Opinion
A167045
12-07-2023
In re M.T. et al., Persons Coming Under the Juvenile Court Law. v. M.T. (Mother), Defendant and Appellant. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Alameda County Super. Ct. Nos. JD-031229-01, JD-031230-01)
STREETER, J.
Before us is a second appeal from a Welfare and Institutions Code section 366.26 order in this dependency proceeding. The minors involved in the case are two young girls, M.A. and A.T. (collectively the children), and their mother is the appellant (Mother). We resolved the first appeal, also from Mother, in an unpublished opinion in January 2022. (See In re M.A. (January 30, 2022, A162268) [nonpub. opn.].) We will assume familiarity with the case background and the law stated in that opinion.
All undesignated statutory citations are to the Welfare and Institutions Code.
I.
In the course of our review of this appeal, we took note of a potential jurisdictional issue we must address sua sponte at the threshold, since, in the absence of jurisdiction, we have no power to address the merits. (City of Calexico v. Bergeson (2021) 64 Cal.App.5th 180, 185.)
California Rules of Court, rule 8.406(a)(1) states that, subject to certain exceptions not applicable here, "a notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed." It applies to orders terminating parental rights. (See In re A.R. (2021) 11 Cal.5th 234, 246 (A.R.).)
At a Welfare and Institutions Code section 366.26 hearing (.26 hearing) on November 14, 2022, the juvenile court entered an order (.26 order) terminating Mother's parental rights and determining that adoption shall be the permanent plan. Mother and her counsel were present at that hearing, and a minute order reciting the court's ruling was mail-served by the court on November 17, 2022.
Because the record shows the notice of appeal in this case was e-filed on January 17, 2023-64 days after the .26 order was entered-we directed the parties to file supplemental briefs addressing the timeliness of the appeal. In her supplemental brief, Mother concedes her failure to meet the California Rules of Court, rule 8.406(a)(1) deadline, but contends she intended to appeal all along. She says she was deprived from doing so in a timely fashion due to "her counsel's incompetence in filing the late notice of appeal." Mother asks that we treat her supplemental brief and accompanying declarations as an application for relief from the deadline. We will do so.
In a declaration accompanying Mother's supplemental brief, Mother makes plain she always intended her trial counsel to appeal. In another declaration, Mother's trial counsel states that she e-filed Mother's notice of appeal on January 14, 2023, which she says she incorrectly "thought was the '60th day'" following entry of the .26 order, and that, according to her "records," the "filing was accepted by the trial court on the morning of January 17, 2023." She concedes an error in calendaring the correct deadline, and has an excuse for the confusion which we find acceptable. Because the trial court accepted the late notice of appeal for filing instead of marking it "received but not filed" and returning it to her (see Cal. Rules of Court, rule 8.406(c)), she states she was unaware there was a timeliness problem with the appeal until after we filed our supplemental briefing order on November 20, 2023.
Mother's counsel acknowledges missing the deadline stated in California Rules of Court, rule 8.406(a)(1), but contends she did so inadvertently and claims the circumstances satisfy the standards set forth in A.R. for relief from the default. We agree. There can be no dispute that, under the ineffective assistance standards enunciated in A.R., counsel's performance fell below the level of competence demanded by the Sixth Amendment. In light of the declarations submitted with Mother's supplemental brief, it is also beyond dispute that Mother wished to appeal, but that her counsel's incompetence deprived her of the right to do so.
While normally we prefer to entertain claims of ineffective assistance in habeas proceedings rather than on direct appeal, the A.R. court indicated that, in dependency cases, we must deal with applications to "revive [tardy] appeals from the termination of parental rights in a manner that is sensitive to both the importance of speed and finality in this context and the precise nature of the [ineffective assistance] claim at hand." (A.R., supra, 11 Cal.5th at p. 256.) We think the record in this case permits us to address the ineffective assistance claim efficiently in this appeal, without the cost and delay attendant to a habeas proceeding.
In its supplemental brief, the Agency argues that we should dismiss the appeal notwithstanding the holding in A.R. because here, unlike in that case, Mother failed to raise the issue of ineffective assistance of counsel in her opening brief or to file an application for relief from the jurisdictional deadline immediately after missing the jurisdictional deadline, and thus she has forfeited the ability to argue ineffective assistance in this appeal.
We decline to penalize Mother for her appellate counsel's failure to raise the issue of ineffective assistance more proactively. We have no reason to question trial counsel's claim that she was unaware of the tardiness of Mother's appeal until we raised the issue. And in any event, the appellate forfeiture layer of the problem only compounds the initial delinquency and raises a further issue of ineffective assistance in this appeal that can also be resolved on the present record.
For the same reason we grant relief from the initial default, we will exercise our discretion to reach the merits despite counsel's failure to preserve Mother's ineffective assistance claim on appeal.
II.
In the first appeal, we vacated a prior order under section 366.26 and remanded for further consideration in light of In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). On remand, the legal positions taken by the parties remained the same. The Agency continued to recommend that the court terminate both parents' parental rights and order a permanent plan of adoption by the paternal aunt and uncle who were the children's caregivers (paternal relatives). Father did not appear for the .26 hearing. Mother continued to oppose adoption and argued in the alternative that the parental beneficial relationship applies under section 366.26, subdivision (c)(1)(B)(i).
As did the Caden C. court (Caden C., supra, 11 Cal.5th at p. 625, fn. 2), we use terms such as "the parental beneficial relationship," the "parental benefit exception," and the "parental bond" as labels in discussing the exception currently codified at section 366.26, subdivision (c)(1)(B)(i). The labels are merely for ease of reference and do not reflect any substantive determination about the requirements to prove the exception.
The sole contested issue in this appeal, as it was in the first appeal, is whether the court erred in determining that the parental benefit exception applies under Caden C. We find no error and will affirm.
On remand, the parties supplemented the record with the 2022 reports prepared by the Agency before and in connection with the second .26 hearing, as well as additional testimony taken over the course of two court days. This expanded record includes evidence showing additional visits by Mother in 2022 before the second .26 hearing, but on the first prong of the analysis under Caden C., the court found that visitation was "really not a matter in fact for dispute." Mother's visitation with M.A. and A.T., the court found, continued to be "regular and consistent."
Addressing the second prong of the Caden C. analysis, the court found that Mother failed to prove a "positive emotional attachment" between her and the children. The court placed particular weight on the young ages of the children and the amount of time they had spent in Mother's care. By the time of the second .26 hearing, M.A. was four years and nine months old and A.T. was three years and five months old. M.A. had spent 41 out of 57 months of her life out of Mother's care, and A.T. had never been in Mother's care. During visits, the children had to be prompted to call Mother "mommy" on several occasions.
Looking at the quality of the reported interactions in the visits, the court determined that "the reports and the description of visitation is seemly [sic] just more of the same from the prior two-and-a-half to three years." The court found that, while each child reacted to Mother somewhat differently- with M.A. showing more of a positive emotional attachment to Mother than did A.T.-the most that could be said is that, for the children, Mother was no more than a "friendly visitor" in their lives, "maybe an aunt or somebody in the extended family [who] might come for visits every now and then."
We see no reason to criticize the trial court's second prong analysis. There was some evidence that M.A. became "more defiant" than usual after visits with Mother and that on one occasion M.A. had a negative emotional response following a visit (she urinated on the kitchen floor, despite the fact she was potty trained). And in A.T.'s case, there was some evidence of lack of interest in Mother's visits; "she would often . . . leave the room" where Mother was and go to join others at the back of the house. There also was some evidence that neither child expressed disappointment at the end of visits, asked about Mother outside of visits, or had any emotional instability during the period when they had no contact with Mother.
The court stated that it was unnecessary to reach the third prong of the Caden C. test, but felt that the balancing of severance detriment against the stability of a permanent placement "calls for some discussion briefly, some remark." "Here," the court found, "I don't find that it would be detrimental to terminate the relationship from the children's perspective. [¶] I think it would be devastating for the mother, but that cannot be my consideration. [¶] I think the children have been in their current caretaker home for a long period of time, and I think they are thriving there. [¶] I think they are stabilized [and] . . . receive the love and support they need."
Mother argues that, in addressing the third prong of the Caden C. analysis, the court improperly compared the quality of the paternal relatives' caregiving to Mother's caregiving. We disagree. In making this balancing assessment, trial courts must undertake a difficult prognostication of future stability and permanency. That discretionary exercise necessarily requires consideration of a child's current placement as a starting point, followed by a hypothesized projection out into the future. The trial court's articulation of its Caden C. third prong analysis is consistent with this approach and was within its discretion. In any event, even assuming the trial court erred at the third stage of the analysis, the error is harmless because it found no substantial parental bond that was in danger of being severed, a finding which we cannot second-guess given the deference owed to it on appeal.
Having reviewed the entire record, we conclude substantial evidence supports the trial court's decision that Mother failed to bear her burden of proving the applicability of the section 366.26, subdivision (c)(1)(B)(i) exception. In Mother's opening brief, the phrasing of the evidentiary sufficiency argument attacking this determination is telling. She contends that "substantial evidence supports a determination the minors had a positive, emotional attachment to their mother, and the detriment the minor would suffer upon the loss of this relationship outweighed the benefit of adoption." That framing reverses the appellate standard of review. We are concerned with whether substantial evidence supports the findings in the order under review, not with whether substantial evidence supports Mother's preferred outcome.
Perhaps recognizing the difficulty of meeting the burden she faces here due to the deferential standard of review, Mother does make some effort to present this appeal in a way that would free us to decide it on the law. She argues the trial court violated her due process rights by blocking her from presenting "relevant evidence at the contested section 366.26 hearing . . . and then relying on this very evidence" in rejecting the applicability of the beneficial relationship exception. We need not go into great detail about this issue because we conclude, on this record, the contested matter to which the proffered evidence was purportedly relevant played no material role in the court's analysis of the section 366.26, subdivision (c)(1)(B)(i) exception.
The due process issue Mother raises has to do with the court's limitation of her testimony concerning the circumstances of a temporary restraining order and a related order prohibiting harassment, annoyance, or molestation (sometimes called a "no HAM order"). These orders were issued in the Spring of 2021 after the paternal relatives alleged that Mother sent them harassing messages and vandalized the vehicle they regularly used to transport the children. Following entry of the orders, the Agency and the paternal relatives agreed that visitation should cease for a period. To begin the transition to in-person visitation after we vacated the first .26 order, the minors video visited with Mother via "Facetime" in April and May 2022. In person visits resumed in early June 2022.
About three weeks after issuance of the restraining order, the court withdrew it at the request of the children's counsel.
Mother argues that she had no opportunity to contest the issuance of the temporary restraining order because it issued ex parte; that she did not testify at the hearing where the court issued its no HAM order; and that the court made no findings after a contested proceeding as to the truth of the paternal relatives' allegations (allegations which Mother vehemently denies). After Mother testified at the second section 366.26 hearing that she did not vandalize the paternal relatives' vehicle, the court, while taking judicial notice of the temporary restraining order, cut short further testimony from Mother on the matter, considering further exploration of the circumstances behind the issuance of the temporary restraining order and the no Ham order not relevant to its decision.
The gist of Mother's due process argument is that, in announcing its decision, the court accepted the paternal relatives' tire-slashing allegations as true even though it blocked her effort to present testimony on the issue. Specifically, she complains that, having refused to hear this testimony, in explaining its findings with respect to the second prong of the Caden C. analysis-concerning the strength of the parental bond between Mother and the children-the court stated that "[one] wonders about what is the quality of the relationship when the parent is alleged to have slashed the tires of the vehicle in which the children were transported."
We think Mother overreads the significance of this side comment. The court made clear it "never made a final ruling on that[,]" and, when read in context, its reference to the tire-slashing incident issue came in the course of its discussion of the quality of Mother's visits with the children. It is clear to us that the court's overall assessment of the quality of Mother's visits, together with the young ages of the children and the inconsequential period of time the children had spent in Mother's care (in A.T.'s case, no time at all), was the linchpin of the adverse findings against Mother at prong two of Caden C. The tire-slashing allegations were, at best, incidental.
The evidentiary call the court made in limiting Mother's testimony was within its discretion. Mother had the opportunity to deny the tire-slashing allegations, and she makes no argument that the brief period the restraining order was in effect interfered with her ability to prove a positive emotional bond with the children. As we read the record, the court curtailed her testimony concerning the underlying circumstances that led to the issuance of the restraining order and the no HAM order because it wished to focus its inquiry on other matters that it felt were more central to its assessment of the parental bond issue. We have no quarrel with that. We see the limitation the court placed on Mother's testimony as nothing more than a routine exercise of its authority to control the scope of evidence presented in a contested proceeding.
On this record, we see no due process violation, and no basis for reversal on any ground.
DISPOSITION
Affirmed.
WE CONCUR: BROWN, P. J. GOLDMAN, J.