Opinion
NOT TO BE PUBLISHED
Received for posting 6/8/11
San Francisco County Super. Ct. No. JD08-3366.
Jenkins, J.
Following a hearing held pursuant to Welfare and Institutions Code section 366.26, the trial court entered orders on April 6, 2010, terminating appellant and petitioner Erin B.’s parental rights with respect to her son G.W. Thereafter, Erin B. (mother) filed this appeal, and subsequently, a petition for writ of habeas corpus. On appeal and in her petition for writ of habeas corpus, mother contends that her trial counsel rendered ineffective assistance at a six-month review hearing held on September 22, 2009, which resulted in the termination of reunification services to mother. Upon careful consideration of the respective positions of the parties on this question, we shall affirm the trial court’s section 366.26 order and deny the petition for writ of habeas corpus.
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Factual and Procedural Background
On December 19, 2008, respondent San Francisco Human Services Agency (Agency) filed a section 300 petition with respect to G.W. (born December 2004). The detention report states that on December 8, 2008, a member of mother’s family contacted the Agency and reported as follows: Mother has been using methamphetamine for about ten years. Two years ago mother moved to San Francisco to live with her maternal grandmother, Beatrice G., who is 80 years old and has Alzheimer’s disease. Mother goes on drug binges and leaves G.W. for days at a time under Beatrice’s care. Mother left G.W. with Beatrice during the week of December 5 and disappeared. At this time, other relatives are helping Beatrice to care for G.W. Family members found drugs and paraphernalia hidden in mother’s room at Beatrice’s house. Police were called to the home to remove the drugs. The detention report also stated that on December 17, 2008, mother’s cousin called the Agency and reported that mother has enrolled in Mountain Vista’s 28-day residential drug treatment program.
On December 29, 2008, the juvenile court ordered G.W. detained. On January 30, 2009, the Agency filed a report in connection with the combined jurisdictional and dispositional hearing set for February 5, 2009. The report recited mother’s history of drug dependency. Mother began using drugs in high school and has a six-year criminal history including two felony drug convictions. Mother has twice been ordered by the court into substance abuse treatment, once in 2004 and again in 2006/2007. The report also noted that according to family members, mother’s drug addiction has worsened in the past year and she has been bringing other drug users into Beatrice’s home. On several occasions, family members found G.W. alone in his bed crying after mother left in the middle of the night. Family members found drugs and syringes hidden around Beatrice’s house and on one occasion G.W.’s two-year old relative came across a bag of methamphetamine hidden in a box of coloring pens. The report also notes that in June 2008, mother was diagnosed with major Depressive Disorder and prescribed anti-depression medication, which she is currently not taking.
The report also spoke to mother’s current status noting: Mother successfully completed a 28-day de-toxification program on January 13, 2009, and is now staying in a sober living program called TLC in San Francisco. The Agency is currently trying to find a suitable residential treatment program. Mother has been visiting G.W. weekly via an informal family arrangement. Regarding the minor, the report states that G.W. remains in Beatrice’s home under the care of his great uncle, Michael G. The minor attends pre-school not far from his home and has been brought up to date with routine health care. However, G.W. is “anxious and upset by the drama around him, including the separation from his mother, ” and has been referred to play therapy.
Appended to the jurisdictional report was a case plan, developed by the Agency for mother. The case plan required, among other things, that mother complete a residential drug treatment program that includes counseling and testing, that she undergo individual therapy addressing the “root issues of drug use as well as effects of her drug use and lifestyle on her son, ” that she undergo a medical evaluation and comply with any recommendations for the use of medication, and that the mother visit her son “on a regular basis prior to reunification and maintain other contact and involvement, as arranged by the Child Welfare Worker.” The case plan also required that mother provide suitable housing for herself and G.W., and that she maintain a legal source of income to support the minor.
On February 13, 2009, the juvenile court filed orders declaring G.W. a ward of court, committing him to the care and custody of the Agency and approving his current placement with his great-uncle Michael in his great-grandmother Beatrice’s home. The court also ordered that mother receive supervised visitation as provided in the case plan. In addition, the court set a six-month review hearing for August 5, 2009.
In anticipation of the six-month status review hearing, the Agency filed its report in July 2009. The status report recommended the minor should continue under dependency status; he should remain in placement in the home of his relative; reunification services for mother should be terminated, and that the court set a section 366.26 hearing.
The status report will be reviewed in more detail in the Discussion section.
The six-month review hearing was continued and subsequently held on September 22, 2009. Mother appeared at the hearing with counsel. At the outset of the hearing, counsel for the Agency stated: “Your Honor, we are set today for a contested statutory hearing. [¶] And prior to calling case, we had an opportunity to discuss the matter. [¶] It’s been agreed that the mother would be submitting to the recommendation to move forward to establish a permanent plan for the child. However, we have agreed that the mother will have visitation once a month to start off. She will meet with [the child welfare worker]. And mother will be engaged in services. [¶] And the plan is the Department will be given the discretion to increase the frequency and duration of the visits and allow unsupervised, if appropriate, with prior consultation with minor’s attorney.” Mother’s counsel responded, “Your Honor, on behalf of my client, that accurately reflects our agreement.”
At the outset of the hearing, the juvenile court stated it had read and considered the six month status report and admitted the report into evidence. Based upon the facts set forth in the report, the court found by clear and convincing evidence that mother had “failed to participate regularly in any court-ordered treatment plan, and there’s not a substantial probability at this time that a return of the minor to the parent in the six months. Accordingly, the Court hereby orders reunification services terminated.” In addition, the court set a 366.26 hearing for February 3, 2010, with the section 366.26 report to be submitted on January 6, 2010. Also, prior to concluding the hearing, the court stated: “And we’re going to give you information here, [mother], that describe your appellate rights that exist based on the decision that the Court made today. And the record will reflect that [mother] has been provided with that information.”
Mother was provided with a copy of a Notice of Intent to File Writ Petition. Mother did not filed a writ petition challenging the court’s termination of reunification services.
On January 5, 2010, the Agency filed a supplemental petition pursuant to section 387, seeking approval for a change in placement. The supplemental petition report noted that after G.W.’s great-uncle confirmed he would not be able to provide for G.W.’s long-term care, maternal family members identified family friends who were interested in providing an adoptive home for G.W. The supplemental report also indicated that the minor has had extensive, increased contact with the potential adoptive family over the past six months. The Agency’s assessment was that “placement with this potential adoptive family — allowing for frequent visitation with the maternal family — is in the best interest of the minor. A plan has been developed to slowly transition G. into the placement home, followed by a consistent visitation schedule with the maternal great-uncle.” The juvenile court ordered G.W. detained in the home of the potential adoptive parents.
On January 12, 2010, the Agency filed a section 366.26 report. The report noted that G.W. adjusted well to his new placement, aided by regular weekly visitation with his great-uncle, the previous caregiver. The report also noted that mother has had no authorized contact with G.W. since February 2009. The report proposed adoption as a permanent plan, stating: “The current caregivers... are committed to ensuring [the minor’s] long-term care and well-being. They have an older adopted son, and are thrilled to welcome G. into their family.... [T]hey have developed a collaborative relationship with the previous caregiver, and are very supportive of a plan for continued contact between G. and members of the maternal family.”
The day after filing its section 366.26 report, the Agency filed an application for an ex-parte hearing asking the court to revoke its order authorizing mother to visit the minor on a monthly basis. The application was prompted by a letter from the minor’s psychotherapist, John McLaughlin, recommending against contact between the minor and his mother. A hearing was held on the Agency’s ex-parte application on January 21, 2010. Mother was present with counsel. At the hearing, McLaughlin testified as an expert in psychotherapeutic services. He opined that because G.W. had a “huge task” right now to adjust to his new placement and had exhibited a lot of anxiety around mention of his mother, visitation with mother would be detrimental to the minor at this time. The Agency social worker, Raena McBride-Orozco, also testified at the hearing. McBride-Orozco testified that she received the case in March 2009 and spoke by telephone with mother on March 2, 2009. After their initial conversation, McBride–Orozco did not hear from or see mother until a scheduling hearing in August 2009. McBride next saw mother in court on September 22, met with her the following day, then did not hear from her again until December 15, when mother informed McBride-Orozco she was in a program at Walden House. During all that time, mother had McBride-Orozco’s contact information, never asked the Agency for visitation with G. while he was in the care of his great-uncle Michael, and has not visited G. since the hearing in September. At the conclusion of the hearing, the juvenile court found that visitation with mother would be detrimental to the minor at this time, and terminated visitation.
Following the court’s termination of mother's visitation with the minor, mother filed a section 388 petition, requesting that the court reinstate reunification services based on changed circumstances. In an accompanying declaration, mother stated that after G.W. was detained she completed a 28-day drug program at Mountain Vista Farms, but relapsed into drug use in February 2009. Mother stated that she entered Walden House, a dual diagnosis program, on December 11, 2009, and, according to her counselor and case manager, is doing well there. In her section 388 petition, mother also contended that the court should grant mother’s request for reinstatement of services because the court did not declare that its findings at the six-month review were by clear and convincing evidence.
On March 2, 2010, the court denied mother’s section 388 petition in part, concluding that reinstatement of reunification services was not warranted based upon changed circumstances. The court held over the issue of whether reinstatement of reunification services was required because the court did not apply the correct legal standard at the six-month review hearing.
On April 2, 2010, the juvenile court held a contested section 366.26 hearing. Preliminary to the section 366.26 proceedings, the juvenile court denied as untimely mother’s section 388 petition (seeking to overturn the court’s termination of reunification services at the six-month review hearing based on the court’s alleged application of an incorrect legal standard) because mother did not seek writ review. Thereafter, the juvenile court admitted the section 366.26 report into evidence, heard testimony and entertained argument of counsel. At the conclusion of the section 366.26 hearing, the juvenile court found by clear and convincing evidence that it is likely G.W. will be adopted, and terminated mother’s parental rights. The court filed its section 366.26 orders on April 6, 2010. Mother filed a timely notice of appeal on June 3, 2010, and filed a petition for writ of habeas corpus on October 6, 2010.
Discussion
The sole issue presented on appeal and by petition for writ of habeas corpus is whether the juvenile court’s section 366.26 orders must be reversed because counsel rendered ineffective assistance at the six-month review hearing held on September 22, 2009. Having thoroughly reviewed the record, we reject mother’s contention.
The parties discuss at length whether this claim is barred by the “waiver rule” (see In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151 [under “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”]), and whether the writ of habeas corpus may be utilized to overcome the waiver rule. (Cf. In re Meranda P., supra, 56 Cal.App.4th at pp. 1161-1162 [section 366.26 order can only be challenged by direct appeal, not through writ of habeas corpus, relying in part on Adoption of Alexander S. (1988) 44 Cal.3d 857, 866-868] and In re Carrie M. (2001) 90 Cal.App.4th 530, 534-535 [where ineffective assistance of counsel claims related only to the termination order, not to a final antecedent order, mother was entitled to seek review of section 366.26 order on writ of habeas corpus] with In re Darlice C. (2003) 105 Cal.App.4th 459, 464-466 [finding In re Meranda P., supra, unpersuasive, and concluding, without discussing the applicability of the waiver rule, that mother was entitled to seek review of the termination order by writ of habeas corpus].) In In re Janee J. (1999) 74 Cal.App.4th 198, Division Two of this Court held that “the crux of Meranda P. [is that] the waiver rule will be enforced unless due process forbids it” (id. at p. 208), and, in this regard, that “resort to claims of ineffective assistance as an avenue down which to parade ordinary claims of reversible error” is not enough to overcome the waiver rule, (id. at p. 209). We need not resolve the parties’ dueling contentions on the issue of waiver given our resolution of the issue of ineffective assistance on the merits.
“To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citation.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Strickland v. Washington (1984) 466 U.S. 668, 694.)” (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.) In this case, mother fails to establish that counsel’s performance was objectively unreasonable nor does the record support her contention that counsel’s performance was prejudicial.
Respondent suggests that, under these facts, mother’s right to effective assistance of counsel does not flow from the federal constitution but is a statutory right under California law, meaning we should apply a lower standard of review. We need not decide this issue because our review applies the higher federal standard as enunciated in Strickland v. Washington, supra, 466 U.S. 668, 694.
Mother contends that her trial counsel provided ineffective assistance based upon his decision to submit, at the six-month review hearing, on the Agency’s recommendation to terminate reunification services. Mother argues that absent counsel’s stipulation, the Agency was unable to prove, by clear and convincing evidence, that she failed to visit or contact G.W. during the prior six-month period, as required under Section 366.21. Furthermore, mother argues that the record reveals no tactical choice at work in counsel's decision to submit on the Agency's recommendation. Finally, mother asserts that counsel’s decision to submit on the Agency’s recommendation was prejudicial because it “led inevitably to termination of her parental rights” and effectively ended her ability “to seek review of the termination of services.” However, we conclude, under the appropriate standard of review, that the record cannot support a finding that counsel was incompetent or, even assuming trial counsel’s incompetence, that mother was prejudiced thereby.
Section 366.21states in pertinent part: “If... the court finds by clear and convincing evidence [at the six month review hearing] that... the parent has failed to contact and visit the child, the court may schedule a hearing pursuant to Section 366.26 within 120 days.” (§366.21, subd. (e).)
The law governing incompetence of counsel claims is well settled. As a reviewing court, we “ ‘ “defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” [Citations.] “[W]e accord great deference to counsel’s tactical decisions” [citation], and [we do not] “second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors are generally not deemed reversible, and counsel’s decision-making must be evaluated in the context of the available facts.” [Citation.]’ ” (People v. Jones (2003) 29 Cal.4th 1229, 1254.)
In this regard, the declaration submitted by mother’s trial counsel under penalty of perjury, considered in the context of the Agency’s six-month status report, demonstrates that counsel’s decision to submit on the Agency’s recommendation to terminate reunification services was a reasonable, albeit difficult, tactical decision based on the information before him. (See People v. Scott, supra, 15 Cal.4th at p. 1212 [reasonableness of counsel’s actions are judged “under the circumstances as they stood at the time that counsel acted”].) According to counsel’s declaration, counsel discussed the facts in Agency’s six-month review report with mother. Mother “vehemently denied having any unauthorized contact with Gavin W.” Mother told counsel “she had not visited the child at all during the prior six-month period” and had last seen her son in February 2009. Mother also told counsel she had continued to use drugs during this time. In addition, mother insisted that she did not want to testify at the hearing. Based upon these facts and mother’s failure to enter a treatment program or otherwise participate in any reunification services during the prior six months, counsel was of the opinion that there was “little likelihood” the court would not adopt the Agency’s recommendation and find, by clear and convincing evidence, mother’s conduct merited termination of services. Given these circumstances, counsel advised mother that her best bet was to submit on the Agency’s recommendation to terminate reunification services if the Agency would permit continued supervised visitation with her son, with the possibility of progressing to unsupervised visitation. Counsel reasoned that this strategy would give mother the opportunity, despite termination of services, to establish regular and consistent visitation with the minor, progressing optimally to unsupervised visitation, prior to the section 366.26 hearing. Counsel reasoned that if mother reestablished the parent-child bond through such regular visitation, she could argue persuasively at the section 366.26 hearing that G.W. was not adoptable based on her beneficial relationship with the child. Even if counsel’s strategy was a risky one, it cannot be characterized as unreasonable when “ ‘ “evaluated in the context of the available facts” [Citation]’ ” and we may not second-guess it “in the harsh light of hindsight” [citation]. (People v. Jones, supra, 29 Cal.4th at p. 1254.) Accordingly, we conclude counsel’s performance at the six-month review hearing was not constitutionally deficient.
Counsel’s opinion was reasonable given the contents of the status report. In this regard, the six-month status report states that mother was discharged from the TLC sober living program in San Francisco on February 5, 2009. Following her discharge from TLC, the Agency provided mother with referrals for residential treatment at Center Point and Gracenter, but mother did not follow-up on the referrals. By March 2009, mother’s whereabouts were unknown. On two occasions, March 2 and again on May 4, 2009, mother telephoned the case worker “to inform that she was planning to enter a residential treatment program that day. [Mother] told the worker that she was at her mother’s house in Redding, and that her mother would be driving her to a treatment program that afternoon. [Mother] also stated she would call the undersigned upon arriving to schedule a visit to discuss her case plan; she never called, and the undersigned has not received any word from mother in the past two months, nor is her cell number working. The undersigned spoke with [mother’s] mother, Angela P., on May 11, 2009; she informed that her daughter had not been staying with her and that she had no knowledge of her whereabouts.” In addition, the status-review shows that mother utterly failed to engage in or complete any component of her case plan. In the assessment/evaluation section of its report, the Agency states: “Although this is the six-month hearing, it is clear that reunification is not likely, as the mother’s whereabouts have been unknown since the time of disposition, and she has had no authorized contact with her four-year old son for six months. The Department therefore respectfully requests to terminate the mother’s reunification services at this juncture.”
Under section 366.26, subd. (c)(B)(i), a court may find that termination of parental rights would be detrimental to the child because the parent maintained “regular visitation and contact with the child and the child would benefit from continuing the relationship.”
Mother contends that any tactical reason counsel had for submitting on the Agency’s recommendation cannot stand because she received no benefit from the submission. On this point, mother asserts that the offer of visitation “merely reiterated the social worker’s prior recommendation.” Mother mischaracterizes the record on this point. The Agency’s status report recommended that that visitation “should not be resumed without supervision, and not until the mother has followed through with substance abuse treatment and therapy.” At the six-month hearing, upon discussion of counsel, the Agency agreed unconditionally and with immediate effect that “mother will have visitation once a month to start off.” Thus, as a consequence of counsel submitting on the Agency’s recommendations, mother received the benefit of unconditional and immediate supervised visitation with the minor.
Furthermore, even if counsel’s performance was deficient, mother cannot show that but for counsel’s deficient performance, it is reasonably probable that the outcome at the six-month review hearing would have been more favorable to her. On this issue, mother contends she was prejudiced because counsel agreed to terminate services when, in fact, the Agency did not have clear and convincing evidence she failed to visit or contact G.W. during the prior six-month period, as required for termination of reunification services pursuant to section 366.21, subdivision (e). We disagree.
Mother asserts the Agency did not have clear and convincing evidence she failed to visit or contact G.W. during the prior six-month period because “its own reports explained that [mother] continued to contact Gavin until May 2009.” Here, mother refers to commentary in the six-month status report describing the “Current Situation of Child.” The report states in pertinent part: “[Gavin’s mental/ emotional condition] steadily improved until May, when the caregiver [MGU Michael Geraldi] informed on 05/04/09 that Gavin’s MGM Angela Piper, had taken Gavin for a visit that weekend, and he believed she brought him to see the mother. When Gavin returned, the MGU stated that he had completely regressed in his behaviors, and was once again anxious, upset, crying and wetting the bed. The undersigned subsequently suspended any unauthorized visits between Gavin and the MGM, pending the mother’s engagement in her service plan. On 05/11/09, the caregiver called to inform that the mother and MGM had been calling Gavin at the placement home while the MGU was at work, knowing that the MGGM would allow them to talk to Gavin.... The undersigned was unable to make contact with the mother, and discussed it with the MGM on 5/18/09; she denied having called Gavin with [mother] on the line, and stated she needed to have contact with her grandson.” This commentary indicates that the minor’s maternal grandmother, Angela P., contacted the minor in May 2009. However, it fails to establish mother was in telephone contact with the minor during this time. Indeed, the MGM denied she called the minor while mother was on the line. Moreover, the commentary does not establish mother visited the minor during this time — it merely reports that the MGU believed that on one occasion the MGM took the minor to visit mother.
Moreover, even if the statement in the status report that “mother may have seen G., without Department approval, arranged by the MGM, ” is evidence that mother actually visited G. within the relevant six-month period, that does not undermine the trial court’s termination of services pursuant to section 366.21, subdivision (e). First, to avoid the application of section 366.21, subdivision (e), a parent “parent must both contact and visit the child.” (S.W. v. Superior Court (2009) 174 Cal.App.4th 277, 282.) Thus, mother’s lack of contact itself warranted termination of services. (Ibid. [“the failure either to contact or visit the child allow the court to terminate services” pursuant to section 366.21, subdivision (e)].) Second, even we credit mother’s interpretation of the report, any contact or visitation discussed therein does not amount to substantial contact sufficient to preclude the application of section 366.21, subdivision (e). (See S.W. v. Superior Court, supra, 174 Cal.App.4th at p. 283 [affirming application of section 366.21, subdivision (e) because “[o]ne telephone conversation in six months is not substantial contact.”]; see also Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1017 [court did not err in terminating reunification services for lack of contact and visitation under section 366.21, subdivision (e), where the Agency ended mother’s visit with her children because it found she was acting inappropriately and did not permit further visitation unless mother was free of drugs]; and In re Tameka M. (1995) 33 Cal.App.4th 1747, 1754 [“casual or chance contact does not preclude the application of section 366.21, subdivision (e)”].)
In sum, and contrary to mother’s assertion, the commentary in the Agency’s status report concerning the MGM’s attempts to contact G. does not establish that mother contacted or visited the minor in May 2009, during the re-unification period. Hence, on this record, mother fails to establish prejudice in connection with her attorney’s decision to submit on the recommendation in the six-month report to “to terminate the mother’s reunification services at this juncture.” Accordingly, mother’s claim of ineffective assistance of counsel must fail. (See In re Valdez (2010) 49 Cal.4th 715, 729 [“ ‘Unless a defendant makes both showings, it cannot be said that the... [outcome] resulted from a breakdown in the adversary process that renders the result unreliable. (Citation.)”].)
Mother asserts that counsel’s decision to submit on the Agency’s recommendation as opposed to the Agency’s report prevented her from seeking meaningful review of the termination of services, citing In re Richard K. (1994) 25 Cal.App.4th 580, 590 (Richard K.) [by submitting on the Agency’s recommendation as opposed to the Agency’s report, mother waived her right to contest the juvenile court’s dispositional order removing children from her custody]. Even if Richard K. applied here, the issue of waiver is moot in light of our finding that mother has failed to establish she was prejudiced by counsel’s decision to submit on the Agency’s recommendation. Moreover, contrary to mother’s assertion, the trial court, despite counsel’s submission on the Agency’s recommendation, still weighed the evidence and make the appropriate findings in support of its decision to terminate services.
Disposition
The juvenile court’s order terminating mother’s parental rights to G.W. is affirmed. The petition for writ of habeas corpus is denied.
We concur: Pollak, Acting P.J., Siggins, J.