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In re C.S.

California Court of Appeals, Fourth District, Third Division
Apr 28, 2009
No. G041263 (Cal. Ct. App. Apr. 28, 2009)

Opinion

NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of Orange County No. DP015510, Gary G. Bischoff, Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.)

Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.


OPINION

RYLAARSDAM, ACTING P. J.

A.S., the mother of C.S., a boy now 14 years old, appeals from an order terminating her parental rights after the trial court found that C.S. was likely to be adopted. Her only basis for this appeal is her contention C.S. was ineffectively assisted by counsel because counsel allegedly failed to tell him that he could object to being adopted. A review of the record makes it clear C.S. wanted to be adopted and that, even if the absolutely correct words advising him of his rights are not in the record, the result would have been the same if the proper formula had been used. Therefore, under Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674], we affirm.

The record discloses a long history of parental neglect and a failure of mother to follow up on referrals and services that were designed to permit reunification. It is not necessary for us to detail these failures on mother’s part as they are unrelated to the issue before us.

Mother’s appeal focuses on a single question and answer given by C.S. during the hearing under Welfare and Institutions Code, section 366.26. (All further statutory references are to this code.) During cross-examination by mother’s lawyer, C.S. explained that he understood the hearing was to determine a permanent plan for him and that he understood what it meant to be adopted. He also understood that this meant his mother’s rights would be terminated, he would never live with her again, and the persons who would adopt him would be his parents. Then followed these questions and answers:

“Q Okay. And did anybody tell you that because you’re 13, that if you wanted to, you could object to being adopted?

“A No.

“Q Okay. Well, let me ask you something, [C.S.], since you understand that if you’re adopted, you would have new parents and you would never live with your mother again, is that what you want to have happen?

“A Yes.”

Mother relies on section 366.26, subdivision (c)(1)(B), which provides that the court may refuse to terminate parental right where this is a “compelling reason for determining that termination would be detrimental to the child,” including where “[a] child 12 years of age or older objects to termination of parental rights.” (§ 366.26, subd. (c)(1)(B)(ii).) Mother contends C.S.’s negative reply to the question whether he knew he could object to the adoption establishes that C.S.’s counsel rendered ineffective assistance by failing to tell him of his right to object. We disagree.

In the first place, we do not know what counsel told his client. C.S.’s answer, without any follow up, may merely have been a mistake or a misunderstanding. It is for this reason that issues of ineffective assistance should preferably be raised in a petition for writ of habeas corpus, rather than on appeal, so that we would have the benefit of learning from counsel what transpired. As the Attorney General points out, appeal is the proper vehicle only when “‘there simply could be no satisfactory explanation’ for trial counsel’s action or inaction.... [Citation.]” (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1254, disapproved on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)

Secondly, counsel failed to raise the issue in the trial court. Mother’s lawyer’s complete argument against the termination of parental right was as follows: “I’m objecting to the court terminating parental rights and allowing the child to be adopted. I recognize that the child is likely to be adopted, based on the evidence that the court has, and I believe that that’s not because of [C.S.] generally. Although I don’t think there’s anything wrong with him, I think because of his age, the reason he is likely to be adopted is because he’s placed in a concurrent planning home and the parents were suitable and qualified for adoption and want to adopt him and I recognize that. And I know I don’t have any evidence to offer the court that one of the exceptions apply, but on behalf of mother, I’m objecting to the court terminating her parental rights.” Counsel acknowledged no exception applied and it is only now, for the first time on appeal that the issue is raised. An appellate court will not consider points not raised in the trial court. “‘It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal.’ [Citation.]” (Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1249; also see Knapp v. City of Newport Beach (1960) 186 Cal.App.2d 669, 681.)

Finally, the record is clear that C.S. wanted to be adopted. Under these circumstances, even if we assume his lawyer failed to advise him of his right to object to the adoption, the result in the case would have been the same whether C.S. was so advised or not. Reversal for ineffective assistance is only appropriate where, but for the ineffective assistance, another result would have obtained. To succeed on a claim of ineffective assistance of counsel, the appellant must show: (1) counsel’s representation was below an objective standard of reasonableness; and (2) the deficiency caused demonstrable prejudice. (Strickland v. Washington ,supra, 466 U.S. 668; In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.)

DISPOSITION

The judgment is affirmed.

WE CONCUR: BEDSWORTH, J., ARONSON, J.


Summaries of

In re C.S.

California Court of Appeals, Fourth District, Third Division
Apr 28, 2009
No. G041263 (Cal. Ct. App. Apr. 28, 2009)
Case details for

In re C.S.

Case Details

Full title:In re C.S., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Apr 28, 2009

Citations

No. G041263 (Cal. Ct. App. Apr. 28, 2009)