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Imperial Cnty. Dep't of Social Servs. v. Vanessa M. (In re Angel B.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 13, 2012
D060292 (Cal. Ct. App. Jan. 13, 2012)

Opinion

D060292

01-13-2012

In re ANGEL B., a Person Coming Under the Juvenile Court Law. IMPERIAL COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. VANESSA M., Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JJP2321)

APPEAL from orders of the Superior Court of Imperial County, Diane B. Altamirano, Judge. Affirmed.

Vanessa M. appeals juvenile court orders terminating her parental rights to her child, Angel B., and referring the matter for adoption. She contends she was prejudiced by her counsel's failure to file a Welfare and Institutions Code section 388 petition. We affirm the orders.

Statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2010 the Imperial County Department of Social Services (the Department) petitioned on behalf of infant Angel and his three-year-old brother Jorge B., Jr., under section 300, subdivision (b), alleging Angel had tested positive for amphetamines at birth, and Vanessa admitted smoking methamphetamine and that she had used illegal substances for five years. The petition also alleged under section 300, subdivision (g), that Jorge, Jr.'s, father, Jorge B., Sr., denied he was Angel's father and said he wanted nothing to do with Angel or Vanessa.

Jorge, Jr., is not a part of this appeal.
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The social worker reported Jorge, Jr., had been the subject of a juvenile dependency petition in 2007, the family had received family maintenance services and the case was closed in 2008. An August 2010 drug test of Jorge, Jr., was positive for methamphetamine. The court ordered Angel and Jorge, Jr., detained, and they were placed together in foster care. Jorge, Jr., was later moved to Jorge, Sr.'s., home. At the jurisdictional hearing in September 2010, the court found the allegations of the petitions to be true.

Vanessa began drug abuse prevention treatment, but missed several classes. She visited both children every week. At the dispositional hearing in October 2010, the court removed Angel from Vanessa and ordered her to comply with her reunification plan.

The social worker reported paternity testing showed Jorge, Sr., is not Angel's biological father. During the months between the disposition hearing and the March 2011 six-month review hearing, Vanessa did not participate in services. She had a positive methamphetamine test in November 2010 and did not test after that time. Her visits with Jorge, Jr., and Angel were sporadic, and meanwhile, Angel did very well in his foster home.

At the six-month review hearing, Vanessa requested the court order additional services. She indicated she had started participating in parenting classes and was on waiting lists for other programs. The court terminated its jurisdiction over Jorge, Jr., and granted sole legal and physical custody to Jorge, Sr. It ordered supervised visitation for Vanessa with Angel. It found Vanessa had not made substantive progress with the provisions of her case plan, terminated services and set a section 366.26 hearing.

For the section 366.26 hearing set for July 2011, the social worker reported Angel was a happy, well-cared-for child and was developing appropriately in his foster home, where he had lived since he was five days old. His foster parents wanted to adopt him. Vanessa had not been visiting him on a consistent basis. She visited in late April, did not visit in May and missed the visit scheduled for early June. At the section 366.26 hearing, Vanessa's counsel requested six more months of services and objected to the fact that the social worker's report focused on the suitability of the prospective adoptive family, rather than on the progress Vanessa had made during the past months.

After considering the evidence and argument by counsel, the court terminated Vanessa's parental rights, found Angel was adoptable and identified adoption as the permanent plan.

DISCUSSION

Vanessa contends she was prejudiced by her counsel not filing a section 388 petition, but only arguing at the section 366.26 hearing that the court should not terminate her parental rights but give her additional time to reunify. She argues that at a section 366.26 hearing the only issues properly under consideration are whether the child is adoptable and whether there is a statutory exception to termination of parental rights and adoption. She maintains that by not filing a section 388 petition, her counsel did not properly bring to the court's attention the issues of her participation in drug treatment services and her strides to remain drug free.

Section 317.5, subdivision (a) provides "[a]ll parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel." In order to establish that her counsel in a dependency proceeding was ineffective, a parent " 'must demonstrate both that: (1) [her] appointed counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates; and that (2) this failure made a determinative difference in the outcome, rendering the proceedings fundamentally unfair in that it is reasonably probable that but for such failure, a determination more favorable for [the parent's] interests would have resulted.' [Citations.]" (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) "A court need not evaluate whether counsel's performance was deficient before examining prejudice suffered by defendant. [Citation.] Thus, a court may reject a claim if the party fails to demonstrate that but for trial counsel's failings, the result would have been more favorable to the defendant." (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.)

Vanessa has not shown ineffective assistance of counsel. Generally, the proper way to raise an ineffective assistance of counsel claim is by a petition for a writ of habeas corpus, not by an appeal. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1253, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) But, in any event, on this record, Vanessa has not shown she was prejudiced by her counsel's representation. To make the prima facie showing required for a hearing on a section 388 petition, the petitioner must show by a preponderance of the evidence that there is new evidence or changed circumstances and that it would be in the child's best interests to change, modify or set aside a previous order of the court. (§ 388; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703; In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) The record does not show that Vanessa could have made the required prima facie showing.

At the section 366.26 hearing, Vanessa's counsel asserted that during the three months before the hearing, Vanessa had made "some improvement," voluntarily participating in services, completing a parenting program, calling to schedule visitation, bringing documents to her counsel's office, moving into a home for women and remaining clean and sober from March until July. In the face of Vanessa's long-term drug addiction and lack of participation in services during the first six months of Angel's dependency, her counsel's assertion alleges only changing, not changed circumstances as required by the statute. A petition which alleges merely changing circumstances would mean delaying the selection of a permanent home and does not promote stability for the child or the child's best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

There is no indication that Vanessa could have made a prima facie showing that it would have been in Angel's best interests to delay a permanent plan so she could be provided with additional services. Although the Department attempted to arrange regular visits for Vanessa, she had only sporadic contact with Angel during the 11 months he was a dependent child of the court. She visited three times in September 2010, once in November and once in December. She did not visit again until April 2011 and missed the visit scheduled for early June. Angel was very bonded to his prospective adoptive parents and was thriving in their care. Vanessa could not have shown it would have been in his best interests to delay a permanent plan for him. She has not shown the outcome of the proceedings would have been any different had her attorney brought a section 388 petition.

DISPOSITION

The orders are affirmed.

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O'ROURKE, J.
WE CONCUR:

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HUFFMAN, Acting P. J.

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McDONALD, J.


Summaries of

Imperial Cnty. Dep't of Social Servs. v. Vanessa M. (In re Angel B.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 13, 2012
D060292 (Cal. Ct. App. Jan. 13, 2012)
Case details for

Imperial Cnty. Dep't of Social Servs. v. Vanessa M. (In re Angel B.)

Case Details

Full title:In re ANGEL B., a Person Coming Under the Juvenile Court Law. IMPERIAL…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 13, 2012

Citations

D060292 (Cal. Ct. App. Jan. 13, 2012)