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In re William N.

California Court of Appeals, Fourth District, Second Division
Mar 13, 2008
No. E043597 (Cal. Ct. App. Mar. 13, 2008)

Opinion


In re WILLIAM N. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF CHILDREN’S SERVICES, Plaintiff and Respondent, v. WILLIAM N., JR., Defendant and Appellant. E043597 California Court of Appeal, Fourth District, Second Division March 13, 2008

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County Super.Ct.Nos. J202523 & J202524. A. Rex Victor, Judge.

William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Sandra D. Baxter, Deputy County Counsel, for Plaintiff and Respondent.

Konrad S. Lee, under appointment by the Court of Appeal, for Minors.

OPINION

Gaut, J.

William N., Jr. (father) appeals from a judgment terminating parental rights to his son, W.N., and daughter, S.N. Father contends he received constitutionally ineffective assistance of counsel when his trial counsel failed to request a continuance of the selection and implementation hearing, file a petition to modify a prior order (Welf. & Inst. Code, § 388), and clarify the terms of his probation conditions, among other errors. We affirm.

Neither the biological mother of the children involved in this appeal, nor father’s wife (step-mother) are involved in this appeal.

All further references are to the Welfare and Institutions Code unless otherwise indicated.

1. Background

On June 28, 2005, the Department of Children’s Services (DCS) intervened to remove W.N. and S.N. after their stepmother was arrested for being under the influence of drugs and the family residence was found to be uninhabitable. Father had been arrested the previous week for molesting his stepdaughters. Father’s conduct included giving one of the two girls a wooden dildo along with a bottle of mineral oil, and instructed her to use it to make her feel good. He did this in the presence of the other stepdaughter and a friend of the girls. A dependency petition was filed alleging the children were at risk due to the parents’ substance abuse, neglect (allegations B-1 through B-3), father’s sexual abuse of the stepsiblings and the fact he is a registered sex-offender (allegations D-4 to D-5), father’s incarceration, and the fact the biological mother’s whereabouts were unknown (allegations G-6 to G-7).

Because multiple references have been made to father’s criminal cases, we take judicial notice of the superior court file in Case No. FMB007635 (http://170.164.31.10/openaccess/criminal – FMB007635), which reveals he was formally charged with annoying or molesting a child under 18, with a prior conviction (Pen. Code, § 647.6, subd. (c)(1)), and was eventually granted probation in that case. (See Evid. Code, §§ 452, subd. (d), 459.)

Following a mediation session, the parties agreed to submit to jurisdiction upon amendment of the petition. The molestation allegation was amended to state that the stepchildren were exposed to inappropriate sexual innuendo by father; the parents submitted on the amended allegation as well as the allegation of neglect. (§ 300, subds. (b) & (d).) The juvenile court subsequently found true the allegations upon which father had submitted, established jurisdiction over W.N. and S.N., and removed them from father’s custody. The court ordered father to participate in reunification services, ordered supervised visitation with W.N. and S.N., but prohibited contact between father and the two stepdaughters. Eventually, W.N. and S.N. were placed in the home of a paternal uncle and aunt.

The six-month review report revealed father was incarcerated for violating his probation by failing to register as a sex-offender, and noted that both father and stepmother refused to participate in an inpatient drug program. The report also revealed father had tested positive for marijuana, and his behavior was demanding and intimidating. Regarding the sex-offender treatment program, it was observed that he attended, but he minimized his offense. A contested six-month review hearing took place on March 22, 2006. The court found by clear and convincing evidence that the parents had failed to complete the court ordered plan, and the extent of the parents’ compliance was minimal. Services were terminated as to the stepmother of W.N. and S.N., but the plan was extended another six months for father.

The 12-month review report observed that father was still living with his wife, the children’s stepmother, whose services had been terminated earlier for nonparticipation in reunification services. The social worker acknowledged father attended the sex offender program, was employed, and visited regularly. However, during this reporting period, S.N. disclosed to her relative caretaker that father had molested her prior to her removal. There were also some problems during visits to which father brought the stepmother, with whom he still lived and whose services had been terminated. The report indicated the children were placed together in the same relative home.

The assessment revealed also that father placed his own needs, as well as his marriage and lifestyle, above reunification with the children. At the time of the report, the father and stepmother resided in a motel which was inappropriate for children for a portion of the time. Father was homeless until February 2006, living out of his vehicle. The social worker concluded that the couple’s lengthy drug history, homeless situation, and his sex offender status placed the children at risk.

The matter was heard as a contested 12-month review hearing on January 26, 2007. Based on the reports submitted, the court found that it would be detrimental to place the children in father’s custody. It found by clear and convincing evidence that father failed to make substantive progress although the parties stipulated that father had substantially completed some components of the reunification plan. However, the court found he was homeless and the terms of his probation precluded him from having the children returned. The court terminated services and ordered a permanency planning hearing. (§ 366.26.)

On March 22, 2007, the court granted an order limiting father’s right to make educational decisions in order for W.N. to be assessed for special education, on DCS’s ex parte application. Father’s counsel objected to the packet, although he indicated father was not opposed to assessment testing, and objected to any limitation on his right to make educational decisions. The court granted DCS’s request for the order limiting father’s right to make educational decision.

The report prepared for the hearing on the selection and implementation of the permanent plan (§ 366.26) indicated father had visited regularly, the children were placed together in a relative’s home, and had regular contact with their paternal grandmother. S.N. was receiving counseling for anger, emotional and authority issues, referring to the possibility she may have been molested by her father, although there was not sufficient evidence to prove such allegations. W.N. was diagnosed with Sensory Integration Disorder and was in occupational therapy. Both children were shown to have significant attachment to their caregivers and expressed fear regarding any potential for return to their parents’ home. They wanted to stay with their uncle and aunt.

Father’s counsel set the matter for a contested hearing and indicated he would file a petition for modification. (§ 388.) He was ordered to file any petition no later than June 18, 2007. On July 12, 2007, the matter was called for hearing. Father’s counsel requested a continuance of the hearing, indicating that father’s terms and conditions of probation did not exclude father from having contact with W.N., it only prohibited contact with female children. Minor’s counsel objected to a continuance on this ground because it would not be in the children’s best interest to separate W.N. from S.N. DCS objected on the ground father was to have filed any petition for modification by June 18, 2007, and did not do so. The court found it was not likely that father did not know the terms of his probation and denied the continuance.

After considering the reports submitted by DCS, the court found that a permanent plan of adoption by the current relative caretakers was the appropriate plan, found by clear and convincing evidence that the children were adoptable, and terminated father’s parental rights. Father filed a notice of appeal.

2. Discussion

Father contends the juvenile court erred in terminating his parental rights because he was not effectively represented at the critical proceedings below. Specifically, father contends he is entitled to a reversal because his trial attorney misunderstood the nature of the condition of father’s probation limiting contact between father and female children, failed to request a continuance of the referral hearing to file a section 388 petition, and failed to file a petition for extraordinary relief, among other claims. We disagree.

A. Father was Effectively Represented at All Stages of the Dependency

A parent in a juvenile dependency proceeding is entitled to effective assistance of trial counsel. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659.) To establish denial of that right, the parent must show (1) counsel’s failure to act as a reasonably competent dependency attorney would, and (2) the error was prejudicial. (Id. at pp. 1667-1668; In re Merrick V. (2004) 122 Cal.App.4th 235, 254-255.) Thus, the parent must show that counsel’s omission were not the results of reasonable tactical decisions. (In re Merrick V., supra, at p. 255.) The parent must affirmatively show that the omissions of counsel involved a crucial issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98-99.)

Father contends that his trial counsel misdescribed the nature of his probation condition as prohibiting him from having unsupervised contact with all children, rather than with female children. In this respect, he challenges counsel’s acts and omissions as (1) failing to object to the misstatement of father’s probation condition in the July 21, 2005 report considered at the jurisdiction/disposition hearing; (2) stipulating to findings at the January setting hearing which misstated father’s probation term; (3) failing to argue or request a continuance of the referral hearing and failure to timely file an extraordinary writ after the January 2007 hearing; (4) failing to correct the court’s misunderstanding at the section 366.26 that father had allegedly molested his son; (5) blaming father for failing to understand the terms of his probation; (6) failing to timely file a petition for modification (§ 388); and (7) failing to present any evidence or argument at the contested selection and implementation hearing. We will address each claim.

First, there was no failure to object to a misstatement about father’s probation condition. The report for the July 21, 2005 hearing was actually filed on July 19, 2005, and it reports only that the deputy district attorney informed the social worker about the terms of the forthcoming plea agreement in the molestation case involving the stepdaughters. The report does not erroneously report the conditions of probation because he had not been sentenced yet, so there was no misstatement regarding probation conditions for counsel to correct. In any event, the probation condition was irrelevant, because father’s lack of stable residence, and his denial of responsibility with respect to the sexual offenses committed against his stepdaughters made placement a non-option. Counsel was not ineffective for failing to object.

Second, father refers to the reporter’s transcript of the 12-month-review hearing of January 26, 2007, complaining that counsel was ineffective in reciting the terms of a stipulation by misstating the terms of probation. However, counsel’s statement was simply that “he [father] does have a term of probation which would prohibit placement of the children with him, at this point in time.” While trial counsel may not have understood it, this statement proved to be accurate. The probation condition precluded return of S.N., and, because the children are a sibling set who were ordered placed together, it precluded return of W.N. as well.

At the time of the detention, the court ordered that they were to be maintained together and not separated absent an emergency. At each subsequent hearing, the court directed that all prior orders not in conflict with the current order shall remain in full force and effect.

Regarding counsel’s alleged failure to argue or request a continuance of the referral hearing and failure to timely file an extraordinary writ after the January 2007 hearing, there was no ineffective assistance of counsel. As indicated above, the children could not be placed with father, so a continuance of the referral hearing or a petition for extraordinary relief would have been a futile gesture. The law does not require a futile act. (Civ. Code, § 3532; In re Merrick V., supra, 122 Cal.App.4th at p. 255.) This principle also excuses counsel from failing to timely file a petition for modification, since the probation condition, even though limited to contact with female children, makes inevitable the conclusion that return of the children to father’s custody would not be in their best interests. Further, because father was still married to the stepmother, whose conduct led to the juvenile court proceedings and who did not participate in any treatment program, and because he was homeless, a section 388 petition would have been futile.

As for failing to correct the trial court’s misunderstanding at the section 366.26 hearing that father had allegedly molested his son, this was simply a mistake in word choice and not a misunderstanding by the court as to which child the father had molested. The several reports discussing this issue uniformly recounted that S.N. had been molested, with no mention of W.N., so the court did not “misunderstand” which child had been molested; it simply misspoke. Whether it was the son or the daughter, and whether or not there was sufficient evidence to support a subsequent petition, the allegation was one the court could not ignore in light of father’s history of molesting children in his household. There was no ineffective assistance of counsel.

Father also complains that trial counsel blamed him for misunderstanding his own probation conditions in arguing for a continuance to file a section 388 petition. Had father’s counsel argued otherwise, father would not have had any ground for the continuance because the issue would have been deemed forfeited. If father had been aware of the terms and simply failed to inform his attorney, there would be no ground for a continuance.

Finally, father claims counsel did not introduce any evidence or argument at the contested selection and implementation hearing. After reviewing the appellate record, we can discern no evidence, not already before the court, that counsel could have introduced, and we are not permitted to speculate about what might have been argued. Because father has opted to rely on the appellate record for this claim, rather than filing a habeas petition, he has not demonstrated that counsel failed to act as a reasonably competent dependency attorney would. There was no ineffective assistance of counsel.

B. Even if Counsel Misunderstood the Nature of Father’s Probation Condition, There is No Probability That But For Counsel’s Errors, The Result of The Proceeding Would have Been Different

As explained in the previous section, we find father was not deprived of his right to effective assistance of counsel. However, even if we had determined that counsel had failed to act as a reasonably competent dependency attorney would, reversal would not be required unless father had also demonstrated the error was prejudicial. (In re Kristin H., supra, 46 Cal.App.4th at pp. 1671-1672.)

Father has not so demonstrated. The children were initially removed because the stepmother was arrested on drug related charges and the house was unfit. Father was in local custody pending molestation allegations, and had previously been convicted of annoying or molesting a girl. By the time of the selection and implementation hearing, father was not living in an appropriate residence and had been homeless for a substantial part of the reunification period. He remained married to his wife whose conduct brought S.N. and W.N. into the system. During the dependency period, allegations surfaced that father had molested his own daughter prior to his arrest on charges relating to his stepdaughter. Finally, his probation condition prohibited unmonitored contact with female children, and this precluded placement of either child in his custody where they were ordered to be maintained together.

We conclude that even if it could be said that counsel had erred, there could be no determination that the error affected the outcome.

3. Disposition

The judgment is affirmed.

We concur: McKinster, Acting P. J., King, J.


Summaries of

In re William N.

California Court of Appeals, Fourth District, Second Division
Mar 13, 2008
No. E043597 (Cal. Ct. App. Mar. 13, 2008)
Case details for

In re William N.

Case Details

Full title:SAN BERNARDINO COUNTY DEPARTMENT OF CHILDREN’S SERVICES, Plaintiff and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Mar 13, 2008

Citations

No. E043597 (Cal. Ct. App. Mar. 13, 2008)