Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. SJ12444A-C, Garry G. Haehnle, Judge.
O'ROURKE, J.
Jose M. appeals juvenile court dispositional orders regarding his children, Bianca M., Brianna M. and Joel M. (together, the children). He contends he was not provided effective assistance of counsel because his counsel did not request that he assume custody of the children or that he be provided reunification services. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On September 8, 2010, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of nine-year-old Bianca, six-year-old Brianna, and four-year-old Joel under Welfare and Institutions Code section 300, subdivision (b), alleging they were at substantial risk because their mother, A.M., abused illicit drugs, and drug paraphernalia was accessible to the children in the family home.
Statutory references are to the Welfare and Institutions Code.
A.M. said Jose was incarcerated. In 2008 he had been convicted of driving under the influence of drugs or alcohol with hit and run, and had been sentenced to six years in prison. It was reported he was scheduled to be released in one and one-half to three years.
Attorney Annie Greenleaf was appointed to represent Jose. She appeared on his behalf at the September 10 detention hearing. At the hearing the court made findings of paternity and authorized the Agency to send Jose prison parenting packets and a calling card so he could telephone the children from prison. The court ordered the children detained and set the jurisdictional and dispositional hearing for October 20 to allow Jose to be produced from custody.
The social worker learned Jose had been arrested in 2006 for public intoxication after a domestic violence incident. There also were reports that both parents used drugs and alcohol and neglected the children.
The paternal grandmother and stepgrandfather (the grandparents) requested custody of the children. They were visiting the children each week and calling every day. The Agency began an assessment of their home.
At the hearing on October 20, Jose appeared with attorney Sabrina Ceraolo, who was specially appearing for Greenleaf. Ceraolo stated she had discussed the case with Jose and asked the court to enter a denial as to jurisdiction. She said Jose did not wish to appear at subsequent hearings and his main concern was that the children be placed with family members as soon as possible. The court found Jose is the children's father and entered a judgment of paternity. It set the case for a contested hearing and authorized Ceraolo's office to represent Jose.
Greenleaf appeared for Jose at the November 18 jurisdictional and dispositional hearing. The Agency reports were accepted into evidence. Greenleaf stated Jose denied the allegations and asked that the court find them not to be true. She said Jose was not requesting custody or reunification services. She asked the court not to base finding that no services would be provided on the fact of Jose's incarceration, but, instead, to note on the record that he was not requesting services and therefore the court need not deny them. The court asked whether it was required to deny services if Jose were not requesting them. Counsel for the Agency suggested that because Jose is the children's presumed father and the evidence showed placement with him would be detrimental to them, the court should deny services under section 361.5, subdivision (e)(1).
The court found the allegations of the petitions true, declared the children dependents of the court, removed them from parental custody, ordered them placed in foster care with discretion to the Agency to place them with the grandparents, and ordered reunification services for A.M. Counsel for the Agency informed the court that Jose would not be released until 2013. The court denied services to Jose, finding providing services to him would be detrimental because of the nature of the crime for which he was incarcerated and because he would not finish his sentence within the statutory time limits allowed for reunification services.
DISCUSSION
Jose contends he did not receive effective assistance of counsel in that his counsel did not request that he receive custody of the children and did not request that he be provided reunification services. He argues his counsel could have had no possible tactical reasons for not making these requests and he was prejudiced by his counsels' failings.
Section 317.5, subdivision (a), provides "[a]ll parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel." In order to establish that his counsel in a dependency proceedings was ineffective, a parent " must demonstrate both that: (1) his appointed counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates; and that (2) this failure made a determinative difference in the outcome, rendering the proceedings fundamentally unfair in that it is reasonably probable that but for such failure, a determination more favorable for [the parent's] interests would have resulted.' [Citations.]" (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.)
"A court need not evaluate whether counsel's performance was deficient before examining prejudice suffered by defendant. [Citation.] Thus, a court may reject a claim if the party fails to demonstrate that but for trial counsel's failings, the result would have been more favorable to the defendant." (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.)
Jose's attorney represented to the court that Jose was not requesting custody or services and he did not want a court order denying him services. If this statement did not accurately reflect Jose's position, he could have made this challenge through a petition for a writ of habeas corpus. (See In re N.M. (2008) 161 Cal.App.4th 253, 270.) Generally, the proper way to raise an ineffective assistance of counsel claim is by a petition for a writ of habeas corpus, not by an appeal. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1253, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
In any event, Jose has not shown he was prejudiced by his attorney not requesting custody or reunification services.
Section 361.2, subdivision (a), provides when a court removes custody it must determine if there is a noncustodial parent who is requesting custody. If that parent requests custody, it must place the child with him or her unless it finds by clear and convincing evidence that the placement would be detrimental. "[T]he noncustodial parent is not entitled to reunification services if he or she does not seek custody and, even if that parent does seek custody, the court must determine whether reunification is appropriate." (R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1271.) The court may consider placing the child with a noncustodial incarcerated parent if the parent seeks custody and is able to make appropriate arrangements for the child's care during the parent's incarceration, and placement with the parent is not otherwise detrimental. (In re Isayah C. (2004) 118 Cal.App.4th 684, 700.)
There were numerous factors present in this case on which the court could have based a finding that it would be detrimental to place the children with Jose, including the crime for which he was serving his current sentence, drunk driving with a charge of hit and run, as well as his history of substance abuse and past neglect of the children. Jose has made no showing that he was prejudiced by his counsel not asking that he receive custody of the children.
He also has not shown prejudice by his counsel not requesting reunification services for him. Section 361.5, subdivision (e)(1) states, "[i]f the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines by clear and convincing evidence, those services would be detrimental to the child."
If the child is three years or older at the time of removal, court-ordered services may be provided for no longer than 12 months from the date the child entered foster care unless the parent shows certain elements of the statute. (§ 361.5, subds. (a)(1)(A) & (a)(3).)
At the hearing in November 2010, the court learned Jose's release date was in 2013. Because Jose would be in prison for at least two more years the court found providing services to him would be detrimental in that he would not be able to complete his sentence within the statutory time allowed for reunification services. The court also found providing services would cause detriment because of the nature of the crime for which he was incarcerated. Jose has not shown the court would have ordered services had his counsel asked that they be provided to him. He has not shown prejudice.
DISPOSITION
The orders are affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.