Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Fresno County Ct. No. 05 CEJ 300109-1. Jamileh Schwartzbart, Temporary Judge. Pursuant to Cal. Const., art. VI, § 21.
Laura Pedicini, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
This is an appeal from an order in a Welfare and Institutions Code section 366.26 hearing. (All section references are to this code except as indicated.) The juvenile court terminated appellant’s parental rights and ordered adoption as the permanent plan for the minor. We conclude the court did not abuse its discretion in terminating appellant’s parental rights. Nonetheless, as we will explain, we must conditionally remand the matter to the juvenile court for further proceedings under the Indian Child Welfare Act (25 U.S.C. § 1900 et seq.) (ICWA).
Facts and Procedural History
Appellant Kevin F. is the presumed father of Destiny F., now four years of age. At the time of Destiny’s birth in 2003, her mother, Kathleen, was a minor living in a foster home in Riverside County, having previously been adjudicated a dependent child. In 2004, Kathleen left Destiny with the foster mother and disappeared. Destiny was adjudicated a dependent in an original section 300 proceeding and placed in foster care. At the time, social services workers knew appellant’s name but had no further information about him.
In early 2005, appellant’s wife contacted Riverside County social services and said appellant wanted Destiny placed in his custody. She claimed appellant had feared making contact earlier because Kathleen was a minor when Destiny was born, but that appellant now wanted Destiny to live with him.
Appellant made his initial appearance in Riverside County Superior Court in March of 2005. After various proceedings in that court, Destiny was placed with appellant and the case was transferred to appellant’s home county, Fresno.
The court ordered appellant and his wife to take parenting classes; appellant was also ordered to undergo evaluation for substance abuse and submit to random drug testing, including providing a hair sample. After a few months, appellant failed to appear for random drug testing and his hair sample tested positive for marijuana use. Fresno County social workers removed Destiny from appellant’s home and filed a section 387 supplemental petition alleging, in its only count, appellant “has been failing to drug test and submitted a positive hair test for Marijuana.”
Appellant appeared with appointed counsel at the initial hearing on the supplemental petition and requested a continuance so retained counsel could substitute into the case. The next day, September 27, 2005, appellant appeared with his retained counsel, Roger Vehrs. Appellant submitted the detention issue “on the petition” and requested a contested jurisdictional hearing.
At the continued hearing to contest jurisdiction under the section 387 petition on October 28, 2005, appellant’s counsel was out of the country. The matter was set over to November 18, 2005, for a combined jurisdiction, disposition, and status review hearing.
At the November 18 hearing, appellant’s counsel announced appellant would submit on the jurisdictional recommendation. The court reviewed appellant’s rights with him, including the right to present witnesses and to testify himself. The court stated: “Do you understand that by submitting on the recommendation that I find that count true -- that I’d be finding that count to be true. Do you understand that? [¶] THE FATHER: Yes, ma’am. [¶] THE COURT: Okay. And so do you submit on that recommendation?” Appellant again replied, “Yes.” The court then made the appropriate jurisdictional finding and set the matter for a contested disposition hearing on January 11, 2006.
At the contested disposition hearing, appellant testified he had been in a serious automobile accident several years before and that he had a prescription for medical use of marijuana for treatment of head pain. He testified the prescription allowed him to use marijuana at his discretion. He said he failed to go to drug testing because he knew he would test positive for marijuana, but that he was authorized to use the drug. Appellant admitted pre-prescription use of marijuana as a teenager, as well as arrests for driving under the influence of alcohol and for possession of marijuana. He said he did not have a substance abuse problem and that his use of marijuana would not put Destiny at risk. Appellant’s grandfather also testified. He and his wife had been proposed as interim guardians of Destiny. He said appellant had taken good care of Destiny. After argument from counsel, the court took the matter under submission. The court said it would announce its decision at a hearing on January 24, 2006.
The court terminated reunification services at the January 24, 2006 hearing, concluding appellant had “a substance abuse problem” and had not made substantive progress in addressing previously identified parenting issues. The court noted appellant’s “lack of candor.” The court acknowledged appellant had a marijuana prescription, but commented, “this fact does not automatically preclude the existence of a substance abuse problem. And, unfortunately, the facts in front of the court belie the proposition that [appellant] does not have a substance abuse problem. [¶] … The extent of [appellant’s] progress toward alleviating or mitigating the causes necessitating placement in foster care has been minimal at this point in time.”
At the close of the hearing, the court instructed a deputy sheriff to serve on appellant a form of notice of intent to file writ petition. (See former Cal. Rules of Court, rule 38, revised as Cal. Rules of Court, rule 8.450(e).) The court orally informed appellant, “If you wish to preserve your right to appeal the Court’s decision today, a petition for extraordinary writ must be filed.” Appellant filed a notice of intent on January 26, 2006 and the matter was opened in the Court of Appeal as case No. F049666. However, no writ petition was ever filed and the appellate case was dismissed on February 24, 2006.
After numerous continuances, the section 366.26 hearing to consider adoptability and termination of parental rights was held on August 2, 2006. The court took the matter under submission and announced its ruling at a subsequent hearing on August 24, 2006. The court ordered the minor placed for adoption and terminated the parental rights of appellant and the minor’s birth mother. Appellant filed a notice of appeal on September 26, 2006.
Discussion
Appellant raises three primary issues on appeal. He asserts we should remand the case for compliance with ICWA. He says the trial court abused its discretion in terminating his parental rights. And he contends his retained trial counsel was constitutionally ineffective at various stages of the proceedings below. Except for the ICWA claim, none of these contentions has merit.
A. ICWA
ICWA seeks to protect Indian children and promote stability of Indian tribes and families. ICWA is implemented in California, in part, through California Rules of Court, rule 5.664. Rule 5.664(d) provides that the court and social services officials have “an affirmative and continuing duty” to inquire whether a child may have Indian heritage and to take further steps if there might be such heritage.
In the present case, Destiny’s mother was herself a ward of the court and, apparently having found nothing in the mother’s case file to indicate possible Indian heritage, the initial detention hearing report stated that the “Indian Child Welfare Act does not apply.” At that point, appellant’s whereabouts were unknown to the department, so the report of inapplicability of ICWA was not based on inquiry of him. (Cal. Rules of Court, rule 5.664(d)(2) [“In dependency cases, the social worker must ask … the parents or legal guardians whether the child may be an Indian child or may have Indian ancestors.”].)
At appellant’s initial appearance in this case, the record does not indicate an inquiry was made of appellant whether Destiny might have Indian heritage. However, at that time the court intended to, and did, place Destiny in appellant’s care and ordered family maintenance services. Accordingly, it appears that at that time, no inquiry was required. (See Cal. Rules of Court, rule 5.664(b) [“This rule applies to all proceedings under section 300 … in which the child is at risk of entering foster care or is in foster care .”].)
When the supplemental petition (§ 387) was filed in Fresno County in September of 2005, Destiny had been removed from appellant’s home and ICWA became applicable once again. On the supplemental petition, Judicial Council Forms, form JV-100, there is no check mark in the two boxes that indicate the child may be a member of an Indian tribe or may have Indian ancestry. (See Cal. Rules of Court, rule 5.664(e)(1) [“Section 1(l) or 1(m) on either the initial or an amended Juvenile Dependency Petition (Version One) (form JV-100) … must be checked if the county welfare department knows or has reason to know that the child may be a member of or eligible for membership in a federally recognized Indian tribe or if there is reason to believe the child may be of Indian ancestry, as appropriate.”].) Thereafter, all social services reports state, “The Indian Child Welfare Act does not apply.”
No later than the detention hearing on the supplemental petition, however, the court should have ordered appellant to complete a questionnaire on Judicial Council form JV-130. (See Cal. Rules of Court, rule 5.664(d)(3) [“At the first appearance by a parent or guardian in any dependency case … the parent or guardian must be ordered to complete Parental Notification of Indian Status (Juvenile Court) (form JV-130).”].) Appellant contends the failure of the record to reflect that he was ordered to submit the form requires at least a limited remand to permit the juvenile court to make the appropriate ICWA findings; appellant relies on this court’s decision in In re J.N. (2006) 138 Cal.App.4th 450, 461.
Pursuant to rule 8.252, California Rules of Court, this court, on its own motion, directed appellant to file form JV-130 directly with this court. He did so and we now admit the completed form in evidence and deem it a part of the record on appeal. (Cal. Rules of Court, rule 8.252(c)(3).) On the form, appellant declares under penalty of perjury that he may be a member of, or may be eligible for membership in, the Cherokee or Blackfoot tribe, that he may have Indian ancestry, and that Destiny is, may be, or may be eligible to be, a member of the Cherokee tribe.
Accordingly, the record affirmatively shows appellant was prejudiced by the failure of the juvenile court to require him to file the JV-130 form. This case, therefore, presents an even stronger requirement for remand than was present in In re J.N., supra, 138 Cal.App.4th at page 461, and we order such remand.
B. Termination of Parental Rights
Appellant contends the court should have found, pursuant to section 366.26, subdivision (c)(1)(A), that adoption was not in Destiny’s best interest because, in the statutory language, the court should have found “ a compelling reason for determining that termination would be detrimental to the child [because] … the child would benefit from continuing the relationship” with appellant. Substantial, indeed, overwhelming, evidence supports the trial court’s decision to terminate appellant’s rights and set adoption as the permanent plan for Destiny. (See In re Derek W. (1999) 73 Cal.App.4th 823, 827 [substantial evidence standard of review].) In addition, the court did not abuse its discretion. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [holding abuse of discretion to be proper standard for review, but noting there is no practical difference between the two standards in a section 366.26, subd. (c)(1)(A) finding].)
First, appellant misconceives the standard to be applied by the trial court. He contends “parental rights cannot be terminated unless a court finds by clear and convincing evidence that there is not ‘a compelling reason for determining that termination would be detrimental to the child.’” This is, in essence, the exact reverse of the correct standard.
In reality, “[i]f 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. … A finding under … under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights .…” (§ 366.26, subd. (c)(1).) If the court makes the predicate findings of adoptability and prior termination of reunification services, termination of parental rights is mandatory unless, as relevant to the present case, “the court finds a compelling reason for determining that termination would be detrimental to the child” because “the child would benefit from continuing the relationship” with the parent. (§ 366.26, subd. (c)(1)(A), with omissions of provisions not relevant here.) The parent has the burden of proving a compelling reason for benefit from the continued relationship. (See In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.)
Second, appellant misreads the record. He contends his expert witness, a psychologist, “described an intact ‘parent child relationship,’ the disruption of which ‘would be detrimental.’” While the witness did utter those words, it appears she assumed one possible outcome of a continued relationship was eventual permanent placement of Destiny with appellant.
Once it had been clarified to the witness that the choices for the court were adoption and termination of parental rights, on the one hand, or “a placement which is something other than an adoptive placement, so something less permanent than an adoptive placement, and continuing a relationship” with appellant, the witness testified as follows: “I think that in -- given that information, in that situation I would say that it would be more detrimental for her to be involved in multiple placements or unstable placements while maintaining contact with him if there’s not -- if the goal is not to ever reunite with him. But if, you know, if -- if the plan is that, you know, she’s not going to be reunited with him, then I guess it’s my opinion that the most permanent placement would be most appropriate for her in that situation.” Thus, the testimony of the witness when she was under the wrong impression concerning the procedural posture of the case was largely irrelevant to her ultimate, corrected conclusion.
Finally, appellant argues that the court did not give the witness a scenario that involved guardianship, which might have resulted in different testimony from the witness. Appellant does not elaborate, other than to say that guardianship is a “middle ground” between foster case and adoption. This court has stated: “Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child.” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1344-1345.)
Appellant’s argument misses the point, in any event. The ultimate conclusion of appellant’s own expert was that visitation and the continuation of Destiny’s parental relationship with appellant would be affirmatively detrimental to her unless it resulted in her placement with appellant. That was not a possible outcome even if the disposition were guardianship and visitation was continued.
Appellant’s evidence did not establish that Destiny would benefit from continuation of the parental relationship. The court did not err in concluding there was no compelling reason to maintain appellant’s parental relationship with Destiny.
C. Ineffective Assistance of Counsel
Appellant contends his retained counsel’s performance was constitutionally ineffective in three respects at earlier stages of this case. He claims counsel was ineffective in failing to contest the supplemental petition because the petition makes insufficient allegations to support juvenile court jurisdiction. He says counsel was ineffective in failing to file a petition for writ relief because the evidence before the juvenile court was insufficient to show that removal of Destiny from appellant’s home was necessary for her protection. He also asserts counsel was ineffective for failing to file a section 388 petition to modify the prior permanency plan order because issues of appellant’s rehabilitation were not otherwise admissible at the section 366.26 hearing.
Generally, courts have applied to dependency proceedings the standards for ineffectiveness of counsel established in criminal cases. (See In re Daisy D. (2006) 144 Cal.App.4th 287, 292-293.) “To establish ineffective assistance of counsel in dependency proceedings, a parent ‘must demonstrate both that: (1) his 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.’” (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) “Unless the record affirmatively establishes ineffective assistance of counsel, we must affirm the judgment.” (In re Daisy D., supra, at p. 293.)
As to the jurisdiction and removal orders, the record in this case does not affirmatively establish ineffective assistance of counsel. To the contrary, it amply demonstrates both that counsel may have had valid tactical reasons for his actions and that there is no reasonable probability of a better result for appellant had counsel’s actions been different.
Appellant’s opening brief presents this case as involving, in essence, a trial court’s repeated determination that appellant’s medical use of marijuana, in and of itself, justifies dependency, denial of reunification services, and termination of parental rights. Wholly ignored are conclusions reasonably drawn from the record that appellant lied in his sworn testimony about his drug use, lied to two drug evaluation counselors about drug use, repeatedly failed to appear for scheduled drug testing without informing anyone that he did not do so because his medical use of marijuana would result in positive tests, and declined further visitation with Destiny after his wife was barred from such visitations.
It may be argued that these contentions were never subjected to scrutiny through cross-examination, rebuttal evidence, or further explanation by appellant. But for purposes of an appellate claim of ineffectiveness of counsel, we must presume trial counsel knew the real facts and made a tactical decision that contesting the allegations would be useless, either because the allegations were true, an evidentiary hearing would show even worse facts, or the evidence available to appellant was insufficient to undermine the allegations. Thus, with the allegations in the social services reports, it cannot correctly be said “there simply could be no satisfactory explanation” (People v. Pope (1979) 23 Cal.3d 412, 426) for trial counsel’s actions.
Similarly, on this state of the record, appellant has not shown that a better result for him would have been reasonably probable if counsel had taken the suggested actions. That is, on the state of the appellate record, there is nothing that shows counsel could have presented evidence that would have caused the juvenile court to render a different decision at any stage of the proceedings.
Appellant’s remaining contention is that trial counsel should have filed a section 388 petition for modification prior to the section 366.26 hearing, so that appellant could have presented evidence deemed irrelevant at the section 366.26 hearing. (See In re Marilyn H. (1997) 5 Cal.4th 295, 310.) Once again, the record does not affirmatively show there could be no satisfactory explanation for trial counsel’s action in failing to file a section 388 petition and there is no indication it had a reasonable probability of success.
Appellant says the basis for the petition would have been his assertion that he had stopped using marijuana and had completed all of the classes and programs he previously had failed to complete. These assertions are based on appellant’s testimony, his attorney’s statement in a statement of contested issues, and appellant’s reported statement to his expert witness. We note appellant did not testify he had completed drug rehabilitation, but that he was in the after-care part of the program and had “five more after-care classes.”
Even if we credit those statements for purposes of determining whether appellant could have made a prima facie case in a section 388 petition, the record is totally silent on the reason appellant even began to accomplish these things two months after reunification services had been terminated and more than six months after he failed to comply with previous orders for drug testing and substance abuse treatment. A plausible answer to that question would be a necessary part of a prima facie showing in a section 388 petition, because a mere change of circumstances is not enough to sustain such a petition. Indeed, the case upon which appellant primarily relies states: “[W]e doubt that a parent … who loses custody of a child because of the consumption of illegal drugs and whose compliance with a reunification plan is incomplete during the during the reunification plan [could ever show a sufficient change of circumstances to warrant granting a section 388 petition].” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9.)
The point is that appellant’s past failures and the very weak excuses for them may say more about appellant than his unexplained and belated participation in reunification services. That gap in the record before us keeps us from concluding the present record establishes the prima facie content of a section 388 petition, which must view the matter solely through the lens of Destiny’s best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Given the potential range of facts that could fill that gap in the present record, some favorable to appellant, some not, we cannot say the record affirmatively shows there could be no satisfactory explanation for trial counsel’s failure to file a section 388 petition. And given the very difficult burden appellant would be required to meet to actually prevail at a section 388 hearing (see id. at p. 320; In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9), the record does not permit us to conclude appellant had a reasonable probability of success on the merits.
Disposition
The order terminating appellant’s parental rights is conditionally reversed and this matter is remanded to the juvenile court for further proceedings. (See In re Justin S. (2007) 150 Cal.App.4th 1426, 1437.) The juvenile court shall direct respondent to give notice of the underlying proceedings and any upcoming hearing(s) in compliance with ICWA to the Bureau of Indian Affairs (BIA) and any identified tribes. (25 U.S.C. § 1913.) “Respondent shall document its efforts to provide such notice by filing such documentation and any and all responses received with the trial court. … If the BIA or any tribe responds by confirming that [Destiny] is or may be eligible for membership within 60 days of sending proper notice under the ICWA to the BIA and any identified tribes, … the court shall proceed pursuant to the terms of the ICWA and is hereby authorized to vacate, in whole or in part, any prior dispositional finding or order which is inconsistent with ICWA requirements.” (In re J.N., supra, 138 Cal.App.4th at pp. 461-462.) If notice to and inquiry of the tribes and BIA results in no confirmation that Destiny is or may be eligible for Indian tribal membership, the court shall reinstate the termination order without further evidentiary hearing on issues of parental rights and adoptability.
WE CONCUR: DAWSON, J., KANE, J.