Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County. No. CK 61141 Steve Berman, Juvenile Referee.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.
Dominic M., the alleged father of minor S.S., appeals from the dependency court order terminating his parental rights in the child. As set forth below, we affirm that order. We also asked the parties to brief the issue whether Dominic M. received ineffective assistance from his court-appointed lawyer. We have decided to treat those briefs as a petition for writ of habeas corpus. Because any error by trial counsel was not prejudicial, we deny that petition.
We have distilled the record and narrowly tailored the statement of facts to closely fit the issues on appeal.
Christina S. (mother) gave birth to S.S. in April 2003. In October 2005, the Los Angeles County Department of Children and Family Services (DCFS or respondent) filed a petition to declare S.S. a dependent of the court based on allegations that mother’s drug use and failure to properly care for S.S. placed the girl at risk of physical and emotional harm. (Welf. & Inst. Code, § 300, subd. (b).) Even though mother was married to Jeremy S. when S.S. was born, she claimed that Dominic M. was the girl’s father. According to mother, Dominic M. had lived with S.S. briefly after her birth, had been in and out of her life, and his whereabouts were unknown. However, Jeremy was named as the girl’s father on her birth certificate, and mother later admitted that she had had a sexual relationship with both Jeremy and Dominic M. during the period when S.S. was conceived.
All further undesignated section references are to the Welfare and Institutions Code.
In January 2006, an amended petition was filed that named Dominic M. as an alleged father and which claimed jurisdiction was proper as to Dominic M. because he had failed to protect S.S. from mother’s drug use. In May 2006, the court learned that Dominic M. was hospitalized in prison. Lawyer Henry Parks was appointed to represent Dominic M. at that time. It appears that respondent’s dependency petition was unopposed and the court sustained the petition in June 2006. The court terminated mother’s reunification services and denied those services to Dominic M. because he was merely the alleged father, and not a presumed father. (§ 361.5, subd. (a).) Jeremy S. was denied reunification services because the court believed he was not truly a presumed father, but was merely an alleged father, and because his whereabouts were unknown. The court later had second thoughts about Jeremy S.’s status and made clear that Jeremy S. was S.S’s presumed father while Dominic M. was only an alleged father.
During the next year, S.S. lived with her maternal grandparents. S.S. was thriving there, and the grandparents wanted to adopt her. Accordingly, DCFS recommended termination of parental rights and the eventual adoption of S.S. Dominic M. wrote a DCFS case worker several times to express his belief that he was S.S.’s father, his love for the girl, his objections to adoption, and his desire to prove paternity by taking a DNA blood test. At a March 9, 2007 hearing, Dominic M.’s lawyer (Parks) told the court Dominic M. expected to be released from prison in 90 days and wanted to attend all future hearings. The court said a prison removal order should be prepared so Dominic M. could attend. When Dominic M.’s removal order was not prepared in time for a March 29 hearing, the matter was continued to May 10, 2007. At the May 10 hearing, Parks said he had been in contact with Dominic M., who wanted to attend and contest the planned termination of his parental rights. The court responded by showing Parks a waiver of appearance form for that hearing signed by Dominic M., which included a request that counsel be appointed to represent him. Even though the court believed Dominic M. had validly waived his appearance, the matter was continued to June 26, 2007, because of problems giving notice to the presumed father, Jeremy S.
At the June 26, 2007 hearing, DCFS provided the court a copy of a May 14, 2007, letter from Dominic M. stating that he chose not to appear at the May 10 hearing because he first wanted to be released from prison, get a job, and live in his own home. He again signed a waiver of appearance for the June hearing, which again included a request that counsel be appointed to represent him. Parks told the court he was surprised by the waiver and said he believed Dominic M. would be released from prison by the end of the month. Parks asked the court to continue the matter so Dominic M. could appear, but the court denied the request, finding Dominic M.’s signed waiver of appearance to be valid. The court went ahead with the hearing and terminated the parental rights of Dominic M., Jeremy S., and mother. On appeal, Dominic M. asks us to reverse because the trial court erred by denying his lawyer’s request for a continuance, and because he was never served with copies of the DCFS reports that recommended the termination of parental rights.
Neither mother nor Jeremy S. is a party to this appeal.
DISCUSSION
1. Denial of the Continuance Request Was Proper
A prisoner whose parental rights might be terminated in dependency proceedings has a right to attend the termination hearing unless the prisoner signs a knowing waiver of that right. (Pen. Code, § 2625, subds. (b), (d).) We review the dependency court’s denial of a request to continue a hearing under the abuse of discretion standard. (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.) Dominic contends the dependency court abused its discretion because there were legitimate questions concerning the validity of his signed waiver of appearance. The key discrepancy arises from his signed waiver for the ultimate June 26, 2007 hearing, which did not include a checkmark in the box next to the phrase “WAIVER OF RIGHT TO BE PRESENT AT HEARING AFFECTING PRISONER’S PARENTAL RIGHTS,” a box that he did check as part of his May 2007 waiver form.
We find the discrepancy meaningless. Immediately below that part of the waiver form, Dominic checked off the box stating that “I HEREBY WAIVE MY RIGHT TO ATTEND THE HEARING” and asked that a lawyer be appointed to represent him. Combined with his letter to the court stating that he did not wish to appear until he got his life in order, we find ample substantial evidence to support the dependency court’s finding that Dominic M.’s appearance waiver was valid and therefore see no abuse of discretion in denying his lawyer’s continuance request.
2. Failure to Send Dominic M. Copies of DCFS Reports
Pursuant to California Rule of Court 5.725(c), DCFS was obligated to send copies of its termination hearing assessment reports to Dominic M. and his lawyer. Although there is no dispute that the lawyer received those reports, Dominic M. contends that he did not, pointing to the notices of hearing sent to him which expressly stated that copies of the reports were not attached. According to Dominic M., the failure to provide him with those reports violated his constitutional due process rights and compels a reversal. We disagree.
First, a proof of service for a section 366.26 termination hearing that was scheduled in October 2006 includes a notation that the report was in fact mailed to Dominic M. Second, assuming for discussion’s sake only that the report was not mailed and that a due process violation occurred, we will not reverse unless a different result was reasonably probable. (In re Celine R. (2003) 31 Cal.4th 45, 60 [rejecting appellate court reliance on per se reversal for structural error in criminal cases, held that dependency court errors may be reversed only if a different result was reasonably probable]; accord In re Kobe A. (2007) 146 Cal.App.4th 1113, 1124 [failure to notify imprisoned father of proceedings was harmless error where his status as a prisoner made reunification all but impossible].) Apart from a generic assertion that without the report he was unable to decide how to proceed or defend himself, Dominic has raised no argument concerning the prejudice issue, and we therefore hold that the issue is waived. (Alliance for Children’s Rights v. Los Angeles County Dept. of Children and Family Services (2002) 95 Cal.App.4th 1129, 1139, fn. 4.) We alternatively affirm on the merits. Dominic M. does not contend on appeal that his lawyer did not receive the reports. Combined with our holding below that Dominic M. would never have qualified for reunification services with S.S., we hold that a different result was not reasonably probable even if Dominic M. had received the reports.
3. Ineffective Assistance of Counsel Claim
Parties to dependency proceedings have the right to representation by competent counsel. (§ 317.5; In re Carrie M. (2001) 90 Cal.App.4th 530, 535 (Carrie M.).) After reviewing the briefs and the record in this matter, we became concerned that Parks might have rendered ineffective assistance of counsel to Dominic M. Our concern was based on the following: (1) in letters sent to DCFS and to the court, Dominic M. claimed he was S.S.’s father, that he loved her, and that he wanted to prove paternity by taking a blood test “when I’m released” from prison; (2) despite this, nothing in the record shows that Dominic M., as an alleged father, was given the required notification of his right to establish paternity (§ 316.2, subd. (b); Judicial Council form JV-505) and despite his representation by counsel, no steps to establish paternity were taken; (3) even though Parks claimed in court that he had been in contact with Dominic M., in letters sent to the court and to DCFS, Dominic M. complained that he was being poorly represented by Parks, who had yet to contact him; (4) Parks claimed Dominic M. wanted to be released from prison to attend some of the scheduled hearings, and was unaware that Dominic M. had written to the court stating just the opposite; and (5) at the June 26, 2007, hearing where parental rights to S.S. were terminated, Parks referred to the girl as being appellant’s son. The parties have briefed the issue and we exercise our discretion to treat this supplemental briefing as a petition for writ of habeas corpus. (People v. Garrett (1998) 67 Cal.App.4th 1419, 1423.)
A habeas petition alleging ineffective assistance of counsel in a dependency proceeding does not lie from an order that has become final either because it was affirmed on appeal, or because no appeal was taken and the time to do so has passed. Because Dominic M.’s time to appeal from earlier orders such as the jurisdictional and dispositional orders has passed, the only non-final order at issue here is the order terminating parental rights. (Carrie M., supra, 90 Cal.App.4th at pp. 533-534.) In order to prevail, Dominic M. must show that Parks failed to act as would a reasonably competent attorney practicing in this area of the law and that, absent Parks’s error, a different result was reasonably probable. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252-1253.)
As an alleged father, Dominic M. had no statutory right to reunification services. (In re O.S. (2002) 102 Cal.App.4th 1402, 1410.) As a biological father, he might have received such services if the court found it was in the child’s best interests. (§ 361.5, subd. (a); In re Elijah V. (2005) 127 Cal.App.4th 576, 589.) As a presumed father, he would have been entitled to those services. (In re Zacharia D. (1993) 6 Cal.4th 435, 451.) According to Dominic M., had Parks taken steps to administer a DNA paternity test, Dominic M. would have received reunification services with S.S. as either her biological or presumed father.
Unstated by Dominic M., but implied within, is the notion that reunification would have been successful, allowing him to take custody of S.S as his daughter.
We accept for discussion’s sake the notion that Parks delivered ineffective assistance by failing to order DNA tests. We also assume that those tests would have shown Dominic M. was S.S.’s biological father. Even so, Dominic M. would still not have received reunification services. As respondent points out, even as a biological parent Dominic M. could not have become a presumed father because he and mother were not married when S.S. was born, had not been married in a technically defective ceremony before the birth, did not marry or try to marry after the birth, nor did Dominic M. receive S.S. into his home and hold her out as his natural child. (Fam. Code, § 7611, subds. (a)-(c).) If he had assumed the status of a biological father, Dominic M. would have been required to demonstrate how it was in S.S.’s best interests to provide him reunification services. He has not. Not only has he failed to address that issue, therefore waiving it (Alliance for Children’s Rights v. Los Angeles County Dept. of Children and Family Services, supra, 95 Cal.App.4th at p. 1139, fn. 4), the record makes clear that such a finding was highly unlikely, and certainly not reasonably probable. (In re Melvin A., supra, 82 Cal.App.4th at pp. 1252-1253.)
In a declaration submitted with his supplemental brief, Dominic M said he did not learn of S.S.’s birth until April 2004, when she was already one year old. For two months beginning in May 2004, Dominic M. lived with mother and S.S. at the home of mother’s parents. Dominic M. also said he has always held out S.S. as his own daughter. Spending two months with the child as a guest in the home of mother’s parents does not qualify as having brought the child into Dominic M.’s own home.
An August 2006 DCFS status report said that Dominic had not contacted DCFS about S.S. or about his compliance with the court ordered case plan. The report said that S.S. was doing very well with her maternal grandparents, and that she was strongly attached to them. According to the report, S.S. did not ask about her father and had no response to where her father might be. The case worker therefore recommended adoption by the maternal grandparents. An October 2006 report prepared for a pending, but eventually rescheduled, parental rights termination hearing, reported again that S.S. was doing very well with her maternal grandparents. Dominic M. was still in jail and had no contact with S.S. Adoption was again highly recommended. A March 2007 DCFS status report quoted Dominic M. as saying he would be out of jail on June 17, 2007. S.S. continued to thrive with her maternal grandparents, said she loved “her mommy and daddy,” but named the maternal grandfather as her father. On this record it is nearly impossible to see how reunification services with Dominic M. could possibly have been regarded as in S.S.’s best interests and we therefore conclude that such services would not have been ordered even if Dominic M. had shown he was the girl’s biological father. Therefore, any errors by Parks in that regard were harmless.
Even so, we do not excuse these errors lightly. The record does not suggest any explanation for Parks’s failure to obtain the required tests or the failure to send Dominic M. the proper notice concerning his rights as an alleged father.
DISPOSITION
The order terminating parental rights is affirmed, and the habeas petition is denied.
RUBIN, J., COOPER, P. J., EGERTON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.