Opinion
F077779
10-16-2018
CRAIG M., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Real Party in Interest.
Craig M., in pro. per., for Petitioner. No appearance for Respondent. John P. Doering, County Counsel, and Maria Elena R. Ratliff, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 518146, 518148)
OPINION
THE COURT ORIGINAL PROCEEDING; petition for extraordinary writ review. Ann Q. Ameral, Judge. Craig M., in pro. per., for Petitioner. No appearance for Respondent. John P. Doering, County Counsel, and Maria Elena R. Ratliff, Deputy County Counsel, for Real Party in Interest.
Before Poochigian, Acting P.J., Peña, J. and Meehan, J.
-ooOoo-
Petitioner Craig M. (father) in propria persona seeks an extraordinary writ from the juvenile court's orders issued on June 18, 2018, at an 18-month review hearing terminating reunification services for Esther, the mother of his now two- and four-year-old daughters, and setting a Welfare and Institutions Code section 366.26 hearing. Father contends the juvenile court failed to grant his relatives placement preference and his trial counsel was ineffective. He seeks appointment of new counsel and an order granting him reunification services. We deny the petition.
PROCEDURAL AND FACTUAL BACKGROUND
This matter originated in Merced County in December 2016, after Esther was arrested and unable to find a suitable caretaker for the children. She was driving with the children in a stolen vehicle and attempted to elude police officers. In the chase, she crashed her car into a fence. The children were released to a maternal cousin who turned them over to the maternal grandmother in Modesto. The grandmother's home was not safe for the children and the grandmother had extensive child welfare history. Consequently, the Merced County Human Services Agency (Merced agency) took the children into protective custody and placed them in foster care. Father was incarcerated on drug-related charges with an expected release date of May 2020.
In January 2017, the Merced agency placed the children with a paternal relative where they remained for approximately two weeks when they were removed at the relative's request. The agency placed them in foster care.
In February 2017, father appeared in custody at the jurisdictional hearing with attorney Sean McCleod and executed a JV-195 form "Waiver of Reunification Services." According to the minute order of the hearing, the juvenile court conducted a "voir dire" regarding the form with father and found that he knowingly and intelligently submitted the form.
In March 2017, the Merced County juvenile court exercised its dependency jurisdiction over the children and ordered Esther to participate in reunification services. The court denied father services based on his waiver. In November 2017, at the six-month review hearing, the court continued reunification services for Esther, transferred the case to Stanislaus County, and relieved appointed counsel. In its report for the hearing, the Merced agency informed the Merced County court that it evaluated the paternal grandmother Gina and paternal aunt Connie for placement but their requests for placement were denied in August 2017. The Merced agency also attempted to contact another paternal relative who expressed interest in placement but she did not return the call.
The Stanislaus County juvenile court (juvenile court) accepted the case in November 2017, appointed Angela Cobb to represent father, and set a hearing for January 2018. Meanwhile, Esther, who was pregnant with a child from another man, gave birth to a son with a positive toxicology. She admitted daily use of drugs. The child was removed from her custody and placed with a paternal relative. At the January hearing, the Stanislaus County court ordered Esther immediately into residential drug treatment.
The Stanislaus County Community Services Agency (agency) placed the children together in foster care. In February 2018, the agency moved them to a new foster home. In May 2018, the foster parents were granted de facto parent status.
The juvenile court provided Esther reunification services to the 18-month review hearing, which it conducted in June 2018. Although Esther regularly visited the children and partially complied with her case plan, she failed to make any progress toward addressing her substance abuse. Counsel for the parents submitted the matter at the hearing on the agency's recommendation to terminate reunification services. Prior to the hearing, father filed a motion, asking the court to immediately set aside all of its orders and objecting to the placement of the children with anyone other than his relatives. He also claimed his trial counsel was ineffective for ignoring his parental rights. Attorney Sean Collins represented father at the hearing. Collins advised the court that he had not heard from father since the case was transferred and he recalled the agency attempted to investigate paternal relatives. The court directed him to contact father to discuss the status of his case. The court terminated Esther's reunification services and set a section 366.26 hearing for November 13, 2018.
Angela Cobb, an associate of Sean Collins from the same law firm, represented father until May 2018, when she was relieved as counsel.
DISCUSSION
Father contends the Merced County juvenile court denied his aunt Connie the right to "adopt" the children while the case was under its jurisdiction. We reframe his argument and disagree. Rather than a right to "adopt," Connie had a right to relative placement preference, which is how we construe father's contention. Under the relative placement preference, set forth in section 361.3, Connie, as the children's great aunt, had a right to have her placement request considered before the request(s) of nonrelatives at the dispositional hearing or whenever a new placement was made. When a relative desires placement, the agency is required to contact and assess the relative and document those efforts in a social study report to be filed with the juvenile court. (§ 361.3, subd. (a).) According to the record, Connie requested placement sometime before August 2017 but the agency denied it. There is no record she appealed the agency's decision through an administrative appeal or directly petitioned the juvenile court. Nor did Connie renew her request for placement when the children were moved to a new foster home in February 2018. Father thus fails to show that the agency failed to comply with the statute by not assessing Connie and that the juvenile court erred in not placing the children with her.
There is no relative placement preference for adoption. (In re A.K. (2017) 12 Cal.App.5th 492, 498.)
Section 361.3, subdivision (a) provides as relevant here: "In any case in which a child is removed from the physical custody of his or her parents ..., preferential consideration shall be given to a request of the child for placement of the child with the relative ...." " 'Preferential consideration' " means that the relative seeking placement shall be the first placement to be considered and investigated. [¶] 'Relative' means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including ... all relatives whose status is preceded by the word[] great ...." (§ 361.3, subd. (c)(1)-(2).)
Father also contends Sean McCleod was ineffective for not explaining the significance and ramifications of waiving reunification services. He claims he was prejudiced because it prevented him from participating in the proceedings. He also claims Angela Cobb was ineffective for not contacting him and providing him court documents and Sean Collins was ineffective for not contacting him and submitting an order to have him transported to the 18-month review hearing. We conclude his claims are meritless.
To prevail on a claim of ineffective assistance of counsel, a parent must establish "counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law" and the "claimed error was prejudicial." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) Father's claim fails because he cannot demonstrate prejudice; i.e. "that it is 'reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (Id. at p. 1668.)
As a preliminary matter, we note that it was the agency's responsibility, not trial counsel's, to provide father copies of the court documents. Father does not specify which documents he did not receive nor are we able to discern that from the record. Nevertheless, we presume in the absence of evidence to the contrary the agency performed its official duty. (Evid. Code, § 664.) Further, father fails to show how he was prejudiced by not having the information contained in any of the court documents.
As to those claims that directly implicate trial counsel, we note that father did not have a right to personally appear at the 18-month review hearing. Penal Code section 2625 governs a prisoner's right to appear in juvenile dependency proceedings. Under the statute, the juvenile court is required to order a prisoner-parent's temporary removal and production before the court as relevant here only "where the proceeding seeks to terminate the parental rights of [the] prisoner" under section 366.26. (Pen. Code, § 2625, subd. (b).) Since the court was conducting a review hearing, not the section 366.26 hearing, father did not have a right to be transported to the hearing.
The statute also requires the juvenile court to order the prisoner-parent's removal and production before it at the dispositional hearing, i.e., where the proceeding seeks to "adjudicate the child of a prisoner a dependent child." (Pen. Code, § 2625, subd. (b).) --------
With regard to father's claim counsel failed to properly advise him concerning the waiver of services, the record reflects that he executed an express waiver of his right to reunification services in response to the juvenile court's questioning. Since we do not have the reporter's transcript for the hearing or the actual JV-195 form, we are unable to determine whether he really understood the consequences and import of his decision. We presume the juvenile court advised father of the consequences of not attempting reunification, including the possibility his parental rights could be terminated. In any event, father is not prejudiced because even if he had not waived his right to reunification services, it is highly unlikely the juvenile court would have provided him services. In its dispositional report, the agency recommended the juvenile court deny father services under section 361.5, subdivision (e)(1), which authorizes the court to deny services to an incarcerated parent if it finds by clear and convincing evidence it would be detrimental to the child. In assessing detriment, the court must consider, among other factors, the child's age, the degree of parent-child bonding and the length of incarceration. Evidence on the record, specifically the children's young age and the facts that father never parented the youngest child and had several years to complete his prison sentence, supported a denial of services under subdivision (e)(1) of section 361.5.
Finally, it does appear trial counsel failed to communicate with father. Mr. Collins informed the juvenile court at the hearing in June 2018, "I have not had communication with the father since the case has been transferred. He hasn't attempted to communicate with me or Ms. Cobb." The case was transferred and Angela Cobb was appointed in November 2017. An attorney has a duty to communicate with his or her client. (Bus. & Prof. Code, § 6068, subd. (m); Rules Prof. Conduct, rule 3-500; In re O.S. (2002) 102 Cal.App.4th 1402, 1410-1411.) Adequate communication with clients is an integral part of competent professional performance as an attorney. (In re O.S., supra, 102 Cal.App.4th at p. 1411.) In this case, however, father fails to show the juvenile court would have granted him reunification services had Collins and Cobb communicated with him. Father had already waived reunification services when they were appointed to represent him. By waiving reunification services, father willingly elected not to actively participate in the proceedings, except to receive notice and appear at the review hearings. Further, father does not specify what actions his attorneys could have but did not take that would have resulted in an order for services. Consequently, father has failed to show that he was prejudiced by trial counsel's failure to communicate with him.
On a final note, any request for new trial counsel must be made in the juvenile court by making a Marsden motion under People v. Marsden (1970) 2 Cal.3d 118.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.