Opinion
D041701.
7-11-2003
In re TYLER C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MICHELLE L., Defendant and Appellant.
Michelle L., the mother of Tyler C., appeals the termination of her parental rights pursuant to Welfare and Institutions Code section 366.26. Michelle contends the juvenile court should have granted an evidentiary hearing on her petition to modify ( § 388) the courts earlier order terminating reunification services based on due process and ineffective assistance of counsel grounds. Alternatively, Michelle argues her second trial counsel was ineffective for not filing a petition for writ of habeas corpus to raise the ineffective assistance of counsel claim. We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
PROCEDURAL AND FACTUAL BACKGROUND
Tyler, the son of Michelle and Kevin C., was born in March 2001. On December 2, Tyler was hospitalized, suffering from severe cold symptoms. A hospital hold was placed on Tyler because of staff concerns that Michelle could not properly take care of him. Michelle appeared "spacey" and "glassy-eyed" while she was at the hospital. Ruth N., the maternal grandmother, told hospital social workers that Michelle had a substance abuse problem and her parental rights to an older son, Casey H., had been terminated in Orange County the previous year. Ruth N. also related the Michelles shoulder was broken three months earlier during a fight with Kevin.
Kevin is not a party to this appeal.
On December 5, San Diego County Health and Human Services Agency filed a petition pursuant to section 300, subdivision (b), on behalf of Tyler. The petition alleged his parents engaged in domestic violence on August 6, which resulted in Michelle having a broken arm that required surgery. The petition also alleged that Michelle was involved with Stacy H., the father of Tylers older half-brother, Casey, who was removed from his parents because of exposure to drugs and domestic violence and parental rights were terminated by the Superior Court of Orange County in October 2000.
Michelle told an Agency social worker that she was a "polysubstance abuser" who used crystal methamphetamine, heroin and cocaine. Michelle also said she stopped using recreational drugs one year earlier, but was on prescribed medication for pain.
Tyler was placed with the maternal grandmother upon his release from the hospital and has remained in her care throughout these proceedings. Agency initially recommended reunification services not be provided to Michelle, but changed its position. On February 19, 2002, the court ordered Michelle to comply with her case plan, which included substance abuse, parenting and domestic violence services. The court ordered Michelle to "detox from pain medications" if medically feasible. The court also ordered random drug testing and said if Michelle stopped taking her prescribed pain medications he would schedule a special hearing to order her into SARMS, the courts Substance Abuse Rehabilitation Management System. Michelle was ordered to return to court on August 20 for a six-month review hearing.
On March 14, after Michelle had stopped taking the pain medications, the court held a special hearing to order Michelle into SARMS. On June 4, a special hearing was held to address Michelles contempt charges for violating SARMS rules; the court dismissed the contempt charges because Michelle had been terminated from the program.
At a hearing on July 11, Michelle told the court she anticipated serving 57 days in jail in Orange County in connection with a warrant. In response, the court set a special hearing for September 19, the day after Michelles anticipated release, for a follow-up on her enrollment in a drug program.
Michelle did not spend the 57 days in custody. According to Michelles later statement, Orange County authorities dropped the warrant matter on August 19, when she appeared in court there.
Agency recommended the court terminate reunification services at the six-month review hearing and schedule a section 366.26 hearing. Agency reported Michelle had not been in compliance with her case plan and admitted drinking and using drugs. Michelle tested positive for methamphetamine on March 19 and March 25, but claimed the positive results were caused by her use of cough medicine and an inhaler. Michelles therapist terminated her from treatment because of repeated absences. Michelle did not begin a domestic violence program and did not undergo a psychological evaluation. Although Michelle consistently visited Tyler in March, her visitation after that was sporadic.
Michelle complained various problems interfered with her ability to participate in reunification services: arm/neck surgery in May; lack of transportation, and no place to live. Throughout this period, Michelle stayed with friends and did not have a direct telephone number. Michelle did not stay in contact with the social worker after May.
Notice of the six-month review hearing was sent to Michelles last known address in La Mesa on July 22. The hearing was held on August 20; Michelle was not present. Michelles counsel, Pamela Wallach related she had sent Agencys six-month review report to Michelles La Mesa address. Wallach was unable to reach Michelle using various telephone numbers. Wallach told the court she did not know Michelles position and did not know if she would be able to reach her if she set a trial contesting Agencys recommendations. Wallach did not take a position on Michelles behalf.
The court found reasonable services had been provided, terminated services, and scheduled a section 366.26 hearing. The court ordered counsel to notify Michelle of her writ and rehearing rights. The court sent writ petition forms to the mothers last known address.
On September 19, Michelle appearing in court for the special hearing. The court reconfirmed the section 366.26 hearing for December 17.
On October 24, the court authorized the maternal grandmother to move to Riverside County.
In its adoption assessment report, Agency reported Michelles complaints that she did not get enough time to complete her plan because she was ill for three months and that her counsel did not adequately represent her. Agency also reported that there was no parental relationship between Michelle and Tyler Agency concluded Tyler was adoptable because of health, normal development, age, good looks, personality and ethnicity. He was living with his maternal grandmother, who wished to adopt him, and there were 54 approved adoptive homes willing to adopt a child like Tyler.
On January 1, 2003, Michelle wrote a letter to the juvenile court requesting new counsel. Michelle related that when she asked her attorney why she did not request six more months or services at the August 20 hearing, attorney Wallach responded that Michelle "was going to loosesic [her] son anyway." After a Marsden (People v. Marsden (1970) 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44) hearing, the court appointed new counsel.
Wallach denied making this statement.
On February 25, Michael Bradfield, Michelles new counsel, filed a section 388 petition to set aside the orders terminating reunification services and setting the section 366.26 hearing. In an accompanying declaration, Michelle said she did not believe she was required to appear before the court until the September 19, 2002 special hearing and did not believe her attendance was required for the August 20 six-month review hearing.
Based on counsels offer of proof, the court denied an evidentiary hearing on the section 388 petition and denied the petition. The court proceeded to the section 366.26 hearing and terminated Michelles parental rights.
DISCUSSION
I. No Abuse of Discretion in Denying Evidentiary Hearing on Section 388 Petition
Michelle contends the juvenile court abused its discretion by not holding an evidentiary hearing on her section 388 petition. The contention is without merit.
The petition raised two issues — a due process deprivation and ineffective assistance of counsel — with respect to the six-month review hearing on August 20, when the court terminated reunification services and set the section 366.26 hearing.
Section 388 provides that a parent may petition the court for a hearing to change, modify or set aside any previously made order of the court on the grounds of changed circumstances or new evidence. The statute goes on to state: "If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . ." (Id., subd. (c).) "If the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing." (In re Heather P. (1989) 209 Cal. App. 3d 886, 891, 257 Cal. Rptr. 545.)
However, if the petition fails to state a change of circumstances or new evidence that might require a change of order, the court may deny the application ex parte. (Cal. Rules of Court, rule 1432(b).) The parent must make a prima facie showing to trigger the right to a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310, 851 P.2d 826; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416.) This burden includes making a prima facie showing that the requested change would promote the best interests of the child. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
A juvenile court has extremely broad discretion in ruling on section 388 motions. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, 867 P.2d 706.) A juvenile courts ruling on a section 388 motion should not be reversed absent an ""arbitrary, capricious, or patently absurd determination."" (Id . at p. 318.) On this record, we find no abuse of discretion.
Due Process Claim
In her declaration accompanying the petition, Michelle said she did not attend the six-review hearing on August 20, 2002, when the services were terminated, because she believed her court attendance was not required until a special hearing on September 19. On July 11, at a special hearing to order Kevin C. into the SARMS program, Michelle informed the court that she had stopped taking prescribed pain medications but she anticipated being jailed in Orange County for 57 days on a warrant. At that point, the court scheduled a hearing for September 19 to address drug rehabilitation services for Michelle after she was released from jail. Michelle claimed the court specifically ordered her to appear on September 19, but not on August 20 as Kevin C. had been ordered, and this led her to believe she was not due back in court until September 19. She also claimed she did not receive notice of the Agencys six-month review hearing recommendation.
Michelle relies on Ansley v. Superior Court (1986) 185 Cal. App. 3d 477, 481, 229 Cal. Rptr. 771, which held a parent claiming a lack of due process notice of a juvenile dependency proceeding can challenge the courts findings and orders by filing a section 388 petition. We agree that a section 388 petition is a proper vehicle to raise due process challenges of notice. (Ansley, at p. 488.) However, Ansley is of little help to Michelle on anything other than that procedural point. In Ansley, the father had no notice of the dependency proceedings. Michelle, however, had notice of the dependency proceedings from the very beginning, including the August 20 six-month review hearing. On February 19 when the court ordered reunification services for Michelle, it also ordered her to appear on August 20 for the six-month review hearing. Additionally, on July 22, Agency sent notice of the six-month review hearing to Michelle at her last known address in La Mesa. This met the statutory requirements for notice of the hearing. ( §§ 293, subd. (e)(1) & 366.21, subd. (b).) That Michelle did not receive the mailed notice because she had no permanent home is of no moment; she had the responsibility to keep the court and Agency informed of her current address. ( § 316.1, subd. (a); In re Rashad B. (1999) 76 Cal.App.4th 442, 449-450.) In short, Michelle had proper and actual notice of the review hearing.
Michelle also made other court appearances in which she was ordered to appear at the August 20 six-month review hearing.
Rather than a lack of notice issue, Michelles claim is more accurately a mistake of fact. Michelles declared belief that when the court scheduled the September 19 special hearing and ordered her to appear on that date it was in lieu of the August 20 required appearance was a mistake. A mistake on her part is not a sufficient change of circumstances to require an evidentiary hearing under section 388.
Nor was there new evidence to justify an evidentiary hearing. Michelles newly appointed counsel proffered that if there had been a contested hearing Michelle would have presented evidence that she was effectively prevented from participating in reunification services for three months because of her medical problems that required surgery and prescription pain medications. But the court was aware of her medical problems. At the July 11 special hearing, counsel told the court Michelle had had surgery and was still taking prescription pain medications.
Moreover, as newly appointed counsel acknowledged below, the petition made no showing of how Tylers best interests would be advanced. The court found the petition was not in Tylers bests interests, noting the child had been in the system for 14 months and during that time Michelle had made little if any effort to participate in the services offered and visited Tyler only sporadically. We agree. Although Michelles visits were appropriate and pleasant, Tyler had a strong attachment to his maternal grandmother who wanted to adopt him. Other than occasionally visiting her son, Michelle had not complied with her reunification plan, which included a domestic violence program, drug rehabilitation, a psychological evaluation and counseling. It would not have been in Tylers best interests to have his status delayed by offering Michelle further reunification services; accordingly, the court was justified in denying a full hearing. (See In re Elizabeth M. (1997) 52 Cal.App.4th 318, 323; In re Zachary G. (1999) 77 Cal.App.4th 799.)
The court acknowledged Michelle had medical problems and indicated it was taking this fact into consideration.
Ineffective Assistance of Counsel Claim
Michelle also asserted in her declaration that on August 20 her counsel should have sought a continuance or set the matter for trial, thereby not allowing it to proceed without a contested hearing. Michelle claimed counsel knew about her medical problems and their impact on her ability to participate in the reunification case plan. Additionally, Michelle declared counsel knew Michelle wanted to reunite with Tyler.
The juvenile court declined to grant an evidentiary hearing on the ineffective assistance of counsel issue raised in the section 388 petition, stating that the issue could be raised in a petition for writ of habeas corpus, which is the customary practice.
The court added: "I will say that based on the [section] 388 and the offers of proof, that there was no showing that if her counsel had rendered a different kind of service, the outcome of the hearing would have been more favorable to [Michelle]."
The court did not abuse its discretion because Michelle failed to establish a prima facie case — (1) a genuine change of circumstances or new evidence and (2) a showing that setting aside the order would be in the best interests of the child. (In re Anthony W. , supra, 87 Cal.App.4th at p. 250.) For purposes of this assignment of error, we shall assume that Michelles realization that she had previously been rendered ineffective assistance of counsel at the August 20 hearing could be "a change of circumstance or new evidence" within the meaning of section 388, subdivision (a). However, as discussed above, Michelle failed to show how Tylers best interests would be served by setting aside the order terminating services. Without such a showing, the court need not order an evidentiary hearing. (Ibid.)
II. Counsel Not Ineffective for Failing to File Petition for Writ of Habeas Corpus
Alternatively, Michelle contends she received ineffective assistance of counsel because her second appointed counsel, Michael Bradfield, failed to file a petition for writ of habeas corpus raising the incompetency of her first appointed counsel. The contention is without merit.
Michelle has the burden of proving a claim of ineffective assistance of counsel by showing: (1) counsels representation fell below an objective standard of reasonableness; and (2) the deficiency resulted in demonstrable prejudice. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180; In re O. S. (2002) 102 Cal.App.4th 1402, 1407; In re Arturo A. (1992) 8 Cal.App.4th 229, 237.) In determining prejudice, we review the matter to determine whether it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (Strickland v. Washington (1984) 466 U.S. 668, 686, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) "A court need not evaluate whether counsels performance was deficient before examining prejudice suffered by defendant. [Citation.] Thus, a court may reject a claim if the party fails to demonstrate that but for trial counsels failings, the result would have been more favorable to the defendant." (In re Nada R., supra, at p. 1180.)
Michelle suffered no prejudice from Bradfields failure to file a petition for writ of habeas corpus on the incompetence of Wallach at the six-month review hearing because such a petition would not have been successful. Michelle claims Wallach provided ineffective assistance of counsel by failing to ask for a continuance and/or setting the matter for trial. Michelle is mistaken on both counts.
Had Wallach sought a continuance of the six-month review hearing based on Michelles absence, the court undoubtedly would have denied the motion. Juvenile courts routinely deny continuance requests based on the absence of a parent at that stage of the proceeding. "The dependency system seeks to keep to a minimum the amount of potential detriment to a minor resulting from court delay. [Citation .] Delay disserves the interests of the minor, the parents, and the courts, and is clearly inconsistent with the intent of the Legislature. [Citation.]" (Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 193.) Good cause for a continuance must be affirmatively demonstrated, and in no case may the juvenile court grant a continuance that is contrary to the interests of the minor. ( § 352, subd. (a).) Michelles absence did not constitute good cause. Wallach should not be faulted for failing to make an almost-certain futile motion. (See People v. Coddington (2000) 23 Cal.4th 529, 625, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; In re Lower (1979) 100 Cal. App. 3d 144, 149, fn. 3, 161 Cal. Rptr. 24.) Furthermore, since the continuance motion almost certainly would have been denied, Michelle was not prejudiced.
Similarly, Wallachs failure to set a contested hearing on Agencys recommendation to terminate services did not constitute ineffective assistance of counsel. Michelle had been incommunicado for more than one month. Wallachs last contact with Michelle was at the July 11 special hearing. Subsequently, Wallach mailed a copy of Agencys recommendation to Michelles last known address. Also, Wallach attempted to contact Michelle by telephoning the numbers Michelle had supplied, but was unsuccessful. As she explained to the trial court on August 20, Wallach did not know if she would be able to contact Michelle if she set the matter for trial. Wallach was frank with the court, and under these facts, acted appropriately as an officer of the court. Michelles reliance on In re Malcolm D. (1996) 42 Cal.App.4th 904, where counsel asked to be relieved, is misplaced. Wallach did not leave Michelle with no representation. In any event, Michelle cannot show prejudice. Given Michelles spotty record during the first six months of her reunification plan, it was not reasonably probable the court would have rejected Agencys recommendation and given her six more months of services had the matter gone to trial. (See fn. 7, ante.)
Bradfield could reasonably choose not to file a petition for writ of habeas corpus assailing Wallachs representation under these circumstances. Michelle has failed to show either that Bradfields performance was deficient, or that, had he actually presented such a petition, the result would have been favorable to Michelle. The ineffective assistance of counsel claim for failure to file a petition for writ of habeas corpus must fail.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, J., and OROURKE, J.