Opinion
G044807 Super. Ct. No. DP0020310 G045212
09-07-2011
In re M.H., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. DANIEL H., Defendant and Appellant. In re DANIEL H. on Habeas Corpus.
William D. Caldwell for Defendant and Appellant and for Petitioner Daniel H. Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent and for Respondent Orange County Social Services Agency. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from orders of the Superior Court of Orange County, Maria D. Hernandez, Judge. Affirmed. Original proceedings; petition for a writ of habeas corpus. Petition denied. Motion to strike denied.
William D. Caldwell for Defendant and Appellant and for Petitioner Daniel H.
Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent and for Respondent Orange County Social Services Agency.
No appearance for the Minor.
* * *
Daniel H. and Lynne H. were separated when their 19-month-old daughter was taken from Lynne and placed in protective custody. In consolidated cases, Daniel has filed an appeal from the jurisdictional findings and dispositional orders and a petition for a writ of habeas corpus. Daniel claims the jurisdictional findings against him are unsupported by any evidence that the child suffered a risk of harm as a result of his conduct, the court erred by failing to release the child to him pursuant to Welfare and Institutions Code section 361.2, the court violated his due process rights in numerous respects, and he received ineffective assistance of counsel.
"Hereafter, we refer to the parties by their first names, as a convenience to the reader. We do not intend this informality to reflect a lack of respect. [Citation.]" (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1513, fn. 2.)
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise specifically stated.
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We affirm the orders. The petition for a writ of habeas corpus is denied. Daniel's motion to strike is denied.
I
FACTS
Daniel and Lynne were married when their child was born. After an argument in May or June 2010, Lynne and the child went to stay with the child's maternal grandmother. The parties were living in Lewisville, Texas at the time. Lynne then left and took the child with her to California, where they began living in a garage, along with Lynne's boyfriend. Lynne did not tell Daniel where she and the child went.
On September 16, 2010, the child was taken into protective custody due to allegations of physical abuse, general neglect, and cruelty. She had a fractured tibia and large bruises on her face.
On September 20, 2010, the Orange County Social Services Agency (SSA) filed a juvenile dependency petition based on section 300, subdivisions (a), (b), and (e). Daniel was identified as the child's father, with his whereabouts listed as unknown. SSA's detention report contained allegations that Lynne's boyfriend had physically abused the child and said there were no allegations against Daniel.
At the September 21, 2010 detention hearing, the court questioned Lynne about Daniel's whereabouts. Lynne gave the court the last address she had for him in Lewisville, Texas, but expressed doubt that he would still be there. She speculated that he would have returned to Arkansas. Lynne explained that she had no telephone number for Daniel because he just used prepaid cell phones and threw them away.
Lynne told the court that the last time she had spoken to Daniel was around May 30, 2010. She commented that he has a drinking problem.
On September 21, 2010, the court found there was a substantial danger to the physical health of the child and ordered that she be detained. The court also ordered SSA to make its best efforts to locate Daniel. In addition, the court directed SSA to provide reunification services with respect to the family. The court set a pretrial hearing for October 19, 2010 and a trial date of November 2, 2010.
A certified letter providing the date, time and place of the scheduled pretrial and trial hearings was sent to Daniel's Lewisville address on September 23, 2010. After he received the notice, Daniel phoned social worker Jake Michel, on October 4. According to Michel, Daniel confirmed that he had received SSA's certified letter and was aware of the hearing scheduled for October 19, 2010. Daniel says he requested Michel to release the child to him, but Michel maintains that Daniel did not so request. Michel says that Daniel mentioned that he had been in an automobile accident, and said that he would nonetheless try to attend the hearing on the 19th.
In their telephone call, Daniel told Michel that he had last seen Lynne and the child at the end of June 2010. He said that he and Lynne had had an argument. According to Daniel, Lynne had gotten "'loud and irate,'" so he asked her to stay at the child's maternal grandmother's residence. He claimed not to have known that they went to California, assuming that they were around Texas cooling off.
Daniel and Michel spoke again on October 6, 2010. During that telephone call, Daniel reaffirmed to Michel that he was planning on attending the October 19, 2010 hearing. Michel pressed Daniel as to why he did not file a police report concerning the disappearance of Lynne and the child. Daniel responded that he thought they were in Texas with the maternal grandmother and that he did not know he could file a police report since it was a civil matter. In his jurisdiction/disposition report, Michel expressed great concern that Daniel reportedly had no contact with Lynne and the child for two and a half months without making any effort to find them.
Also in that report, Michel relayed information from Lynne. Lynne told Michel that Daniel suffers from depression, has a drinking problem and moves around a lot. She also said there was domestic violence between her and Daniel, although it was mainly verbal and emotional. Even so, she said there was one physical incident, after which she left Daniel. She moved to California to get away from him. Lynne also mentioned that Daniel was "'wanted in Arkansas' for several DUIs or DWIs.'"
Daniel did not attend the October 19, 2010 pretrial hearing. At that hearing, the court appointed the juvenile defender to represent Daniel. She entered a general denial on Daniel's behalf and requested liberal visitation for Daniel if he came to California. The court authorized visitation twice a week. In addition, it vacated the November 2, trial date, set a pretrial date for that date instead, and set a new trial date for November 30.
On November 2, 2010, attorneys for the parties stipulated to have SSA initiate a referral for Daniel pursuant to the Interstate Compact on Placement of Children (Fam. Code, § 7900 et seq.) (ICPC) and for the social worker to evaluate both parents for placement.
Attorney Camden Polischuk appeared on behalf of Daniel at the November 2, 2010 hearing and represented that she had spoken to him and was authorized to proceed on his behalf. Attorney Polischuk stated Daniel and Lynne were married when the child was born, that he is listed as her father on the birth certificate, that he held the child out to be his own and provided support and that he asked to be found to be the presumed father. The court granted Daniel presumed father status, set a trial for December 16, 2010, and ordered SSA to initiate an expedited ICPC referral for Daniel.
In an addendum report filed November 29, 2010, Michel reported that he had spoken to Daniel on November 2, 2010. Daniel admitted to having been convicted of drunk driving a couple of years back and having been arrested for breaking and entering about 10 or 12 years earlier. He denied that he was an alcoholic or that there had been domestic violence between Lynne and himself.
Michel informed Daniel that an expedited ICPC referral was initiated for him pursuant to the order of the court. Daniel expressed dismay that he would be investigated when he had done nothing wrong. Michel informed him "that not knowing the whereabouts of his child for over two months and failing to take any action to locate his child was a failure . . . to protect his child from potential harm."
Michel also reported that he interviewed Lynne on November 22, 2010. Lynne provided a different version of events with respect to domestic violence. She acknowledged that there were incidents of domestic violence, but said there were fewer than 10 and she never reported any of them to the police. She claimed that she was always the victim. Lynne claimed that she would sustain bruises from the incidents and that Daniel would threaten to give her black eyes. She said that one time, when she was pregnant, Daniel wrapped her up in a futon and started hitting the futon.
In addition, Lynne recalled that another time, when they were living at the child's maternal grandmother's house, Daniel slapped her. The maternal grandmother then told Daniel that he could no longer live in her home, so they had to move out. Lynne also said that once Daniel attacked her, pulled her hair and threw her down. She also claimed that Daniel had threatened to burn down the house of a family friend, and that she was afraid he would burn down the maternal grandmother's house. Lynne also characterized Daniel as an alcoholic and said that he had two DUI convictions in Arkansas.
Michel reported speaking with Daniel again on November 23, 2010. Daniel informed Michel about certain programs he was attending, including parenting classes and substance abuse classes. When Michel asked him about the number of DUI arrests he had had, Daniel indicated that he was not sure, but that he had "'had a couple.'" He also told Michel that there was no longer a warrant out for his arrest in Arkansas. Daniel acknowledged that there had been some instances of domestic violence, but denied that he was ever the perpetrator. He maintained that it was Lynne who had hit him on a couple of occasions.
Daniel told Michel that on November 29, 2010, he was going to start physical therapy for his neck injury arising out of the car accident. He nonetheless said he would travel to California if he needed to be there for the dependency proceedings.
In addition to these communications with the parents, Michel reported having received letters from the maternal grandmother, the maternal aunt, and a family friend. The contents of the letters were set forth at length in Michel's report. The maternal grandmother reported about a period of time when Daniel, Lynne and the child lived with her. According to the maternal grandmother, Daniel worked little, failed to provide support, and physically injured Lynne.
The family friend stated that Daniel, Lynne and the child had lived with her for a time. She said Daniel had a history of drug and alcohol abuse and was frequently intoxicated. "He openly talked about his history of production and distribution of methamphetamines and his propensity toward the drug." She also stated that Daniel refused to work, even when Lynne was pregnant. The friend also represented that Daniel had been ordered to do community service because of his DUIs, but did not perform the community service and was fined. In addition, she said Daniel did little to care for the child, even while he was at home unemployed.
On December 16, 2010, the parties stipulated to the September 20, 2010 dependency petition, as amended. Per the amendment, the allegation as to section 300, subdivision (a) (serious physical harm) would be dismissed without prejudice, and numerous paragraphs of the attachment to the petition would be stricken or changed by interlineation. A paragraph stating Daniel knew or should have known of certain events and failed to take action was deleted, as were several other allegations concerning him. However, the petition continued to state that Daniel had an anger management problem, and a history of substance abuse as demonstrated by multiple DUI arrests.
At the December 16, 2010 hearing, Attorney Polischuk stated that she had spoken to Daniel that day and that he had authorized her to proceed on his behalf. The court confirmed with her that Daniel would be submitting through counsel. Attorney Polischuk waived the right to cross-examine the social worker or to present any affirmative evidence on Daniel's behalf.
The court dismissed without prejudice the section 300, subdivision (a) allegation of the petition and found true the allegations under section 300, subdivisions (b) and (e). The court declared the child a dependent child of the court. It ordered reunification services for both parents and set a six-month review for June 9, 2011. The court asked Attorney Polischuk to give advisements to Daniel concerning reunification and his right to appeal.
Daniel filed a notice of appeal from the jurisdictional and dispositional findings and orders of December, 16, 2010.
II
DISCUSSION
A. Appeal:
(1) Jurisdictional findings
Daniel first argues that there is no evidence to support the jurisdictional findings against him. "In reviewing the jurisdictional findings and disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.] In the instant case, there is substantial evidence to support both the jurisdiction and disposition orders of the dependency court." (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
As Daniel states, the amended petition, which the court found to be true, contained three allegations against him. The first read: "The child's mother and Daniel [H.], father of the child, have a history of domestic violence during which the child was present." The second read: "The child's father has an unresolved anger management problem. Further, the child's father has no record of the successful completion of an anger management program thereby impairing his ability to effectively parent the child, but is currently enrolled in an anger management program." The third read: "The child's father, Daniel [H.] has a history of substance abuse as evidenced by multiple arrests for DUI."
With respect to the first allegation, both parents admit to a history of domestic violence, even though each one says the other is to blame. Daniel downplays the domestic violence, emphasizing that Lynne claimed fewer than 10 incidents and that there was no evidence that the child was physically exposed to the incidents. We must disagree. Lynne described one incident, as noted previously, where Daniel wrapped her up in a futon and started hitting the futon. She was pregnant at the time. According to Lynne, Daniel "'thought it was safe'" to attack her in this manner even though she was pregnant because he was hitting her through the futon. Clearly, Daniel was willing to risk adverse physical consequences to his then unborn child.
Furthermore, the letter from the maternal aunt contains information which, if credited, shows Daniel was willing to risk harm to his child after her birth as well. The maternal aunt said she noticed a crack in the windshield of Daniel and Lynne's vehicle. By way of explanation, Lynne disclosed that one time, when she was driving with the child in the car, Daniel had gotten upset and thrown his hand into the windshield with sufficient force to crack it with his ring. Daniel downplays this incident, saying there was no information on the date of the incident and thus "no way of determining either [the child's] age or her reaction to the incident." Well, now, since the child was removed from Lynne at age 19 months, we certainly can narrow down her age to an age younger than that at the time of the incident. And it is not the child's reaction that is key, only her presence.
There is also substantial evidence to support the allegations regarding Daniel's anger management and substance abuse problems. The maternal aunt's information about the incident with the cracked windshield, standing alone, is evidence of an anger management problem. Lynne's reports that Daniel on one occasion wrapped her in a futon and hit her through the futon, on a second occasion threw her down and pulled her hair, and on a third occasion slapped her, are also evidence of an anger management problem. Furthermore, Daniel has admitted to DUI arrests and that he is presently participating in substance programs.
Daniel says it matters not. He claims that these facts do not show either that his conduct caused the child to suffer harm or creates a substantial risk that she will suffer harm in the future. (See In re X.S. (2010) 190 Cal.App.4th 1154, 1160.) We do not agree. The record reflects that Lynne left Daniel and moved to California because of his abusive behavior. And Daniel did not go looking for either her or the child. In other words, Daniel's child was absent from his supervision because of his conduct. Also, the incidents with the futon and the windshield show that he is willing to put his child at risk. And, his substance abuse problem is unresolved, thus posing a continuing risk as well.
In short, substantial evidence supports the jurisdictional findings against Daniel. In any event, Daniel's attorney submitted on the amended petition on his behalf.
More importantly, even if there were no evidence to support the jurisdictional findings against Daniel, it would "not change the child's status as a dependent child of the juvenile court. Apart from the section 300, subdivision (b), finding against [Daniel], the child properly is a dependent of the juvenile court based on the sustaining of the section 300, subdivision (b), allegation against [Lynne], which has not been challenged. '[A] jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring [him] within one of the statutory definitions of a dependent. [Citations.] This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent.' [Citations.] The child thus remains a dependent of the juvenile court." (In re X.S., supra, 190 Cal.App.4th at p. 1161.)
(2) Section 361.2
Section 361.2, subdivision (a) provides: "When a court orders the removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." Subdivision (c) of that statute reads: "The court shall make a finding either in writing or on the record of the basis for its determination under subdivisions (a) and (b)."
Daniel says that when the court ordered removal pursuant to section 361, it failed to "first determine" whether the child should be released to him under section 361.2. He contends the matter must be remanded for that determination.
In support of his position, Daniel cites two cases having to do with the provision of reunification services to a noncustodial parent. (See In re Adrianna P. (2008) 166 Cal.App.4th 44; R.S. v. Superior Court (2007) 154 Cal.App.4th 1262.) Despite the broad language of those cases, they do not govern the matter before us inasmuch as Daniel's reunification services are not at issue.
Daniel also cites In re V.F. (2007) 157 Cal.App.4th 962 [superseded by statute] for the proposition that it is improper to imply a finding of detriment under section 361.2, subdivision (a). (Id. at pp. 972-973.) However, in In re V.F., jurisdiction was grounded solely on the conduct of the mother and "the court ordered the removal of the children from the custody of both parents under section 361, subdivision (c) without considering whether the children resided with both parents at the time the petition was initiated." (Id. at pp. 967, 969.) Here, in contrast, jurisdiction was based on the conduct of both parents, not just the conduct of one of them, and the court clearly was aware that the child did not live with Daniel. Furthermore, the court specifically found, by clear and convincing evidence that "to vest custody with the parents would be detrimental to the child," that the "welfare of the child require[d] that custody be taken from the parents," and that section 361, subdivision (c)(1) applied.
Section 361, subdivision (c)(1) prohibits the removal of a child from the physical custody of a parent with whom he or she resides without a finding, by clear and convincing evidence, that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotion well-being of the minor if the minor were returned home . . . ." (Italics added.) This language dovetails with the language of section 361.2, subdivision (a) requiring the court to "place the child with the [noncustodial] parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." (Italics added.)
To be precise, the court's failure to articulate its finding under both section 361, subdivision (c)(1) and section 361.2, subdivision (a) may have been error. "However, cases involving a court's obligation to make findings regarding a minor's change of custody . . . have held the failure to do so will be deemed harmless where 'it is not reasonably probable such finding, if made, would have been in favor of continued parental custody.' [Citations.]" (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.) Because the court in this matter already made jurisdictional findings against Daniel and found by clear and convincing evidence that section 361, subdivision (c)(1) applied and vesting custody with either parent would be detrimental to the child, there would be no purpose in remanding the matter to the court for a reiteration of that finding with reference to section 361.2, subdivision (a).
(3) Due process
Next, Daniel argues the court violated his due process rights on numerous grounds. First, Daniel complains that there was a delay between the September 16, 2010 date when the child was detained and the September 21, 2010 date of the detention hearing and he was not notified of that hearing. He says there was plenty of time for SSA to locate him and notify him of the hearing and the failure to notify him until after the detention hearing denied him due process. However, when the social worker interviewed Lynne on September 16, 2010, Lynne said that Daniel resided in Texas, but that she had no address or telephone number for him. Just because she was more forthcoming when questioned by the court on September 21, that does not mean that SSA had more to go on prior to that time. Furthermore, Daniel cites no authority for the proposition either that a child can be held indefinitely without a detention hearing, or that a child may not be removed from a home where he or she has suffered physical injury, until a noncustodial parent can be located.
Daniel also says the court should have found him to be the presumed father at the September 21, 2010 hearing instead of waiting until the November 2, 2010 hearing to make that determination. Despite Daniel's protestations, we cannot fault the court for waiting to make a paternity determination until after he had been located, had counsel appear for him, and had an opportunity to take a position on whether or not he was the father of the child. To be sure, Lynne claimed in September that Daniel was the father of the child, but it does not appear that she presented either a birth certificate or any other evidence of that fact. The court asked for a birth certificate at the November 2, 2010 hearing. Although none was provided even then, at least at that point Daniel's counsel was present and conceded the point of paternity.
Daniel emphasizes that he has a liberty interest in parenting his child, a matter with which we certainly agree. (In re Marilyn H. (1993) 5 Cal.4th 295, 306-307.) At the same time, "[a]lthough a parent's interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect. [Citations.]" (Id. at p. 307.)
Daniel claims the court violated his due process rights by failing to place the child with him under section 361.2. We have already discussed that statute. The court found that it would be detrimental to the child to place her with either parent. We need not reiterate our analysis here.
Next, Daniel contends the court violated his due process rights by ordering an expedited ICPC investigation. Indeed, "California cases have consistently held that the Interstate Compact on Placement of Children [citation] does not apply to an out-of-state placement with a parent." (In re C.B. (2010) 188 Cal.App.4th 1024, 1026.) However, as the court in In re C.B. discussed at length, some states do construe the ICPC as applicable to parental placements. (Id. at p. 1027.) Furthermore, California, as a sending state, could inadvertently violate the law of a receiving state by not following the ICPC in parental placements. (Id. at p. 1036.)
"While . . . ICPC compliance is not required for an out-of-state placement with a parent, nothing in the ICPC prevents the use of an ICPC evaluation as a means of gathering information before placing a child with such a parent. . . . [¶] The ICPC also permits a sending public agency to enter into a voluntary agreement with 'an authorized public or private agency in the receiving state' for the performance of services related to the case by the agency in the receiving state. [Citations.] In some situations, the Agency may be able to monitor the situation from California. [Citation.] '[S]tates differ as to whether they will . . . provid[e] courtesy supervision services. . . . Th[is] point[s] out the need for early and ongoing communication with the social services agency in the receiving state as to what they will and will not do in a given case. All parties should ensure that such communication is taking place and that [the] necessary information is received before important decisions impacting on the child's welfare are made.' [Citation.]" (In re John M. (2006) 141 Cal.App.4th 1564, 1572.)
Given the evidence against Daniel, the court had an obligation to seek whatever additional information it could obtain before making a decision to release the child to him. We do not castigate the court for being cautious. Furthermore, Daniel has not shown how the court's ordering of an expedited ICPC investigation violated his due process rights. By the November 2, 2010 hearing, the court had not received the results of the ICPC investigation, but there is no indication that this formed any basis for its orders of that date. It made its orders based on the jurisdictional findings, which did not include any findings based on the ICPC investigation.
Daniel also complains that his due process rights were violated because "the juvenile court never ordered him to appear. And there are no notices informing him in advance about the upcoming hearing or trial or informing him that certain issues would be decided there or findings made or orders affecting his rights to custody over his daughter."
Daniel cites no authority for the proposition that the court was required to order him to appear. We have already addressed his argument concerning notification prior to the detention hearing. With respect to the pretrial hearing and trial, the record belies the assertion that he was never informed as to the scheduled dates or given an indication of what issues could be decided or that orders could be made affecting his custody rights.
According to the declaration of social worker Janet Carrete, a certified letter providing the date, time, place and purpose of the scheduled October 19 and November 2, 2010 hearings was sent to Daniel's Lewisville address on September 23, 2010. A JV-505 parentage form was included with the letter. She also declared that an acknowledgement of receipt of the letter was received on October 12, 2010. Indeed, Daniel acknowledges that he received a notice from SSA at his Lewisville address in October 2010 and says he then phoned Michel on October 4. Michel says he informed Daniel that the child was in protective custody due to allegations of neglect and physical abuse, and Daniel told him that he would try to be present at the October 19, 2010 hearing. The two spoke again on October 6, and Michel states that he asked Daniel for a copy of his driver's license, to confirm his identity, before sending him a copy of SSA's detention report and JV-100 petition.
Although Daniel did not in fact show up at the October 19, 2010 hearing, counsel was appointed for him at the time. Counsel acknowledged receipt of the petition, the detention report and the jurisdiction/disposition report. She waived formal reading and advisement and entered a general denial on Daniel's behalf.
Counsel also appeared on his behalf and represented him at the November 2, 2010 hearing to assert his status as presumed father. On November 19, 2010, Daniel was sent a copy of the ICWA notice regarding the proceedings, including the December 16, 2010 hearing date. The notice included the warning: "The proceedings could lead to the removal of the child from the custody of the parent . . . and possible adoption of the child." Furthermore, a copy of the dependency petition was attached to the notice. The petition contains the following notice: "Your parental rights may be permanently terminated. To protect your rights, you must appear in court and answer this petition." Finally, at the December 16, 2010 hearing counsel again appeared on Daniel's behalf and was able to have certain allegations against him stricken and others modified.
Clearly, Daniel had notice of the hearings and an opportunity to be heard. To the extent he asserts that he was not informed that "certain issues would be decided" or that certain findings or orders affecting his custody rights would be made, he needs to be more specific. Without that, we cannot say his due process rights were violated.
Daniel is specific as to one point. Michel reported that in a telephone conversation on November 23, 2010, Daniel acknowledged having "received and read the Orange County Juvenile Court reports for these dependency proceedings . . . ." While Daniel concedes this much, he points out that Michel did not represent that he had mailed the second addendum report (signed November 23, 2010 and filed November 29, 2010) or the two later addendum reports, to him. It was the second addendum report that contained the allegations made by the maternal grandmother, the maternal aunt and the family friend. Consequently, Daniel claims he was deprived of the opportunity to identify hearsay declarants that he wanted to confront and cross-examine at trial. This alone, he says, violated his constitution rights. (See In re George G. (1977) 68 Cal.App.3d 146; Cal. Rules of Court, rule 5.534(k)(1)(B)-(D).)
True, the record does not reflect whether a copy of the second addendum report was provided to Daniel. However, he was represented by counsel and we assume counsel had access to the court filings. Moreover, counsel submitted on the amended petition. The child has been declared a dependent child of the juvenile court and this would have been the case irrespective of the findings against Daniel. (In re X.S., supra, 190 Cal.App.4th at p. 1161; § 302, subd. (a).) Daniel's parental rights have not been terminated and he retains his right to confront the witnesses against him before any termination of parental rights may take place.
Daniel says an advisement of rights (Cal. Rules of Court, rule 5.534(k)) was given to Lynne, who was present in court, but not to him. However, his attorney waived advisement at the October 19, 2010 hearing and, at the December 16, 2010 hearing, the court ordered Daniel's attorney to give him advisements concerning reunification and his right to appeal.
As Daniel concedes, "[t]he general rule is that personal appearance by a party at a civil proceeding is not essential; appearance by an attorney is sufficient and equally effective. [Citations.]" (In re Dolly D. (1995) 41 Cal.App.4th 440, 445.) Furthermore, when a court concludes that a parent has been "deprived of his due process right to confront and cross-examine witnesses, we must consider whether this error was harmless beyond a reasonable doubt. [Citations.]" (Id. at p. 446.) However here, unlike the situation in In re Dolly D., Daniel's counsel was not precluded from cross-examining witnesses. To the contrary, at the December 16, 2010 hearing, Daniel's counsel specifically waived the right to cross-examine the social worker or to present affirmative evidence on Daniel's behalf, and submitted on the amended petition.
B. Writ Petition:
(1) Introduction
In addition to filing the appeal, Daniel filed a petition for a writ of habeas corpus to challenge the alleged due process violations. He filed the petition in addition to the appeal because he says the appellate record is insufficient to determine the merits of his constitutional claims. He attached to his petition the declarations of himself and his new counsel. Daniel contends that these declarations show that he received ineffective assistance of counsel and his due process rights were violated.
This court issued an order to show cause why a writ of habeas corpus should not issue.
(2) Habeas relief in juvenile proceedings
"'The right to file a petition for a writ of habeas corpus is guaranteed by the state Constitution [citation], and regulated by statute [citation].' [Citation.] 'Through a habeas corpus proceeding, a court may grant relief from various forms of constructive custody, as well as from physical restraints.' [Citation.]" (In re Paul W. (2007) 151 Cal.App.4th 37, 52-53.) "[H]abeas corpus petitions are recognized as proper vehicles for raising claims of ineffective assistance of counsel in dependency proceedings. [Citations.]" (Id. at p. 53.)
"Regardless of the nature of the proceeding in which the habeas corpus petition arises, the court 'must abide by the procedures set forth in Penal code sections 1473 through 1508.' [Citations.]" (In re Paul W., supra, 151 Cal.App.4th at p. 53.) An appellate court evaluates a petition for a writ of habeas corpus "by asking whether, assuming the petition's factual allegations are true, the petitioner would be entitled to relief. [Citations.] If no prima facie case for relief is stated, the court will summarily deny the petition. If, however, the court finds the factual allegations, taken as true, establish a prima facie case for relief, the court will issue an OSC. [Citations.] 'When an order to show cause does issue, it is limited to the claims raised in the petition and the factual bases for those claims alleged in the petition. It directs the respondent to address only those issues.' [Citation.] Issuance of an OSC, therefore, indicates the issuing court's preliminary assessment that the petitioner would be entitled to relief if his factual allegations are proved." (People v. Duvall (1995) 9 Cal.4th 464, 474-475; In re Paul W., supra, 151 Cal.App.4th at p. 54.)
In its return, the "respondent must either admit the factual allegations set forth in the habeas corpus petition, or allege additional facts that contradict those allegations." (People v. Duvall, supra, 9 Cal.4th at p. 483.) "The factual allegations of a return must . . . respond to the allegations of the petition that form the basis of the petitioner's claim . . . . [Citations.] In addition to stating facts, the return should also, 'where appropriate, . . . provide such documentary evidence, affidavits, or other materials as will enable the court to determine which issues are truly disputed.' [Citation.]" (Id. at p. 476, fn. omitted.) "When, after considering the return and the traverse, the court finds material facts in dispute, it may appoint a referee and order an evidentiary hearing be held. [Citations.]" (Id. at p. 478.)
(3) Merits
At the outset, Daniel reiterates many of the arguments already addressed in this opinion. He again argues that the jurisdictional findings and dispositional orders must be reversed.
The thrust of Daniel's petition is that he was denied due process because he received ineffective assistance of counsel. In his declaration, Daniel maintains that Attorney Polischuk failed to return telephone calls, failed to explain the nature of the proceedings or formulate a plan for the return of the child, indicated to him that there was nothing to be gained by appearing in court, and promised that he would receive copies of all the reports. He claims Attorney Polischuk never discussed with him the allegations against him regarding domestic violence and alcohol use until a December 16, 2010 telephone call, and then told him it was too late to challenge the allegations and "a trial would be too time-consuming." He also says Attorney Polischuk never told him that there would be a trial on December 16, 2010 or that he had a right to appear in court, contest the allegations, and confront and cross-examine witnesses. Daniel insists that he was prepared to appear in California, but relied on Attorney Polischuk's advice that he did not need to do so. Finally, Daniel states he never received copies of the addendum reports containing certain allegations by Lynne, her family and friend, or copies of minute orders or SSA's petition, until he retained appellate counsel.
To refute these allegations, SSA attached to its return a 10-page declaration of Attorney Polischuk. Daniel has filed a motion to strike the declaration and the portions of the return that reference the declaration. He invokes the attorney-client privilege set forth in Evidence Code section 954.
At the same time, Daniel acknowledges that Evidence Code section 958 creates an exception to the privilege. "Evidence Code section 958 seems fairly clear on this subject: 'There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the attorney-client relationship.'" (In re Gray (1981) 123 Cal.App.3d 614, 615.) Consequently, "the attorney-client privilege is waived as to matters put in issue in habeas corpus proceedings where the competency of defendant's trial attorney is at issue." (Ibid.)
Daniel argues that if this court is unwilling to grant his motion to strike, then the proper procedure is not to simply say the privilege has been waived and consider Attorney Polischuk's declaration, but rather to appoint a referee to hold an evidentiary hearing. (People v. Duvall, supra, 9 Cal.4th at p. 478.) We need not do so in this case, for even if we consider only Daniel's declaration and do not consider Attorney Polischuk's declaration, we conclude Daniel has failed to demonstrate ineffective assistance of counsel.
"To establish counsel was ineffective, [the father] must demonstrate counsel did not act in a manner expected of reasonably competent attorneys and the error was prejudicial. [Citation.] We review the matter to determine whether it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. [Citations.]" (In re O. S. (2002) 102 Cal.App.4th 1402, 1407.)
Daniel claims counsel was ineffective because she requested an unnecessary ICPC order, failed to assure that section 361.2 was applied, submitted on the amended petition and waived the right to cross-examination without confirming that he understood his rights and waived them knowingly and voluntarily, and failed to advise him that the matter had been set for trial or that he had the right to a trial, including the rights to present evidence and confront and cross-examine witnesses.
We have already addressed the ICPC order and the application of section 361.2 and do not need to repeat that discussion here. Where the submission on the amended petition and the waiver of the right to cross-examination are concerned, Daniel acknowledges the rule that the client must "show that counsel's omissions were not the result of a reasonable tactical decision. [Citation.]" (In re Merrick V. (2004) 122 Cal.App.4th 235, 255.) He has not made this showing here.
We have already shown why substantial evidence supports the jurisdictional findings. Daniel himself admitted to domestic violence between the parties. He also acknowledged multiple DUI arrests, the fact that he had once been arrested for breaking and entering, and that he was participating in substance abuse programs. In addition, in his declaration in support of his petition, Daniel states that after his automobile accident in August 2010, he was hospitalized for several weeks, and was in unbearable pain and unable to work. He gives no indication that he is presently able to work or care for his child. Given this, Attorney Polischuk may well have made a tactical decision to submit on the amended petition rather than to request a trial. The child could be declared a dependent child of the court based on the allegations against Lynne alone, without regard to allegations against Daniel. Furthermore, Daniel was being awarded reunification services and the ICPC investigation, if favorable, could open up the opportunity for the child to be placed with him.
Finally, Daniel acknowledges in his declaration that he received copies of the detention report, the jurisdiction/disposition report, and the first addendum report. Indeed, in his November 23, 2010 telephone call with Michel, he acknowledged having "received and read the Orange County Juvenile Court reports for these dependency proceedings." Those reports disclosed allegations of domestic violence and alcohol abuse. Even though they did not contain the particular allegations made by the maternal grandmother, the maternal aunt, and the family friend, they were sufficient to put Daniel on notice of the general nature of the allegations against him.
"The Legislature has provided for juvenile court jurisdiction over dependent children. [Citation.] The primary goal of the dependency statutes is 'to ensure the safety, protection, and well-being of children who are at risk of abuse, neglect, or exploitation, while preserving the family whenever possible.' [Citation.]" (In re Paul W., supra, 151 Cal.App.4th at p. 44, fn. omitted.) Given the allegations against Daniel, of which he was aware, it is not reasonably probable that a result more favorable to Daniel would have been reached in the absence of Attorney Polischuk's conduct as described by Daniel.
III
DISPOSITION
The orders are affirmed. The motion to strike is denied. The petition for a writ of habeas corpus is denied. The order to show cause is discharged.
MOORE, J. WE CONCUR: RYLAARSDAM, ACTING P. J. O'LEARY, J.