Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. 06CEJ300187, Jamileh Schwartzbart, Temporary Judge. Pursuant to Cal. Const., art. VI, § 21.
Teri A. Kanefield, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Wiseman, A.P.J., Levy, J., and Cornell, J.
L.M. appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26 ) to his daughter, H.M. Upon review of the appellate record, appellant’s court-appointed appellate counsel informed this court that no brief would be forthcoming pursuant to In re Sade C. (1996) 13 Cal.4th 952. We extended time for appellant to personally file a letter brief which he has since done.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In his letter, appellant claims his due process rights were violated because he was allegedly represented by a different attorney at every hearing over the course of the proceedings. He also contends the court erred in the months prior to the termination hearing by vacating its order for a bonding study. Having reviewed the appellate record as summarized below, we conclude appellant’s contentions are meritless and affirm. He does not establish that the juvenile court committed an error affecting the outcome of the child’s dependency. (In re Sade C., supra, 13 Cal.4th at p. 994.)
PROCEDURAL AND FACTUAL HISTORY
At her birth in November 2006, H.M. and her mother tested positive for methamphetamine and marijuana. Appellant was aware of the mother’s drug use during her pregnancy and was on probation at the time due to his own drug use. Both the mother and appellant had substance abuse problems which negatively affected their ability to provide adequate care for the newborn. Based on these facts, respondent Fresno County Department of Children and Family Services (department) placed the infant in protective custody and the Fresno County Superior Court exercised its dependency jurisdiction (§ 300, subd. (b)) over H.M.
In March 2007, the court conducted a dispositional hearing for H.M. At the hearing’s conclusion, the court adjudged H.M. a dependent, removed her from parental custody, and awarded the mother reunification services. It however denied appellant reunification services pursuant to section 361.5, subdivision (b)(13) given his history of extensive, abusive, and chronic drug use and the fact he resisted both actively and passively prior court-ordered treatment for his problem during a three-year period immediately prior to the filing of the dependency petition.
Up through this point in the proceedings, Cary Torres with the Fresno Dependency Office represented appellant. At the dispositional hearing, Torres informed the court that she had reviewed the department’s dispositional report with appellant and explained to him the basis for the denial of services as well as the evidence she would need to refute the denial of services and his options. In addition, appellant was incarcerated at the time and had been sentenced to a 90-day in-patient drug treatment program. As a consequence, they were submitting on the report, though not the recommendation. The court in turn advised appellant of his rights, questioned him at length, and answered his questions regarding a denial of services. The court eventually accepted appellant’s waiver and submission and found they had been entered knowingly, intelligently, and voluntarily.
Over the next 12-plus months the mother received reunification services but ultimately failed to reunify. Meanwhile, appellant’s court-appointed counsel changed three times. In July 2007, the Fresno Dependency Office declared a conflict, leading the court to relieve the firm and appoint attorney Peter Meux to represent appellant. We take judicial notice of the fact that Meux passed away unexpectedly in the fall of 2007. (Evid. Code, § 452, subd. (h).) In January 2008, the court appointed a new attorney, Gil Latta, to represent appellant and continued a scheduled 12-month status review hearing. On the continued hearing date, the court relieved Latta and appointed attorney Kendall Simsarian to represent appellant. The record is silent regarding the circumstances warranting the substitution. In any event, the court continued the 12-month status review yet again.
Simsarian subsequently submitted a modification petition (§ 388) on appellant’s behalf to secure reunification services for his benefit. He alleged appellant had completed both in-patient and out-patient components of drug treatment as of late December 2007, as well as participated in AA and Bible study and was studying to become a drug counselor. He also visited with his daughter once a week.
On the eve of a contested hearing on the 12-month review and potentially the modification petition, Simsarian asked to be relieved on his previously-appointed cases. Although the court initially agreed, it vacated its decision, so far as appellant was concerned, during the course of the same hearing. Later that same day, Simsarian acknowledged he would remain on appellant’s case and appear at the contested hearing then set for May 7, 2008.
By this point, respondent recommended that the court terminate the mother’s services based on her lack of progress. It also urged the court to deny appellant’s modification petition in that the statutory period for reunification services lapsed in the latter half of May 2008, leaving no time for appellant to reunify.
At the start of the May hearing, the parties had reached an agreement to settle the contest. Appellant, who was once again in custody, agreed to withdraw his petition and the mother agreed to withdraw her contest of the recommendation to terminate services. In return, the department would refer their case to the Consortium for Children regarding possible parent/child contact following a section 366.26 hearing. Appellant expressly told the court he understood the settlement and was in agreement with it. The court also made certain the parties, including appellant, understood there was no promise as to what the result of the referral to the consortium would be. After further questioning of appellant and the mother, the court found the parties’ submissions had been entered knowingly, intelligently, and voluntarily. It then made the requisite findings to terminate reunification services and set the case for a section 366.26 hearing to select and implement a permanent plan for H.M. The court also granted the parents’ request for a bonding study based on its assumption the parents had been and would continue to visit H.M.
At the conclusion of the May 2008 hearing, the court gave the parents notice of their right to seek writ review of the court’s decision (§ 366.26, subd. (l); Cal. Rules of Court, rules 8.450 & 8.452). Neither parent took advantage of the writ remedy.
The department in September 2008 submitted a report recommending the court find H.M. adoptable and order the parents’ rights terminated. It also recommended the court vacate its bonding study order because the mother had not visited H.M. for over nine months and appellant had not visited for the past four and a half months. Appellant stopped visits in the end of April 2008 without notifying the case manager that he would be returning to prison. Appellant was incarcerated at Wasco State Prison from mid-May 2008 to mid-August 2008. Since then, he had not contacted the department to resume visits.
On the September 2008 date originally set for the section 366.26 hearing, the court relieved Simsarian as appellant’s attorney since the attorney no longer practiced in the dependency courts. The court appointed attorney Mark Mekhitarian in his stead and inquired of the attorney’s familiarity with the case. Mekhitarian was familiar with the department’s recommendation and appellant’s disagreement with it. The new attorney also requested a continuance to go over the department’s report and recommendation with appellant. The court granted a month-long continuance.
On the continued hearing date, Mekhitarian appeared with appellant who was out of custody. The attorney asked the court to set the case for a contested section 366.26 hearing. The court in turn set the case for trial in December 2008, with a November settlement conference. During the hearing, the court also vacated its bonding study order. The court expressly found the circumstances had changed since its previous order so that a bonding study at this point would be of “really” very little or no assistance to the court.
At the subsequent settlement conference, another attorney made a special appearance for Mekhitarian. No settlement was reached and the attorney making the special appearance asked for liberal visits on appellant’s behalf. The court denied the request without prejudice.
On the December hearing date, another attorney, Brent Woodward, had to be appointed to represent appellant due to a conflict. This led to a further continuance.
Finally, in January 2009, the court conducted its section 366.26 hearing, finding H.M adoptable and terminating parental rights. At the hearing’s start, Woodward orally renewed the modification petition for reunification services attorney Simsarian brought in the spring of 2008. Otherwise, he had no issues to raise. The court denied Woodward’s request.
DISCUSSION
I.
As previously mentioned, appellant claims he was represented by a different attorney at every hearing over the course of the proceedings and therefore his due process rights were violated. This claim fails for several reasons. First, to the extent appellant complains about events prior to the court’s May 2008 setting order, he has forfeited his argument given his failure to seek writ review of that setting order. (§ 366.26, subd. (l).) Second, appellant’s factual claim of representation by a different attorney at every hearing is false based on our reading of the record as summarized above. Third, although he was represented by several attorneys over the course of H.M.’s dependency, we are unaware of any authority to support his claim that such representation violates due process. Fourth, appellant fails to establish how he was prejudiced by the legal representation he received at any stage of these proceedings. Although he argues he never understood what was going on in the proceedings, the record belies his argument. Indeed, as pointed out above, there were multiple critical stages at which the court purposefully made a record of appellant’s understanding of the proceedings and his knowing, intelligent, and voluntary waiver of his rights.
Although appellant perceives himself as a non-offending parent who should have custody of his child, the record does not support his perception. Appellant exposed his daughter to harm before her birth given his knowledge of the mother’s prenatal drug abuse and the fact that his own drug abuse rendered him unable to care for H.M. It was serious enough that the child had to be removed from both parents’ custody for her own protection. In addition, appellant was not entitled to services for reunification purposes due to his history of extensive, abusive, and chronic drug use and the fact he resisted both actively and passively prior court-ordered treatment for his problem. Thereafter, although he apparently participated in drug treatment through a criminal proceeding, he voluntarily settled his subsequent request for services when he was reincarcerated. He did so in exchange for the chance to negotiate contact with the child and her adoptive parents after permanency planning occurred. We are confident the outcome of this case would be no different had appellant been represented by a lesser number of attorneys.
II.
Appellant also contends the court erred in vacating its order for a bonding study. There is no requirement in statutory or case law that a court must secure a bonding study as a condition to selecting a permanent plan for a child. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.) In addition, although the preservation of a minor’s family ties is one of the goals of the dependency laws, it is of critical importance only at the point in the proceeding when the court removes a dependent child from parental custody. (Id. at p. 1340.) Family preservation ceases to be of overriding concern if a dependent child cannot be safely returned to parental custody and the juvenile court terminates reunification services. Thereafter, the focus shifts from the parents’ interest in reunification to the child’s interest in permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Given the parents’ failure to maintain visitation, the court properly exercised its discretion to vacate its bonding study order. They would not have been entitled to a finding that termination would be detrimental to the child based on a beneficial parent/child relationship. (§ 366.26, subd. (c)(1)(B)(i).)
DISPOSITION
The order terminating parental rights is affirmed.