. It also noted that, due in large measure to their repeated incarcerations, neither parent had made more than minimal progress, at best, to form a bond or visit with Joshua, or to mitigate the causes that necessitated dependency court intervention. Reunification services and parental visitation rights were terminated, and the matter was set for a section 366.26 hearing on June 4, 2007, to determine Joshuas permanent plan. The parties were ordered to return for that hearing without further notification and told, if they failed to do so, the court would proceed in their absence to terminate parental rights.^[6]

A CSW personally served Edward at the February 2, 2007 hearing with notice of the June 2007 hearing. She also prepared a statewide removal order for him for the June 2007 hearing.

In its report for the June 4, 2007, hearing, DCFS noted Edward remained incarcerated and had had no contact with Joshua, apart from two visits the year before which did not go well. Joshua was too young to remember either of his biological parents. DCFS recommended the court terminate parental rights.

At the June 2007 hearing, Williams was relieved and attorney Victoria Doherty was appointed to represent Edward, who was not present. The report submitted by DCFS for the hearing indicated the likelihood Joshua would be adopted by his foster parents, with whom he shared a strong emotional bond, was very high. He viewed the foster parents as his mommy and daddy, and the foster parents considered him their son. Meanwhile, both of Joshuas biological parents remained incarcerated and unable to care for the toddler, who was too young to recall, and shared no relationship with, either of them. The foster parents were eager to proceed with adoption, and their home study had been approved. DCFS recommended the court terminate parental rights, freeing Joshua for adoption. The court found proper notice had been given, but continued the matter to August 1, 2007, so Edward could be transported to the hearing. DCFS was ordered to prepare a statewide removal order.

On August 1, 2007, DCFS reported it had submitted a statewide removal order for Edward on June 13, 2007, and that an earlier removal order prepared for the June 2007 hearing had been returned to the court on June 4, 2007, indicating Edwards appearance was refused.^[7]

At the outset of the hearing on August 1, 2007, Doherty was relieved and a fourth attorney, Ali Atoori, was appointed to represent Edward, who was not present. DCFS raised the question of whether there were any issues with regard to the propriety of notice provided to Edward for the hearing; the court indicated he had waived. The court found proper notice had been given. Atoori noted she had not had an opportunity to communicate with Edward. She did not object to the notice provided Edward, or any evidence introduced by DCFS, and did not call or examine any witnesses.^[8] Atoori reminded the court Edward had completed drug education, and anger and stress management courses in 2004 and 2005, and noted he objected to termination of his parental rights and Joshuas adoption because he wanted a relationship with his son. At the conclusion of the hearing, the court found, by clear and convincing evidence that Joshua was likely to be adopted, and terminated parental rights. Edward appeals.

DISCUSSION^[9]

1. Edward did not receive ineffective assistance of counsel.

Edward contends he did not receive competent appointed counsel at the section 366.26 hearing and that, if he had, it is reasonably certain he would have prevailed and avoided termination of his parental rights. We conclude otherwise.

A parent represented in a dependency proceeding is entitled to competent counsel. ( 317.51.) In general, a claim of ineffective assistance of counsel is cognizable on a petition for writ of habeas corpus. (In re Darlice C. (2003) 105 Cal.App.4th 459, 463.) Because evidence of the actions or inaction of counsel on which such claims are premised is not normally reflected in the record, raising such claims on appeal virtually ensures there will be insufficient information in the record. (In re Paul W. (2007) 151 Cal.App.4th 37, 45, 53; In re Daisy D. (2006) 144 Cal.App.4th 287, 292-295.) However, a claim of ineffective assistance of counsel may be reviewed on direct appeal if there is no satisfactory explanation for trial counsels actions or failure to act (In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1), or, as here, on appeal from an order terminating parental rights, where the claimed ineffective representation occurred at the hearing at which parental rights were terminated. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1256-1258.)

To establish ineffective assistance of counsel, a parent must demonstrate both that counsels representation fell below an objective standard of reasonableness, and resulting prejudice. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) The question of a violation of the right to effective representation is reviewed under the harmless error test. (Id. at p. 1668.) It is up to the parent to demonstrate it is reasonably probable that a result more favorable to [him] would have been reached in the absence of the error. [Citation.] (Id. at p. 1668.) The court need not evaluate whether counsels performance was deficient before examining the issue of prejudice. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) A claim of ineffective assistance of counsel fails if the parent cannot show the result would have been more favorable but for his trial counsels failings. (Ibid.) In this case there is no evidence Edward suffered prejudice as a result of any allegedly ineffective assistance of counsel.

There is evidence Joshua shared some part of the first three months of his life with his biological parents before he was detained in January 2005. However, for most of his young sons life, Edward has been incarcerated. Even when he was not in prison, he had very limited and monitored visitation with his son while participating in a residential drug treatment program, and the quality of Edwards visitation with Joshua was quite poor. Edward has exhibited no understanding of and no desire or willingness to try to understand his sons fear or anxiety during visits. Instead, he physically forced him to remain in his arms to literally cry himself into an exhausted sleep. Moreover, Edward never complied with any court order that he submit to random drug tests, or participate in parenting education. He failed to complete a court-ordered drug rehabilitation program, never maintained consistent visitation or established any relationship - let alone a beneficial one - with Joshua, and had such difficulty controlling his anger he threatened to kill Joshuas foster mother, forcing the juvenile court to issue a restraining order against him. In the meantime, Joshua (who was almost three-years-old by the time the selection and implementation hearing was held), is thriving in the loving, attentive care of the only parents he has ever known, who remain unfailingly committed to adopting him. Under these circumstances, we can conceive of nothing Edwards attorneys might have done differently (or at all) at the hearing to avoid termination of Edwards parental rights. Accordingly, even if it could be said that Edwards representation fell below an objective standard of reasonableness, he has not shown it is reasonably probable that a result more favorable to [him] would have been reached in the absence of the error. [Citation.] (In re Kristin H., supra, 46 Cal.App.4th at p. 1668.)

2. Edward was not denied due process.

Edward contends reversal of the order terminating parental rights is required because he was denied his right to proper notice of, transportation to and attendance at the section 366.26 hearing. He is mistaken.

An incarcerated parent, who wishes to do so, has a right to attend a section 366.26 hearing, at which his parental rights may be terminated. Penal Code section 2625 provides that no section 366.26 proceeding may be conducted without the physical presence of the prisoner or his attorney, unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner or an affidavit signed by the . . . person in charge of the institution, . . . stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding. (Pen. Code,  2625, subds. (b), (d); cf. In re Julian L. (1998) 67 Cal.App.4th 204, 208.) When a prisoner is involuntarily absent from a dependency hearing, the resulting order is reviewed for harmless error. (In re Jesusa V. (2004) 32 Cal.4th 588, 625; In re Kobe A. (2007) 146 Cal.App.4th 1113, 1122-1123 [although notice of dependency proceedings resulting in termination of parental rights of incarcerated father failed to meet statutory requirements, deficiencies constituted harmless error].) On this record, we find the statute was indeed violated, but the error was harmless.

On June 4, 2007, DCFS was ordered to prepare a statewide removal order for Edward for the August 1, 2007 section 366.26 hearing. The record does not contain a copy of a removal order issued for that hearing.^[10] Rather, the removal order in the record was for the June 4, 2007 hearing, and it contains only an illegible signature of an unknown person indicating that Edwards appearance was refused for that earlier hearing. This is not the knowing waiver or affidavit, signed by an identifiable person, which reflects a prisoner parents express statement or action, . . . [of] an intent not to appear at the proceedings. (Pen. Code, 2625, subds. (b), (d).) The court erred in concluding Edward was given sufficient notice.

Nevertheless, on this record, we conclude the error was harmless. As discussed above, there is nothing in the record and no argument advanced or evidence proferred by Edward to raise even the possibility that the outcome of the section 366.26 hearing would have been different had Edward been there to testify or cross-examine mother, the only witness who testified.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BIGELOW, J.

We concur:

RUBIN, Acting P.J. FLIER, J.

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^[1] All further undesignated statutory references are to this code.

^[2] Mother is not a party to this appeal.

^[3] On August 29, 2005, Mother had been sentenced to six years in prison for soliciting the murder of the detective who had found Joshua at the hotel.

^[4] DCFS counsel noted Edward had not provided a current address and said it would have trouble tracking him down before the next hearing. Spector pointed out that Edward was not difficult to find as he was in Mens Central Jail, where DCFS had personally served him with notice of that days hearing.

^[5] Apart from the attorneys representation, the record does not indicate Edward participated in NA or parenting programs. There is evidence he participated in anger management and drug education programs before Joshua was born, and a stress management program in March 2005.

^[6] The parents also received written notice of the June 4, 2007, section 366.26 hearing.

^[7] The waiver, dated June 1, 2007, was returned with the word refused written on it, and an illegible signature. DCFS attempted to contact a prison supervisor and a legislative liaison in mid-July, but did not receive a return call.

^[8]Atoori did raise a question as an apparent discrepancy between a document submitted for the hearing (but which is not included in the appellate record) - signed by Edward W. - and other documents signed by Edward G.F. DCFS indicated there was no confusion, and reminded the court that, on February 2, 2007, it was established that Edwards full name is Edward G.W.F. The court was satisfied proper notice had been given.

^[9] We reject DCFS contention that we lack jurisdiction to consider this appeal, which it contends is untimely. The appeal is taken from an order of a juvenile court referee. In cases, such as this, in which the parties have not stipulated to have the referee act as a temporary judge, such an order becomes final 10 calendar days after service of a copy of the order . . . , unless an application for rehearing is made or the court has ordered rehearing on its own motion. (Cal. Rules of Court, rule 5.540(c).) As provided by the California Rules of Court, and specifically stated on Judicial Council form JV-800, an appeal from an order or judgment in matters heard by a referee, must be filed within 60 days after the referees order becomes final. (See Cal. Rules of Court, rule 8.400(d)(2).) The referees order terminating parental rights, served on August 2, 2007, became final on August 12, 2007. The appeal, initiated 55 days later, was timely.

^[10] It is true Edwards attorney appeared at the section 366.26 hearing. Arguably, in another case, the mere physical presence of the . . . prisoners attorney, might be deemed adequate to permit the juvenile court to proceed with the selection and implementation hearing. (Pen. Code, 2625, subd. (d).) Not so here. In this case, we would not find the attorneys physical presence, in and of itself, adequate, in light of the fact that she was only appointed on the day of the section 366.26 hearing, had no familiarity with the case, and had never had an opportunity to contact - let alone, consult with - her client.