In re W.H.
Filed 1/23/13 In re W.H. CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO
In re W. H., a Person Coming Under the Juvenile Court Law.
B242603
(Los Angeles
County
Super. Ct.
No. CK78666)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
PAULA H.,
Defendant and Appellant.
APPEAL from
orders of the Superior Court
of
County.
Marilyn Mordetzky, Juvenile Court Referee. Dismissed by opinion.
Paula H.,
in pro. per.; and Frank H. Free, under appointment by the Court of Appeal, for
Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
_________________________
This
(minor). On appeal, Paula H. (mother)
challenges (1) the order denying her petition pursuant to section 388 of the
Welfare and Institutions Code
name="_ftnref1" title="">[1]
and (2) the order terminating her parental rights pursuant to section
366.26. After mother’s court appointed
counsel filed a no issues brief pursuant to In
re Phoenix H. (2009) 47 Cal.4th 835 (Phoenix
H.), mother filed a brief to identify appellate issues for our
consideration. In addition, she filed an
application to expand the appointment of appellate counsel to file a petition
for writ of habeas corpus. She claims that she received ineffective
assistance of counsel at the section 366.26 hearing when her attorney failed to
argue that mother’s parental rights should not be terminated due to the
beneficial relationship exception.
The appeal
is dismissed because mother failed to raise an
juvenile court’s orders. In addition, we
deny mother’s application because she has not shown good cause to expand the
appointment of counsel to file a petition for writ of habeas corpus.
Our
analysis is set forth below.
FACTS
On September 2, 2009, mother was arrested
by a California Highway Patrol officer for driving while under the influence of
methamphetamine. The minor, age two
years old, was in mother’s vehicle.
Mother was arrested and incarcerated and the minor was placed in a
foster home.
A few days
later, mother went to a facility operated by the
(Department) for a Team Decision Meeting and tried to remove the minor out of
the building. She was stopped by a
security guard and a social worker. At
the time of the incident, mother was agitated, had dilated pupils and appeared
to be under the influence of drugs. She
eventually participated in the Team Decision Meeting but was generally
uncooperative. During the meeting, she
whispered comments to herself, became agitated and tearful, and then would
stand up and pace. The Department
decided to take the minor into custody.
Mother was referred to a drug testing facility but she did not show up.
The
juvenile court ordered the minor detained.
He was placed in confidential foster care.
The
dependency petition
On September 11, 2009, the Department
filed a petition on the minor’s behalf pursuant section 300, subdivisions (b)
and (g). The petition alleged mother
uses methamphetamine, which places the minor at risk of physical harm. It was further alleged that Gary M. (father)
has failed to provide the minor with the necessities of life and his
whereabouts are unknown.
Mother
threatened the foster mother over the phone.
When asked about the incident by a social worker, mother initially
denied the incident. Then she admitted
that she tried to convince the foster mother to meet her at an undisclosed
location so mother could “see her son.â€
At some point, mother followed the foster mother home after a monitored
visit at Penny Lane and
drove by the foster home several times.
Then she knocked on the door loudly and demanded to see the minor. She refused to leave until the foster mother
said she had called the sheriff. As a result
of these incidents, the minor had to be taken to a new foster home.
According
to a social worker, mother said, “It’s not kidnapping if it’s your own
child.†After a visit at Penny
Lane in late October 2009, mother picked up the
minor, who was crying, and put him in her car and attempted to leave. Penny Lane
staff had to persuade mother to release the minor. In November 2009, mother left Penny
Lane after a monitored visit. Then she returned to the building and
demanded to know why her son had not left.
A Penny Lane
supervisor said she would call the sheriff if mother did not leave. Mother began cursing at the supervisor and
stated that at her next visit, she would take the minor “and no one will ever
see them again.†As a result of these
incidents, Penny Lane staff
refused to provide monitoring for any further visits. They said the risk of abduction was too high
and they could not provide security.
Subsequently, mother’s monitored visits took place at the Department’s
facilities.
Mother
complained to a social worker that “it was not fair and that she was being
falsely accused of trying to take her son.
She stated that her son jumped into her car window when she was
leaving.â€
In December
2009, mother called the foster mother and offered her money to let her take the
minor for the holidays. When the foster
mother declined, mother said “it would be a lot of money.†A month later, mother saw foster mother’s car
and followed it. At a red stoplight,
mother got out of her car, walked up to the foster mother’s car and asked to
visit with the minor. The foster mother
ignored mother and drove away when the light changed.
On January 8, 2010, the juvenile court
sustained the September 11, 2009
petition as to count b-1 as amended by interlineations and as to count
b-3. It removed the minor from mother’s
custody. The Department was ordered to
provide reunification services to mother and the minor. Mother was ordered to participate in drug
rehabilitation with random drug testing and obtain a sponsor, and she was also
ordered to participate in parent education and grief counseling. The juvenile court awarded mother a minimum
of three hours visitation. The
Department had the discretion to liberalize.
Mother
enrolled at a treatment center.
Initially, mother had monitored
visits with the minor. Starting February 16, 2010, the Department
granted mother unmonitored visits at her treatment facility. Her counselor reported that mother had tested
clean and was making tremendous progress in treatment.
At the
subsequent review hearing, the juvenile court granted mother unmonitored
visitation. Mother had unmonitored
weekend visits. The visits went well and
the minor’s foster mother reported no concerns.
Mother
completed her treatment program on June
9, 2010, and started her after care program about a week
later. When the minor’s foster family
went on vacation on June 18, 2010,
the Department allowed the minor to return to mother’s home until the next
hearing. At the six-month review
hearing, the juvenile court placed the minor in mother’s care.
Six weeks
later, mother relapsed.
Pursuant to
section 387, the Department filed a supplemental petition alleging that mother
had been discharged from her substance abuse rehabilitation program because she
had resumed the use of drugs, and further that mother’s continuing use of drugs
placed the minor at risk of harm.
The
juvenile court ordered the minor detained.
The
Department reported that the minor had a strong attachment to mother. However, the Department also reported mother
had not submitted to a drug test in August or September 2010. She refused to discuss her substance abuse
issues. Instead, she focused her
attention on perceived injustices of the Department and the harm it caused the
minor by placing him in foster care.
Due to
mother’s threats to abduct the minor, the Department scheduled seven monitored
visits at the Department’s facilities during the month of September 2010. Mother appeared on time for two visits and
late for three visits. One visit was
canceled because mother did not attend, and another did not occur because the
Department could not locate mother to confirm the visit.
Jurisdictional/dispositional
hearing
Mother waived her right to a trial on the section 387
petition. The juvenile court sustained
the petition and ordered the minor’s removal.
The Department was ordered to provide reunification services, and mother
was ordered to attend parent education, drug rehabilitation with random drug
testing, individual counseling and to attend Narcotics Anonymous and obtain a
sponsor.
Before the
next review hearing, the Department filed a report indicating that mother was
not drug testing on a consistent basis, and she refused to enroll in her
previous treatment center. At the time
of the report, mother had not started a parent education program. Though mother told the social worker that she
was going to Narcotics Anonymous meetings, she did not disclose whether she had
obtained a sponsor. Mother’s visits with
the minor were regular, but she had a history of arriving late. On some occasions she arrived so late that
the visits were canceled. The Department
reported that when mother did have visits, she was appropriate, loving and
creative with her time.
As a
supplement to its report, the Department informed the juvenile court that
mother checked into a residential recovery facility on January 10, 2011, but she then checked herself
out three days later.
name="_ftnref3" title="">[3] The foster father complained to the
Department that three days in a row in mid-January, mother called by phone
dozens of times. He requested that
mother comply with the phone call schedule, which was 6:00 p.m. to 7:00 p.m. on weekdays but not
weekends. Upon visiting the social
worker’s office, mother was very intense and hyper. The next day, when the social worker spoke to
mother by phone, her speech was very rapid.
Both occasions, the social perceived that mother was under the influence
of an amphetamine substance of some kind.
A few days later, the foster father complained that mother harassed him
by repeatedly calling over the weekend.
The review hearing
of January 24, 2011
The juvenile court signed an order making the minor’s
foster parents his educational representatives.
Additionally, the juvenile court instructed the social worker and
mother’s counsel to inform her that if she did not comply with the phone
schedule, her phone contact might by terminated.
In March
2011, at mother’s request, the Department agreed to change the location of her
visits to A Change of Faces.
In advance
of the next review hearing, the Department reported that mother refused to
submit to random drug testing and was not in a drug treatment program. During the reporting period, mother was
granted monitored visitation for three hours a week. Her visitation, however, was sporadic. She often did not show up. Other times, she was 20-45 minutes late
despite being aware that there was only a 15 minute grace period. In the prior six months, she had missed an
average of three to four of the possible eight or nine visits per month. The minor became very distressed when mother
did not appear for a visit.
In the
meantime, the minor remained in his foster care placement. He was attending pre-school and demonstrated
significant progress in his peer and social interaction, and in his speech and
language.
The
Department recommended that the juvenile court terminate reunification
services.
Prior to
the hearing, the Department filed an addendum.
It reported that mother had been arrested for possession of an illegal
substance on two occasions since the section 387 petition was sustained.
The review hearing
of May 25, 2011
The juvenile court found that mother was not in
compliance with the case plan and terminated reunification services. The matter was continued for a permanent
placement hearing pursuant to section 366.26.
For the
permanency hearing, the Department reported that the minor’s paternal
grandmother in Arizona had been
identified as the prospective adoptive parent.
The social worker was preparing documents to submit to Arizona
under the Interstate Compact for the Placement of Children (ICPC). In a subsequent report, the Department noted
that when the social worker picked the minor up to visit mother, he asked the
social worker for reassurance that he would be returned to the home of his
foster parents. The foster parents
reported that following the minor’s visits with mother, he would take his
pillow and blanket into the foster parents’ bedroom during the night and they
would find him sleeping on the floor in the morning. The social worker asked the minor why he
sleeps in the foster parents’ room. He
said that he gets scared and he feels safe in their bedroom.
Regarding
visitation, the Department reported that a monitor at A Change of Faces
permitted mother to speak in a derogatory fashion about the foster parents,
which caused him distress. When the
visits were over, he went to his foster mother in tears and said mother was
mean to the foster mother. At one point,
mother told the minor he would be living with her at her house. As a result, the minor expressed anxiety and
confusion to the social worker.
In a
section 366.26 report, the Department reported that the paternal grandmother had
stayed in California for two weeks and had visited the minor during mother’s
visits. The visits reportedly went
well. The paternal grandmother indicated
that she was interested in adopting the minor.
On November
22, 2011, the Department filed a last minute information for the court that
indicated the following. Dena K., a
social worker from Penny Lane, expressed concern that mother and her boyfriend
might try to abduct the minor from A Change of Faces. In the past, staff at Penny Lane had barely
talked mother out of taking the minor from their parking lot. Prior to Halloween, mother kept telling the
minor to remember her costume. On
Halloween, the foster parents saw a man parked in a car on their street. He watched as people came and went from the foster
parents’ house. The car had the same
sticker mother has on her vehicle. The
sticker depicts the cartoon character Calvin urinating on the words “Penny
Lane.â€
The
Department’s supplemental section 366.26 report indicated that paternal
grandmother had not been approved through the ICPC. New prospective adoptive parents, Mr. and
Mrs. P., were identified. They were
committed to providing the minor permanency by adoption.
In a subsequent report, the
Department informed the juvenile court that in October 2010, mother was
arrested for possession of a controlled substance in violation of Health and
Safety Code section 11350, subdivision (a).
She was convicted. In March 2011,
mother was placed on formal probation for three years under the terms of Proposition
36. A few months later, a bench warrant
issued for her arrest due to her failure to appear in court. In July 2011, mother admitted to violating
the terms of her Proposition 36 probation and the trial court found that she
was not amenable to treatment. She was
placed on probation for three years and ordered to serve 21 days in county
jail. In 2012, mother was incarcerated
on three occasions, including a stint in county jail from April 21, 2012, to
May 11, 2012. During the reporting
period, mother’s visits with the minor were sporadic. Sometimes she missed visits because of her
incarceration, but other times she missed the visits without explanation.
The foster
parents reported that on February 14, 2012,and May 14, 2012, their home was
being watched by a man and woman in a parked car. They believed it was mother and her
boyfriend.
While
placed with Mr. and Mrs. P, the minor was referred for a psychological
evaluation after demonstrating disturbing behavior. On several occasions, he smeared his feces on
walls and bathroom fixtures. When he was
angry, he would tear up his room and break his toys.
Mother’s
phone call
Mother called the social worker on
May 14, 2012, and asked to have the minor returned to her custody. The social worker explained that the
Department was concerned about his safety and that she needed to be clean and
sober. When reminded that the case came
to the attention of the Department when mother was driving under the influence
of drugs with the minor in the car, mother argued that being under the
influence of drugs while driving was not dangerous to the minor.
At the
hearing on May 22, 2012, mother’s counsel said, “[T]oday mother has given me a
[section] 388 [petition] which I’ve given to all attorneys in the court with
the attachments, and so I’d ask the court [to] consider that, if not today,
sometime in the near future. Basically
it’s a request for either unmonitored visits or visits to be back at [A] Change
of Faces.â€
In her petition, mother claimed
that the juvenile court had entered a restrictive visitation order on an
unspecified date. Mother identified the
following change in circumstances:
“There is no risk of abduction evident by attached statement made by
Virginia Arcos [(Arcos)]. ‘A Change of
Faces’ is an approved facility for monitored visitation which provides much
more positive environment.†Arcos was
the executive director of A Change of Faces.
She wrote a letter stating in part that A Change of Faces had no fear
that mother would abduct the minor. With
respect to the order being requested, mother stated: “Visits to be allowed at A Change of Faces or
unmonitored visitation over the d[i]scretion of [the Department].†To demonstrate that the requested order would
be in the minor’s best interests, mother averred: “The [Department] has minimum time and space
to allow joyful quality time.
Communication is limited between [the Department] and mother and [their]
statements addressed to the court are full of slander.â€
The
juvenile court denied the petition on the grounds that the “request [did] not
state new evidence or a change of circumstances†and the “proposed change of
order . . . does not promote the best interests of the child.â€
information for court
According
to the Department, the minor remained in confidential foster care
placement. He was affectionate with his
caregivers and foster siblings.
Regarding
mother, the Department reported that a monitor at A Change of Faces was concerned
about security for visits. On the day of
a scheduled visit, mother called from outside the facility to say that she did
not want the minor to see her “like this.â€
She was shaking as though experiencing withdrawals. Then she hovered around the facility acting
unusual. In November 2011, her visits
were changed from A Change of Faces back to the Department because of her
reported flagrant disregard for the rules of monitored visitation. Mother objected and, at her request, the
Department made a referral to Grace Resources for monitored visits. Grace Resources interviewed her and observed
strange behavior. Also, the man who
accompanied mother to the interview was observed walking around the parking lot
with a flashlight. Grace Resources
declined to monitor the visits. Then, on
December 15, 2011, after a visit was terminated early due to mother’s behavior,
mother met with a social worker, motioned to the guard in the lobby, and
stated: “Do you really think that
security . . . could stop me if I really wanted to take [the
minor]?’†A court issued an order
restraining mother and her boyfriend from going to the current foster parents’
home or stalking the minor.
In a last
minute information for court memo, the Department informed the juvenile court
of the following. The minor reported to
the foster mother that mother told him to hurt his two foster siblings, and
that mother put a hole in his favorite toy, a Harry Potter owl, and took out
two hearts. The foster mother looked at
the toy and discovered that there was a large hole in the heart area. The monitor at the visit stated that mother
had been whispering to the minor. Also,
he saw mother with the owl and heard a ripping sound. He watched her take out the hearts.
When mother
visited with the minor the next time, she discussed the dependency case. The monitor instructed mother to stop. Mother argued with the monitor and the visit
was terminated.
The section 366.26
hearing
Mother did not appear for the contested section 366.26
hearing, and her attorney asked for a continuance. The request was denied.
Mother’s
attorney did not offer evidence.
Instead, he made the following statement: “I don’t have the mother here to tell me what
she wants me to say, but I’m very sure, after what we’ve been through, this
case has been long term, that she doesn’t want her parental rights
terminated. [¶] So I would just say that although she has
missed visits off and on, I think the visits have been fairly regular. I don’t think they’ve been perfect, but I
think they have been regular, and I know that all the reports basically come
back saying that when she does visit, the visits are excellent. [¶]
And there was some kind of information for the court today. It has some negative information in it, but
even a month ago the [section 366.26] report said visits were excellent. [¶] So
I would just suggest that the [minor] would benefit from continuing contact
with mother and that would outweigh the permanency of adoption and ask the
court not to terminate mother’s parental rights today.â€
In
rejoinder, the Department’s counsel stated, “I would like to make a comment
with regards to mother’s visitation.
While mother does have a somewhat consistent visitation, I don’t believe
it’s in the [minor’s] best interests or the [minor] would continue to benefit
from the mother’s parental rights not being terminated.†The juvenile court indicated that “[b]enefit
is not the exception to be applied.†The
Department’s counsel said, “Okay. The
mother is often inappropriate with the minor.
Says inappropriate things during the visits. [The minor] deserves a permanency in adoption
with his current caretakers. I don’t
believe it’s in the [minor’s] best interest[s] to continue mother’s parental
rights.†The minor’s counsel agreed with
the Department and said, “The mother does visit with [the minor], but her
behavior is questionable. And her
ability to . . . achieve and maintain sobriety is also
questionable. [The minor] is still
young. He has been in the system quite a
few years. I think it would be in his
best interest[s] for the court to terminate parental rights so he can be
adopted.â€
After
hearing argument, the juvenile court ruled.
It stated the issue was whether the minor “could be substantially harmed
if the relationship with his mother was to be severed. Although the visits have been appropriate
when they do occur, that is not enough for the exception to apply.†The juvenile court concluded that “no
exception to the adoption applies in this case†and terminated the parental
rights of mother and father.
These
appeals followed. Subsequently, after
appointed counsel filed a no issues brief, mother filed an application to
expand appointment of counsel to file a petition for writ of habeas corpus.
DISCUSSION
I. The Appeal.
The
California Supreme Court instructs that “appointed counsel for a parent in an
appeal from an order of the juvenile court affecting parental rights who finds
no arguable issues need not and should not file a motion to withdraw, but
should (1) inform the court he or she has found no arguable issues to be
pursued on appeal, (2) file a brief setting out the applicable facts and the
law, and (3) provide a copy of the brief to the parent.†(Phoenix
H., supra, 47 Cal.4th at
p. 843.) The Court of Appeal does
not have to allow the parent to file an appellate brief unless there is a
showing of good cause that an arguable issue exists. (Id.
at p. 844.) If the parent does not
make the requisite showing, the appeal can be dismissed. (Id.
at p. 846.)
Pursuant to
Phoenix H., we have reviewed the
brief filed by mother and conclude that she has not demonstrated the existence
of an arguable issue. We address each of
mother’s contentions below.
A. Ineffective
assistance of counsel.
Mother
contends that she received ineffective assistance of counsel. She
further contends that her ineffective assistance of counsel claim is reviewable
on appeal because there can be no satisfactory answer for her attorney’s
tactics. (In re Darlice C. (2003) 105 Cal.App.4th 459, 463 (
of counsel in the dependency context by applying a two-part test. In the first step, we examine whether trial
counsel acted in a manner expected of a reasonably competent attorney acting as
a diligent advocate. If the answer is
no, we move to the second step in which we examine whether, had counsel
rendered competent service, the outcome of the proceeding would have been more
favorable to the client.
[Citation.]†(
1317, 1329–1330.)
Though
unclear, mother seems to suggest that the first time she received ineffective
assistance of counsel was at the January 8, 2010, jurisdictional/dispositional
hearing. She complains that her attorney
did not give her a copy of an amended section 300 petition and did not file an
opposition. The record discloses that
the original petition was amended by interlineations. Some words were crossed out of count
b-1. Also, the underlined words in the
following sentence were added to count b-1:
“On 09/02/2009, while the mother was transporting the [minor] in a car,
she was arrested for Driving Under the Influence of Drugs [and] Child
Endangerment.†The timing of the
interlineations is not apparent from the face of the appellate record, so it is
not clear that mother’s attorney could have given her a copy prior to the
hearing. What is clear is that the
interlineations did not change the import of count b-1, which was that minor
was at risk of harm due to mother’s dependency on illegal substances. Moreover, attorneys in dependency proceedings
do not file oppositions to section 300 petitions. In any event, these issues are beyond our
jurisdiction to consider because mother did not appeal from the orders of
January 8, 2010.
In mother’s
view, her attorney provided ineffective assistance when he did not challenge
the juvenile court’s January 8, 2010, jurisdictional and dispositional orders
by way of motion to reconsider, writ petition or section 388 petition. Because those orders were not appealed, it is
unclear whether we have the power to review her claim that her attorney should
have challenged those orders. In any
event, mother does not explain what her attorney was supposed to argue and why
the suggested tactics would have obtained a better result. We easily conclude that the record does not
show, on its face, that counsel failed as an advocate.
Next,
mother asserts that there is no reason why her attorney did not participate in
the section 388 petition she filed in 2011.
But he did. The record indicates
that mother gave her section 388 petition to her attorney and then her attorney
gave it to the juvenile court and the other parties. Also, mother’s attorney urged the juvenile
court to consider the petition. Subsequently,
the juvenile court denied the section 388 petition without an evidentiary
hearing on the grounds that the petition did not make a prima facie showing
regarding (1) new evidence or changed circumstances and (2) that a change in an
existing order would promote the best interests of the minor. In doing so, the juvenile court exercised its
discretion. (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642 [“[u]nless the
moving party makes a prima facie showing of both elements, the petition may
[be] denied without an evidentiary hearingâ€].)
Mother does not contend that she made a prima facie case and that,
therefore, the juvenile court abused its discretion. More importantly, she does not explain what
more her attorney could have done, i.e., that if he had drafted the section 388
petition himself, he would have identified successful arguments. On this record, we cannot conclude that her
attorney was incompetent per se.
Additionally, we note that due to mother’s ongoing drug use, her attempt
and threats to kidnap the minor, her disturbing behavior at A Change of Faces
and at the Department’s facilities, and A Change of Faces’ refusal to monitor
any more visits at its facility because of mother’s noncompliance with rules,
we perceive no grounds upon which the juvenile court would have ordered the
Department to provide mother with unmonitored visits or with visits at A Change
of Faces.
As a
corollary, mother suggests that her attorney should have filed a separate
section 388 petition. Again, she does
not indicate what the substance of such a petition should have been. Consequently, it is impossible to conclude
that her attorney did not live up to his professional responsibilities. From her brief, it appears that mother
believes that an attorney representing a parent in a dependency proceeding
should file a section 388 petition as a matter of course. That is not true. An attorney should only file papers that he
or she believes to have merit. In this
case, because of mother’s continuing drug use, sporadic visits and erratic
behavior, we cannot conceive of any grounds upon which the juvenile court would
have altered its visitation order or decided to grant additional reunification
services.
Moving on
to the section 366.26 hearing, mother argues that there is no satisfactory
explanation for her attorney’s failure to file a trial brief, trial exhibits
and a motion in limine. We
disagree. Typically, no one files a
trial brief for a section 366.26 hearing.
With respect to exhibits, a juvenile court normally only considers the
Department’s reports and attachments to those reports. Oftentimes, the attachments contain evidence
favorable to the parent such as letters from friends, therapists, counselors
and others. While motions in limine are
common in civil and criminal trials, they are not common in dependency
cases. Thus, the actions of mother’s
attorney appear to fall within the norm.
Mother
contends that her attorney should have (1) objected to the statement by the
social worker who said the minor asked for assurances he would be returned to
his foster parents’ home and (2) cross-examined the social worker as to that
statement. But this is not a case in
which it can be said that there are no satisfactory explanation for her
attorney’s tactics. At the contested
section 366.26 hearing—which was conducted in mother’s absence because she
failed to appear—mother’s attorney indicated that he did not know what mother
wanted to do. However, he proceeded to
argue that parental rights should not be terminated due to the beneficial
relationship exception. In his argument,
he focused on the relationship between mother and the minor, and he mentioned
how well their visits went. It is conceivable
that mother’s attorney did not object to or otherwise challenge the social
worker’s statement because he did not want to dwell on a statement that
undercut his argument. Or perhaps he
realized, based on his experience, that challenging the statement was
pointless. Simply put, the record does
not demonstrate irrefutable incompetence.
Beyond that, we cannot ignore that the juvenile court ruled that the
beneficial relationship exception was not applicable. We fail to see any potential prejudice to mother.
Last,
mother avers that her attorney should have given her the opportunity to file a
section 388 petition immediately after the June 25, 2012, section 366.26
hearing. There is a flaw in this
argument. Once a section 366.26 hearing
is held, a parent can no longer file a section 388 petition. (In re
Marilyn H. (1993) 5 Cal.4th 295, 309 [“A petition pursuant to section 388
may be used to raise [an] issue in the trial court prior to the section 366.26
hearingâ€].) Thus, it cannot be said that
mother’s attorney acted in an incompetent manner.
B. The termination of parental rights.
Mother
argues that her parental rights should not have been terminated because the
minor was not adoptable and because the juvenile court should have applied the
beneficial relationship exception.
At a section 366.26 hearing, the
juvenile court must find adoptability by clear and convincing evidence. (In re
I.W. (2009) 180 Cal.App.4th 1517, 1525 (I.W.).) But “[t]he ‘clear and convincing’ standard
specified in section 366.26, subdivision (c)(1)[] is for the edification and
guidance of the trial court and not a standard of appellate review. [Citations.]â€
(I.W., supra, at p. 1525.)
“Thus, on appeal from a judgment required to be based upon clear and
convincing evidence, the clear and convincing test disappears and ‘the usual
rule of conflicting evidence is applied, giving full effect to the respondent’s
evidence, however slight, and disregarding the appellant’s evidence, however
strong.’ [Citation.]†(Id.
at p. 1526.) In other words, if a
finding of adoptability is supported by substantial evidence, then an appellate
court cannot second guess the finding. (
The courts are split regarding the
standard of review of a finding regarding the existence of an exception to the
termination of parental rights. Some
courts apply the substantial evidence test (In
re C.F. (2011) 193 Cal.App.4th 549, 553) and other courts apply review for
an abuse of discretions (In re Jasmine D.
(2000) 78 Cal.App.4th 1339, 1351.) Both
standards are deferential.
Mother’s task is to demonstrate an
arguable issue regarding adoptability or the exception. She has failed to do so.
“In making
the determination of adoptability, the juvenile court ‘must focus on the child,
and whether the child’s age, physical condition, and emotional state may make
it difficult to find an adoptive family.’
[Citation.] ‘A child’s young age,
good physical and emotional health, intellectual growth and ability to develop
interpersonal relationships are all attributes indicating adoptability.’ [Citation.]
‘If the child is considered generally adoptable, we do not examine the
suitability of the prospective adoptive home.
[Citation.] However, where the
child is deemed adoptable based solely on the fact that a particular family is
willing to adopt him or her, the trial court must determine whether there is a
legal impediment to adoption.’
[Citation.] [¶] ‘A prospective adoptive parent’s … interest
in adopting is evidence that the child’s age, physical condition, mental state,
and other matters relating to the child are not likely to discourage others
from adopting the child.’
[Citation.]†(
Here, there
is evidence that Mr. and Mrs. P. were committed to adopting the minor. Mother has not indicated that there is a
legal impediment to adoption. Moreover,
there was substantial evidence of general adoptability. While the minor exhibited some disturbing
behaviors, he was only five years old and the evidence demonstrated that he fit
in well with his foster family.
In her
appellate brief, mother cites section 366.26, subdivision (c)(1)(A) as the
beneficial relationship exception. It
therefore appears that she has confused subdivision (c)(1)(A) with subdivision
(c)(1)(B)(i), which provides that parental rights will not be terminated if the
juvenile court finds a compelling reason for determining that termination would
be detrimental to a child because the parent has regular visitation and contact
and the child would benefit from continuing the relationship. Presumably, mother’s argument is based on that
subdivision.
Mother had the burden establishing
the beneficial relationship exception. (
529, 534.) Her brief, however, does not
raise an arguable issue as to whether that burden was met. The beneficial relationship exception applies
if a parent has “maintained regular visitation and contact with the child and
the child would benefit from continuing the relationship.†(§ 366.26, subd. (c)(1)(B)(i).) As explained in In re Mary G. (2007) 151 Cal.App.4th 184, 207: “A parent must show more than frequent and
loving contact or pleasant visits.
[Citation.] ‘Interaction between
natural parent and child will always confer some incidental benefit to the
child. . . . The parent must show he or she occupies
a parental role in the child’s life, resulting in a significant, positive,
emotional attachment between child and parent.
[Citation.]†After the section
387 petition was sustained, mother’s visits were sporadic and always
monitored. Toward the end, mother
damaged the minor’s toy owl and told him to hurt his two foster siblings. We easily conclude that mother did not occupy
a parental role in the minor’s life.
Moreover, mother failed to demonstrate the type of parent-child
relationship that triggers the exception because it “‘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. . . .’ [Citation.]â€
(In re Brandon C. (1999) 71
Cal.App.4th 1530, 1534.) Because of her
ongoing substance abuse, mother missed visits and was often incarcerated. Her drug use has clearly impaired her ability
to be a good parent. As late as a month
before the section 366.26 hearing, mother argued to a social worker that
driving under the influence of an illegal substance with the minor in the car
was not dangerous. When she missed
visits, the minor was upset. He wanted
assurances that he would not have to stay with mother. In contrast, the evidence showed that he was
bonded to his foster family. In our
view, the juvenile court’s ruling on the beneficial relationship exception
would be upheld whether we applied a substantial evidence or an abuse of
discretion standard of review.
II. The Application to Expand Appointment of
Counsel to File a Petition for Writ of Habeas Corpus.
A. The law.
“‘In
general, the proper way to raise a claim of ineffective assistance of counsel
is by writ of habeas corpus, not appeal.
[Citations.]’†(
establishment of ineffective assistance of counsel most commonly requires a
presentation which goes beyond the record of the
trial. . . . Action taken or not taken by counsel at
a trial is typically motivated by considerations not reflected in the
record. . . . Evidence of the reasons for counsel’s
tactics, and evidence of the standard of legal practice in the community as to
a specific tactic, can be presented by declarations or other evidence filed
with the writ petition. [Citation.]’ [Citation.]†(Ibid.)
Some cases
hold that when a juvenile court orders the termination of parental rights, a
parent has the right to raise ineffective assistance of counsel through a
petition for writ of habeas corpus. (
530, 533–534 [it is appropriate “to raise the issue of ineffective assistance
of counsel by petition for writ of habeas corpus filed concurrently with an
appeal from a final orderâ€].) Other
cases state that section 366.26, subdivision (i)(l)
bars any type of collateral review of a juvenile court’s order terminating
parental rights. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1161–1163 [“[t]his
statutory language forbids alteration or revocation of an order terminating
parental rights except by means of a direct appeal from the orderâ€];
11, 15; In re Jessica K. (2000) 79
Cal.App.4th 1313, 1316.) For purposes of
ruling on mother’s application, we agree with the analysis in
B. The
merits of the application.
Family Code
section 7895 requires an appellate court to appoint counsel for an indigent
parent who appeals “from a judgment freeing a child who is a dependent child of
the juvenile court from parental custody and control.†Mother does not suggest that there is a
similar right for a parent who files a habeas petition, and we could not find
one in our independent research.
However, in general, an appellate court has discretion “to appoint
appellate counsel for a parent when parental rights are at stake.†(In re
Bryce C. (1995) 12 Cal.4th 226, 234 (Bryce
C.).)
In
Court of Appeal should appoint counsel upon request for a parent who was a
respondent. The court explained that
“constitutional considerations may mandate the appointment of counsel at least
on a case-by-case basis.†(
“Normally an appellate court should appoint counsel for the respondent
whenever the issues are complex or it contemplates reversing the
judgment. . . . We need not decide now, in a vacuum,
whether an appellate court may ever
deny counsel to a respondent parent and then reverse the judgment. But counsel should, at least, be appointed
whenever the appellate court contemplates rendering a decision
. . . that itself terminates parental rights. [¶]
. . . [¶] Some
appellate courts might find it more efficient, on balance, to exercise their
discretion by granting counsel to all responding parents in termination cases,
rather than on a case-by-case basis. We
do not require or prohibit either practice.
That is up to the courts themselves in the management of their
dockets. We merely hold that appellate
courts are not required to appoint counsel for all responding parents, but may,
and sometimes must, appoint counsel in specific cases.†(Id.
at pp. 234–235.)
Though
appeal rather than a potential petition for writ of habeas corpus, we find it
instructive. Moreover, we conclude that
in this context, Bryce C. and
appointed counsel files a no issues brief, the Court of Appeal need not allow a
parent to file an appellate brief absent a showing of good cause. The policy is based on the “state’s interest
in expediting juvenile proceedings in order to promptly achieve a permanent
placement for the child.†(
In our view, the same policy applies when considering a parent’s
application to expand appointment counsel to file a petition for writ of habeas
corpus when the parent challenges the termination of parental rights based on
ineffective assistance of counsel after appointed counsel has already filed a
no issues brief in a related appeal. A
child’s permanent placement should not be delayed unless a parent makes a prima
facie case for habeas relief. Any other
rule would permit a parent to cause unnecessary delay even though he or she has
not complied with the case plan and has no legitimate chance of prevailing.
We turn to
mother’s application to determine whether she has established good cause for
the relief she requests.
According
to mother, she “has before this court in her appeal an argument that trial
counsel failed to competently represent her at the section 366.26 hearing
because counsel failed to argue the [beneficial relationship] exception to
adoption. . . . [Citation.] Without the habeas petition, this court will
not have before it information about trial counsel’s ‘trial strategy’
. . . , or lack thereof as it turns out, in that trial counsel
failed to advise [mother] of the [beneficial relationship] exception to
adoptability; failed to advocate its application at the section 366.26 hearings
. . . ; and further because counsel represented [mother] at
[the] section 366.26 hearing without having any contact with [mother], without
making any attempt to locate her and without knowing her position and issues to
argue on her behalf.â€
In our
view, mother has not demonstrated good cause.
Her attorney did, in fact, argue the beneficial relationship
exception. To better make a case, he
needed mother’s testimony. Mother,
however, did not attend the hearing and the juvenile court denied her
attorney’s request for a continuance.
Even if mother had appeared and testified, it is extremely doubtful that
the result would have been different. On
the record, the juvenile court ruled that the exception did not apply. Thus, at the end of the day, mother’s drug
addiction, failure to comply with the case plan and distressing words and
actions undermined reunification. Though
she would like to, she cannot lay blame for her loss of parental rights at the
feet of counsel.
DISPOSITION
The
appeal is dismissed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________, Acting P. J.
DOI
TODD
_______________________________,
J.
CHAVEZ
All further statutory references are to the Welfare
and Institutions Code unless otherwise indicated.
time, as we have already indicated, the minor was only two years old. Mother’s statement lacked credibility.
