From Casetext: Smarter Legal Research

In re A.O.

California Court of Appeals, First District, Fifth Division
Apr 30, 2009
No. A122663 (Cal. Ct. App. Apr. 30, 2009)

Opinion


In re A.O., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DEREK T., Defendant and Appellant. A122663 California Court of Appeal, First District, Fifth Division April 30, 2009

NOT TO BE PUBLISHED

Jones, P.J.

In September 2008, the Contra Costa Juvenile Court terminated Derek T.’s (Derek) parental rights following a Welfare and Institutions Code section 366.26 (.26 hearing). Derek appeals from the order terminating parental rights. He contends the order must be reversed because the court failed “to adhere to the required statutory procedure under section 361.2 at a hearing on July 16, 2007.

Unless otherwise noted, all further statutory references are to the Welfare and Institutions Code. For the reasons set forth in In re Edwards (Apr. 27, 2009, A118547) ___ Cal.Rptr.3d ___ [2009 WL 1111208], we adopt the practice of using the party’s first name and last initial as required by California Rules of Court, rule 8.400(b)(2).

Section 361.2, subdivision (a) provides: “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.”

We affirm. Derek failed to appeal from the July 16, 2007 order and, as a result, the waiver rule articulated in In re Merenda P. (1997) 56 Cal.App.4th 1143, 1151 (Merenda P.) bars him from challenging the propriety of that order in this appeal. As a result, we do not consider whether the court was required to proceed under section 361.2 at the July 16, 2007 hearing.

FACTUAL AND PROCEDURAL BACKGROUND

Detention, Jurisdiction, and Disposition

A.O. was born in January 2007. Three days later, the Contra Costa County Department of Children and Family Services (the Department) filed a petition alleging she came within section 300, subdivision (b). The petition alleged A.O. resided with her mother, Heather W. (mother) and alleged father, Robert O. Among other things, the petition alleged: (1) A.O. and mother tested positive for methamphetamine, amphetamine, and ephedrine when A.O. was born; (2) mother admitted using methamphetamine one day prior to A.O.’s birth; and (3) Robert O. had a serious and chronic substance abuse problem which impaired his ability to parent A.O.

Pursuant to section 300, subdivision (b), a child may come within the jurisdiction of the juvenile court when “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent... to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent... to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent... to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent... to provide regular care for the child due to the parent’s... mental illness, developmental disability, or substance abuse.”

Neither mother nor Robert O. is a party to this appeal. As a result, we mention them only where relevant to the issues raised in Derek’s appeal. (In re V.F. (2007) 157 Cal.App.4th 962, 966, fn. 2.)

The court detained A.O. following a detention hearing on January 19, 2007. At a combined jurisdiction/disposition hearing on March 8, 2007, the court adjudged A.O. a dependent of the court and denied reunification services as to mother. The court set a date for the.26 hearing and advised mother and Robert O. of their right to seek writ relief. Derek was not present at the detention, jurisdiction, or disposition hearings.

The Court Determines Derek is A.O.’s Biological Father

On April 6, 2007, Derek filed a statement regarding parentage (Judicial Council form JV-505): (1) requesting DNA testing to determine whether he was A.O.’s biological father; and (2) stating that if he was A.O.’s biological father, he would like to take care of her. Pursuant to Derek’s request, the court ordered genetic testing. On June 8, 2007, the Department informed the court that Derek was A.O.’s biological father. The Department explained that Derek “voiced his desire to gain custody of [A.O.] and raise her. [Derek] currently resides with his parents. He has stated if he is unable to raise [A.O.] on his own, his parents would be able to help raise her.” The Department further noted that A.O. had been placed with her half-sister’s paternal grandmother and that her caretaker was completing an adoption home study. Shortly thereafter, the court appointed counsel for Derek.

Interim Review Hearing

On July 2, 2007, the Department submitted a memorandum to the court “to provide the Court with the proposed recommendation and updated Case Plan....” The case plan required Derek to: (1) complete a parenting education class and a substance abuse treatment program; (2) participate in random drug testing and test negative for six months; and (3) communicate and cooperate with A.O.’s social worker and follow the conditions of the visitation plan. The Department noted it had agreed to provide Derek “with referrals for random drug testing, drug treatment, and parenting classes” and that he was scheduled to begin parenting and “New Connections” classes in early July. The Department recommended that Derek be provided with six months of family reunification services. Finally, the Department recommended that the court determine Derek was A.O.’s biological father but not her presumed father.

Derek attended the hearing on July 16, 2007. At the hearing, counsel for Derek stated he was “fine” with the Department’s recommendations, but noted that Derek “would like things to go somewhat faster than what would be contemplated by a six-month review. [¶] He has about two more months to... finish his parenting class. Other things seem to be moving faster, but rather than characterizing that as an objection to the recommendation what I would like to do is go ahead and have the Court follow the recommendation, set a six-month review, and also set a status review in perhaps three months to address the question of consecutive overnight visits as a means of approaching the hoped-for FM.” Mother and A.O. agreed with this proposal.

The court followed the Department’s recommendations regarding Derek’s paternity status. The court advised him that he had six months to “successfully complete a reunification plan to reunify with [A.O.]” The court warned Derek, “If you do not successfully complete that plan within that period of time a more permanent plan could be set for your child. That could include long-term foster care, guardianship, [and] termination of your parental rights for adoption of the child.” Derek indicated he understood the possible consequences of a failure to complete the reunification plan.

“[O]nly a presumed father is a ‘parent’ entitled to reunification services with and/or custody of his child under the applicable statutory sections, that reunification services are not available under Welfare and Institutions Code section 361.5 after any reunification period has been terminated, and that section 361.2 applies only when the child is first removed from the custodial parent’s home.” (In re Zacharia D. (1993) 6 Cal.4th 435, 439.) Here, the court never explicitly concluded Derek was A.O.’s presumed father, but it appointed counsel for him and provided him with reunification services pursuant to section 361.5. Derek claims a court determination that he was a presumed father with “constitutional paternity rights” was “inherent in the order granting reunification services.” In the last sentence of its brief, the Department disagrees, stating Derek was not entitled to custody under section 361.2 because “the court never elevated [Derek’s] status to that of presumed father.” Because we conclude the waiver rule bars Derek’s claims, we need not determine whether he was a presumed father or whether the court was required to apply section 361.2 at the July 2007 hearing.

In a late September 2007 memorandum, the Department advised the court that Derek had not complied with various parts of his case plan. In the memorandum, Alesha Jones, A.O.’s social worker, noted that Derek: (1) had not updated her regarding “meeting his case plan objectives;” (2) had been dropped from New Connections for missing drug tests; (3) had tested positive for methamphetamine on September 14, 2007; (4) violated his case plan by allowing mother to visit A.O. during one of his unsupervised visits; and (5) had not provided proof of his attendance or completion of parenting classes.

Six-Month Review

In preparation for the six-month review hearing on December 17, 2007, the Department submitted a report recommending the court terminate reunification services for Derek. The report noted that Derek “is not diligently complying with the services that were offered to help him reunify with [A.O.].” According to the report, Jones had attempted, unsuccessfully, to contact Derek from August to November 2007 regarding his case plan. The report stated Derek had “not been consistent in following the visit guidelines,” had missed several scheduled visits with A.O., and had not made an effort to inquire about A.O.’s health or well-being. According to the report, Derek expressed an interest in gaining custody of A.O., but conceded the Department “requested a lot of him and at times it became overwhelming.” While noting Derek’s negative drug tests, the report stated that he had tested positive for methamphetamine twice in September 2007 and had missed 18 drug tests from July to November 2007.

The report explained that Derek had been provided with the opportunity to develop a relationship with A.O. and demonstrate his ability to care for her, but his “lack of progress and/or participation in substance abuse testing, substance abuse treatment, parenting classes, visits, and meeting with the social worker demonstrate that he has not addressed the concerns that brought [A.O.] to the Court’s attention.” Finally, the report noted that the Department “remains concerned and is unable to assure the Court that [Derek] is drug free, able to care for, protect, and meet the needs of his very young daughter.”

At the six-month review hearing in January 2008, Derek described the progress he had made on his case plan and explained why he had missed various drug tests. He also stated he had been attending Alcoholics Anonymous (AA) and Narcotics Anonymous. He described a Christmas Eve visit with A.O. and denied allowing mother to visit A.O. Finally, he explained it was difficult for him to travel to Sacramento to visit A.O. Jones testified that Derek had visited A.O. only twice since August 2007 and had canceled at least one visit with A.O. despite her offer to reimburse him for his train fare to Sacramento. She noted her difficulty getting in touch with Derek. Jones further stated that both mother and A.O.’s caretaker told her that mother saw A.O. while A.O. was on a visit with Derek.

At the conclusion of the hearing, the court granted Derek three additional months of reunification services and ordered the Department to notify it immediately if he had a missed or positive drug test.

March 2008 Hearing

In late February, the Department submitted a memorandum updating the court on Derek’s compliance with drug and alcohol testing. In the memorandum, Jones stated Derek had missed two drug tests in December 2007 and one test in January 2008. Jones noted, however, that he tested negative 13 times between December and February 2008.

At a hearing on March 10, 2008, the court ordered Derek to take a drug test. The test was negative. At the hearing, Derek provided an attendance log for AA, a certificate of completion for the first phase of New Connections, and a certificate of completion for the Systematic Training for Effective Parenting. In response to the court’s concern that Derek had no job and no driver’s license, he explained, “I have taken care of all my legal issues. I’m off probation. I’ve dedicated the last year to work out my life. It’s a process I’m working on, and it’s getting done.” He claimed he planned to get a job when he received custody of A.O. and had not yet obtained one because he did not want to miss any drug tests. The court expressed concern that Derek was visiting A.O. only once a month and urged him to make more of an effort to see her.

12-Month Review

In a report prepared for the 12-month review hearing, the Department recommended terminating reunification services and setting a.26 hearing. The Department noted that although Derek had “made more of an effort to complete his court ordered case plan,” he “lack[ed] the commitment and drive towards getting to know his daughter and in meeting her essential needs.” The Department faulted him for only visiting A.O. for two hours once a month and for not taking advantage of the Department’s offer to “have more opportunities to visit with his daughter.”

The Department noted that Derek “ha[d] not made any additional efforts in building a healthy relationship with his daughter” and was “unaware of [A.O.’s] age appropriate progress, such as her beginning to walk, feed herself, and saying minimal words.” According to the report, Derek seemed “very unaware of how to meet the basic needs of [A.O.], such as cry recognition” and had an inexperienced “approach to parenting.” The report noted that A.O. returned from a visit with Derek in Sacramento “very hungry, clingy, and would not sleep in her own bed, which was out of the ordinary.” The report also stated that he did not change A.O.’s diaper during another visit without prompting from A.O.’s caregiver.

The Department acknowledged Derek’s progress on his case plan but explained that “due to his late start in addressing the issues that brought his family before the Court and his lack of involvement and interest in his child’s well-being, it would not be safe to return [A.O.] to [Derek’s] care. Furthermore, [Derek] states a desire to parent his child, but his actions do not demonstrate that [A.O.’s] needs would be met and that she would be safe if she were returned to his care at this time. Therefore, the [Department] is recommending that Family Reunification Services be terminated for [Derek].”

At the 12-month review hearing in May 2008, Jones testified for the Department. Derek testified on his own behalf. His parents also testified. At the conclusion of the hearing, the court terminated reunification services and set a.26 hearing. The court concluded returning A.O. to Derek’s custody would create a substantial risk to her well-being. The court advised Derek that if he wished to challenge the order setting the.26 hearing, he was required to “seek an extraordinary writ by filing [a] request for record form JV-820 or other notice of intent to file a writ petition and request for a record within seven days of today’s date.”

On May 15, 2008, Derek filed a notice of intent to file writ petition but the court struck the filing because he failed to file a timely writ petition.

The .26 Hearing

In its.26 hearing report, the Department recommended terminating Derek’s parental rights and urged the court to “find adoption to be the appropriate permanent plan” for A.O. Derek testified at the.26 hearing on September 8, 2008. At the conclusion of the hearing, the court terminated Derek’s parental rights. It concluded by clear and convincing evidence that A.O. would be adopted and that it would be detrimental for her to return to Derek’s custody. The court notified Derek of his right to appeal the decision and he timely appealed from the order terminating parental rights.

DISCUSSION

Derek contends “all findings and orders made on and after July 16, 2007, must be reversed because the juvenile [court] failed to adhere to the required statutory procedure under section 361.2” at the hearing on July 16, 2007. According to Derek, the court’s failure to proceed under section 361.2 at the July 16, 2007 hearing “denied [him] his constitutional rights to due process and equal protection of the laws throughout the proceedings.”

The “Waiver Rule”

Section 395 provides in relevant part: “A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment.” (§ 395, subd. (a)(1).) “This statute makes the dispositional order in a dependency proceeding the appealable ‘judgment.’ [Citation.] Therefore, all subsequent orders are directly appealable without limitation, except for post-1994 orders setting a.26 hearing when the circumstances specified in section 366.26, subdivision (l), exist. [Citations.] 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. [Citations.]” (Merenda P., supra, 56 Cal.App.4th at p. 1150; see also In re Janee J. (1999) 74 Cal.App.4th 198, 206 (Janee J.).)

The court’s July 16, 2007 order was directly appealable as an order after judgment, i.e. the dispositional order. Derek “did not appeal the disposition order or any order made between then and the.26 hearing. Nor did [he] petition for writ review, the exclusively prescribed vehicle for appellate review of an order setting a.26 hearing. [Citations.]” (Janee J., supra, 74 Cal.App.4th at p. 206.) Despite his failure to appeal the July 16, 2007 order, Derek contends that order — and every subsequent order — must be reversed.

In Merenda P., the court considered, and rejected, an argument similar to the one Derek makes here. There, the mother contended the order terminating her parental rights “was wrongly entered because it was the inevitable product of a collection of erroneous orders — detention, jurisdiction, disposition and review — that preceded it.” (Merenda P., supra, 56 Cal.App.4th at p. 1146.) She contended she had been denied her right to counsel from the initial detention hearing until an 18-month review and that her counsel from that hearing forward had rendered ineffective assistance. (Id. at pp. 1150-1151.) Like Derek, the mother had not appealed from any of the orders preceding the.26 hearing, nor did she petition for writ review of the order setting the.26 hearing. (Merenda P., supra, at p. 1151.)

The Merenda P. court rejected the mother’s claims. First, it outlined the “waiver rule” — an “appellate court in a dependency proceeding may not inquire into the merits of a prior final appealable order on an appeal from a later appealable order....” (Merenda P., supra, 56 Cal.App.4th at p. 1151.) Then the court weighed the interests, risks, and benefits at stake, and concluded that the waiver rule barred the mother’s claims. (Ibid.) The Merenda P. court concluded that enforcing the rule did not violate the mother’s due process rights “even though the issues raised involve the important constitutional and statutory rights to counsel and to the effective assistance of counsel.” (Ibid.)

“The [waiver] rule serves vital policy considerations of promoting finality and reasonable expedition, in a carefully balanced legislative scheme, and preventing late-stage ‘sabotage of the process’ through a parent’s attacks on earlier orders.” (In re Jesse W. (2001) 93 Cal.App.4th 349, 355 (Jesse W.), quoting Janee J., supra, 74 Cal.App.4th at p. 207.) Moreover, “[p]ermitting a parent to raise issues going to the validity of a final earlier appealable order would directly undermine dominant concerns of finality and reasonable expedition....” (Janee J., supra, at p. 207.)

Derek Has Not Established an Exception to the Waiver Rule

Because of these important policy considerations, courts enforce the waiver rule unless “due process forbids it.” (Janee J., supra, 74 Cal.App.4th at p. 208.) Derek seems to suggest that the court’s failure to make “an unfitness determination [ ] under section 361.2” at the July 16, 2007 hearing violated his due process rights. We disagree. Due process is implicated only if Derek shows: (1) there was a defect in the proceedings “that fundamentally undermined the statutory scheme so that [he was] kept from availing himself... of the protections afforded by the scheme as a whole;” and (2) the defect was not merely an error that “might have been held reversible had [it] been properly and timely reviewed.” (Janee, supra, 74 Cal.App.4th at pp. 208-209.) Derek cannot make this showing. He had appointed counsel after the court determined he was A.O.’s biological father in June 2007. He received adequate notice of the hearings and was provided with sufficient reunification services. Moreover, the court’s failure to consider the placement issue under section 361.2 — assuming it was erroneous — was an issue that theoretically could have been reversible had it been timely reviewed.

Derek relies heavily on In re M.F. (2008) 161 Cal.App.4th 673 (M.F.) to support his due process argument. In that case, the mother was 14 when the dependency proceedings began. Her attorney appeared without her at the disposition and six-month review hearings and offered no evidence or argument. (Id. at pp. 678, 681.) The dependency court failed to appoint a guardian ad litem for the mother until just before the.26 hearing and later terminated the mother’s parental rights. On appeal, the mother contended “the juvenile court erred by failing to appoint a guardian ad litem earlier in the proceedings.” (Id. at p. 678.) The appellate court agreed and reversed. It rejected the Human Service Agency’s argument that the mother forfeited her claim by failing to file a writ petition following the termination of her reunification services. (M.F., supra, 161 Cal.App.4th at p. 681.) The court held “it would be inappropriate to apply the waiver rule” because the court’s “failure to appoint a guardian ad litem in an appropriate case goes to the very ability of the parent to meaningfully participate in the proceedings.” (Id.at p. 682.)

M.F. is distinguishable. Here, Derek was not a minor when the dependency proceedings began; unlike the mother in that case, he attended the hearings after the court determined he was A.O.’s biological father. Moreover, his attorney presented evidence at the six-month and 12-month review hearings. In contrast to M.F., the court’s failure to proceed under section 361.2 during the July 16, 2007 hearing did not “go[ ] to the very ability of [Derek] to meaningfully participate in the proceedings. [Citation.]” (M.F., supra, 161 Cal.App.4that p. 682.)

Next, Derek contends the waiver rule is “inapplicable” because the court failed to advise him — either orally or in writing — of his right to appeal the July 16, 2007 order. Derek, however, cites no authority requiring a juvenile court to advise a parent that there is a right to appeal a postdisposition interim review order. And the cases upon which Derek relies — for example In re Harmony B. (2005) 125 Cal.App.4th 831, 835, 838-839, and In re Athena P. (2002) 103 Cal.App.4th 617, 724 — do not assist him because they concern situations where the court failed to advise the parent of the requirement to file a writ petition.

Derek urges us to decline to apply the waiver rule for several other reasons, none of which are persuasive. For example, he contends the waiver rule should not apply “since the error is an important one and involves issues of public policy....” We are not aware of any California cases where a court has created an exception to the waiver rule for so-called “important errors” or those involving “public policy.” The only case cited by Derek to support this argument — In re Andres G. (1998) 64 Cal.App.4th 476, 482 (Andres G.) — is inapposite. In that case, the juvenile court detained two minor children but ordered them placed in their parents’ home. (Id. at p. 478.) The father timely appealed and the appellate court held the dispositional order was not authorized by the statutory scheme and was in excess of the court’s jurisdiction. Andres G. has no application here for two reasons. First, the father in that case timely appealed and second, the court did not consider the waiver rule.

We also reject Derek’s claim that the waiver rule should not apply because “some of the issues [in his appeal] are substantial evidence ones.” Derek has not identified which issues raised in his appeal “are substantial evidence ones.” Derek also contends the waiver rule should not apply here because the “primary issues in this case... are issues of law.” Even if we assume for the sake of argument that he is correct, we are not persuaded. None of the cases he cites involve a parent’s failure to appeal an appealable order.

Derek’s next contention — that the waiver rule does not apply where the juvenile court has a sua sponte duty to comply with section 361.2 — is equally unavailing. Contrary to Derek’s argument, In re A.C. (2008) 166 Cal.App.4th 146, 155 (A.C.), does not create an exception to the waiver rule where a court lacks “discretionary authority [in] the particular matter.” In A.C., the father claimed the juvenile court erred by failing to appoint a guardian ad litem for him “because he was a person for whom a conservator had been appointed” pursuant to Code of Civil Procedure section 372. (A.C., supra, at p. 148.) The appellate court disagreed and held that the lower court’s failure to comply with section 372, by itself, did not violate the father’s due process rights. (A.C., supra, at p. 148.) A.C. has no application here.

Derek’s final contention is the July 16, 2007 order should be reversed notwithstanding his failure to appeal that order because he received ineffective assistance of counsel. He complains his attorney’s failure to appeal the order prejudiced him because the court “never made an adequately supported finding of unfitness, made by clear and convincing evidence, and there had never been any standard by which his progress in overcoming whatever problems there might have been could be properly measured.”

A parent has a statutory right to competent counsel (§ 317.5, subd. (a)). “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.]” (In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711, quoting Strickland v. Washington (1984) 466 U.S. 668, 694.)

Even if we overlook Derek’s failure to appeal the July 16, 2007 order, his ineffective assistance of counsel claim fails. He has the burden “to demonstrate conduct falling below the standard of care of the legal practitioner.... We cannot assume that the decision was the result of negligence, when it could well have been based on some practical or tactical decision governed by client guidance.” (In re Arturo A. (1992) 8 Cal.App.4th 229, 243.) Here, Derek has not alleged counsel failed to inform him of his right to appeal, failed to ask him if he wanted to appeal, or failed to file a notice of appeal after he told counsel he wanted to appeal. As a result, the record before us does not “suggest[ ] the reason for counsel’s failure to file [an appeal].” (Id. at p. 243.)

We conclude the waiver rule bars Derek’s claims. This case exemplifies the “late-stage ‘sabotage of the process’” that the waiver rule is designed to prevent. (Jesse W., supra, 93 Cal.App.4th at p. 355, quoting Janee J., supra, 74 Cal.App.4th at p. 207.) A reversal based on an error that occurred at an interim status hearing over two years before the order terminating parental rights would require the court to effectively begin the dependency proceedings “anew, thereby adding at minimum another 14 months to the duration of the proceeding.” (Merenda P., supra, 56 Cal.App.4th at p. 1152.) The waiver rule is designed to avoid this result. It “ensures that a reversal and remand will not compel a repetition of proceedings which occurred earlier than the last final appealable order.” (Ibid.)

DISPOSITION

The order terminating Derek’s parental rights is affirmed.

We concur: Needham, J., Bruiniers, J.


Summaries of

In re A.O.

California Court of Appeals, First District, Fifth Division
Apr 30, 2009
No. A122663 (Cal. Ct. App. Apr. 30, 2009)
Case details for

In re A.O.

Case Details

Full title:In re A.O., a Person Coming Under the Juvenile Court Law. v. DEREK T.…

Court:California Court of Appeals, First District, Fifth Division

Date published: Apr 30, 2009

Citations

No. A122663 (Cal. Ct. App. Apr. 30, 2009)