Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County No. DP019944, Maria D. Hernandez, Judge.
Nicole Williams for Defendant and Appellant and for Petitioner R.S.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent and for Respondent Orange County Social Services Agency.
No appearance for the Minor.
OPINION
FYBEL, J.
Introduction
R.S. (father) was alleged to have sexually abused his 12-year-old stepdaughter, K.T. Both K.T. and father’s then five-year-old son, S.S., were taken into protective custody. Father waived his right to trial at a combined jurisdiction and disposition hearing. The juvenile court declared S.S. to be a dependent child, removed S.S. from father’s custody, and denied visitation and reunification services to father. Father appeals from the jurisdiction and disposition orders, and filed a petition for a writ of habeas corpus, which we have consolidated with the appeal.
Father argues the juvenile court failed to fully advise him of his trial rights before he submitted to the juvenile dependency petition on the basis of the social workers’ reports. Father signed a waiver of rights, and initialed the boxes indicating he understood the rights he was waiving. We find no error.
Father also argues there was not sufficient evidence to support the jurisdictional findings. We conclude there was sufficient evidence to support the juvenile court’s exercise of jurisdiction over S.S. under Welfare and Institutions Code section 300, subdivision (b), based on the allegations of the petition, the evidence contained within the reports of the Orange County Social Services Agency (SSA), and the earlier findings of the juvenile court in a restraining order issued against father. (All further statutory references are to the Welfare and Institutions Code, unless otherwise specified.) Because there was sufficient evidence supporting the jurisdictional finding under section 300, subdivision (b), we need not separately consider whether there was sufficient evidence to support a finding under section 300, subdivision (d).
Finally, father argues on appeal the juvenile court erred by denying reunification services to him. The court found that reunification services need not be provided because section 361.5, subdivision (b)(6) applied. It was father’s burden to offer evidence that reunification services would nevertheless be in S.S.’s best interests; father failed to do so, and we may infer a finding by the juvenile court that the provision of reunification services would not be in S.S.’s best interests.
In reviewing father’s habeas corpus petition, we conclude father has established deficient performance by his trial counsel. Father has failed to show a reasonable probability that he would have obtained a better result at the jurisdiction hearing in the absence of counsel’s failures. However, we conclude father has shown there is a reasonable probability that the juvenile court would have ordered he be provided reunification services, and that the court would have approved visitation between father and S.S., if counsel had not submitted the case, but instead had offered evidence, cross-examined witnesses, or made an attempt at arguing the case. Therefore, we grant the habeas corpus petition as to the disposition order only.
Statement of Facts and Procedural History
S.S., then five years old, and his stepsister, K.T., then 12 years old, were taken into protective custody in June 2010. A juvenile dependency petition by SSA alleged father had sexually abused K.T. The petition alleged that after S.S. and K.T.’s mother, W.T. (mother), learned of the abuse, she asked father to move out of the family home. Father continued to come into the home to return S.S. from visits, and to bathe and put S.S. to bed. The petition also alleged that on one occasion, S.S. witnessed an act of domestic abuse by father against mother. Due to the sexual abuse of K.T., the petition alleged S.S. was at risk of sexual abuse by father. (The petition was later amended; the amendments do not substantively affect the issues presented by this appeal.)
At mother’s request, the juvenile court issued a temporary restraining order preventing father from having any contact with K.T. or mother. The restraining order also prevented father from having any contact with S.S. other than during supervised visits. The juvenile court authorized father to have two hours of monitored visitation with S.S., two times per week. Father was appropriate during visits with S.S., and both S.S. and father enjoyed the visits.
In a report prepared for the joint jurisdiction and disposition hearing, SSA recommended that the allegations of the amended petition be sustained, that S.S. be declared a dependent child of the juvenile court, and that no reunification services be offered to father, pursuant to section 361.5, subdivision (b)(6). (In an addendum report, SSA recommended visits between S.S. and father be permitted one time per month; as explained post, the original case plan omitting visitation was the one ultimately approved by the juvenile court.)
At the jurisdiction and disposition hearing, father signed a waiver of rights, and submitted on the amended petition on the basis of the social workers’ reports. The juvenile court found the allegations of the amended petition true by a preponderance of the evidence, and declared S.S. to be a dependent child of the juvenile court, pursuant to section 300, subdivisions (b) (failure to protect) and (d) (sexual abuse). The court then found that it would be detrimental to allow S.S. to remain in the custody and care of mother and father, and vested S.S.’s custody with SSA. The court approved the case plan that did not provide for any visitation between S.S. and father. Finally, the court found that reunification services need not be provided to father. Father timely appealed from the jurisdiction and disposition orders.
On February 10, 2011, father filed a petition for a writ of habeas corpus, claiming his trial attorney in the dependency proceedings provided ineffective assistance of counsel. This court issued an order to show cause (OSC) why father was not entitled to the relief requested, and consolidated the two matters for purposes of oral argument and opinion.
Discussion
I.
Was father advised of his rights before submitting at the jurisdiction and disposition hearing?
Father argues the juvenile court erred by failing to properly and fully advise him of his trial rights. We review to determine whether the record affirmatively shows father’s waiver of trial rights was voluntary and intelligent under the totality of the circumstances. (In re Patricia T. (2001) 91 Cal.App.4th 400, 404-405.)
California Rules of Court, rule 5.682(b) requires that, at a jurisdiction hearing, the juvenile court advise a parent of the following rights: “(1) The right to a hearing by the court on the issues raised by the petition; [¶] (2) The right to assert any privilege against self-incrimination; [¶] (3) The right to confront and to cross-examine all witnesses called to testify; [¶] (4) The right to use the process of the court to compel attendance of witnesses on behalf of the parent or guardian; and [¶] (5) The right, if the child has been removed, to have the child returned to the parent or guardian within two working days after a finding by the court that the child does not come within the jurisdiction of the juvenile court under section 300, unless the parent or guardian and the child welfare agency agree that the child will be released on a later date.” Rule 5.682(f)(3) requires that, after a parent submits on jurisdiction, the court make a finding that “[t]he parent... has knowingly and intelligently waived the right to a trial on the issues by the court, the right to assert the privilege against self-incrimination, and the right to confront and to cross-examine adverse witnesses and to use the process of the court to compel the attendance of witnesses on the parent[’s]... behalf.”
At the jurisdiction and disposition hearing, the juvenile court advised father he had “the right to have a trial this morning or this afternoon. At that trial you would have... had the right to cross-examine and confront any witness against you, the right to compel favorable evidence at no cost to you and the right to testify at that hearing if you wanted to, but nobody could have forced you to under your Fifth Amendment rights.” Father agreed to waive those rights, and the court found that father’s waiver was knowing and intelligent.
Father complains that because the court did not specifically advise him of the right to use the process of the court to compel the attendance of witnesses, his waiver was not knowing and intelligent. But father signed a waiver of rights form that contained each of the rights identified in California Rules of Court, rule 5.682(b), and specifically initialed a box stating that he was waiving his right to use the court’s authority to compel witnesses to appear. Father received the advisement required by rule 5.682(b). There was no error.
Father argues his trial counsel’s filing of a motion to produce witnesses on the day before the jurisdiction and disposition hearing proves father’s waiver of his trial rights was not knowing and intelligent. Counsel’s preparation for trial does not disprove the later waiver of rights, however. Father also argues he failed to initial a box that would indicate he was giving up his right to the privilege against self-incrimination; that failure, however, does not mean the waiver of the right to use the court to compel the attendance of witnesses was not knowing and intelligent.
We note that the waiver of rights form instructed father to “initial each box that applies.” It would be reasonable for father to fail to initial a box indicating the waiver of the right against self-incrimination in a case such as this.
II.
Was there sufficient evidence to support the jurisdictional findings?
Father next argues there was not sufficient evidence to support the jurisdictional findings under section 300, subdivisions (b) and (d).
The effects of domestic violence in a home may alone form a sufficient basis for jurisdiction under section 300, subdivision (b), even if the child is not physically harmed. “[D]omestic violence in the same household where children are living is neglect; it is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk.” (In re Heather A. (1996) 52 Cal.App.4th 183, 194.) S.S. had seen his parents hit each other; he told a social worker that mother and father “fight with their hands and their words” and “hit their bodies.” K.T. also observed acts of domestic violence between mother and father. Father admitted punching a hole in the wall; S.S. and K.T. told the social workers father punched and kicked holes in the walls and doors. The juvenile court issued a restraining order against father in which it made findings of fact that father had physically and verbally abused mother, and punched holes in the walls during arguments. There was sufficient evidence to support the juvenile court’s jurisdictional finding under section 300, subdivision (b).
We need not consider father’s argument regarding section 300, subdivision (d), because we may affirm the jurisdiction order if the evidence supports the exercise of jurisdiction on any one of several grounds. (D.M. v. Superior Court (2009)173 Cal.App.4th 1117, 1127.)
Father also argues that the juvenile court’s disposition order should be reversed if the jurisdiction order is reversed. Because we are affirming the juvenile court’s jurisdiction order, we need not consider this argument.
III.
Did the juvenile court err by denying reunification services to father?
The juvenile court denied reunification services to father pursuant to section 361.5, subdivision (b)(6), which provides: “Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶]... [¶]... That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian.” We review the juvenile court’s order denying reunification services for substantial evidence. (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 852.)
Father does not dispute that the factual predicate of section 361.5, subdivision (b)(6)—that S.S. was declared to be a dependent of the juvenile court as a result of the severe sexual abuse by father against K.T.—was met. Father focuses instead on the juvenile court’s failure to make a finding that the provision of reunification services would benefit S.S.
A juvenile court’s failure to make the required finding under section 361.5, subdivision (b)(6) does not mandate automatic reversal on appeal; this court may “infer a necessary finding provided the implicit finding is supported by substantial evidence.” (In re S.G. (2003) 112 Cal.App.4th 1254, 1260.)
No evidence exists in the appellate record regarding whether reunification services would be in S.S.’s best interests. SSA’s reports did not even mention S.S.’s best interests when SSA recommended reunification services not be provided to father.
Once there was evidence that this case was within the reunification services bypass provision of section 361.5, subdivision (b)(6), the burden shifted to father to show that services would nevertheless be in S.S.’s best interests. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66 [when reunification services are not required under section 361.5, subdivision (b)(4), “parent responsible for the previous death of another child must affirmatively show that reunification would be in the best interest of a surviving child”]; see Mardardo F. v. Superior Court (2008) 164 Cal.App.4th 481, 490 [same]; Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1011 [statute contemplates that when reunification services may be denied under section 361.5, subdivision (b), “the parent may nonetheless show that providing services is in the best interests of the child”].) Father failed to meet this burden. Therefore, we may properly infer that the juvenile court found reunification services would not be in S.S.’s best interests.
IV.
Habeas corpus petition
Father’s petition for a writ of habeas corpus claims that his trial counsel provided ineffective assistance by recommending that father submit at the jurisdiction and disposition hearing, which caused father prejudice, and asks that this court reverse the jurisdiction and disposition orders. We issued an OSC. “Issuance of an OSC signifies the court’s preliminary determination that the petitioner has pleaded sufficient facts that, if true, would entitle him to relief.” (People v. Duvall (1995) 9 Cal.4th 464, 475.) SSA filed a return, and father filed a traverse.
In our OSC, we notified the parties that we intended to treat the informal response and informal reply, which had already been filed, as the return and traverse, respectively, and gave the parties an opportunity to object. Neither party objected.
To prevail on a claim of ineffective assistance of counsel, father must prove (1) his trial counsel’s representation was deficient, in that it fell below an objective standard of reasonableness under prevailing professional standards; and (2) his trial counsel’s deficient representation caused him prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711.)
SSA appears to concede the first prong of the analysis. In its return, SSA states, “[w]hile the record indicates that [father’s trial counsel] made errors, Father has failed to establish, as he must, prejudice due to ineffective assistance of counsel.” SSA’s return concludes, “Father’s habeas corpus writ petition should be denied. He has failed to show that it is reasonably probable that he would have received a result more favorable but for counsel’s errors.”
With regard to the jurisdiction order, we conclude trial counsel’s deficient representation did not cause father prejudice. Even if father had not submitted on the petition at the jurisdiction and disposition hearing, it is not reasonably probable the court would not have exercised jurisdiction over S.S., given the allegations of the petition and the contents of SSA’s reports. Father’s argument is that proper investigation by his trial counsel would have meant that “very significant issues of credibility would have been assessed by the juvenile court.” But it is not reasonably probable that raising issues as to K.T.’s credibility would have resulted in the court declining to exercise jurisdiction over S.S.
With regard to the disposition order, however, the case is different. SSA’s reports recommended no reunification services be provided to father, because the case fell within section 361.5, subdivision (b)(6). The reports, however, did not address any of the factors relevant to determining whether reunification services would benefit S.S. (§ 361.5, subd. (i)). As noted ante, father had the burden of presenting evidence to the juvenile court that the provision of reunification services would be in S.S.’s best interests. At a minimum, if counsel had cross-examined the preparers of SSA’s reports, he could have determined whether SSA had considered the issue of best interests, and could have obtained evidence regarding the section 361.5, subdivision (i) factors. By submitting, father foreclosed his ability to obtain this evidence and to argue the provision of reunification services to him would be in S.S.’s best interests.
Additionally, the case plan prepared and presented by SSA did not provide for any visitation for father, although he had been authorized to have twice weekly visits with S.S. since the inception of the dependency proceedings. No explanation was given for the dramatic reduction of visitation. Cross examination of the social workers would have permitted father’s counsel to obtain further evidence regarding father’s visits with S.S., which had to that point been enjoyable and appropriate. Some argument on the part of father’s counsel would at least have required the court to question why the visitation recommendation had so dramatically changed. (Even SSA’s later recommendation of one visit per month represented a dramatic reduction in visitation that should have been explored by father’s counsel.)
We conclude father has established his trial counsel’s performance was deficient, and it is reasonably probable a different result would have been obtained in the absence of counsel’s deficient performance, but only with respect to the disposition order.
Disposition
The orders are affirmed. The order to show cause is dissolved and the petition for a writ of habeas corpus is granted in part as to the disposition order and denied in part as to the jurisdiction order. The juvenile court is directed to hold a new disposition hearing as to father, at which time father should be allowed an opportunity to present evidence and argument on the issues of reunification services and visitation.
This court finds that Ben Edward Lofstedt, State Bar No. 59678, provided incompetent representation to R.S. in Orange County Superior Court case No. DP019944, resulting in the reversal of the disposition order in that proceeding. Therefore, pursuant to Business and Professions Code section 6086.7, subdivision (a)(2), the clerk of this court is ordered to forward a copy of this opinion to the State Bar upon return of the remittitur. At the same time, also pursuant to Business and Professions Code section 6086.7, subdivision (b), the clerk of this court shall also notify Mr. Lofstedt that the matter has been referred to the State Bar.
WE CONCUR: MOORE, ACTING P. J., IKOLA, J.