In re Anna S.

Filed 7/31/07 In re Anna S. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Cheryl S. (appellant) appeals the order terminating her parental rights to her daughter, Anna S. (Anna) (Welf. & Inst. Code,  366.26, subd. (b)(1).)^[1]She contends the order was erroneous because her significant relationship with Anna satisfied the exception to termination, and because she received ineffective assistance from her original attorney at the earlier hearing at which reunification services and visitation were ordered terminated.^[2]

BACKGROUND

Detention and Dependency

Anna was born August 23, 2001. On September 4, 2004, she was taken into protective custody after the police found appellant passed out at her residence from alcohol intoxication and Anna running around without supervision. Dependency proceedings were initiated ( 300). Anna was adjudged a dependent of the court and continued in out of home placement. The court adopted the Napa County Department of Health and Human Services (Department) recommended family reunification plan, which required, inter alia, that appellant have, at a minimum, twice weekly supervised visits with Anna.

Three-Month Review

At the January 18, 2005, three-month review hearing appellant, who had earlier suspended her visits with Anna voluntarily because she was still using alcohol and believed her emotional state prevented her from spending appropriate time with her, requested that visits be resumed. The court ordered resumption following appellants clean drug testing.

Six-Month Review

The Departments report for the April 19, 2005, six-month review stated that appellant had complied with all court orders since the January 2005 hearing; that she believed she was making progress; and that she would like to have Anna live with her within the next six months. The Department recommended continued out of home placement for Anna and continued reunification services. The court adopted the Departments recommendations and set the matter for a 12-month review on September 22, 2005.

Visitation Modification

On June 17, 2005, the Department petitioned to have appellants visits with Anna increased to a minimum of two one-hour unsupervised visits per week. ( 388.) It sought the modification because appellant had been drug and alcohol free for more than 120 days, was in full compliance with her case plan, and visited Anna regularly. On July 19, 2005, the court granted the petition.

12-Month Review

The Departments report for the September 22, 2005, 12-month review recommended six more months of services for appellant. It stated that appellant was in compliance with the reunification plan, but her housing remained a major issue and she had been hospitalized briefly for anxiety and panic attacks. The 12-month hearing was continued to November 7, 2005, following which the court continued reunification services for appellant for six months and scheduled an 18-month review for March 9, 2006. Appellant was to have, at a minimum, four unsupervised visits per week with Anna, as well as telephone contact. Appellant was not present at the November 7, 2005 hearing.

18-Month Review

The Departments report for the March 9, 2006, 18-month review hearing recommended termination of appellants reunification services and setting a section 366.26 hearing to implement a permanent plan for Anna. Caseworker Deborah Sittner, who prepared the report, stated that she had not been in contact with appellant since October 19, 2005. At that time appellant had indicated to Sittner that it was in the best interest of her and Anna that they not reunify. Appellant had also indicated she was ready to move on with her life and was concerned that she was unable to provide the stable and safe home that Anna deserved. She also wanted Anna to be adopted by her foster parents, with whom she had lived since being taken into custody in September 2004. Appellants circumstances were unknown to the Department as of the March 9, 2006, 18-month status report, and she had not participated in her case plan since October 2005. She last visited Anna on October 31, 2005. Since then there were infrequent telephone calls between Anna and appellant. Appellant had asked the foster parents if she could meet with them and Anna, but, on direction from the Department, the foster parents declined the request without prior approval from the Department.

Annas court appointed special advocate (CASA) agreed with the Departments recommendations. She also recommended that Anna remain in her current placement, as all her special medical and developmental needs were being met there.

At the March 9, 2006, 18-month review hearing appellants attorney informed the court that she and appellant had read the Departments report, that they had discussed its recommendations and appellants options, and that appellant was prepared to submit on the report. The court found that all requisite notices had been given; the Department had complied with the case plan and made all reasonable efforts to return Anna to a safe home; appellants efforts towards alleviating the problems that led to Annas removal were minimal; and appellant had not made substantive progress in the treatment plan. It terminated reunification services and set July 6, 2006, for a section 366.26 hearing to select a permanent plan. It found that visitation between appellant and Anna would be detrimental to Annas best interest and ordered no further visitation. The court informed appellant of the procedures for writ review and the likely consequences of failure to seek such review and noted that the Departments attorney handed her the notice regarding filing such a writ. Appellant did not seek writ review of the order. (Cal. Rules of Court, rule 8.452.)

Section 388 Petition

On May 25, 2006, appellant petitioned for a change to the courts March 9, 2006 order, pursuant to section 388. She requested the court to reinstitute reunification services for six more months. Her supporting declaration stated that she was employed and had lived a clean and sober life for the previous six months. At the hearing on the section 388 petition, held June 20, and July 5, 2006, appellants attorney stated that appellant decided not to go forward with reunification in October 2005 due to a mental relapse and depressed state but had since gone off all medications, turned her life around, and believed she should be given another chance to reunify. Her attorney urged that the extraordinary circumstance of appellants mental health when she made the decision to waive reunification services in October 2005 should allow her additional time for reunification.

Appellant and her witnesses testified as to her depressed mental state and frustration and stress with her medical care and with social worker Sittner in October 2005, and the dramatic positive changes since the beginning of 2006. One witness had observed appellant several times during her afternoon visits with Anna after Annas school was out; he testified that appellant and Anna looked forward to seeing each other.

Appellant testified about a chance encounter with Anna in April 2006 when Anna and her nanny came into the coffee shop where appellant worked. Anna ran up to her saying, momma, momma. Appellant telephoned Annas foster parents that same evening, but they would not allow her to speak with Anna. The foster parents had telephoned her the previous November and December when she was in Arkansas so she could speak to Anna.

The court denied appellants section 388 petition because, by statute, it could not extend the time for reunification services absent extraordinary circumstances, and it did not find such extraordinary circumstances.^[3]

Section 366.26 Reports

The Department had filed its report for the originally scheduled July 6, 2006, section 366.26 permanent plan hearing on June 22, 2006. It recommended that appellants parental rights be terminated and a permanent plan of adoption be selected and implemented for Anna. The report stated that Anna had resided in her current placement since she was detained and considered her caregivers, who are her prospective adoptive parents, as her parents and her foster sister as her sister. She had a strong attachment to them, relied on them for support, guidance, and care, and was affectionate with them. It further stated that Anna had not had regular contact with appellant since October 2005, that she had sporadic contact with appellant in August and September 2005, that appellant occasionally telephoned Anna, and that appellant had been invited to Annas fourth birthday party in September 2005 but did not attend, although she had assured Anna she would be present. It noted that after visitation was terminated on March 9, 2006, Anna and appellant had an unexpected encounter when Annas nanny took her to appellants place of employment. The nanny was not aware that appellant worked there. Appellant took a photo of Anna and told her that she would see her again. Annas presumed father was also present and was crying. Anna initially enjoyed the encounter but became upset and overwhelmed by it. The report stated that Anna knew appellant, but that she did not appear to have a strong parental or familial attachment to her, and does not ask about her or ask to see her.

The adoption specialist social worker who prepared the accompanying adoption assessment opined that Anna was likely to be adopted by her foster parents and recommended appellants parental rights be terminated.

The report prepared by Annas CASA opined that Anna was highly adoptable and recommended that appellants parental rights be terminated.

At the scheduled July 6, 2006, section 366.26 hearing, appellant challenged the recommendation of adoption as a permanent plan on the grounds she and Anna had a relationship that was beneficial to Anna. The court therefore continued the matter for a contested hearing on August 15, 2006.

Marsden Motion

On August 3, 2006, the court heard and granted appellants Marsden motion to relieve her court-appointed attorney. (People v. Marsden (1970) 2 Cal.3d 118). When the court appointed new counsel for appellant five days later, it stated that it relieved her previous attorney because it found that the attorney/client relationship was irreparably broken, not because of any deficiencies in the previous attorneys representation.

Section 366.26 Hearing

After several continuances, the section 366.26 hearing took place on October 4, and November 6, 2006.

The court heard testimony from appellant, adoption specialist Janice Milthaler, social worker Sittner, psychologist Barbara McCarroll who met with Anna at the Therapeutic Child Care Center, and Nancy Norman, an acquaintance of appellants from the Napa Infant Program. The court found there was no beneficial relationship between appellant and Anna, a finding it based largely on appellants absence from Anna between October 2005 and March 2006, and the evidence that Anna never mentioned or inquired about appellant. The court concluded the Department met its burden of showing Anna was adoptable. The court terminated appellants parental rights and ordered adoption as a permanent plan.

DISCUSSION

Parent/Child Bond Exception

Appellant contends there was substantial evidence to support a finding that parental termination would be detrimental to Anna because appellant had maintained regular contact with Anna, and Anna would benefit from continuing the parental relationship.

When a court, based on the Departments adoption assessment and any other relevant evidence, determines by clear and convincing evidence that a dependent child is likely to be adopted, it shall terminate parental rights and order the child placed for adoption unless it finds a compelling reason for determining that termination would be detrimental to the child due to . . . the following circumstance[]: [] The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subds. (c)(1) & (c)(1)(A).)

Application of the section 366.26, subdivision (c)(1)(A) exception requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. [Citation.] (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.) The court must balance[] 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 confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. (Ibid.) The burden lies with the parent to produce evidence sufficient to persuade the court that the child would benefit from continuing the parent/child relationship. (Id. at pp. 1343-1345; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)

Substantial evidence supports the courts conclusion that appellant did not meet her burden of establishing the section 366.26, subdivision (c)(1)(A) beneficial parent/child exception. First, the exception requires that the parent have maintained regular visitation and contact with the child. It was undisputed that appellant, despite a right of generous, unsupervised visitation, did not have any personal visits with Anna from November 1, 2005 through March 9, 2006, when the court ordered termination of reunification services, and only sporadic telephone conversations during that period.

Second, social worker Sittner, psychologist McCarroll, and adoption specialist Milthaler testified that Anna, who was placed with her foster parents at age three, had a close, positive, and trusting attachment to them, that she identified them as her parents, and that she did not mention or inquire about appellant. Annas CASA reported that Anna was comfortable in her foster home, that she was not unhappy or discontented with the cessation of visits with appellant, and that she did not talk about appellant or express a desire to be with her.

Milthaler specifically testified that Anna had no reaction when she informed Anna that she might not live with appellant again. During her visits with Anna, Milthaler did not discern through Annas non-verbal communication any strong positive or negative relationship to appellant. She characterized the bond between Anna and appellant as a trauma bond: an attachment that forms with the people associated with traumatic events that happen in a childs life. Milthaler identified it as a trauma bond because Anna was defined as a special-needs child and had come into the foster care system. She opined that the bond between Anna and appellant was not healthy, and that, although having continuing contact with appellant would be in Annas best interest, she would not suffer detriment if parental rights were terminated.

Social worker Sittner opined that Anna had a bond with appellant, but it had not become sufficiently strong during the reunification period for reunification to occur. She did not think Anna had the trust in appellant that she (Sittner) would have expected in a normal parent/child relationship, and in her opinion Anna did not have a significant positive emotional attachment to appellant. She opined it would be detrimental to Anna not to terminate parental rights because she believed Anna deserved the permanence of a family that would rear her and on whom she could rely and in whom she could trust.

Appellant relies on the evidence that she and Anna had a close relationship before the dependency began in September 2004 to support her contention that she met her burden of establishing the section 366.26, subdivision (c)(1)(A) exception to termination of parental rights. She refers to the October 2004 disposition report that states that she and Anna greet each other with hugs and kisses and remain affectionate during their supervised visits.

Appellant also refers to the testimony of Nancy Norman, an early intervention assistant with the Napa Infant Program, who met appellant when Anna was referred to the program, which is a county agency that assists children with special needs. Norman visited appellant and Anna once a week at their house from the time Anna was 15 or 16 months old until several months before Anna was removed from appellant at age three years and two weeks. Norman observed that appellant and Anna really connected with each other and had a mother/daughter relationship. She opined that termination of appellants parental rights would be detrimental to Anna because she belongs to her mom. However, as of the November 6, 2006 section 366.26 hearing, Norman had not seen Anna since her removal in September 2004.

Appellant also refers to her own November 6, 2006, testimony wherein she testified that she was very protective of Anna during her first three years and was attentive to her special needs, including slow speech development.

[A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the childs need for a parent. It would make no sense to forego adoption in order to preserve parental rights in the absence of a real parental relationship. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Given appellants failure to maintain regular contact with Anna during the dependency period when she had court authorization to do so, and Annas evident close connection with her foster parents and lack of interest in appellant when not in her presence, the court could reasonably find that, while Anna and appellant may once have had a close bond, they no longer had the kind of parental relationship that permitted the exception to adoption.

Ineffective Assistance of Counsel

Appellant contends the ineffective assistance of her original attorney resulted in the termination of her parental rights. She asserts this attorney prejudiced her by submitting on the social workers report at the March 9, 2006, 18-month review hearing, a report that recommended both termination of reunification services and of visitation, and by recommending that appellant submit on the reports recommendation. She acknowledges that she made the same contention in her earlier appeal from the denial of her section 388 motion (A115153), and she refers to and incorporates the arguments she made in her brief in her earlier appeal in the present appeal.

We addressed these contentions in our earlier opinion affirming the denial of her section 388 motion. We reiterate that appellants claim of ineffective assistance is, in essence, a challenge to the March 9, 2006 order terminating reunification services and setting the section 366.26 hearing, and she is now precluded from contesting this order because she did not first challenge it with a timely petition for extraordinary writ ( 366.26, subd. (l); Cal. Rules of Court, rule 5.585(b); In re Merrick V. (2004) 122 Cal.App.4th 235, 247.)

We also reiterate that the correct vehicle for raising a claim of ineffective assistance of counsel is generally a writ of habeas corpus, not an appeal. (In re Darlice C. (2003) 105 Cal.App.4th 459, 463.) The establishment of ineffective assistance commonly requires presentation of facts outside the trial record, because trial counsels acts or omissions are typically motivated by considerations not reflected on the record. (Ibid.) Evidence of trial counsels tactics and 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. (Ibid.) An ineffective assistance claim is reviewable on direct appeal only if there simply could be no satisfactory explanation for trial counsels action or inaction. (Ibid.)

Appellant has not filed a writ of habeas corpus, but the record in the present appeal includes the transcript of the August 3, 2006 hearing on her Marsden motion. Her motion was based, in part, on her attorneys actions on the day of the March 9, 2006 hearing. At the August 3 Marsden hearing, appellant described her March 9 meeting in the court house lobby with her attorney before the hearing began. She also told the court at the Marsden hearing that her attorney on March 9 should have taken appellants then-current situation and recent history into consideration and explained it to the court at the March 9 hearing, rather than simply submitting on the record and the Departments report.

In her response at the August 3 Marsden hearing, appellants attorney explained why she had counseled appellant on March 9 as she did.

Although it granted appellants Marsden motion, the court specifically found that her attorneys performance had not been in any way deficient, that her attorney had told her the truth on March 9 regarding her circumstances, and that her attorney had not acted other than [as] a diligent, capable advocate.

These findings by the trial court in conjunction with appellants Marsden motion militate against our concluding on this record that there was no satisfactory explanation for appellants attorneys actions at the March 9 hearing. (In re Darlice C., supra, 105 Cal.App.4th 459 at p. 463.) Consequently, we reject appellants contention of ineffective assistance of counsel.

DISPOSITION

The order is affirmed.

_________________________

Jones, P.J.

We concur:

________________________

Simons, J.

________________________

Needham, J.

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^[1]All further section references are to the Welfare and Institutions Code.

The parental rights of Annas presumed father were also terminated, but he has not appealed the order.

^[2]In an unpublished opinion filed June 28, 2007 (A115153) we affirmed the denial of appellants section 388 petition to set aside the order terminating reunification services.

^[3]As noted in footnote 2, ante, we affirmed the denial of appellants section 388 petition.