Opinion
F061642 Super. Ct. No. S-1501-AT-2916
10-05-2011
In re NICHOLAS S., a Minor. JENNIFER B., Petitioner and Respondent, v. JUAN R., Objector and Appellant.
Marsha F. Levine, under appointment by the Court of Appeal, for Objector and Appellant. Law Offices of Katherine E. Donovan, Katherine E. Donovan for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Kern County. Susan M. Gill, Judge.
Marsha F. Levine, under appointment by the Court of Appeal, for Objector and Appellant.
Law Offices of Katherine E. Donovan, Katherine E. Donovan for Petitioner and Respondent.
Appellant Juan R. (father) appeals from the trial court's order terminating his parental rights pursuant to Family Code section 7822. He argues that he was deprived of effective assistance of counsel to his prejudice.
Subsequent statutory references are to the Family Code.
We affirm the court's order.
FACTUAL AND PROCEDURAL HISTORIES
Father and Jennifer B. dated and lived together "off and on." Their relationship produced a child, Nicholas S., born in the summer of 2008.
Father reported that he lived with Jennifer for about a year, but "things went downhill" after Jennifer became pregnant. Father stated that he was not living with Jennifer at the time Nicholas was born, but he stayed with Jennifer and their son for about eight weeks after the birth. He described the relationship as "off and on ever since." Jennifer reported that she and father lived together "off and on" throughout their relationship. According to Jennifer, she ended the relationship in January 2008, but they discussed reconciling around the time Nicholas was born.
On June 2, 2010, Jennifer filed a petition to declare Nicholas free from father's parental custody and control. She alleged that father had left Nicholas in her sole and exclusive care and custody for a period exceeding one year, without any provision for support, payment of child support, communication, or contact from father.
The court appointed counsel for father. On August 10, 2010, father filed an opposition to the petition. Father alleged that he "made many attempts to visit with the minor child but was not allowed to do so." He alleged that he tried to give Jennifer money many times but she would not accept the money. According to father, he did not intentionally abandon Nicholas and had sporadic visitation in the year before the petition was filed. Father claimed that he spent the night with Jennifer and Nicholas four times from October through December 2009. He did not see Nicholas from January through March 2010. He alleged that he had contact with Nicholas again starting in April 2010.
A family services investigator's report was filed with the court on September 3, 2010. An investigator interviewed father on August 19, 2010. Father reported that, in 2008, Jennifer filed for a restraining order against him and sought to establish custody arrangements for Nicholas. Father appeared in court on September 8, 2008, but the matter was continued to September 30, 2008. Father reported that he did not attend the September 30 hearing because Jennifer told him that she had dropped the matter. Jennifer did appear in court on September 30, 2008, and was granted sole custody of Nicholas; father was granted supervised visits.
Father stated that he saw Nicholas regularly from October 2008 until June 2009. His visits occurred on Thursday evenings when he spent the night with Jennifer and Nicholas. Jennifer has three older children from a previous marriage. Father explained that he visited on Thursdays because Jennifer's older children spent every other Thursday night with their father. When he spent the night, father had to leave Jennifer's home early the next morning before the older children returned home. He stated that he got into an argument with Jennifer at the end of June 2009 and did not see Nicholas again until October 2009, when he resumed spending the night with Jennifer on Thursdays. Father's visits again stopped in December 2009. He did not see Nicholas again until May 27, 2010, when Jennifer invited him over. He saw Nicholas for 15 minutes and then spoke to Jennifer for another 45 minutes.
An investigator interviewed Jennifer on August 8, 2010. She reported that she and father lived together when Nicholas was born. Father did not contribute financially to the household and she asked him to leave in August 2008. Father became aggressive with Jennifer and she filed for a domestic violence restraining order.
Jennifer stated that she asked father if he would like to see Nicholas on his (father's) birthday in October 2008. Father avoided her and did not make arrangements to see Nicholas. She met father for a park visit, but father was drunk and she told him he could not see Nicholas if he continued to drink. According to Jennifer, the last effort she made for father to see Nicholas was Christmas in 2008. From Christmas 2008 to April 2010, her only communication with father was through texts and phone calls. Jennifer explained that she filed the petition because she was concerned about what would happen to Nicholas if something were to happen to her. She did not want Nicholas to go to father because she believes he is unstable and an alcoholic.
The author of the report, Mediator/Investigator Kristi Embry, noted that the information provided by Jennifer and father, including the status of their relationship over the previous two years, was "quite contradictory," and Nicholas was too young to be interviewed to confirm or deny the parents' conflicting versions of events. It was not clear to Embry that father intended to abandon Nicholas, and Embry opined, "Nicholas is so young he would easily be able to form a relationship with [father]." For these reasons, Embry did not recommend granting the petition.
On September 10, 2010, the parties appeared with counsel, and the court continued the matter. At the next hearing on November 5, 2010, Jennifer's counsel, Bruce South, informed the court he was ready to proceed to trial on the petition. Father's counsel, Troy Childers, requested a continuance, which was granted.
According to a minute order, Childers "inform[ed] the court that he need[ed] to review discovery just turned over to Mr. South." The record on appeal does not contain a reporter's transcript for the hearing on November 5, 2010, and there is no other explanation for the need for a continuance.
Another hearing was held on December 17, 2010. Father did not attend, and Childers had no explanation for his absence. He told the court, "I talked to my clerk before we came over here, and she said that the last time he was in she explicitly told him that he needed to be in court." Childers then agreed that the matter could proceed.
The court indicated that it had read the investigator's report, which did not recommend termination of father's parental rights because there was a factual dispute as to when father had contact with Nicholas and whether father had the intent to abandon the child. The court stated, "I am accepting that as the recommendation."
The court then asked South whether he had evidence to present. South told the court he could make an offer of proof as to Jennifer's testimony. Childers responded, "I'll accept it." The court then stated, "Well, let's hear it first."
South offered as evidence a photograph of a cell phone text message. He explained that Jennifer would testify that she received the message from father on May 31, 2010. The text read, "'I know I haven't been in his life for almost two years, but you don't have to rub it in my face, thank you.'" South stated that Jennifer would also testify that texts she received from father since Nicholas was born "have all dealt with [father's] attempt to try to have sex with my client, to meet my client on other issues outside of Nicholas." Childers accepted the offer of proof regarding the text communications from father as described by South.
South stated that Jennifer would testify that, contrary to his statements to the investigator, father did not spend the night with her on Thursdays. Jennifer's 17-year-old daughter would corroborate her mother's version of events, as she would testify that she lived with Jennifer, was present in the house on Thursday nights, and did not see father spend the night. Childers accepted the offer of proof.
South told the court that Jennifer also would testify that she obtained a domestic violence restraining order against father on September 30, 2008. At that time, father was given supervised visitation, but he never made any attempt to contact her about visitation. Again, Childers accepted this offer of proof.
The court asked Childers if he had anything to add, and Childers responded, "All I can do is submit it on the paperwork that I submitted to the Court, and with my understanding that my client was told to be here and he's not here voluntarily."
The court then granted the petition to free Nicholas from the custody and control of father. The court explained:
"In reviewing ... the Family Court Services investigator's report, it seemed to the Court that the contact, even if I took [father's] statements at face value and as completely true, it sounded as though he really was just trying to maintain a relationship with [Jennifer] and not with the child because most of the time, according to him, that he was there, the child was asleep, and that's viewing his evidence most favorably.
"When you take the evidence offered by [Jennifer] to the Family Court Services investigator and through offers of proof today, that would rebut any evidence that there has been contact by [father] other than perhaps token contact by [father]."
Father filed an appeal on January 10, 2011.
DISCUSSION
Section 7822 allows the court to declare a child free from parental custody and control where "[o]ne parent has left the child in the care and custody of the other parent for a period of one year without any provision for the child's support, or without communication from the parent, with the intent on the part of the parent to abandon the child." (§ 7822, subd. (a)(3).) The statute provides that "[t]he failure to provide ... support, or failure to communicate is presumptive evidence of the intent to abandon. If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent or parents." (Id., subd. (b).)
We review the trial court's findings for substantial evidence. (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010-1011; In re Amy A. (2005) 132 Cal.App.4th 63, 67.) We resolve all conflicts in the evidence in favor of the respondent, and all legitimate and reasonable inferences must be indulged in to uphold the judgment. (In re Brittany H. (1988) 198 Cal.App.3d 533, 549.)
According to Jennifer, father never made any efforts to arrange supervised visitation with Nicholas as provided in a September 2008 court order. After December 2008, Jennifer's only communication with father was through phone calls and texts, and father never paid any child support. This was substantial evidence that father left Nicholas for more than a year without any provision for support or communication and with the intent to abandon. (See, e.g., In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 504-508; In re Amy A., supra, 132 Cal.App.4th at pp. 69-72.)
On appeal, father contends that he was deprived of effective assistance of counsel. Specifically, he argues that his trial counsel's representation fell below objectively reasonable standards when he (1) did not request a continuance despite the fact that he had no explanation for father's absence during the hearing, and (2) accepted the various offers of proof made by Jennifer's counsel, instead of requiring Jennifer to testify and cross-examining her.
Father's appellate counsel filed a request for expansion of appointment of counsel to include the preparation and filing of a petition for writ of habeas corpus. On May 11, 2011, this court denied the request for lack of good cause shown, and father has not filed a habeas petition. He asserts that the record on direct appeal is sufficient to support his claim of ineffective assistance of counsel. (Cf. In re Darlice C. (2003) 105 Cal.App.4th 459, 463 [generally, appropriate way to raise claim of ineffective assistance of counsel is by writ of habeas corpus].)
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"[I]neffective assistance of counsel presents a cognizable claim on appeal from proceedings to terminate parental rights." (In re James S. (1991) 227 Cal.App.3d 930, 935.) The ineffective-assistance-of-counsel standard applicable in criminal cases applies. (Id. at p. 936.)
To succeed on a claim of ineffective assistance of counsel, an appellant must show, first, that his trial counsel's representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards, and second, that counsel's deficient representation caused him prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711.) To show prejudice, an appellant must show that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been more favorable to the appellant. (In re Emilye A., supra, at p. 1711; In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1.)
"'A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." [Citation.] There are countless ways to provide effective assistance in any given case.'" (People v. Lewis (1990) 50 Cal.3d 262, 288, quoting Strickland v. Washington, supra, 466 U.S. at p. 689.) "[A]n ineffective assistance claim may be reviewed on direct appeal where 'there simply could be no satisfactory explanation' for trial counsel's action or inaction. [Citation.]" (In re Dennis H., supra, 88 Cal.App.4th at p. 98, fn. 1.)
Father asserts that he was first deprived of effective assistance of counsel when his counsel did not request a continuance after father did not appear in court. In his opening brief, father identifies this conduct (or lack of conduct) as an instance of counsel's failure to act in a manner expected of a reasonably competent attorney, but he fails to provide any further argument or explanation. We agree with Jennifer that father has waived this claim. (In re S.A. (2010) 182 Cal.App.4th 1128, 1138; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 ["[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's ... issue as waived"].) Further, a continuance may only be granted upon a showing of good cause. (§ 7871, subd. (a).) Here, father's trial counsel stated to the court that he had no explanation for his client's absence, and it is not apparent from the record what the basis for a request for a continuance could be. An attorney's performance is not deficient by reason of his failure to make a groundless motion. (People v. Kipp (2001) 26 Cal.4th 1100, 1127.)
Father next argues that his trial counsel deprived him of effective assistance of counsel by accepting various offers of proof made by Jennifer's counsel. "An offer of proof is a statement by counsel describing proposed evidence and what he or she intends to prove if such evidence is admitted." (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1113.) Father argues that his trial counsel could not possibly have had a tactical reason for his actions. Jennifer, however, suggests possible reasons his trial counsel accepted Jennifer's counsel's offers of proof, rather than requiring the witnesses to testify. Perhaps, Jennifer surmises, "counsel made a tactical decision to accept a cold offer of proof rather than emotional testimony that would have been worse for [father] .... Preventing a sympathetic witness from testifying is a sound trial strategy." Jennifer suggests that preventing her from testifying may also have limited negative testimony about father. For example, by avoiding Jennifer's testimony, there was no testimony about the circumstances that lead to a domestic violence restraining order against father. We agree that these are plausible tactical reasons for foregoing live testimony.
Father responds that, if Jennifer had been required to testify, "a reasonably competent attorney familiar with the facts could well have caught her in a direct self-contradiction on a key point, in which case the court might have found her a less sympathetic witness." Father "has the burden of establishing, based on the record on appeal [citations] and on the basis of facts, not speculation [citation], that trial counsel rendered ineffective assistance." (People v. Mattson (1990) 50 Cal.3d 826, 876-877.) Father's speculation about what might have happened if his trial counsel had acted differently does not meet this burden. On the record before us, we cannot say father's trial counsel deprived him of effective assistance of counsel by accepting Jennifer's counsel's offers of proof.
DISPOSITION
The trial court order is affirmed.