Opinion
E056475
02-07-2013
In re S.P., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF CHILDREN'S SERVICES, Plaintiff and Respondent, v. R.P., Defendant and Appellant.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Kristina M. Robb, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. J230655)
OPINION
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill and Marsha Slough, Judges. Affirmed.
Judge Slough presided over the initial hearings while Judge Tavill presided over the 12-month review hearing through termination of parental rights.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
R.P. (father) appeals the termination of his parental rights (Welf. & Inst. Code, § 366.26) at the June 8, 2012, hearing with regard to his son, S.P. He contends he was denied his due process right to effective assistance of counsel when none of his attorneys objected to the court's visitation orders. We disagree, and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Mother is not a party to this appeal and will be mentioned only when necessary.
S.P. is the only child who is the subject of this appeal. The other children will be mentioned only when necessary.
I. PROCEDURAL BACKGROUND AND FACTS
On December 31, 2009, the San Bernardino County Children and Family Services (CFS) initiated dependency proceedings, alleging that S.P. (born 2001) and his two half sisters came within section 300, subdivisions (b) and (g) due to their mother's history of substance abuse and unacceptable living conditions, and Father was currently incarcerated. Mother and the children had been living in a shed in the backyard of a "'known drug home,'" where at least 10 people had been arrested after a drug raid. Father had a past criminal history and he was unable to care for S.P. because he was incarcerated in Chino Prison. At the time that CFS responded to an immediate response referral, S.P. was staying in Hemet with his paternal grandmother. S.P. and his half sisters were placed with the paternal aunt and uncle of one of the half sisters.
The detention hearing was held on January 5, 2010, with Judge Marsha Slough presiding. Father was represented by his appointed counsel, Gloria Gebbie. The court detained S.P., set a jurisdiction/disposition hearing, and ordered a minimum of one visit per week to "begin upon [Father's] release from custody." Father's counsel raised no objections.
According to the jurisdiction/disposition report filed on January 22, 2010, CFS recommended that the children remain in confidential foster care and that Father be found to be an alleged father not entitled to services. Mother indicated that Father was the biological father of S.P. On February 9, 2010, Ms. Gebbie informed the court that "the paternal grandmother is here and she would like the [social] worker to talk to her about and I'd like the Court to authorize him to arrange visits with family members herself and her other son." The court asked CFS to look into the matter and "if appropriate as in the best interest of the children to arrange visitations."
On March 10, 2010, Father appeared, represented by Monica Cazares, for a further jurisdictional hearing. Father's counsel requested a contested hearing "primarily on the issue of disposition." A pretrial settlement conference was set.
In an addendum report filed on March 24, 2010, CFS changed its recommendation to request that the court find Father to be a presumed father and order reunification services for him. The social worker had met with father, who indicated he was S.P.'s biological father and had had custody of him from birth to at least 18 months. Father stated he was incarcerated from 2004 until 2008, but upon his release, he lived with mother and the children until he went back to jail in October 2009. Father added that he always held S.P. out to be his son and had a good relationship with S.P.'s half siblings, who viewed Father as a "'father figure.'" He informed the social worker that he had been married to mother since January 2009. He acknowledged being incarcerated due to violating parole and his expected date of release was August 8, 2010. Father stated he was willing to do whatever it took to reunify with S.P. and his half sisters.
The social worker met with the children, who agreed that Father "is 'like a father to all of us,'" and that he took care of S.P. for a while during the time mother was in jail. Mother agreed that Father was "'like a father'" to all the children; however, she claimed she wanted a divorce from him and that he did not care for S.P. while she was in jail. Rather, she claims that S.P. was placed with his paternal grandmother. However, mother admitted that Father had lived with her and the children when S.P. was between the ages of three and four. She denied that he ever "really provided" for S.P., as Father was "'always in and out of jail.'" While Mother opined that S.P. did not have a relationship with Father, she was not opposed to them having contact and a relationship.
CFS recommended visitation, a minimum of one time per week, upon Father's release from custody.
At the further pretrial settlement conference on March 26, 2010, Father submitted a waiver of rights form and submitted on the section 300 petition based on the social worker's report. Father was present and represented by Gloria Kim-Chung, although Ms. Gebbie had gone over the paperwork with Father the previous day. The court found that S.P. came within section 300, subdivisions (b) and (g), declared him to be a dependent, and ordered him removed from parental custody. The court found Father to be child's presumed father and ordered reunification services and supervised visitation upon Father's release from custody, a minimum of one time per week. Ms. Kim-Chung did not object to the social worker's recommendation regarding visitation or the court's subsequent visitation order.
According to the six-month review report filed on September 10, 2010, S.P. was having issues with school and trouble turning in his homework assignments. He missed Father and wanted to know when he would be coming home. Upon Father's release on August 12, 2010, he contacted the social worker and "showed interest in completing the case plan expectations." Father's case plan consisted of general counseling, parenting education, and random drug testing. According to S.P.'s caregiver, between the date of Father's release and the date of the six-month review report, Father had visited the child two times. He was present at the six-month review hearing. His counsel, Ms. Kim-Chung, informed the court that he wanted a trial on the issue of visitation and that he was requesting unsupervised visitation. The matter was continued to October 5.
On October 5, 2010, Father was present and represented by Ms. Cazares. County counsel informed the court that Father was getting "fairly liberal supervised visits" with all three children, and that she had spoken to Ms. Cazares about "walking through a packet" to determine the feasibility of unsupervised visitation by the time of S.P.'s birthday. Ms. Cazares asked that the packet address Father's progress and that it be submitted the week of November 15. She further requested that the court's order reflect a minimum of two visits per week. Noting S.P.'s struggles with school, his counsel asked that Father be involved "to encourage him to do well in school." The court continued services and issued an order requested by Father's counsel, which allowed visitation for a minimum of two times per week supervised, with the social worker given authority to liberalize as to frequency and duration, and possibly unsupervised at a neutral location when appropriate.
The children stayed with Father and mother at the home of the paternal grandmother in Hemet during Thanksgiving and Christmas 2010. Because those visits went very well, on February 4, 2011, the social worker requested unsupervised weekend visitation. She opined that "weekly home passes with the parents . . . will enhance mental stability of the children at their current placements." Unfortunately, prior to the social worker receiving the court order, Father failed to drug test, mother tested positive for methamphetamine, and there were issues regarding adequate supervision of the children. Thus, supervised visitation continued.
According to the 12-month review hearing report filed on March 28, 2011, Father had completed all the components of his case plan and had provided clean drug tests, although he failed to test on two occasions because his number did not come up and he was working and unable to get to the testing site on time. At parent's request, the matter was set contested. On April 15, Father and his counsel, Ms. Kim-Chung, were present. At CFS's recommendation, Judge Gregory Tavill ordered services to continue and that visits between S.P. and Father be unsupervised a minimum of one time per week, with authority for the social worker to liberalize to overnights when appropriate. The social worker was also authorized to return S.P. to Father on family maintenance by approval packet when deemed appropriate.
The 18-month review report filed on June 21, 2011, recommended that services be terminated and a section 366.26 hearing be set. On June 6, the social worker learned that Father had been incarcerated for violating parole and attempting to evade a police arrest. He was expected to serve one year in jail. Prior to his arrest, he and mother were experiencing homelessness, continued to move between hotels and family members, and were physically and verbally abusive to each other. According to all of the family members, neither parent had the ability at that time to provide a safe environment for the children due to their "frequent arguments, fights and drug use." Moreover, prior to Father's arrest, he had not visited S.P. during the weeks of May 5, 8, 18, 28, and June 4. S.P. told the social worker that he liked visiting his parents but wished that they could be consistent. S.P. expressed a preference of living with his parents but said he would stay with his caretaker if reunification was not possible.
A contested 18-month review hearing was set for July 8, 2011. Father appeared with his counsel, Meg Hogenson. Father's defense attorney in his criminal matter informed the court that Father was in custody and that counsel hoped to resolve the case so Father would "do[] local time"; however, it was too early to say. The court informed Father that he was "out of the [statutory] time" and that it would be terminating reunification services to him. Ms. Hogensen stated Father's wish to continue services and visitation while in custody. Father asked for "letter and telephonic contact either through the social worker or delegate." The court terminated reunification services and continued the matter to January 6, 2012. The permanent plan was to be a planned permanent living arrangement with a goal of returning S.P. home to mother. The court ordered visitation between Father and S.P. to be by letter and telephone contact, supervised by the social worker, who was also authorized "to facilitate in-custody visits, if deemed appropriate and in the best interest of the child. No in-custody visits if Father goes to state prison." (Capitalization omitted.) The trial court specifically stated, "In terms of visitation while in custody, the social worker has authority to facilitate that. I am not going to order it. [¶] Certainly, if [Father] goes to State prison, I would be inclined to not order it and not have visits in State prison. If he gets into the program at Glen Helen where they do have the visitation program, then, I would expect the social worker might be able to work that out, and social worker would be authorized to do so." Ms. Hogensen did not object to the court's orders.
On January 6, 2012, Ms. Hogenson appeared and informed the court that Father was in "local custody." In the addendum report filed on January 24, CFS recommended adoption as the permanent plan for S.P. A contested hearing took place on January 30, and both Father and his counsel were present. S.P. informed the court that he wanted his aunt to "become [his] mom legally under the law." Ms. Hogenson informed the court that Father was objecting to the setting of a section 366.26 hearing, and she reiterated Father's desire to have in-custody visitation, since he was incarcerated locally with an expected release date in June. The court ordered S.P.'s permanent plan be modified to adoption and set a section 366.26 hearing. There were no changes to the previous visitation orders.
According to the adoptability assessment/section 366.26 report filed on May 18, 2012, S.P. was residing with one of his half sisters in the home of a paternal aunt who wished to adopt both children. The section 366.26 hearing was held on June 8, and both Father and his counsel, Ms. Gebbie, attended. Ms. Gebbie noted that Father had done very well with his reunification plan and visitation prior to his incarceration; that he was objecting to termination of his parental rights; and that he had requested that he be allowed to continue to have contact with S.P. The court terminated parental rights, selected adoption as the permanent plan, and indicated visitation was up to the caretaker to approve. Father appeals.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Father's sole contention on appeal is whether he received the effective assistance of counsel, given his counsel's failure to object to the court's visitation orders, which provided visitation only upon Father's release from custody. He argues there is a reasonable probability his parental rights would not have been terminated but for these alleged deficiencies.
Father filed a petition for writ of habeas corpus on this issue (case No. E057178), which we ordered considered with this appeal. We will resolve that petition by separate order.
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For the reasons stated herein, we conclude the appeal fails to make a prima facie showing of a reasonable probability Father's parental rights would not have been terminated but for any of these alleged deficiencies. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1259-1260, overruled on other grounds as stated in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
Initially, we note the correct vehicle for raising a claim of ineffective assistance of counsel is generally a writ of habeas corpus, not an appeal. (Darlice C. (2003) 105 Cal.App.4th 459, 463.) However, "[h]abeas corpus may not be utilized to challenge antecedent final orders." (In re Carrie M. (2001) 90 Cal.App.4th 530, 534 (Carrie M.).) As the Court of Appeal in Carrie M. explained, "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 concurrently 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.]" (Id. at pp. 533- 534.) To the extent Father raises any issue in connection with the March 26, 2010, pretrial settlement conference where the jurisdiction and disposition orders were made, the July 8, 2011, contested 18-month review hearing, or the January 30, 2012, planned permanency review hearing where the section 366.26 hearing was set, he has forfeited any claim by failing to file a timely appeal. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1160.) Thus, the only possible viable issue in this case would be whether Father had been provided with ineffective assistance of counsel at the section 366.26 hearing. (See Carrie M., supra, at pp. 533-534.)
Notwithstanding the above, even if we consider each of his claims, Father has failed to establish ineffective assistance of counsel. "All parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel." (§ 317.5, subd. (a).) The test for showing ineffective assistance of counsel in dependency proceedings is the same test used in criminal proceedings. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) To prevail on his claim of ineffective assistance of counsel, Father must show both that "(1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. [Citations.]" (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147.) "'"[T]here is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" [Citation.]'" (People v. Stanley (2006) 39 Cal.4th 913, 954.) A reviewing court may reverse on the ground of inadequate assistance on direct appeal only if the record affirmatively discloses no rational purpose for counsel's act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 436-437; In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1.)
To establish prejudice, Father must show there is a reasonable probability, sufficient to undermine confidence in the outcome, that the result of the proceeding would have been different but for counsel's unprofessional errors. (People v. Montoya, supra, 149 Cal.App.4th at p. 1147; see also In re Kristin H., supra, 46 Cal.App.4th at p. 1668.) Father must prove prejudice as a demonstrable reality, not merely by speculation as to the effect of counsel's errors or omissions. (People v. Williams (1988) 44 Cal.3d 883, 937.) A court "'need not determine whether counsel's performance was deficient before examining the prejudice suffered by [Father] as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . , that course should be followed.' [Citation.]" (In re Elizabeth G. (2001) 88 Cal.App.4th 496, 503; see also In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) "'Where the ineffective assistance concept is applied in dependency proceedings . . . [f]irst, there must be a showing that "counsel's representation fell below an objective standard of reasonableness . . . [¶] . . . under prevailing professional norms." [Citations.] Second, there must be a showing of prejudice, that is, [a] "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." [Citation.]' [Citations]." (In re Athena P. (2002) 103 Cal.App.4th 617, 628.)
Taking the latter approach, we find the record shows no reasonable probability that Father would have had a better outcome had his four attorneys (Gebbie, Cazares, Kim-Chung, and Hogenson) objected to the court's orders granting visitation with Father only upon his release from custody. As CFS points out, the only hearing where visitation was not discussed was the detention hearing in which Father had not yet been deemed to be a presumed father and there was little information regarding his relationship with S.P. At the March 26, 2010, pretrial settlement conference, Father submitted on the social worker's report, and supervised visitation was ordered upon Father's release from custody. Regarding the July 8, 2011, contested 18-month review hearing, and the January 30, 2012, planned permanency review hearing where the section 366.26 hearing was set, Father's counsel did seek visitation for Father, including in-custody visitation; however, throughout the dependency, the trial court was adamant about not ordering in-custody visitation.
From our review of the record, termination of Father's parental rights did not hinge upon the lack of visitation between S.P. and Father during his incarceration. Between periods of incarceration, Father's visitation progressed to overnight, unsupervised visitation. However, prior to the arrest, which resulted in his last incarceration, Father had not been taking full advantage of his visitation rights. He had missed many visits in May and June, 2011, and overnight visitation was terminated because Father was living with mother, who could not be present during overnight visitation. Moreover, by the time of the section 366.26 hearing, two and a half years had passed since the dependency petition had been filed. During that time, Father had not obtained a place to live and a stable job to provide for the family. Even S.P. wished that Father could be "consistent." Thus, S.P. was willing to stay with his caretaker if reunification was not possible.
Based on the record before this court, even if Father's counsel had acted differently, Father is unable to demonstrate a reasonable probability that, but for counsel's allegedly deficient representation, his parental rights would not have been terminated.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
CODRINGTON
J.