Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. J513534C, Laura J. Birkmeyer, Judge.
IRION, J.
Dale T. appeals from an order terminating his parental rights under Welfare and Institutions Code section 366.26. He contends an unreasonable delay in completing a paternity test eliminated any opportunity for him to retain his parental rights. Dale also claims he was provided ineffective assistance of counsel because counsel did not initiate the required proceedings to obtain an order for either mandatory or discretionary reunification services.
Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.
We conclude that error, if any, in delaying the completion of the paternity test was harmless. Dale cannot show he would have received reunification services had the paternity test been completed when ordered. With respect to the claim Dale did not receive effective assistance of counsel, we determine there is a reasonable explanation for counsel's decision not to initiate proceedings for a mandatory or discretionary order for reunification services. Further, without deciding error, Dale does not establish that he was prejudiced by counsel's alleged acts or omissions. Accordingly, we affirm the order terminating parental rights.
FACTS
Desmond T. was born in February 2006. In January 2010 genetic testing established that Dale T. is Desmond's biological father. Dale is incarcerated in Kansas. He and Desmond have never met.
Desmond's mother, Anastasia A., has a history of involvement with child welfare services. The juvenile court terminated her parental rights to two of Desmond's older siblings. Those siblings (brothers) were adopted by a maternal great-aunt (aunt).
In May 2007 the San Diego County Health and Human Services Agency (the Agency) detained then one-year-old Desmond in protective custody because Anastasia was incarcerated. Anastasia named Dale as Desmond's father.
The social worker contacted Dale, who lived in Kansas. He acknowledged he had a relationship with Anastasia but said he was not certain Desmond was his child. Dale asked the social worker if Anastasia wanted child support and then said he was no longer able to talk. He asked the social worker to call him back in 20 minutes. When the social worker complied, no one answered the telephone. She left messages for Dale on July 23 and 24, and August 21, without receiving any response.
Anastasia was released from prison in August 2007. She signed a voluntary services contract with the Agency. The juvenile court dismissed the dependency petition and released Desmond to her custody.
Anastasia was reincarcerated in August 2008. Initially, Desmond lived with her in a prison parenting program. Several months later Anastasia was transferred to another facility. She arranged for Desmond's former foster parents to care for him.
In March 2009 the Agency filed a section 300 petition after Desmond suffered multiple nonaccidental physical injuries to his face, eye and ear while in the foster parents' care. The injuries were in different stages of healing. Desmond's daycare provider said he was a "sad poor little guy."
At the time the Agency initiated Desmond's second dependency case, Dale was in prison. When he was informed of the dependency proceedings, Dale said he did not know whether he was Desmond's father and requested a paternity test. He told the social worker that if he were Desmond's father, he was willing to relinquish his paternal rights to his mother (the paternal grandmother) to allow her to adopt Desmond. He said he expected to be released from prison "sometime in 2012."
The paternal grandmother contacted the social worker and said she would like to have Desmond placed with her. The social worker told her the Agency would not evaluate relatives for placement until paternity was established.
On April 8, 2009, the juvenile court ordered Desmond to submit to genetic testing on April 15, and ordered the social worker to help Dale obtain paternity testing while he was incarcerated in Kansas.
The Agency placed Desmond in his aunt's home. Desmond became bonded to his aunt, her husband and his two brothers. The social worker described him as a lovable three-year-old who loved to wrestle with his brothers.
In October 2009 the Agency reported that paternity was not yet determined. To obtain genetic material (DNA sample or sample) from Dale, a laboratory representative was required to meet with Dale in prison. On one occasion, a representative went to the prison but Dale was no longer at that facility. The social worker telephoned the laboratory on May 22, June 3 and 4, July 1 and 2, August 31, September 23 and October 15 to coordinate the testing process. Dale's sample was collected on September 8.
Desmond did not test on April 15 as ordered by the court. His test was rescheduled for December 4. However, the Agency provided an incomplete address to Desmond's aunt and she could not find the testing location. Desmond's sample was collected on December 23.
On January 12, 2010, the juvenile court received the test results confirming Dale's paternity. Dale's attorney asked the juvenile court to order the Agency to provide reunification services to Dale. The court did not act on Dale's request and instead ordered his attorney to file a section 388 petition requesting reunification services no later than February 5.
Dale's attorney did not file a section 388 petition.
At the contested 12-month review hearing in June, the juvenile court terminated Anastasia's reunification services and set a section 366.26 hearing.
In October, Dale wrote a letter to the juvenile court, which was filed with the court on October 15. He attached a copy of a form entitled "Inmate Request to Staff Member, " dated September 12, 2010. Dale said he had not received paternity test results. For the last 10 months, he and his family had been trying to contact the social worker, who did not return their telephone calls. In September he asked prison personnel for assistance in obtaining his paternity test results. His prison case worker contacted the Agency but could not obtain a release of the test results. She sent an e-mail to Dale's attorney "back in May" asking her to send the paternity test results to Dale. The case worker advised Dale to contact his attorney for the test results. Dale said his attempts to contact his attorney were unsuccessful. He asked the court to place Desmond with a member of his immediate family "[i]f this child is mine."
In its section 366.26 report, the Agency recommended that the juvenile court terminate Dale's and Anastasia's parental rights and free Desmond for adoption by his aunt. The social worker reported that Desmond was charming, spunky, friendly and outgoing. Desmond and his caregivers had developed a significant mutual bond since Desmond's placement with them in April 2009. He was also bonded with his brothers. The social worker believed it would be emotionally detrimental to Desmond to move him to another relative's home. However, if the current caregivers could no longer care for Desmond, the Agency would evaluate other relatives for placement.
On January 27, 2011, the juvenile court terminated parental rights and selected adoption as Desmond's permanent plan.
DISCUSSION
I
Dale Does Not Show the Delay in Completing the Paternity Test Was Prejudicial
Dale asserts the delay in completing the paternity test was unreasonable and deprived him of an opportunity to retain his parental rights. He argues the delay prejudiced his opportunity to receive reunification services either as a biological father or a presumed father. Dale also contends the delay impeded his request to the Agency to place Desmond with his paternal relatives, which he asserts may have helped him to preserve the parent/child relationship.
The record in this case is mixed. It shows that the social worker made diligent efforts to contact the laboratory to facilitate the collection of Dale's DNA sample while he was in prison. On the other hand, the record does not indicate why the Agency or another party did not comply with the juvenile court's order of April 8, 2009, directing Desmond to submit to genetic testing on April 15, 2009. Further, after Desmond missed his April 15 appointment, there was an unexplained delay of more than seven months before the Agency again arranged to obtain a sample of Desmond's DNA.
The Agency acknowledges there was significant delay in completing the paternity test due to the logistics of sending a representative to Dale's correctional facility in Kansas to obtain his DNA sample. The Agency offers no explanation for the significant delay in obtaining a DNA sample from Desmond.
Assuming, without deciding, the delay in completing the paternity test was unreasonable, Dale does not show he was prejudiced. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) [the judgment will be affirmed unless there is a reasonable probability a result more favorable to the appellant would have been reached in the absence of the error].) Even if Dale had established that he was Desmond's biological father within the initial six-month review period, and was offered or provided reunification services, he could not have reunified with Desmond within the reunification period or established a beneficial parent/child relationship sufficient to avoid termination of parental rights.
Dale was scheduled to be released from prison "sometime in 2012." The initial six-month review period in Desmond's dependency case was from April to October 2009. In view of Desmond's age and circumstances, the reunification period was limited by statute to 12 months, and would terminate on or about April 2010, approximately 20 to 32 months before Dale's possible release date. (§ 366.21, subd. (f).) Even under the most favorable conditions for Dale, an extended reunification period would terminate on or about April 2011, approximately eight to 20 months before his possible release from prison. (§ 366.21, subd. (g)(1) [specifying precise requirements to extend reunification period to 18 months].) Thus, there was no reasonable probability the juvenile court could have returned Desmond to Dale's physical custody within the statutory reunification period. (§ 366.21, subds. (e) & (f) [the court shall return the child to the physical custody of the parent unless there is a substantial risk of detriment to the child].)
The juvenile court terminated reunification services at the contested 12-month hearing, which was held in June 2010.
Further, because Dale was incarcerated in another state, it was not reasonably probable he would have been able to meet Desmond during the reunification period and establish a beneficial parent/child relationship with him. (See, § 366.26, subd. (c)(1)(B)(i) [exception to termination of parental rights where the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship]; In re Autumn H. (1994) 27 Cal.App.4th 567, 575 [to avoid termination of parental rights, the parent/child relationship must promote the well-being of the child to such a degree as to outweigh the well-being the child would gain in a new adoptive home].) Desmond did not have any relationship with Dale. Thus, we conclude there is not a reasonable probability a result more favorable to Dale would have been reached had the paternity test been timely completed. (Watson, supra, 46 Cal.2d at p. 836.)
Dale also suggests he may have avoided termination of his parental rights had the juvenile court placed Desmond with paternal relatives. This speculative argument is without merit. The record shows that Dale was willing to relinquish his parental rights to allow the paternal grandmother to adopt Desmond. Further, under the circumstances presented here, Dale cannot show the court would have placed Desmond in the home of an out-of-state paternal relative if the paternity test was completed when ordered. The juvenile court cannot place a dependent child with an out-of-state relative unless the receiving state approves the placement. (Fam. Code §§ 7901, art. 3, 7901.1.) Assuming the paternal relatives received a favorable home study, the juvenile court could reasonably conclude it was not in Desmond's best interests to move him from a stable placement to the home of another relative. (Cf. In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1112 [the child's removal from a long-term stable foster care placement to a relative placement is not favored].) In view of the immediate availability of a suitable home with his aunt and his brothers, Desmond's placement with the aunt would be favored. (§ 361.3, subd. (a)(4) [placement of siblings and half siblings in the same home is a factor in determining the child's placement]; see, e.g., § 16002 [the social service agency is required to make a diligent effort to place siblings together in the same home and to develop and maintain sibling relationships].) Desmond was placed with his aunt in accordance with the relative placement preferences and there was no need for a new placement. (§ 361.3.)
Although the significant delay in paternity testing may have been avoided in part, we conclude that error, if any, is harmless. There is no reasonable probability that Dale would have reunified with Desmond within the statutory reunification period or avoided termination of his parental rights had the paternity test been completed in a timely fashion. (Watson, supra, 46 Cal.2d at p. 836.) Thus, on this record, we do not find a miscarriage of justice. (Cal. Const., art. VI, § 13.)
II
Ineffective Assistance of Counsel
Dale asserts he was denied effective assistance of counsel. He argues his attorney's performance was deficient because she did not pursue a court order for reunification services, either by filing a section 388 petition to request discretionary services for a biological father or by initiating a proceeding to establish presumed father status, which would result in an order for mandatory services. Dale contends that but for counsel's unprofessional errors, the result of the proceeding would have been different.
To prevail on an ineffective assistance of counsel claim, the defendant must first show that counsel's performance was deficient and counsel's failure to provide competent representation was prejudicial to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); see, In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711 [where ineffective assistance of counsel is raised in dependency cases, the appellant must meet the standard set forth in Strickland and People v. Pope (1979) 23 Cal.3d 412, (Pope)].) Further, a defendant must show the omissions of counsel involved a critical issue, and cannot be explained on the basis of knowledgeable choice of trial tactics. If the record sheds no light on why counsel acted or failed to act in the manner challenged, the contention must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply can be no satisfactory explanation. (Pope, supra, at p. 426; In re Emilye A., supra, at p. 1716.)
A reviewing court will find prejudice when a defendant demonstrates a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 687; People v. Gurule (2002) 28 Cal.4th 557, 611.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218; see also Strickland, supra, at pp. 687-688.)
An appellant bears the burden of proving ineffective assistance of trial counsel. (Pope, supra, 23 Cal.3d at p. 425.)
The record does not show why counsel acted or failed to act in the manner challenged. (Pope, supra, 23 Cal.3d at p. 426.) Nonetheless, we reject Dale's contention he received ineffective assistance of counsel because there are reasonable explanations for counsel's omissions. Counsel could have reasonably concluded there was no evidentiary basis to obtain a grant of reunification services for Dale, either as a biological or a presumed father, and further proceedings would be futile. (Civ. Code § 3532 [the law does not require idle acts]; cf. People v. Anderson (2001) 25 Cal.4th 543, 587 [an attorney has no duty to make a futile request].)
The juvenile court has the discretion to order services for a biological father if the court determines that the services will benefit the child. (§ 361.5, subd. (a).) The record contains no evidence to suggest that offering reunification services to Dale was in Desmond's best interests. Desmond had never met Dale. They did not have an existing parent/child relationship. When Desmond's dependency proceedings were initiated in March 2009, Dale was in prison. As discussed earlier, Dale did not expect to be released from prison until 2012, well after the date the juvenile court was required to select and implement a permanency plan for Desmond. Further, Dale did not request reunification services. Instead, he said if testing confirmed his paternity he would relinquish his parental rights to allow his mother to adopt Desmond. Thus, on this record, there is a reasonable explanation for not seeking a court order for discretionary reunification services by means of a section 388 petition. (Pope, supra, 23 Cal.3d at p. 426; In re Emilye A., supra, 9 Cal.App.4th at p. 1716.)
Similarly, counsel could have concluded there was no evidence to support a request to establish Dale's status as Desmond's presumed father or as a Kelsey S. father. (See, § 361.5, subd. (a) [unless certain specified exceptions apply, the court is required to order reunification services to the child's mother and statutorily presumed father].) Dale was not married to Anastasia. (Fam. Code § 7540.) They could not marry because Anastasia was not yet divorced from her former husband. (Fam. Code § 7611, subds. (a) & (b).) Desmond was born while Anastasia was in prison in California. There is nothing in the record to indicate she and Dale tried to marry after Desmond was born. (Fam. Code § 7611, subd. (c).) Dale did not receive Desmond into his home and openly hold Desmond out as his natural child. (Fam. Code § 7611, subd. (d).) The record clearly shows that Dale was uncertain whether Desmond was his child. Thus, on this record, there is a reasonable explanation for counsel's acts or omissions. (Pope, supra, 23 Cal.3d at p. 426; In re Emilye A., supra, 9 Cal.App.4th at p. 1716.)
A Kelsey S. father is an unwed father who promptly comes forward and demonstrates a full commitment to his parental responsibilities. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 838.)
The record shows that pursuing Dale's status as a Kelsey S. father would have been a futile act. A social worker informed Dale of Desmond's dependency proceedings in March 2007. Dale responded by asking whether Anastasia was seeking child support, terminating the conversation and ignoring the social worker's further attempts to contact him. In the period between the end of Desmond's first dependency proceeding and the initiation of his second dependency proceeding, Dale took no steps to establish his paternity or initiate contact with Desmond. On this record, counsel could reasonably conclude the facts of the case did not support a finding that Dale demonstrated a full commitment to his parental responsibilities. (Adoption of Kelsey S., supra, 1 Cal.4th at p. 838.) We conclude that counsel made an informed tactical decision based on the facts of the case. (Pope, supra, 23 Cal.3d at p. 426; In re Emilye A., supra, 9 Cal.App.4th at p. 1716.)
In his reply brief, Dale asserts he received ineffective assistance of counsel because his attorney did not seek to expedite the paternity testing process, or contact him to discuss his legal options and learn facts that may have benefitted his case. Dale has waived these issues by failing to raise them in his opening brief. (In re Ricky H. (1992) 10 Cal.App.4th 552, 562.) Even absent waiver, this contention would fail.
On direct appeal, the record does not show whether Dale's attorney tried to contact him to discuss his legal options and learn facts that may have benefitted his case, or sought to expedite the paternity testing process. Without deciding error, we conclude that Dale does not establish prejudice. "If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel's performance was deficient." (People v. Sapp (2003) 31 Cal.4th 240, 263 (Sapp); Strickland, supra, 466 U.S. at p. 697.) In determining whether counsel's conduct affected the reliability of the trial as to undermine confidence in the result (Strickland, supra, at p. 686), we consider whether " 'but for' " counsel's allegedly deficient performance " 'there is a reasonable probability the result of the proceeding would have been different.' " (Sapp, supra, at p. 263, quoting People v. Cash (2002) 28 Cal.4th 703, 734.)
As our earlier discussion makes clear, Dale does not show he would have been entitled to a grant of reunification services. Even if Dale had received reunification services, there is no showing he would have been able to reunify with Desmond within the reunification period or avoid termination of parental rights under one or more of the statutory exceptions. (§§ 366.21, subds. (e) & (f), 366.22, subd. (a), 366.26, subd. (c)(1)(A) & (B).) Thus there is no reasonable probability "but for" counsel's allegedly deficient performance, the result of the section 366.26 hearing would have been different. (Sapp, supra, 31 Cal.4th at p. 263; Strickland, supra, 466 U.S. at p. 688.).
DISPOSITION
The order is affirmed.
WE CONCUR: McCONNELL, P.J., BENKE, J.