Opinion
E068604
02-13-2018
In re D.A., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. M.A., Defendant and Appellant.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1501082) OPINION APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Dismissed. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, M.A. (Mother), is the mother of D.A., a boy, born in April 2016, at 39 weeks' gestation and weighing under four pounds. Mother has cognitive and developmental delays due to being born with fetal alcohol syndrome. Mother has two older children, J. and A., who are half siblings of D.A. Only D.A. is the subject of this appeal.
On April 27, 2016, only days before D.A. was born, the juvenile court ordered J. and A. removed from Mother's care pursuant to a Welfare and Institutions Code section 387 petition. Mother had been receiving family maintenance services for J. and A. The court denied Mother reunification services for J. and A. pursuant to section 361.5, subdivision (b)(2), which allows reunification services to be denied for a parent who suffers from a mental disability which renders the parent incapable of utilizing the services.
All further statutory references are to the Welfare and Institutions Code.
All undesignated references to subdivisions are to subdivisions of section 361.5.
At the jurisdictional hearing for D.A. on July 1, 2016, D.A. was adjudged a dependent based on Mother's mental disability and consequent inability to protect D.A. (§ 300, subd. (b).) At the dispositional hearing for D.A. on August 1, 2016, the court ordered D.A. removed from Mother's care (§ 361, subd. (c)) and denied Mother reunification services for D.A. pursuant to subdivision (b)(10), rather than subdivision (b)(2). Subdivision (b)(10) allows the court to deny reunification services for a child if the parent has had reunification services for a sibling or half sibling of the child, those services have been terminated, and the court finds the parent did not make a reasonable effort to treat the problems that led to the removal of the sibling or half sibling following termination of the reunification services.
In this appeal, Mother claims subdivision (b)(10) did not apply because Mother received family maintenance services, not reunification services, for J. and A. Thus, at the August 1, 2016, dispositional hearing, no evidence showed or could have shown that the elements of subdivision (b)(10) were met, and the juvenile court erroneously relied on subdivision (b)(10) as a basis for denying or bypassing Mother's reunification services for D.A. Accordingly, Mother seeks to reverse the August 1, 2016, dispositional order denying her reunification services for D.A.
We dismiss Mother's appeal as untimely filed. Mother does not appeal from the August 1, 2016, dispositional order, and the 60-day period for filing that appeal has passed. Instead, Mother's notice of appeal is from the June 15, 2017, section 366.26 orders terminating parental rights and placing D.A. for adoption. The dispositional order is now final, and Mother cannot challenge that order on her appeal from the section 366.26 orders. (§ 395; In re Jesse W. (2001) 93 Cal.App.4th 349, 355.) We also decline to treat Mother's untimely appeal as a petition for extraordinary writ from the dispositional order, and we disagree that Mother should be excused from timely appealing from the dispositional order because the juvenile court did not advise her of her appeal rights at the dispositional hearing. (Cal. Rules of Court, rule 5.590(a)); cf. In re A.O. (2015) 242 Cal.App.4th 145, 147-150 (A.O.).)
All further references to rules are to the California Rules of Court.
Mother has also filed a petition for a writ of habeas corpus, claiming her counsel rendered ineffective assistance at the dispositional hearing in, among other things, failing to object at the dispositional hearing to the court's reliance on subdivision (b)(10) to deny Mother reunification services for D.A., and in failing to advise Mother of her right to appeal from the dispositional order after the juvenile court failed to do so. We have ordered Mother's habeas petition considered with this appeal and deny the petition by a separate order. As we explain, Mother cannot collaterally attack the now-final dispositional order by her writ petition. (In re Carrie M. (2001) 90 Cal.App.4th 530, 534 ["Habeas corpus may not be utilized to challenge antecedent final orders."].)
II. BACKGROUND
Mother has developmental delays due to fetal alcohol syndrome. Mother's third child, D.A., was born in a hospital in April 2016 at 39 weeks' gestation and weighed only three pounds 15 ounces. At the time, Mother was receiving services from the Inland Regional Center, and plaintiff and respondent, Riverside County Department of Public Social Services (DPSS), received a referral expressing concern that Mother would be unable to care for D.A. Mother was living with her brother and his girlfriend, who were not present at the hospital when D.A. was born, and it was unclear whether Mother would have help in caring for D.A. Mother described her brother as her "caretaker." The whereabouts of D.A.'s alleged father were unknown.
When D.A. was born, Mother's two older children, J. and A., were in foster care. Before they were in foster care, J. and A. were in Mother's care pursuant to a family maintenance plan. Then, on April 27, 2016, only days before D.A. was born, a section 387 petition for J. and A. was sustained; J. and A. were removed from Mother's care, and the court denied Mother reunification services for J. and A. pursuant to subdivision (b)(2). As noted, subdivision (b)(2) authorizes the court to deny or bypass reunification services for a parent who is suffering from a statutorily defined mental disability that renders the parent incapable of utilizing reunification services.
Meanwhile, D.A. was "healthy" and "doing well" in the neonatal intensive care unit. D.A. was discharged from the hospital on May 8, 2016, and was placed in a confidential foster home. When the social worker interviewed Mother at the hospital on May 5, Mother was feeding D.A. but was not supporting his head. A nurse had to give Mother "constant reminders" to support D.A.'s head while she fed him. Mother appeared "engaged" and was eventually able to support D.A.'s head while she fed him. The social worker told Mother DPSS was concerned about D.A. being in Mother's care, due to Mother's inability to provide J. and A. with appropriate supervision and her neglecting their needs while they were in her care. In response, Mother said she wanted D.A. in her care and she would be his primary caregiver. Mother's brother and girlfriend both said they would be unable to provide Mother with much assistance in caring for D.A.
On May 6, 2016, DPSS filed a petition alleging D.A. was described in section 300, subdivisions (b), (g), and (j). At the detention hearing on May 11 and 12, the court found a prima facie jurisdictional showing had been made, appointed an attorney for Mother, and scheduled a jurisdictional hearing. At the jurisdictional hearing on July 1, 2016, the court sustained allegations of an amended petition under section 300, subdivisions (b) and (j), and continued the dispositional hearing.
At the dispositional hearing on August 1, 2016, Mother was present, and another attorney specially appeared for her appointed attorney. In a July 27 addendum report, DPSS recommended denying Mother reunification services for D.A. pursuant to subdivision (b)(10). At the hearing, the specially appearing attorney objected to DPSS's proposed order to bypass reunification services to Mother, not on the ground that subdivision (b)(10) did not apply, but on the ground Mother was participating in predispositional services. At the conclusion of the dispositional hearing, the court adjudged D.A. a dependent, ordered him removed from parental custody, and found, based on clear and convincing evidence, that Mother was described in subdivision (b)(10). Thus, the court denied Mother reunification services for D.A. pursuant to subdivision (b)(10). The court found that D.A.'s alleged father was his presumed father, and granted the father six months of reunification services. The court did not advise Mother of her right to appeal from the dispositional order. (Rule 5.590(a).)
Thereafter, D.A. remained placed with his foster parents, and in January 2017, the foster parents were granted de facto parent status. At the six-month review hearing on February 1, 2017, Mother was present with her appointed counsel. The court terminated the father's reunification services and scheduled a section 366.26 hearing. The court advised Mother of her right to file a writ petition from the order setting the section 366.26 hearing. (Rule 5.590(b).)
As Mother points out, D.A. remained in excellent health in the care of his de facto parents and prospective adoptive parents. He was bonded with his foster parents, and they wanted to adopt him. Mother continued to visit D.A., but her visits were inconsistent. The social worker preliminarily assessed the foster parents, a married couple. The social worker opined that D.A. was "highly adoptable" and recommended that the juvenile court terminate parental rights and select adoption as D.A.'s permanent plan.
Mother attended the June 15, 2017, section 366.26 hearing. Mother's counsel objected to "the Department's recommendation to select adoption as a permanent plan." Over Mother's objection, the court found D.A. was likely to be adopted, terminated parental rights, and selected adoption as D.A.'s permanent plan. On the same date, June 15, 2017, Mother's attorney filed a timely notice of appeal from the judgment terminating parental rights.
The notice of appeal incorrectly states that the date of the judgment terminating parental rights is June 14, 2017; the correct date is June 15, 2017.
III. DISCUSSION
A. Mother's Appeal Is Untimely and Must Be Dismissed
Mother's notice of appeal was filed on June 15, 2017, and states that it is from the judgment terminating parental rights, that is, the section 366.26 orders. In her opening brief on appeal, however, Mother does not challenge the June 15, 2017, section 366.26 orders. Rather, she purports to challenge the August 1, 2016, dispositional order denying her reunification services for D.A. on the ground subdivision (b)(10) did not apply because she never received reunification services for her older children and D.A.'s half siblings, J. and A.
For its part, DPSS argues this court should not reach the merits of Mother's claim because the August 1, 2016, dispositional order is now final, Mother failed to appeal from that order, and her appeal from the section 366.26 orders—in which she purports to challenge the dispositional order—is untimely and must be dismissed. (§ 395; In re Jesse W., supra, 93 Cal.App.4th at p. 355.)
We agree that Mother's appeal is untimely and must be dismissed. A dispositional order is an appealable judgment (§ 395), and an appeal must be filed within 60 days of the date the judgment or order appealed from is rendered. (Rule 8.406(a)(1).) Mother did not timely appeal from the dispositional order within 60 days of August 1, 2016, and she cannot now challenge that order on her appeal from the judgment terminating parental rights. (In re Jesse W., supra, 93 Cal.App.4th at p. 355 ["A consequence of section 395 is that an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order."]; Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 ["[O]nce the deadline [for filing a notice of appeal] expires, the appellate court has no power to entertain the appeal."].)
Mother argues she should be excused from timely appealing from the dispositional order because the juvenile court did not advise her of her right to appeal from the dispositional order, as rule 5.590(a) required. Mother relies on this court's opinion in A.O., supra, 242 Cal.App.4th 145. There, this court treated the juvenile court's failure to advise the parent of her right to appeal from the dispositional orders (rule 5.590(a)) as "a special circumstance" excusing the parent's failure to timely appeal from the dispositional orders, or as "good cause" to treat the parent's untimely challenge to the jurisdictional findings and dispositional orders as a petition for an extraordinary writ from those orders—after the appeal deadline had passed. (A.O., supra, at pp. 148-149 [in very rare and special circumstances constituting an excuse for failure to timely appeal, appellate court may grant review of appealable order by way of extraordinary writ after deadline to appeal has passed].)
Rule 5.590(a) states: "If at a contested hearing on an issue of fact or law the court finds that the child is described by Welfare and Institutions Code section 300, 601, or 602 or sustains a supplemental or subsequent petition, the court after making its disposition order other than orders covered in (b) must advise, orally or in writing, the child, if of sufficient age, and, if present, the parent or guardian of: [¶] (1) The right of the child, parent, and guardian to appeal from the court order if there is a right to appeal; [¶] (2) The necessary steps and time for taking an appeal; [¶] (3) The right of an indigent appellant to have counsel appointed by the reviewing court; and [¶] (4) The right of an indigent appellant to be provided with a free copy of the transcript." Mother was present at the August 1, 2016, dispositional hearing. (Cf. In re A.A. (2016) 243 Cal.App.4th 1220, 1235 [court not required to advise parent of appeal rights pursuant to rule 5.590(a) unless parent is present at dispositional hearing].)
DPSS argues A.O. is distinguishable, and urges this court not to treat Mother's appeal as a petition for an extraordinary writ or vehicle through which to consider her untimely challenge to the August 1, 2016, dispositional order. We agree that A.O. is distinguishable, and we decline to consider Mother's appeal as a petition for an extraordinary writ from the dispositional order.
Like Mother, the parent in A.O. did not timely appeal from the dispositional orders, but the parent did file a notice of appeal at her next earliest opportunity—from the orders issued at the six- and 12-month review hearings. (A.O., supra, 242 Cal.App.4th at p. 147.) The parent challenged the jurisdictional findings and dispositional orders on that appeal, along with the court's findings at the review hearings that DPSS had provided the parent with reasonable reunification services. (Ibid.) As this court noted in A.O., the parent made "vigorous efforts to contest jurisdiction and removal" by challenging the jurisdictional and dispositional orders on her appeal from the orders issued at the next hearings, the six- and 12-month review hearings. (Id. at p. 149.)
Unlike the parent in A.O., Mother did not make "vigorous efforts" to challenge the dispositional order by challenging the order at her next earliest opportunity after the order was issued. As DPSS points out, on February 15, 2017, Mother was advised of her right to petition for an extraordinary writ challenging the order of that date setting the section 366.26 hearing. (Rule 5.590(b) [court to advise parent, if present, of right to petition for extraordinary writ challenging setting of § 366.26 hearing when hearing is set].) Mother did not file a writ petition within 60 days of February 15, 2017, or challenge the dispositional order through such a petition. Instead, Mother waited until June 15, 2017, the date the section 366.26 hearing was held and more than 10 months after the August 1, 2016, dispositional order was issued, to file her notice of appeal.
In A.O., no section 366.26 hearing had been held when the parent filed her appeal from the review hearing orders and challenged the jurisdictional findings and dispositional orders along with the findings made at the review hearings. (See A.O., supra, 242 Cal.App.4th at p. 150.) In A.O., this court affirmed the jurisdictional findings and dispositional orders, but vacated the findings at the review hearing to the extent the court found DPSS had provided Mother with reasonable reunification services. (Id. at pp. 147, 150.) This court directed the juvenile court to order DPSS to provide the parent with reasonable reunification services that were consistent with her case plan, and afforded the parent "a meaningful opportunity to reunify" with the child. (Id. at p. 150.)
When Mother appealed from the section 366.26 orders on June 15, 2017, D.A. was over one year old and had been living with his prospective adoptive parents his entire life. As DPSS points out: "The focus during the reunification period is to preserve the family whenever possible. [Citation.] Until services are terminated, family reunification is the goal and the parent is entitled to every presumption in favor of returning the child to parental custody. [Citations.]" (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1423.) But when Mother filed her appeal from the section 366.26 orders, any six-month period Mother may have had to reunify with D.A. had passed, and the focus was to provide D.A. "with a safe, permanent home." (Tracy J. v. Superior Court, supra, at p. 1423.)
Thus, unlike the parent in A.O., Mother has not demonstrated rare and special circumstances or good cause for this court to consider her late-filed notice of appeal and challenge to the August 1, 2016, dispositional order. We therefore decline to treat Mother's appeal from the section 366.26 orders as a petition for an extraordinary writ from the dispositional order, and dismiss her appeal as untimely. (In re Jesse W., supra, 93 Cal.App.4th at p. 355.) B. Mother's Habeas Corpus Petition Must Be Denied
Mother argues her cognitive impairment "provide[s] good cause for her failure to seek writ relief" following the February 15, 2017, review hearing, and thus constitutes good cause for this court to treat her appeal from the section 366.26 orders as a petition for extraordinary writ. Mother cites no authority to support this proposition. Further, Mother was advised of her right to seek writ review at the February 15, 2017, hearing (rule 5.590(b)) and Mother was represented by counsel at that hearing.
After she filed her notice of appeal, Mother filed a petition for writ of habeas corpus, claiming her appointed counsel rendered ineffective assistance. Mother observes her appointed counsel was absent from the dispositional hearing and another attorney specially appeared for Mother's appointed counsel. Mother argues the specially appearing attorney was ineffective in failing to object to the juvenile court's erroneous application of subdivision (b)(10) to deny Mother reunification services for D.A. Mother also argues counsel was ineffective in failing to advise Mother to timely appeal from the August 1, 2016, dispositional order, to effectively communicate with Mother, and to advise Mother of her possible grounds for filing a writ petition after the juvenile court set the section 366.26 hearing.
At our request, DPSS has filed an informal response to Mother's petition, Mother has filed a reply to the response, and we have ordered the petition considered with this appeal. By a separate order, we deny the petition. As DPSS points out, "[h]abeas corpus may not be used to challenge antecedent final orders" in dependency proceedings. (In re Carrie M., supra, 90 Cal.App.4th at p. 534 [holding parent may challenge nonfinal order terminating parental rights by habeas petition on ineffective assistance grounds, but noting habeas petition does not lie from antecedent final orders]; see also In re Alexander S. (1988) 44 Cal.3d 839 865, 867-868 ["habeas corpus may not be used to collaterally attack a nonmodifiable judgment in an adoption related action . . . ."]; and cf. In re Darlice C. (2003) 105 Cal.App.4th 459, 463-467 [habeas relief lies from nonfinal order terminating parental rights] with In re Meranda P. (1997) 56 Cal.App.4th 1143, 1161-1162 [nonfinal order terminating parental rights may not be challenged by habeas petition (§ 366, subd. (i))].)
The In re Carrie M. court aptly summarized the legal principles that apply when, as here, a parent challenges an antecedent final order by a habeas petition during the parent's timely appeal from subsequent nonfinal order: "A petition for writ of habeas corpus in a dependency matter raising a claim of ineffective assistance of counsel does not lie from a final order. [Citations.] An order is final when the time for appeal has expired and no timely appeal has been filed or the order has been appealed and affirmed. [Citations.] It is appropriate, however, to raise the issue of ineffective assistance of counsel by petition for writ of habeas corpus filed concurrent with an appeal from a final order. [Citation.] The claim of ineffective assistance of counsel must relate to the order appealed from. [Citation.] Habeas corpus may not be utilized to challenge antecedent final orders. [Citation.] Thus, for example, a claim of ineffective assistance of counsel in connection with jurisdiction and disposition orders may be raised in a petition for writ of habeas corpus filed in connection with an appeal from the disposition order. [Citation.] The same claims may not be raised by a habeas corpus petition filed in connection with an appeal from an order terminating parental rights. [Citation.]" (In re Carrie M., supra, 90 Cal.App.4th at pp. 533-534.) Mother's habeas petition violates these principles. The petition seeks an order of this court (1) vacating the now-final August 1, 2016, dispositional order and the judgment terminating parental rights, and (2) ordering the juvenile court to hold a new dispositional hearing on the ground Mother was deprived of her right to effective assistance of counsel at that hearing. Because Mother's writ petition constitutes a collateral attack on a final order, it must be denied. C. Mother's Appeal and Habeas Petition Lack Merit in Any Event
Lastly, we observe that, if we had jurisdiction to consider Mother's appeal or her habeas petition on their merits, we would conclude that Mother has not been prejudiced by her counsel's or the court's failure to advise Mother of her right to appeal from the dispositional order. (Strickland v. Washington (1984) 466 U.S. 668, 693-694; People v. Watson (1956) 46 Cal.2d 818, 838.) We would also conclude Mother has not been prejudiced by her counsel's failure to object to the court's reliance on subdivision (b)(10) as the basis for denying Mother reunification services for D.A. at the August 1, 2016, dispositional hearing. Even if Mother's counsel had objected at the dispositional hearing to denying Mother reunification services for D.A. pursuant to subdivision (b)(10), there is no reasonable probability Mother would have been granted reunification services for D.A. Instead, had the error in relying on subdivision (b)(10) been brought to the court's attention, we discern no reason why the court would not have bypassed Mother's reunification services for D.A. pursuant to subdivision (b)(2), the same statute the court previously relied on in bypassing Mother's reunification services for J. and A.
IV. DISPOSITION
Mother's appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.