Opinion
H025712. H026474.
11-12-2003
In re DELILIAH B. et al., Persons Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDRENS SERVICES, Plaintiff and Respondent, v. MONICA S., Defendant and Appellant. In re MONICA S., on Habeas Corpus.
Monica S. appeals from a judgment terminating her parental rights to her children, Deliliah B. (born 1998) and Michael S. (born 1999), and selecting adoption as the permanent plan. (Welf. & Inst. Code, 366.26.) She contends that (1) the juvenile court erred because there was not clear and convincing evidence that the children were adoptable, and (2) she was denied due process at the six-month review hearing and, because of ineffective assistance of counsel, the denial should not be deemed waived by her failure to make this challenge via writ petition. In a separate petition for a writ of habeas corpus that we ordered considered with the appeal, Monica reiterates her ineffective assistance point without material difference from what she advanced in her appeal. We affirm the judgment and deny the petition. (See Cal. Rules of Court, rule 24(a)(1).)
Further unspecified statutory references are to the Welfare and Institutions Code.
legal background and scope of review
Section 366.26 sets forth the procedure for permanently terminating parental rights concerning a minor who has been removed from parental custody and declared a dependent child of the juvenile court. The statute states, in part "If the court determines . . . , by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . ." (§ 366.26, subd. (c)(1).)
If the court determines it is likely the minor will be adopted, certain prior findings by the juvenile court (e.g., that returning the minor to the physical custody of the parent would create a substantial risk of detriment to the physical or emotional well-being of the minor) shall constitute a sufficient basis for the termination of parental rights unless the juvenile court finds one of four specified circumstances in which termination would be detrimental. (§ 366.26, subd. (c)(1).)
"On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
The "clear and convincing" standard specified in section 366.26, subdivision (c)(1), is for the edification and guidance of the trial court and not a standard for appellate review. (Crail v. Blakely (1973) 8 Cal.3d 744, 750; In re Heidi T. (1978) 87 Cal.App.3d 864, 871.) "`The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal. [Citations.]" (Crail v. Blakely, supra, 8 Cal.3d at p. 750.) Thus, on appeal from a judgment required to be based upon clear and convincing evidence, "the clear and convincing test disappears. . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondents evidence, however slight, and disregarding the appellants evidence, however strong." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 365, p. 415.)
background
Monicas drug addiction, unemployment, and homelessness resulted in her voluntary surrender of the children to the Santa Clara County Department of Family and Childrens Services (Department). At the detention hearing, the juvenile court ordered that Monica "must be drug free during visits." On December 7, 2001, the juvenile court found jurisdiction, placed the children in foster care, and ordered reunification services. It ordered that Monica have supervised one-hour visits, twice a week. Monica visited the children on December 8. By the time of the interim review hearing on February 27, 2002, Monica had twice been in and out of a drug treatment program and her whereabouts were unknown. The Departments May 6 notice for the May 29 six-month review hearing recommended the following: "TERMINATE REUNIFICATION AND SET A 366.26 HEARING. CHANGE EXISTING PERMANENT PLAN TO ADOPTION." (Original capitalization.) Its May 17 status review report described Monicas "marginal compliance with Court ordered services" and noted that Monica had not visited the children since December 8, 2001. But the report recommends continued reunification services.
There is no reporters transcript of the May 29, 2002, six-month review hearing and no explanation of the inconsistent recommendations. But, during a hearing on Monicas section 388 petition to modify held immediately before the section 366.26 hearing, Monica testified that (1) she was present at the May 29 hearing, (2) the Departments recommendation was to terminate reunification, (3) she disagreed with the recommendation, (4) she asked for a trial on the issue, and (5) the juvenile court set the matter for trial on July 1.
On July 1, 2002, the Department filed an addendum report dated July 1. This report indicated that Monica had been in drug treatment for a third time but then suspended from it for providing drugs to other women in the program. The report recommended termination of reunification services. At the hearing, Monica testified that she was appealing her suspension from the drug-treatment program because she did not give her medication to anyone. She added that she had visited the children the previous week for the first time since December 2001. The trial court terminated reunification services and set a section 366.26 hearing for October 28, 2002. It ordered one good-bye visit for Monica and gave the social worker discretion to allow additional visits if Monica was able to demonstrate that she was following a treatment plan and being consistently "clean and sober."
The Departments report for the October 28, 2002 hearing, dated October 25, recommends termination of parental rights and a permanent plan of adoption. It states the following: "The prospective adoptive parents are prepared to adopt both Michael and Deliliah and provide for their future"; "Both children are currently living in a prospective sibling foster-adopt home. They are adjusting appropriately to their new placement"; "Adoption continues to remain the most appropriate permanent plan for Michael and Deliliah as they have a high likelihood to be adopted by the prospective adoptive parents. The prospective adoptive parents continue to be willing to adopt Michael and Deliliah at this current time"; "The prospective adoptive family has bonded appropriately with Michael and Deliliah"; "The prospective adoptive parents motive for wanting to adopt Michael and Deliliah is because they want to share their lives with children who need a good home"; "The prospective parents continue to express their total commitment to adopt Michael and Deliliah."
The juvenile court continued the October 28, 2002 hearing to December 2. The Departments addendum report for this hearing, dated November 18, indicates that an attorney for Monicas mother stated that the mother was preparing kinship adoption papers and recounts the mothers past unsuccessful visits with the children (no-shows and visits generating anxiety in the children) and efforts to sabotage the childrens placement.
The juvenile court continued the December 2 hearing to January 13, 2003. The Departments memo for this hearing, dated January 13, remarked that "There has been no change of circumstance or improvement on the part of the mother . . . that warrants continued reunification or visitation. [¶] The childrens needs are being met in their current placement, and the proposed concurrent plan of adoption remains in their best interest." Monica, however, did not appear at the hearing because she was in jail, and the juvenile court continued the matter to February 6. A Department memo for this hearing, dated February 4, noted that Monica was in the hospital because she took an overdose of pills. Monica did not appear at the hearing because she remained in the hospital, and the juvenile court continued the matter to February 10.
On February 10, 2003, Monica first advanced a section 388 motion to modify, which sought to reinstate reunification services. The juvenile court denied the motion and proceeded to hear the section 366.26 matter. The Department submitted the matter on the October 25, 2002 report and subsequent, above-mentioned supplemental writings. After cross-examination by Monicas attorney and the childrens attorney, the social worker responded to the juvenile courts questions and (1) opined that the children were adoptable, (2) supported the opinion by explaining that the children were healthy, cared for, and developing well, and (3) affirmed that the current family wished to adopt the children. Later, she indicated that Monica had last visited the children in December 2001.
Monica made three points in her argument. One, that the social workers testimony should not be credited because her caseload permitted confusion of file information; two, that there was a bond between her and the children; and three, relevant to this appeal, that the social workers October 28, 2002, report was stale. As to this latter point, she asserted: "And I think what we have here is a situation where it does not appear there is a recent report made on the status of the children that I saw in the file. The last review that I saw was in October of last year. And so there was several month period when we dont know what is going on with the children in this foster home."
adoptability
Monica contends that no substantial evidence supports the juvenile courts adoptability finding because "The assessment report was stale, dated almost four months before the [section 366].26 hearing."
There is no merit to this point. Monica essentially urges that the assessment report was unreliable. But the very nature of a reliability determination in this context is a traditional question of fact. Here, the juvenile court implicitly rejected Monicas argument that the information in the assessment report was stale. (Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal.App.2d 733, 742 [trier of fact is the exclusive judge of the credibility of the evidence].) And it was entitled to infer that the assessment report contained current information except as supplemented by the Department. Monica was free to introduce evidence and argue the contrary. Moreover, the social worker opined that the children were adoptable and affirmed the information in the assessment report to the effect that the prospective adoptive family was willing to adopt the children. Though Monica complains that a social workers opinion alone is not sufficient to support an adoptability finding, the opinion in this case is supported by the testimony about the childrens health and the prospective adoptive familys willingness to adopt.
In making the determination of adoptability, the juvenile court "must focus on the child, and whether the childs age, physical condition, and emotional state may make it difficult to find an adoptive family." (In re Erik P. (2002) 104 Cal.App.4th 395, 400.) However, "[a] prospective adoptive parents interest in adopting is evidence that the childs age, physical condition, mental state, and other matters relating to the child are not likely to discourage others from adopting the child." (Ibid.) In other words, "[w]hile, generally, the present existence or nonexistence of prospective adoptive parents is, in itself, not determinative, it is a factor in determining whether the child is adoptable." (Ibid.)
due process
Monica contends that she received unreasonable reunification services because the social worker unilaterally terminated visitation and conditioned future visitation on participation in a drug-testing program. She also complains that the juvenile court erred when it terminated visitation at the six-month review hearing without a finding that visitation would be detrimental. And she finally argues that she was deprived of due process at the July 1, 2002, six-month review hearing because the Department filed the July 1, 2002, report recommending termination of reunification services on the day of the hearing.
The record shows that (1) Monicas visits took place at Clover House, (2) Clover House removed Monica from the visitation schedule because Monica had failed to cancel in advance or attend three consecutive visits, (3) the social worker had Monica reinstated to the schedule, (4) Monica failed to cancel in advance or attend the next two visits, (5) Monica cancelled her visitation time and asked Clover House for a different time, and (6) the social worker then cancelled all visits at Clover House until further notice. It also shows that the social worker mentioned to Monica "that she would need to start drug testing before having visits with her children."
The record shows that the juvenile court announced the following: "Im not going to offer you more family reunification services and the reason Im doing that is that you have not truly engaged in services. You have started, stopped, started, stopped, started and stopped with your substance abuse treatment. And I want you to be successful, but your children cant wait for you to get your life in order. And you have not visited with them to any substantial degree. You have not engaged in all of the services that I ordered back in December, and Im convinced that you have to work a lot harder on your substance abuse treatment before it would be affective [sic]."
As we recounted above concerning the Departments recommendation, the record shows that there was an inconsistency between the notice of hearing and report but that, at that hearing on May 29, 2002, Monica objected to termination of services and asked for and received a trial on July 1. Thus, Monicas implicit complaint that she had no notice of the Departments recommendation until the day of the six-month review hearing is without merit.
Monica recognizes that she has waived these issues by not filing a writ petition with this court to challenge the order made at the six-month review hearing. She claims that she was the victim of ineffective assistance of counsel and should be entitled to raise these issues under that rubric. According to Monica, her counsel failed to (1) challenge the visitation issues, (2) request a continuance of the six-month review hearing to meet the newly-advanced recommendation for termination of services, and (3) file a writ petition (while instead challenging the six-month review hearing via the section 388 motion).
At the conclusion of the July 1, 2002, six-month review hearing the juvenile court told Monica: "[I]f you disagree with the ruling that Ive noted today you must file a piece of paper that my clerk will give you in just a moment and another court will review what I have done. You must file that piece of paper within seven days and your attorney will give you more knowledge about that and more information if you need it."
Ineffective assistance claims that relate to issues going to the validity of earlier orders that were either appealable (the dispositional order) or reviewable by writ (the six-month review order setting the section 366.26 hearing) are beyond our review on an appeal from a section 366.26 order. (See In re Janee J. (1999) 74 Cal.App.4th 198, 205-209.) "[L]ate consideration of ineffective assistance claims defeats a carefully balanced legislative scheme by allowing a back-door review of matters which must be brought for appellate review by rule 39.1B writ at the setting hearing stage or by earlier appeals, that is, before the point is reached where reunification efforts have ceased and the childs need for permanence and stability become paramount to the parents interest in the childs care, custody and companionship [citation]." (Id. at p. 208.)
There are exceptions to the rule barring tardily presented ineffective assistance claims in dependency proceedings. But they must (1) implicate some defect that fundamentally undermines the dependency scheme so that the parent would have been kept from availing himself or herself of the protections afforded by the scheme (such as lack of notice), or (2) go beyond counsels mere failure to raise issues that might have been reversible had they been properly and timely reviewed. (In re Janee J., supra, 74 Cal.App.4th at p. 209.) In short, ineffective assistance of counsel "may well prove irremediable" in some dependency contexts. (Ibid.)
None of Monicas ineffective assistance claims implicates a fundamental defect in the dependency scheme or goes beyond the ordinary failure to render competent legal assistance. Her attorney was present and represented her at the six-month review hearing-she simply faults her for her performance. And her claims about a lack of notice concerning the Departments change in recommendation are plainly without merit. (See fn. 4.)
disposition
The judgment is affirmed. The petition for writ of habeas corpus is denied.
WE CONCUR: Rushing, P.J. and Elia, J.