Opinion
B328347
08-29-2023
In re D.B. on Habeas corpus
Dominika Campbell, Los Angeles Dependency Lawyers, Inc., Law Office of Jolene Metzger, for Petitioner. Dawyn R. Harrison, County Counsel, and Aileen Wong, Senior Deputy County Counsel, for Respondent. Ann-Marissa Cook and David Malleis, Children's Law Center, for Minor A.B.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for habeas corpus. Gabriela Shapiro, Judge Pro Tempore Los Angeles County Super. Ct. No. 20CCJP00681C. Petition granted.
Dominika Campbell, Los Angeles Dependency Lawyers, Inc., Law Office of Jolene Metzger, for Petitioner.
Dawyn R. Harrison, County Counsel, and Aileen Wong, Senior Deputy County Counsel, for Respondent.
Ann-Marissa Cook and David Malleis, Children's Law Center, for Minor A.B.
KIM, J.
I. INTRODUCTION
D.B., mother of 20-month-old A.B. (the child), contends her counsel rendered ineffective assistance during proceedings in which the juvenile court terminated reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26. We agree and grant her petition for a writ of habeas corpus.
All further undesignated statutory references are to the Welfare and Institutions Code unless otherwise stated.
The Los Angeles County Department of Children and Family Services (the Department) advised this court that it takes no position in this matter. The child's counsel filed a letter with this court that stated the petition's arguments were "legally sound and persuasive," and made no objection to mother's requested relief.
II. BACKGROUND
A. Jurisdiction and Disposition
On January 2, 2022, the Department received a referral alleging neglect of the then three-week-old child. On January 14, 2022, the Department filed a section 300 petition alleging mother had a history of violent and assaultive conduct, mental and emotional problems, and substance abuse. The juvenile court later ordered the child detained and sustained the section 300 petition as to mother.
On April 7, 2022, the juvenile court appointed counsel to represent mother.
At the August 30, 2022, disposition hearing, the juvenile court declared the child a dependent of the court, removed her from mother's custody, and granted mother family reunification services, which included a full drug/alcohol program, random and on-demand drug/alcohol testing, a 12-step program, a 52-week domestic violence for perpetrators program, individual counseling to address case issues and anger management, and a psychiatric evaluation. The court also granted mother monitored visitation. Finally, the court advised mother that because of the child's age, mother would "likely only be offered six months of services," and if she did not "substantially comply with the case plan between now and the six-month date," the permanent plan for the child could be adoption.
In a status review report filed on February 23, 2023, the Department reported that while mother was incarcerated at a detention facility, she claimed she was unable to comply with her case plan because services were not available at the facility. The Department learned, however, that mental health, substance abuse, and other services and activities were available at the detention facility and that "inmates [were] encouraged to request services as needed for their own gain." The Department also explained that in January 2023, mother was transferred to a residential addiction treatment program, where she began receiving addiction rehabilitation services as well as psychiatric and counseling services. Mother told the Department that her new facility did not offer a domestic violence program and she would have to complete that program after her discharge in April 2023. The Department recommended that family reunification services be terminated and that the matter be continued for a section 366.26 hearing.
B. Six-Month Review Hearing
Mother attended the February 28, 2023, six-month review hearing in person. Mother brought with her three documents: (1) a certificate of completion of "Stimulant Use Recovery Education (SURE) substance abuse and mental health classes," dated August 18, 2022; (2) a certificate of participation in an eight week, 35 hour, "S.T.A.R.T. Program, which consisted of field based, individualized treatment services and Drug Education/Relapse Prevention, Life Skills, Criminal Addictive Thinking and Seeking Safety," dated December 7, 2022; and (3) a letter dated February 17, 2023, from mother's residential addiction treatment program, explaining that mother had entered treatment at the facility on January 10, 2023, and remained in treatment as of the date of the letter.
Mother's appointed counsel was working remotely on February 28, 2023, and did not appear in person for the hearing. Prior to the hearing, mother first met with a supervising attorney (supervising attorney 1) from mother's appointed counsel's firm. Mother provided supervising attorney 1 with the letter from her residential addiction treatment program. Supervising attorney 1 took a photograph of the letter and e-mailed it to mother's appointed counsel. The supervising attorney then called appointed counsel on his cellphone so that mother could speak to counsel. When asked by counsel for her goals for the proceedings, mother responded that she wanted the child to be released to her. Counsel also asked mother if she had engaged in any criminal activity after the child was detained, and mother replied she had not. When asked to describe visitation, mother responded that the visits were "'okay.'" Counsel then stated that she needed to log on for the hearing and asked mother if she had any questions, "which [m]other did not." Counsel did not ask mother if she had any evidence to present, whether she disagreed with the statements attributed to her in the Department's status review report, or whether she wanted to testify. Had counsel asked mother any of these questions, mother would have advised counsel about her certificate of completion and certificate of participation and told counsel that she was prepared to testify.
After the hearing commenced, the Department requested that reunification services be terminated. The child's counsel joined in that recommendation, on the grounds that mother had chosen not to participate in mental health and substance abuse programs that were offered at her detention facility. As child's counsel spoke, mother handed supervising attorney 1 the certificate of completion and certificate of participation, and supervising attorney 1 sent a chat message to mother's counsel, informing counsel about the certificates.
During closing arguments, the Department noted that although mother was now enrolled in a residential treatment program, she had been ordered to participate in the program by a criminal court and "it has sort of been made clear by mother's actions that she doesn't intend to participate any more than the bare minimum to stay out of jail." Mother's appointed counsel objected, on the grounds that the Department's counsel "stated what mother intends to do." When the court asked for a more specific grounds for the objection, counsel responded, "Well-" at which point the court asked to see counsel in chambers.
During the chambers conference, the juvenile court found that mother's counsel "had not made a good enough record to reflect [m]other's efforts." Supervising attorney 1 "requested the trial court consider all of the evidence, including some evidence [not] yet admitted, prior to making a decision." The court denied that request. Supervising attorney 1 then requested that another supervising attorney (supervising attorney 2) be allowed to continue argument on behalf of mother, on the condition that no new evidence would be discussed. The court granted that request.
After additional argument, the juvenile court found by clear and convincing evidence that mother's compliance with her case plan was "not substantial" and there was no substantial probability the child would be returned to her. The court declined to extend reunification services, "point[ing] to the argument made by the Department that . . . mother did not take advantage of the services available to her while she was in custody." Finally, the court noted that it did not "believe that . . . mother will be able to do anything she says she will do, especially because . . . mother only expects to graduate her program April 10th," which was longer than 12 months from removal. The court therefore terminated reunification services and set a section 366.26 hearing to occur in 120 days.
III. DISCUSSION
A. Applicable Law
Section 317.5 provides that "[a]ll parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel." "Although this right is merely statutory, it has been interpreted in substantially the same manner as the constitutional right to the effective assistance of counsel." (In re Daniel H. (2002) 99 Cal.App.4th 804, 812.)
Claims of ineffective assistance of counsel in dependency proceedings are properly raised in habeas petitions. (In re Paul W. (2007) 151 Cal.App.4th 37, 53.) "We address a claim of ineffective assistance 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." At the second step, the parent must establish prejudice, that is, "whether it is reasonably probable that a different result would have obtained in the absence of counsel's alleged incompetence." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1671-1672.)
At the six-month review hearing, the juvenile court "shall order the return of the child to the physical custody of [his or her] parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to [his or her] parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional wellbeing of the child...." (§ 366.21, subd. (e)(1).) "The failure of the parent . . . to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental." (Ibid.) Further, the court "shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which they availed themselves of services provided, taking into account the particular barriers to a minor parent or a nonminor dependent parent, or an incarcerated, institutionalized, detained, or deported parent's or legal guardian's access to those court-mandated services and ability to maintain contact with their child." (Ibid.) For children who were under the age of three on the date of initial removal, if "the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child . . . may be returned to their parent or legal guardian within six months . . ., the court shall continue the case to the 12-month permanency hearing." (§ 366.21, subd. (e)(3).)
"In a juvenile dependency proceeding, a parent generally has a statutory right to reunification services when his or her child is removed from the parent's custody at a disposition hearing. [Citations.]" (In re M.S. (2019) 41 Cal.App.5th 568, 590; see § 361.5, subd. (a).) For children who are under the age of three at the time of removal, reunification services, when granted, must be offered for a minimum period of six months and generally may be extended for up to a maximum total period of 18 months. (Michael G. v. Superior Court (2023) 14 Cal.5th 609, 620; § 361.5, subds. (a)(1)(B) &(3)(A).)
B. Analysis
Here, in advance of the six-month status hearing, the Department submitted a report noting that mother had failed to take advantage of substance abuse and mental health counseling programs at her detention facility and recommended that reunification services be terminated. Appointed counsel, however, did not advise mother about the Department's recommendations, ask her whether any of the statements in the status report were inaccurate, or ask about mother's compliance with court-ordered programs. On this record, we conclude that mother has demonstrated that her court appointed counsel did not act in "a manner expected of a reasonably competent attorney acting as a diligent advocate." (In re Ana C. (2012) 204 Cal.App.4th 1317, 1329.)
Mother has also demonstrated prejudice. The juvenile court terminated reunification services and set the section 366.26 hearing within 120 days based, in part, on its conclusion that mother had failed to participate in services while incarcerated. Although the impending 12-month mark from the date of removal also impacted the court's decision, we conclude that it is reasonably probable the court would have issued a more favorable order if it was aware that mother had participated in available services while incarcerated. Such evidence would have suggested that mother had made substantial progress in her case plan such that the extension of reunification services was appropriate. (§ 366.21, subd. (g)(1).) Accordingly, we conclude that appointed counsel rendered ineffective assistance.
IV. DISPOSITION
The petition for writ of habeas corpus is granted. The juvenile court is directed to vacate the order terminating reunification services and setting the section 366.26 hearing. The court is further directed to appoint mother new counsel, conduct a new review hearing as to mother, and make any appropriate findings and orders pursuant to section 366.21, subdivision (e). We direct the clerk of this court to forward a copy of this opinion to the State Bar of California and notify mother's appointed counsel in the juvenile court proceedings. (See Bus. &Prof. Code, § 6086.7, subds. (a)(2) &(b).) This opinion is final as to this court within 10 days of filing. (Cal. Rules of Court, rule 8.387(b)(3).)
We concur: BAKER, Acting P. J., MOOR, J.