In re J.D.
Filed 7/5/12 In
re J.D. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF
FIFTH APPELLATE DISTRICT
In re
J.D. et al., Persons Coming Under the Juvenile Court Law.
MERCED COUNTY
HUMAN SERVICES AGENCY,
Plaintiff
and Respondent,
v.
G. G.,
Defendant and Appellant.
F063247
(Super. Ct. No. JP000080)
APPEAL
from orders of the Superior Court of
County. Harry L.
Jacobs, Commissioner, and John Kirihara, Judge.
John
L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
James
N. Fincher, County Counsel, and Sheri L. Damon, Deputy County Counsel, for Plaintiff and
Respondent.
-ooOoo-
G. G. (father)
appeals from a 2011 order terminating parental
rights (Welf. & Inst. Code, § 366.26) to his four-year-old son,
J., and three-year-old daughter, M.
time a series of issues dating as far back as the 2009 jurisdictional/
dispositional phase of the children’s dependency. On review, we will affirm.
PROCEDURAL AND FACTUAL HISTORY
In
1994, father was found not guilty by reason of insanity on murder and attempted
murder charges and committed to a
on outpatient status in a community program, where he remained for several
years. (Pen. Code, § 1600 et
seq.) It was while he was on outpatient
status that he fathered the children in this case. In early 2009, however, his outpatient status
was revoked and he returned to a state mental hospital. The record is otherwise silent as to father’s
history.
By
August 2009, the children’s mother was unable to care for them. She frequently left the children, who were
then ages two years and 17 months, alone with their five-year-old half-sibling. The family’s home was in deplorable
condition. When authorities located the
mother, she appeared to be under the influence.
The mother was arrested and the children were detained. As of the children’s detention, father was in
the Madera County jail for a restoration of sanity hearing.
Respondent
(agency) in turn petitioned the juvenile court to exercise its dependency
jurisdiction over the children. In
addition to allegations regarding the mother’s neglect (§ 300, subd. (b)
[children at risk of serious physical harm due to parental neglect], the agency
pled that father was incarcerated and failed to adequately protect and provide
for the children (§ 300, subd. (b)) and father was incarcerated and unable
to provide a safe home for the children (§ 300, subd. (g) [incarcerated
parent cannot arrange child’s care]).
At a detention
hearing, the juvenile court declared father the children’s presumed parent
based on the mother’s testimony. The
court also appointed attorney Linda Groth to represent father, who was not
present. In addition, the court issued
an order, pursuant to Penal Code section 2625, to the Madera County Sheriff for
father’s appearance at a jurisdictional hearing.
Prior to the
jurisdictional hearing, father completed and returned to an agency social
worker a four-page questionnaire. The
social worker attached the completed questionnaire to her
jurisdictional/dispositional report.
Father’s answers were appropriate to the specific questions asked. Among the questions asked, and the answers
father provided, were the following:
“Why do you feel
your children are in foster care?â€
“Because
[mother] left my children at her apt[.] in [A]twater alone, which put them in
danger. [Mother] was also under the
influence of a controlled substance and was arrested and charge[d] with child
endangerment.â€
“What type of services do you feel you
and your family could benefit from?â€
“I
have taken care of my children before being locked up. As soon as I get out, I’ll take care of them
as before. They’re my children.â€
“What would you like to see happen with
this case and how do you suppose this will happen?â€
“My
children have a[n] older sister in TX.
Call her or cont[act] her and see if she can take care of them until I
get out. [Sister’s name, address and
three telephone numbers].â€
“Do you have any relatives you would
like to see considered for relative placement?
Who? Address? Phone Number?â€
“[the
names, addresses and phone numbers of the paternal grandmother and two other
relatives]â€
To other
questions, father suitably replied: he
would like visitation, if appropriate, as well as services; he did not want to
relinquish his rights; and he was opposed to a concurrent plan of adoption for
the children.
The
Madera County Sheriff reportedly refused to comply with the court’s
transportation order for the jurisdictional/dispositional hearing. On the originally-scheduled hearing date, the
juvenile court stated it could not proceed in father’s absence unless
arrangements could be made for him to appear by phone or he wished to waive his
presence. Attorney Groth volunteered
that she would try to see father because she planned on going to the jail
soon. The court in turn refrained from
issuing an order to show cause directed at the sheriff and continued the
hearing.
On the next
hearing date, attorney Groth informed the court she had not spoken to
father. The juvenile court continued the
hearing a second time on the attorney’s promise she would go to see
father.
Once again,
however, attorney Groth did not see father.
She thought she had the necessary authorization to visit her client but
the Madera County Sheriff purportedly would not permit her to visit father
without completing additional paperwork.
The juvenile
court eventually elected to proceed with the jurisdictional/ dispositional
hearing in father’s absence “subject to being set aside upon the request of Ms.
Groth.†The court relied on the fact the
agency recommended offering father services.
In the court’s view, father could not obtain a better result than an
order for reunification services, due to his in-custody status. The court recommended attorney Groth talk to
father about participating in whatever services were available.
The juvenile
court consequently exercised its dependency jurisdiction over the children,
having found each of the agency’s allegations true. The court also removed the children from the
custody of both parents and ordered reunification services for them. In its written order after hearing, the
juvenile court additionally found that the Indian Child Welfare Act (ICWA) did
not apply. The circumstances surrounding
this finding are summarized in the Discussion.
Within a month
of the jurisdictional/dispositional hearing for the children, father’s petition
for restoration of sanity was denied and he was transferred to the state mental
hospital in Napa. Attorney Groth later
informed the juvenile court she talked to father before he left for Napa. According to Groth, father understood what
was going on and he told her he had been taking some classes.
Father later
informed the social worker he would be in the state mental hospital for
approximately one more year before a possible conditional release. Once that occurred, he would request
residency in Merced County to be closer to the children. Due to his commitment, father was unavailable
to be assessed by the agency for services.
In May 2010, the
juvenile court terminated services for father, but continued them for the
mother. In the fall of 2010, the court
returned the children to their mother’s custody subject to family maintenance
services based on the progress she had made.
The mother’s
progress unfortunately was short-lived.
She felt overwhelmed caring for the children and relapsed. She asked the agency to place them in foster
care. As a result, the agency detained
the children once again and filed a supplemental petition (§ 387) based on the
mother’s relapse and inability to care for the children.
During the
proceedings on the agency’s supplemental petition, attorney Groth reported more
than once that father remained at the state mental hospital in Napa and he
wrote to her about the children as well as sent her cards for the
children. She added that father would
remain in custody for a long time.
The juvenile
court eventually terminated all services for the mother and set a section
366.26 hearing to select and implement a permanent plan for the children.
In its report
for the section 366.26 hearing, the agency recommended that the court find the
children were likely to be adopted.
However, the children were not placed in an adoptive home. Their long-time foster parent wished to care
for the children, but could not commit to either adopting them or becoming
their legal guardian. As a result, the
agency recommended the case be continued for six months in order to find an
adoptive home for the children.
On the
originally-scheduled section 366.26 hearing date, father was not present. He was represented by a newly appointed
attorney, David Haycraft. The record is
silent regarding the circumstances underlying the change in representation. Attorney Haycraft expressed concern about the
court finding that the children were adoptable in father’s absence. The court continued the hearing so that
father could be transported to the hearing.
Once again,
father was apparently in the Madera County jail and the sheriff would not
permit him to be transported for the juvenile court proceedings. The court continued the hearing for attorney
Haycraft to visit and advise father he had a right to attend the hearing if he
wished.
Later in an
an adoptive home for the children and was transitioning the children from their
current foster placement. The adults in
the adoptive home were related to the children’s foster parent. When the children’s mother was advised of
this and asked her opinion, she volunteered that they (an apparent reference to
the children’s family) would not have anything to do with her or the
children. The agency recommended the
court terminate parental rights.
Father signed a
waiver of his right to attend the section 366.26 hearing, authorizing his
attorney to represent him there.
Nevertheless, father appeared by telephone at a July 2011 hearing. The court continued the matter until August
2011 for attorney Haycraft to review the addendum report with father.
The court
eventually conducted the section 366.26 hearing in late August 2011. Father appeared by telephone, despite his
preference to be physically present at the hearing. Father opposed termination of his parental
rights. Father told the court:
“I really strongly want to be able to
raise my own children. I’m in right now
a civil commitment here, and even though it’s been going on for a little while,
the fact is on the 15th, I possibly could be out and be able to move to Merced
and to raise my own children with my mother there at her home. Now that’s my -- that’s my wish right
now. That’s what I’m fighting for. But the fact is that I would even consider an
adoption if it was an open adoption.
“Now my attorney is telling me that an
open adoption is not even possible because of the parties that is involved
doesn’t want this to happen. Well, I
want to retain any type of rights that I have to my children, and I would like
to see them, even if the Court decides to not give me -- to take my parental
rights away from me by force.
“I still would like to be able to see
them, to be able to have some interaction in their lives and to be able to --
for them to come and see me, you know? The best thing for any child is for them
to be with their parents, their biological parents. That’s basically what I really want the Court
to understand.â€
Attorney
Haycraft clarified that he explained to father the agency and the adoptive
parents were under no obligation to consider an open adoption.
Counsel
for the agency questioned father as follows:
“MR. TARHALLA: What are you currently incarcerated for? What charge?
“[FATHER]: I’m here for restoration of sanity right now.
“MR. TARHALLA: What were you arrested and charged with? Wasn’t it murder?
“[FATHER]: Um, not yet, guilty by reason of insanity.
“MR. TARHALLA: What is the charge, sir? Not your plea, but aren’t you charged with
murder?
“[FATHER]: Um, that’s -- that’s what I was accused of,
yeah.
“MR. TARHALLA: So that’s what you’re charged with. How long have you been in the Madera County
Jail on that charge?
“[FATHER]: Um, I’ve been here for restoration of sanity
for about eight months.
“MR. TARHALLA: When were you arrested on this charge?
“[FATHER]: In 1994.
“MR. TARHALLA: When were you -- you’ve been incarcerated now
for eight months?
“[FATHER]: No, I’ve been in the -- I’ve been at Napa for
nine years. I’ve been out in the county
for six, and I’m here now fighting for restoration of sanity.
“MR. TARHALLA: Have you ever had these children living with
you?
“[FATHER]: Yes, I’ve had them living with me since they
was born.
“MR. TARHALLA: How long did they reside with you after their
birth?
“[FATHER]: My oldest son … resided with me until he was
five; [J.], when he was two; and [M.] since she was one.
“MR. TARHALLA: So they’ve been out of your care for at least
two years?
“[FATHER]: Yeah.â€
The
court subsequently adopted the agency’s recommendations and terminated parental
rights.
DISCUSSION
Introduction
Father raises three claims of judicial
error, which date back to the jurisdictional/ dispositional hearing. According to father, the juvenile court erred
by: (1) failing to appoint a guardian ad litem (GAL) for him due to his legal
insanity or at least hold a hearing to determine whether it should appoint a
GAL; (2) ruling that the ICWA did not apply in the children’s dependency; and
(3) not following the preference for relative placement over the course of the
children’s dependency.
Father also
contends both of his attorneys provided ineffective assistance for not pursuing
these issues. He further complains his
first attorney was ineffective for not securing his presence in court or
enabling him to otherwise participate in the jurisdictional/dispositional
hearing while his second attorney was ineffective for not doing more to secure
his physical presence at the section 366.26 hearing.
Appealability
Father assumes
his issues related to the jurisdictional/dispositional hearing are preserved
for our review because either he was incompetent or his attorneys were
ineffective. He further contends that in
the absence of these alleged errors individually or collectively it is
reasonably probable the outcome of the juvenile court proceedings would have
been more favorable to him.
Ordinarily, an
appellate court may not inquire into the merits of a prior final judgment or
appealable order in a dependency proceeding on an appeal from a later
appealable order. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150 (
incompetence claims. If a party were
entitled to a GAL, that party would hardly be in a position to recognize the
error and protest. (In re A.C. (2008) 166 Cal.App.4th 146, 156.) Thus, father’s GAL claim of error is
preserved for review in this appeal. (
On the other
hand, in Meranda P.,
exception to the appellate waiver or forfeiture rule for ineffective assistance
of counsel claims, finding no infringement on a parent’s due process
rights. (Meranda P., supra, 56 Cal.App.4th at pp. 1151-1155.) In addition, this court has long held that a
parent who fails to timely challenge a juvenile court’s action regarding ICWA
is foreclosed from raising ICWA notice issues once the court’s ruling is final
in a subsequent appeal. (
183, 185.)
Notwithstanding
our prior opinions on the subject of waiver/forfeiture, we nevertheless will
review on this appeal father’s claims of judicial error regarding ICWA and
relative placement. We do so out of
concern for father’s due process rights at the jurisdictional/dispositional
hearing. As another court has put it,
the crux of our waiver or forfeiture rule is that it will be enforced unless
due process forbids it. (
198, 208.) In this case, there is no
record that father received notice of the jurisdictional/dispositional hearing
and his statutory right to attend the jurisdictional hearing (Pen. Code, § 2625). The order for his appearance, which included
notice of his right to attend, appears to have been only served on the
Office. In addition, we know that
father’s attorney did not consult with him before the juvenile court proceeded
with the jurisdictional/ dispositional hearing.
The juvenile court did elect to proceed with the jurisdictional/
dispositional hearing in father’s absence subject to its orders being set aside
upon the request of father’s attorney.
However, the record is silent as to whether the attorney explained this
or the right to appeal to father.
Father’s Mental Status
Because father
was adjudged insane in 1994 and had not been restored to sanity as of
he was most likely incompetent to participate in a meaningful way in these
dependency proceedings. He argues the
juvenile court erred by failing to appoint a guardian ad litem (GAL) for him or
at least hold a hearing to determine whether it should appoint a GAL. Father further claims that the juvenile
court’s inaction violated his due process rights. We conclude the juvenile court did not err.
In a juvenile
dependency matter, a parent who is mentally incompetent must appear by a GAL
appointed by the court. (
910 (James F.), citing Code Civ.
Proc., § 372 & In re Sara D. (2001)
87 Cal.App.4th 661, 665.) The test is
whether the parent has the capacity to understand the nature and consequences
of the proceedings and to assist counsel in preparing the case. (James
F., at p. 910.)
The fact that
father was found not guilty by reason of insanity in the 1994 criminal
proceedings does not mean he was mentally incompetent during these dependency
proceedings. Penal Code section 25,
subdivision (b) defines a person as not guilty by reason of insanity when “he
or she was incapable of knowing or understanding the nature and quality of his
or her act and of distinguishing right from wrong at the time of the commission
of the offense.†This definition bears
no similarity to the test for mental competence, as stated in
Likewise, the fact that the superior court in Madera County had not
found father restored to sanity during the dependency proceedings does not mean
he lacked the capacity to understand the nature and consequences of the
dependency proceedings and to assist counsel in preparing the case.
Father
also overlooks his statements contained in the record, which undermine his
appellate claim of incompetence.
Father’s written answers to the social worker’s questionnaire at the
jurisdictional phase of the proceedings reveal he in fact understood the nature
and consequences of the children’s dependency and had the capacity to assist
his attorney in preparing the case. His
first attorney also informed the court that based on her subsequent
conversations with father, he understood what was happening in the dependency
case. Likewise, father’s statement to
the court and his answers to counsel’s questions at the section 366.26 hearing
demonstrate the same. On this record, we
therefore conclude there was no error.
Having concluded there was no error, we necessarily reject father’s
related argument that the court’s failure to appoint a GAL for him violated his
due process rights.
To the extent
father further claims his attorneys were ineffective for not advocating for a
GAL appointment, we also conclude this claim is meritless. We do so because the premise of father’s
ineffective assistance claim is identical to his premise for arguing the
juvenile court erred by not appointing a GAL, that is the fact he was adjudged
insane in 1994 and had not been restored to sanity as of the children’s
dependency. Having rejected that premise
in determining the juvenile court did not err, we similarly reject father’s ineffective
assistance claim. In addition, father
again overlooks his own statements contained in the record which undermine his
appellate claim of incompetence. On this
record, we cannot say that father’s attorneys failed to act in a manner to be
expected of reasonably competent attorneys acting as diligent advocates. (Strickland
v. Washington (1984) 466 U.S. 668,
687-696.)
ICWA
At the 2009
detention hearing, the juvenile court conducted an ICWA inquiry of the
mother. She testified both sides of her
family were Miwok Indian.
name="_ftnref4" title="">[2] She previously participated
in Miwok powwows or other cultural activities, but neither she nor the children
were enrolled in any Indian tribe. The
mother also denied that either she or any extended family member ever received
any education, health, or other benefit related to being Indian.
In addition, the
mother testified she was born on a reservation in Maricopa, Arizona. She claimed it was on her birth certificate,
although that was all she knew. She
added she was not “there that long.â€
It is undisputed
that the agency subsequently served notice of the underlying proceedings on all
federally-recognized “Mewuk†and “Miwok†tribes as well as the Bureau of Indian
Affairs (BIA) and none of those tribes nor the BIA responded that the children
were members or eligible for tribal membership.
All of the tribes’ service addresses were located in the state of
California.
Father surmises
that the agency failed to adequately investigate the mother’s claim that she
was born on an Arizona Indian reservation because it did not provide notice to
any Arizona tribes. Although father
claims this was reversible error, we are not persuaded that any error occurred.
The fact that
the agency did not serve notice on any Arizona tribes does not mean the agency
failed to adequately investigate the mother’s claim of Indian heritage. The agency apparently did investigate further
because, in its notice, the agency stated that the mother’s place of birth was
actually in Phoenix, not Maricopa, Arizona.
The agency also included identifying information about the mother’s
parents and grandparents in its notice.
The mother, who was served a copy of the agency’s notice, never objected
to the accuracy of the notice.
Father
additionally claims other evidence in the record reveals the mother’s Indian
heritage was based in Arizona so as to render the notice that the agency sent
inadequate. He cites to evidence that
one of the mother’s grandmothers died in Arizona in 2007 and the mother visited
“family†in Tempe, Arizona, in 2008.
pieces of evidence either support father’s claim or compels a conclusion that
the mother’s Indian heritage was based in Arizona.
We also find
father’s argument unpersuasive given that the mother clearly claimed she was
Miwok and she had attended Miwok powwows and other cultural events. Finally, we observe that neither the mother
nor her counsel ever asserted a claim that her Indian heritage was based in
Arizona.
To the extent
father contends either of his attorneys was ineffective for not challenging the
ICWA notice given, we disagree. Father’s
ineffective assistance in this respect is based on the same premise ― the
agency failed to adequately investigate the mother’s Indian heritage claim
― we rejected in concluding the juvenile court did not err in finding
ICWA inapplicable. Given the flaw in
father’s premise, we cannot say his attorneys failed to act in a manner to be
expected of reasonably competent attorneys acting as diligent advocates. (Strickland
v. Washington, supra, 466 U.S. at pp.
687-696.)
Relative Placement
Background
Prior to the
jurisdictional/dispositional hearing, father asked that the agency call the
children’s older sister, who lived out of state, to see if she could take care
of the children until he was released.
He also supplied contact information for the paternal grandmother and
the paternal uncle and aunt, whom he wished considered for relative placement. The mother also submitted the names of the
same paternal aunt and uncle, as relatives she would like considered for
placement.
The agency
reported in September 2009 that it submitted the names of the paternal
grandmother and the paternal uncle and aunt, each of whom lived in Merced
County, to the “Home Assessment Team†to be considered for placement. At the October 2009
jurisdictional/dispositional hearing, the juvenile court found that the
children were not placed with a relative requesting placement because the
relatives were still in the assessment process and had not been cleared for
placement of the children. The record is
silent after this point regarding whether any of those relatives were cleared
for placement or completed the assessment process.
At a December
2010 hearing, after the children’s redetention from their mother’s care and the
agency’s filing of the supplemental petition, the mother asked that the
children’s paternal second cousins be considered for relative placement. She did not know their last names, but
claimed they were outside the courtroom.
County counsel on behalf of the agency responded that the agency would
“check out the relatives.â€
In its report
for the next hearing, scheduled on January 6, 2011, the agency stated the
mother had not been available to discuss possible relative placements and asked
that the court find the children were not placed with a relative requesting
placement because “[n]o relative names have been submitted for approval.†The mother did not attend the January 6
hearing or two later hearings on the supplemental petition. The court found there was “some game playing
[on the mother’s part] going on.†In its
order removing the children again from the mother’s custody and setting the case
for a section 366.26 hearing, the court found the children were not placed with
a relative requesting placement because no relative names had been submitted
for approval. The agency reported the
same information and the court made the same finding in its August 2011 order
terminating parental rights.
Argument
Father contends that
the juvenile court did not follow the preference for relative placement in the
children’s dependency. He first claims
the children’s dependency may have been unnecessary because he should have been
able to delegate the children’s care to one of the relatives he identified
prior to the jurisdictional/dispositional hearing, assuming one of those
relatives were a suitable caretaker.
Alternatively, he argues there is no proof that the relatives he
identified were ever evaluated by the agency so that the juvenile court could
determine if any of the relatives were appropriate. Father further alleges the court’s later
finding that no relative names had been submitted for approval was not
supported by substantial evidence. As discussed below, we are not persuaded by
father’s arguments.
Analysis
A.
To support his
first argument that the children’s dependency may have been unnecessary, father
contends if an incarcerated parent can make suitable arrangements for his or
her children’s care during the period of incarceration, there is no basis for
dependency jurisdiction. (
1077 (S.D.), citing
202, 212 (Aaron S.).)
parent was incarcerated and the agency alleged the parent’s incarcerated status
as a jurisdictional basis under section 300, subdivision (g). In relevant part, section 300, subdivision
(g) describes an incarcerated or institutionalized parent who cannot arrange
for the child’s care as a basis for dependency jurisdiction. However, in each case, there was no showing
that the incarcerated parent was unable to arrange for care of the child. (S.D.,
supra, 99 Cal.App.4th at p. 1077; Aaron
S., supra, 228 Cal.App.3d at p. 212.)
Consequently, the appellate courts in S.D. and Aaron S. granted
relief on appeal.
S.D. and
dependency before us so as to render those opinions inapplicable here. In each case, the section 300, subdivision
(g) allegation was the only jurisdictional ground which the juvenile court
sustained. (S.D., supra, 99 Cal.App.4th at p. 1074; Aaron S., supra, 228 Cal.App.3d at p. 207.) Here, not only did the juvenile court find
true allegations under section 300, subdivision (b) pertaining to the mother’s
neglect, it also found true an allegation of the father’s neglect under section
300, subdivision (b), which father overlooks.
The rule as first advanced in Aaron
S., however, does not extend to incarcerated parents who have been
the subject of a true finding on any jurisdictional ground other than section
300, subdivision (g). (
607.) Because the court exercised its
dependency jurisdiction over the children based on father’s neglect under
section 300, subdivision (b), we conclude there is no merit to father’s claim
that the children’s dependency may have been unnecessary. For the same reasons, we reject his claim
that attorney Groth was ineffective for not pursuing this in the juvenile
court.
B.
To
the extent father complains there is no proof that the agency ever evaluated
his relatives for placement purposes, we disagree. He overlooks the evidence that the agency
submitted the names of the paternal grandmother and the paternal uncle and aunt
for placement assessment and, as of the jurisdictional/dispositional hearing,
the relatives were still in the assessment process and had not been cleared for
placement of the children. We see no
problem with the fact that the older sister’s name was not submitted for
placement assessment given that she lived out of state, thus inhibiting
court-ordered reunification efforts and visitation between the children and
their mother. (§ 361.3, subd.
(a)(7)(E) & (F).)
It is true that
the record is silent after the jurisdictional/dispositional hearing regarding
the outcome of the assessment process.
However, that does not mean father’s relatives were not evaluated. It just as easily could mean the relatives
did not complete the assessment process, withdrew their names from placement
consideration, or were not cleared for placement. Also, although father implies the agency
should have reported back to the court, he fails to cite any authority to support
his assumption. In any event, we cannot
say on this record that it is reasonably probable that the outcome would have
been more favorable to father had the agency reported back to the court.
To
the extent father accuses his attorneys of being ineffectual for not pursuing
the evaluation issue, we agree that attorney Groth, as a diligent advocate,
should have inquired at the jurisdictional/dispositional hearing about the
status of the ongoing relative placement evaluations and/or asked the court to
leave the issue of relative placement open until the agency completed its
evaluations. (Strickland v. Washington,
supra, 466 U.S. at pp. 687-696.) We
cannot imagine a practical or tactical reason for attorney Groth to remain
silent in this respect. (
229, 243.)
However,
our analysis of an ineffective assistance claim does not end there. Father also must show it is reasonably
probable a more favorable determination would have resulted in the absence of
his counsel’s failing. (
had counsel advocated for relative placement, the children would have been
placed with relatives. However, he does
not cite to anything in the record or any rule of law to support his
claim. His argument assumes too much and
is little more than speculation on his part.
However, even assuming arguendo one of his relatives qualified for
placement, that certainly does not compel further conclusions that the
placement would have been a successful one and the court eventually would have
selected a permanent plan for the children, other than termination of parental
rights.
C.
Last,
father challenges the sufficiency of the evidence to support the finding in the
supplemental petition proceedings that no relative names had been submitted for
approval for relative placement purposes under section 361.3. Father points to the names of his relatives
whom he submitted in 2009 and the names of the second cousins whom the mother
submitted at the December 2010 hearing when the children were redetained. We disagree.
First,
father takes the juvenile court’s finding out of context and draws an
unreasonable inference to make his argument.
The court did not find that no relative names had ever been submitted
over the course of the children’s dependency.
Instead, the court found in January 2011 that the children were not
placed with a relative requesting placement because no relative names had been
submitted for approval. The reasonable
inference to be drawn is that the court found once the children had to be
redetained and removed from the mother’s custody, they were not placed with a
relative because no relative names had been submitted for approval.
Second,
while it is true that the mother in December 2010 did offer the first names of
the children’s second cousins, second cousins, or even cousins for that matter,
are not entitled to the benefits of the relative placement preferred
consideration statute (§ 361.3).
“Relative†in the relative placement statute means:
“means an adult who is related to the
child by blood, adoption, or affinity within the fifth degree of kinship,
including stepparents, stepsiblings, and all relatives whose status is preceded
by the words ‘great,’ ‘great-great’ or ‘grand’ or the spouse of any of these
persons even if the marriage was terminated by death or dissolution. However, only the following relatives shall
be given preferential consideration for the placement of the child: an adult
who is a grandparent, aunt, uncle, or sibling.â€
(§ 361.3, subd. (c)(2).)
Father
focuses on the statutory phrase “an adult who is related to the child by blood,
adoption, or affinity within the fifth degree of kinship†in section 361.3,
subdivision (c)(2) and argues a second cousin is within the fifth degree of
kinship and therefore is a relative within the meaning of the relative
preferential consideration statute.
While that may be, his argument overlooks the balance of section 361.3,
subdivision (c)(2), especially the concluding sentence:
“However, only the following relatives
shall be given preferential consideration for the placement of the child: an
adult who is a grandparent, aunt, uncle, or sibling.â€
Thus,
even if the children’s second cousins were relatives, they were not entitled to
preferential consideration under section 361.3 so that there could be no error,
as father claims, for not following the preference for relative placement. Similarly, because the second cousins were not
entitled to preferential consideration for placement, we are not persuaded that
had either of father’s attorneys questioned the sufficiency of the evidence
that it would have made a difference in this case so as to prejudice father’s
interests.
Code Section 2625
Last,
father contends his attorneys were ineffective for not securing his presence in
court during the children’s dependency proceedings. Penal Code section 2625 provides that a
parent, who is incarcerated or institutionalized, is entitled to attend the
hearing at which the court may exercise its dependency jurisdiction over the
parent’s children (the jurisdictional hearing) and the hearing at which the
court selects a permanent plan for the children. The exception to this rule is if the parent
waives the right to attend such hearings.
Because father’s second attorney,
Haycraft, secured father’s telephonic presence at the children’s permanency
planning hearing, we conclude father’s argument is meritless as to attorney
Haycraft. We cannot say the same,
however, as to attorney Groth.
Attorney
Groth did not protect or secure father’s right under Penal Code section 2625 at
the October 2009 jurisdictional hearing.
Given that she had not had any contact with father as of the October
2009 hearing, there could be no practical or tactical reason for attorney
Groth’s inaction. (In re Arturo A., supra, 8 Cal.App.4th at p. 243.) She should have at least communicated with
father to inform him of his right to attend the hearing and to determine
whether he wished to do so.
We
assume for the sake of father’s argument that had she done so, regardless of
whether father exercised his right to attend, that he would have expressed the
same wishes he did in his answers to the social worker’s earlier written
questions. He would have asked for
reunification efforts, relative placement, and visitation, if appropriate. On appeal, father interprets this last wish
as visitation at least while he was in Madera County or presumably if he were
restored to sanity in the Madera County proceedings.
However,
the more difficult question we confront is that of whether father suffered
resulting prejudice. The court did grant
father reunification services.
Nevertheless, once father’s restoration of sanity petition was denied
and he returned to Napa, reunification was all but impossible. Relative placement evaluation would have been
actively pursued by a diligent advocate, as previously discussed. However, that does not mean that actual
relative placement was a foregone conclusion, let alone successful and would
have prevented the eventual termination of the parents’ rights in this
case. Even an order for visitation could
not have affected the outcome of this case.
The Madera County Superior Court denied father’s restoration of sanity
petition within a month of the October 2009 jurisdictional/dispositional
hearing and returned father to Napa.
Father remained in the state hospital at Napa until he returned to
Madera County in mid 2011 for another restoration of sanity proceeding. At most, a visitation order for the time he
was in Madera County would have yielded a handful of visits over the course of
more than 18 months.
We
also cannot ignore in this prejudice calculus the children’s overriding
interest in permanence and stability when reunification is not possible (
309) not to the mention the reason why father is institutionalized and the fact
that throughout these dependency proceedings he necessarily remained a danger
to the health and safety of others (see Pen. Code, § 1026.2 [requirement
for restoration of sanity]).
We
therefore conclude, whether on a reasonable probability or a heightened
standard of prejudice, that attorney Groth’s failure to protect father’s right
to attend the jurisdictional/dispositional hearing was not prejudicial so as to
entitle him to a reversal of the order terminating parental rights.
DISPOSITION
The
order terminating parental rights is affirmed.
name="_ftn1" title="">* Before Wiseman, Acting P.J., Gomes, J., and Kane, J.
name="_ftn2" title="">†Commissioner Jacobs presided over the
jurisdictional/dispositional hearing and Judge Kirihara presided over the
Welfare and Institutions Code section 366.26 hearing.
