In re J.C.
Filed 4/12/13 In re J.C. CA4/2
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opinion has not been certified for publication or ordered published for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.
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
In re J.C. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,
Plaintiff and
Respondent,
v.
S.C. et al.,
Defendant and
Appellant.
E056837
(Super.Ct.No.
J226748 & J226749)
OPINION
APPEAL from the Superior Court of
Bernardino County.
Cheryl C. Kersey, Judge.
Affirmed.
Maryann M. Milcetic, under appointment by the Court of
Appeal, for Defendant and Appellant S.C.
Liana Serobian, under appointment by the Court of Appeal,
for Defendant and Appellant J.C.
Jean-Rene
Basle, County Counsel,
and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Mother appeals from an order
terminating parental rights to her two sons, G.C. (born in 2006) and J.C.
rejecting the beneficial parent relationship exception to adoption under
Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i).
violated her substantive due process
rights and right to equal protection
by refusing to allow her sons to visit her while locally incarcerated. Mother further contends she was deprived of
competent representation because her trial attorney did not request in-custody
visitation or object to the custody orders.
father joins in and adopts mother’s contentions on appeal to the extent
mother’s arguments benefit his interests.
We reject mother’s contentions and father’s joinder, and affirm the
judgment.
II
FACTS AND PROCEDURAL
BACKGROUND
On April 13, 2009, San
Bernardino County Children and Family Services (CFS) took G.C. and J.C.
(the boys) into protective custody,
after mother and father (parents) were arrested and incarcerated for grand
theft of $800 worth of alcohol from a grocery store. At the time, parents were using methadone for
their heroin addiction and father was on parole. The boys were left in the care of their
maternal grandmother (MGM), who lived with parents and the boys. According to MGM, parents stole from the
grocery store because the family needed diapers and wipes for the boys and
welfare aid had been recently terminated because parents failed to complete and
return paperwork.
The family had a history of
child welfare referrals, including in 2006, when G.C. tested positive for
opiates, in 2007, when G.C. was left unattended with easy access to MGM’s
medications and the home was filthy, and in 2008, when G.C. was left unattended
and wandered out of the yard. These
referrals were closed as inconclusive or unfounded. There were two other open referrals alleging
parents abused drugs and had neglected the boys.
On April 15, 2009, CFS filed
juvenile dependency petitions under
section 300, subdivisions (b) and (g).
G.C. was two years old and J.C. was 11 months old. The petitions alleged that mother and father
left the boys in the care of MGM, who was known to have been incapable of
caring for the boys due to her own physical and mental conditions. In addition, the family home was filthy, with
the furniture, counters, and floors covered with trash, food, dirty clothing,
papers, toys, and animal feces. The boys
were extremely dirty and unkempt. Also,
parents had a substance abuse problem that interfered with their ability to
care for the boys. In addition, parents
were arrested and incarcerated on April 13, 2009, and mother had a long history
of drug use and drug-related arrests.
She was enrolled in a methadone treatment program, was pregnant, and
tested positive for morphine and cocaine in February 2009. G.C. tested positive for opiates when he was
born in 2006.
In April 2009, the juvenile
court ordered the boys detained, with reunification services ordered provided
to parents and supervised weekly visits permitted upon their release from jail.
Jurisdiction/Disposition
Hearing
The
CFS social worker interviewed parents while in custody. Mother said she started using drugs,
including heroin, marijuana, methamphetamine and cocaine, three years earlier,
when she was 26 years old. Father was
responsible for introducing her to drugs.
Mother was not willing to give up on her marriage but was willing to do
whatever it took to reunite with the boys, including separating from father. Father had an extensive criminal history and
a long history of drug usage, beginning when he was 17 years old. Parents appeared committed to the boys and to
each other. G.C. had delays in
personal-social, fine motor-adaptive, and language skills. J.C.’s language and speech skills appeared
delayed. The boys were placed together
in a foster home and were adjusting well.
Mother was released from
jail and attended the jurisdiction/disposition hearing on June 24, 2009. The juvenile court found the juvenile
dependency petition allegations true and sustained the petition under section
300, subdivisions (b) and (g). The boys
were maintained in foster care. The
juvenile court authorized weekly supervised visits for the parents. Father remained incarcerated. Parents were ordered to comply with a service
plan, which required them to participate in counseling, complete parenting and
substance abuse programs, and participate in drug testing and a 12-step
program.
Six- and 12-Month Review
Hearings
CFS
reported at the six- and 12-month review hearings that mother had done very
well with services. She had completed
her service plan, including participating in and completing a substance abuse
program, graduating from Drug Court, testing negative for drugs, attending
Alcoholics Anonymous/Narcotics Anonymous meetings, completing a parenting
class, and participating in counseling.
She also consistently visited the boys each week. Visits were increased to twice a week. At the six-month hearing, the court authorized
return of the boys to mother and supervised visitation for father, upon his
release from custody. Mother secured
appropriate housing and in April 2010, the boys began overnight and weekend
visits with mother. The boys appeared to
be doing well in mother’s care and were happy.
Father was due to be released from state prison on June 30, 2010. Parents understood father was not to return
to the family home until he had completed an outpatient program.
At the 12-month hearing on
June 23, 2010, the juvenile court ordered the boys returned to mother, but not
father. Mother was ordered to
participate in family maintenance services.
The court ordered father to participate in reunification services and
authorized supervised weekly visitation upon his release from prison. The juvenile court instructed mother that
father was not to have any contact with the boys except through CFS and was not
to stay at or visit the family home.
18-Month Review Hearing and
Settlement Conference
CFS
recommended in its December 2010 status review report that the dependency
proceedings should be dismissed since parents were both compliant with their
case plans and court orders. The boys
were happy living with mother and visiting father. Parents were testing negative for drugs and
father was close to completing his outpatient substance abuse program. Parents wanted to remain married and live
together.
At the 18-month review
hearing on December 23, 2010, the matter was referred to mediation and set for
a pretrial settlement conference. At
mediation, the parties agreed father could return to the family home and the
juvenile dependency proceedings would be dismissed. The juvenile court, however, ordered that the
boys remain dependents of the court, remain in custody of mother, and return to
father’s custody. Both parents were
ordered to participate in the family maintenance case plan, which included
participation in counseling, drug testing, and a 12-step program.
Issuance of Warrants of
Protective Custody
On
June 28, 2011, a CFS social worker visited mother’s home and discovered the
family had moved out. The current tenant
informed the social worker that mother had shown her the apartment five weeks
earlier. The social worker notified the
police and Deputy District Attorney’s Child Abduction Unit in San Bernardino
that the boys were missing.
On July 1, 2011, the
juvenile court issued warrants of protective custody for the boys. According to the apartment manager, parents’
apartment was left a total disaster, with trash and food strewn throughout the
home. Parents left owing $1,500 in rent
and did not leave a forwarding address.
CFS located the family in Pottsville, Pennsylvania. Parents’ parole officers were notified
parents had left California without permission.
The Deputy District Attorney’s Child Abduction Unit filed a missing
persons police report and the deputy district attorney took legal action
against parents.
On July 14, 2011, parents
were arrested in Pennsylvania and the Pennsylvania Children and Youth Services
took the boys into protective custody and placed them in foster care. The boys were present when parents were
arrested and handcuffed. A social worker
in Pennsylvania reported that the family home was filthy, with trash
everywhere, and mother had admitted to using heroin, cocaine, and other
drugs. The boys had scabies. Through the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), Pennsylvania returned the boys to
California. The boys were placed in a
foster home in California.
Supplemental Petition
On July 21, 2011, CFS filed
petitions under sections 342 and 387, alleging that parents removed the boys
from their home and California without notifying CFS, and without the
permission of CFS or the court. Parents violated
their probation terms by leaving the state.
As a consequence, parents were incarcerated for kidnapping and child
abduction, and were unable to provide support for the boys. At the detention hearing the juvenile court
ordered the boys detained and denied reunification services.
Supplemental Jurisdiction
and Disposition Hearing
CFS
reported that, despite receiving two years of services, parents continued to
violate the law and abuse drugs. Parents
remained incarcerated in Pennsylvania.
Mother’s step-sister, Michelle, and her husband, Andrew, were interested
in placement. They lived in
Virginia. The juvenile court authorized
CFS to initiate an Interstate Compact on Placement of Children (ICPC). At the jurisdiction and disposition hearing
on September 8, 2011, the court found the supplemental petition allegations
true and ordered the boys again removed from parents. The court also set a section 366.26 hearing
(.26 hearing) and ordered visitation once a month, commencing upon parents’
release from custody. The court denied
mother’s request for weekly supervised visitation upon her release, because
there was already a preexisting order for monthly supervised visitation, which
the court wanted to leave in place. In
September or October 2011, mother was extradited back to California and placed
in local custody.
Section 366.26 Hearing
CPS reported in the .26
hearing report filed in December 2011, that the boys had speech delays but were
otherwise developing normally. Father
remained incarcerated in Pennsylvania.
While in custody, in August 2011, mother gave birth to another son,
Je.C. He was living with the child’s
paternal aunt, Donna M., in Pennsylvania.
Mother wanted G.C. and J.C. also placed with Donna. CFS did not approve placement with Donna
because she had frequently interacted with parents before they were
incarcerated. CFS was concerned Donna
would allow parents easy access to the boys.
CFS favored placement with Michelle and Andrew, whom ICPC had
approved. Twice a week the boys had
“Skype†communications with Michelle and Andrew. G.C. and J.C. had not seen parents since the
boys were removed in July 2011.
The boys underwent
psychological evaluations by Dr. Michelle Molina on November 16, 2011. G.C. was almost five years old and J.C. was
three and one-half years old. Molina
reported that the boys had been living in a foster home in California for the
past four months. During this placement,
G.C. had mentioned mother and asked about her whereabouts. G.C. was hyper vigilant of his foster
parents’ presence and voice tone because of the traumatic circumstances of his
removal from parents, when parents were handcuffed and arrested in the boys’
presence. G.C. was a gregarious,
cooperative child but also appeared sad and anxious. He frequently told Molina, “no feel good,â€
and had a history of verbalizing sadness over disconnection with mother. G.C. remained capable of bonding with
parental figures. Molina diagnosed G.C.
with adjustment disorder with mixed disturbance of emotions and conduct. He also suffered from an expressive language
disorder.
Molina recommended immediate
adoption and mental health services, along with speech therapy, for G.C. When exposed to unfamiliar people, G.C. was
hyper vigilant and experienced behavioral difficulties, including agitation and
sleep and appetite problems. These
behaviors likely would improve with consistent parenting, structure, stability
and professional services. Since living
in foster care, G.C. had made great progress in his development. He was more calm, emotionally stable, and
responsive to parental requests.
Molina reported that J.C.
was an adorable, cooperative child with anxious mood and flat affect. J.C. had been traumatized by parents’ arrest
in his presence and removal from parents’ custody. J.C. reportedly had been saying, “Daddy
bad. They took [G.C.] Daddy in trouble.†He had also asked his foster parents, “Why
can’t I go to my house?†When J.C.
arrived at his current foster home, he had speech, motor development, behavior
and emotional problems. J.C. had an
expressive language disorder and had developed a sense of fear and anxiety from
changes in his living situation and neglectful parenting. Since his placement in foster care, his
behaviors had significantly improved.
However, J.C. had been removed from two preschools because of
non-participation. Molina diagnosed J.C.
with adjustment disorder with mixed disturbance of emotions and conduct. Molina noted that it was imperative J.C. be
placed in a highly stable, structured environment with professional
services. As with G.C., she recommended
immediate adoption.
In
November 2011, mother unilaterally submitted a letter to the juvenile court
attempting to explain why she took the boys to Pennsylvania and requesting a
second chance with the boys, whom she loved very much.
In a supplemental .26
hearing report, CFS reported in March 2012, that the boys were not doing well
in foster care. In February 2012, their
foster family wanted them removed from their home because the foster parents
could not handle J.C.’s behavior, which was out of control. J.C. suffered from nightmares and
insomnia. During the day, he was unable
to attend preschool because he could not handle too much social stimulus.
In March 2012, the juvenile
court ordered the boys placed with Michelle and Andrew, over mother’s
objection. The boys’ younger brother,
Je.C., was also going to be placed with Michelle and Andrew. Michelle and Andrew had been contacting the
boys two to three times a week and had travelled to California to see them. CFS recommended the boys be adopted by
Michelle and Andrew, but requested continuance of the .26 hearing to allow for
the permanent plan of adoption to be implemented. Mother remained incarcerated in California
and father was incarcerated in Pennsylvania.
CFS reported in its
supplemental .26 hearing report filed in June 2012, that the boys were placed
with Michelle and Andrew on March 22, 2012, and were doing very well. Michelle and Andrew were eager to adopt the
boys.
Mother attended the .26 hearing
on August 1, 2012, having been released from custody two weeks earlier. Father also had been released but could not
leave Pennsylvania. Mother testified at
the hearing that she had last seen the boys on July 14, 2011, when she was
arrested. She believed her children were
still bonded to her, recognized her as their mother, and would be detrimentally
affected by terminating her parental rights.
Mother requested guardianship, rather than adoption, and placement with
Donna, rather than with Michelle and Andrew.
The boys’ counsel agreed with CFS’s recommendation of adoption.
The juvenile court found
that parents had not maintained regular visitation and contact with the boys,
and there was no benefit to continuing the parent-child relationship. The court ordered termination of parental
rights and adoption as the permanent plan.
III
BENEFICIAL PARENT
RELATIONSHIP EXCEPTION
The
juvenile court found that G.C. and J.C. were adoptable and terminated parents’
parental rights, finding no detriment to the boys in terminating parental
rights. Mother appeals the termination,
asserting
erred in rejecting the beneficial parent relationship exception to termination
of parental rights.
A. Applicable Law
At
the section 366.26 hearing, the juvenile court’s task is to select and
implement a permanent plan for the dependent child. When there is no probability of reunification
with a parent, adoption is the preferred permanent plan. (§ 366.26, subd. (b)(1); In re Marina S.
(2005) 132 Cal.App.4th 158, 164.) If the
juvenile court finds by clear and convincing evidence that a child is likely to
be adopted, the juvenile court must terminate parental rights, unless one of
several statutory exceptions applies. (§
366.26, subd. (c)(1); In re Marina S., at p. 164.)
Under section 366.26, subdivision (c)(1)(B)(i), the
beneficial parent relationship exception may apply when a parent has
“maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.â€
(§ 366.26, subd. (c)(1)(B)(i); see In re Derek W. (1999) 73
Cal.App.4th 823, 826 [“parent has the burden to show that the statutory
exception appliesâ€].) The “benefitâ€
prong of the exception requires the parent to prove his or her relationship
with the child “promotes the well-being of the child to such a degree as to
outweigh the well-being the child would gain in a permanent home with new,
adoptive parents.†(In re Autumn H.
(1994) 27 Cal.App.4th 567, 575 [“the court balances the strength and quality of
the natural parent/child relationship in a tenuous placement against the
security and the sense of belonging a new family would conferâ€].) No matter how loving and frequent the
contact, and notwithstanding the existence of an “emotional bond†with the
child, “the parents must show that they occupy ‘a parental role’ in the child’s
life.†(In re Andrea R. (1999) 75
Cal.App.4th 1093, 1108; In re Beatrice M. (1994) 29 Cal.App.4th 1411,
1418-1419.) The relationship that gives
rise to this exception to the statutory preference for adoption
“characteristically aris[es] from day-to-day interaction, companionship and
shared experiences. Day-to-day contact
is not necessarily required, although it is typical in a parent-child
relationship.†(In re Casey D. (1999)
70 Cal.App.4th 38, 51.)
Moreover, “[b]ecause a
section 366.26 hearing occurs only after the court has repeatedly found the
parent unable to meet the child’s needs, it is only in an extraordinary case
that preservation of the parent’s rights will prevail over the Legislature’s
preference for adoptive placement.†(In
re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; see also In re K.P.
(2012) 203 Cal.App.4th 614, 621.) The
juvenile court may consider the relationship between a parent and a child in
the context of a dependency setting, but the overriding concern is whether the
benefit gained by continuing the relationship between the biological parent and
the child outweighs the benefit conferred by adoption. (In re Lukas B. (2000) 79 Cal.App.4th
1145, 1155-1156; In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
B. Standard of Review
California courts have
disagreed as to the applicable standard of
rejecting a claim that an adoption exception applies. Most courts have applied the substantial
evidence standard of review. We agree with the view expressed in the
recent decision, In re K.P., supra, 203 Cal.App.4th at pages 621-622,
“that the review of an adoption exception incorporates both the substantial
evidence and the abuse of discretion standards of
[W]hether an adoption exception applies involves two component
determinations: a factual and a
discretionary one. The first
determination—most commonly whether a beneficial parental or sibling
relationship exists . . . —is, because of its factual nature, properly reviewed
for substantial evidence.
[Citation.] The second
determination in the exception analysis is whether the existence of that
relationship or other specified statutory circumstance constitutes ‘a
compelling reason for determining that termination would be detrimental to the
child.’ [Citations.] This ‘“quintessentially†discretionary decision,
which calls for the juvenile court to determine the importance of the relationship
in terms of the detrimental impact that its severance can be expected to have
on the child and to weigh that against the benefit to the child of adoption,’
is appropriately reviewed under the deferential abuse of discretion standard.
[Citation.]†(In
re K.P., supra, 203 Cal.App.4th at pp. 621-622, quoting In re Bailey J.
(2010) 189 Cal.App.4th 1308, 1314-1315.)
We likewise apply the composite standard of
C. Maintaining Contact with the Boys
Mother
argues she satisfied the first prong, of maintaining regular visitation and
contact with the boys, because she visited the boys to the fullest extent
allowed. While this may have been true,
she did not have any contact with the boys for over a year preceding the .26
hearing. This was because she was
incarcerated from July 2011 until her release in July 2012. Mother’s own conduct led to the juvenile
court not permitting visitation.
Furthermore, mother made no attempt to contact the boys. She did not write the boys or talk to them on
the telephone while incarcerated. Also,
she did not contact the boys or the social worker after her release from
custody two weeks before the .26 hearing.
The evidence therefore supports the determination that mother did not
maintain regular visitation and contact the boys.
D. Detriment Arising from Terminating Beneficial
Parent Relationship
As to
the second prong, we conclude mother’s relationship with the boys was
insufficient to constitute a compelling reason for not terminating mother’s
parental rights. Mother had a history of
using drugs, neglecting the boys, and living in squalor. The boys suffered the adverse effects of
having been removed from mother twice, both times because of mother’s neglect
and incarceration. Psychological
evaluations of the boys revealed that, because of these circumstances, the boys
suffered from adjustment disorder with mixed disturbance of emotions and
conduct. The evaluating psychologist,
Dr. Molina, concluded that the boys had been traumatized by these
circumstances, including changes in their living situation and exposure to
neglectful parenting. In Molina’s
opinion, both boys had made tremendous progress while in foster care and needed
immediate stability to alleviate their high level of anxiety. The boys had been placed in four different
foster homes and had twice been removed from their mother’s custody. Because of the boys’ need for stability,
Molina recommended the juvenile court proceed with adoption of the boys as soon
as possible.
There
was also evidence presented at the .26 hearing that the boys had been placed in
a good home with their stepaunt and her husband, who wished to adopt the
boys. The boys were happy there and had
bonded with their prospective adoptive parents, with whom they had lived for
five months. Because of the boys’ need
for a stable, permanent placement was great and mother had not seen or
contacted the boys for over a year preceding the .26 hearing, we conclude
mother has not established that termination of parental rights would be detrimental
to the boys.
IV
VISITATION
Mother
contends the juvenile court violated her due process and equal protection
rights by denying her visitation with the boys while mother was incarcerated
from July 2011 to July 2012.
At the detention hearing on
July 22, 2011, the juvenile court denied reunification services under section
361.5, subdivision (b), and ordered weekly, supervised visitation once parents
were released from prison. At the
jurisdiction/disposition hearing on September 8, 2012, the court set a .26
hearing and reduced visitation to once a month, conditional upon parents’
release from incarceration. Mother did
not object to the visitation orders. She
also did not file a petition for extraordinary writ, objecting to the
visitation orders or a section 388 petition requesting a change of the
visitation order.
In September or October
2011, mother was extradited from Pennsylvania to California and incarcerated
locally in the Devore/Rancho Cucamonga area, near the boys’ foster home in
Apple Valley. Mother asserts that
nothing in the record on appeal shows that, when denying her visitation while
incarcerated, the juvenile court addressed the issue of detriment of visitation
while incarcerated and factors establishing it.
Mother argues that the juvenile court cannot arbitrarily deny visitation
to an incarcerated parent without providing analysis of how the court
established detriment to the child. (
765, 773.)
Because
mother did not object to the visitation orders in the juvenile court or file a
writ petition challenging the orders, mother waived and forfeited her
objections to the visitation orders. (
882, 885-887; In re Elizabeth G. (1988)
205 Cal.App.3d 1327, 1331.)
Furthermore, even assuming
there was no waiver or forfeiture of the visitation, the visitation orders did
not violate mother’s due process or equal protection rights. The general visitation statute, section
362.1, provides that “any order placing a minor in foster care, and ordering
reunification services, shall provide as follows: (1)(A)
. . . For visitation between the parent . . . and the child. Visitation shall be as frequent as possible,
consistent with the well-being of the child.
[¶] (B) No visitation order shall jeopardize the
safety of the child. . . .â€
Generally, visitation must
be provided to incarcerated parents. (§
361.5, subd. (e)(1).) Section 361.5,
subdivision (e)(1) provides with regard to incarcerated parents that “the court
shall order reasonable services†to incarcerated parents unless it specifically
finds, by clear and convincing evidence, that the services would be detrimental
to the child. The section goes on to
specify the factors to be considered when making a finding of detriment: “In determining detriment, the court shall
consider the age of the child, the degree of parent-child bonding, the length
of the sentence, the length and nature of the treatment, the nature of the
crime or illness, the degree of detriment to the child if services are not
offered and, . . . any other appropriate factors. . . .
Reunification services are subject to the applicable time limitations
imposed in subdivision (a ).†The
section further provides that reasonable services may include visitation
services, where appropriate.
Citing In re Dylan T., supra, 65 Cal.App.4th 765, mother argues that,
because there was no showing of detriment, the juvenile court was required to
order in-custody visitation. Mother’s
reliance on Dylan T. is
misplaced. In Dylan T., the juvenile
court declared a one-year-old child a dependent of the court after the mother
was sentenced to one year in jail. The
juvenile court ordered a reunification plan but denied the mother in-custody
visitation based on the child’s young age.
The Dylan T. court reversed the lower court order denying in-custody
visitation on the ground there was no evidence that in-custody visitation would
have been detrimental to the child. (
In reaching its ruling, the
suggests that a specifically listed factor in section 361.5, subdivision (e)(1)
could stand on its own as a reason to deny visitation, the particular factor of
the minor’s age, without some supporting evidence demonstrating how the age of
the minor resulted in detriment when visiting the incarcerated parent, cannot
be utilized by itself to deny visitation.
The court must consider each listed factor and any other additional
factors when it determines detriment.
Any one factor or combination of factors might result in a finding of
detriment, but it must be shown by clear and convincing evidence how the factor
or factors result in a detriment.†(
pp. 773-774.)
The instant case in
distinguishable from Dylan
denial of in-custody visitation was not based solely on the boys’ age. The court considered other factors, including
the fact that mother was initially incarcerated in Pennsylvania. Although the court stated at the disposition
hearing that there would be no in-custody visitation when mother returned to
San Bernardino County, there was no objection to this condition. Unlike in Dylan
T., here, the boys’ counsel did not request in-custody visitation, whereas
Dylan’s attorney did. Mother has not
established that, under the circumstances in this case, either her due process
or equal protection rights were violated.
Mother has not shown that the court denied in-custody visitation
arbitrarily without analysis.
V
INEFFECTIVE ASSISTANCE OF
COUNSEL
Mother contends her trial
court attorney’s failure to request in-custody visitation constituted
ineffective assistance of counsel. CFS
argues that mother forfeited this claim by failing to raise the claim by writ
of habeas corpus, challenging the antecedent final order terminating
reunification services and setting the .26 hearing. CFS recognizes there is an exception to this
forfeiture rule when the parent can show “some defect that fundamentally
undermined the statutory scheme so that the parent would have been kept from
availing himself or herself of the protections afforded by the scheme as a
whole.†(In re James J. (1999) 74 Cal.App.4th 198, 208.) Without elaborating, CFS argues there was no
showing of any fundamental defect.
Mother argues that, here, the fundamental defect was that she was
deprived of in-custody visitation up until her release, two weeks before the
.26 hearing, and this deprived her of the opportunity to maintain a close bond
with the boys sufficient to support the beneficial parent relationship
exception.
Assuming for purposes of
this appeal that denying in-custody visitation in this case constitutes a
defect that fundamentally undermines the statutory
scheme, we nevertheless conclude mother has not established ineffective
assistance of counsel. We cannot say
that mother’s attorney’s failure to request in-custody visitation constituted
ineffective assistance of counsel because it was highly unlikely the juvenile
court would have authorized it. “To
demonstrate ineffective assistance of counsel, a defendant must show that
counsel’s action was, objectively considered, both deficient under prevailing
professional norms and prejudicial. (Strickland
v. Washington (1984) 466 U.S. 668, 687.)
To establish prejudice, a defendant must show a reasonable probability
that, but for counsel’s failings, the result of the proceeding would have been
more favorable to the defendant. (Id.
at p. 694.)†(People v. Burgener, supra, 29 Cal.4th at p. 880.)
“Although a claim of
ineffective assistance of counsel is usually raised by way of a writ of habeas
corpus, it may be effectively raised as part of an appeal in the rare case
where the appellate record demonstrates ‘there simply could be no satisfactory
explanation’ for trial counsel’s action or inaction. [Citation.]
As this court has previously explained, such a claim, made as part of
the appeal, may be asserted even after the order terminating parental rights at
the section 366.26 hearing.
[Citation.]†(
Cal.App.4th 1068, 1077.)
The
instant case is not one of the rare cases “where the appellate record
demonstrates ‘there simply could be no satisfactory explanation’ for trial
counsel’s action or inaction.†(
at p. 1077.) There are valid reasons for
mother’s attorney not requesting in-custody visitation. At the time of the orders, mother was incarcerated
in Pennsylvania and the children were young.
J.C. was three years old and G.C. was four and a half years old. Even after mother was extradited to
California and incarcerated locally, mother’s attorney could have reasonably
concluded it was not in the best interests of the boys to visit their mother in
prison. The boys had been traumatized by
parents’ arrest in their presence, and suffered from adjustment disorder with
mixed disturbance of emotions and conduct.
Also, according to J.C.’s psychological evaluation, J.C. had developed a
sense of fear and anxiety in many different situations. He was removed from preschool because of his
maladaptive symptoms. There was good reason
for mother’s attorney not requesting in-custody visitation and not objecting to
the court orders denying visitation until after mother was released from
custody. Mother has thus not established
ineffective assistance of counsel.
VI
DISPOSITION
The
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting P. J.
McKINSTER
J.
Unless otherwise noted, all statutory references are to the Welfare and
Institutions Code.
name="_ftn2" title=""> [2] On February 11, 2013, mother filed a petition
for writ of habeas corpus on this issue (case No. E058041), which we ordered
considered with this appeal. We will
resolve that petition by separate order.
