Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County, Super. Ct. Nos. J205767 & J205768, Robert Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut, J.
Mother appeals from a juvenile court judgment terminating her parental rights respecting two children, A.S. and K.S. (Welf. & Inst. Code, § 366.26.) She contends her legal representation during the course of the dependency proceedings was ineffective and requires reversal of the judgment. We disagree and affirm.
All references are to the Welfare and Institutions Code unless otherwise indicated.
1. Background
In August 2005, at two months of age, A.S. was hospitalized with two skull fractures resulting in intracranial bleeding, and two rib fractures. Father eventually admitted he had dropped the baby while caring for her and tossing her in the air. Father was convicted of felony child abuse and was granted probation, although the social worker’s nonappearance review report incorrectly indicated he was sentenced to only three months. Because the injuries appeared to be accidental, no dependency petition was filed; the maternal grandmother was permitted to assume responsibility for the children, and the parents agreed to participate in a Voluntary Family Maintenance plan.
According to the San Bernardino Superior Court’s on line docket, at http://www.sbcounty.gov/courts/flash.asp, father pled guilty to a felony on June 29, 2006, and was sentenced to a term of six years in state prison. However, execution of the sentence was suspended and father was placed on probation on condition he serve 180 days in local custody. As of July 28, 2006, had earned credit for 29 days actually served, plus conduct credit.
However, in January 2006, the children were detained when K.S., aged 17 months, was taken to the emergency room for pain in his foot and limping. He was eventually diagnosed with a healing fracture to his left arm, a metatarsal fracture of his left foot, and failure to thrive. A petition was filed alleging that the children should be declared dependents due to abuse of K.S., and neglect of A.S., but later assessments of the children led to the conclusion that all the injuries were nonaccidental. In addition to the conditions attributable to neglect or abuse, A.S. was found to have a very small head circumference, as well as crossed eyes, and was believed to suffer from cerebral palsy. She also developed head banging behavior during sleep. K.S. was eventually found to have serious delays in speech and possible brain damage.
As subsequently amended respecting A.S., the petition alleged physical abuse (§ 300, subd. (a)), failure to supervise or protect the children resulting in A.S.’s skull and rib fractures while in father’s care, and inability to provide adequate care due to mother’s mental health issues (§ 300, subd. (b)), severe physical abuse to a child under age five (§ 300, subd. (e)), and abuse of a sibling. (§ 300, subd. (j).) As to K.S., the amended petition alleged nonaccidental harm inflicted by a parent or guardian (§ 300, subd. (a)), failure to protect, as well as inability to provide adequate care due to mother’s mental health issues (§ 300, subd. (b)), severe physical abuse suffered by a child under five years of age (§ 300, subd. (e)), and abuse of a sibling. On several occasions, the parents were advised that the Department of Children’s Services (DCS) intended to recommend no reunification services.
On April 24, 2006, at the jurisdictional hearing, both parents submitted on reports. The court made true findings that both A.S. and K.S. had been subjected to nonaccidental injury (§ 300, subd. (a)), neglect (§ 300, subd. (b)), subjected to severe physical abuse (§ 300, subd. (e)), and were at risk due to abuse of a sibling. (§ 300, subd. (j).) On July 7, 2006, following a contested dispositional hearing, the court declared the children to be dependents of the court, removed them from the custody of their parents, placed them in the custody of DCS, and found that reunification services need not be provided. (§ 361.5, subd. (b)(5) & (6).) The court authorized supervised visitation for the parents and set a hearing to select and implement a permanent plan for the children. The court also advised the parents of their rights to challenge his findings and order by way of writ.
Mother filed a notice of appeal on July 19, 2006. We construed that appeal as an untimely and ineffective notice of intent to file a writ petition, which we dismissed. In the meantime, DCS attempted to locate an adoptive placement for the children. However, they were difficult to place, so DCS obtained permission to list information about the children, including photographs, on internet web sites, to locate prospective adoptive families. The hearing on the selection and implementation of a permanent plan for the children was continued more than once over several months to permit further evaluations of the children’s extensive medical, behavioral, and developmental problems before DCS could recommend adoption.
In its report for the selection and implementation hearing scheduled for November 6, 2006, DCS recommended a continuance and reduced visitation because mother had missed four visits and because the children were in a new prospective adoptive home; they needed time to stabilize and bond with their new caretakers. On the date of the hearing, mother’s counsel did not appear. Mother was in the courthouse lobby at the time, and despite her absence—and the absence of counsel—the court proceeded to continue the selection and implementation hearing, as well as to reduce visitation to one time per month. By March 22, 2007, a New York family came forward, expressing an interest in adopting both children. The court authorized DCS to initiate proceedings under the Interstate Compact for Placement of Children (ICPC) for approval of the out-of-state placement.
On May 31, 2007, the court conducted the selection and implementation hearing. Mother, now represented by a different attorney, informed the court she wished to file a petition to modify a previous order (§ 388), and requested a continuance in order to file one. The court denied the continuance, finding that even if a petition had been filed, a different result would not be obtained. The court heard testimony from the mother, but found by clear and convincing evidence that the children were adoptable. It therefore terminated parental rights and authorized out-of-state placement upon ICPC approval. Mother appeals.
Respondent contends the appeal should be dismissed for failing to (1) timely file a writ following the disposition order, or (2) an appeal following the reduction of visits, or (3) a petition for writ of habeas corpus, thus forfeiting any claim except those possibly arising from the termination of parental rights. Dismissal is inappropriate: an error is not moot despite a subsequent final order terminating parental rights if the error was of such a magnitude as to infect the outcome of the ensuing termination proceeding. (See In re Jasmon O. (1994) 8 Cal.4th 398, 413-414.) A jurisdictional defect may require reversal of a subsequent order made at a selection and implementation hearing. (In re S.D. (2002) 99 Cal.App.4th 1068, 1080.) For this reason, we must determine whether the record shows an error of such magnitude that it infected the later hearing. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1158-1159.)
Mother argues she was deprived of effective assistance of counsel on the part of attorney Mrich by (1) his failure to timely file a notice of intent to file a writ petition after the disposition hearing, and (2) his failure to appear at the hearing of November 6, 2006, on which date the court continued the selection and implementation hearing and reduced mother’s visitation rights. In addition, mother asserts this attorney improperly allowed her to enter a no contest plea, instead of putting DCS to the test as to the allegations relating to K.S.’s injuries. Mother also asserts Mrich “did nothing at the dispositional hearing to help Mother reunify with her children.” Mother acknowledges that the preferred method for raising such issues is by way of a petition for writ of habeas corpus in order to rule out possibly valid tactical purposes for counsel’s actions, but contends there can be no satisfactory explanation for trial counsel’s action or inaction. We disagree.
In order to sustain a claim of ineffective assistance of counsel, mother must first show that her trial counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that the result would have been more favorable if counsel had provided adequate representation. (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 104 S.Ct. 2052].) With respect to counsel’s performance, mother must show that counsel’s acts or omissions were not the result of a reasonable tactical decision. (In re Arturo A. (1992) 8 Cal.App.4th 229, 243.) Reviewing courts will find deficient performance on appeal only if the record affirmatively discloses that counsel had no rational tactical purpose for the acts or omissions. (In re Merrick V. (2004) 122 Cal.App.4th 235, 255.)
We agree with mother’s position that there are exceptions to the rule requiring a writ to raise ineffective assistance of counsel claims. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1254 [overruled in part on a different point in In re Zeth S. (2003) 31 Cal.4th 396, 413-414].) However, the exception applies in cases where the record on appeal establishes there could be no satisfactory explanation for counsel’s action or inaction. (People v. Pope (1979) 23 Cal.3d 412, 426.) The record on appeal in this case sheds no light on why counsel advised mother to submit on the petition, although, given the exhaustive information in the record relating to the circumstances of the nonaccidental injuries suffered by the two babies, there may be compelling rational tactical reasons for counsel’s acts or omissions.
A. Mother Has Not Demonstrated Deficient Performance of Counsel.
We find no error from counsel’s performance at the jurisdictional and dispositional hearings. Contrary to counsel’s assertion, mother did not plead “no contest.” While she incorrectly completed the form used to indicate her waiver of trial rights, at the hearing she did not admit the allegations; instead she submitted on reports. There could be no deficient performance for advising mother to enter a no contest plea where no such plea was entered.
Counsel was not ineffective for failing to insist on a contested hearing as to jurisdiction and the proposed denial of reunification services. With the voluminous medical information describing the skull fractures and healing rib fractures, which occurred at different times, as to A.S., and the separate fractures of K.S.’s arm and foot, as well as his failure to thrive, a contested hearing would not aid mother’s position, even if she did not personally inflict any injuries. Medical experts were scheduled to testify about the children’s injuries at the jurisdictional hearing, and one medical expert would have testified that A.S. was the victim of Battered Child Syndrome. The statutory presumption of nonaccidental injury would have applied to the allegations of abuse based on the medical evidence as to both children. (§ 355.1, subd. (a).) Counsel made a reasonable tactical decision to submit on reports. (See In re Athena P. (2002) 103 Cal.App.4th 617, 630.)
As to the disposition hearing, denial of services is mandatory upon a jurisdictional finding of severe physical abuse (§ 300, subd. (e)), unless the court could find that services would prevent reabuse or continued neglect. (§ 361.5, subd. (c); see also § 361.5, subd. (b)(5).) The court made a finding that it would not benefit the children to pursue reunification by clear and convincing evidence. (§ 361.5, subd. (b)(6).) There was no ineffective assistance of counsel at disposition.
The failure to timely file notice of intent to file a petition for writ of mandate (Cal. Rules of Court, rule 8.450), and the filing of the inoperative appeal following disposition, did not constitute defective performance by counsel. While a reasonably experienced advocate should be familiar with the proper procedures and time limits for reviewing an order setting a hearing for selection of a permanent plan (Cal. Rules of Court, rule 5.660(d)), counsel’s act or omission is not deemed to be prejudicial error where the parent was personally advised of her right to file a notice of intent, and was informed where to obtain the appropriate form. (In re Meranda P., supra, 56 Cal.App.4th at p. 1160.) Mother has not demonstrated that a timely writ would have presented a meritorious challenge to either jurisdiction or disposition. Counsel is not required to file meritless or futile petitions. (See In re Merrick V., supra, 122 Cal.App.4th at p. 255.)
Finally, mother claims she was deprived of effective assistance of counsel when attorney Mrich failed to appear on November 6, 2006, at which time the selection and implementation hearing was continued and visitation rights were reduced. Counsel was remiss in not showing up at the appointed time, but mother’s parental rights were not implicated by the failure to appear because respondent had filed a formal motion to continue the hearing.
More problematic is the trial court’s action of reducing visitation in mother’s absence, while she was waiting in the courthouse lobby. Proceeding with a hearing in the parent’s absence, and without counsel present, presents a potential due process violation, depending on whether the presence of counsel would have made a “determinative difference” in the outcome of the proceeding. (In re Ronald R. (1995) 37 Cal.App.4th 1186, 1196.) As we explain in the next section, it would not have made a difference.
B. No Prejudice Resulted From Any of Counsel’s Acts or Omissions.
Mother has not established prejudice from submitting on reports because even if mother had contested the allegations, the information submitted by DCS was competent evidence to support the judgment as to all grounds. (§ 355, subd. (b).) Even if mother could have shown that she did not personally inflict the injuries to either child, the allegation would nonetheless be sustainable because there were multiple injuries to each child inflicted at different times. Without affirmative evidence in the record to contradict the information in the reports, there was ample evidence to support jurisdictional findings on all grounds asserted and the dispositional orders.
The more difficult question relates to whether counsel’s absence at the hearing at which visitation was reduced resulted in prejudice. We think not. The juvenile court had discretion to deny visitation from the outset because it made findings that reunification was not in the child’s best interests. (§ 361.5, subd. (f); In re J.N. (2006) 138 Cal.App.4th 450, 458.) Visitation is the principle means by which family ties are maintained to facilitate reunification. (§ 362.1, subd. (a).) Reducing visitation where the focus is on permanent placement does not cause prejudice.
Moreover, although mother did not have an opportunity to object at the hearing while she was outside the courtroom, she had notice of the proposed change in visitation before the hearing, and had several opportunities after the hearing—and after Mr. Mrich had been relieved as her attorney—to raise the visitation issue. Mother has not established that the absence of counsel at the hearing made a determinative difference in the outcome.
We conclude that mother’s right to effective assistance of counsel in the juvenile court at the proceedings prior to the selection and implementation hearing was not violated. Mother does not raise any claims of error occurring at the hearing at which her parental rights were terminated. No prejudice resulted.
3. Disposition
The judgment terminating parental rights is affirmed.
We concur: Hollenhorst, Acting P. J., Miller, J.